Sex & Violence Seminar by TCDLA

SEX & VIOLENCE SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours

September 9-10, 2021 Sheraton Arlington - 1500 Convention Center Dr, Arlington, TX 76011 Heather Barbieri, Sam Bassett, Sarah Roland 14.0 Ethics: 1.0

Thursday, September 9, 2021 Time

###

CLE

8:15 am

Daily CLE Hours: 7.0 Topic

Ethics: 0.0

Speaker

Opening Remarks

Heather Barbieri, Sam Bassett, Sarah Roland

8:30 am

1.0

Voir Dire

Jeff Kearney

9:30 am

1.0

Sexual Abuse Symptomology/Child Interviews

Dr. John Mathew Fabian

10:30 am 10:45 am

Break 1.0

11:45 am

Sex Offender Registration Issues: Before, During, or After Trial

Richard Gladden

Lunch Provided

1:00 pm

1.0

Collateral Consequences

Ken Ervin

2:00 pm

1.0

Mental Health & Mitigation

Alyse Ferguson

3:00 pm

Break

3:15 pm

1.0

Preservation of Error

Allison Mathis

4:15 pm

1.0

Forensic Science Commission/Sexual Assault Examinations/Understanding Injuries

Mark Daniel and Nancy Downing, PhD

5:15 pm

Adjourn

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

SEX & VIOLENCE SEMINAR SEMINAR INFORMATION Date Location Course Director Total CLE Hours

September 9-10, 2021 Sheraton Arlington - 1500 Convention Center Dr, Arlington, TX 76011 Heather Barbieri, Sam Bassett, Sarah Roland 14.0 Ethics: 1.0

Friday, September 10, 2021 Time

###

CLE

8:10 am

Daily CLE Hours: 6.0 Topic

Ethics: 1.0

Speaker

Opening Remarks

Heather Barbieri, Sam Bassett, Sarah Roland

8:15 am

1.0

Cross of a Child

Eric Davis

9:15 am

1.0

Investigation

Betty Blackwell

10:15 am 10:30 am

Break 1.0

11:30 am

Protective Orders/CPS

Roberto Balli

Lunch Provided

12:45 pm

1.0

Grand Jury Packets

Gerry Morris

1:45 pm

1.0

Experts

Nicole DeBorde Hochglaube

2:45 pm

Break

3:00 pm

1.0

Parole & Civil Commitments

David O’Neil

4:00 pm

1.0

Ethics

Kerri Anderson Donica

5:00 pm

Adjourn

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

Texas Criminal Defense Lawyers Association

Sex & Violence Table of Contents

Speaker

Topic Complete Date of Seminar

Jeff Kearney Dr. John Mathew Fabian Richard Gladden Ken Ervin Alyse Ferguson Allison Mathis Mark Daniel and Nancy Downing, PhD Eric Davis Betty Blackwell Roberto Balli Gerry Morris Nicole DeBorde Hochglaube David O’Neil Kerri Anderson Donica

Voir Dire Sexual Abuse Symptomology/Child Interviews Sex Offender Registration Issues: Before, During, or After Trial Collateral Consequences Mental Health & Mitigation Preservation of Error Forensic Science Commission/Sexual Assault Examinations/Understanding Injuries Cross of a Child Investigation Protective Orders/CPS Grand Jury Packets Experts Parole & Civil Commitments Ethics

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

Texas Criminal Defense Lawyers Association

Sex & Violence September 9-10, 2021

Topic: Voir Dire Speaker:

Jeff Kearney 3100 W 7th St Ste 420 Fort Worth, TX 76107-2793 (817) 336-5600 Phone (817) 336-5610 Fax jkearney@kearneylawfirm.com email www.kearneylawfirm.com website

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

JURY SELECTION IN SEX ASSAULT CASES

Presented by Jeff Kearney Kearney Law Firm 3100 West 7th Street, Suite 420 (817) 336-5600 (817) 336-5610 (fax) jkearney@kearneylawfirm.com

TCDLA Sex & Violence Seminar September 9, 2021 Arlington, Texas

Sincere Appreciate is Given to Robert B. Hirschhorn of Cathy E. Bennett & Associates, Inc. and Stacy M. Schreiber Who Wrote Portions of this Paper

I. PRE-TRIAL STRATEGY A.

THINK ABOUT VOIR DIRE EARLY AND OFTEN

The initial interview is the one time during the case when the attorney will be in the same shoes as the potential jurors. An attorney’s perception of the case and the issues may be very similar to what the jurors may be thinking and feeling. As the client is telling you about the case for the first time, ask yourself these questions: 1.

What are the jury issues in this case?

What questions do I have about the facts of this case?

What are the facts, issues or problems in this case that cast the client in an unfavorable light?

When jurors first hear about the case in voir dire, they will conduct a similar analysis and evaluation. As the case unfolds during discovery, subsequent meetings with the client or witnesses and hearings on pre-trial motions, jury issues are constantly being developed. Start framing these issues in the form of voir dire questions. Concentrate on questions that help your case, as well as those questions that must be asked to defuse potential problems. For example in a case involving a drive-by shooting, assume the Defendant has a previous association with a gang. From the Prosecution’s perspective, this will be viewed as a helpful fact. From a Defense perspective, this is a potentially serious problem that must be discussed and diffused during voir dire. By using this develop-voir-dire-as-the-case-unfolds approach, the attorney is frequently identifying issues, writing a few voir dire questions at a time, and putting them in the voir dire file or trial notebook. When all pre-trial motions are resolved and counsel is preparing for trial, the attorney is in a position to go through the voir dire questions he/she has accumulated and can begin the process of prioritizing the issues that need to be covered and the voir dire questions that will accomplish that goal. B.

MOTION TO SUBMIT A JURY QUESTIONNAIRE

The number of judges who will allow a juror questionnaire is increasing. If the Judges in your jurisdiction do not use questionnaires, a Motion for a Juror Questionnaire (see Appendix A of this article) should be filed in an effort to persuade the court to try something new. There are three keys to persuading a judge to use a questionnaire:

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Questionnaires are granted in the vast majority of cases where the parties jointly move and agree upon the questionnaire’s content;

All logistical problems associated with a questionnaire must be removed from the over-worked and under-paid court staff. That is, the attorney must be prepared to take responsibility for the preparation, administration, copying, and dissemination of the completed questionnaires. This means bringing a sufficient number of questionnaires, black in pens1 and clip boards; and,

Keep the questionnaire as short as possible, to the point and fair to both sides. In a typical case, the questionnaire should not exceed three to five pages. In more complex cases, the goal should be no more than seven to ten pages. Rarely should a questionnaire exceed ten pages. However, in a case which there has been extensive pre-trial publicity, complex and multifaceted issues or in a capital murder case, it may be necessary that a more thorough questionnaire be prepared and submitted to the court. A sample questionnaire is attached to this article as Appendix B.

If the Judge has used questionnaires in other cases, obtain copies of them to get a sense of the type and length of questionnaire the Judge has found acceptable. Furthermore, just because a judge has never used a questionnaire in the past, do not assume that the Judge will not allow one to be used. For a more thorough discussion on questionnaires, we call the reader’s attention to Bennett’s Guide to Jury Selection and Trial Dynamics in Civil and Criminal Litigation, West Publishing Company 1993 (Updated 1995.) C.

REQUEST THAT CHALLENGE FOR CAUSE QUESTIONING BE TAKEN UP AT THE CONCLUSION OF VOIR DIRE

Challenges for cause can consume a great deal of time in any voir dire. If an attorney has one or two jurors who give answers that suggest further questioning is necessary to determine if a challenge for cause is appropriate, the questioning process can exhaust precious time. Therefore, we encourage lawyers to ask the Judge if further challenge for cause questioning can be taken up at the end of the entire voir dire. We are finding that many judges throughout the State of Texas employ this method. 1.

It allows for the maximum use of the attorney’s time during voir dire and does not interrupt his/her flow;

If the attorney has a talkative juror who is the subject to a challenge for cause on one issue and the juror wants to assert his/her view on another issue, the attorney can be polite and not offend the juror by saying, “[Juror’s Name], I

Black ink increases the quality and readability of the questionnaires.

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know I am cutting you off, but we will be talking with the Judge a little later.”; and 3.

By doing the challenges for cause at the end, the attorney knows, and more importantly, the Judge knows, exactly how many jurors are being challenged, how many unchallenged jurors are left, and which of the challenged jurors are most likely to be excused for cause.

There are many inherent problems with the challenge-for-cause-as-you-go approach. For example, fully developing the challenges for cause as they arise is not time efficient, other jurors may get bored, qualified jurors may learn how to disqualify themselves, and some cases get reversed because the Judge doesn’t grant an early challenge for cause for fear there will not be enough jurors left. Therefore, counsel would be well-served to ask the Court to allow the additional challenge for cause questioning to occur at the end of voir dire. II. TRIAL STRATEGY A.

LEARN, DON’T TEACH

It is human nature for an attorney who has spent months preparing a case to want to convince everyone in the courtroom that his or her position is the correct one, and that the client is deserving of a favorable verdict. Potential jurors come to the courtroom with a mind set that has developed over the span of many years, and seldom (if ever) will an attorney change a juror’s mind. In fact, it is rare to change a person’s mind and futile to try to change a person’s heart. We suggest that valuable time not be wasted trying to convince anyone to change. Attempting to convince jurors to change will only alienate them, shut down any possible dialogue, and encourage arguments, one-upmanship or lying. It is the wise and skillful attorney who listens to the jurors and learns from them. The attorney who asks jurors questions with an I-want-to-learn-from-you attitude will find that jurors are more willing to share their feelings or opinions when there is no threat of a challenge or criticism. These jurors will provide the information with which counsel can make meaningful challenges for cause and intelligently exercise peremptory strikes, while encouraging the other panel members to share their opinions or feelings because it is safe to do so. B.

NEVER BE JUDGMENTAL OF THE JURORS

In any meaningful relationship, it is important to trust and not be judgmental of the other person. This is especially true when it comes to jury selection. Too many times lawyers will alienate potential jurors by saying things like, “Do you understand the law says...” or, “Are you telling me that you cannot follow the law?”. When an attorney makes statements like these, the potential juror instinctively feels defensive or put on the spot. -4-

Even more damaging is the fact that the other potential jurors will feel empathy for the juror and animus towards the attorney. A better approach and one that will foster open communication is when the attorney has the courage to commend a juror who has given a painfully honest, yet negative answer. In our view, there is no such thing as a bad answer. The reason for this is because bad answers will open the door to challenges for cause or peremptory strikes. For example, imaging a situation where a juror has said that a person on trial should testify. Instead of responding with, “Do you understand that ever citizen has the right to not testify, and that the State bears the burden of proving a defendant guilty?”, say to the juror: “Miss Smith, I appreciate your honest and candid answer. The beauty of our system is that everyone is entitled to their own opinion. You have had the courage to express yours. Is it okay with you if a little bit later we visit (some attorneys would feel more comfortable saying talk) with the Judge about this?” This non-judgmental approach will be appreciated by the questioned juror and will create a setting that will encourage the other jurors to be honest with the attorney as well. C.

CONCENTRATE ON THE FIRST THIRTY-TWO JURORS

With voir dire time strictly limited, it is important not to use valuable time talking to jurors who will never sit on the panel. Limit questions to the first thirty-two jurors.2 If some of the first thirty-two jurors will be subject to a challenge for cause, talk to a sufficient number of jurors past juror number thirty-two. For example, if you feel that four jurors may be excused for hardship or subject to a challenge for cause as a result of the prosecutor’s voir dire or answers contained in the jury questionnaire, then talk to jurors through number thirty-six. The exception to this rule is if there is an expert who can educate the panel on a very important point and whose number is beyond thirty-two. Otherwise, there is no benefit talking with jurors who will not serve, and valuable voir dire time that could be used getting to know potential jurors will be wasted. D.

ORDERING TOPICS

Carefully consider the order in which topics are to be presented during voir dire. We encourage attorneys to plan the order of their voir dire to be consistent with the primacy/recency theory: jurors will remember the first and last thing they are told. By following this approach, the attorney is emphasizing the strongest aspects fo the case first and last, and diffusing issues and concerns in the middle. 2

The number of thirty-two was determined under Texas law as follows: a) twelve person jury; b) the Prosecution is entitled to ten peremptory strikes; and, c) the Defendant is entitled to ten peremptory strikes. If the numbers are adjusted (i.e., misdemeanor, capital murder, multiple defendants, additional peremptory strikes granted, alternates used or probable hardship or challenges for cause are developed during the Prosecutor’s voir dire), one should adjust the number of jurors whom the attorney questions.

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We would recommend that the attorney divide the voir dire as follows: 1. 2. 3. 4. 5. 6.

Introduction Overview of the Case Strong Topic Areas of Concern Strongest Topic(s) Conclusion

Following this format and employing the techniques contained in this article (looping, closure question, etc.), an attorney can generate a reasonable amount of information on the jurors. E.

STARTING YOUR VOIR DIRE

We call the very first part of the voir dire process the Introductory Phase. The purpose of the Introductory Phase of voir dire is to set the tone and mood for the trial. Property setting the tone for a case is critical if an attorney wants to conduct an effective voir dire. Remember our fundamental rule of voir dire; LEARN, DON’T TEACH. By allowing the prospective jurors to verbalize their opinions, attitudes and feelings, the other jurors are more likely to give candid answers and the attorney will be able to intelligently exercise challenges for cause and peremptory strikes. The key is getting the jurors to open up, and that is accomplished by properly setting the tone. Let’s examine the way many lawyers start their voir dire. It often begins something like this: “Good morning ladies and gentlemen. My name is Robert Smith, and I am the attorney who represents the Defendant in this case. This is the voir dire phase of the trial. The words, voir dire, are French and mean, to speak the truth. During this process, I will be asking you questions so we can find twelve fair and impartial jurors.” This is a typical introduction. There words, or words very similar to them, can be heard every Monday morning in courtrooms throughout the state. The only effective portion of this typical introduction is the first sentence, “Good morning ladies and gentlemen.” The rest is wholly ineffective and counter-productive. Let’s analyze the problems: 1.

“My name is Robert Smith, and I am the attorney who represents the Defendant in this case.” This entire sentence is flawed. The Judge just introduced Mr. Smith, the jurors know he is an attorney and the client has been dehumanized by being referred to as an object “... the Defendant.” Right off the bat, many jurors feel the lawyer is wasting time or talking in a condescending manner. Why would a lawyer want the jurors to remember -6-

his name, yet not even say his client’s name? Instead, the first sentence out of a lawyer’s mouth should grip the jury with the importance of the case. 2.

“This is the voir dire phase of the trial.” The concept is correct, but the delivery is not effective. The jurors know, either by prior jury experience, television or talking with other jurors in the jury assembly room, that the first part of any trial is jury selection. Lawyers must resist the temptation to begin jury selection with words or phrases with which jurors are unfamiliar (i.e., cause of action, voir dire, etc.)

“The words voir dire, are French and mean, to speak the truth.” Who cares? Have you ever been at a cocktail party and been asked, “I’ve been wondering what do the words voir dire mean?” No, instead people at cocktail parties want to know, “How can you represent someone who is guilty?” “Why do defendants have more rights than victims?” “How in the world could a jury acquit O.J. Simpson?” These are more substantive, probing and problematic areas that require our attention. Therefore, resist the teaching mode (“... voir dire means ...”), and focus on identifying the critical areas of inquiry and formulating open-ended questions that will probe the juror’s opinion, attitudes and feelings about the central issues.

“During this process I will be asking you questions so we can find twelve fair and impartial jurors.” In our opinion, this is the single most damaging and destructive sentence of the entire introduction because it will condition jurors to give responses that are perceived as fair and impartial. Lawyer Smith is sending the jury a mixed message. On one hand, he has told the jury to speak the truth and, on the other hand, he is saying the only good juror is the one who appears to be fair and impartial. Such a statement provokes the jurors to give responses that create the impression of fairness and impartiality, and are not necessary truthful. Therefore, in the typical voir dire the lawyer has conditioned the jurors to give appropriate, but not necessarily honest, responses to the questions asked. Our goal is to obtain honest, albeit at times painful, responses.

With these thoughts in mind, we encourage lawyers to set the tone in the following way: “Good morning ladies and gentlemen. I am proud to stand here with [Client’s Name] and have twelve of you decide this very important case. In this part of the trial, we3 need to find out your feelings, impressions or opinions about the issues in this case. I want you to know that there are no right or wrong

In the introduction, there is a constant reference to we. The we includes the lawyer(s), as well as the client. It is important to refer to we early and often. Hopefully, by the end of the case the we will encompass the lawyer, the client and the jury.

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answers. We will be honest with you, and we ask that you be as honest as you can with us.” This introduction is substantively the same, but it sets a much more honest and open tone. There is a lot more a lawyer can say at this point.4 F.

OVERVIEW OF THE CASE

An attorney has the right to give a brief overview of the case to the jurors. In Powers v. Ohio, 499 U.S. 400, 114 L.Ed.2d 660, 111 S.Ct. 1364 (1991), the United States Supreme Court held, “...the voir dire phase of the trial is the juror’s first introduction to the substantive factual and legal issues in a case.” Id at p. 1371. In many instances, the brief overview has often turned into the entire voir dire, with a few ineffective closed-ended voir dire questions thrown in during the process. The danger of the brief overview consuming the entire voir dire. Unfortunately, the typical voir dire is essentially a Pre-Opening Statement, is not persuasive, elicits little or no information upon which to base challenges for cause or peremptory strikes, and, in our opinion, is the primary reason many judges now impose time limits. During voir dire, an attorney must vigilantly resist the temptation to take charge and do all the talking. Remember our message: Listen, don’t teach; Learn, don’t lecture; Colloquy not soliloquy. Therefore, limit the overview to three to five minutes and then go directly into a questioning mode. G.

THREE TO FIVE TOPICS

Pick the most important areas of the case and fully discussing these topics with as many jurors as possible. The more time the attorney spends asking questions, the jurors are more likely to open up and respond with his/her true opinions or feelings. By touching on a few meaningful areas, the chances are increased that jurors will want to expound on their answers. H.

TALK TO EIGHT JURORS PER TOPIC

Limiting the number of topics presented to potential jurors increases the number of jurors with whom the lawyer can talk about each subject. It is important to talk to as many jurors as possible in order to flush out unfavorable jurors and to have the favorable jurors educate the rest of the panel. By allowing as many as eight jurors to talk on a topic, the attorney will have established a rapport with at least the first thirty-two jurors, and have provided the panel with the views of many of their fellow jurors on a variety of subjects. 4

One point worth mentioning is that if there are any sensitive or potentially embarrassing issues which the jurors will be asked to discuss, the attorney may want to say, “Before I begin asking questions, I want to tell you that some of the questions are in areas we would consider to be private, sensitive or embarrassing. If you would feel more comfortable answering any question in private, please let us know and we’re sure Judge Goodperson will let us talk privately. If I were sitting where you are, I’d want to answer some of the questions privately.” This type of self-disclosure is an excellent way to get jurors to open up.

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Additionally, talking to as many as eight jurors per topic allows the jurors to do the talking which, in turn, may actually encourage the Court to extend the voir dire time. I.

ASK A JUROR NO MORE THAN THREE QUESTIONS AT A TIME

It is important to remember that while encouraging the jurors to talk, a lawyer does not spend too much time with the same juror. We recommend asking the same juror no more than three questions at one time. Asking the same juror too many questions may make the other prospective jurors feel slighted or ignored. The attorney also faces the danger of asking one questions too many and making a juror feel like he or she is being cross-examined or put on trial, thus causing the juror to become defensive or embarrassed. Too many questions may encourage a juror to react negatively or show off and speak out just to get attention. Remember, ask a juror three questions and move on to other jurors. If needed, it is always possible to come back to the topic and ask the juror another question or two. J.

LOOPING

One of the most powerful and effective voir dire techniques is called looping. Looping is a technique whereby an attorney asks one potential juror a specific questions and the juror responds. The lawyer then uses the juror’s name, repeats the juror’s exact words, and then asks another juror for a reaction to what the first juror said. A third juror is then asked to respond to the answers given by the first two jurors5, with the attorney repeating their answers exactly and always using the juror’s name. This communication technique has many benefits. The jurors are educating each other rather than the panel hearing the propaganda of the lawyers. By repeating the juror’s exact words, any juror who disagrees is, essentially, disagreeing with another panel member and not the attorney. Using the jurors’ names compliments the jurors who have spent all day being treated as nameless and faceless entities, and the attorney becomes the one person who has recognized the jurors as people. The jurors will feel that they are held in positive regard and that their answers are valued. This technique makes the jurors more likely to share honest feelings and opinions, and is the single greatest tool in encouraging a roomful of strangers to talk about their honest opinions or feelings. Looping is also an effective way to deal with unfavorable answers. Following an unfavorable answer, a lawyer should thank and praise the juror for the answer. The attorney should explain to the juror and the entire panel that the purpose of voir dire is to learn what people’s opinions and feelings about certain subjects are, that the beauty of our system is that everyone is entitled to their opinions, and that there are no right or wrong answers, just honest ones. The attorney can then determine how many jurors agree or disagree with the view expressed by that particular juror. Jurors who share a similar 5

We have referred to this as the double loop.

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opinion or feeling can be identified. Once the attorney has determined this group of potentially unfavorable jurors, he or she can then focus on jurors who are favorable on this issue, i.e., they disagree with the previous (and unfavorable) answer. Opposing viewpoints can then be expressed by the other jurors. By handling an unfavorable answer in this manner, the lawyer has identified potential problem jurors, maintained or increased credibility, encouraged further candor from the jurors, and has once again segued back to positive ground by having the good jurors educate the panel. K.

THE THREE “E’s”

As explained earlier, far too many attorneys begin the jury selection process by explaining to the panel that voir dire is derived from a French term meaning, to speak the truth. We suggest that voir dire is more than this. Voir dire is an invaluable time during which lawyers should concentrate on what we refer to as the three “E’s”: 1) Eliciting information; 2) Establishing rapport; and, 3) Educating by having the jurors teach each other. To elicit information from potential jurors, lawyers must first make it easy for the jurors to open up and share important and personal information. Therefore, we suggest to attorneys that they open lines of communication by briefly sharing important and personal information about themselves. We call this self-disclosure. If an attorney wants jurors to share personal information, then that attorney must be ready, willing and able to do the same and do it first. Rapport means harmony, understanding and camaraderie. Rapport is established between an attorney and a jury by asking meaningful questions and not being judgmental of the juror or their answers. Establishing rapport with the jurors is another powerful tool of an effective voir dire. After all is said and done, in a close case the jury usually listens to, remembers, and ultimately sides with the lawyer with whom they have formed a bond. As with any relationship, the foundation of the relationship built between an attorney and his/her jurors begins with the honesty and trust developed during voir dire. The jurors will feel that if the lawyer is honest and trusting enough to share the case with them (warts and all), the lawyer will be truthful throughout the presentation of the case. For the attorney, the first reward for this veracity comes when the jurors respond honestly and candidly. Educating the panel is a critical aspect of an effective voir dire and should be done by other members of the panel rather than the lawyer. A lawyer should use open-ended questions so that a juror will reveal an experience or opinion in an area that is helpful to your case. The panel will more likely believe and remember information and knowledge shared with them by one of their peers, than they will if that same information comes from the attorney. Examples of questions that will allow the jurors to educate each other will include the following. 1.

What are some reasons why an innocent person would not testify? -10-

Would you please share with us any negative experience that you or a family member has had with a police officer?

What was your reaction when Detective Mark Furhman took the Fifth Amendment in the O.J. Simpson case?

What was your reaction when the F.B.I. falsely accused Richard Jewell of the Olympic Park bombing?

What was your reaction when you learned a woman falsely accused Michael Irvin of the Dallas Cowboys of sexual assault?

Under what circumstances should a person be allowed to use deadly force to protect themselves or their family?

CLOSURE QUESTION

As a general rule, we do not advocate asking general questions to the entire venire. Many times, when a probing and meaningful question is asked in a group setting, jurors are reluctant to answer. For example, in this day and age most potential jurors have opinions and feelings on laws, crimes and punishment. Too many times we have heard a lawyer say to the jury panel, “Will any member of the jury panel hold it against the Defendant if he/she does not testify?” We know that many jurors have strong feelings and negative opinions on this topic and will usually share this information when properly asked on an individual basis (i.e., “What would your reaction be if a person on trial did not testify on his own behalf?” or, “What are some reasons why an innocent person would not testify?”). What often happens in a group setting is that no one will raise their hand. General questions to the panel will only encourage the most outspoken jurors to participate. These jurors are just looking for the opportunity to speak their minds. Our goal is to get the other jurors to talk. Therefore, we recommend that an attorney ask specific jurors specific questions until such time as the attorney is ready to bring the topic to a conclusion. That is the time to aks the entire venire the closure questions, “We have heard quite a few of your fellow jurors say they feel that there are valid reasons why an innocent person would not testify. Are there any members of the jury panel who feel differently or disagree? There is nothing wrong with disagreeing, but we need to know, so please raise your hand.” Conversely, if the prior jurors said that a person accused of a crime should testify, the attorney should ask a series of questions in the following manner: Before we leave this topic, I need to ask you as a group, how many of you agree and disagree with Mr. Gray and Ms. Dodson. First, how many jurors agree that a person should testify? Please raise your hands. After recording the names and numbers of the jurors who agree, ask:

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How many jurors disagree with Mr. Gray and Ms. Dodson that there are valid reasons why a person would not want to testify? Again, record the jurors’ names and numbers. This time go back and ask several of the jurors why they disagree. This will reinforce the third prong (self-education) of our Three E’s theory. Finally, some jurors will not raise their hands at all. Pick two or three jurors and say: [Juror’s Name], I noticed that you didn’t raise your hand. What is your feeling or opinion about an innocent person on trial not testifying? Flushing out that information brings closure to the topic. It is time to segue into the next area by saying to the panel, “Now I want to ask you some questions about [new topic].” M.

THREE VOIR DIRE PROBLEMS - “MOST JURORS DON’T TALK; A FEW TALK TOO MUCH; SOME DON’T TELL THE TRUTH!” There are three fundamental problems with voir dire: 1. 2. 3.

MOST JURORS DON’T TALK; A FEW JURORS TALK TOO MUCH; and SOME JURORS DON’T TELL THE TRUTH!

The best trial lawyers have come to the conclusion that the most effective voir dire occurs when it is the jurors who do most of the talking. Most of the commentators and pundits assert that voir dire is an opportunity for the lawyers to persuade the jurors. In our view, an effective voir dire is an opportunity for the jurors to persuade each other on the issues associated with the case. A key ingredient in solving the first problem (most jurors don’t talk) is to properly set the tone6, and then direct specific questions to specific jurors. The second problem (some jurors talk too much) is minimized when an attorney uses this interactive approach to voir dire. There are three options available for handling a juror who constantly raises his/her hand and volunteers information. 1.

If the information is helpful, let the juror talk and then use the information by looping;7

The tone is set in the Introductory Phase of voir dire. (See the heading entitled, “Starting your Voir Dire.”) Our method is to tell the jurors that there are no right or wrong answers, only honest ones and that the lawyer will ask questions and not give speeches or lecture to the jury. 7

For more information on this concept, see the heading entitled, “Looping.”

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If the information identifies the juror as a potential challenge for cause, say to the juror, “[Juror’s Name], I appreciate your answer. If it is okay with you, we would like to talk to you later in more detail with the Judge.” This way, when the juror subsequently raises his/her hand, the answer can be cut off by saying, “[Juror’s Name], we’ll talk to you about this as well,” then move on to another juror; and

If the juror is a potential strike and is deep in the panel and may not be reached say, “[Juror’s Name], as you can tell, the Judge has brought in more jurors than we will need. What I am saying is that we will probably not get to you. However, I appreciate your raising your hand, and if we think we may reach you, I will come back to you.” The attorney is then free to go on to another juror, has eliminated the problem, and has not alienated the juror (or any other of the other jurors) in the process.

The third problem (jurors who don’t tell the truth) requires an understanding of why the juror is not being candid. Some of the reasons why this occurs are because: 1. 2. 3. 4.

The juror is afraid of being stigmatized; The juror’s feelings conflict with his/her self-perception; The juror has an agenda; or, The juror would rather avoid the issue than confront it.

Being a good listener and carefully observing the juror’s non-verbal communication will help the lawyer identify those jurors who are not being candid. The attorney (or the consultant) must try and identify why the juror is reluctant to be honest. An empathetic approach may flush out the answer. The lawyer should consider asking such questions as: 1. 2. 3. 4.

I sense some hesitation in your answer. It is absolutely okay to have some hesitations or reservations; I just need to know; How would you feel if you were chosen to be on this jury?; Have you ever held a different view on this issue and what changed your mind?; or, What is another view that some other jurors might have on this issue?

The reality is that every jury panel has at least one juror who is not being honest. Since time is limited, make some attempt at determining why the juror is not being candid. Ask questions in an empathetic (not confrontational) manner. Many times we have heard jurors say, “Well, to be honest with you...” Those very words can open the juror up to a challenge for cause and save a precious peremptory strike. N.

TOP 10 QUESTIONS AND PHRASES ATTORNEYS SHOULD NEVER USE

Most of this article is devoted to the techniques or methodology an attorney should use during a thirty minute voir dire. After participating in many trial and reading dozens of -13-

voir dire transcripts, we have assembled a Top 10 Questions and Phrases Attorneys Should Never Use in Voir Dire: 10.

Do you understand that the law says ...?

I take it from your silence that no one disagrees with the proposition that ...?

Does anyone have a problem with ...?

Will you keep an open mind and not decide this case until you have heard all the evidence?

Can you set aside your bias and decide the case on the facts?

Has anyone formed an opinion about ...?

Can every one of you be a fair and impartial juror in a case like this?

Will you promise me that ...?

I trust you will agree ...?

And the Number One Question attorneys should absolutely NEVER ask as a voir dire to the entire panel is: 1.

Do any members of the panel have any feelings about ...?

Just remember, regardless of a person’s gender, age, race, education, income, occupation, or national origin, everyone has feelings. Some jurors are more willing to express their feelings, while others have a harder time doing so. The question to ask is, “What feelings do you have [Juror’s Name] about ...?” III. CASE SPECIFIC QUESTIONS FOR A SEXUAL ASSAULT OF A CHILD PROSECUTION A.

DEALING WITH THIS TYPE OF CASE

Attorneys should be hyper-sensitive to the fact that all jurors have very strong feelings about allegations involving molestation or abuse of children. This is certainly a fact that the jurors will be thinking about and talking about during deliberations. Attorneys should deal with this matter head on at the beginning of voir dire. The attorney should selfdisclose his/her understanding that all of us have very strong feelings about these types of cases and should admit that the attorney also has strong feelings. By self-disclosing -14-

your feelings, you are more likely to have jurors tell you about their feelings. Some sample questions that can be used to get the jurors talking are as follows:

When I hear of an allegation that a child has been sexually molested or abused, I can’t help but think about my daughter and what feelings I would have if something like that ever happened to her. Many people have strong feelings about these types of allegations. What are yours, Mrs. Brown? (Attorneys should then loop to several other jurors.)

Given your strong feelings, wouldn’t [Client’s Name] start out with one strike against him?

Many people will say that they can set strong feelings aside and judge a case strictly on the evidence. Please help us by sharing with us what process you would go through to keep your strong feelings regarding these issues from influencing your verdict.

MAKE A FEAR LIST

Attorneys should identify everything that scares them about their case and make an exhaustive list of questions that deal with the issues that will come out during the trial. This list should include questions relating to the following: 1. 2. 3.

What facts are you most afraid of the jury hearing about? What are you most afraid of the jurors thinking when they hear the evidence? What are you most afraid that the jurors will talk about when they begin their deliberations.

Attorneys should get the jurors to talk about the issues on their fear list during voir dire because you can be assured that they will be thinking about them and talking about them during their deliberations. You should get into the fear list questions as early as possible during the voir dire. The attorney should admit to the jurors that he/she is afraid of these issues and give the reasons why you are fearful. Be sure and ask open-ended questions to allow the jurors to express their true feelings regarding these sensitive issues. C.

COMMUNICATE THE THEORY OF THE CASE WITH OPEN-ENDED QUESTIONS

During this phase of the voir dire, the attorney is allowing the jurors to educate themselves as to their life experiences that are consistent with the theory of the case. For example, if your theory is that a child mis-interpreted the actions of an adult and overreacted to it, you might want to ask these type of questions: 1.

Mr. Williams, have you ever done something that was mis-interpreted by someone else? Tell us about it. -15-

Ms. Adams, have you ever misinterpreted something that was done or said to you? Tell us about that.

Mr. Smith, have you ever had anyone misinterpreted something you have said or done and had that person overreact to it? Please tell us about it.

Ms. Jackson, if a child overreacts and causes the police to be called, and an adult is arrested, do you think it would be easy or difficult for the child to later say “I overreacted”? Why or why not? (Loop to several other jurors.)

Has anyone ever known someone who overreacted to a situation and got in too far to back out? I need your help on this. Can anyone think of an example where this has happened?

Mr. Wynn, how might a twelve or thirteen year old girl confuse attention or affection as a sexual advance? Please give us your thoughts.

MAKE THE JURORS AWARE OF FALSE ALLEGATIONS

One of the most important things an attorney can do during voir dire is to make the jurors aware of false allegations. Some questions that can be used to get the jurors thinking and talking about false allegations are as follows: 1.

Has anyone ever been accused of something that the did not do? Do you remember how you felt?

Has anyone ever been punished for something they did not do? Do you remember how that made you feel?

Has anyone ever accused someone of doing something, and you later found out that they did not do it? How did that make you feel?

Did anyone accuse someone of doing something and then punish them, only to find out later that they did not do it? Do you remember how that made you feel?

Would it be easy or difficult for a child to convince a parent that she was touched improperly? Why?

Would it be easy or difficult for a child to convince a police officer that she was touched improperly? Why?

-16-

Would it be easy or difficult for a child to convince a doctor that she was touched improperly? Why?

Some people believe that there has been an increase of false reports by children regarding sexual molestation. How do you feel about that, Ms. Reagan?

Mr. Bush, do you feel that every allegation of sexual molestation should be considered true? Why or why not? What would happen if every claim was automatically considered true?

10.

What would you do if a child falsely accused you of sexual molestation? How would you go about proving that you did not do it? Do you think it would be easy or difficult to prove that something did not happen?

11.

Has anyone ever promised their child that if they claimed a person did something bad to them, you would believe them no matter what? Should this be extended to other children, even children that you do not know?

12.

Has anyone ever known a child to fib or lie about something important? Tell us about that. Why would a child do that?

13.

Mr. Clinton, what are some reasons you could think of that a child would not tell the truth?

14.

Mr. Gore, do you think a child could make up a story about being sexually molested and fool everyone? Why?

15.

If a child tells a false story over and over to a number of different people, what effect would it have on the child? Why? If an adult praises the child for reporting the incident and reinforces what the child says, what effect would that have on the child? Why?

16.

Have you ever volunteered to work with children in the past? Given the number of false allegations, how do you feel about working with children now? Why?

17.

Have you ever truly believed something that your child told you, and it later turned out to be false? Please tell us about that. Were you absolutely convinced that your child was telling the truth? How did it make you feel when you found out that your child had lied to you?

-17-

Texas Criminal Defense Lawyers Association

Sex & Violence

September 9-10, 2021

Topic: Sexual Abuse Symptomology/Child Interviews Speaker:

Dr. John Mathew Fabian 5716 West US Highway 290, Suite 110 Austin, TX 78735 (512) 831-6551 Phone john@johnmatthewfabian.com email www.johnmatthewfabian.com website

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

CHILD SEX ABUSE INVESTIGATIONS: A FORENSIC PSYCHOLOGIST’S PERSPECTIVE John Matthew Fabian PSYD JD ABPPi Board Certified Forensic & Clinical Psychologist Forensic & Clinical Neuropsychologist

Introduction Forensic psychologists are often utilized in sex abuse investigations. The expert witness forensic psychologist in these type of investigations can play a variety of roles. While many forensic psychologists perform sexual violence risk assessments with offenders who have been charged or convicted of criminal sex offenses, the child sexual abuse expert witness will play a different role on the front end of the investigation. Such roles include the following: 1) Reviewing medical records, witness statements, and alleged victim statements concerning an alleged sex offense and investigation; 2) Examining the child or children regarding the alleged allegations, the validity and genuinity of such claims, and potential for false allegations; 3) Interviewing family members involved with the alleged victim(s) to obtain more information as to the alleged allegation and conducting a risk assessment as to whether the parent(s) can have supervised or unsupervised visitation with the child(ren); 4) Serving as an education expert to the trier of fact regarding sexual abuse symptomatology and common symptoms consistent/inconsistent with sexual abuse. 5) Evaluating the research concerns regarding child sexual abuse accommodation syndrome;

This brief article will discuss some of these aforementioned roles and issues in child sex abuse cases. INVESTIGATING CHILD SEXUAL ABUSE INVESTIGATIONS Professionals who work with sexual abuse victims will agree that abused children are often reluctant to disclose abuse.ii At the same time, they will acknowledge that one rarely knows whether child sexual abuse has occurred unless there is a disclosure made by the victim. Professionals thus believe that children are reluctant to disclose at the same time that most victims with whom they work are willing to disclose. This reflects the fact that professionals never speak to the vast majority of sexual abuse victims. Adult surveys consistently find that less

than 10% of the child sexual abuse acknowledged by survey respondents was ever reported to the authorities. Victims known to the system are not representative of sexual abuse victims in general, because most victims are not recognized as such. When mental health and medical professionals make false positive or false negative errors in their judgments about the validity of allegations of child sex abuse, the consequences can be catastrophic for the affected children and adults.iii As a result of the error rates as to judgment of the validity of allegations in child sex abuse cases, some argue that experts who perform these evaluations should not explicitly state their opinions about the ultimate issue and whether or not abuse allegations are true because of a lack of sound scientific basis for such opinions. The expert may consider analyzing the case and providing an analysis as to the factors and issues related to a genuine and true allegation versus a false allegation but should not offer specific testimony as to whether the allegation is true or false in nature. Forensic psychologists can assist legal decision makers in cases of allegation of child sex abuse by collecting data using forensic interviews, psychological testing, collateral record reviews, and summarizing relevant findings from social science research.iv Child protective services (CPS) agencies in the U.S. receive about 250,000 reports of alleged child sexual abuse each year. v About one third of these reports are screened out prior to investigation, yet still 150,000 reports are the subject of forensic child sexual abuse evaluations performed by CPS case workers. While the central evaluative issue in these cases is arriving at a decision to classify abuse allegations as either substantiated or not substantiated, in some cases the opinion of the evaluator as to whether or not the abuse occurred is superfluous because there is absolutely no clear and convincing corroborative evidence that the abuse had occurred. Currently, there are no scientifically validated actuarial decision procedures designed to assist clinicians in the evaluation of allegations of child sexual abuse. The clinicians’ decisions and ultimate clinical judgment are based on review and analysis of the available data in light of the clinician's own experiences, and their knowledge of the social science research and investigative and interrogative techniques. Using a Sex Offender Risk Assessment Expert to Inform Sexual Abuse Investigations: Understanding the Modus Operandi of Child Sex Offenders and What It Tells Us About Victims’ Secrecy Across the adult and child literature, a consistent factor is the importance of the relationships among the child, the alleged perpetrator, and other important people in the child’s life, particularly the child’s parents. These relationships are informative as to why a child would keep sexual abuse a secret, even extending into adulthood. When the child is abused by a parent or close relative, the child is likely to refrain from disclosing as much from love as from fear; love for the perpetrator and for the other parent. Although, disclosure may end the abuse, it will likely disrupt the child’s relationships with some of the most important people in the child’s life. However, most sexual abuse is not perpetrated by parents, and delays in disclosure are not limited to parental abuse.

How should we think about the dynamics of disclosure when the abuser is not related to the child? A useful method in better understanding the dynamics of disclosure is to transition from the victims’ to the child sex offenders’ perspective. Research asking child sex offenders to describe their modus operandi provides insight into the means by which sex offenders choose their prospective victims, obtain access to children, befriend and groom children, desensitize children to sexual touch, progress to more serious sexual activities with children, and convince children to keep the abuse a secret. Two common themes are forefront. First, sex offenders emphasize the extent to which they seduce their victims over time rather than commit isolated assaults. The majority of child molestation includes attempts to obtain the assent and cooperation of victims. Of course, with this level of planning and preparation often through grooming, offenders are unlikely to abuse any victim on only one occasion. Second, intrafamilial and extrafamilial sex offenders are remarkably similar. Researchers have found that sex offenders often victimize children both within and outside their families. The research on modus operandi finds more similarities than differences in their approach. Of course, because of their privileges and status with respect to children to whom they are related or who are under their care, intrafamilial sex offenders will enjoy access that extrafamilial sex offenders lack. Extrafamilial sex offenders must overcome children’s hesitancy to trust strangers (much of it taught to them by family members) and often seek to become “like family.” Only a minority of sex offenses against children are perpetrated by strangers. Rather, child sex offenders either seek out or take advantage of opportunities to molest children with whom they are familiar. In an analysis of the offense patterns of different types of sex offenders, Beauregard and colleaguesvi described two types of interest: the “sophisticated rape track” who work with or are involved with children, and the “family infiltrator.” Those in the sophisticated rape track “because of their position and status, may appear nonthreatening to their victims. They benefit from a context that affords them the opportunity to be in the presence of potential victims and, therefore, to establish intimate relationships with some of them through manipulative strategies (e.g., seduction, tricks, games). Moreover, they can easily create situations that allow them to be alone with potential victims (e.g., staying after school, camping trips, movies) not only to gain the victim’s trust but also to provide a favorable context for sexual activity.” The family infiltrators “become acquainted with a family and offer different types of services, especially babysitting. Offenders specifically target women living alone with children…” In both types of cases the child’s parents are likely to view the sex offender favorably, because of the offender’s interest in the parents’ child. In the family infiltrator scenario, the offender may appeal to the parent both as a surrogate father and as a friend or intimate partner. Many sex offenders will acknowledge that they choose victims on the basis of their apparent vulnerability. Vulnerability may be defined both in terms of children’s status (e.g., living in a divorced home or being young) and in terms of emotional or psychological state (e.g., a needy child, a depressed or unhappy child). In fact, about half of child sex offenders target children who typically lack self-confidence or self-esteem. Child sex offenders often target a child with family problems, without supervision, is always on the street and in need of help.

The first step for the sex offender is to befriend the child, typically before any kind of physical contact is attempted. Child sex offenders adopt strategies that are similar to prosocial behaviors which consist of demonstrating love, attention and appreciation. Both intrafamilial and extrafamilial sex offenders describe spending time with the child, giving the child gifts (grooming), sometimes introducing children to alcohol and pornography. When the sexual abuser is the child’s parent, the extra attention paid to the child not only has the effect of making the child feel special but isolates the child and the offending parent from the other family members. The second step is to desensitize the child to sexual touch through progressively more invasive and sexual touch and talk. This approach has several purposes. The offender can test the child’s willingness to consent and the likelihood that the child will disclose. If the child discloses at an early stage of the process, the offender can claim that the touch was merely affectionate, accidental, or otherwise non-sexual. As the abuse progresses, the offender can assure the child of the harmlessness and morality of the actions. Third, the offender initiates overtly sexual acts. Offenders endorse a mixture of bribes and threats as a means of ensuring the victim’s compliance, and the strategies are for the most part similar between intrafamilial and extrafamilial offenders. If bribes or threats fail, many offenders are willing to resort to physical coercion. To some extent, the power and status differences between adult offenders and the children they victimize make overt use of force unnecessary. Once the acts are overtly sexual, the offender must confront the possibility that the child will disclose the abuse. The extent to which offenders reported asking or warning victims not to tell varies across the studies, but the types of positive and negative inducements are similar. Offenders often refer to serious consequences from disclosure such as they themselves will go to jail if the child discloses, the family will break up if they disclose, and they will hurt the child or their family if they disclose. In contrast, offenders often emphasize the use of positive inducements, or the ways in which disclosure will deprive children of the benefits of the abusive relationship. Offenders often utilize strategies involving giving or withdrawing benefits, in which offenders would give children special rewards or privileges, tell children that they would no longer love them or spend time with them if they disclosed, or tell children that their parents would no longer love them. Importantly, children fear a loss of connection, affection, support, and personal gain if they disclose about the abuse. One dilemma when interviewing offenders is that they may misrepresent or misremember their behavior, particularly when it is inconsistent with how they prefer to view the abusive relationship. Sex offenders appear particularly likely to understate their use of threats in order to induce compliance and in order to convince the child not to disclose the abuse. The percentage of offenders who report ever specifically instructing the child not to tell varies widely across the studies, and in many studies a majority of the offenders will deny uttering any threats to induce silence. Although child sex offenders often exaggerate the extent to which they seduced rather than forcibly assaulted their victims, it is clear that most child molestation is a process whereby the offender elicits the compliance and often the cooperation of the child victim. This process helps to explain why the child does not cry out at the first opportunity, and both feels responsible for the abuse and fears being blamed should he or she disclose. In intrafamilial cases, the offender

naturally takes advantage of family loyalties; in extrafamilial cases, the offender takes steps to be “like family.” Forensic Interviewing Data and Techniques Whether children are reluctant to disclose abuse is an important issue for child interviewers.vii If children are reluctant, then abused children may deny and recant abuse. If children are open and forthcoming, then denials and recantations prove that an abuse allegation is false. If children are reluctant, then interviewers must look for means of reassuring and encouraging children or otherwise overcoming their resistance. If children are forthcoming, then interviewers should focus on eliminating questions that might suggest abuse to a non-abused child. The truth lies somewhere in the middle. There is good evidence for reluctance, but there is also good evidence that most children who have previously disclosed abuse need not be asked leading questions in order to elicit their disclosure. Children are often reluctant to disclose information about sexual abuse as it is a very private, embarrassing, and shameful topic to discuss.viii Factors that appear to influence the disclosure of sexual abuse have been explored in the research and they include the gender of the interviewer and the age of the child or adolescent and the process of the interview itself. Ineffective interviewing includes the use of reinforcement such as punishment or rewards, social influences such as telling a child what others have said, asking suggestive and leading questions, introducing information the child has not disclosed, and removing the child from direct experience such as asking what might have happened (hypotheticals). These techniques are often likely to lead to negative consequences such as false allegations. The gender of the interviewer also has been born to be a factor as research has indicated that female interviewers ask significantly more suggestive questions with boys than with girls while male interviewers do not show a distinction. Girls provide significantly more details to female interviewers than male interviewers while boys do not show a difference. Further, children between 4 and 6 years of age tend to give more detailed responses to a suggestion of utterances made by interviewers of the opposite gender. The mesh between interviewer gender and child gender may have an important influence on disclosure. Age has been perhaps the most widely studied characteristic influencing disclosure of sexual abuse. Younger children tend to provide fewer details and shorter responses during interviews than older children. Open ended questions have elicited longer and more accurate responses from 12 to 14 year old’s while children between 4 and 11 often provide longer answers and more accurate information in responses to closed-ended questions and specific yet non-leading questions. In essence, length of responses often increase with age. Forensic interview models guide the interviewer through the various stages of a legally sound interview; they vary from highly structured/scripted to semi-structured (interviewers cover predetermined topics) to flexible (interviewers have greater latitude).ix All models include the following phases:

The initial rapport-building phase typically comprises introductions with an age- and context-appropriate explanation of documentation methods, a review of interview instructions, a discussion of the importance of telling the truth, and practice providing narratives and episodic memory training. The substantive phase most often includes a narrative description of events, detail-seeking strategies, clarification, and testing of alternative hypotheses, when appropriate. The closure phase gives more attention to the socioemotional needs of a child, transitioning to nonsubstantive topics, allowing for questions, and discussing safety or educational messages. Several techniques have been examined in the literature and some appear to be more effective at eliciting details and accurate disclosures. The American Professional Society on the Abuse of Children (APSAC) has designated the purpose of the forensic interview to, "Elicit as complete and accurate a report from the alleged child or adolescent victim as possible in order to determine whether a child or adolescent has been abused (or is in imminent risk of abuse) and, if so, by whom." The APSAC supports the examiner to gather information about the allegation before conducting the interview. This information is useful in informing the interviewer and clarifying the child's statements. Yet, the examiner must be cognizant that such information could lead to bias. Blind interviews in which the examiner does not have prior information of the allegations may elicit more disclosures likely because of the increased attentiveness and patience on the part of the interviewer in blind evaluations. The interviewer (and expert reviewing the interviews) should always take an objective and non-judgmental stance towards the interview. The NICHD investigative protocol was published in 2000 “to translate professional recommendations into everyday practice in the field.”xIt was developed by Yael Orbach and colleagues based on research regarding effective interviewing techniques.xi The NICHD protocol begins with an introduction, truth–lie discussion, and establishment of ground rules for the interview. Next, the interviewer focuses on building rapport and asks the child to describe a neutral event. The interviewer then transitions into the abuse-specific questioning by asking the child to describe why they are being interviewed. The interviewer is instructed to use nonsuggestive invitations and open-ended questions as much as possible, followed by focused nonsuggestive questions and option-posing questions if necessary. Each incident of possible abuse is examined in this way. Interviewers using the NICDH protocol also receive individual feedback and are required to attend regular group sessions to discuss interviews. When interviewers use the NICHD investigative interview protocol, which utilizes both interview instructions and narrative practice, most disclosures are elicited with either “tell me why you are here,” or through questions that referred to a prior disclosure without suggesting abuse (e.g., “I heard you talked to a policeman. Tell me what you talked about).”xii Of course, questions of this sort rely on the fact that most children questioned about suspicions of abuse have made some sort of previous disclosure. Additional details are more productively elicited through open ended questions such as “tell me more about [action mentioned by the child]” and “what happened next” than by closed-ended questions. Children’s reports are also more productive if the interviewer uses neutral encouragement (e.g., “you are doing very well”) or addresses the child by name.

Research has repeatedly shown that open-ended questions and invitations elicit longer and more detailed and rich accurate responses than other types of questioning. Again, closed-ended questions may be more effective with younger children. Specific yet non-leading questions likely elicit longer responses and more accurate information than other types of questions for children under age 12. Specific yet non-leading questions and cued invitations are most appropriate for young children while open-ended questions should be used with school aged children and adolescents. Recently, cognitive interviewing has become utilized with forensic examiners and techniques include mentally reconstructing the event, reporting every detail of the event regardless of perceived importance, recalling the event in different sequences, and describing the event from various perspectives. The research has shown the cognitive interview to be effective in improving children's recall of the event although it appears to be more practical and effective with older children. The cognitive interviewing techniques are more useful to be used with older children beyond age 12 because of their complexity. It is also useful to have truth-lie discussions with the particular child being interviewed. This discussion demonstrates a child's competency and increases the credibility of their statements and tests the child's understanding of these concepts through the use of examples. The use of anatomically detailed dolls has been very controversial in the literature and while some claim they are useful in helping children remember and describe the details of abuse, others argue they may decrease the quality of a child's responses and they can elicit sexual play even from non-abused children. The research appears to not consistently support the use of dolls in aiding accuracy of sexual abuse reporting. Structured interviewing has also been used based on research findings regarding emotional, behavioral, and physical symptoms commonly associated with sexual abuse. Such interviews cover areas of questions relevant to trauma such as nightmares, difficulties concentrating, frequent headaches, increased knowledge about sex and aggression, seductive behavior towards others, depression, and bed wetting. While the structured interviews provide a template to examine particular sexual abuse symptomatology, it is important to note that open ended questions used to elicit more details from children are suggested. An extended forensic evaluation also may be indicated in that the forensic examiner may wish to interview the child on more than one occasion due to young children's brief attention spans or the discomfort they may feel with disclosing such information to a stranger, a need for rapport in eliciting the disclosure, and utility of assessing the consistency of the children's reports.xiii There are five stages of information gathering in the extended forensic evaluation model including: 1) Gathering background information on the case for law enforcement and Child Protective Services, medical information from physicians, and interviews conducted with the non-offending caregiver; 2) Focus on rapport building, developmental assessment and establishing ground rules for the

interview process; 3) Social and behavioral assessments are conducted including behavioral checklists such as the Child Behavior Checklist or the Trauma Symptom Checklist for Children and the Child Sexual Behavior Inventory; 4) Abuse specific questioning incorporating the use of various techniques including open-ended questions; and 5) Review and clarification of child's statement and making treatment referrals if necessary. Extended forensic evaluation is also promising for the children who did not disclose during their first interview. While multiple interviews may support a more thorough analysis in child sex abuse cases, it may also be best to limit the number of interviews in the range of locations and interviewers involved. In some cases the average child may be interviewed ten times before going to court. Repeat interviewing and repeatedly asking similar questions has been associated with inaccurate reporting of recanting allegations particularly if early interviews are conducted inappropriately. It is important during the interview process to ensure that the children are not further victimized by the intervention systems designed to protect them. In summary, the forensic child sex abuse interview should consider conducting a blind interview, truth-lie discussion, followed by open-ended question format including cognitive interviewing with older children or adolescents, structured interview and potentially an extended forensic evaluation. Forensic experts should possess the ability to establish rapport through warmth and friendliness and experience with children. Child Sex Abuse Symptomatology There are a number of signs and symptoms that sexual abuse may have occurred in children, but these are not necessarily indicative of a child having been sexually abused. xiv Sex abuse symptoms of children include but are not limited to the following factorsxv: (ages 2 to 6): 1) Kisses non-family members voluntarily; 2) Tries to look at people undressing or tends to look at such an act surreptitiously; 3) Undresses in front of others without feeling shame; 4) Sits with genitals exposed and is aware of doing so; 5) Touches sexual private parts at home; 5) Masturbates or stimulates self when company is present; 6) Touches sex parts in public without feeling shame; 6) Shows sex parts to adults regularly; 7) Shows genitals to another child regularly; 8) Sexual play with dolls noted; 9) Placing objects in the anus or vagina; 10) Requesting sexual stimulation from adults or from other children

Ages 7 to 10 and 11 to 12: 1) Tries to look at people undressing; 2) Touches sex parts at home and when away from home; 3) Masturbates regularly; 4) Fondles non-genital areas such as back and stomach; 5) Shows sex parts to another child to invite a reaction; 6) Is interested in engaging in sexual activities; 7) Has age inappropriate sexual knowledge; 8) There is overt sexual behavior Non-sexual behavioral indicators in young children include but are not limited to the following: 1) Sleep disturbances; 2) Enuresis; 3) Encopresis; 4) Other regressive behavior; 5) Self-destructive risk taking behavior; 6) Impulsivity, distractibility, difficulty concentrating without a history of non-abusive etiology; 7) Refusal to be left alone; 8) Fear of the alleged offender; 9) Fear of people of a specific type of gender; 10) Fire setting; 11) Cruelty to animals; 12) Role reversal in the family; 13) Peer related problems and interpersonal difficulties; 14) School difficulties; 15) Sudden noticeable changes in behavior Non-sexual behavioral indicators in older children include but are not limited to the followingxvi: 1) Eating disturbances such as bulimia or anorexia; 2) Running away; 3) Substance abuse; 4) Self-destructive behavior such as suicidal gestures; 5) Self-mutilation; 6) Incorrigibility and oppositionality; 7) Criminal activity; 8) Depression and social withdrawal; 9) Peer related problems and interpersonal difficulties; 10) School difficulties; 11) Sudden noticeable changes in behavior Other psychiatric and behavioral effects of child sex abuse as indicated by the American Psychological Associationxvii include:

1) Depression; 2) Guilt; 3) Fear; 4) Posttraumatic stress disorder; 5) Dissociative and anxiety disorders; 6) Eating disorders; 7) Poor self-esteem; 8) Somatization and expressions of distress and physical symptoms; 9) Chronic pain Behavioral problems as a result of sexual abuse can include: 1) Sexualized behavior; 2) School learning problems; 3) Substance abuse; 4) Destructive behavior; 5) Sexual dysfunction in adulthood; 6) Criminality in adulthood; 7) Suicide Not all sexually abused children, however, exhibit symptoms related to psychological, emotional, physical, social, or behavioral issues or difficulties and some estimate up to 40% of children are asymptomatic. Child sex abuse can result in both short-term and long-term problems. A wide range of symptoms have been examined in studies of sexually abused children and compared non-abused to abused children. While there are many symptoms listed in the research, by far the most commonly studied symptom is sexualized behavior which is often considered the most characteristic symptom of sexual abuse. xviii In contrast, when suspicions of abuse arise for reasons such as sexualized behavior, an interviewer should be very cautious, because there is a possibility that the suspicions are unfounded. Although sexualized behavior may be much more common among abused children than among non-abused children (and therefore evidence that abuse should be suspected), the majority of children who behave sexually have not been abused.xix Other symptoms that appear in many studies include anxiety, depression, withdrawn behavior, somatic symptoms, aggression, and school problems. It should also be noted in some of these studies, sexually abused children tend to appear less symptomatic than other non-abused clinical children except in regard to sexualized behavior and PTSD. When considering some of this research, the forensic interviewer may wish to do more than interview a subject but also to examine the child as to whether they have PTSD and other emotional difficulties for example. However, unfortunately, a defense expert involved in such a case likely will not have access from the prosecutor's office to fully examine an alleged victim.

Parental Characteristics Associated with Sexual Abuse There are a number of parental characteristics associated with increased risk of sexual abuse to children. Parents with a history of child sexual victimization are at an estimated risk of 10 times greater for having a sexually abused child. The sexual abuse of children is elevated when there are multiple caretakers for the children such as exposure to stepfather figures or multiple boyfriends for the mother. Drug and/or alcohol abuse and stress associated with poverty is also related to increased risk. Social isolation and family secrecy support child sexual abuse. Children with poor self-esteem or other vulnerable emotional states are at risk. History of abuse among family members and unsatisfactory marriage or intimate partner violence for the mother also place a youth at risk for sexual abuse. Parents leaving their child at home alone without adequate supervision also increases a risk for child sexual abuse. Parental psychopathology including personality disorder are related to increased risk of sexual abuse to children. Types of Sexual Abuse Allegations When examining a child, the forensic examiner must be cognizant of the various types of sexual abuse allegations which include the following: 1) Child is the victim of sexual abuse, and the allegation is credible and accurate; 2) The child is a victim of sexual abuse, but due to age or cognitive deficits, he/she does not have verbal skills to provide credible description; 3) The child is a victim of sexual abuse, but due to fear, will not disclose; 4) Child is a victim of sexual abuse but due to misguided loyalty he/she will not disclose their abuse; 5) Child is not a victim of sexual abuse and is credible but has misperceived an incident or interaction with alleged accuser; 6) The child is not a victim of sexual abuse but has been unintentionally contaminated by a concerned or hypervigilant caretaker/authority figure; 7) Child is not a victim of sexual abuse but has been intentionally manipulated by a caretaker or authority figure into believing that they have been abused; 8) Child is not a victim of sexual abuse but knowingly falsely accused someone of sexual abuse because of pressure by caretakers or authority figures who believe the child has been abused; 9) Child is not a victim of sexual abuse but knowingly falsely accuses someone of sexual abuse for reasons of revenge or personal aggrandizement; 10) False allegations resulting from the accuser's psychological disturbance Prevalence and Nature of False Allegations As noted, the determination of the validity of the child or adolescent's allegation of sexual abuse is one of the most difficult clinical questions that a forensic mental health expert faces. Research on the false allegations of sexual abuse reveal rates ranging from 2 to 8% in child abuse clinics, 6% in emergency room referrals, and higher rates of 36 to 55% for the special circumstance of allegations arising out of the context of custody disputes. xx The research indicates that the risk of an allegation being false is greater with older children, such as it is about 8% from children who are 12 to 18 years of age, 4% for children who are 6 to 12 years of

age, 7% from ages 3 to 6 years, and 6% from ages 1 to 3 years. The most significant factor may be the prevalence of false sexual abuse allegations in child custody disputes. Children who have been genuinely abused are more likely to be able to provide specific details of sexual abuse because they can refer to an internal visual image related to the abuse experience. Conversely, false accusers are less likely to have internal visual images because they have no actual experience that they bring into conscious awareness when asked questions about details. They often will say that they do not know as answers to questions. False accusers are more likely to utilize general terms and even adult terminology. When considering the potential for a false abuse allegation, mothers of false accusers are more likely to have histories of impulsivity, antisocial behavior and borderline personality disorder. Mothers in genuine abuse cases are more likely to be passive, dependent, inadequate, and socially isolated. Obviously, the examiner must consider whether the sex abuse allegation is made in the context of a child custody dispute relevant to parental alienation. Mothers who falsely accuse typically do not inform the father first in order to get input from him about whether the abuse occurred or not. False accusers often engage in services of attorneys and mental health professionals who they know will support their view zealously. False accusers are often quite desirous of destroying, humiliating, and reaping vengeance on the accused. False accusers are likely to exaggerate the most minor medical findings and consider them proof of abuse and recognize the allegations can be a powerful weapon in child custody and exhibit little if any shame over revelation of abuse by the other parent. False accusers are not likely to completely participate with an impartial examiner or have their child participate and this may impede the findings of the investigation. False accusers are more likely to be dishonest in other areas of evaluation and the investigation process. Delayed Outcry & Child Sexual Abuse Accommodation Syndrome Many prosecutors will hire forensic psychological experts to educate the jury as to why a particular child/children delayed reporting the sexual abuse. The major technique in doing so is to utilize the Child Sexual Abuse Accommodation Syndrome (CSAAS). This syndrome suggests that due to the nature of the child's sexual abuse, certain psychological factors such as shame, embarrassment, sense of responsibility, and allegiance to the perpetrator often result in behavioral sequelae and delayed disclosure, denial of abuse, and recantation of abuse. The forensic examiner and defense lawyer must recognize the CSAAS is theoretical in nature and not based on systematic observations or scientific studies and research. Ronald Summit (theorist of CSAAS) later emphasized that his theory was a clinical opinion and not a scientific instrument. Due to the non-empirical basis of the assumptions of CSAAS, researchers have concluded that despite the wide spread beliefs among clinicians and researchers, there is relatively little scientific examination or theory and either the evidence was methodologically problematic, or the findings were equivocalxxi. When considering CSAAS and its use in court, especially when used to rehabilitate an inconsistent child witness on redirect and to explain to the jury why an alleged victim would delay their reporting of sexual abuse, it is important to again examine the empirical basis for this syndrome and to conclude there is no reliable or valid data supporting this syndrome and it is

predicated solely on clinical intuition. Related to more legitimate and supported reasons for delayed outcry in sexual abuse cases, a number of studies have revealed that closer relationships are associated with longer delays and lower disclosure rates.xxii Victims’ failure to disclose is sometimes motivated by fear of the perpetrator, but often includes self-blame or fears of being blamed for the abuse by others. Factors Influencing Children to Self-Disclose Sexual Abuse Research indicates that children at the extremes of the spectrum of severity of sexual abuse are least likely to disclose their sexual victimization, such that children who have been subjected to sexual intercourse at one extreme or those who experienced attempted sexual activity or non-contact forms of sexual abuse often do not disclose their abuse.xxiii As noted, there is considerable research that reveals age-related differences of sex abuse disclosure. Some studies suggest disclosures of young children tend to be vague. Preschool aged children have been observed to be significantly less likely to disclose sexual abuse during the context of formal investigation, and they are more likely to require a second interview before disclosing. While the literature suggests that disproportionately higher numbers of children with disabilities are victims of sexual abuse, these impaired children are likely to encounter special problems disclosing their abuse. When considering gender, a variety of research suggests that underreporting is a significant problem among younger boys, and they are hesitant and unlikely to disclose more so than girls. Adolescent boys, however, have been observed to be at least as likely to report their sexual victimization as adolescent girls. Boys are socialized not to reveal doubts, weaknesses or fears since most of the abusers are males and they also may have an additional concern of homosexuality to overcome if they tell. Studies consistently indicate that the victim-perpetrator relationship in child sex abuse cases is most often a familiar one. Therefore, the perpetrators are frequently in a position of power or authority over a child and charged with providing the child care. Therefore, the child may be more likely to be hesitant to disclose their abuse due to these relationship dynamics. Research findings consistently indicate that children abused by a close family member are less likely to report their abuse than those by a stranger. Suggestibility in Children The forensic psychological examiner in child sex abuse evaluations also must consider a child's suggestibility relevant to their accuracy in disclosing abuse. Interviewers should be aware that the pressure on a non-abused child may lead to a false allegation and research has demonstrated that a number of coercive interviewing techniques can produce false reports, particularly in preschool children.xxiv

Techniques that may lead to child suggestibility include selective reinforcement or rewarding desired responses and punishment of non-desired responses when interviewing children, stereotype deduction - telling the child the subject is a bad person, abuse of authority - telling the child what the parent had said or what the interviewer believes, use and repetition of suggestive questions, and repetition of misleading information. Young children are likely to be impacted by suggestive pressures during investigative interviews. Young children are inclined to assume that adults are knowledgeable which increases their vulnerability to suggestion in interviews. Children's recounts of past events are enhanced by adult questions and the recounts of these events are interfered with by adult questioning, especially if the adult introduces suggestive false information. Suggestibility has to do with situational memory factors and the degree in which a child's encoding, storage, retrieval, and reporting of events can be influenced by means of social and psychological factors. Young children's memory is more interfered by information preceding or following events. They are likely to be subject to interference in memory or suggestibility because they are frequently questioned weeks, months, or years after the event, interviews are often under special circumstances, and there are often many interviews by different professionals and family members. Professionals must be especially cautious when interviewing children alleged to have been sexually abused when there has been a lengthy time delay between the alleged event and the interview, and this increased length of time may impact and lead to suggestibility. When children are interviewed soon after the event in a supportive environment by interviewers who do not have preconceived conclusions and do not present misleading information or pressure the child for answers, both preschool and school aged children can provide accurate recounts of the past experiences. Summary Child sexual abuse evaluations are critical for the courts, and they have profound consequences for both the alleged perpetrator and the alleged victim. The forensic psychologist examining these cases may perform a variety of roles. The forensic examiner must clarify with the legal parties (attorneys, judge, and Guardian Ad Litem) what the legal procedural history and status of the case is and the pertinent legal issues and specific legal referral question(s). The forensic examiner will in part function as an investigator and a detective as to the nature of the forensic issue and psycho-legal inquiry. In many of these cases, the forensic expert witness is asked to examine and interview the alleged victim and review multiple mental health, medical, and other various records outlining the alleged allegations of abuse. The expert witness must be very knowledgeable as to the sex abuse symptoms consistent with perpetration. Occasionally the expert will function in a role of examining the parent or parents as far as a risk assessment as to whether the particular caretaker may have supervised or unsupervised visitation or placement with the child. In some cases, the examiner must analyze how the allegation originally arose and subsequent statements that were made, the interviewing techniques that were employed, and assess whether the previous interviews were likely to have distorted a child's recollections. The forensic examiner may

assess the symptoms and behavioral changes that sometimes occur in physically and sexually abused children and attempt to review any type of psychological and mental health treatment records as many of these children have mental health services following the allegation and the investigation. The forensic examiner must be attuned as to whether there were prior allegations by the same child to other accused perpetrators as well as to compounding variables such as psychiatric disorder or cognitive impairments in the child or with the parent. A developmental history should be taken from birth through periods of possible trauma to the present. A family history such as early abuse of a parent, substance abuse of a parent, legal history, spousal abuse, and psychiatric disorder are relevant. Underlying motivations and possible psychopathology of the adults and parents is often critical to ascertain. The expert may review collateral information from protective services, school personnel and past records, other caretakers, other family members, medical professionals and social workers as well as police reports, witness statements and the nature of the investigation and the law enforcement and medical personnel is necessary. The forensic examiner should also attempt to request access from the prosecutor to be able to evaluate a particular child, properly interview them, and assess the child’s psychological/psychiatric status and signs of sexual abuse and credibility. In other cases, the expert may be functioning in the role as an educator to a jury during a jury trial as to sex abuse symptoms within that particular child or the literature on more credible versus potentially false allegations. The forensic examiner must also be aware of the literature not only relevant to sex abuse symptomatology but also to false allegations, child suggestibility and memory issues. Child sex abuse forensic psychological evaluations can be very complex and require a significant amount of time, resources, expertise, and role clarification. Legal referral questions must be clarified immediately by all parties involved in these cases. It is important that the expert forensic psychologist witness be very cognizant of the literature germane to a number of these issues in child sex abuse interviews/evaluations/investigations. The forensic psychologist expert witness must keep in mind that the reliability and validity of judgments about child sexual abuse allegations is not particularly strong. The relationship between specific characteristics of sexual abuse and behavioral outcomes of the child also is a fragile one. Children's responses to sexual abuse are not consistently predictable and evaluating these allegations is a complicated process. There is no perfect assessment tool that serves as a litmus test for determining whether sexual abuse occurred, and similarly no particular profile to characterize the sexually abused child.

Dr. John Matthew Fabian, PSY.D., J.D., ABPP, is a board certified forensic and

clinical psychologist and fellowship trained clinical neuropsychologist. Dr. Fabian has a Texas and national practice specializing in criminal and civil forensic psychological and neuropsychological evaluations including competency to stand trial, insanity, death penalty litigation, sexual offender risk assessments and sexual abuse investigations, internet pornography/solicitation, and juvenile homicide, sentencing, and waiver cases. Dr. Fabian is currently a consultant court psychologist and neuropsychologist with Travis, Comal, Bell, Hays, and Bexar County District Courts. He was formerly director of a state court psychiatric clinic, and he has worked and testified in adult and juvenile court psychiatric clinics,

state forensic hospital, federal prison forensic psychiatric settings, and university medical school and VA Polytrauma center. He has testified in approximately 450 cases in approximately 20 states and in federal court. Dr. Fabian has faculty appointments at the University of Texas Health Sciences Center at Houston McGovern Medical School Department of Psychiatry and Behavioral Sciences and at the Forensic Psychology Postdoctoral Fellowship, Walter Reed National Military Medical Center, Center for Forensic Behavioral Science. In addition to teaching courses in forensic psychology, neuropsychology and the law, and violence risk assessment, he is published in law review, peer review, and bar journals. Dr. Fabian’s primary offices are located in Texas 5716 West US Highway 290, Suite 110 Austin, Texas 78735 and 227 North Loop 1604 East, Suite 150 San Antonio, TX 78232. He can be reached at john@johnmatthewfabian.com and at 512.487.7216.

REFERENCES

Lyon, D., & Ahern, E.C. J.E.B. Myers (Ed.), The APSAC handbook on child maltreatment (3d ed.) iii Herman, S. & Freitas, T. (2010). Error rates in forensic child sexual abuse evaluations. Psychology Injuring the Law, 3, 133-147. iv

Herman, S. (2005). Improving Decision Making in Forensic Child Sexual Abuse Evaluation, Law and Human Behavior, Vol. 25(1), 87 to 120. v Department of Health and Human Services, 2004, Child Maltreatment, 2002 retrieved http://nccanch.acf.hhs.gov/general/stats/index.cfm. vi Beauregard, E., Rossmo, D.K., & Proulx, J. (2007). A descriptive model of the hunting process of serial sex offenders: A rational choice perspective. Journal of Family Violence, 22, 449-463. vii Lyon, D., & Ahern, E.C. J.E.B. Myers (Ed.), The APSAC handbook on child maltreatment (3d ed.) viii Cronch, L., Viljoen, J., and Hansen, D. (2006). Forensic interviewing in child sexual abuse cases: Current techniques and future directions. Journal of Aggression and Violent Behavior, 11 (3), 195-207. ix Newlin, C., et al. (2015). Child Forensic Interviewing: Best Practices. OJJDP. https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/pubs/248749.pdf [. x Lamb & Fauchier, 2001: M.E. Lamb and A. Fauchier, Th e effects of question type on self-contradictions by children in the course of forensic interviews, Applied Cognitive Psychology 15 (2001), pp. 483–491.

Orbach et al., 2000: Y. Orbach, I. Hershkowitz, M.E. Lamb, P.W. Esplin and D. Horowitz, Assessing the value of structured protocols for forensic interview of alleged child abuse victims, Child Abuse and Neglect 24 (2000), pp. 733–752. xii Sternberg, K. J., Lamb, M. E., Orbach, Y., Esplin, P. W., & Mitchell, S. (2001). Use of a structured investigative protocol enhances young children’s responses to free recall prompts in the course of forensic interviews. Journal of Applied Psychology, 86, 997– 1005. xiii (APSAC, 2002). xiv Lowenstein, L. (2002). The complexity of investigating the possible sexual abuse of a child, The American Journal of Family Therapy, 39, 292-298. xv U.S. Department of Health and Human Services. https://www.childwelfare.gov/pubs/usermanual/sexualabuse/sexabuse.cfm xvi U.S. Department of Health and Human Services, https://www.childwelfare.gov/pubs/usermanual/sexualabuse/sexabuce.cfm) xvii www.apa.organomegaly/pi/family/resources/child-sexual-abuse.aspx xviii Kendall-Tackett, K., Meyer-Williams, L., and Finkelhor, D. (1993). Impact of sexual abuse on children: A review and synthesis of recent empirical studies. Psychological Bulletin, Vol. 113, 1, 164-180. xix Myers, J. E. B. (2005). Myers on evidence in child, domestic, and elder abuse cases. New York: Aspen Publishers. xx Mikkelsen, E., Gutheil, T., and Emens, M. (1992). False sexual-abuse allegations by children and adolescents: Contextual factors and clinical subtypes. American Journal of Psychotherapy, Vol. XLVI, 4, 556 – 570. xxi Lunden, K., Bruck, M., Wright, D., and Ceci, S. (2008). Review of the contemporary literature on how children report sexual abuse to others: Findings, methodological issues, and implications for forensic interviewers. Memory, Vol. 16 (1), 29-47. xxii London, K., Bruck, M., Ceci, S. J., & Shuman, D. W. (2005). Disclosure of child sexual abuse: What does the research tell us about the ways that children tell? Psychology, Public Policy, & Law, 11, 194-226. xxiii (Paine, M. and Hansen, D., Factors Influencing Children Who Self-Disclose Sexual Abuse, Clinical Psychology Review, 22, 2002, 271 to 295). xxiv (The APSAC Handbook on Child Maltreatment, Third Edition, 2010).

Texas Criminal Defense Lawyers Association

Sex & Violence September 9-10, 2021

Topic: Sex Offender Registration Issues: Before, During, or After Trial Speaker:

Richard Gladden 1204 W. University Dr. Denton, TX 76201 (940) 323-9300 Phone (940) 539-0093 Fax richscot1@hotmail.com email

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

Sex Offender Registration Issues: Before, During, or After Trial. BY RICHARD GLADDEN INTRODUCTION Chapter 62 of the Texas Code of Criminal Procedure (“Chapter 62”) has basically three categories of offenses that may require a person to register as a “sex offender” while residing in or remaining in Texas for more than seven days. First, Texas has enumerated a list of offenses which will require a person to register if he or she is convicted or placed on community supervision for an offense that is committed in Texas and which violates Texas law.1 Under Texas’ statutory scheme this list of offenses provides the clearest notice to criminal defense attorneys and their clients on whether registration will be required under the Texas Sex Offender Registration Program. I’ll refer to this category as the “enumerated” offense category. Second, Chapter 62 may require a person to register as a “sex offender” if the person has been convicted or placed on community supervision for an offense committed in another state, in violation of the laws of another state, when the offense contains elements that are “substantially similar” to the elements of an “enumerated” offense listed under Texas law.2 It is important to note that whether or not another state requires registration under its laws, after commission of an offense in violation of the other state’s laws, is irrelevant to whether Chapter 62 requires registration in Texas for a “substantially similar” offense. Third, Chapter 62 may also require a person to register as a “sex offender” under Texas law if, regardless of whether the offense qualifies as an “enumerated” or “substantially similar”

Article 62.001(5) (A), (B), (B-1), (C), (D), (E), (G), (J), (K), or (L), Texas Code of Criminal Procedure. As used hereinafter, the term “community supervision” is intended to encompass circumstances wherein a defendant has been placed on either adjudicated or “unadjudicated” community supervision. 2 Article 62.001(5) (H) and (I), Texas Code of Criminal Procedure. 1

offense under Chapter 62, the offense constitutes an “extrajurisdictional” offense.3 An “extrajurisdictional” offense is defined not by Texas law, but is defined instead by the federal definition of the term “sex offense” as it appears in Title I of the Adam Walsh Child Protection and Safety Act of 2006, 34 U.S.C. §20911 (“Section 20911” or “§20911”), also known as the Sex Offender Registration and Notification Act (“SORNA”).4 For extrajurisdictional offense determinations, Chapter 62 merely “borrows” the federal definition of a “sex offense” from SORNA. This paper is primarily confined to defenses and trial strategies that pertain to a client’s alleged commission of the offense of “Failure to Register” as a “sex offender” under Texas law. While the question of whether a person has complied with the requirements imposed by Chapter 62 of the Texas Code of Criminal Procedure would seem relatively straightforward, that is not the case. The Process of Registration after a State-Court Conviction in Texas for an “Enumerated” Offense. When a person is convicted or placed on community supervision for an “enumerated” sex offense defined by Chapter 62, the trial court wherein the case is pending is required to enter such a finding in the final judgment or order granting community supervision.5 At this point, if the person is granted community supervision, the person is required to complete a two-step

Article 62.001(10), Texas Code of Criminal Procedure. Section 20911(A) of SORNA provides its own definition of the term “sex offense,” and Texas law has adopted that definition specifically for purposes of defining “extrajurisdictional” offenses under Article 62.001(10), Texas Code of Criminal Procedure. Although SORNA technically delegates authority to the U. S. Secretary of Defense “to specify categories of offenses” in the Uniform Code of Military Justice that require registration, the Secretary must “to the maximum extent practicable” confine such “categories of specified offenses” to those “specified for Federal offenders” under SORNA. See, 10 U.S.C. Section 951 (note). 5 Article 26.13(a)(5), Texas Code of Criminal Procedure (judicial notice of registration requirement prior to plea of guilty); Article 42.01, §1 (27)(judicial finding in judgment); Article 62.053(c)(judicial “risk level” determination). 4

registration process.6 First, if the person has been placed on community supervision, he or she must fill out, sign, and submit to a community supervision officer a form entitled “Notice of Registration Duties” (Form “CR-32”). This form is then transmitted by the community supervision officer to a division of the Texas Department of Public Safety in Austin, Texas (“Department”), known as the Sex Offender Registration Bureau (“SORB”). Second, if placed on community supervision, the person required to register must personally visit their “primary registration authority” within seven days after their placement on community supervision. The person’s “primary registration authority” generally will be their local municipal police department (if they reside in an incorporated city) or the County Sheriff’s Department (if they reside in an unincorporated area of a county).7 When satisfying this “second step” of the initial registration process the person will again be required to complete a CR-32 form with their primary registration authority. The CR-32 form will record several items of information including but not limited to the person’s residence address, the person’s “online identifiers” (such as any email address or “nicknames” used to access social media), and even more ephemeral information such as the person’s shoe size. Yes, the person’s shoe size.8 The CR-32 form will also list, and thereby provide written notice to the person, of their legal obligations while required to register. Perhaps most importantly, the CR-32 form will state the frequency of the person’s duty to “update” their registration information within seven days if it has changed, and the person’s duty to “verify” that their registration information periodically, usually either annually or quarterly (depending on the nature of their offense). Additionally, the CR-32 form will state whether the person is required to register for “ten years” after discharge of 6

Persons who are sentenced to confinement after conviction of a “sex offense” in Texas are generally subject to the procedures this papers describes upon their release from confinement. 7 Article 62.004, Texas Code of Criminal Procedure. 8 Article 62.051(c)(1), Texas Code of Criminal Procedure. 3

their community supervision, or for “life.” The person will then be required to sign his or her initials next to each of the requirements that appear on the CR-32 form. Once the form is completed, and signed and initialed by the registrant, the local or primary registration authority will then transmit the completed CR-32 form to SORB in Austin. Onset of the Duty to Register in Texas after Conviction for a “Substantially Similar” Out-ofState Offense. Many persons accused of “failing to register” under Chapter 62 (while either residing in Texas, enrolling in school in Texas, or after arriving in and remaining in Texas for more than seven days) will not have been convicted or placed on community supervision for an “enumerated” offense defined by Texas law. Instead, and under these circumstances, they may be accused of violating a duty to register under Texas law based on evidence that they have previously committed a “sex offense” in another state or under federal law. More specifically, Chapter 62 provides that a person must register in Texas if the person has previously committed an offense in another state or federal jurisdiction which contains “elements that are substantially similar to the elements” that would support a conviction for an “enumerated” offense under Texas law, had the offense been committed in Texas.9 After one misfire when attempting to define the legal analysis that would apply to determine whether an out-of-state or federal offense is “substantially similar” to an “enumerated” offense under Texas law, see Prudholm v. State, 333 S.W.3d 590 (Tex. Crim. App. 2011)(approving two-prong test), the Texas Court of Criminal Appeals in Fisk v. State, 574 S.W.3d 917 (Tex. Crim. App. 2019) abandoned the second prong of its earlier two-factor test for this determination. In its place the Court ruled that the only relevant criteria in this context is whether, when comparing the “elements” of the out-of-state or federal offense with an 9

Article 62.001(5)(H), Texas Code of Criminal Procedure. 4

enumerated offense under Texas law, the elements of each offense “display a high degree of likeness.” However, the “elements” of each offense need not be “identical.” Id., 547 S.W.3d at 929 and 923. In Fisk v. State, supra, the Court further ruled that “where the elements of the previous conviction are proven” on the face of the prior “judgment,” and the “substantial similarity” question is thereby resolved by comparison of the prior judgment to the strictures of Texas statutory law, “it is unnecessary to analyze…the other state’s statutory scheme.” Id., 547 S.W.3d at 922. Thus, according to the Court in Fisk, comparison of the statutory elements of the prior offense in the other jurisdiction “is necessary only if the record fails to prove the nature of the previous conviction.” Ibid. As discussed hereinafter, the scope of the prior “record” that may be considered by a court when making the “substantial similarity” determination is limited by the Due Process Clause of the Fourteenth Amendment. As originally enacted Chapter 62 did not designate whether a court, the Department, a local registering authority or some other Texas official, was authorized to make the “substantial similarity” determination. In part for this reason a U.S. District Court in Texas in 2004 preliminarily enjoined enforcement of Chapter 62, insofar as Chapter 62 would govern “substantial similarity” determinations. See Creekmore v. Attorney General of Texas, 116 F. Supp. 2d 767, 769-770 (E.D. Tex. 2000)(order on preliminary injunction). In response, the Texas Legislature amended Chapter 62 by adding Article 62.003(a), which now expressly provides that the Department must make this determination. See, Crabtree v. State, 389 S.W.3d 820, 826-827 (Tex. Crim. App. 2013). Additionally, Article 62.003(b) was added to require the Department to “provide or make available” to each Texas prosecutor “the criteria used in making” a substantial similarity determination, as well as “any existing record or compilations of laws” of other

jurisdictions that the Department “has already determined to contain elements that are substantially similar to the elements of offenses under the laws of” Texas. This information is not readily available to the public. Onset of the Duty to Register in Texas after Conviction for an “Extrajurisdictional” Offense Defined by SORNA. As previously mentioned, an “extrajurisdictional” offense is not defined by Texas law, but is instead defined by the federal definition of the term “sex offense” as it appears in Title I of the Adam Walsh Child Protection and Safety Act of 2006 (that is, under “SORNA”).10 Under “federal law,” independently from Texas law, the requirement that certain persons register as “sex offenders” is governed by SORNA’s definitions. Under SORNA a person is defined as a “sex offender” if he is a person who has been “convicted of a sex offense.”11 Except with regard to “foreign convictions” and “offenses involving consensual sexual conduct,” Section 20911(5)(A) of SORNA defines a “sex offense” under federal law as: (i) a criminal offense that has an element involving a sexual act or sexual contact with another; (ii) a criminal offense that is a specified offense against a minor; (iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of title 18; (iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105–119 (10 U.S.C. 951 note); or (iv) an attempt or conspiracy to commit an offense described in clauses (i) through (iv). 10

Section 20911(A) of SORNA provides its own definition of the term “sex offense,” and Texas law has adopted that definition specifically for purposes of defining “extrajurisdictional” offenses under Article 62.001(10), Texas Code of Criminal Procedure. Although SORNA technically delegates authority to the U. S. Secretary of Defense “to specify categories of offenses” in the Uniform Code of Military Justice that require registration, the Secretary must “to the maximum extent practicable” confine such “categories of specified offenses” to those “specified for Federal offenders” under SORNA. See, 10 U.S.C. Section 951 (note). 11 34 U.S.C. §20911(1)(SORNA). 6

Additionally, Section 20911(7) of SORNA defines a “specified offense against a minor” to mean an offense against a minor that involves any of the following: (A) An offense (unless committed by a parent or guardian) involving kidnapping; (B) An offense (unless committed by a parent or guardian) involving false imprisonment; (C) Solicitation to engage in sexual conduct; (D) Use in a sexual performance; (E) Solicitation to practice prostitution; (F) Video voyeurism as described in section 1801 of title 18; (G) Possession, production, or distribution of child pornography; (H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; and, (I) Any conduct that by its nature is a sex offense against a minor. The Duty to “Update” or “Verify” Registration Information Periodically. The offense of “failure to register” is a misnomer, as it is merely a short-hand reference to a person’s failure to “comply” with any requirement imposed under Chapter 62. Persons required to register under Texas law are often accused of failing to comply with Chapter 62’s requirements by failing to “verify” their registration information. This duty to “verify” information under Chapter 62 must be done, depending on the nature of the prior “sex offense,” either annually within a window of time 30 days before to 30 days after their date of birth,12 or within a similar window of time when they are require to verify their information quarterly.13

12 13

Article 62.058(a), Texas Code of Criminal Procedure. Ibid. 7

More frequently, registrants are charged with a criminal offense for failing to timely “update” their registration information either before, or after, their registration information has “changed.” For example, Chapter 62 requires a registrant to notify and provide information to their local registration authority not later than seven days before an anticipated residential move,14 and again not later than seven days after they have established a new residence.15 Similarly, for the purpose of providing additional examples, a registrant must also notify his or her local registration authority within seven days after they have: 1) purchased a new motor vehicle, at which time they must provide information that identifies the vehicle;16 2) used an email address or nicknames for the first time to access social media;17 or 3) changed their “shoe size.”18 Pretrial Defensive Issues: The Requisite “Prior Determination” by the Department. In Crabtree v. State, supra, the Texas Court of Criminal Appeals ruled that on the trial of a “failure to register” case a prosecutor must prove, as an “element” of the offense, that the Department, prior to the offense of “failure to register,” determined the defendant’s prior offense constituted an offense that is “substantially similar” to an enumerated sex offense under Texas law. Id., 389 S.W.3d at 832 (“[W]e hold that a DPS substantial-similarity determination is an essential element of the offense of failure to comply with registration requirements”). A prosecutor’s neglect to prove this fact (“a DPS substantial-similarity determination”) in its casein-chief, therefore, would require an acquittal. 14

Article 62.055(a), Texas Code of Criminal Procedure. Article 62.055(a), Texas Code of Criminal Procedure. 16 Article 62.051(c)(8), Texas Code of Criminal Procedure. 17 Article 62.051(c)(7), Texas Code of Criminal Procedure. 18 Article 62.051(c)(1), Texas Code of Criminal Procedure. 15

As noted above, Article 62.003(b) of the Texas Code of Criminal Procedure requires the Department to annually “provide or make available” to each Texas prosecutor “the criteria used in making” a substantial similarity determination, as well as “any existing record or compilations of laws” of other jurisdictions that the Department of Public Safety “has already determined to contain elements that are substantially similar to the elements of offenses under the laws of” Texas. Obviously, defense counsel should endeavor to obtain a copy of these materials as an initial step towards preparing a defense when a prior “sex offense,” other than a sex offense “enumerated” under Texas law, forms the basis for a duty to register. Like a defense counsel’s request that seeks notice of the state’s intent to introduce a client’s prior extraneous misconduct or convictions, a request for Article 62.003(b) materials from the prosecutor who is handling your client’s case poses a very real risk of tipping the prosecutor off to the existence of information harmful to your client, to which the prosecutor may otherwise be oblivious. For this reason it would be more than advisable to acquire the most recently distributed Article 62.003(b) materials from a prosecutor in a county other than where your client’s case is pending, and preferably seek these materials from a prosecutor who does not regularly communicate with your prosecutor. Get a Judicial Determination Prior to Trial. When a person has previously been convicted or placed on community supervision for an “enumerated” sex offense as defined by Texas law there is rarely an occasion to dispute whether the person was required to comply with the registration requirements imposed by Chapter 62. When, however, the basis for the alleged duty to comply with Chapter 62 rests on a prior federal or out-of-state offense, several potential defenses arise. One of these defenses involves whether, as a matter of law, the prior offense actually was a “sex offense” that requires registration.

Another defense concerns whether, as a matter of law, a prior administrative decision by the Department alone establishes on the trial of a failure to register case that the defendant was required to register at the time of his or her failure to do so. Stated another way, when there has been no prior “judicial” determination that the defendant’s prior offense constituted a “sex offense” that required registration at the time of the failure to register offense, must such a judicial determination be made as a necessity for a subsequent conviction for “failure to register”? Federal law contemplates that the determination of whether an offense constitutes a “sex offense” under SORNA will be made by a U.S. District Court at the time a person is convicted of a federal offense or placed on supervised release after commission of a federal offense, either after trial or as the result of a plea agreement.19 Similarly, in most state courts, including Texas State District Courts, the determination of whether an offense constitutes a “sex offense,” as defined by state law, is made at the time a person is convicted or placed on community supervision.20 An issue of federal constitutional dimension frequently arises when the court of jurisdiction over an offense, in either federal or state court, fails to make the federal “sex offense” determination under SORNA at the time a person is convicted or placed under institutional supervision. For example, the federal sentencing guidelines provide that certain “mandatory” conditions of supervised release must be imposed on federal offenders. One of these mandatory conditions states that…

18 U.S.C. §3583(d); United States v. Peebles, 296 F.3d 325, 327 (5th Cir. 2002)(“The district court was required by 18 U.S.C. § 3583(d) to make sex-offender registration a condition of Peebles’ supervised release”). 20 Texas Code of Criminal Procedure, Article 26.13(a)(5)(judicial notice of registration requirement prior to plea of guilty); Article 42.01, §1 (27)(judicial finding in judgment); Article 62.053(c)(judicial “risk level” determination). 10

“If the defendant is required to register under the Sex Offender Registration and Notification Act, the defendant shall comply with the requirements of that Act (see 18 U.S.C. § 3583(d)).”21 Unfortunately, the foregoing passage, as written in the federal sentencing guidelines, merely begs the question (is the defendant required to register?) and some U.S. District Courts do not make the determination of whether a federal offender has been convicted or placed on supervised release for an offense defined as a “sex offense” by SORNA. Instead, as the result of laziness or for some other reason, some U. S. District Courts merely “copy and paste” the passage from the sentencing guidelines quoted above and simply insert this passage verbatim as a written condition of a person’s supervised release. This is a common error and the effect of such a procedure is that a determination of whether the offender has been convicted or placed on supervised release for an offense defined as a “sex offense” by SORNA is left undecided by the Court and is instead delegated to other, non-judicial, authorities. Although likely unintended by Texas statutory law, the Texas Sex Offender Registration Bureau (“SORB”) currently interprets Texas law to include a delegation of decision-making authority that permits it to make the “sex offense” determination ex parte in the first instance, and to “resolve” issues of fact necessary to make that determination without notice to the person affected.22 More remarkably, SORB also interprets Texas statutory law to delegate administrative authority that permits it to override “sex offender” determinations made by U. S. District Courts and Texas District Courts. For example, with regard to written judgments of conviction or orders placing a person community supervision entered under state law by Texas State District Courts, the trial court 21

United States Sentencing Commission. Guidelines Manuel 2018, ch. 5, §5D.1(a)(7), p. 428 (eff. Nov. 1, 2018)(emphasis added). 22 But cf., Rogers v. State, 226 A.3d 261, 264 (Md. 2020)(ruling Maryland’s Department of Public Safety “lack[s] authority to determine that the victim [of defendant’s offense] was a minor and to order registration”). 11

may include within such documents a provision that expressly states: “SEX OFFENDER REGISTRATION NOT REQUIRED BY CHAPTER 62, TEXAS CODE OF CRIMINAL PROCEDURE.” Yet SORB, on the advice of its “Managing Attorney,” currently gives no weight to such a finding by State District Courts. In my view, SORB’s decision to give no weight to such a finding by State District Courts rests on a plainly erroneous interpretation of Texas statutory law. The legal conclusion adopted by SORB, i.e., that it may disregard State District Court findings concerning whether a person is required to register under Texas law (based on an assertion that the person is an “extrajurisdictional” offender or otherwise), rests on its interpretation of Article 62.251 of the Texas Code of Criminal Procedure (“Article 62.251”). Article 62.251 governs when a person’s name and other identifying information must be removed from the Texas Sex Offender Registry and from the publicly accessible “computerized central database” that is maintained by the Department. Thus, Article 62.251 assumes a valid determination has already been made that a person is required to register, and the literal terms of Section 62.251 do not purport to delegate to SORB discretionary authority to make that determination in contravention of a prior judicial finding. The “Managing Attorney” for SORB, however, disagrees with the conclusion that Article 62.251 is confined to “removal” of a person’s name and other identifying information from the Texas Sex Offender registry and from the “computerized central database.” She has further concluded Article 62.251 has delegated administrative authority in SORB to override or countermand “sex offender” determinations made by U. S. District Courts and Texas District Courts.

Article 62.251(b) provides in relevant part that when “the court having jurisdiction over the case for which registration is required requests removal” the Department must still “determine” or independently “verify” that the person’s “duty to register has expired.” On this basis the Department and SORB have directed local Texas officials to require persons to register in defiance of judgments and orders entered by U. S. District Courts and Texas District Courts that expressly state the person is not required to register under either Texas law or SORNA.23 The existence of this audacious official policy, which assumes administrative authority to override judicial decisions, was publicly confirmed by the “Managing Attorney” for SORB, Jeanine Hudson, during her recorded appearance in Austin, on April 26, 2019, at a seminar sponsored in part by TCDLA.24 When asked by an audience member (ME) how long she would choose to remain in confinement for contempt of court as the result of her reliance on this policy, Ms. Hudson was unable to provide a coherent answer.25 The Texas Court of Criminal Appeals’ decision in Crabtree, as discussed above, ruled that on the trial of a “failure to register” case a prosecutor must prove, as an “element” of that offense, that the Department of Public Safety, prior to the offense, has determined the defendant’s prior offense is an offense that is “substantially similar” to an enumerated sex offense under Texas law.26 This ruling by the Court in Crabtree, however, does not diminish the traditional role of Texas trial courts in this area. A careful reading of the Court’s decision in Crabtree discloses that such a prior administrative determination by the Department is merely a 23

19 Crime Records Service Newsletter, 6 (Texas Dept. of Public Safety, July-September, 2014)(“Statute requires that DPS verifies that the duty to register has completed [sic] before the person is removed from the registry.”); see also, the Department’s Form CR-33 (“IN ACCORDANCE WITH ARTICLE 62.251, TEXAS CODE OF CRIMINAL PROCEDURE, REMOVAL FROM THE SEX OFFENDER REGISTRY WILL NOT OCCUR UNTIL THE DEPARTMENT OF PUBLIC SAFETY VERIFIES THE RGISTRANT’S DUTY TO REGISTER HAS EXPIRED”). 24 What You Need to Know about Sexual Deregistration (TCDLA video, part 1, 9:00 a.m., April 26, 2019). 25 Ibid. 26 Id., 389 S.W.3d at 382 (“[W]e we hold that a DPS substantial-similarity determination is an essential element of the offense of failure to comply with registration requirements”). 13

“necessary,” but not alone “sufficient,” basis to establish this element of the offense of “failure to register” as a matter of law.27 Thus, when there has been no prior “judicial” determination that the defendant’s prior offense constitutes a “sex offense” that required registration, defense counsel should, in a pretrial motion when the issue is debatable, challenge any claim by the state that the defendant’s prior offense constitutes a “sex offense” that required registration in Texas. Categorical Analysis Should defense counsel persuade the trial court that the defendant is entitled to a “judicial” determination concerning whether the defendant’s prior offense constitutes a “sex offense” that required registration in Texas, it is critical that counsel be aware of the scope of information which the trial court may consider when undertaking this task. As discussed below, defense counsel should timely object to any attempt by the prosecution to introduce evidence in this context which exceeds the scope of evidence that is legally permissible for the trial court to consider. The “substantially similar” and “extrajurisdictional” sex offense determinations under Chapter 62 requires a court to consider, respectively, a whether a prior out-of-state offense, or a prior federal offense, constitutes a “reportable sex offense” as defined by Chapter 62. This inquiry generally requires an examination of the statutory “elements” of the prior out-of-state offense or federal offense (the “substantially similar” offense inquiry), or the elements of a “sex offense” defined by SORNA (the “extrajurisdictional” offense inquiry). In another context, when 27

See Crabtree v. State, supra, 389 S.W.3d at 830 (majority opinion)(observing its decision in Crabtree is consistent with its prior decisions which have ruled “the presiding judge…can make a substantial-similarity determination”); and compare id., 389 S.W.3d at 835 (Alacala, J., dissenting)(“Nothing in the Chapter 62 definitions section identifies TDPS as the sole entity that must make a finding of substantial similarity as described in Subsection (5)(H)”); id., 839 S.W.3d at 837 (“This Court has previously approached the substantial-similarity determination as a question of law for a court to decide when that issue arises in a criminal proceeding”); and id., 389 S.W.3d at 842 (observing the legislative amendment which added Article 62.003(a) was not “intended to dispel criminal courts of their authority to decide whether the elements of a criminal offense have been established as a matter of law”). 14

determining whether an offense-of-conviction “has an element of” another offense, the U.S. Supreme Court has adopted a doctrine that requires courts to determine, as a matter of statutory interpretation, whether Congress intended a “categorical” or a “modified-categorical” method of analysis to apply. The Court has also suggested the constitutional right to a fair trial and procedural due process may be implicated when courts make this determination.28 Under “categorical” analysis courts are constrained to examine only the “generic” statutorily prescribed elements of an offense and thereby determine, without resort to extratextual sources, whether a defendant’s offense-of-conviction necessarily establishes that the defendant committed the generic statute.29 In contrast, under “modified-categorical” analysis, when a defendant has been convicted for violating a “divisible” statute (which contains more than one basis or means for conviction) courts may examine a “limited class of documents” to determine, if possible, which of multiple offenses within a “divisible” statute the defendant was convicted.30 Then, if a court can ascertain which among the multiple offenses in a “divisible” statute actually formed the basis for the defendant’s conviction (by examination of a limited class of documents related to the defendant’s offense-of-conviction), the court, with that more particularized knowledge, must compare the known basis for the defendant’s conviction to the “generic” elements of the hypothetical “other” offense.31 With regard to the “limited class of documents” to which a court may resort when applying the modified-categorical analysis, the Supreme Court has ruled courts are “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the 28

Descamps v. United States, 570 U.S. 254, 267 (2013). Shepard v. United States, 544 U.S. 13, 16 (2005). 30 Descamps v. United States, supra, 570 U.S. at 257. 31 Id., 570 U.S. at 262-263. 29

defendant assented.”32 When applying the modified-categorical approach, courts may not “look to police reports or complaint applications” to determine whether a defendant’s guilty plea “necessarily admitted,” or whether factual circumstances would have supported, a conviction for the generic offense.33 When distinguishing the “modified-categorical” analysis from the “categorical” analysis, the Supreme Court has stated: “We have previously approved a variant of this [categorical] method—labeled (not very inventively) the ‘modified categorical approach’—when a prior conviction is for violating a so-called ‘divisible statute.’ That kind of statute sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.”34 In Descamps v. United States, supra, the Supreme Court distinguished “divisible” from “indivisible” statutes, and ruled that “sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.”35 The Court further ruled that, under a “categorical” analysis, an offense-ofconviction may qualify as a basis for enhancement only if the offense-of-conviction has “elements” that “are the same as, or narrower than, those of the generic offense.”36 For example, when the offense for which the defendant was convicted does not depend on the age of any

Shepard v. United States, supra, 544 U.S. at 16. Ibid. 34 Descamps v. United States, supra, 570 U.S. at 257 (italics in original). 35 Id., 570 U.S. at 258 (italics added). 36 Id., 570 U.S. at 257. 33

alleged victim its elements are not “narrower than” a “generic” offense wherein the age of a victim is an element of the generic offense. In the context of determining whether a prior offense may be considered to “enhance” a defendant’s sentence for commission of a subsequent offense, the Supreme Court has ruled a “categorical” analysis must be applied. Thus, when applying 18 U.S.C. § 924(e), sentencing courts “must look only to the statutory definitions of the prior offens[e],” and they may not “consider other evidence concerning the defendant’s prior crim[e].” Taylor v. United States, 495 U.S. 575, 600 (1990), citing with approval, United States v. Vidaure, 861 F.2d 1337, 1340 (5th Cir. 1988), cert. denied, 489 U.S. 1088 (1989). As a practical matter, determination of whether a person has committed an offense that requires registration must either be made by a trial court that presided at the person’s earlier criminal trial, or it must be delegated by that trial court to another arbiter of fact after the person has been convicted of the offense for which registration would thereafter be required. If a fullblown trial has preceded a person’s potentially triggering conviction, the trial court, on the basis of evidence admitted at that trial, is enabled to apply a “fact-specific” analysis to determine whether the conviction qualifies as an offense which requires registration. On the other hand, when a person’s potentially triggering conviction is the result of the person’s plea of guilty, and a trial court does not have the benefit of a full trial record to make the determination, the trial court may apply a “modified-categorical” analysis. In this context a trial court’s determination of whether a person’s conviction constitutes an offense that requires registration must be confined to consideration of “the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”37 If a trial court does not itself make a determination that a conviction requires registration and instead delegates that task to another arbiter a different constitutional dynamic would arise. When a “subsequent arbiter” (for lack of a better name) is delegated authority to make an extrajudicial determination of whether a conviction requires registration, the subsequent arbiter, as a practical matter, must apply either a “categorical,” a “modified categorical” or a “factspecific” analysis when making the determination. If the statute-of-conviction contains an “indivisible set of elements,” the subsequent arbiter, like a sentencing court, “may not apply the modified categorical approach.”38 Conversely, when the statute-of-conviction contains a “divisible set of elements” whereby the “sex offense” determination depends on which of two (or more) means of committing an offense may hypothetically qualify as a conviction requiring registration (with one means requiring registration and another not), a different method of analysis must be applied. In this latter situation a subsequent arbiter, like a sentencing court, may apply the “modified categorical approach” confined to “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.”39 When neither a “categorical” analysis, nor a “modified categorical” analysis (if applicable), establishes that a person’s conviction requires registration, the subsequent arbiter is left with only one option: the option, if appropriate and permissible, to conduct a “fact-specific” analysis to determine whether the person’s conviction requires registration. When a subsequent 37

Shepard v. United States, supra, 544 U.S. at 16. Descamps v. United States, 570 U.S. 254, 258 (2013)(emphasis added). 39 Shepard v. United States, supra, 544 U.S. at 16. 38

arbiter, unlike a trial court, has not personally heard testimony or received evidence at an adversarial proceeding, an ex parte determination by the subsequent arbiter clearly presents an intolerably high, and unconstitutionally unacceptable, risk of an erroneous determination.40 That is not to say that an intolerable risk of an erroneous deprivation would not also be presented were the subsequent arbiter to apply a “categorical” analysis, or a “modified categorical” analysis (if applicable), without first affording a person whose liberty is at stake an opportunity be heard. Given the relative complexity of those arguably more objective inquiries, provision of an adversarial proceeding would also significantly diminish the risk of an erroneous deprivation.41 For example, when procedural protections are afforded at an adversarial proceeding, such as when a “sex offense” determination is judicially made for the first time at a criminal proceeding detached from a person’s original conviction (such as when a person is criminally accused of failing to register); or at a civil proceeding to resolve a plaintiff’s claims under 42 U.S.C. §1983 (i.e., claims by the plaintiff that he was unconstitutionally required to register as the result of extrajudicial procedures); the attendant procedures deployed obviously reduce the risk of an erroneous deprivation substantially. An open question exists concerning whether, as a matter of Texas statutory law, a “modified categorical” analysis may be applied to determine whether an offense constitutes a “sex offense.” In its opinion in United States v. Shepard, 880 F.3d 734 (5th Cir. 2018) the Fifth Circuit observed that the decision of the Texas Court of Appeals in Texas Department of Public Safety v. Anonymous Adult Texas Resident, 382 S.W.3d 531 (Tex. App. - Austin 2012, no pet.) 40

The relative “risk of an erroneous deprivation” of liberty is the second analytical factor relevant to determining the constitutional adequacy of procedural due process, as described in Mathews v. Eldridge, 424 U.S. 319, 335 (1979). 41 The Supreme Court has recognized that participation of effective legal counsel at contested administrative hearings, whether retained or not, may serve to reduce the risk of an erroneous determination when disputed issues are “complex” or when an unrepresented party would likely be unable to speak effectively for himself. Gagnon v. Scarpelli, 411 U.S. 778, 790-791 (1973). The utility of counsel’s personal appearance, for purposes of assuring procedural due process is satisfied, is particularly evident when a “sex offense” determination depends on legal analysis. 19

had pretermitted the Fifth Circuit’s own authority to “remove [its] blinders and review the [defendant’s] underlying conduct.”42 The Texas Court of Appeals’ decision in Anonymous Adult Texas Resident, however, was limited to the question of whether the defendant’s out-of-state conviction was “substantial similar” to an offense that required registration under Texas statutory law.43 Nonetheless, the Texas Court of Criminal Appeals’ decision in Crabtree v. State, supra, discloses SORB’s administrative decision, both with regard to “substantial similarity” and independently with regard to whether a person’s offense qualifies as an “extrajurisdictional” offense, are each governed by Article 62.003 of the Texas Code of Criminal Procedure (“Article 62.003”).44 Moreover, there appears to be no rational basis to conclude on the one hand, as a matter of Texas statutory law, that modified-categorical analysis may not be applied to determine whether a defendant’s out-of-state conviction is “substantial similar” (as the Texas Court of Appeals ruled in Anonymous Adult Texas Resident, supra); but on the other hand that, under the same statute (Article 62.003) a modified-categorical analysis may be applied to determine whether a person qualifies as an “extrajurisdictional registrant.” Thus, insofar as Texas statutory law controls the method of analysis that must be applied to determine whether a person qualifies as an “extrajurisdictional registrant,” it seems likely a modified-categorical analysis, at least generally, may not be applied to determine whether an out-of-state offense qualifies as a “sex offense.” Nonetheless, in Fisk v. State, supra, the Texas Court of Criminal Appeals ruled that “where the elements of the previous conviction are proven” on the face of a prior “judgment,” 42

United States v. Shepard, supra, 880 F.3d at 746. Texas Department of Public Safety v. Anonymous Adult Texas Resident, supra, 382 S.W.3d at 534. 44 Crabtree v. State, supra, 389 S.W.3d at 827 (“the [Texas] Legislature intended for DPS to decide whether extrajurisdictional convictions are reportable convictions or adjudications” under Article 62.003); compare, Rogers v. State, 226 A.3d 261, 264 (Md. 2020)(ruling Maryland’s Department of Public Safety “lack[s] authority to determine that the victim [of defendant’s offense] was a minor and to order registration”). 43

and the “substantial similarity” question is thereby resolved by comparison of the judgment to Texas statutory law, “it is unnecessary to analyze…the other state’s statutory scheme.” Id., 547 S.W.3d at 922. Presumably, when referring to “the other state’s statutory scheme,” the Court meant the “statutory elements” of the prior offense in the other jurisdiction. Thus, according to the Court in Fisk, comparison of the statutory elements of the prior offense committed in another jurisdiction “is necessary only if the record fails to prove the nature of the previous conviction.” Ibid. Because the Court in Fisk limited the scope of evidence that is properly considered by a trial court when making the “prior sex offense” determination to “a certified copy” of the prior “judgment” that was admitted to establish the prior “sex offense” (albeit with additional expert testimony concerning applicable law in the out-of-state jurisdiction), the decision in Fisk does not depart from the “categorical” and “modified categorical” limitations described above. Defensive Issues at Trial. In addition to the decision in Crabtree, which requires proof that the Department previously determined a defendant’s prior non-enumerated offense was a “substantially similar” sex offense, the Court of Criminal Appeals has also recognized another potential defense to “failure to register” allegations. In Febus v. State, 542 S.W.3d 568 (Tex. Crim. App. 2018) the Court ruled that for conviction of “failure to register” the state must prove, as an element of the offense, that the defendant had “knowledge” of his “duty to register.” In this connection, the Court in Febus clarified its earlier decision in Robinson v. State, 466 S.W.3d 166 (Tex. Crim. App. 2015), and emphasized that the offense of “failure to register” is a “circumstances of the conduct” category of offense. On that basis the Court in Febus further ruled that the “circumstance” at issue in a failure to register case “is the duty to register,” and that the “culpable mental state” of “knowledge” applies only to the “duty-to-register” element, rather

than to the “failure-to-comply” element. Id., 542 S.W. 3d at 573. In other words, a person accused of failing to register will have no defense based on the fact that he did not “knowingly or intentionally” fail to register because, for example, he’s not too good at keeping his affairs in order. However, a defendant accused of failing to register must be acquitted unless the state is able to prove the defendant “knew” he had a legal duty to register in the first instance, and that he thereafter failed to comply with that duty. When a person has been convicted or placed on community supervision for an “enumerated” sex offense in violation of Texas law in a Texas court, the “Notice of Registration Duties” (Form “CR-32”), signed by the person after his or her appearance in a Texas court, will almost invariably establish the person possessed “knowledge” of his or her “duty to register” prior to failing to do so. However, where the duty to register under Texas law is based on an outof-state “substantially similar” offense, or on an “extrajurisdictional” offense as defined by SORNA, the ability of a prosecutor to prove a defendant had “knowledge” of a “duty to register” under Texas law may be more difficult. In these latter circumstances, because only the Department is authorized to make the “sex offense” determination (initially),45 a person who has executed a CR-32 form with a local registration authority after arriving in Texas would not necessarily “know” whether they must register in Texas until the Department later makes its determination that registration in Texas is required after receiving the completed CR-32 form. Furthermore, a person arriving in Texas from out-of-state may never report to a local registration authority and would therefore might have never been provided with either “notice” from a Texas official or a CR-32 form.

Crabtree v. State, supra, 389 S.W.3d at 826-827. 22

Under the parallel provisions of SORNA former U.S. Attorney General William Barr, in August of 2020, issued proposed regulations for enforcement of SORNA that addressed this “knowledge” requirement as it would apply to the duty to register under federal law after traveling in interstate commerce.46 Although at “press time” those proposed regulations have not yet been published as a “final rule,” they do illustrate how the Texas “knowledge” requirement might be applied in the future to Texas cases. Under the federal regulations proposed by Barr the factual “knowledge” element of the offense of failure to register under federal law, which would be necessary for conviction under 18 U.S.C. §2250(a), could be satisfied by a federal prosecutor proving the defendant had been previously notified generally of a “duty to register” by either state or federal authorities.47 Thus, when a person has arrived in Texas from another state, whether a prosecutor would be able to prove the person had “knowledge” of a “duty to register” in Texas would sometimes depend on whether another state or a federal authority, outside of Texas, specifically notified the person of a duty to register. Not all states require registration under their respective states laws, and in those particular states a prosecutor would be hard-pressed to establish a person’s “knowledge” of a duty to register anywhere. Furthermore, under this analysis, it is plausible that a state-court prosecutor in Texas would be required to prove a defendant was specifically informed of a duty to register in Texas, and not merely about a duty to register under the laws of the state from which the person departed, or under federal law.

Registration Requirements Under the Sex Offender Registration and Notification Act (Proposed Rules), 85 Fed. Reg. 49332, 49350 (August 13, 2020). 47 Id., 85 Fed. Reg. at 49350, citing Elkins v. United States, 683 F.3d 1039, 1050 (9th Cir. 2012); and, United State v. Whaley, 577 F.3d 254, 261-262 (5th Cir. 2009). 23

Post-Conviction Remedies. In accord with the Court of Criminal Appeals’ decision in Crabtree a defendant, at or before trial on the offense of failure to register, is entitled to dispute whether a prior offense constitutes a “sex offense” that triggers a duty to register under Texas law. This challenge would be distinguishable from a challenge to the “validity” of the prior conviction, and both federal and state courts are reluctant to entertain, if they do not categorically prohibit, “collateral” challenges which seek to invalidate a prior conviction as a defense to a new accusation of criminal misconduct.48 This legal inability a defendant to collaterally challenge the validity of the prior conviction at the trial of a new offense for failure to register would not foreclose, however, the defendant’s opportunity to challenge, via a post-conviction application for a writ of habeas corpus, an erroneous determination that an offense required “sex offender” registration. Nor would it foreclose the opportunity of a defendant to challenge on habeas the procedural manner in which the prior “sex offense” determination was made. The Texas Court of Criminal Appeals has ruled the duty to register under Texas law constitutes a form of “restraint” that may support habeas jurisdiction,49 and the United States Court of Appeal for the Fifth Circuit has granted post-conviction relief on habeas corpus, albeit under unusual circumstances, where a prior determination of a duty to register under Texas law was discovered, post-trial after conviction for failure to register, to be manifestly erroneous.50

See e.g., Lewis v. United States, 445 U.S. 55 (1980)(a defendant's extant prior conviction, flawed because he was without counsel, as required by Gideon v. Wainwright, 372 U.S. 335 (1963), may constitute the predicate for a subsequent conviction). 49 Ex Parte Covey, No. PD-0145-09, 2010 WL 1253224, *6 (Tex. Crim. App., March 31, 2010)(not designated for publication)(“The sex offender registration requirement is a direct and significant, albeit non-punitive, consequence of pleading guilty to [a reportable sex offense]”). 50 United States v. Shepard, supra, 880 F.3d at 739. 24

CONCLUSION Ascertaining whether a duty to register as a sex offender is imposed on our clients, depending on whether they have been convicted or placed on community supervision for a “sex offense” as “enumerated” under Chapter 62, is complicated enough. When, however, the answer to the “duty to register” question depends on whether a client is an “extrajurisdictional” sex offender, or has been convicted or placed on community supervision for a “substantially similar’ sex offense, the answer becomes even more complicated. This is because the answer to the latter questions depends on whether SORNA, or the law of another state jurisdiction, constitutes a triggering offense that is encompassed within the definition of a “reportable sex offense” under Texas law. Under these circumstances it is imperative that Texas criminal defense lawyers become acquainted with not only Chapter 62, but also with the duties that are, and those that are not, validly imposed by Congress under SORNA. When in doubt, I’d advise Texas criminal defense attorneys to reach out to others who may be more familiar with SORNA, and who are more familiar with the applicable law in this area of practice, in the same way that many of us wisely consult our colleagues when in doubt about the consequences of a plea or conviction in relation to U. S. immigration law. *****

Texas Criminal Defense Lawyers Association

Sex & Violence September 9-10, 2021

Topic: Collateral Consequences Speaker:

Ken Ervin 1301 Rio Grande St Austin, TX 78701-1711 (512) 476-4475 Phone (512) 542-3372 Fax Ken@ervinlaw.com email www.ervinlaw.com website

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

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS Presented by: KEN ERVIN LEAVITT | ERVIN 1301 Rio Grande Street Austin, Texas 78701 (512) 476-4475 www.ervinlaw.com ken@ervinlaw.com Authored and Compiled by: RANDY T. LEAVITT LEAVITT | ERVIN 1301 Rio Grande Street Austin, Texas 78701 Office: (512) 476-4475 www.randyleavitt.com randy@randyleavitt.com

Texas Criminal Defense Lawyers Association SEX AND VIOLENCE SEMINAR Sheraton Arlington Hotel 1500 Convention Center Dr. Arlington, Texas 76011

AUTHOR RANDY LEAVITT'S NOTE This article is a compilation of work comprised by several individual contributors over the past ten years. I first presented this article in 2009 at the State Bar of Texas, Advanced Criminal Law Course held in Houston, Texas. Since that time, I have continued to expand and modify this article with suggestions and comments from many. Most significantly, the article was updated and presented a couple of times by a couple of friends and colleagues. First, a brilliant attorney from Austin, David Gonzalez of Sumptner and Gonzalez L.L.P., made significant contributions in a paper entitled Invisible Punishments, Enmeshed Penalties and Unforeseen Consequences of Criminal Convictions and presented and published for the 2011 Advanced Criminal Law Course. More recently, Andy Drumheller, one of Houston’s finest, of Drumheller, Hollingsworth and Monthy, L.L.P., gave this paper a much needed an excellent update and presented it at the 2019 Advanced Criminal Law Course. This year, I’ve added a couple of small sections, deleted a few outdated sections and updated some old websites. As always, I wish to recognize Pamela J. Lakatos of Plano, Texas for her original work, Pitfalls in the Practice of Law, Dallas County Bar, 2007, for being the genesis of this growing resource. Of course, today, there are a plethora of articles and books on the world wide web regarding collateral consequences of criminal convictions. While this article focuses primarily on Texas law, there are several excellent articles devoted to federal collateral consequences. The American Bar Association Commission on Effective Criminal Sanctions and the Public Defender Service for the District of Columbia published Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulation (2009); see also Susan M. Kuzma, Federal Statutes Imposing Collateral Consequences Upon Conviction 10–11 (2000), available at http://www.justice.gov/pardon/collateral_consequences.pdf. The Sentencing Resource Counsel Project released a similar list of invisible punishments with the goal of advocating for downward departures in federal criminal sentencing. See Denise Barrett and Sara Silva, Collateral Consequences Resource List (2010) available at https://www.fd.org/sites/default/files/criminal_defense_topics/essential_topics/sentencing_resources/useful_rep orts/collateral-consequences-resource-list.pdf. Finally, both the Sentencing Project

(www.sentencingproject.org) and www.Reentry.net provide an outstanding array of resources, research and strategies for not only finding collateral consequences, but obtaining relief from them as well. Over the past decade or so the legal community, media and general public have become more aware of the myriad of potential consequences associated with convictions, but just like the current pandemic of COVID-19 the vaccine and/or cure is still unknown. Hope the information contained herein is useful. RTL

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TABLE OF CONTENTS I.

FINANCIAL CONSEQUENCES........................................................................................................................... 2 A.Employment............................................................................................................................................................ 2 1.

Texas Department of Licensing and Regulation ............................................................................................. 2

Specific Professional Licenses........................................................................................................................ 6

Crimes of Moral Turpitude ............................................................................................................................. 7

B. Loss of Funding and Assistance ............................................................................................................................. 8 1.

Education Funding .......................................................................................................................................... 9

Social Security Benefits for Prisoners............................................................................................................. 9

Food Stamps and other Federally Funded Assistance Programs .................................................................. 10

Medicaid Providers ....................................................................................................................................... 10

C. Asset Forfeiture..................................................................................................................................................... 11 D.Liens...................................................................................................................................................................... 11 E. Criminal Conviction Defenses in Civil Suit……………………………………………………………………..12 II. RESTRICTIONS ON RIGHTS AND PRIVILEGES AND RESTORATION OF SUCH RIGHTS AND PRIVILEGES................................................................................................................................................................ 12 A.Possession of Firearms.......................................................................................................................................... 12 B. Driver’s License Restrictions................................................................................................................................ 14 C. Notifications in Domestic Violence Cases............................................................................................................ 15 D.Loss of Passport Privileges ................................................................................................................................... 15 E. Civil Rights and Privileges ................................................................................................................................... 16 1.

Voting............................................................................................................................................................ 16

Public Office ................................................................................................................................................. 16

Jury Service................................................................................................................................................... 16

Executor of Will…………………………………………………………………………………………….16

Restoration of Rights & Privileges(Art. 42A.701 T EX. CODE CRIM. PROC.) ............................................... 16

F. Divorce and Child Custody................................................................................................................................... 17 G.Sex Offender Registration..................................................................................................................................... 18 H. Travel Restrictions …..………………………………………………………………………………………… 18 III. INDIRECT CRIMINAL CONSEQUENCES....................................................................................................... 18 A.Conditions of Probation ........................................................................................................................................ 18 B. Punishment Enhancement..................................................................................................................................... 19 CONCLUSION............................................................................................................................................................. 20

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

UNFORESEEN, UNINTENDED AND UNCONSCIONABLE CONSEQUENCESOF ARREST AND CONVICTIONS The potential damage of criminal charges begins the moment a person is arrested and booked into jail. The stain of that arrest may never go away-despite numerous statutes and procedures for sealing and expunging records. As a result, people with criminal charges face a network of legal effects, known as “collateral consequences”. Criminal cases are disposed of without a trial 94% of the time. State vs. Federal Prosecutions, New York Times 2012, Regardless of how much we think of ourselves as “trial “lawyers, the plain truth is that both as prosecutors and defense attorneys we spend the vast majority of our time on cases that do not end up in trial. As a result, both sides have an obligation to be fully aware of the vast potential collateral consequences that follow our work. Collateral consequences affect many areas of life. Some criminal convictions can lead to loss of civil status: a citizen may lose the right to vote, serve on a jury, or hold office; a non-citizen may be deported or become ineligible to naturalize. A conviction may make a person ineligible for public benefits, such as the ability to live in public housing or hold a driver’s license. Certain convictions can limit one’s ability to travel to foreign countries. A criminal conviction can also make a person ineligible for a license or permit necessary to be employed or to do business, or cause forfeiture of a pension. Criminal convictions can also affect family relations, such as the ability to have custody or visitation of one’s child. Criminal records have become more visible because of public and private databases available to anyone who cares to look. Accordingly, a criminal charge is increasingly difficult to erase. At the same time, the legal effects of a conviction are hard to eliminate. Some collateral consequences, by their terms, apply only for a specified period, others are in effect for life. Although all jurisdictions have some method of eliminating the effects of the conviction, such as pardon, sealing, or expungement, often relief is practically unavailable, or is restricted to a narrow class of convictions or offenders.. See Collateral Consequences by Gabriel J. Chin, reported ABA Standard For Criminal Justice On Collateral Sanctions and Discretionary Disqualification Of Convicted Persons (2004). It is impossible to anticipate every consequence but in the past decade the resources for considering such consequences has greatly expanded. In 2009, the National Conference of Commissioners on Uniform State Laws approved and recommended for enactment the Uniform Collateral Consequences of Conviction Act. Recognizing that most of the consequences for criminal convictions are spread throughout the civil codes, the proposed legislation would help manage the proliferation of enmeshed penalties. More significantly, the Act seeks to ensure that defendants are notified about collateral consequences at important points in a criminal case so the defendant can make an informed decision about how to proceed. The goal of the Act is to have all collateral consequences condensed into a single document. The American Bar Association passed a resolution recommending the Act. Vermont enacted legislation in 2014. Wisconsin and New Mexico introduced legislation that was not enacted. New York, Pennsylvania, Massachusetts, and Minnesota have legislation still pending as of 2020. In Texas, research has been compiled in a booklet entitled “Statutory Restrictions on Convicted Felons in Texas,” published by The Friends of the State Law Library. The booklet can be obtained from the State Law Library by calling (512) 463-1722 or online at https://www.sll.texas .gov/li braryresources/ collecti ons/restrictions-on-convict ed-felons/. The Texas State Law Library notes on its website that it does “not warrant this collection to be a comprehensive and complete listing of all restrictions on convicted felons,” impliedly confirming the complexity of identifying all possible collateral consequences. The most comprehensive resource for collateral consequences of convictions is found at the website https://niccc.csgjusticecenter.org/database/results/?jurisdiction=&consequence_category=&narrow_category=Na N&triggering_offense_category=&consequence_type=&duration_category=&page_number=1 and is currently maintained by The Council of State Governments Justice Center. The American Bar Association (“ABA”) Criminal Justice Section obtained a grant from the U.S. Department of Justice and formed the ABA National Inventory of Collateral Consequences of Conviction (“NICCC”) project. NICCC created an online database of the collateral consequences of criminal convictions contained in the laws and regulations of the federal, state, and territorial 1

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

jurisdictions of the United States. The website is extremely user friendly and very helpful. One can search by consequence, offense, or general key word (such as job title). It is important to note that not all consequences occur automatically. And negative consequences can occur even if there is not a conviction. Certain dispositions, such as pre-trial diversion, deferred prosecution, and drug court diversion programs can result in negative collateral consequences and sometimes treated by some agencies as if they were in fact, convictions. I.

FINANCIAL CONSEQUENCES

A major consideration of a criminal conviction/disposition is the impact the disposition will have on one’s current or future employment. When plea bargaining, both sides should be cognizant of the dispositions effect on the person’s future earning capacity. It is just as important for the prosecutor to be concerned about this as it is the individual defense attorney. No society benefits when its citizens are unemployable. Criminal charges can have serious and sometimes surprising indirect financial consequences for the offender. These are of course in addition to direct fines imposed as part of a criminal sentence. Potential financial consequences include loss of employment, loss of government funding or assistance, and asset forfeiture. A.

Employment State and federal restrictions on certain government programs, contracts, and licenses can significantly impact the employability of ex-offenders. Many of these restrictions, even those imposed by regulatory agencies, are virtually automatic. Felony convictions, and convictions for crimes of moral turpitude, can lead to the automatic revocation of and ineligibility for a wide variety of federal and state licenses. In the distant past, one could enter a plea to deferred adjudication and be assured that the offense could never be used against the client. Now deferred adjudication sentences are routinely reported and used as the basis of sentence enhancements and disqualifications as to employment and immigration. Additionally, as noted above the same is true, but to a lesser charge for dispositions such as pretrial diversions. 1.

Texas Department of Licensing and Regulation The Texas Department of Licensing and Regulation (TDLR) is the primary state agency responsible for oversight of businesses, industries, general trades, and occupations that are regulated by the state and assigned to department by the legislature. As the umbrella occupational regulatory agency, TDLR is solely responsible regulating thirty-eight (38) specific occupations and industries, as listed and described https://www.tdlr.texas.gov/licenses.htm such as: Air-Conditioning/Refrigeration Contractor Architect Athletic Trainer Auctioneer Barbering Behavior Analysts Boiler Safety Inspectors Code Enforcement Officers Combative Sports Cosmetologists Dietitians Driver Education and Safety Dyslexia Therapy Electricians Elevator/Escalator Inspectors For Profit Legal Service providers Hearing Instrument Fitters and Dispensers Industrialized House and Building Inspectors Laser Hair Removal 2

the the for at

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

Licensed Breeders Massage Therapy Midwives Mold Assessors and Remediators Offender Education Programs Orthotists and Prosthetists Podiatry Polygraph examiners Professional Employer Organizations Property Tax Consultants Property Tax Professionals Responsible Pet Owner Sanitarians Service Contract providers Speech Pathologists and Audiologists Temporary Common Worker Providers Transportation Network Companies Tow Truck Operators Used Auto Parts Recyclers Vehicle Protection Product Warrantors Water Well and Pump Drillers/Installers Weather Modifiers Chapter 53 of the Texas Occupations Code titled, Consequences of Criminal Convictions set forth the general provision relating to applicants and license holders who have criminal convictions. The chapter does not apply to attorneys, peace officers, or emergency medical services personnel. In addition, the chapter is inapplicable to any person licensed by the Texas Medical Board, Texas State Board of Pharmacy, the State Board of Dental Examiners, or the State Board of Veterinary Medical Examiners who was convicted of drug related crimes. See TEX. OCC. CODE § 53.002. The 86th Texas Legislature (2019) passed several bills which significantly impact Chapter 53, Tex. Occ. Code. It appears the Legislature was intent on making it clear that licensing authorities should take a much more “liberal” approach toward the granting of a license or considering the revocation of a license. Sec. 53.003 was added in its entirety and is entitled: “Legislative Intent: Liberal Construction of Subchapter” the statute specifically states that it is the legislature’s intent to “enhance opportunities for a person to obtain gainful employment after the person has been convicted of an offense” and subsequently discharged their sentence. Additionally section §53.021 authorizing revocation, suspension or denial of a license was amended to make it subject to the brand new §53.0231 which sets limitations on the use of certain arrest. §53.023 was amended to require the licensing agency when considering an applicant with a previous criminal conviction to consider evidence of the person’s compliance with any conditions of community supervision, parole, or mandatory supervision and recommendation letters are no longer limited to law enforcement officials. See §53.023(a)(6)&(7). Maybe the most impacting amendments to Chapter 53 is the new §53.0231 [actually two distinct statutes with identical section numbers §53.0231 (S.B.1217) and §53.0231(H.B.1342)] Limitations Regarding Consideration of Certain Arrests (S.B.1217) and Notice of Pending Denial of License (H.B.1342) § 53.0231 Tex. Occ. Code (2019). The senate bill states, “for purposes of determining a person’s fitness to perform the duties and discharge the responsibilities of the licensed occupation, a licensing authority may not consider an arrest that did not result in the person’s conviction or placement on deferred adjudication…” But see §205.351(7) Tex. Occ. Code (Acupuncture) grounds for license denial or disciplinary action or §204.303(1) governing physician assistants. Both allow denial or other disciplinary action for one placed in a pretrial diversion program. The house bill (H.B.1342) creates a requirement that the licensing authority may not deny a person a license with a prior conviction until the licensing authority has provided written notice for the reason and allowed the applicant to respond. See §53.0231 Lastly, the 3

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86th Legislature mandated the state auditor in collaboration with licensing authorities develop a best practices guide for applicants with a prior criminal record to view on the internet. In all, the 86th Legislature initiated several provisions that should assist individuals with prior arrests and convictions to become gainfully employed in their chosen profession.

Chapter 53 explicitly sets forth the grounds for a licensing authority to suspend, revoke, disqualify or deny a person seeking a license in one of the listed industries. A license holder’s license shall be revoked in the following scenarios resulting in incarcerations:

the person is sent to prison following a felony conviction; felony community supervision revocation; parole revocation; or revocation of mandatory supervision

See TEX. OCC. CODE § 53.021(b) Subject to the factors set forth for consideration in § 53.0231, the licensing authority has discretion to suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination when:

the offense directly relates to the duties and responsibilities of the occupation; a sexually violent offense; any 42A.054 offense; TEX. CODE CRIM. PROC (formerly § 42.12 3(g) Offenses;, or any offense committed less than five years before the date the person applies for the license.

See TEX. OCC. CODE § 53.021(a) (2017). If the applicant has been convicted of any other offense other than those listed above, the licensing authority may still issue a license to a qualified applicant, or at worse, a provisional license for a term of six months. See TEX. OCC. CODE § 53.0211(c) (2017). Historically, the general public is under the impression that deferred adjudication probation will prevent adverse employment consequences because it is not a conviction. One reason the public believes that is because they hear – over and over – that deferred is not a final conviction. Logically, the person concludes that collateral employment and professional licensure consequences would not apply. This is not necessarily the case. First enacted in 2009, and later amended effective September 2st, 2013, Texas Occupations Code § 51.356 was passed into law. Texas Occupations Code § 51.356 specifically authorizes the commission to deny, suspend, revoke, or refuse to renew a license or other authorization of a person who was placed on deferred adjudication if (1) the person holding or seeking the license received deferred adjudication for any sexual offense described by Article 62.001(5) T EX. CODE CRIM. PROC.; (2) it has not been 5 years since the completion of the deferred adjudication; or (3) the “conviction” would make the applicant ineligible for the license by operation of law and the commission determines that the deferred adjudication makes the person “unfit for the license.” T EX. OCC. CODE § 51.356 (a) (2). In making this determination, the commission shall consider the factors set forth in § 53.022 and § 53.023 and the guidelines issued by the department under TEX. OCC. CODE § 53.025. Additionally, TEX. OCC. CODE § 53.021 was amended in 2013 and also allows the commission to revoke, suspend, or deny a license of a person placed on deferred adjudication using the same criteria as set forth in § 51.356 stated above. Section 53.021 also has a catch all provision stating that the licensing authority may still suspend or revoke a license or disqualify a person from receiving a license for a deferred adjudication if (1) the person may pose 4

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

a continued threat to public safety; or (2) employment of the person in the licensed occupation would create a situation in which the person has an opportunity to repeat the prohibited conduct. See TEX. OCC. CODE § 53.021(d)(2). The 2019 amendments did not eliminate this authority. See § 53.021 (2019) Furthermore, there is no distinction between deferred adjudication and regular probation or conviction if the applicant is seeking a license relating to law enforcement, public health, education, safety services, or financial services in a regulated industry. See § 53.021(e) TEX. OCC. CODE. Any conviction, adjudication, or deferral of same vests the licensing authority with jurisdiction to suspend or revoke a license. The Texas Department of Licensing and Regulation, through their rule making authority, takes the position that they may deny, revoke or refuse to renew a license of a person with a deferred adjudication or any other “nonconviction” activity that makes them “unfit” for the license. In making the determination, the commission shall consider the factors set forth in TEX. OCC. CODE § 53.022, § 53.023 and § 53.025. See 16 Texas Administrative Code Part 4 § 60.41 Subchapter D. Under these provisions, the Commission and the Department are allowed to deny, revoke, suspend, or refuse to renew the license of a person who has a deferred adjudication or other activities that indicate that the person is unfit or lacks honesty, trustworthiness, and integrity to hold a license issued by the Department. This new rule provides notice that the Commission and Department have authority under Chapter 51, not just Chapter 53, to find that a person is ineligible for a license based on criminal history. See 16 TAC § 60.41(b). It also provides notice that deferred adjudications and other activities, not just convictions, may impact a person’s license eligibility. What is less clear is determining how the conviction directly relates to an occupation. Section 53.022 lists four factors: 1. The nature and seriousness of the crime; 2. the relationship of the crime to the purposes for requiring a license to engage in the occupation; 3. the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and 4. the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation. Although factors 2 – 4 suggest an inquiry similar to a rational basis test, “the nature and seriousness of the crime” factor provides a loophole to deny a license with almost unbridled discretion. For example, a person with a ten year old conviction for possession of child pornography—not enumerated as an Art. 42A.054 (formerly “3(g) offense”) Tex. Code of Crim. Proc. offense nor a sexually violent crime--would likely face an uphill battle. Should convictions of this type prevent a person from selling securities, insurance or real estate? Must they rely upon government assistance for the rest of their lives? Whether the 2019 amendments discussed supra will impact the way licensing will treat deferred adjudications in an open question. Clearly, the legislatures has indicated a preference that such adjudications not be used to automatically deny one’s application. Exhibit A is a list of the types of crimes cross-referenced to whether or not TDLR believes it relates to the license. At a glance, one can quickly see that any crime involving fraud or deceptive trade practices, prohibited sexual conduct with a child victim, property crime or crimes against the person are grounds for license revocation. Given the complexity of how a criminal conviction may be treated, a person may pay $25.00 to request a Criminal History Evaluation Letter so an applicant can find out before applying whether or not he/she would be denied a license due to a criminal conviction. The person must answer an essay question (“What exactly did you do (crime) and why?”) and submit a specific request form related to the particular license area. See 16 Texas Administrative Code § 60.42, form available at https://www.tdlr.texas.gov/crimHistoryEval.htm. In order to demonstrate to the licensing authority that a person is capable of performing the responsibilities of a licensed occupation, the Board shall also consider and the applicant must provide information concerning: 1. The extent and nature of the person’s past criminal activity; 5

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2. the age of the person when the crime was committed; 3. the amount of time that has elapsed since the person’s last criminal activity; 4. the conduct and work activity of the person before and after the criminal activity; 5. evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or after release; and 6. other evidence of the person’s fitness, including letters of recommendation from prosecutors, law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person; the local sheriff or chief of police in the community where the person resides; and any other person in contact with the convicted person. See TEX. OCC. CODE § 53.023(a) (2017). 2.

Specific Professional Licenses While TDLR is the umbrella organization that handles most of employment licenses, most professions handle the license consequences through their own professional board. However, most of the Boards simply reference Section 53.021 of the Occupations Code and provide for conforming regulations. The following is a non-exhaustive list of professions that each have their own Board and rules which governs the consequence of a conviction: Attorney (State Bar of Texas) Texas Disciplinary Rules of Conduct; Architect (Texas Board of Architectural Examiners) Tex. Occ. Code § 1051; Dentist (State Board of Dental Examiners) Tex. Occ. Code § 251; Speech-language pathologist (State Board of Examiners for Speech-Language Pathology and Audiology) Tex. Occ. Code § 401; Professional Engineer (Board of Professional Engineers) Tex. Occ. Code § 1001; Dental Hygienist (Dental Hygiene Advisory Committee) Tex. Occ. Code § 267; Psychologist (Texas State Board of Examiners of Psychologists) Tex. Occ. Code § 501; Physician (Texas Medical Board) Tex. Occ. Code § 152; Physician Assistant Licensing Act, Tex. Occ. Code Chapter 204; Registered Nurse (RN) (Texas Board of Nursing) Tex. Occ. Code § 301; Pharmacist (Texas State Board of Pharmacy) Tex. Occ. Code § 557; Podiatrist (Texas State Board of Podiatric Medical Examiners) Tex. Occ. Code § 202; Certified Public Accountant (Texas State Board of Public Accountancy) Tex. Occ. Code § 901; Social Worker (Texas State Board of Social Work Examiners) Tex. Occ. Code § 505; Perfusionist (Texas State Perfusionist Advisory Committee) Tex. Occ. Code § 603; Athletic Trainer (Advisory Board of Athletic Trainers) Tex. Occ. Code § 451; Optometrist (Texas Optometry Board) Tex. Occ. Code § 351; Marriage/Family Therapist (Texas State Board of Examiners of Marriage and Family Therapists) Tex. Occ. Code § 502; Licensed Professional Counselor (Texas State Board of Examiners of Professional Counselors) Tex. Occ. Code § 503; Chemical Dependency Counselor (Department of State Health Services) Tex. Occ. Code § 504; Occupational Therapist (Texas Board of Occupational Therapy Examiners) Tex. Occ. Code § 454; Physical Therapist (Texas Board of Physical Therapy) Tex. Occ. Code § 453; Massage Therapist (Department of State Health Services) Tex. Occ. Code § 455; Midwife (Midwifery Board) Tex. Occ. Code § 203; Funeral Director (Texas Funeral Service Commission) Tex. Occ. Code § 651; Veterinarian (State Board of Veterinary Medical Examiners) Tex. Occ. Code § 801; Licensed Vocational Nurse (LVN) Tex. Occ. Code § 301; Real Estate Broker Tex. Occ. Code § 1101; Chiropractor (Texas Board of Chiropractic Examiners) Tex. Occ. Code § 201; 6

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Dietitian (Texas State Board of Examiners of Dietitians) Tex. Occ. Code § 701; Court Reporter (Court Reporters Certification Board) National Court Reporters Association Code of Professional Ethics; Law enforcement officer (Commission on Law Enforcement Officer Standards and Education) Tex. Occ. Code § 1701; Commercial Applicator License (pesticide applicator) (Agriculture Code § 76.108); School Bus Driver (Education Code § 22.084) and (Transportation Code § 521.022). Most grounds for professional discipline in the above professions include: Violating Rules of Professional Conduct Felony conviction Any criminal offense involving fraud or dishonesty Malpractice Practicing under influence of alcohol or drugs (or dependency) Untreated mental health concerns Almost every type of employment that could be considered a career or profession will involve a professional license. For minimum wage jobs, contract employment, and other types of unskilled labor, there are other screening tools that result in unforeseen consequences for a conviction. 3.

Crimes of Moral Turpitude In many instances, before a conviction will be used to deprive one of a particular right or privilege, it must qualify as a felony or crime of moral turpitude. Most criminal background checks are looking for crimes of moral turpitude as a litmus test for employability. Convictions for crimes of moral turpitude can affect a person’s ability to be licensed, obtain security clearances, and be employed. Also, Rule 609 Tex. Rules of Evid. allows the use of convictions for felonies and crimes of moral turpitude for impeachment of a witness. Moral turpitude is defined as: a. The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita; b. Conduct that is base, vile, or depraved; and c. Something that is inherently immoral or dishonest. See Ludwig v. State, 969 S.W.2d 22, 28 (TEX.APP. – Forth Worth 1998, pet. ref’d). d. Anything done knowingly contrary to justice, honest, principle, or good morals. For example, whether a particular crime involves moral turpitude for a lawyer is to be determined by a consideration of the nature of the offense as it bears on the attorney’s moral fitness to continue in the practice of law. Muniz v. State, 575 S.W.2d 408, 411(TEX.APP. – Corpus Christi 1978). What follows is a list of crimes that have been defined as being ones of moral turpitude and those that have not: Crimes involving moral turpitude Prostitution involves moral turpitude. Holgin v. State, 480 S.W.2d 405 (TEX.CRIM.APP. 1972) Theft is a crime of moral turpitude. Benshaw v. State, 88 S.W.2d 495 (1935). Swindling involves moral turpitude. Sherman v. State, 62 S.W.2d 146 (1933). Making a False Report is a crime of moral turpitude. Lape v. State, 893 S.W.2d 949, 958 (TEX.APP. – Houston [14th Dist.] 1994, pet ref’d). Assault by a man against a woman is a crime of moral turpitude. Hardeman v. State, 868 S.W.2d 404, 405 (TEX.APP. – Austin 1993, pet. dism’d). Indecent Exposure is a crime of moral turpitude because “by his intent to sexually arouse either himself or another, acts upon motives of baseness, vileness, and depravity.” Polk v. State, 865 S.W.2d 627 (TEX.APP. – Fort Worth 1993). Bigamy by a lawyer is a crime of moral turpitude, not by non-lawyer. Ruhe v. State Bar, 1994 TEX.APP. Lexis 3948, 1994 WL 649395 (TEX.APP.—Dallas 1994) (unreported) 7

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Failure to Identify is a crime of moral turpitude. Lape v. State, 893 S.W.2d 949, 958 (TEX.APP. – Houston [14th Dist.] 1994, pet. ref’d). Delivery of a Simulated Controlled Substance is a crime of moral turpitude. United States v. Ekpin, 214 F. Supp. 2d 707, 714-715 (U.S. Dist., 2002). A conviction for the misdemeanor offense of violation of a protective order will be considered a crime of moral turpitude when the underlying, uncharged offense is one of family violence or the direct threat of family violence. Polk v. State, 865 S.W.2d 627, 630 (TEX APP. – Fort Worth 1993). Failure To Stop And Render Aid (sometimes) Tate v. State Bar of Texas, 920 S. W. 2d 727 (TEX. APP. Houston [1st Dist.] 1996, writ denied). Failure to Appear (Bail Jumping) Lopez v. State, 990 S.W.2d 770, 779 (Tex. App. - Austin 1999). Crimes that do not involve moral turpitude Issuance of a bad check is not a crime of moral turpitude unless it was done with intent to defraud. Dallas County Bail Bond Board v. Danny Mason, 773 S.W.2d 586 (TEX.APP. – Dallas, 1989). Caveat: Even though this is not considered a crime of moral turpitude, many employers will automatically deny employment because this statute is under the “Fraud” section of the Penal Code. Criminally negligent homicide is not a crime of moral turpitude. Arnold v. State, 36 S.W.3d 542, 546-547 (TEX.APP. – Tyler 2000). Driving While Intoxicated is not a crime of moral turpitude. Stephens v. State, 417 S.W.2d 286 (TEX.CRIM.APP. 1967). Misdemeanor marijuana possession is not crime of moral turpitude. Hernandez v. State, 976 S.W.2d 753, 756 (TEX.APP. – Houston [1st Dist.], pet denied, 980 S.W.2d 652 (TEX.CRIM.APP. 1998). Unlawfully carrying weapon is not crime of moral turpitude. Thomas v. State, 482 S.W.2d 218, 219 (TEX.CRIM.APP. 1972). Resisting arrest does not involve moral turpitude. Williams v. State, 449 S.W.2d 264, 265 (TEX.CRIM.APP. 1970). Criminal Mischief does not involve moral turpitude. Gonzalez v. State, 648 S.W.2d 740, 742 (TEX.APP. – Beaumont 1983, no pet.). Criminal Trespass does not involve moral turpitude. Hutson v. State, 843 S.W.2d 106, 107 (TEX.APP. – Texarkana 1992, no pet.). Use of abusive language to police officer does not involve moral turpitude. Hartford Accident & Indem. Co. v. Williams, 516 S.W.2d 425, 428 (TEX.CIV.APP. – Amarillo 1974, writ ref’d n.r.e.). Assault of a man by a woman is unclear; there has been no reported case which has ruled on it. However, there seems to be a presumption that is not a crime of moral turpitude. Two unreported cases from the Court of Appeals in Houston reference the issue, but ultimately decided the appeals on other grounds. Gomez v. State, 2005 WL 3159163, 2 (Tex. Ct. App. –Houston, 2005); see Medley v. State, 2008 WL 920342 (Tex. Ct. App. --Houston 2008). Common gambling and misdemeanor gambling offenses are not crimes involving moral turpitude: § 47.02(a) (gambling); § 47.03 (a) (gambling promotion); §47.04(a) (keeping a gambling place). See Matter of G-, 1 I&N Dec. 59 (BIA 1941) (misdemeanor offense of being a “common gambler” under New York law is not a crime involving moral turpitude); Matter of S-, 9 I&N Dec. 688 (BIA 1962) (offenses of gambling and owning and operating a gambling establishment under New York law is not a crime involving moral turpitude); Matter of Gaglioti, 10 I&N Dec. 719 (BIA 1964) (offense of establishing a gambling place under Pennsylvania law not a crime involving moral turpitude). However two Texas gambling offenses might constitute a crime of moral turpitude because they contain an element of intent to further gambling. See § 47.05 (communicating gambling information and § 47.06 (possession of gambling devices, equipment or paraphernalia) TEX. PEN. CODE B.

Loss of Funding and Assistance A criminal conviction can result in the loss of funding in two main ways: ineligibility for or revocation of education funding, and ineligibility for or revocation of federal assistance programs. 8

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Education Funding Several forms of educational funding are unavailable to those convicted of certain offenses: a. Basic federal education grants are unavailable to those who are incarcerated in federal or state penal institutions. See The Violent Crime Control and Law Enforcement Act of 1994, Pub.L.No. 103-322, 20411, 108 Stat. 1796(1994). b. Students who have been convicted of “any offense under any Federal or State law involving the possession or sale of a controlled substance” can become temporarily or permanently ineligible for federal loans or grants, under the Drug Free Student Loans Act of 1998, 20 USC 1091(r), 2002. That statute contains a table outlining the length of ineligibility, ranging from a one-year period for a first possession offense to an indefinite period for a third possession, or second sale, offense. US Senator Cory Booker introduced a bill in the 116th Congress which would repeal subsection (r). Senate Bill 1346 was referred to the Committee on Health, Education, Labor and Pensions. As of the date of this article no action has been taken by the committee on this matter. There are, however, some limitations and rehabilitation exceptions to the current statute. i. Convictions that have been dismissed or expunged, and juvenile court delinquency findings, do not disqualify a candidate, per 20 USC § 1091(r)(2)(B). ii. The disqualification ends if the conviction is reversed. iii. A student whose eligibility has been suspended may resume eligibility before the end of the eligibility period if the student successfully completes a drug rehabilitation program that is approved by the Secretary of Education and includes at least two unannounced drug tests. c. State education funding can also be lost as a result of criminal convictions. 1.

Pursuant to Texas Education Code § 54.633(b), one who commits a felony or Class A misdemeanor, or an offense under Chapter 481 of the Health and Safety Code (the Texas Controlled Substances Act), forfeits a prepaid higher education scholarship. This includes the offenses of possession of marijuana, possession or delivery of drug paraphernalia, and falsification of drug test results.

One is not eligible to receive a TEXAS grant or TEXAS II grant for two years after completing a sentence for a felony or an offense under Chapter 481 of the Health and Safety Code, per Education Code §§ 56.304. Moreover, Education Code §§ 56.305 render one ineligible to continue to receive a TEXAS grant or a TEXAS II grant if already receiving one when convicted. This apparently would include Class B and C misdemeanors under the Texas Controlled Substance Act. 3. Many schools have adopted “zero tolerance” policies which cover any type of criminal offense, not only those offenses that occur on campus or at sponsored activities. Thus, any criminal conviction or deferred adjudication may be grounds for disciplinary action or loss of school benefits. Most universities have disciplinary codes that allow for denial of degrees and expulsion for violations of criminal statutes. For example see Institutional Rules on Student Services and Activities, Chapter II, Student Discipline and Conduct, University of Texas (2020-21); http://catalog.utexas.edu/generalinformation/appendices/appendix-c/student-discipline-and-conduct.

2. Social Security Benefits for Prisoners 42 USC § 402 (x)(1)(A) sets out specific limitations on benefits from the Social Security Administration, generally for any person incarcerated for more than thirty (30) days as a result of a conviction or revocation of probation, supervised release or parole. However, it often depends on the “type” of social security benefits one is receiving. Once released from the penal institution, one can reapply for reinstatement of benefits by contacting the Social Security Administration and providing documentation demonstrating the release from the institution. See http://www.ssa.gov/pubs/10133.html#a0=3. Interestingly, a prisoner’s Medicare benefits continue for Medicare Part A (hospital insurance), but cease for Medicare Part B (medical insurance).

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3. Food Stamps and other Federally Funded Assistance Programs Narcotics convictions can result in the loss of federal assistance in four ways: a. Federal law imposes a lifetime ban on food stamps and federally funded public assistance for drug felons unless a state elects otherwise under 21 USC § 862(a), (a)(1)(a). b. Federal law imposes mandatory ineligibility for federal health care benefits for those convicted of distribution offenses under 42 USC § 1320a-7(a)(4). There does not appear to be any exceptions. However, § 1320a-7(f) and (g) provide for appeals and applications for early termination. c. Federal grants, licenses contracts, and other benefits are restricted as to drug offenders under 21 USC § 862. i. Section (a) provides that, in the discretion of the court, individuals convicted of a first federal or state drug distribution offense may be rendered ineligible for all federal benefits for up to five years after conviction, and second offenders for up to ten years; third offenders are permanently ineligible as a mandatory sanction. ii. Under section (b), in the discretion of the court, individuals convicted of a first federal or state drug possession offense may be rendered ineligible for all federal benefits for up to one year, and second offenders for up to five years; and third offenders are mandatorily ineligible permanently. Section (b) sanctions may be waived if a person declares himself an addict and undergoes treatment, or is declared rehabilitated. b. Federal housing policies allow for the exclusion of drug offenders from federally subsidized or funded housing, per 42 USC § 1437(l). In fact, drug related activity alone may result in eviction from public housing, even in the absence of a conviction. Indeed, the existence of an illegal drug user in a household will cause the entire household to be evicted and barred from public housing under See 42 USC § 1437(l). For a thorough discussion of the effect of criminal convictions on federal benefits, see General Accounting Office, Report to Congressional Requesters, Drug Offenders: Various Factors May Limit the Impacts of Federal Laws That Provide for Denial of Selected Benefits (September 2005). 4.

Medicaid Providers

In order to receive reimbursement for services from Medicaid, all providers must clear a criminal background check. This would include any hospital, clinic, doctor, or other professional seeking reimbursement for services provided to a Medicaid patient. The Texas Office of Inspector General (OIG) for the Health and Human Services Commission conducts the background checks of all owners, directors, and managing employees, as well as individual providers. As enumerated by 1 TAC § 371.1011, if the background check reveals any of the following conduct or convictions, the entity and its providers may not be eligible to participate in the Medicaid program: a. b. c. d. e. f. g. h. i. j. k. l. m. n. o.

Criminal homicide; Kidnapping and false imprisonment; Indecency with a child; Sexual assault; Aggravated assault; Injury to a child, elderly individual, or disabled individual; Abandoning or endangering a child; Aiding suicide; Agreement to abduct from custody; Sale or purchase of a child; Arson; Robbery; Aggravated robbery; Theft; Fraud; 10

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p. q. r. s. t.

Money laundering; Insurance fraud; Bribery and corrupt influence; Perjury and other falsifications; Engaging in organized criminal activity;

Federal Offenses: a. b. c. d. e. f. g. h.

Racketeer Influenced and Corrupt Organizations Act; Mail fraud; Wire fraud; Insurance fraud; Medicare fraud; Medicaid fraud; Tampering with a government document; Violation of Federal False Claims Act

Similarly, a person or entity may be subject to administrative actions and sanctions for engaging in conduct similar to those listed above. See 1 TEX. ADMIN. CODE § 371.166. An individual provider is also banned for convictions for aiding and abetting any of the above listed offenses or for conspiracies to commit any of the above offenses, or for a conviction under the laws of another state, which prohibits the conduct described in the above listed offenses. Comparable to the professional license, there is no significance to receiving a deferred adjudication or even a pretrial diversion program. The Texas Administrative Code defines conviction as including any individual or entity that has entered into participation in a first offender, deferred adjudication, or other program or arrangement where judgment of conviction has been withheld. See 1 TEX. ADMIN. CODE § 371.1607 (18). C.

Asset Forfeiture Asset forfeiture is a possibility in both state and federal courts, especially in narcotics cases. Both civil and criminal forfeiture statutes vary widely by jurisdiction, but are often very broad, applying not just to cash and automobiles, but homes and businesses as well. 1. In U. S. v. Bentancourt, 422 F.3d 240 (5th Cir. 2005), the defendant’s interest in a five million dollar lottery win was forfeited because he could not show he made money except by dealing cocaine. 2. DWI felons can have their vehicles forfeited. See, One (1) 1992 Chevrolet Pk v. State, 2015 Tex. App. Lexis 5296; 3. Controlled substance violations, see One 1995 Dodge Pickup v. State, 119 S.W. 3d 306 (Tex. App- - Waco 2003, no pet.) Real property can be seized and forfeited, see Real Prop. V. State, 230 SW 3d 476 (2007). (defendant manufacturing in a drug free zone, Tex. Health and Safety Code § 481.134 (b) (1) and Tex. Code of Crim Proc. Art. 59.01). Romero v. State, 927 S.W. 632 (1996). D. LIENS The United States may enforce a judgment imposing a fine in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law.” 18 U.S.C. § 3613(a). Enforcement may be made against “all property or rights to property of the person fined.” Id. The United States may also enter a money judgment for restitution due a non-federal agency and enforce its right to seek restitution by imposing a “super lien” (treated the same as a federal tax lien) against a defendant’s property or rights to property. See 18 U.S.C. § 3613(c). Liens imposed to enforce federal criminal fines and applicable restitution order are not dischargeable in bankruptcy. 18 U.S.C. § 3613(e).

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Criminal Conviction with Order of Restitution a Bar to Defenses in Civil Suit Article 42.037 TEX. CODE. CRIM. PROC. sets out the Court’s authority to order restitution in any criminal case. The good part of 42.037 is that any restitution ordered and paid in a criminal case can be used as a set off or reduction in a federal or state civil proceeding. See 42.037 §(f)(1)(2). The problem, however, arises in § (l) wherein it states: “Conviction of a defendant for an offense involving the act giving rise to restitution under this article estops the defendant from denying the essential allegations of that offense in any subsequent federal civil proceeding or state civil proceeding brought by the victim, to the extent consistent with state law.” As criminal lawyers, we have always thought that a plea of nolo contendere would bar any use of the plea in the civil case. Specifically, Article 27.02 TEX. CODE CRIM. PROC. states as much: “A plea of nolo contendere, the legal effect of which shall be the same as that of a guilty, except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” See also Hudson v. United States, 272 U.S. 451 (1926) where Justice Stone opined that the rule of law has never been questioned, that the implied confession, as contrasted to the express confession, does not stop the defendant to plead or prove his innocence in a civil action.” Additionally, it appears from the plain reading of section (l) that it does not apply to a deferred adjudication order of restitution because it simply refers to convictions. Other issues include the definition of “essential allegations of the offense.” Does that mean the language of the indictment or of the statute? Clearly, it is difficult to reconcile these two statutes. 1 II. RESTRICTIONS ON RIGHTS AND PRIVILEGES AND RESTORATION OF RIGHTS AND PRIVILEGES Perhaps the most significant collateral consequence of a criminal conviction is the potential restriction of various rights and privileges of the offender. Although there are many such potential restrictions, this section focuses on the following: restrictions on firearm ownership; temporary or permanent loss of one’s driver’s license; loss of one’s passport; loss of certain civil rights; loss of child custody; and mandatory sex offender registration. The Collateral Consequences Resource Center, http;/ccresourcecenter.org, provides among other resources a state-bystate guide on the loss and restoration of civil rights. (http://ccresourcecenter.org/restoration/). Notably absent from this list are immigration consequences, which are beyond the scope of this paper. “Immigration law can be complex, and it is a legal specialty of its own.” Padilla v. Kentucky, 559 U.S.356, 369 (2010). All attorneys should consult with an immigration attorney when handling a criminal matter with immigration consequences, A.

Possession of Firearms Both state and federal law restrict the possession of firearms for certain convictions. For instance, Texas law prohibits a convicted felon from possessing a firearm with certain exceptions. Tex. Penal Code § 46.04. Therefore, one that has been convicted of any felony, whether placed on community supervision or not, violates both state and federal law if he/she possesses a firearm unless they have been discharged from probation with an order setting aside the conviction and releasing them from all penalties and disabilities pursuant to Art. 42A.701(f) T EX. CODE CRIM. PROC. Although under this section it is clear they are not in violation of Texas law, it is not so settled under federal law and other states. 1. State Law: It is important to recognize the impact that an order discharging a person from probation (community supervision) has on an individual’s right to possess a firearm both from a federal and state perspective. Pursuant to Art. 42A.701(f) TEX. CODE CRIM. PROC., after a defendant has satisfactorily completed one-third of the original community supervision or two years, whichever is less, the court may reduce the term of community supervision and discharge the defendant. If the court does so it may set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the complaint, information or indictment, who shall thereafter be released from all penalties and disabilities. However, § (g) prohibits the discharge in certain offenses. (DWI related, 1

The author wishes to acknowledge and thank Vee Perini of Dallas for pointing out this rather obscure provision.

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sexual offenses and any offense listed in 42A.054 (formerly 3(g)).. See Art. 42A.701 (g). If a defendant receives an “early discharge order” pursuant to Art. 42A, then he is not subject to the restrictions of §46.04(a) Tex. Penal Code – felon in possession offense. On the other hand, if one only completes probation and the court does not enter an Art. 42A discharge order, then it can be argued that the defendant’s civil rights have not been restored and he is subject to both the federal and state restrictions regarding felons in possession of weapons. See Cuellar v. State, 70 S.W.3d815 (TEX. CRIM. APP. – 2002) Also, 46.04(b) TEX. PENAL CODE makes it a class A misdemeanor for a person convicted of a misdemeanor family violence assault (22.01 TEX. PENAL CODE) to possess a firearm before the fifth anniversary of the later of: (1) the release from confinement or (2) the date of discharge from probation. It is questionable whether an Art. 42A TEX. CODE CRIM. PROC. discharge would be a defense to prosecution under this section since the statute specifically prohibits possession until five years after release from community supervision. Whether or not one placed on deferred adjudication community supervision violates Texas law if in possession of a firearm is an unsettled question. In 2009, the Texas Court of Criminal Appeals denied petitioner’s post-conviction writ (11.07 TEX. CODE CRIM.PROC.) to set aside his plea of guilty to Unlawful Possession of a Firearm (46.02 TEX. PENAL CODE). The court in dicta stated “whether the Unlawful Possession of Firearm statute applies to a person who is, or has been, on deferred-adjudication community supervision is not clear.” Ex Parte Gregory Lynn Smith, 296 S.W. 3d 78 (Tex. Crim. App. 2009). The court went on to list as an example another statute that treats deferred adjudication similar to a “conviction” such as the concealed handgun statute 411.1711 Tex. Gov’t Code. The Court concluded by stating “[w]hether a person who is on deferred adjudication has been ‘convicted’ as that term is used in the Unlawful Possession of Firearm statute need not be resolved today.” Id at 81. It is this author’s opinion that this case cannot be reconciled with Cuellar cited above and had this been anything other than a guilty plea, the outcome would be different. However, until the law is settled, careful consideration should be given when advising clients of the potential consequences of deferred adjudication. Additionally, a conviction will affect a person’s ability to obtain a concealed handgun license. T EX. GOV. CODE § 411.172 et seq. Tune v. Department of Public Safety previously provided the definition of convicted used in this area. See Tune v. Department of Public Safety, 23 S. W. 3d 358 (Tex.2000). However, Texas Department of Public Safety v. Jones held in April of 2015 that the definition of a conviction has expanded since Tune, and that the definition under Tune has been superseded by TEX. GOV. CODE § 411.171(4). See Texas Department of Public Safety v. Jones, 460 S.W.3d 258, 263 (Tex. App. – Amarillo 2015 n.w.h.) (holding a deferred adjudication that has been “set aside” cannot serve as a basis to deny an applicant a concealed handgun permit). Note, however, that there is no provision in the Tex. Code of Crim. Proc. to “set aside” a deferred adjudication. Despite this, the District Judge in Jones did so, but the Court did not address this issue. Texas law allows a convicted felon to possess a gun at his/her residence after five years has passed since the release from confinement or community supervision, parole or mandatory supervision, whichever date is later. TEX. PENAL CODE 46.04. However, Texas rules do not necessarily control federal laws. See U.S. v. Daugherty, 264 F3d 513 (5th Cir. 2001). (But see federal section 2.c. below). 2.

Federal law: Federal restrictions may be even more restrictive. a. Federal law bans the possession, shipping, receiving, or transporting of a firearm or ammunition by one who is convicted of an offense with a maximum punishment of more than one year in prison. 18 USC § 922(g), (n). Moreover, one cannot acquire firearms or ammunition, nor travel with them while under indictment for such an offense. A person is under indictment if they have been placed on deferred adjudication pursuant to Art. 42.12(5) TEX. CODE CRIM. PROC. because their indictment is still technically pending. b. A defendant who has been convicted of a misdemeanor crime of domestic violence is prohibited from possessing, shipping, receiving, or transporting a firearm. 18 USC § 922(g)(9). c. Interestingly, state law does affect federal restrictions: If a felon has had his civil rights restored by the 13

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convicting jurisdiction, and the felon is not expressly deprived of the right to possess a firearm elsewhere under state law, he can legally possess a gun. Under the Texas Penal Code, a person convicted of a felony must wait until five years after release from confinement to possess a firearm. T EX. PENAL CODE § 46.04. In 1986, Congress enacted a statute that modified an earlier Supreme Court decision, Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 103 S. Ct. 986, 74 L. Ed. 2d 845 (1983), that held that federal law determined what constitutes a conviction for felon in possession purposes. The current statute now reads, “[w]hat constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had his civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights provides that the person may not ship, transport, possess, or receive firearms” 18 USC § 921 (a)(20). See, e.g., United States v. Dupaquier, 74 F.3d 615, 617 (5th Cir.1996). In Caron v. United States, the Supreme Court held, however, that if a state law has any exception to the restoration of rights regarding firearms, then the felony conviction prohibits one from possessing, transporting etc. firearms. 524 U.S. 308, 118 S. Ct. 2007 141 L. Ed. 2d 303 (1998). Such was the holding in a 5th Circuit case where the court upheld a conviction of a §922(g)(1) violation (felon in possession), wherein the defendant had successfully completed his Texas probation, but had not had his conviction set aside and had not received a full restoration of his rights under Art. 42A.701(f) Tex. Code Crim. Proc. See United States v. Daugherty, 264 F. 3d 513 (5th Cir.-2001). Daugherty’s discharge order had merely recited that his probation term had expired and had been satisfactorily fulfilled and that he was discharged from probation. Daugherty at 514 FN 1. Thus, his conviction for being a felon in possession was affirmed. B.

Driver’s License Restrictions Texas imposes a wide variety of suspensions upon final conviction for various offenses. Below are numerous examples and periods of suspension: 1. Graffiti § 28.08 Tex. Penal Code - discretionary one year suspension for conviction or probation T EX. TRANSP. CODE § 521.320; 2. Racing § 545.420(a) TEX. TRANSP. CODE -mandatory one year suspension. If under 18 must perform 10 hours of community supervision and can have an occupational license only for attendance to school. T EX. TRANSP. CODE § 521.350. 3. Acquiring motor fuel without payment - theft, § 31.03 T EX. PENAL CODE - coupled with an affirmative finding pursuant to Art. 42.019 TEX. CODE CRIM. PROC. - automatic 180 suspension first offense, 1 year for second offense. TEX. TRANSP. CODE § 521.349; 4. Furnishing alcohol to a minor § 106.06, Alcohol Beverage Code - automatic 180 day 1 year second offense. TEX. TRANSP. CODE § 521.351;

suspension first offense,

5. Possession of fake driver’s license, allowing another to use one’s driver’s license, possessing more than one driver’s license, falsifying information on an application for a driver’s license, or use of a driver’s license to represent one is over 21 when they are not, § 521.451 and § 521.453 T EX. TRANSP. CODE - mandatory but duration determined by the court, suspension for not less than 90 days nor more than 1 year. T EX. TRANSP. CODE § 521.346; 6. Fake license plate or Safety inspection certificate, § 502.409 (a)(4) and § 548.603(a)(1) T EX. TRANSP. CODE, automatic 180 days suspension. TEX. TRANSP. CODE § 521.4366; 7. Criminally negligent homicide (with a motor vehicle) § 19.05, Evading arrest or detention § 38.04, Intoxication assault § 49.07, DWI with a child passenger § 49.045, Intoxication manslaughter § 49.08 T EX. PENAL CODE, and any state jail felony with a motor vehicle offense involving personal injury or death - automatic one year suspension. TEX. TRANSP. CODE § 521.341; 14

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

8. Tampering with a government record - motor vehicle registration or license plate § 37.10 -automatic two year suspension. TEX. TRANSP. CODE § 521.3466;

T EX. PENAL CODE

9. DWI (minor under 21) § 49.04 TEX. PENAL CODE - automatic 1 year suspension § 521.344 TEX. TRANSP. CODE. However, compare Art. 42A.408n)(1) TEX. CODE CRIM. PROC. - 90 days up to one year if set by the court. Note: DPS will automatically suspend for one year, unless the defendant is required not to operate a motor vehicle unless it is equipped with an ignition interlock device; TEX. TRANSP. CODE § 521.342; 10. Purchase or attempt to purchase, possession or consumption of alcohol by a minor § 106.071 Alcohol Beverage Code - automatic 30 days suspension first offense, 60 days second offense and 180 days third offense. A prior order of deferred disposition is considered a conviction for enhancement purposes. § 106.071(f)(2); However, a deferred disposition on the first offense does not require suspension. T EX. ALCO. BEV. § 11.61; 11. Drug offenses under the Texas Controlled Substance Act - automatic 180 days minimum suspension and must complete a drug education program before the suspension is lifted. §521.372 T EX. TRANSP. CODE. For offenders under the age of 21, the period of suspension ranges from 180 days to 1 year and the court determines whether a drug education program will be required. T EX. TRANSP. CODE § 521.342; 12. A minor’s license can be suspended on receipt by the Texas Department of Public Safety of an order to suspend issued by a juvenile court under § 54.042 of the Texas Family Code or a court under § 106.115 of the Alcoholic Beverage Code. Finally, a juvenile held in contempt of court can also lose his license. § 521.3451 TEX. TRANSP. CODE. Additionally, convictions for most of the offenses under the Alcoholic Beverage Code will result in suspensions for minors. TEX. ALCO. BEV. § 11.61; 13. Multiple traffic violations can result in suspension, § 521.292 and 37 T EX. ADMIN. CODE § 15.82; 14. Offenses involving commercial driver’s license, see TEX. TRANSP. CODE § 522.081 and 37 TEX. ADMIN. CODE § 15.82; 15. Certain Sex Offenses, § 521.348 – If required to register pursuant to Chapter 62 T EX. CODE CRIM. PROC., and they fail to apply for a renewal as required by Art. 62.060 TEX. CODE CRIM. PROC., their license is revoked until at such time as they come into compliance. Despite its length, this list is necessarily incomplete. For a comprehensive list of suspensions, see Ken Anderson & John Bradley, Texas Sentencing § 9(b), Fourth Edition, LEXIS Law Pub. C. Notifications in Domestic Violence Cases Article 5.05 (e) of the TEX. CODE CRIM. PROC. requires any peace officer who investigates a family violence incident or who responds to a disturbance call that may involve family violence, to provide information concerning the incident or disturbance to the bureau of identifications and records of the Department of Public Safety. The bureau shall prescribe the form and the nature of the information required to be reported to the bureau. Article 42.0183 requires the clerk of the court to provide written notice of “conviction or deferred adjudication…” to any state or federal military unit to which the defendant is assigned “with the intent that the commanding officer will be notified…”. See also Article 42.23 TEX. CODE CRIM. PROC. setting forth reporting requirements for both the prosecutor and the court in family violence matters to any family law court considering child custody issues. D. Loss of Passport Privileges The federal government retains broad discretion in denying and revoking the passports of convicted offenders. 1.

An offender may not receive a passport if he crossed an international boundary or used the passport in committing the offense, per 22 USC § 2714(a)(1), (b)(1) (2000). 15

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

An issued passport may be revoked, even for misdemeanor drug offenses, if the government finds that the offense should give rise to such disqualification, per 22 USC § 2714 (b) (2) (2000).

Civil Rights and Privileges Criminal convictions can result in the loss of several civil rights under Texas law. See Exhibit B for a chart used by the Travis County Community Supervision department at orientation for probationers. 1.

Voting A convicted felon may not vote in a public election. A conviction is considered final whether the sentence is imposed or suspended, as long as it is not on appeal. T EX. ELECTION CODE § 11.002(4), §11.002(4) (A) and (B) state that this ineligibility lasts until the offender has been pardoned, or has “fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court.” A person on felony deferred adjudication is therefore eligible to vote.

Public Office A defendant convicted of a felony may not run for, or be appointed to, public elective office in Texas. Probation counts as conviction. The offender is barred for life unless pardoned “or otherwise released from the resulting disabilities.” See TEX. ELECTION CODE § 141.001(4). 3.

Jury Service A person convicted of, or currently charged with a misdemeanor theft or any felony may not serve on a petit jury. This also applies to one who is serving deferred adjudication. § 62.102(7) T EX. GOV’T. CODE and Art. 35.15 TEX. CODE OF CRIM. PROC. These same restrictions apply to service on a grand jury. TEX. CODE OF CRIM. PROC. Art. 19.08. Most Texas courts and the Court of Criminal Appeals have held that article 42A.701(f), Tex. Code of Crim. Proc. operated to restore to a convicted felon his ability to sit on a jury once he successfully completed the terms of his probation. Walker v. State, 645 S.W.2d 294, 295 (Tex.Crim. App.1983); Payton v. State, 572 S.W.2d 677, 678-79 (Tex.Crim.App.1978) (on rehearing); Smith v. State, 859 S.W.2d 463, 464 (Tex. App.-Fort Worth 1993, pet. ref'd); Day v. State, 784 S.W.2d 955, 956 (Tex.App.-Fort Worth 1990, no pet.). The Fort Worth Court of Appeals, however, in Glenn, sitting in its civil capacity, held the contrary. R.R.E. v. Glenn, 884 S.W.2d 189, 193 (Tex.App.-Fort Worth 1994, writ denied The Glenn court held that under the Texas Constitution, only the executive branch of the government is provided the authority to return to a convicted felon the civil rights taken away from him as a result of his conviction. Id.; see TEX. CONST. art. IV, § 11(b) (1876, amended 1989). Therefore, held the court, the legislature is constrained from enacting any statutes which permit either itself or the judiciary to return a convicted felon his civil rights. Id. See also Dempsey v. Beaumont Hosp. Inc., 38 S.W.3d 287 (Tex App.-Beaumont 2001) cf. McLendon v. Texas Department of Public Safety, 985 S.W.2d 571 (Tex. App. - Waco 1998). See, Hoffman v. State, 922 S.W.2d 663 (Tex. App. Waco 1996, pet. ref’d) and Volkswagen of America, Inc. v. Ramirez, 79 S.W.3d 113 (Tex. App.- Corpus Christi 2002) (reversed on other grounds) (wherein the Glenn analysis was rejected in a civil case and the juror was qualified to serve). Executor of Will A person who has been convicted of a felony under Texas law or federal law may not serve as an executor of a will, unless they have been pardoned or their civil rights have been restored. TEX. ESTATES CODE § 304.003.

5. Restoration of Rights & Privileges (42A.701 TEX. CODE CRIM. PROC.) Once a person has been convicted of a felony in Texas numerous restrictions apply to that individual even after successful completion of community supervision, sometimes for life. Professors Dix and Dawson have recognized that the consequences of a dismissal of a charge pursuant to Art. 42A.701(f) T EX. CODE CRIM. PROC. (early discharge) are quite limited. They explain “that §20 (now § f) operates to restore civil rights-to vote, serve on juries, and hold public office-that were lost by the conviction or accusation of crime. However, the dismissal is not an expunction and does not preclude other collateral consequences of a criminal conviction.” George E. Dix and Robert O. Dawson, Texas Practice: Criminal Practice and Procedures § 40.136 (2d ed. 2001)

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

In a dissent in Cuellar v. State, 70 S.W.3d 815, 834, (Tex. Crim. App.-2002), Judge Keasler summarizes the lingering impacts a successfully completed probation has on an individual, “[s]ignificantly, regardless of the language of § 20 (now § f) removing all penalties and disabilities, there are a number of statutes that impose various restrictions on a person who has successfully completed his community supervision. Specifically, this person still cannot change his name until two years after his community supervision has expired, Tex. Family Code § 45.103, cannot practice law until after five years…Tex. R. Govern. Bar Adm’n IV, Rule IV(d)(2), cannot work at a bingo establishment until ten years after…Tex. Occ. Code 2001.105(a)(6), cannot obtain a lottery license until ten years…Tex. Gov’t Code § 466.155(a)(1)(A), and cannot be a corrections officer until ten years after his community supervision has expired. Tex. Occ. Code §1701.312(b), 1702.371. These time-limited restrictions are not the only limitations. For the rest of his life he cannot be a bail bond surety or a peace officer… and cannot obtain a license to carry a concealed handgun (citations omitted). He may be denied a license as a speech pathologist or audiologist. (citations omitted) No person granted probation for a DWI, BWI, Flying While Intoxicated, Operating an Amusement Ride While Intoxicated, DWI with Child passenger or Intoxication assault or manslaughter is eligible for an early discharge from that probation. See Article 42A.701 TEX. CODE CRIM. PROC. In addition, this section makes it clear that DWI probations are not eligible for the judicial clemency afforded other offenses, when community supervision is completed. F.

Divorce and Child Custody Convictions of family violence, including both physical and sexual abuse, can have serious consequences in regard to divorce and child custody issues. “Family violence” is a term of art, defined by Texas Family Code § 71.004. Article 42.23 TEX. CODE CRIM. PROC. requires the prosecutor to notify any other court in which the family violence criminal defendant may be in child custody litigation. Upon conviction or deferred adjudication, the court shall notify the family law court with jurisdiction over the matter. If the court is considering sole or joint conservatorship, and there is evidence of abusive physical force by a party against the party’s spouse; child’s parent; or any person younger than 18 years of age, and it was within a 2 year period before the suit was filed or during its pendency, then the court shall consider the evidence, per Texas Family Code § 153.004(a). If there is evidence of a history or pattern of physical or sexual abuse by one parent directed at another parent, a spouse, or a child, then the court may not appoint joint managing conservatorship, per Texas Family Code § 153.004(b). Likewise, the court may not appoint joint managing conservators (JMCs) if one parent became pregnant due to a sexual assault by the other parent, regardless of the prior relationship of the parents, under TFC § 153.004(b). If the court is considering access to a child and it has been shown by a preponderance of the evidence that there is a history or pattern of family violence during the two years preceding the date of filing the lawsuit, then the court may not allow a parent to have access to the child unless the court finds that: access would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and the court renders a possession order to protect the safety and well-being of the child and any other person who has been the victim of family violence committed by the parent, per TFC § 153.004(d). A finding of a history of family violence removes the rebuttable presumption that the appointment of parents as JMCs is in the best interest of the child, per TFC § 153.131. If a conservator has been convicted of, or placed on deferred adjudication for, indecency with a child, sexual assault, or aggravated sexual assault, then this is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing order regarding conservatorship or possession and access to a child, per TFC § 156.104(a).

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

Sex Offender Registration State and federal law both impose significant restrictions and requirements on sex offenders.

People convicted of certain sexual offenses may be required to register, per T EX. CODE CRIM. PROC. Art. 62.

2. The Adam Walsh Act (42 USCS § 16901) states, among other things, that anyone who must register as a sex offender gives up any right of electronic privacy, requiring them to make their “computer, other electronic communication or data storage devices or media” available to police examination without a warrant at any time. It also creates a national sex offender registry to be run by the FBI, with “relevant information” on each person. It funds a series of pilot programs, lasting up to three years, to tag sex offenders with tracking devices that would let them be monitored in real time. The devices include a GPS downlink (to provide exact coordinates), a cellular uplink (to transmit the coordinates to the police), and two-way voice communications. Additionally, the duty to register is imposed for life for most sex offenses. 3.

The Texas Legislature enacted Art. 42.017(1) TEX. CODE CRIM. PROC. in 2011, which exempts sex offender registration in cases where the defendant was not more than four years older than the victim, and the victim was at least 15 years of age.

In Hall v. State, No. 06-12-00091-CR, 2012 (Tex. App. - Texarkana, February 6, 2013), LEXIS 1057, pet. denied June 12, 2013, the Texarkana Court of Appeals held that a defendant’s conviction for failure to register as a sex offender in 2010 should be set aside because in 1988 he received an early discharge from probation pursuant to Art. 42.12 § (7) (now 42A.701(f) TEX. CODE CRIM. PROC. The court held that such an order amounted to “judicial clemency” and since Hall’s conviction was set aside prior to the enactment of the sex offender registration act in 1991, he could not be required to register in 2010. The Texarkana court applying the principles pronounced in Cuellar v. State, 70 S.W.3d 815 (Tex. Ct. Crim. App. 2002), held that “once the trial court judge signed the discharge order, the felony conviction disappears, except in circumstances not applicable to our case.” Hall at 820. In 1997, the Legislature amended Art. 42.12 § 20 (currently 42A.701) T EX. CODE CRIM. PROC. to specifically exclude defendants convicted of a sex offense who were required to register from being able to receive this “judicial clemency”.

H. TRAVEL RESTRICTIONS: Canada will deny entry into the country for anyone who has been convicted of a DWI, including a 1st offense misdemeanor DWI committed in the United States. In order to enter Canada, the person must apply for a certificate of rehabilitation, which has a 5 year waiting period after the completion of the sentence. If the person does not qualify for the certificate because of the waiting period, they can apply for special permission to enter Canada, which requires advance approval and payment of fees. For an excellent article on DWI and DWI related convictions see Betty Blackwell’s article, Punishment Issues and Collateral Consequences In DWI Cases, 44th Annual Advance Criminal Law course 2018. III. INDIRECT CRIMINAL CONSEQUENCES Two major indirect criminal consequences of convictions are conditions attached to probation and enhanced punishment for subsequent offenses. A. Conditions of Probation 1. Courts have broad power to impose conditions upon probationers. A court may impose any condition of probation that is reasonable and designed to protect or restore the community, protect or restore the victim, or punish, rehabilitate, or reform the probationer. Every criminal practitioner knows that conditions may include requirement that the probationer not consume alcohol during the period of probation, that one attend drug or alcohol treatment programs, perform community service, or attend any programs that the court deems appropriate. They may also, however, include a prohibition against using a computer or accessing the internet 18

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

for the period of probation. See TEX. CODE CRIM. PROC. Art. 42.12 § 11(a); United States v. Crandon, 173 F.3d 122 (3d Cir. 1999). One extreme example of a condition of probation was discussed in Bennett v. State, 665 S.E.2d 365 (Ga. App. 2008). In Bennett, the court indicated that until Georgia law was changed in 2006, “a defendant convicted of aggravated child molestation [could be ordered] to undergo chemical castration as a special condition of probation.” Bennett, 665 S.E.2d at 386. Similarly, a Louisiana case holds that certain offenders are not eligible for probation or parole “unless certain conditions, such as sterilization, are imposed . . . ” State v. Dagenhart, 908 So.2d 1237, 1242 (La. App. 2d Cir. 2005). A local Texas judge recently ordered a probationer not to procreate during her term of community supervision. Fortuitously, the probationer was pregnant at the time of her sentencing! 2. There are, however, some limitations on the conditions a court may impose. A Texas case holds that courts have the power to “impose conditions of probation which are reasonably related to the treatment of the probationer and the protection of the general public”. Fielder v. State, 811 S.W.2d 131, 134 n.2 (Tex. Crim. App. 1991). To be found invalid, a condition of community supervision must: (1) have no relationship to the crime; (2) relate to conduct that is not in itself criminal; and (3) forbid or require conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of probation. Belt v. State, 127 S.W.2d 277, 281 (Tex. App. – Fort Worth 2004). In Texas, however, it is important to note that a defendant “must complain at trial to conditions he finds objectionable” in order to preserve the error on appeal. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). B. Punishment Enhancement A criminal conviction can have a serious impact on an offender’s punishment, both for the current offense and for future offenses. Unsurprisingly, the circumstances and features of a criminal act can profoundly affect the offender’s punishment for that act; what is surprising is the extent to which this is true: 1. Current offense a.

Allegations that the offense occurred in a drug free zone can result in a significantly increased sentence, and this sentence may not be run concurrently with punishment for a conviction under any other criminal statute. See Texas Health and Safety Code § 481.134.

Defendants convicted of certain offenses (including felonies in which a deadly weapon was used or displayed) are not eligible for mandatory supervision (parole), per T EX. GOV. CODE § 508.149.

2. Provisions such as these can add years of actual jail criminal convictions can affect future punishment:

time spent in prison. There are several ways in which prior

When faced with a range of punishments for a given offense, a judge may consider an offender’s past criminal acts when deciding the severity of his sentence. This is true even if the offender was not convicted of the past criminal act, provided the judge finds sufficient evidence to believe that he is guilty. T EX. CODE CRIM. PROC. Art. 37.07 § 3(a)(1).

Some statutory schemes allow increased punishment or create entirely new offenses for repeat offenders.

A conviction, deferred adjudication, or successfully-completed probation for misdemeanor assault family violence can be used to enhance a subsequent family violence offense to a third degree felony. T EX. PEN. CODE §22.01(b)(2). 19

UNFORESEEN, UNINTENDED, AND UNCONSCIONABLE CONSEQUENCES OF ARREST AND CONVICTIONS__________

A previous sexual assault can be used to enhance a subsequent sexual assault so that the punishment is a mandatory life sentence. TEX. PEN. CODE §12.42.

A state conviction can sometimes subject a defendant to a federal sentence, and the sentences may be stacked with respect to both state and federal time. In the federal system, the existence of a prior state or federal conviction may subject a client to a new federal offense for which he may otherwise have been ineligible, or may escalate the sentence faced in federal court for subsequent charges under the federal sentencing guidelines. See U.S.S.G. Section 4A1.1 (Criminal History Category). Note, however, that United States v. Booker, 543 U.S. 220 (2005) made the federal sentencing guidelines advisory rather than mandatory. Subsequent cases have made clear that federal judges must place the offender and the offense on the sentencing guideline grid, but then have discretion to deviate from the guidelines (in either direction) as much as they deem appropriate. These results may not seem especially surprising or unjust, but they do illustrate the momentous consequences of criminal convictions. CONCLUSION Criminal convictions and criminal allegations carry with them a wide range of collateral consequences, including indirect legal ramifications, financial penalties, and loss of rights and privileges. Although some of these consequences are common and intuitive, many are quite surprising. As noted earlier in this paper, offenders are often not informed of the full range of potential consequences of their convictions and, indeed, their imposition is often at the government’s discretion. This lack of information, combined with uneven enforcement, means that most criminal defendants and many lawyers do not have a realistic and comprehensive idea of the consequences of a potential conviction or criminal allegation. Therefore, a significant duty should be imposed upon lawyers to inform clients about the myriad possible consequences, direct and indirect, of a criminal conviction.

DOES THE CONVICTION DIRECTLY RELATE TO THE OCCUPATION?

PROFESSION AIR CONDITIONING AND REFRIGERATION CONTRACTORS REGISTERED ACCESSIBILITY SPECIALISTS AUCTIONEERS BARBERS BOILER INSPECTORS COMBATIVE SPORTS COSMETOLOGISTS COURT INTERPRETERS ELECTRICIANS ELEVATOR INSPECTORS INDUSTRIALIZED HOUSING AND BUILDINGS Personnel Employment Services POLYGRAPH EXAMINERS AND TRAINEES PREPAID LEGAL SERVICES PROPERTY TAX CONSULTANTS PROPERTY TAX APPRAISERS PROPERTY TAX ASSESSOR COLLECTORS SERVICE CONTRACT PROVIDERS STAFF LEASING SERVICES TALENT AGENCIES TEMPORARY COMMON WORKER EMPLOYER TOW TRUCK OPERATORS AND PERMIT HOLDERS USED AUTOMOTIVE PARTS RECYCLERS AND EMPLOYEES VEHICLE PROTECTION PRODUCT WARRANTORS VEHICLE STORAGE FACILITY OWNERS AND EMPLOYEES WATER WELL DRILLERS WATER WELL PUMP INSTALLERS WEATHER MODIFICATION

DESCRIPTION OF THE CRIMINAL OFFENSE

1 X X X

2 X X X X

X X

3 X X X X

X X X X X X X X X X X X X X X X X X X X X X

X X X X X X X X X X X X X X X X X X X X X X X X X X X

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X

X X X X

X X X

KEY: DESCRIPTION OF THE CRIMINAL OFFENSE

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Crimes involving fraud or deceptive trade practices Crimes involving prohibited sexual conduct or involving children as victims Crimes against property such as theft or burglary Crimes against the person such as homicide, kidnapping and assault Crimes involving bribery breach of fiduciary duty Crimes involving the receipt, sale or other distribution of illegal goods or substances, including stolen property, illegal weapons, drugs, drug paraphernalia, and the like Crimes involving illegal manufacture or delivery of a controlled substance Misrepresentation Extortion Bribery Crimes involving misconduct in the participation in or promotion of combative sports events Crimes involving fraud or breach of a fiduciary duty would disqualify a promoter, manager, referee, judge, timekeeper or matchmaker Perjury Crimes involving promotion of prostitution. Crimes involving breach of computer security crimes of other falsification such as tampering with physical evidence or governmental record other corrupt influence such as obstruction, retaliation, or tampering with a witness Crimes involving abuse of office such as civil rights violations, official oppression, abuse of official capacity, or misuse of official information Crimes involving illegal use or possession of controlled substances

20 21 Crimes obstructing governmental operations such as failure to report sexual assault of a child or failure to 22 23 24 25 26 27

report a felony Crimes involving stealing from an employer tax fraud Crimes involving insurance fraud

Crimes involving labor or employment, including harmful employment and theft of service Crimes involving racketeering, organized crime, or criminal influence Crimes involving intoxication and operating a motor vehicle, including driving while intoxicated, intoxication assault, and intoxication manslaughter Crimes involving environmental law violations

28 29 Criminal Trespass

In addition to the specific crimes listed below, multiple violations of any criminal statute should always be reviewed, for any license type. Multiple violations may reflect a pattern of behavior that renders the applicant unfit for the license.

CIVIL RIGHTS Being placed on probation, pretrial diversion, or bond supervision may affect your civil rights as follows:

THE RIGHT TO VOTE Misdemeanor Probation Deferred Felony Probation Regular or Shock Felony Probation

No Effect No Effect Cannot vote until discharged from sentence.

THE RIGHT TO HOLD PUBLIC OFFICE Misdemeanor Probation Deferred Felony Probation Regular or Shock Felony Probation Felony DWI, Involuntary Manslaughter, Intoxication Manslaughter, or SJF

No Effect No Effect Only when discharged and rights restored. Cannot hold public office.

RIGHT TO SERVE ON JURY Misdemeanor Probation Felony Deferred and Regular Probation Felony DWI, Involuntary Manslaughter, Intoxication Manslaughter, or SJF

No effect Exception: misdemeanor Theft, including a deferred, cannot serve until rights restored. Effected until court sets aside accusation and dismisses charges. Cannot serve.

RIGHT TO KEEP AND BEAR ARMS Misdemeanor Probation Deferred Felony Probation Regular or Shock Felony Probation

No effect unless charge is domestic violence. May possess firearm, ammunition, and hunt, but cannot buy additional firearms, ammunition, or carry across state lines. May not possess, ship, transport, or receive a firearm or ammunition.

Texas Criminal Defense Lawyers Association

Sex & Violence

September 9-10, 2021

Topic: Mental Health & Mitigation Speaker:

Alyse Ferguson

2100 Bloomdale Rd Ste 20209 McKinney, TX 75071-8318 (214) 491-4805 Phone (214) 491-4825 Fax aferguson@co.collin.tx.us email

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

MENTAL HEALTH ISSUES IN SEX CASES Capital cases and other serious crimes commonly involve a client with mental health issues. Many issues may be encountered in development of the mental health background of your client. Prisons are the new asylums as state hospitals are overflowing and there are no beds for those suffering a mental crisis. According to the Urban Institute “An estimated 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent of jail inmates have a mental health problem.” i Studies have shown and we as defense lawyers know it to be true that “In the criminal justice system sexually based offenses are considered especially heinous” ( CBS SVU series.) Coverage of sex crimes commonly utilizes “highly sensational wording and content” to evoke fear and anger in the public and harsher sentences for the sex offender population Ducat, L., Thomas, S., and Blood, W., 2009.) Lifetime registration and stricter laws follow sex offenders their entire lives and there is very little differentiation in punishment regardless of the offense. One study by Mears, Mancini, Gertz, and Bratton (2008) found overwhelming support for sex offender registries (92%) and residency restrictions (76%) with 46% agreeing that incarceration is the best response even in non‐contact crimes like indecent exposure. Prosecutors offer opening and closing statements about the monsters under the bed and the community is encouraged to fear every person charged with a sex crime. A stigma already surrounds the offense and now it is coupled with mental illness of the offender which possesses its own stigma. Prosecutors leverage the stigma of mental illness by presenting the defendant as dangerous due to hallucinations and other symptoms of psychosis, as well as the defendant’s failure to take medication, and the lack of approprate resources in the community. Persons suffering from mental illness such as schizophrenia or bipolar disorder commonly exhibit anosognosia, a condition in which a person with a disability is cognitively unaware of having the condition due to an underlying physical condition. This contributes to the defendant’s refusal to take medication, since they do not believe they have the illness and therefore do not believe there is a need for medication. A shortage of mental health beds, 1

shortage of psychiatrists, laws that fail to provide alternatives and appropriate care, as well as in adequate treatment for mental health concerns are all highlighted by the prosecution to explain why treatment can neithert be successful in the community nor provide for the safety of the community. Mass shootings and other such events generally highlight the shortcomings of our mental health system and escalate the public’s fear of those who suffer from these debilitating illnesses. There is a high prevalence of mental illness in the sex offender population, which further compunds a lawyer’s need for effective mitigation efforts in these cases. Mental illness may be up to seven times more likely in sex cases than in the general population (Chen, Chen & Hung, 2016.) Research in the correlation of sex crimes and mental illness is sparse. Only one direct study was identified. However, research has suggested that serious mental illness such as psychotic disorders often mitigate culpability in public opinion (Barnett, Brodsky and Price, 2007), yet this may not extend to the sex offender population (Rogers and Ferguson, 2010). Sex offenders exhibit a wide range of mental illness symtoms. There is a general perception that offenders suffering psychosis are especially dangerous and evidence of mental illness may be construed as particulary aggravating (Berkman 1989.) 70% of Respondents in one study belived that those with schizophrenia or alcohol/drug problems were dangerous and 80 % believed they were unpredictable. Mental illness may negatively influence a defendant’s behavior, contributing to the crime committed (Roseman v. Dep’t of Treasury, 1997.) Berkman (1989) explored mental illness as an aggravating factor pointing to one case in which the mental illness directly contributed to a death penalty sentence. The jury believed the mental illness rendered the defendant unredeamably dangerous. Conversly Barnett, Brodsky, and Davis (2004) researched ten particular mitigating factors such as sexual abuse as a child, being under the infuence of drugs or alcohol, hospitalization for mental illness, head injury, and church attendance. Their study found schizophrenia and psychiatric hospitalization were two of the top mitigating factors. Thus it suggests at least serious mental illness can be a recognized mitigating factor.

Research is limited as it relates to the idea of mental illness mitigation in sex offenses, but one thing is true; both mental illness and sex offenses carry a stigma that make mitigation difficult. Much like the mitigation in a sex crime case sans the mental health issue the jury’s concern in a mental health case is safety, safety of children and safety of the community. Cases involving a serious offense and a serious mental illness, which I have observed through the last twelve years, have hinged on the jury’s fear. Fear, which the prosecutor uses to drive home the necessity for incarceration. Yes this was a one time incident, yes the client was off his medication, yes there is no prior history, but…..we just can’t be sure he will take his medication. We just can’t be sure the system won’t fail again and what if …… The truth is that our mental health system is failing. In Texas we have nine state mental hospitals. These hospitals have 2385 beds. While there are also private psychiatric hospitals as well, the numbers are still critically low. Texas Health and Safety Code requires a serious risk of harm to meet the involuntary hospitalization requirement. Thus a person may be deteriorating for an extended time before hospitalization is required, if ever. Hospitalization then only continues for so long as the person continues to meet the criteria. Very often this is 1‐5 days. While the person may be stabilized and released, the short period of time does not ensure the medication regimen is back on track and the person will voluntarily continue a postive course of treatment. These factors make it incredibly difficult to develop a plan to ease the jury’s fears, but a plan for ongoing mental health care is a critical component of the mitigation. Attorneys often hire an expert such as a psychologist or psychitatrist or other forensic expert and leave development of the mental health evidence to the expert. Attorneys will request full psychologicals or a neuropsych evaluation with no real understanding of what these exams include or whether the exam will produce the information needed. Further this is often done very early in a case, before all discovery and evidence has been reviewed. Counsel should consider the benefit of narrowing the scope of the evaluation, gathering records prior to requesting a particular evaluation, and then determining which type of expert may be most appropriate. Valenca, et al. found the systematic psychiatric evaluation of persons who commit sexual offenses contributes to the the intervention strategy, prevention 3

and evaluation of the specific motivations, related to the manifestation of violent sexual behavior as well as allows characterization of groups or situations of risk. Schizophrenia, bipolar and Intellectual Developmental Disorder are the mental disorders and developmental disorders most frequently related to the perpetration of sexual offense. A thorough review of the bio/psycho/social history will assist counsel in determining the type of expert needed, what type of testing is needed and develop the working theory of the case. However a client actively in need of psychiatric treatment, one who is floridly psychotic, or one who may not be competent necessitate action very early on and likely prior to the bio/psycho/social history completion. The bio/psycho/social history investigation may indicate other types of experts are necessary such as: 1) Medical Expert: Many medical conditions can cause psychiatric symptoms thus it may also be important to consult with a medical doctor to rule out a medical disorder. 2) Mental Health Consultant: A mental health consultant can assist the attorney in understanding mental health conditions and symptoms, as well as to understand data and assist in theory development. Attorneys wil need to become familiar with the signs and symptoms of the client’s particular mental illness. In these cases a mitigation specialist may be more beneficial than a law enforcement investigator. Texas Appleseed offers a great deal of informaton on representing clients with mental illness in the handbook, Mental Illness, Your Client and the Criminal Law: a Handbook for Attorneys Who Represent Persons With Mental Illness, “ Good mental health experts can provide testimony at the punishment phase to helpt the jury understand hwo your client is, how he or she experiences the world, and why your client behaves as he or she does. You must show the relationship between the illness and the disability. Specific Mitigation Strategies are detailed in Appleseed’s Mental Illness, Your Client and the Criminal Law: A Handbook for Attorneys who Represent Persons with Mental Illness. 4

A Mitigation Expert will be able to: 

Conduct a through bio‐psycho‐social history investigation;



Interview your client;



Gather medical records; and



Determine what cultural, environmental, and genetic circumstancesmight have factored into your client’s case.

The Mitigation Expert will look to your clients history for: 

Mental disorders;



Cognitive disabilities;



Neurological impairments;



Physical sexual or psychological development issues;



Substance abuse issues;and



Other influences on the development of client’s personality and behavior

Experts you may need For testimony: 

Psychiatrist with forensic specialization: Diagnosis, treatment, and medication for mental disorders and medical issues;



Psychologist as testifying expert: testimony related to personality or behavioral disorder, intellectual or cognitive functioning, or administering and interpreting tests;



Neuropsychiatrist or neuropsychologist:for brain injuries or problems with memory, language, or orientation functions.

Work with your experts to ensure inquiry into the client’s mental health history. The expert should interview outside sources and request records identified in your review. The comprehensive exam includes: 

Appropriate brain scans



Neuropsychological testing



Diagnostic testing 5



Physical examination



Neurological examination



Psychiatric and mental status examination

Mitigation begins in jury selection to identify juror feelings related to mental illness. The incidence of mental illness are prevalent enough that a number of jurors in the jury pool are likely to have a close family member with a mental health diagnosis. Their feelings and understanding may range from empathy and understanding to fear and anger. This is an opportunity to educate jurors on symptoms and behaviors as well. An accused has the right to question jurors about their attitudes about a potential insanity or lack of capacity defense, including questions about psychiatry books read, contacts with psychiatrists, members of their family receiving treatment and inquire about their feeligs on insanity. U.S. v Robinson 475 F2d 376 (D.C. Cir. 1973, U.S. Jackson, 542F.2d 403 (7th Cir. 1976). A veniremember is challengeable for cause for having a bias or prejudice in favor or against a defendant under Tex. Code of Crim. Proc. Ann. Art 35.16(a)(8). The venire members potential bias or prejudice towared a defendant that suffers from mental illness can be investigated by the defense. During the guilt/innocence phase of trial other witnesses may be used to open the discussion on mental health issues that will be addressed in mitigation. One example is Police officer witness. They are required to have mental health training in at least a 40 hour course on Crisis Intervention. Course outlines are available online at the Texas Commission on Law Enforcement Standards Website. Addtionally, law enforcement departments have policy’s and procedures on the officers interactions with the mentally ill, which offer further opportunities to address mental health mitigating factors. Mitigating mental health concerns will be an additional challenge to a a complex and uphill defense. You must be sure to have obtained all available records and evaluations, so that you can make the most informed choices as to the theory, defenses, and mitigation evidence. The main consideration will be deomonstrating that providing mental health treatment will provide for community safety. 6

BIBLIOGRAPHY Texasappleseed.org (2015), https://www.texasappleseed.org/sites/default/files/Mental_Health_Handbook_Printed2015.pdf (last visited Aug 20, 2021).

Michelle E. Barnett, Stanley L. Brodsky & Cali Manning Davis, When mitigation evidence makes a difference: effects of psychological mitigating evidence on sentencing decisions in capital trials, 22 Behavioral Sciences & the Law 751-770 (2004). Yung Y. Chen, Chiao-Yun Chen & Daisy L. Hung, Assessment of psychiatric disorders among sex offenders: Prevalence and associations with criminal history, 26 Criminal Behaviour and Mental Health 30-37 (2014). Lauren Ducat, Stuart Thomas & Warwick Blood, Sensationalising sex offenders and sexual recidivism: Impact of the Serious Sex Offender Monitoring Act 2005 on media reportage, 44 Australian Psychologist 156-165 (2009). Daniel P. Mears et al., Sex Crimes, Children, and Pornography, 54 Crime & Delinquency 532-559 (2007). Darrin L. Rogers & Christopher J. Ferguson, Punishment and Rehabilitation Attitudes toward Sex Offenders Versus Nonsexual Offenders, 20 Journal of Aggression, Maltreatment & Trauma 395-414 (2011).

Tex. Code of Crim. Proc. Ann. Art 35.16(a)(8). U.S. v Robinson 475 F2d 376 (D.C. Cir. 1973). U.S. Jackson, 542F.2d 403 (7th Cir. 1976). Martins Valença, Isabella Nascimento & Antonio Egidio Nardi, Relationship between sexual offences and mental and developmental disorders: a review, 40 Archives of Clinical Psychiatry (São Paulo) 97-104 (2013).

Texas Criminal Defense Lawyers Association

Sex & Violence September 9-10, 2021

Topic: Preservation of Error Speaker:

Allison Mathis 1201 Franklin, 13th Floor Houston, TX 77002 (832) 269-6050 Phone allison.mathis@pdo.hctx.net email

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

Preservation of Error Allison Mathis TCDLA: Sex and Violence Seminar Arlington, Texas September, 2021

There are two types of trial attorneys, I feel: trial attorneys who are doing their best to preserve error, and trial attorneys who are ineffective. If that sounds harsh, you are probably in the second category. But don’t worry, as a writ lawyer, I will tell you that we have all been ineffective, and this paper is here to help you move yourself from Category 2 to Category 1. Truthfully, I think most trial attorneys do care a lot about preserving error, but the problem is more that they don’t know how to do it and they struggle with being able to come up with what they need to come up with when they need to come up with it. Though that struggle is never entirely over (which is why we “practice” law, and don’t ever “perfect” it), here is a handy kit of case law and pointers to help you feel less at sea. The Basics: Tex R. App P. 33.1 governs preservation for appeal. The record must show that the objection "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex. R. App. P. 33.1(a)(1)(A). Rule 33.1 provides that in order to preserve a complaint for appellate review, a party must have presented to the trial court and obtained a ruling upon his timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context. Long v. State, 800 S.W.2d 545 (Tex.Crim.App. 1990). Stand up and Talk It Out: There are No Magic Words One young trial attorney of my acquaintance thought that all objections had to fit into a grid of typical objections. “I thought there were only about 10 objections you could use,” she said, “and you just had to fit in whatever you thought the problem was into one of the main objections.” Not so, in fact, the opposite is true. When you feel something is wrong, you need to get up right now and talk it out. To be timely, an objection must be lodged as soon as the party knows or should know that the error has occurred. Lackey, 364 S.W.3d at 843.

Defense counsel must object to inadmissible testimony, improper argument, or any claimed irregularity at the earliest possible opportunity and the failure to do so constitutes a waiver of the complaint. Mendez v. State, 138 S.W.3d 334 (Tex.Crim.App. 2004). A motion for mistrial based on a State’s witness alluding to extraneous offenses in violation of a motion in limine was not timely when it was not made until after the witness had testified about the extraneous offenses without objection. Griggs v. State, 213 S.W.3d 923 (Tex.Crim.App. 2007).

It doesn’t need to be some magical formula, or an algebraic equation. In fact, you should try to be as clear and plain-speaking as possible: “As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it ... [Appellate courts] should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.” Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992) (emphasis added). This is kind of like Jeopardy! If you watch the really competitive players, you notice that sometimes they buzz in before they actually know exactly what they’re going to say, trusting their sense of recognition and recall to kick in by the time they have to actually say the answer. This is the same thing with objections. Stand up, say, “Objection, Your Honor,” and if you’re not entirely sure what it is that’s wrong, ask for permission to approach, think while you shuffle your papers, and then talk it out. Of course, there may be strategic reasons you want the jury to hear your objection, or that you don’t want to approach. Generally, those objections are shorter and less complex and you know what you’re going to say before you stand up (for example “leading the witness.”). The important thing is that the COURT knows what you’re saying and is able to rule on it. “Rather than focus on the presence of magic language, a court should examine the record to determine whether the trial court understood the basis of a defendant’s [objection].” State v. Rousseau, 396 S.W.3d 550 (Tex.Crim.App. 2013). The generally acknowledged policy of requiring a specific objection is two-fold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Martinez v. State, 22 S.W.3d 504 (Tex.Crim.App. 2000). Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or to supply other testimony. Zillender v. State, 557 S.W.2d 515 (Tex.Crim.App. 1977). BE SPECIFIC IN YOUR OBJECTION and object EVERY time the State attempts to introduce evidence of an extraneous offense: Too general: “irrelevant,” “prejudicial,” “had nothing to do with the facts of the case.” Chatham v. State, 646 S.W.2d 512 (Tex.App.--Dallas 1983, pet ref’d). Sufficiently specific: Inherently prejudicial and raises the possibility that the jury will convict the accused because he or she is a criminal generally. Williams v. State, 662 S.W.2d 344 (Tex.Crim.App. 1983). Forces the accused to defend himself against charges of which he had no notice. Ford v. State, 484 S.W.2d 727 (Tex.Crim.App. 1972). Confuses the issues and increases the possibility that a jury will convict on insufficient evidence.

Except When There Are Magic Words: Specific Constitutionalization

If you can bring it back to the Constitution, you are going to get a more beneficial harm analysis on review, you are hopefully going to scare the trial court into listening to why this is a big deal, and you are winning major smart points with the jury/your client.

TRAP 44.2 Reversible Error in Criminal Cases. (a) Constitutional Error. --If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (b) Other Errors. --Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. “If we treated objections such as those made by Appellant as raising a due-process claim, a conviction or sentence could be completely overturned based on what appears to be an evidentiary ruling. The court needs to be presented with and have the chance to rule on the specific constitutional objection because it can have such heavy implications on appeal.” Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012). Clark is a pretty interesting case because the Appellant testified at trial and then didn’t like the way the prosecutor talked to him during cross examination. Id. at 334. Shocker. The prosecutor, to be fair, stood up, yelled, and pretty aggressively questioned him while holding a gun that was in evidence. That’s pretty bad. Defense counsel objected to badgering and argumentative questions, but didn’t constitutionalize them by saying, “HEY! This is a due process violation. This is impeding my client’s right to a fair trial.” But he didn’t.

Where trial court orders exclusion of members of the public from the courtroom, an objection that the ruling “is too broad to exclude the defendant’s wife and daughter” does not preserve error to the denial of the right to a public trial. Peyronel v. State, 465 S.W.3d 650 (Tex.Crim.App. 2015). Bring it back to the constitution! Where the defendant claimed that the State improperly destroyed evidence prior to trial but did not put the trial judge on notice that the Texas Constitution provides greater protection than the United States Constitution, this claim was not preserved for review. Pena v. State, 285 S.W.3d 459 (Tex.Crim.App. 2009). The court later held that the defendant had preserved a Brady claim in his motion for new trial because the issue was sufficiently clear from the record made at the motion for new trial hearing even though the word “Brady” was not specifically used in the motion. Pena v. State, 353 S.W.3d 797 (Tex.Crim.App. 2011). Keep going until you get overruled! After voicing a timely and specific objection, defense counsel must then pursue the matter to the point of securing an adverse conclusory ruling from the trial court. Tucker v. State, 990 S.W.2d 261 (Tex.Crim.App. 1999). This means asking for an instruction to disregard if the objection is sustained and moving for a mistrial if an instruction to disregard is given. Nethery v. State, 692 S.W.2d 686 (Tex.Crim.App. 1985). While the better practice is to obtain an express ruling, the trial court may implicitly rule on a motion. Gutierrez v. State, 36 S.W.3d 509 (Tex.Crim.App. 2001); see also Leal v. State, 469 S.W.3d 647 (Tex.App.– Houston [14th Dist.] 2015, pet. ref’d) (trial court implicitly overruled motion to suppress). Because an objection, instruction to disregard, and request for mistrial “seek judicial remedies of decreasing desirability for events of decreasing frequency, the traditional and preferred procedure for a party to voice its complaint has been to ask for them in sequence [but] this sequence is not essential to preserve complaints for appellate review. The essential requirement is a timely, specific request that the trial court refuses.” Young v. State, 137 S.W.3d 65 (Tex.Crim.App. 2004).

If you receive a curative instruction, you must press the trial court to an adverse ruling by moving for a mistrial, and the failure to do so will preclude appellate review of your complaint. Duran v. State, 505 S.W.2d 863 (Tex.Crim.App. 1974). The trial court may not prohibit counsel from preserving error by threatening him with contempt. Ruiz-Angeles v. State, 351 S.W.3d 489 (Tex.App.– Houston [14th Dist.] 2011, pet. ref’d). While I think it’s reasonably uncommon for judges to try to hold lawyers in contempt for preserving a record, the dialogue that goes on between the Court and defense counsel in Ruiz-Angeles starts out pretty familiar. THE COURT: Do we have everybody's strikes? MR. WATHEN: No. THE COURT: You will not approach again. Surrender your strikes to the Bailiff, and we will get this trial forward. Mr. Wathen, this is a Class C Misdemeanor. Turn in your strikes now. MR. WATHEN: I object. THE COURT: Get it down. MR. WATHEN: Will the Court not allow me to make the required Motion? THE COURT: The Court will not put up with anymore delaying strikes. MR. WATHEN: Object and move for a Mistrial. THE COURT: Give your strikes to the Bailiff now. MR. WATHEN: I need two moments to write them down. THE COURT: You were given a list of their names, so that would not be necessary. MR. WATHEN: Move for the Court to instruct the jurors to disregard all [**6] the Court's remarks. THE COURT: Turn over your strikes now. (Jurors chosen) MR. WATHEN: Renew my Motion for a Mistrial. Can I get a ruling on my Motion for a Mistria1? THE COURT: Motion is denied. Mr. Wathen, if you continue your dilatory tactics, I will hold you in Contempt. I will declare a Mistrial, but you will be held in Contempt. MR. WATHEN: May I renew my objection, Your Honor? THE COURT: Have a seat. Any objections to the panel? MR. WATHEN: Yes, Your Honor. May I approach? THE COURT: You can make your objection where you stand. MR. WATHEN: Defense objects that Defense is not allowed to make his legally required Motion for preemptory challenges. THE COURT: Denied.

Id. At 5. I think it’s important to notice that the defense attorney was really persistent here, and the appellate court thought so too, indicating that he had essentially preserved the record enough for appellate review even while being threatened with contempt. Id. I think that probably interactions like this happen more than we realize, but defense counsel is not persistent enough to push the judge into saying what they’re thinking- which is “quit wasting my time, your client is guilty and this doesn’t matter.” That’s actually what the court in Ruiz-Angeles ended up deciding, by the way, that the issue that defense was so desperately trying to preserve didn’t really matter anyway, but it was a fight worth picking, and it was important that he made the judge say the quiet part out loud. The lesson here is to keep pushing to a reasonable extent- don’t get thrown in jail, but make a record.

File Motions as Part of Error Preservation Practice It is always going to be easier to file a written motion than to make a spoken objection. I’d much rather have the time to sit, think, and reflect on what I’m saying than to just have to fly by the seat of my pants. That’s a big part of the reason we need to be filing specific limine motions ahead of trial.

The reason the State files limine motions in EVERY case is because they work. We need to do the same. A limine motion itself is necessary but not sufficient. The purpose of a motion in limine is to prevent particular matters from coming before the jury and is, in practice, a method of raising objection to an area of inquiry prior to the matter reaching the ears of the jury through a posed question, jury argument, or other means. It is wider in scope than the sustaining of an objection made after the objectionable matter has been expressed. Norman v. State, 523 S.W.2d 669 (Tex.Crim.App. 1975). Because of that, the granting of a pre-trial motion in limine will not by itself preserve error and for error to be preserved with regard to the subject matter of the motion in limine, so it is absolutely necessary that an objection be made at the time when the subject is raised during trial and an adverse ruling secured from the trial court. Martinez v. State, 98 S.W.3d 189 (Tex.Crim.App. 2003). Also file a speedy trial demand! I think that filing speedy trial demands should be routine in most cases (there are some, of course that strategy dictates we don’t actually want speedy trials on, but in the majority of cases, we need to be pushing for it- most of the time it is going to be harder for the State to get their stuff together than it is for us. Error preservation requirements apply to Sixth Amendment claims that the defendant has been denied her right to a speedy trial. Henson v. State, 407 S.W.3d 764 (Tex.Crim.App. 2013). And make the judge do some writing, too: Upon timely request by the losing party, the trial judge must provide explicit essential factual findings supporting the granting or denial of a motion to suppress. State v. Cullen, 32 S.W.3d 853 (Tex.Crim.App. 2000). “Essential findings” means that “the trial court must make findings of fact and conclusions of law adequate to provide an appellate court with a basis upon which to review the trial court’s application of the law to the facts.” State v. Copeland, 501 S.W.3d 610 (Tex.Crim.App. 2012). In the absence of such written findings, the appellate court will view the evidence in the light most favorable to the trial judge’s ruling and assume that it made all implicit factual findings that support its ruling so long as they are supported by the record. See Aguirre v. State, 402 S.W.3d 664, 667 (Tex.Crim.App. 2013)(Cochran, J., concurring in the refusal of discretionary review)(defense counsel’s failure to obtain findings of fact “sealed appellant’s fate on appeal.”). You can ask for findings on other rulings, you’re just not entitled to them. Some judges don’t know that.

Preserving error at a plea: Oh man, don’t be this guy. Moore entered into a plea agreement for 28 years on a drug charge. The judge accepted the plea and told him to come back later for sentencing. Then, when Moore failed to appear at sentencing, the judge decided it was an open plea now, and sentenced him to 40 years. Because he didn’t object or move to withdraw his guilty plea, the court let that stand. I know. I KNOW. See: Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009)

OFFER UP SOME PROOF: Changing gears, let’s assume you’re not objecting to the bad stuff the State is getting in, you’re trying to get some stuff in yourself. The State objects, the judge sustains the State’s objection. Now it’s time for you to put on the evidence anyway in an offer of proof. When you put on an offer of proof, this is kind of your second bite at the apple. Though what you’re doing is making a record for the appellate court to consider, the other thing you’re doing is helping the trial judge understand why you thought this was relevant evidence in the first place and trying to get her to change her mind. When the trial court excludes evidence, the party offering it shall have the absolute right at any time before the court’s charge is read to the jury, to be allowed to make an offer of proof in the form of a concise statement in the absence of the jury. Moosavi v. State, 711 S.W.2d 53 (Tex.Crim.App. 1986). Defense counsel is not limited to any one method of showing what the excluded testimony would have been, Gutierrez v. State, 764 S.W.2d 796 (Tex.Crim.App. 1989), and so long as the offer of proof puts the trial judge on notice as to what he is excluding, it is sufficient to preserve the matter for appellate review. Love v. State, 861 S.W.2d 899 (Tex.Crim.App. 1993); Williams v. State, 116 S.W.3d 788 (Tex.Crim.App. 2003). The trial court may not restrict defense counsel’s ability to make an offer of proof on relevancy or materiality grounds and where the accused is denied this right, the cause must be remanded to the trial court so that an unfettered offer of proof can be made. Spence v. State, 758 S.W.2d 597 (Tex.Crim.App. 1988 As the party offering the evidence, the defendant is not required to tell the trial court why his evidence is admissible, only that it is admissible. Cameron v. State, 241 S.W.3d 15 (Tex.Crim.App. 2007) (emphasis added). If testimony on your DIRECT EXAMINATION is restricted: Defense counsel must first object to the trial court’s exclusion of the proffered testimony and secure an adverse ruling from the court. Moosavi v. State, 711 S.W.2d 53 (Tex.Crim.App. 1986). Defense counsel must then make a concise offer of proof as to what the excluded evidence would have shown had it been admitted. Tatum v. State, 798 S.W.2d 569 (Tex.Crim.App. 1990). So long as the offer of proof fairly apprises the trial court as to the nature of the evidence it is excluding, the offer of proof is sufficient. Guiterrez v. State, 764 S.W.2d 796 (Tex.Crim.App. 1989).

If your questions for your CROSS EXAMINATION are restricted: After objecting to the trial court’s limitation and securing an adverse ruling from the court, defense counsel must make an offer of proof as to the questions he would have asked and the answers which he might have received. Koehler v. State, 679 S.W.2d 6 (Tex.Crim.App. 1984). It is not necessary for defense counsel to show that his cross-examination would have affirmatively established the facts he sought to prove. Hurd v. State, 725 S.W.2d 249 (Tex.Crim.App. 1987).

RUNNING OBJECTIONS In Goodman v. State, 701 S.W.2d 850 (Tex.Crim.App. 1985), the Court of Criminal Appeals held that a running objection did not preserve error on a matter referred to by any witness at any time during the course of the trial, a view later noted with approval by the El Paso

Court of Appeals in Mares v. State, 758 S.W.2d 932 (Tex.App.--El Paso 1988, pet ref’d). But in Moreno v. State, 755 S.W.2d 866 7 (Tex.Crim.App. 1988), the Court held that defense counsel’s running objection to this line of questioning was sufficient to preserve error. And in a footnote in Sattiewhite v. State, 786 S.W.2d 271 (Tex.Crim.App. 1989), the Court again held that defense counsel’s running objection was sufficient to preserve error when all the parties were aware of the nature of the testimony at issue. In Ethington v. State, 819 S.W.2d 854 (Tex.Crim.App. 1991), the Court held that a running objection is sufficient to preserve error so long as defense counsel takes pains to make sure that the running objection does not encompass too broad a reach of subject matter over too broad a time or over different witnesses. So what does that mean? You can make a running objection, but it doesn’t mean very much and you shouldn’t rely on it by itself. Think of it like a limine motion, kind of the framework but not the whole house. Even if you have initially preserved error after the prosecutor engages in misconduct, you must renew your objection if and when the prosecutor again engages in the same or similar argument or the error in the first instance will be waived. McMahon v. State, 582 S.W.2d 786 (Tex.Crim.App. 1978).

Special Bench Trial Considerations: I have practiced in a lot of jurisdictions where bench trials were much more common than they are here in Texas. I think that bench trials probably should be more common than they are in Texas, though of course there are a lot of strategic, case-specific exceptions to that. Still, in cases that involve things that jurors are squeamish about, judges are sometimes able to be less emotionally reactive and understand legal nuance. Sometimes. And in this time of COVID, I think bench trials are probably considerably better than a lot of the jury trial options. In a bench trial, strict timeliness of a complaint "may not be quite 'as crucial'" because a judge, in the capacity as legal arbiter, is presumed to be able to disregard those matters the judge deems to be inappropriate for the judge to consider in the separate role as fact-finder. Id. (quoting Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004)); see also Quick v. State, 557 S.W.3d 775, 787-88 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (noting that courts have been more lenient and flexible regarding error preservation in a bench trial because the timing of an objection does not matter if the trial court still has an opportunity to make [**12] a ruling on the objection, but a complaint about closing argument not made until a motion for new trial was untimely). Bell v. State, 566 S.W.3d 398, 405 (Tex. App. 2018).

Texas Criminal Defense Lawyers Association

Sex & Violence September 9-10, 2021

Topic: Forensic Science Commission/Sexual Assault Examinations/Understanding Injuries Speaker:

Mark Daniel 115 W 2nd St Ste 202 Fort Worth, TX 76102-3023 (817) 332-3822 Phone (817) 332-2763 Fax Mark.Daniel@markdaniellaw.com email markdaniellaw.com website

Nancy Downing, PhD 1359 TAMU | 8447 Riverside Parkway Houston1, TX 77807-3260 (979) 493-0157 Phone (979) 436-0098 Fax downing@tamu.edu email

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

8/18/2021

SEX AND VIOLENCE SEMINAR TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION ARLINGTON, TEXAS SEPTEMBER 2021 1

CREATED in 2005 FUNDED in 2007 ARTICLE 38.01 C.C.P.

TASK OF TEXAS FORENSIC SCIENCE COMMISSION

Texas Forensic Science Commission – tasked with ensuring the integrity and reliability of forensic science in Texas criminal courts.

Article 38.01 C.C.P.

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TEXAS FORENSIC SCIENCE COMMISSION COMPOSITION  Nine members appointed by the governor;  Two-year terms  Seven members must have expertise in the fields of

forensic science;

 One member a prosecuting attorney (TDCAA);  One member a defense attorney (TCDLA); Article 38.01 C.C.P.

TEXAS FORENSIC SCIENCE COMMISSION MEETINGS  Quarterly  Austin, Texas  At Tom Clark Building, Austin

(Supreme Court and CCA)

 Meetings are open to Public

TEXAS FORENSIC SCIENCE COMMISSION UNDER JUDICIAL BRANCH  Effective September 2017, the Texas Forensic Science

Commission came under the Office of Court Administration (OCA)  OCA is a state agency created under the Judicial Branch

 Government Code Ch. 72 in Title 2 (Judicial Branch)  Operates under the direction and supervision of the

Supreme Court

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TEXAS FORENSIC SCIENCE COMMISSION AND OPEN GOVERNMENT PROVISIONS  Texas Public Information Act (PIA).  The judiciary is not a “governmental body” under the PIA

(Sec. 552.003, Tex. Gov’t. Code).

 The PIA does not apply to records collected, assembled or

maintained by or for the judiciary (Sec. 552.0035, Tex. Gov’t. Code).

 Texas Open Meetings Act (TOMA) does not apply to TFSC

meetings.

 Internal policy adopting TOMA provisions passed in

September 2017.

TEXAS FORENSIC SCIENCE COMMISSION ACCESS TO JUDICIAL RECORDS (Rule 12.6)  Request in writing.  Open to the general public for inspection and copying

during regular business hours.

 Agency must respond as soon as practicable but not more

than 14 days of receipt of request.

 Send written notice, if record cannot be provided within 14

days, setting a reasonable date and time when documents will be provided, produced or made available.

 Must produce at a convenient location. 8

TEXAS FORENSIC SCIENCE COMMISSION OPEN RECORDS LIMITATION Information filed as part of an allegation of professional misconduct or professional negligence or that is obtained during an investigation of an allegation of professional misconduct or professional negligence is not subject to release under Chapter 552, Government Code, until the conclusion of an investigation by the Commission under Section 4. Article 38.01, Sec. 10 C.C.P. 9

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Publicly accessible database for TFSC materials including accreditations, applications, licensing, quality incidents, discipline, OSAC Standards, corrective actions, complaints and laboratory self disclosures launching in June 2021. Updated information will be readily available in September 2021. 10

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TEXAS FORENSIC SCIENCE COMMISSION STAFF AND CONTACT INFORMATION Staff: Lynn Garcia, General Counsel Leigh Savage, Associate General Counsel Kathryn Adams, Commission Coordinator Robert Smith, Associate General Counsel Contact Information:

Website: Email: Phone:

Stephen F. Austin Building 1700 North Congress, Suite 445 Austin, Texas 78201

fsc.texas.gov info@fsc.texas.gov 888-296-4232 15

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TEXAS FORENSIC SCIENCE COMMISSION GENERAL DUTIES 1.

Investigate allegations of negligence and misconduct in Texas crime laboratories.

Accreditation of crime laboratories.

Licensing of forensic analysts (began in January 2019).

Adopting administrative rules for admissibility of certain forensic analysis.

Note: The accreditation program in Texas did not begin until September 1, 2003. Laboratory accreditation was previously done by Texas DPS from 2003 to 2015. TFSC now accredits all Texas crime laboratories since 2015. 16

TEXAS FORENSIC SCIENCE COMMISSION STATUTORY DUTIES The Texas Forensic Science Commission shall: 1.

Develop and implement a reporting system through which a crime laboratory may report professional negligence or professional misconduct;

Require a crime laboratory that conducts forensic analyses to report professional negligence or professional misconduct to the TFSC.

Note: Commission investigations that assess negligence or misconduct must be limited to those allegations where the analysis occurred after September 1, 2003. Article 38.01 C.C.P.

DEFINITIONS PROFESSIONAL MISCONDUCT “Professional Misconduct” means the forensic analyst or crime laboratory, through a material act or omission deliberately failed to follow a standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the deliberate act or omission would substantially affect the integrity of the results of a forensic analysis. An act or omission was deliberate if the forensic analyst or crime laboratory was aware of and consciously disregarded an accepted standard of practice. Article 38.01 C.C.P.

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DEFINITIONS PROFESSIONAL NEGLIGENCE “Professional Negligence” means the forensic analyst or crime laboratory, through a material act or omission, negligently failed to follow the standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the negligent act or omission would substantially affect the integrity of the results of a forensic analysis. An act or omission was negligent if the forensic analyst or crime laboratory should have been but was not aware of an accepted standard of practice. Article 38.01 C.C.P.

TEXAS FORENSIC SCIENCE COMMISSION STATUTORY DUTIES The Texas Forensic Science Commission shall: Investigate, in a timely manner, any allegation of professional negligence or professional misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by a crime laboratory.  In 2011, the TFSC was directed by the Texas Attorney

General that it lacked the authority to opine on the evidence admitted in cases before the creation of the TFSC in 2005. Tx. Atty. Gen. Op. No. GA-0866. Article 38.01 C.C.P.

TEXAS FORENSIC SCIENCE COMMISSION STATUTORY DUTIES (cont.) (Accredited Labs) If the TFSC conducts an investigation of a crime laboratory that is accredited pursuant to an allegation of professional negligence or professional misconduct involving an accredited field of forensic science, the investigation: 1. Must include the preparation of a written report that identifies and describes the methods and procedures used to identify: the alleged negligence or misconduct; A. B. whether negligence or misconduct occurred; C. any corrective action required of the laboratory, facility, or entity; D. observations of the commission regarding the integrity and reliability of the forensic analysis conducted; E. best practices identified by the TFSC during the course of the investigation; and F. other recommendations that are relevant, as determined by the TFSC. Article 38.01, Sec. 4 C.C.P.

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TEXAS FORENSIC SCIENCE COMMISSION NO FINDINGS FOR CIVIL AND CRIMINAL CASES

The TFSC may not issue a finding related to the guilt or innocence of a party in an underlying civil or criminal trial involving conduct investigated by the TFSC.

Article 38.01, Sec. 4(g) C.C.P.

TEXAS FORENSIC SCIENCE COMMISSION COMPLAINTS AND DISCLOSURES COMMITTEE

 MARK G. DANIEL  DR. JASMINE DRAKE  DR. MIKE COBLE

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LICENSING REQUIREMENT Effective January 1, 2019: A person may not act or offer to act as a forensic analyst unless the person holds a forensic analyst license. The TFSC may establish classifications of forensic analyst licenses if the TFSC determines that it is necessary to ensure the availability of properly trained and qualified forensic analysts to perform activities regulated by the TFSC. Article 38.01, Sec. 4-a, C.C.P. 26

DEFINITIONS FORENSIC ANALYST AND FORENSIC ANALYSIS  “Forensic Analyst” means a person who on behalf of a

crime laboratory accredited under this article technically reviews or performs a forensic analysis or draw conclusions from or interprets a forensic analysis for a court or crime laboratory. The term does not include a medical examiner or other forensic pathologist who is a licensed physician.

 “Forensic analysis” has the meaning assigned by

Article 38.35.

Article 38.01, Sec. 4-b, C.C.P. 27

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DEFINITION OF “FORENSIC ANALYSIS” 4. “Forensic Analysis” means a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action. The term includes an examination or test requested by a law enforcement agency, prosecutor, criminal suspect or defendant, or court. The term does not include: A. latent print examination; B. a test of a specimen of breath under Chapter 724, Transportation Code; C. digital evidence; D. an examination or test excluded by rule under Article 38.01; E. a presumptive test performed for the purpose of determining compliance with a term

or condition of community supervision or parole and conducted by or under contract with a community supervision and corrections department, the parole division of the Texas Department of Criminal Justice, or the Board of Pardons and Paroles; or

F. an expert examination or test conducted principally for the purpose of scientific

research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection of physical evidence to a criminal action.

Article 38.35 (a)(4) C.C.P. 28

LICENSING REQUIREMENT DOES NOT INCLUDE:  Latent fingerprint examination;  A test of a specimen of breath under Chapter 724, Transportation Code (Intoxilyzer);  Digital evidence;  An examination or test excluded by rule under Article 38.01, Code of Criminal Procedure;  A presumptive test performed for the purposes of determining compliance with a term or condition of community supervision or parole and conducted by or under contract with a community supervision and corrections department, the parole division of the Texas Department of Criminal Justice, or the Board of Pardons and Paroles; 29

LICENSING REQUIREMENT DOES NOT INCLUDE (cont.):  An expert examination or test conducted principally for the

purpose of scientific research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection of physical evidence to a criminal action;

 Forensic pathology – includes that portion of an autopsy

conducted by a medical examiner or other forensic pathologist who is a licensed physician;

 Sexual assault examination of a person  Forensic anthropology, entomology, or botany;  Environmental testing; 30

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LICENSING REQUIREMENT DOES NOT INCLUDE (cont.):  Traffic accident reconstruction;  Serial number restoration;  Polygraph examination;  Voice stress, voiceprint, or similar voice analysis;  Statement analysis;  Forensic odontology for purposes of human identification or age assessment, not to include bite mark comparison related to patterned injuries;  Testing and/or screening conducted for sexually transmitted diseases;  Fire scene investigation, including but not limited to cause and original determinations; 31

LICENSING REQUIREMENT DOES NOT INCLUDE (cont.):  Forensic photography;  Non-criminal paternity testing;  Non-criminal testing of human or nonhuman blood,

urine, or tissue; or

 Forensic psychology, including profiling, memory

analysis and other forms of forensic psychology.

LICENSING REQUIREMENT DOES INCLUDE: SEIZED DRUGS:  Qualitative determination;  Quantitative measurement;  Weight measurement;  Volume measurement;

TOXICOLOGY:  Qualitative determination;  Quantitative measurement; 33

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LICENSING REQUIREMENT DOES INCLUDE (cont.): FORENSIC BIOLOGY:  Collection;  DNA-STR;  DNA-YSTR;  DNA-Mitochondrial;  DNA-SNP;  Body fluid identification;  Relationship testing  Microbiology;  Individual characteristic database; 34

LICENSING REQUIREMENT DOES INCLUDE (cont.): FIREARMS/TOOLMARKS  Physical comparison;  Determination of functionally;  Length measurement;  Serial number restoration;  Trigger pull force measurement;  Qualitative chemical determination;  Distance determination; 35

LICENSING REQUIREMENT DOES INCLUDE (cont.): FIREARMS/TOOLMARKS (cont.)  Trigger pull force measurement;  Qualitative chemical determination;  Distance determination;  Ejection pattern determination;  Trajectory determination;  Product (make/model) determination;  Individual characteristic database; 36

8/18/2021

LICENSING REQUIREMENT DOES INCLUDE (cont.): FIREARMS/TOOLMARKS (cont.) An individual who acts solely in a supporting role to a firearm/toolmark analyst who conducts firearm function testing, evaluates firearm-related evidence for NIBIN suitability, and performs NIBIN entries following standard acquisition protocols established by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives shall be considered a firearm/toolmark technician and may apply for a Forensic Analyst License limited to firearm/toolmark technician; 37

LICENSING REQUIREMENT DOES INCLUDE (cont.): DOCUMENT EXAMINATION:  Document authentication;  Physical comparison;  Product determination;  Issue with availability to defense.

MATERIALS (TRACE):  Collection;  Physical determination;  Chemical determination; 38

LICENSING REQUIREMENT DOES INCLUDE (cont.): MATERIALS (TRACE) (cont.):  Physical/chemical comparison;  Product (make/model) determination;  Gunshot residue (collection and qualitative

determination);

 Footwear and tire tread; (collection, enhancement;

physical comparison and product (make/model) determination);

 Fire debris and explosives (qualitative determination). 39

8/18/2021

TEXAS FORENSIC COMMISSION DISCIPLINARY ACTION FOR LICENSEES When the TFSC determines that a license holder has committed professional misconduct or violated a rule or order of the TFSC, the TFSC may: 1.

Revoke or suspend the person’s license;

2. Refuse to renew the person’s license; or 3. Reprimand the license holder.

TEXAS FORENSIC COMMISSION DISCIPLINARY ACTION FOR LICENSEES (cont.) The TFSC may place on probation a person whose license is suspended. If a license suspension is probated, the TFSC may require the license holder to: 1.

Report regularly to the TFSC on matters that are the basis of the probation; or

2. Continue or review continuing professional

education until the license holder attains a degree of skill satisfactory to the TFSC in those areas that are the basis of the probation. 41

FIELDS OF FORENSIC SCIENCE (Not determined to be reliable)

 Forensic odontology bite mark comparison…Ex parte

Chaney…2016 TFSC recommendation it not be admitted

 Hair microscopy/microscopic hair analysis  Retrograde extrapolation  Arson investigation/Fire science

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RAPID DNA Rapid DNA Identification ANDE Corporation 266 Second Avenue Waltham Massachusetts 02451 (817) 705-4055 Ande.com    

Results in less than two (2) hours Entities performing the analysis are not accredited FBI Approval on June 4, 2018 Rapid DNA Act of 2017 (Orrin Hatch) 43

RAPID DNA ANALYSIS  In Texas – Ande instrument  Ideal goal: at booking station  Oral swab from arrestee inserted into instrument  Compares sample to database  Similar to fingerprint analysis.

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RAPID DNA LIMITATIONS AND ISSUES  Crime scene samples may be mixtures, contain low

quantity or degraded DNA;

 The FBI Director’s Quality Assurance Standards for

Forensic DNA Testing Laboratories requires quantitation of forensic samples;  There are currently no approved expert systems for crime scene samples;  Law enforcement collecting crime scene samples do not have the education, training or experience necessary to assess the crime scene evidence and determine the type of testing to achieve the optimal results. 46

RAPID DNA REALITY  Instrument company markets for all investigative use  Rapid DNA analysis is not controlled by accredited

labs

 Rapid DNA analysis becomes a law enforcement

database with no restrictions

 Unclear if Rapid DNA can be used in court or for

search warrants

 No quality control or standards 47

RAMAN SPECTROSCOPY CHEMICAL FIELD TEST KITS/HANDHELD RAMAN SPECTROMETER  Law enforcement has historically used chemical field

test kits for presumptive identification of controlled substances

 A number of law enforcement agencies are utilizing

portable handheld Raman Spectroscopy

 Raman Spectroscopy is listed as a category “A”

technique, which means it has one of the highest discriminating powers for the analysis of controlled substances 48

8/18/2021

TOP SUBSTANCES REPORTED BY DPS CRIME LAB The top substances reported by the DPS Crime Lab accounting for 82.62% of all reported drug results from 3/2012 to date was compared to the known and unknown samples analyzed during the evaluation

TruNarc Accuracy

Ace-ID Accuracy

TacticID-N Accuracy

Methamphetamine

Substance Reported

100%

Not enough data to evaluate

71%

Cocaine

91%

Not enough data to evaluate

Not compatible

Marijuana Non-controlled Substance

100%

Not enough data to evaluate

100%

Heroin

Not compatible

Tetrahydrocannabinol

Not in library

Not tested

Not in library

Alprazolam

MARIHUANA DEFINITIONS AND TESTING OF CANNABIS PRODUCTS  “Marihuana” defined in Section 481.002(26) of Texas Controlled Substance Act as the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: A. The resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; B. The mature stalks of the plant or fiber produced from the stalks; C. Oil or cake made from the seeds of the plant; D. A compound manufacture, salt, derivative, mixture, or preparation of the mater stalks, fiber, oil, or case E. The sterilized seeds of the plant that are incapable of beginning germination; or F. Hemp, as that term is defined by Section 121.001, Agriculture Code. 51

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MARIHUANA TESTING  First, the laboratory inspects a suspected Cannabis product for plant material and tries to identify any plant material. The laboratory analyst attempts to find any cystolithic hairs or unicellular hairs.  Second, the laboratory performs gas chromatography – mass spectrometry (GC-MS) on the suspected Cannabis product. The laboratory analyst uses only qualitative GC-MS data, specifically looking for delta-9-tetrahydrocannabinol (THC).  If the laboratory analyst cannot observe any cystolithic hairs or unicellular hairs but detects THC, the laboratory analyst reports the substance as delta-9-tetrahydrocannabinol (THC)  If the laboratory analyst can observe cystolithic or unicellular hairs, the substance is reported as marihuana. 52

TEXAS LAW DEFINING “MARIHUANA” FOLLOWING LABORATORY ANALYSIS  Texas law distinguishes between Cannabis products by the part of the plant the product is derived from.  Texas law treats products made from the seeds and stems as nonillegal substances (i.e. hemp seed products).  Texas treats products made from the flowers and leaves as marihuana, and treats products made from the “resinous extractive” of the plant as THC.  The resinous extractive of the plant is a term of art used to mean hashish or hash-oil, THC-rich products made by extracting THC from the cystolithic hairs on the flowers on the plant.

PROBLEM WITH MARIHUANA TESTING AND DEFINITION  All Cannabis-derived products may contain THC, as the substance is found throughout the plant and throughout both industrial (hemp) and drug (marihuana) cultivars of the plant.  THC detection, by itself, is insufficient method to distinguish between products originating from the stems and seeds; flowers and leaves; or preferentially extracted from cystolithic hairs.  Since the law groups “every compound, manufacture, salt, derivative, mixture, or preparation” of the stems and seeds; flowers and leaves; and resinous extractives of the plant along with the part of the plant the product was derived from, visual inspection does not provide any meaningful information about the origin of the product.  Argument can be made that neither method employed by the laboratory can accurately or reliably distinguish between different Cannabis products. 54

8/9/2021

Sexual Assault Medical Forensic Examinations and Injuries Nancy R. Downing, PhD, RN, SANE‐A, SANE‐P, FAAN Texas A&M Center of Excellence in Forensic Nursing Texas Criminal Defense Lawyers Association September 9, 2021

Who am I? • PhD, RN, SANE‐A, SANE‐P, FAAN • Doctorate University of Iowa, Nursing – clinical genomics • Associate Professor, Center of Excellence in Forensic Nursing, Texas A&M University • Teaching: Victimology, Forensic Mental Health, Forensic Pharmacology • Research: develop, pilot, and evaluate statewide telehealth forensic nursing program; ALS & bruise visibility; OUD/SUD disorder and impact on children & families; hormonal effects on fear learning • President, International Association of Forensic Nurses • Member, Texas Forensic Science Commission • Fellow, American Academy of Nursing, 2019 • Nationally certified adult/adolescent and pediatric SANE • Practicing forensic nurse since 2004 – never full time

Sexual Assault in Texas • Sexual assault is common in Texas • 14,656 rapes reported to LE 2019 (Texas Crime Report) • 55.2 rapes/100,000 people – 15th highest rate in the U.S. according to the FBI • UT‐Austin Institute for Domestic Violence & Sexual Assault estimates incidence is much higher ‐ >400,000 sexual assaults/year (Busch‐Armendariz et al., 2015) • 75‐95% of victims do not report the crime to law enforcement (Morgan & Kena, 2017; Sinozich & Langton, 2014) • Holding perpetrators accountable for sexual assault is critical for prevention of further crimes; wrongful conviction for sexual assault is also not acceptable.

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Access to SANEs • Access to quality medical forensic exams in Texas is an issue • Many hospitals in Texas lack access to SANEs • Transferring to facilities with SANEs is problematic: • Adds further stress to patients • Delays time‐sensitive medical treatment • Delays time‐sensitive evidence collection • Disconnects patient from community resources and support • Increases costs

Access to SANEs • Fewer than 14% of EDs currently offer SANE services (IAFN data, 2017) • SB 1191 – every hospital with an ED must provide care to patients after SA; must have “basic forensic evidence collection training” • TBON mandated the basic evidence collection course to be 2 hours minimum • We know most hospitals without SANEs still prefer to transfer (Police Foundation report, 2017) • 2‐hour training not sufficient to provide this specialized care

SANE Programs in Texas Hospital discharge data indicate there are approximately 10,000 hospital outpatient exams with sexual abuse or assault diagnostic codes per year.

8/9/2021

Wrongful Conviction for SA

• Wrongful convictions for sexual assault and abuse happen in Texas • There is a wide variation in preparation and experience among nurses providing medical forensic exams • Incorrect interpretation of pediatric anogenital injury played a role in two high‐profile cases • Integrity of forensic nurse knowledge and testimony is critical

What is a Forensic Nurse?

Misconceptions However, some forensic nurses do express statements suggesting role conflict (Campbell, Greeson, & Patterson, 2011; Downing & Mackin, 2012).

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Forensic Nursing “Forensic nursing is specialized nursing care that focuses on patient populations affected by violence and trauma – across the lifespan and in diverse practice settings. Forensic nursing includes education, prevention, and detection and treatment of the effects of violence in individuals, families, communities, and populations. Through leadership and interprofessional collaboration, the forensic nurse works to foster an understanding of the health effects, effective interventions, and prevention of violence and trauma in the United States and throughout the world.” A recognized specialty by the ANA since 1995

American Nurses Association & International Association of Forensic Nurses (2017), p. 1

Nurses are Patient Advocates “.” American Nurses Association (2018). Code of Ethics. • NOT the same as being a victim advocate.

Forensic Nursing Specialties • Sexual assault nurse examiner (SANE) • Death investigation • Corrections nursing • Legal nurse consultant • Education

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Forensic Nursing Preparation • Graduate of an accredited nursing program • The Commission on the Collegiate Nursing Education (CCNE) • Baccalaureate and graduate levels • The Accreditation Commission for Education in Nursing (ACEN) • Diploma, associate, baccalaureate, and graduate levels • Registered nursing (RN) license • Must pass the NCLEX • Developed & administered by the National Council of State Boards of Nursing • Apply for license through state nursing board • Nursing Jurisprudence Examination

NOTE: There is no minimum education requirement for RNs to work as SANEs.

Forensic Nursing Preparation • Additional forensic nursing education • • • • •

Continuing education Certificate programs Integration into undergraduate education Graduate education Post‐doctoral education or fellowships

Regulation of Forensic Nursing Practice • Texas Board of Nursing licenses nurses to practice in the state • Enforces the Nursing Practice Act, last updated in 2019, approved by the legislature • Sets minimum standards for nursing practice and nursing education • Conducts investigations and adjudicates complaints against nurses • Establishes CE requirements

• TBON website • Verify nursing licenses • File a complaint

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Standards of Forensic Nursing Practice International Association of Forensic Nurses (IAFN) • • • • • • •

Recognized authority related to forensic nursing practice standards >6000 members from 32 countries, 23 state chapters Journal of Forensic Nursing SANE Education Guidelines, 2018 Certifying body for SANEs – Commission for Forensic Nursing Certification Online education Funded by the U.S. Department of Justice, OVW past 15 years to be the technical assistance provider on the National Protocol for Sexual Assault Medical Forensic Examiners, 2nd Edition and 4 years on the National Protocol for Sexual Assault Medical Forensic Examiners – Pediatric • Funded by OVW to develop online Training Standards Curriculum

Impact of SANEs • Recognized standard of care (OVC, U.S. Dept. of Justice, 2013) • Improved evidence collection (Toon& Gurusamy, 2014) • More positive experience for patients (Du Mont, White, & McGregor, 2009)

• Greater likelihood of investigation and prosecution (Campbell, Bybee, Kelley, Dworkin, & Patterson, 2012; Campbell, Patterson, & Bybee, 2012)

• Prosecutor preference for cases where a SANE performed the exam and provided testimony (Reed, Symonds, Stier, Peluso, & Watson, 2020)

• Health care exam • Medical history

Sexual Assault Medical Forensic Exams

• History of the presenting complaint – for diagnosis & treatment • Head‐to‐toe examination • Anogenital examination • Evidence collection – SAEK, photographs, documentation • Prophylactic medication ‐ STIs, pregnancy • Discharge instructions and follow‐up care

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SANE Exam Guidelines

State Laws Regarding SANE Exams • Texas Health & Safety Code 323. Emergency Services for Survivors • Defines “SAFE‐ready facilities” • “if the facility notifies the department that the facility employs or contracts with a sexual assault forensic examiner or uses a telemedicine system of sexual assault forensic examiners to provide consultation to a licensed nurse or physician when conducting a sexual assault forensic medical examination” • A facility that is not SAFE‐ready must inform survivors of this and offer stabilization and transfer to a SAFE‐ready facility or provide the care • All nurses working in emergency departments must be prepared to provide exams

SANE Education Guidelines – Texas

• OAG Sexual Assault Prevention & Crisis Services Program (SAPCS) Sexual Assault Training Program (SATP) Certification • OAG Sexual Assault Training Program Certification Guide • Required curriculum • Certification requirements • To be SATP certified, a program must: • Operate a sexual assault training program that meets the OAG SATP Certification Requirements • Be either a current SAPCS‐State grantee or provide information on their organization’s provision of minimum services

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CA‐ and CP‐SANE Clinical Requirements

SANE Education – National Standards Adult/Adolescent

Pediatric

Combined

Minimum 40 hours didactic

Minimum 64 hours didactic

Minimum 40 CE hours from accredited provider

Minimum 64 CE hours from accredited provider

Clinical components*

Core faculty recommendations: RN, active clinical practice, at least one instructor with SANE‐A certification, 5+ years experience adult/adolescent sexual assault care

Core faculty recommendations: RN, active clinical practice, at least one instructor with SANE‐A certification, 5+ years experience pediatric/adolescent sexual assault care

*The Clinical Skill component may take place in a variety of ways. Some communities offer the 16‐hour Clinical Skills Lab, a program created by the IAFN. Additionally, programs may offer their own clinical skills lab, precepted experience with an established clinician, or integrated clinical orientation offered by the employer. IAFN SANE Education Guidelines, 2018

• Texas state certification ‐ ~300 active CA‐SANEs and CA‐CP SANEs. • CA‐SANE – adult/adolescent • CP‐SANE – pediatric

SANE Certification

• National certification 2021 • SANE‐A – adult/adolescent • 1292 in U.S. • 107 in TX • SANE‐P – pediatric • 548 in U.S. • 64 in TX

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State vs. National SANE Certification State

National

Competency

Proficiency

Requirements for initial certification

Clinical only

Clinical plus exam

Certifying body

OAG SAPCS office

Certification commission

Clinical requirements

• 8 (a/a), 10 (p), or 18 (a/a/p) exams • 10 speculum exams • 16 hours courtroom observation

300 hrs SANE‐related practice (patient care, on‐call, teaching/precepting, consulting, peer review)

Renewal

• • • •

• Every 3 years • 45 hrs continuing education • 300 hrs SANE‐related practice

Level of experience

Every 2 years 12 hrs continuing education 8 (a/a) – 12 (p) hrs case review 10 exams

Verifying SANE Certification • National certification • Verify at IAFN • SANE‐A • SANE‐P • State certification • Verify at SAPCS

Injury Assessment & Documentation

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Injury and Sexual Assault • Often there are no injuries – anogenital or bodily; victims frequently report not fighting back‐ too scared, “just wanted it to be over,” fear of being physically injured (supported by Wong & Balemba, 2015 meta‐analysis), freezing (Moller, Sondergaard, & Helstrom, 2017). • Of 1266 women receiving SAMFEs, 24.5% had genital injury; 52.1% of women with no prior sexual intercourse had genital injury; more injuries with multiple penetrants; 27% of women reporting anal assault had anal injury (Zilkens, Smith, Phillips et al., 2017). • Consensual sex studies are few and methodologically varied (and sometimes problematic); anogenital injury rates in 9 studies ranged from 4‐55%, with unplanned sexual intercourse injury prevalence 4‐11% (Schmidt Astrup & Lykkebo, 2015). • Anogenital injuries less common if victim incapacitated (Rossman, Solis, Oullette, & Woolley, 2018). • Bodily injuries more common than anogenital (Downing, Adams, & Bogue, 2020; Zilkens, Smith, Kelly et al., 2017); more common in intimate partner SA (Zilkens, Smith, Kelly et al., 2017) • Patients with injuries documented during a SAMFE 1.7‐2.5 times more likely to report to LE (Downing, Adams, & Bogue, 2020; Larsen, Hilden, & Lidegaard, 2014). • Cases more likely to be referred to DA and filed by DA when injuries present (O’Neal, Tellis, & Spohn, 2015) and prosecutors find injury evidence useful (Alderden, Cross, Vlajnic, & Siller, 2018).

Injury Interpretation – Issues • Risk of overcalling normal findings as injury • Body: bruises, non‐specific findings • Anogenital: redness, discharge, unusual but normal anatomy in adults • To document or not? • SANEs with less experience more likely to overcall normal or non‐specific findings as abnormal (Makoroff, Brauley, Brandner, Myers, & Shapiro, 2002) • Why peer review is critical.

• Cases more likely to advance and jurors more likely to convict if “redness” was documented in the medical record (Campbell, Patterson, Bybee, & Dworkin, 2009)

Anogenital Assessment • Pediatricians, SANEs, APNs incorrectly interpreted more anogenital findings on a 41‐item survey than child abuse physicians; SANEs had the most incorrect responses; scores significantly lower for all but CA physicians who performed >5 exams/month (Adams et al., 2012) • Recent examples • “I took a quick look and it’s open down there” (emergency room pediatrician). • “Is it that a cleft above 3 and 9 o’clock is abnormal, or below? I think I told a defense attorney the opposite thing” (experienced SANE)l • “I documented a failure of midline fusion as a healed laceration. Now I know what it was” (experienced SANE discussing an exam finding early in her practice)l • “We found a notch at 4 o’clock!” (SANE program coordinator).

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Anogenital Assessment • Lack of knowledge among health care providers generally of normal genital anatomy, especially female anatomy, especially prepubescent female anatomy. • Most health care providers do not receive adequate education in normal and abnormal pediatric anogenital anatomy. • This has led to “evolving” guidelines, based on consensus, regarding what is normal v. abnormal. • Joyce Adams and Nancy Kellogg, and CSA colleagues developed consensus classification system that stratifies findings. Most recent guidelines 2018 (Adams, Farst, Kellogg, 2018). • Very specialized practice. • Photo‐documentation and review of photos by a child abuse expert are essential.

Bruises

Reflected Light

Incident Light

• One of the most common soft tissue injury types in sexual assault (Alempijevic, Savic, Pavlekic, & Jecmenica, 2007; Zilkens, Smith, Kelly et al., 2017). • Caused by blunt, compressive, or squeezing force trauma (external forces).

Dating Bruises

Red = release of Hgb/RBCs from damaged vessels (oxygenated blood)

• Bruise color may be related to how Hgb, a component of red blood cells, is broken down over time (Hughes, Ellis, Burt, & Langlois, 2004).

• Examiner factors – subjective nature, age, lighting (Langlois, 2007). • Patient factors – gender, localized fat, skin color (Scafide, Sheridan, Downing, & Hayat, 2020), oxygen level, medications, WBC/RBC counts, disease processes • Depth of bruise.

• The only color reliably related to age of a bruise is yellow, which is only seen in bruises that are not recent – though not all bruises will ever be yellow (Langlois, 2007). • Tenderness and swelling typically associated with recent bruises (Langlois, 2007).

Blue/purple = release of unoxygenated blood from veins

TIME

• HOWEVER, YOU CANNOT ACCURATELY DATE A BRUISE BASED ON COLOR. Several factors determine bruise color:

Green = Hgb broken down into biliverdin Yellow = Hgb broken down into bilirubin Brown = Hgb broken down; iron combine w/ferritin

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Bruise Assessment • Is history consistent with injury observed? ASK patient if they know what an injury is from and document this. • Location of bruises – fingertip bruises common on extremities, consistent with squeezing force during SA. • Alternative ways of visualizing: • Objective color determination – colorimetry (Scafide, Sheridan, Taylor, & Hayat, 2016). • Camera filters. • Doesn’t alter photograph; spreads out color ranges to enhance contrast.

• Alternate light source (ALS) (Scafide, Sheridan, Downing, & Hayat, 2020). • NOTE: Absorption, NOT fluorescence.

Alternative Light Sources • National protocol recommends using alternate light to improve visibility of subtle injuries on adults/ adolescents during sexual assault forensic medical examination (Office on Violence against W, 2013). • Alternate light source (ALS) • • • •

Light of a specific wavelength Ultraviolet, visible, or infrared spectrums Components of bruising absorb light (appear dark) Colored goggles or camera filters block reflected light (Marin & Buszka, 2013).

Demographic Information Based on Skin Color Very Light (n=21) Age Under 25 years 25 or older Race/Ethnicity Asian/Pacific Islander Black Caucasian/White Hispanic/Latino Native American Other Body Mass Index (BMI) Underweight Normal Overweight/Obese Gender Female Male Target Arm Left Right

Light (n=32)

Skin Color (n=participants) Intermediate Tan (n=30) (n=27)

Dark (n=22)

Total (n=157)

17 (81%) 4 (19%)

22 (68.8%) 10 (31.2%)

22 (73.3%) 8 (26.7%)

24 (88.9%) 3 (11.1%)

Brown (n=25) 18 (72%) 7 (28%)

16 (72.7%) 6 (27.3%)

119 (75.8%) 38 (24.2%)

0 0 19 (90.5%) 2 (9.5%) 0 0

2 (6.3%) 0 28 (87.5%) 1 (3.1%) 0 1 (3.1%)

5 (16.7%) 0 21 (70%) 3 (10%) 0 1 (3.3%)

9 (33.3%) 2 (7.4%) 7 (25.9%) 6 (22.2%) 3 (11.1%) 0

8 (32%) 12 (48%) 1 (4%) 2 (8%) 2 (8%) 0

0 22 (100%) 0 0 0 0

24 (15%) 36 (23%) 76 (48%) 14 (9%) 5 (3%) 2 (1%)

0 13 (61.9%) 8 (38.1%)

1 (3.1%) 16 (50%) 15 (46.9%)

1 (3.3%) 19 (63.3%) 10 (33.4%)

0 20 (74.1%) 7 (25.9%)

0 9 (36%) 16 (64%)

0 7 (31.8%) 15 (68.2%)

2 (1.3%) 84 (53.5%) 71 (45.2%)

13 (61.9%) 8 (38.1%)

23 (71.9%) 9 (28.1%)

25 (83.3%) 5 (16.7%)

19 (70.4%) 8 (29.6%)

18 (72%) 7 (28%)

16 (72.7%) 6 (27.3%)

114 (72.6%) 43 (27.4%)

12 (57.1%) 9 (42.9%)

12 (37.5%) 20 (62.5%)

17 (56.7%) 13 (43.3%)

15 (55.6%) 12 (44.4%)

11 (44%) 14 (56%)

12 (54.5%) 10 (45.5%)

79 (50.3%) 78 (49.7%)

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Number Positive Detections by Wavelength/Filter 0

500

2000

2500

3000

2031 60 2777

415 Yellow

363 2572 278 2747

450 Yellow

340 2619

450 Orange

318 2425

475 Orange

264 2306

495 Orange

244 2173

515 Orange

535 Red

1500

316

415 Orange

515 Red

1000

2487

White Light

219 1171 17 1469 84 All Skin Colors

Dark Skin

What Defense Attorneys Should Know

No Consensus on What Makes a SANE an “Expert” • The only IAFN metrics related to expertise are certification requirements. • IAFN SANE Education Guidelines (2015) specify SANE instructors should have at least 5 years experience. • Certification requirements have low clinical requirements or don’t specify how much direct patient care a SANE has provided. • National Children’s Alliance “advanced medical consultant” qualifications: child abuse pediatrician, physician, APN who has performed at least 100 exams, and current in continuous quality improvement requirements.

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• Did you take a 40‐ or 64‐hour SANE course approved by the state of Texas? • Did the course meet IAFN SANE Education Guidelines? • What state and/or national certifications do you have?

What Defense Attorneys Should Ask

• How long have you been practicing as a SANE? • Approximately how many exams have you performed? • Approximately how many exams do you perform a month? • Do you do this full‐time or part‐time? If part‐time, what other job(s) do you have? • How many hours of call do you take a month? • How often do you attend peer review? • What else do you do to remain current in your practice?

• How many pre‐pubescent SANE exams do you perform each month?

What Defense Attorneys Should Ask – Child Sexual Assault

• Are your exam documentation and photographs reviewed after every case? • Who reviews your documentation and photographs and what are their qualifications? • Did this person review your documentation and photographs in this case? • If so, defense attorney should talk with the HCP who reviewed the documentation to learn if there are notes associated with the exam (did that expert document diagnostic impressions?)

Contact Information

downing@tamu.edu 979‐436‐0157

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References • Adams, J. A. (2001). Evolution of a classification scale: Medical evaluation of suspected child sexual abuse. Child Maltreatment, 6(1), 31‐36. • Adams, J. A. (2010). Medical evaluation of suspected child sexual abuse: 2009 Update. APSAC Advisor, 22(1), 2–7. • Adams, J. A. (2011). Medical evaluation of suspected child sexual abuse: 2011 update. Journal of Child Sexual Abuse, 20(5), 588‐605. • Adams, J. A., Harper, K., Knudson, S., & Revilla, J. (1994). Examination findings in legally confirmed child sexual abuse: It's normal to be normal. Pediatrics, 94(3). • Adams, J. A., Starling, S. P., Frasier, L. D., Palusci, V. J., Shapiro, R. A., Finkel, M. A., & Botash, A. S. (2012). Diagnostic accuracy in child sexual abuse medical evaluation: Role of experience, training, and expert case review. Child Abuse & Neglect, 36(5), 383‐392. • Adams, J. A. (2013). Signs of recent or healed injury to the genitalia in prepubertal girls describing penile‐ vaginal contact are uncommon. Medicine, Science, and the Law, 53(2), 117‐118. • Adams, J. A., Farst, K. J., & Kellogg, N. D. (2018). Interpretation of medical findings in suspected child sexual abuse: an update for 2018. Journal of Pediatric & Adolescent Gynecology, 31(3), 225‐231. • Adams, J. A., Harper, K., & Knudson, S. (1992). A proposed system for the classification of anogenital findings in children with suspected sexual abuse. Adolescent and Pediatric Gynecology, 5(2), 73‐75.

References • Adams, J. A., Kaplan, R. A., Starling, S. P., Mehta, N. H., Finkel, M. A., Botash, A. S., ... & Shapiro, R. A. (2007). Guidelines for medical care of children who may have been sexually abused. Journal of Pediatric and Adolescent Gynecology, 20(3), 163‐172. • Adams, J. A., Kellogg, N. D., Farst, K. J., Harper, N. S., Palusci, V. J., Frasier, L. D., ... & Starling, S. P. (2016). Updated guidelines for the medical assessment and care of children who may have been sexually abused. Journal of Pediatric and Adolescent Gynecology, 29(2), 81‐87. • Adams, J. A., Kellogg, N. D., & Moles, R. (2016). Medical care for children who may have been sexually abused: An update for 2016. Clinical Pediatric Emergency Medicine, 17(4), 255‐263. • Adams, J. A., & Knudson, S. (1996). Genital findings in adolescent girls referred for suspected sexual abuse. Archives of Pediatrics & Adolescent Medicine, 150(8), 850‐857. • Adams, J. A., Starling, S. P., Frasier, L. D., Palusci, V. J., Shapiro, R. A., Finkel, M. A., & Botash, A. S. (2012). Diagnostic accuracy in child sexual abuse medical evaluation: Role of experience, training, and expert case review. Child Abuse & Neglect, 36(5), 383‐392. • Alderden, M., Cross, T. P., Vlajnic, M., & Siller, L. (2021). Prosecutors’ perspectives on biological evidence and injury evidence in sexual assault cases. Journal of Interpersonal Violence, 36(7‐8), 3880‐3902. • Alempijevic, D., Savic, S., Pavlekic, S., & Jecmenica, D. (2007). Severity of injuries among sexual assault victims. Journal of Forensic and Legal Medicine, 14(5), 266‐269. • American Academy of Pediatrics Committee on Child Abuse and Neglect (1991). Guidelines for the evaluation of sexual abuse of children: Subject review. Pediatrics, 87(2), 254‐260.

References • American Academy of Pediatrics Committee on Child Abuse and Neglect (1999). Guidelines for the evaluation of sexual abuse of children: Subject review. Pediatrics, 103(1), 186‐191. • Busch‐Armendariz, N., Olaya‐Rodriguez, D., Kammer‐Kerwick, M., Wachter, K., Sulley, C., Anderson, K., & Huslage, M. (2015). Health and Wellbeing: Texas statewide sexual assault prevalence study. University of Texas, Austin, Institute on Domestic Violence and Sexual Assault. • Campbell, R., Bybee, D., Kelley, K. D., Dworkin, E. R., & Patterson, D. (2012). The impact of sexual assault nurse examiner (SANE) program services on law enforcement investigational practices: A mediational analysis. Criminal Justice and Behavior, 39(2), 169‐184. • Campbell, R., Patterson, D., & Bybee, D. (2012). Prosecution of adult sexual assault cases: A longitudinal analysis of the impact of a sexual assault nurse examiner program. Violence Against Women, 18(2), 223‐244. • Campbell, R., Greeson, M., & Patterson, D. (2011). Defining the boundaries: How sexual assault nurse examiners (SANEs) balance patient care and law enforcement collaboration. Journal of Forensic Nursing, 7(1), 17‐26. • Campbell, R., Patterson, D., Bybee, D., & Dworkin, E. R. (2009). Predicting sexual assault prosecution outcomes: The role of medical forensic evidence collected by sexual assault nurse examiners. Criminal Justice and Behavior, 36(7), 712‐727. • Downing, N. R., Adams, M., & Bogue, R. J. (2020). Factors associated with law enforcement reporting in patients presenting for medical forensic examinations. Journal of Interpersonal Violence, https://doi.org/10.1177/0886260520948518

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References • Downing, N. R., & Mackin, M. L. (2012). The perception of role conflict in sexual assault nursing and its effects on care delivery. Journal of Forensic Nursing, 8(2), 53‐60. • Du Mont, J., White, D., & McGregor, M. J. (2009). Investigating the medical forensic examination from the perspectives of sexually assaulted women. Social science & medicine, 68(4), 774‐780.International Association of Forensic Nurses (2018). SANE education guidelines. https://cdn.ymaws.com/www.forensicnurses.org/resource/resmgr/education/2018_sane_edguidelines.pdf • Hughes, V. K., Ellis, P. S., Burt, T., & Langlois, N. E. I. (2004). The practical application of reflectance spectrophotometry for the demonstration of haemoglobin and its degradation in bruises. Journal of Clinical Pathology, 57(4), 355‐359. • International Association of Forensic Nurses and the American Nurses Association (2018). Forensic nursing scope & standards of practice, 2nd. Ed. Elkridge, MD: IAFN. • Kellogg, N. D., & American Academy of Pediatrics (2005). The evaluation of sexual abuse in children. Pediatrics, 116(2), 506‐512. • Kellogg, N. D., & Menard, S. W. (2003). Violence among family members of children and adolescents evaluated for sexual abuse. Child Abuse & Neglect, 27(12), 1367‐1376. • Kellogg, N. D., Menard, S. W., & Santos, A. (2004). Genital anatomy in pregnant adolescents: “Normal” does not mean “nothing happened.” Pediatrics, 113(1), e67‐e69.

References • Larsen, M. L., Hilden, M., & Lidegaard, Ø. (2015). Sexual assault: a descriptive study of 2500 female victims over a 10‐year period. BJOG: An International Journal of Obstetrics & Gynaecology, 122(4), 577‐584. • Makoroff, K. L., Brauley, J. L., Brander, A. M., Myers, P. A., & Shapiro, R. A. (2002). Genital examinations for alleged sexual abuse of prepubertal girls: Findings by trained physicians. Child Abuse and Neglect, 26(12), 1235–1242. • Marin, N., & Buszka, J. M. (2013). Alternate light source imaging: Forensic photography techniques. Cincinnati: Anderson Publishing. • Midwestern Children’s Advocacy Center (2015). Medical peer review. St. Paul, MN: Author. http://www.mrcac.org/peer‐review/ • Möller, A., Söndergaard, H. P., & Helström, L. (2017). Tonic immobility during sexual assault–a common reaction predicting post‐traumatic stress disorder and severe depression. Acta Obstetricia et Gynecologica Scandinavica, 96(8), 932‐938. • National Children’s Alliance (2017). Putting standards into practice: A guide to implementing the 2017 Standards for Accredited Members. https://www.nationalchildrensalliance.org/wp‐ content/uploads/2015/06/NCA2017‐StandardsIntoPractice‐web.pdf • Office on Violence Against Women (2016). A national protocol for sexual abuse medical forensic examinations: Pediatric. U.S. Department of Justice: Author. • Office on Violence Against Women (2013). A national protocol for sexual abuse medical forensic examinations: Adult/adolescent. U.S. Department of Justice: Author.

References • Reed, G. D., Symonds, A., Stier, A., Peluso, S., & Watson, S. O. (2020). Prosecutor preference for forensic nurse testimony: outcome of expanding a forensic program. Journal of Emergency Nursing, 46(3), 310‐317. • Toon, C., & Gurusamy, K. (2014). Forensic nurse examiners versus doctors for the forensic examination of rape and sexual assault complainants: A systematic review. Campbell Systematic Reviews, 10(1), 1‐56. • Rossman, L., Solis, S., Ouellette, L., Woolley, B., Bush, C., & Jones, J. S. (2018). Comparative analysis of incapacitated versus forcible sexual assault in a community‐based population. The American Journal of Emergency Medicine, 36(12), 2308‐2309. • Scafide, K. N., Sheridan, D. J., Downing, N. R., & Hayat, M. J. (2020). Detection of inflicted bruises by alternate light: Results of a randomized controlled trial. Journal of Forensic Sciences, 65(4), 1191‐1198. • Scafide, K. N., Sheridan, D. J., Taylor, L. A., & Hayat, M. J. (2016). Reliability of tristimulus colourimetry in the assessment of cutaneous bruise colour. Injury, 47(6), 1258‐1263. • Schmidt Astrup, B., & Lykkebo, A. W. (2015). Post‐coital genital injury in healthy women: A review. Clinical Anatomy, 28(3), 331‐338. • Zilkens, R. R., Smith, D. A., Kelly, M. C., Mukhtar, S. A., Semmens, J. B., & Phillips, M. A. (2017). Sexual assault and general body injuries: A detailed cross‐sectional Australian study of 1163 women. Forensic Science International, 279, 112‐120. • Zilkens, R. R., Smith, D. A., Phillips, M. A., Mukhtar, S. A., Semmens, J. B., & Kelly, M. C. (2017). Genital and anal injuries: A cross‐sectional Australian study of 1266 women alleging recent sexual assault. Forensic Science International, 275, 195‐202.

Texas Criminal Defense Lawyers Association

Sex & Violence September 9-10, 2021

Topic: Cross of a Child Speaker:

Eric Davis 1201 Franklin Street Rm 13 Houston, TX 77002-1929 (713) 274-6730 Phone (713) 437-8563 Fax eric.davis@pdo.hctx.net email

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

CROSS EXAMINATION BY: ERIC J. DAVIS

I. Introduction Cross-examination is perhaps one of the most fundamental components of an accused’s rights at trial. Through cross examination the accused is able to challenge the evidence and assertions against him. Through cross-examination, lies can be exposed and the truth advanced. Effective and meaningful cross-examination can vindicate the innocent. Despite the intrinsic value of this constitutional right to ensure justice, numerous people accused of crimes are denied effective cross examination in their cases – some are denied this tool of justice because of the courts… others because of their advocates. Cross-examination is one of the most difficult trial skills to master. Few attorneys have the raw talent to conduct an effective, impromptu cross-examination. Most lawyers struggle with cross-examination. But besides talent; there are numerous factors that impact counsel’s conduct of cross-examination including training, experience, preparation, organization and creativity. To an extent, courts have restricted cross-examination in some cases. It is my hope that through this paper, you will be presented with an effective tool to enable you to conduct an effect cross-examination regardless of your level of skill or expertise. It is also the goal that the experienced practitioner will be presented with a tool to enable him or her to sharpen their skill as a cross-examiner.

II. Cross-examination as a Right Worthy of Protecting The Sixth Amendment’s Confrontation Clause provides that, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The United States Supreme Court has held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965).

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

And in Crawford v. Washington, 541 U.S. 36, 42-52 (U.S. 2004), the Supreme Court expanded an accused’s right to cross examine. The Supreme Court has observed that the right to confront one’s accusers is a concept that dates back to Roman times. See Coy v. Iowa, 487 U.S. 1012, 1015, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988); Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int'l L. 481 (1994). The framers of the Constitution would get this concept from the common law. English common law has long differed from continental civil law in regard to the manner in which witnesses gave testimony in criminal trials. The commonlaw tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768). Specifically, in Crawford the Supreme Court observed that history supports two inferences about the meaning of the Sixth Amendment: First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marian statutes invited; that English law’s assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind. Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon "the law of Evidence for the time being." 3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970) (Harlan, J., concurring in result). Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court. This focus also suggests that not all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the other hand, ex parte examinations might sometimes be admissible under modern

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

hearsay rules, but the Framers certainly would not have condoned them. The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused--in other words, those who "bear testimony." 2 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement. Crawford, 541 U.S. at 42-52. Through Crawford, an accused has the right to examine the maker of any testimonial statements against him. The Supreme Court through the most unlikely source, Justice Scalia, affirmed that the Constitution ensures that every testimonial assertion against the accused should be challenged. Legendary trial lawyer Gerry Spence says that Basic cross-examination is nothing more than a true-or-false test administered to the witness, in the course of which our story, as it concerns that witness, is told, question by question, to the witness. It makes little difference whether the witness answers yes or no. Question by question, our story is being told. It’s for the jury to determine whether the witness is telling the truth when he denies the statements contained in our questions. If we took each statement out of our cross-examination and joined them, we would have presented our story for that witness….. Only the deluded or naïve believe that somehow the taking of an oath prevents witnesses, even honest witnesses, from lying where they must….Every witness is sworn to tell the whole truth and nothing but the truth. But few do. If they did there would be no cause for cross-examination. But the human mind does not grasp whole truths. It grasps only those truths that serve it.

Gerry Spence, Win Your Case, at 170, 218-219. Without Cross-examination, the accused is left with his life and liberty being decided by lies, untruths and examination in private by judicial officers. There is great value in meaningful cross examination.

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

III. Restrictions on the Scope of Cross-Examination Courts and the rules of evidence provide some limitation on cross examination. Indiana Rule of Evidence 611 provides, a)

Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1)

make those procedures effective for determining the truth;

(2)

avoid wasting time; and

(3)

protect witnesses from harassment or undue embarrassment.

(b)

Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c)

Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions: (1)

on cross-examination; and

(2)

when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

IV. Conducting Meaningful Cross-Examination A.

Preparation. Effective and meaningful cross-examination starts with thorough and active

preparation. Know your client’s story, the facts and evidence against him. Investigate the facts (people, places and alleged occurrences). Investigate the alleged scene. Analyze the scene against the facts. Investigate people to find out about their backgrounds and their reputations. Investigate their experience and their educational background. Be prepared to challenge the testimony in light of the “big picture.” Once you have a good working knowledge of the facts, try to anticipate the testimony of every witness prior to trial. Prepare for each witness. Consider what each witness offers that can advance your client’s story. And prepare to blunt the effect of adverse testimony you anticipate will be offered against your client. Do not be afraid of avoiding cross-examining a witness. Consider writing out every question in advance. But do not be married to your questions because the testimony might vary from what you anticipate it will be. With experience, one can become more flexible and use an outline or use a list of subjects about which to cross examine. Formulate Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

some questions from known sources of information that you can readily access (police reports, prior testimony, medical records, prior statements, etc.). Formulate some questions that fit the theory of your case. B.

Conducting the Examination. One of the keys to effective cross-examination is to listen.

Listen to the answers to questions asked on direct examination and take good notes. Listen for inconsistencies in the evidence as you know it. Listen for illogical answers and answers that are inconsistent with the state’s theme and state’s witnesses. Listen for inconsistencies with common experiences. Testify. Use cross-examination to tell the jury your client’s story. This is one of the few times the advocate has to opportunity to challenge the assertions of the witness and to advance the client’s position. Take advantage of the opportunity to talk with the jury. Do not just repeat direct examination, unless you do so to discredit it. Primarily use leading questions, but do not be afraid to ask non-leading questions when appropriate. Use tools of impeachment - prior statements, prior recorded statements, etc. Use extrinsic evidence or testimony of other witnesses who can contradict the first witness’ untruthful statement. Or use cross-examination to show bias or motive to demonstrate to the jury the witness’ reason for lying. If the witness has not been consistent in his or her statements, impeach the witness with prior inconsistent statements – video, audio, pre-trial witness interviews, or with statements made to other people. Remember to start and end on a strong note.

C. Types of Cross-

Examinations: The Soft Cross-examination is a type of cross-examination where in the lawyer modifies the style and/or the content of the cross examination to appropriate the emotions of the case. Instead of being “in your face and aggressive,” the lawyer is aware of the effect of the mode of questioning on the jury. For example, a jury might become upset at a lawyer who aggressively questions a young child. So a lawyer might speak to a child witness gently, as if he were speaking to a child. Additionally, some jurors might see some fact witnesses (like nurses or medical personnel) as simply doing their jobs. They might react adversely to a lawyer who attacked a witness they perceived as merely doing their job. During the soft cross, the lawyer modifies the Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

style of the cross-examination to take into account how a jury might react to the lawyer (seeking to avoid a negative reaction). The soft cross-examination also involves a modification of the content of the crossexamination. Instead of attacking the witness head on, the lawyer seeks to peel back emotional layers to reveal bias or other elements. For example, in attacking a snitch/cooperating witness a lawyer engaged in a soft cross might focus on the collateral emotional losses that the witness is facing instead of focusing merely on the punishment the witness faces. A typical cross of a snitch might look like this: Lawyer: Mam, you have agreed to testify against my client in this case, right? Snitch: Yes. Lawyer: You are charged in a conspiracy case, true? Snitch: Yes. Lawyer: You are facing twenty years in the pen, true? Snitch: Yes. Lawyer: You are saying whatever you can to avoid doing that time, true? Snitch: I am telling the truth. Lawyer: But a different truth wouldn’t get your time off, would it? The content of the Soft cross might look like: Lawyer: Mam, you are a mother of three, true? Snitch: True. Lawyer: You are in jail now? Snitch: Yes. Lawyer: You aren’t able to see your kids while you are lock up, are you? Snitch: No. Lawyer: You can’t take them to school?

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Snitch: No. Lawyer: You can’t talk to their teachers to find out what’s going on with them can you? Snitch: No. Lawyer: You aren’t at home to greet them when they come home from school, are you? Snitch: No. Lawyer: The longer you are incarcerated, the less you will be able to do this are you? Snitch: Yes. The soft-cross attempts to pull back emotional layers to develop bias, interest or motive. Many lawyers who use this method also employ psychodrama to further develop their cross examinations. They urge that psychodrama gives them insight into the emotional layers of the witness by helping them “get into the skin of the witness.” The Story-Telling Cross-examination is another form of cross-examination. A story-telling cross merely tries to tell the story of the witness, of the case, of a theory or of an object through crossexamination. With the story-telling cross an advocate is trying to communicate with and persuade jurors. During the story-telling cross, the advocate is trying to have a conversation with her neighbor over the fence as she is working in her yard. Or the advocate takes the approach that she is having a conversation in the lobby after church. Speak in plain English. (Talk as if you are talking with everyday people, otherwise known as potential jurors.) Put away lawyer language like “calling your attention to the date on which the occurrence in question took place” and references to “exiting vehicles.” Real people get out of cars, they do not exit vehicles. So instead of calling the witness’s attention to the date in question in which the occurrence took place, instead simply state “Let’s talk about what you did on April 4, 1968, before you left the Lorraine Hotel after Dr. King was shot.”

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Try to use short declarative statements during the story-telling cross-examination. While much of the traditional cross-examination requires control of the witness, it is not necessary to use the “prefixes” and “suffixes” of the leading question format -the prefixes “Is it a fact that . . . ?” “Isn’t it true that . . . ?” or the suffixes “. . . , correct?” or “. . . , isn’t that true?” or “..., am I correct?” You can use these leading question techniques, but you can obtain the information without using them. And they have a tendency to break up the story. For example, “You are James Earl Ray.” You do not need to say “Isn’t it a fact that you are James Earl Ray?” or “You’re James Earl Ray, correct?” Just state the fact and have the witness affirm it or deny it. Generally, during the story-telling cross most of the answers to questions should be “Yes.” That is because you are using the cross-examination to tell your story and enhance your credibility. It is also a fast, efficient way to provide the jury with information. It also allows the cross-examiner to tell a story and to state the facts. The only role the witness plays is to affirm the trial lawyer’s statements. A good way to employ the story-telling cross-examination is to first write the story you want to tell through the witness as a narrative. Simply write out a paragraph (using short, declarative sentences) telling the story you want to tell. For example, Martin Luther King, Jr., was a prominent American leader of the African-American civil rights movement. Dr. King won the Nobel Peace Prize. He was assassinated at the Lorraine Motel in Memphis, Tennessee, on April 4, 1968. He was 39 years old when he was assassinated. On June 10, 1968, James Earl Ray was arrested in London at Heathrow Airport. Ray was a fugitive from the Missouri State Penitentiary. He was later extradited to the United States, and charged with the crime. On March 10, 1969, Ray entered a plea of guilty. He was sentenced to 99 years in the Tennessee state penitentiary. Ray later made many attempts to withdraw his guilty plea. He was unsuccessful. He died in prison on April 23, 1998. The question and answer might look like this, Q. Martin Luther King, Jr., was a famous? A. Yes. Q. He was a leader of the civil rights movement in the 60s? A. Yes. Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Q. The Civil Rights Movement was a National Movement? A. Yes. Q. It ended Jim Crow? A. Yes. Q. It ended the forced separation of people by race in our nation? A. Yes. Q. Dr. King won the Nobel Peace Prize? A. Yes. Q. The Nobel peace prize was an international award? A. Yes. Q. He was one of the youngest winners of the prize ever? A. Yes. Q. He was assassinated? A. Yes. Q. He was assassinated at the Lorraine Motel in Memphis, Tennessee? A. Yes. Q. He was killed on April 4, 1968? A. Yes. Q. He was only 39 years old when he died? A. Yes. Q. On June 10, 1968, James Earl Ray was arrested in London at Heathrow Airport? A. Yes. Q. Ray was a fugitive from the Missouri State Penitentiary? A. Yes. Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Q. He was later extradited to the United States? A. Yes. Q. He was charged with killing Dr. King. A. Yes. Q. On March 10, 1969, Ray pled guilty to killing King. A. Yes. Q. He was sentenced to 99 years in the Tennessee state penitentiary. A. Yes. The Traditional Cross-examination generally serves two primary purposes and they manifest themselves in either a Destructive Cross or a Supportive Cross. The goal of a destructive cross is to discredit the testifying witness or another witness. This type of cross is designed to reduce the credibility of the witness or the persuasive value of the opposition’s evidence. The use of impeachment material is a key to destructive cross, as it is the ability to attack and discredit the bases for the witnesses’ statements or opinions. The questioner’s goal is to establish control of the witness. The goal of the supportive cross is to bolster the questioner’s own theory of the case and tell the defense story. It should develop favorable aspects of the case not developed on direct examination or expand on these aspects. This testimony may support your witnesses or help to impeach other witnesses. Control is the key to the traditional cross examination. The lawyer never asks a question to which he does not know the answer (or what the answer will be). The lawyer always asks leading questions with a suffix or prefix. The lawyer never relinquishes control.

V. Impeachment Raising prior inconsistent statements is the most frequently used impeachment method at trial. More than any other impeachment method, however, impeaching with prior inconsistent statements requires a precise technique to be effective before a jury. Rule of evidence 613, requires Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

that the witness have an opportunity to admit, deny or explain making the inconsistent statement. Prior inconsistent statements can be either collateral or non-collateral. If it is non-collateral, and the witness does not admit making it, you must prove it up with extrinsic evidence. The basic structure of the impeachment technique involves three steps: recommit, build up, and contrast. First, recommit the witness to the fact he asserted on direct, the one you plan to impeach. Try to do this in a way that does not arouse the witness’ suspicions. Use the witness’ actual answer on direct when you recommit him because he is most likely to agree with his own statements. (You could also challenge the witness to admit the facts he stated in a prior inconsistent statement and get a denial of them). Second, build up the importance of the impeaching statement.

Direct the witness to the date,

time, place and circumstances of the prior inconsistent statement, whether oral or written. Show that the statement was made when the witnesses recollection was fresher or under circumstances that the witness would be likely to tell the truth (under oath, closer in time to an event, made to assist in an investigation, etc.). Third, read the prior inconsistent statement to the witness and ask him to admit having made that. Use the actual words of the impeaching statement. And project your attitude to signal to the jury what its attitude should be during the impeachment. If your attitude is that the witness was lying, confused, or forgetful; then broadcast it with your tone, facial expressions, cadence, demeanor, etc.1 Besides prior inconsistent statements witness can be impeached many different ways on crossexamination. Witness can be impeached by showing bias, interest and motive; through the use of prior convictions; through the use of prior bad acts; through other witnesses; through contradictory facts; through reputation and opinion testimony. VI. Observations Consider this blog post by Bobby G. Frederick from the internet blog Trial Theory.2

1 2

See Thomas A. Mauet, Fundamentals of Trial Techniques, p. 242-43. http://trialtheory.com

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

The Boy Who Cried Wolf July 22, 2011 “Nobody believes a liar…even when he is telling the truth!” My son is four years old now, soon to be five. He’s gotten into the habit of coming in while I’m working on the computer and telling me “daddy, dinner’s ready!” After a few times of walking into the kitchen to see dinner still cooking on the stove, I’m thinking I need some independent confirmation before I believe that dinner is ready. I ask him, “are you telling the truth?” and of course he responds “yes!” Last night I was reading The Boy Who Cried Wolf to him before bed, and it occurred to me that this story contains a most basic explanation of how to demonstrate the un-truthfulness of a witness’ testimony. Not that this is always the goal of cross-examination, but when a witness is not being truthful about something critical to the case it becomes an important part of the cross-examination. How do you prove that a witness is lying? In some cases it can be proven by extrinsic evidence or testimony of other witnesses who can contradict the first witness’ untruthful statement. Or we can show bias or motive – demonstrate to the jury the witness’ reason for lying. If the witness has not been consistent in his or her statements we can impeach the witness with prior inconsistent statements – video, audio, witness interviews pre-trial, or statements they have made to other people. But if these tools are not available, or in addition to these tools, can we show that the witness is simply someone who lies – even if we are unable to prove the witness is lying about the most important fact, what if we are able to show that the witness is lying about other facts? If the witness has lied about other facts, has given inconsistent statements on other subjects, and can be impeached on other statements that he has made to the jury, why should the jury believe anything that the witness says? The Old Man’s advice to the young shepherd boy, as he laments the loss of his sheep to the wolf, and wonders why the village-folk did not come to help him, is as valuable a lesson for cross-examination as it is for my son: “Nobody believes a liar…even when he is telling the truth!” If you are not a consistently honest person, how can we know that you are telling the truth?

Cross-Examination By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Texas Criminal Defense Lawyers Association

Sex & Violence

September 9-10, 2021

Topic: Investigation Speaker:

Betty Blackwell

1306 Nueces Street Austin, TX 78701 (512) 479-0149 Phone (512) 320-8743 Fax betty@bettyblackwell.com email www.bettyblackwell.com website

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

INVESTIGATION

BY BETTY BLACKWELL ATTORNEY AT LAW BOARD CERTIFIED IN CRIMINAL LAW 1306 NUECES ST. AUSTIN, TEXAS 78701 BETTYBLACKWELL@BETTYBLACKWELL.COM

TABLE OF CONTENTS Article 39.14 Ethics Rule 646 Family Violence cases Child Abuse cases Limitation to discovery Jail Calls Watkins v. State Civil Cases Google Investigate your client Defense Evidence Favorable Evidence Social Media Crime Scene Investigation Specific Motions Subpoena Duces Tecum SB111 Investigators Conclusion

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INVESTIGATION A good investigation starts by knowing the state’s case. The changes to Article 39.14 of the Texas Code of Criminal Procedure known as the Michael Morton Act, now provides us with a wealth of information, but we must ask for it. Many of the prosecutors’ offices now have automated discovery which will be uploaded and made available once the attorney has been designated as the attorney of record, Be aware that the provisions of Article 39.14 CCP are only triggered upon a request for the information. See Article 39.14(a) effective date of January 1st, 2014. Cases that occurred before that date are covered by the former law, which provided for no general discovery in criminal cases. If the defendant fails to request discovery under Article 39.14 C.C.P., the State has no statutory obligation to disclose incriminating evidence not in the offense report. Glover v. State, 496 S.W.3d 812 (Tex. App. Houston 14th Dist. 2016). Article 39.14 C.C.P. applies to and includes all the evidence to be presented at the punishment phase of the trial. The Court held that without a proper request, the trial court did not abuse its discretion in allowing the introduction of a pen packet that had not been disclosed. Davy v. State, 525 S.W.3d 745 (Tex. App. Amarillo 2017). Ethics Rule 646 issued in November 2014 by the Professional Ethics Committee of the State Bar of Texas held that it would violate disciplinary rule 8.04(a)(12) Texas Disciplinary Rules of Professional Conduct for a prosecutor to impose conditions on discovery that are not found in Article 39.14 of the Code of Criminal Procedure. The question presented was whether a prosecutor could require a criminal defense attorney to agree to not show the copies of the information to their clients and also agree to waive any court ordered discovery. The Committee held that a prosecutor may not, as a condition for providing information in their files that they are obligated to disclose, require the criminal defense attorney to agree to such precondition and limitation to discovery. Work product is listed in Article 39.14 (a) C.C.P. as exempted from discovery. But in Ex Parte Miles, 359 S.W.3d 647(Tex. Crim. App. 2012) before the Michael Morton Act went into effect, the Court of Criminal appeals held that work product exception did not exempt police offense report from disclosure if it contained Brady material. So even under the much more restricted version of 3

Article 39.14 C.C.P., work product had to be turned over if it included Brady material. In Family violence cases, the request for disscovery should include all in car videos, and body camera videos, if the arresting agency utilizes such equipmehnt. There will be photographs taken of both the defendant and victim and of the location where the assault occurred, which can show damage to the housing, or lack of damage. There is a document called the victim impact statement which is a form that can have lots of information or very little, all of which is important to know. These are all covered by in (a) of 39.14 C.C.P. which lists documents, papers, recorded statement of witnesses, including law enforcement officers, but not work product. The Code goes on to detail “other tangible things that constitute or contain evidence material to any matter involved in the action must be made available to the defense upon request. It must be in the possession, custody or control of the state or any person under contract with the state. Documentation of the request is important. Old motions for discovery can be helpful, if turned into requests for discovery and filed with the clerk’s office and with the prosecutor’s office. Learning the individual counties discovery procedures is essential. Find out how to get listed as quickly as possible as the attorney of record and if the county uses an online portal to provide discovery. Efile Texas will allow an attorney to e-serve a document on the State of Texas without filing it in the court papers, if the attorney wishes to use this to file a letter demanding discovery under Article 39.14 C.C.P. Letters demanding discovery can be faxed, emailed or mailed, but documentation is the key. The probable cause affidavits can provide insight into a case, if the DA’s policy is not to provide discovery in your particular case until indictment. There is no enforcement mechanism to force the DA’s office to provide discovery prior to indictment. In re State ex rel. Munk, 494 S.W.3d 370 (Tex. App. Eastland 2015) In child abuse cases, Article 39.15 Code of Criminal Procedure limits the discovery by prohibiting the duplication of any property or material described, provided that it is made reasonably available, which means making it available to the attorney and the attorney’s expert for viewing, including the videotaped recorded statements of a child described in Article 38.071 and Article 38.45 C.C.P. The Court of Appeals was asked to find this section unconstitutional as a denial of the right to confrontation, and reasonable access, but they refused to do so, in Gonzalez v. State, 522 S.W.3d 48 (Tex. App. Houston 1st Dist. 2017) Note that under the previous version of Article 39.14 C.C.P., which also was subject to Article 39.15 C.C.P. which was passed in 2009, a judge could order the State to copy and provide to the defense a copy of a DVD of a child victim interview, see In re Dist. Attorney’s Office of 25th Judicial Dist., 358 S.W.3d 244 (Tex. Crim. App. 2011). 4

Family Code Section 264.408 provides restrictions to child abuse videotape interviews. It states: (d) An electronic recording of an interview with a child or person with a disability that is made by a center is the property of the prosecuting attorney involved in the criminal prosecution of the case involving the child or person. (d-1) An electronic recording of an interview described by Subsection (d) is subject to production under Article 39.14, Code of Criminal Procedure, and Rule 615, Texas Rules of Evidence. A court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce an electronic recording of an interview described by Subsection (d), provided that the prosecuting attorney makes the electronic recording reasonably available to the defendant in the same manner as property or material may be made available to defendants, attorneys, and expert witnesses under Article 39.15(d), Code of Criminal Procedure. (e) The department shall be allowed access to electronic recordings of interviews of children or persons with a disability. A specific request for access should be filed under the Family Code, and Article 39.14 C.C.P. and 39.15 C.C.P. and if that is denied, then a Motion should be filed, along with a subpoena to the agency and the Motion should be set for a hearing in court. §93.002 Family Code was amended to make written or oral communication between an advocate and a victim confidential and may not be disclosed. Added by Acts of the 85th Leg. Effective 9/1/2017. Rule 615 does not require a report to be produced if it is protected by §261.201(a) Texas Family Code, and person requesting the report has failed to comply with the procedures set out in the Family Code for production CPS investigative reports. Fears v. State, 479 S.W.3d 315 (Tex. App. Corpus Christi 2015) Section 261.201 Family Code provides that reports of abuse are confidential along with interviews, videotapes, files and reports developed in the investigation. However it also sets out the procedure to obtain these confidential records: A court may order the disclosure of information that is confidential under this section if: (1) a motion has been filed with the court requesting the release of the information; (2) a notice of hearing has been served on the investigating agency and all other interested parties; and (3) after hearing and an in camera review of the requested information, the court determines that the disclosure of the requested information is: 5

(A) essential to the administration of justice; and (B) not likely to endanger the life or safety.....

911 calls/jail calls There maybe 911 calls and jail calls, which are important to have access to prior to trial, to determine the admissibility and whether any parts are not admissible. Davis v. Washington 126 S.Ct. 2266 (2006) involved whether a 911 recording violated the defendant’ 6th amendment right to confrontation. The Supreme Court held because it was describing on going events, it was not testimonial and could be admitted as an excited utterance, without the declarant testifying. If the primary purpose is to enable police assistance in an ongoing emergency, the 911 call does not violate the defendant’ 6th amendment rights. However, the Court goes on to say that if the 911 call is only describing past events and there is no ongoing emergency, then admission would violate the 6th amendment. Some parts of the 911 call maybe admissible and other parts may violate the confrontation clause and the Court instructed the lower courts to redact or exclude portions of the calls once they become testimonial. Early discovery is imperative in order to properly limit the admission of the calls. A motion and order maybe helpful to require the State to specify which recordings that they intend to use at trial. In re State ex. Rel. Skurka, 512 S.W.3d 444 (Tex. App. Corpus Christi 2016) involved the State’s request for mandamus for the trial court to withdraw the discovery order entered and such request was denied. The trial court had the authority to order the State to specify which of 1000 jailhouse telephone recordings of the defendant that they intended to use at trial. Watkins: In Watkins v. State, decided March 3, 2021, 619 S.W.3d 265 (Tex. Crim. App) the trial counsel had sent a request pursuant to Article 39.14 C.C.P. in which he asked for, among other things, “any other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the case”. An issue arose because the pen packets were not turned over prior to the punishment hearing, though the defense attorney had been provided his client’s criminal history. The Court of Appeals had held that the evidence was not material, because material should be defined as affecting the outcome of the case. The Court of Criminal Appeals reversed holding that essentially material just meant relevant and the defense request was specific enough to require that the pen packets be turned over prior to trial. The case has been remanded to the Court of 6

Appeals for a harm analysis. Article 39.14(h) C.C.P. is of particular importance because it expands what traditionally has been held to meet Brady standards. The State must disclose, exculpatory, impeachment, or mitigating documents, items, or information in its possession, custody or control that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. Under (h) it is important to request the criminal history record of the Victim and the witnesses that the State intends to call at trial. The state has access to the FBI background check, which we cannot access. We can check our local clerks’ offices and DPS for convictions, but deferred adjudication doesn’t show up. Double checking is important. Public website can be useful as a starting point to get more information and to track down the accuracy of the information provided by the prosecutor. Publicdata.com is fairly inexpensive and has lots of information. The Department of Public Safety makes some convictions available online for a small fee. The website is https://publicsite.dps.texas.gov/DpsWebsite/CriminalHistory/. Westlaw and Lexis/Nexis also has some personal information so that running witnesses names through each of these might bring up important avenues for further research. The prosecutor also has access to the local history of entry of the person’s name into the police database. In some jurisdictions the police department will make these available through an open records/ public records request. Each police and sheriff’s department’s website site will tell you how to make an open records request. Some are quite easy to do online and again fairly inexpensive. Utilizing the public records request can provide important information. They can reveal “handled bys” both for the defendant and the victim, if the victim is not a juvenile. This information is generated with any person comes in contact with the police department and their name is included in any incident or police offense report. It can generate important leads to follow, including possible other individuals who have had an interaction with a witness in the case. The only timeline provided in Article 39.14 C.C.P. for providing the requested information is “as soon as practicable”. Because this is so vague, there is no enforcement mechanism to require production, prior to indictment. As previously stated, the District court does not have the authority to order discovery under Article 39.14 C.C.P. on an unindicted case. In re State ex rel. Munk, 494 S.W.3d 370 (Tex. App. Eastland 2015) Civil Cases: In many felonies, there can be corresponding civil litigation attached. There can be a CPS case if there are allegations of child abuse. During the CPS process, 7

valuable information can be obtained from the CPS worker and the attorney assigned to both prosecute and defend the CPS case. In family violence cases and child abuse cases, the result maybe divorce proceedings. This can be very useful to obtain documents, statements, interrogatories and depositions, which would otherwise be unavailable in the criminal case. If there is a protective order application, then the applicant can be required to testify in the proceedings, which would lead to valuable information for a later trial, including obtaining a copy of the sworn testimony from the protective order hearing. Though beware that attorney’s fees and costs can be attached to the defendant if they contest the protective order. It is important to obtain a copy of the affidavit filed by the accuser that will accompany the application for the protective order. It will have lots of accusations in it. Text messages and emails and social media posts between the parties should be obtained prior to the protective order hearing in order to use as cross examination. Sometimes the alleged victim will file a civil lawsuit against the defendant and that opens up discovery to be covered by the civil rules including interrogatories, request for production and depositions. Google: Google and internet searches can be helpful in locating information about an adult victim, news stories about the case and potential witnesses. Facebook inquiries have been held to not violate professional rules as long as the attorney does not mislead the person into granting a friend request. INVESTIGATE YOUR CLIENT: The defense attorney must ask all the hard questions of their client. They must know if they have ever been treated for mental illness or if they have been hospitalized. Upon booking of the client, the magistrate is required to conduct an Article 15.17 C.C.P. magistration that includes determining if the person has a mental illness or an intellectual disability, which may include proceedings under Article 16.22 C.C.P. It is important to obtain these records from the jail that processed our client. Many times clients will tell jail personnel of prior suicide attempts, hospitalizations and/or medications that they forget to mention to their attorney. The police department, where the event occurred, may also keep records of interactions with individual clients. Some are called “handled by” lists. These can be obtained through an open records request to the police/sheriff department to determine how many times the police have been called to an address or have had encounters with my client. Many times this gives us a list of offense/incident 8

reports that can then be ordered separately. Court documents searches of your client can also pick up prior divorces and/or protective order hearings that may have potential good and/or bad witnesses for the case. Document your client’s social media pages and involvement and then warn them that it will all come out in court so to be careful of any future postings. Defense evidence in Child abuse cases: Many attorneys find that having a polygraph examination done of their client can be very helpful. Also a psychosexual examination, along with a private investigator can be useful in preparing a mitigation packet for these cases. Obtaining as much information as possible about the state’s witnesses can be crucial. The defense needs to identify the Sane nurse, the forensic examiner, the lead detective, the child psychologist and child/victim advocate. Background investigation of each can help determine if they are really qualified to testify as experts, and what weaknesses there maybe in their testimony. Texas Commission on Law Enforcement’s website allows attorney to do open records request for information about all classes and certifications obtained by a police officer and information about their current status as a police officer. The website is: https//tclo.texas.gov. Obtaining evidence from CPS may be crucial. The interviews they conduct are to be recorded. If they have interview the child before, there should be a record of this. If CPS has records that the child has previously denied abuse, it is important for the defense to obtain those. If CPS ruled out abuse allegation at the time, such evidence should have been preserved and defense counsel should try to obtain it. These records can lead to other potentially exculpatory witnesses, including doctors, teachers, and counselors. Many children have been involved with the foster care system and that system also keeps records. Foster parents may keep records including progress reports of the children in their home. Favorable Defense witnesses It is important to accumulate character witnesses who can testify on behalf of the defendant. Though general character evidence is not admissible, in a criminal case the defendant may offer specific evidence of a defendant’s pertinent trait. In Family violence cases, it can be prior girlfriends/wives/spouses/significant others, who have had a relationship with the defendant without any violent encounters. In child abuse cases, it can be other children who have had no bad interactions with the defendant. Rule 404 and 405 Texas Rules of Evidence. The Defense may decide not to call these witnesses for fear that it will open the door to the introduction of extraneous offenses, but knowing that the witnesses are 9

available is imperative to render effective assistance of counsel. The lawyer can document their file with the reasons that certain witnesses were not called at trial, rather than having a file where no defense witnesses are even mentioned as having been talked to by the defense attorney. The character witnesses can also be used very successfully in negotiations with the prosecution. Social Media: As the Court of Criminal Appeals notes in Tienda v. State, 358 S.W.3d 633, 639 (Tex. Crim. App. 2012), “[A]ny serious consideration of the requirement to authenticate social-media evidence needs to acknowledge that, given the wide diversity of such evidence, there is no single approach to authentication that will work in all instances”. Obtaining the actual owner and contents of the account usually involves subpoenas to the company. The issue is that without this underlying documentation, anyone can create a fake account. Also, anyone can obtain access to anothers accounts if they have the user name and password and therefore knowing if the posts are legitimate can be difficult to tie to an individual. In Tienda, the court allowed the posts because the pictures appeared to be of Tienda displaying gang tattoos and gang signs. There are excellent papers in the TCDLA library about how to obtain these records. Frank Sellers’s paper from Rusty Duncan 2018, discusses the Stored Communications Act and the difficulty with getting content even when the subscriber consents. Some courts are willing to order the subscriber to grant their consent. His paper details how to obtain a subpoena for some of the most popular social media platforms. In order to get content material, he recommends subpoenaing the subscriber directly, which would be a subpoena to the victim or the victim’s parents in these cases. But by far the easiest way, he explains is to take screenshots, which will show exactly what was displayed, by whom and when. Then the issue of authentication comes into play, but you have preserved the evidence. Crime scene investigation: Visit the crime scene if at all possible. Up to 70% of crimes are committed indoors and a private residence may be impossible to access. But efforts should be made, including requesting court orders to allow the inspection of the crime scene. This can be used in cross examination, if the victim refuses access to the defense investigator. If access is gained, take pictures, make notes and take measurements. If outdoors look for cameras that the police might have missed and request the owners to review their recordings. Subpoena the recordings if necessary. This is a high priority because the scene may change, be remodeled, or 10

destroyed over time. Do not rely on the body cameras of the police department as they will not capture or record things of importance to the defense. Motions and specific requests Every case should have a request for extraneous offenses under 404(b), 609(f) Rules of Evidence and Article 37.07(g) C.C.P. filed by the defense attorney. The duty of the state to provide notice of extraneous offenses, convictions, or acts, only applies when the defendant REQUESTS the information. Motion for a List of State’s witnesses. Some think a request for this under Article 39.14 might suffice, but some courts have held that 39.14 C.C.P. doesn’t cover this, unless a specific request and order has been obtained. This should include a request for rebuttal witnesses. Because Article 20.20 C.C.P. requires the endorsement of the witnesses’ names on the indictment, the defendant should file this motion early and demand the names of the witnesses, including rebuttal witnesses, well in advance of trial. Motion pursuant to Article 39.15 and 39.16 C.C.P. and an order granting discovery will allow the defendant access to the state’s evidence in child pornography and invasion recording cases. Request and/or Motion for expert witnesses under Article 39.14(b) C.C.P. requires that a party make a request of the name and address of each person that the disclosing party may use at trial to present evidence under Rules 702, 703, and 705 Texas Rules of Evidence. If the defense wants earlier notice than 20 days prior to trial, the defendant may file a motion and request a court order that the disclosure be made earlier to the defense to allow adequate preparation time. Article 39.14 C.C.P. now requires the state to produce offense reports, videotapes, witness statement and exculpatory evidence, but only upon request of the defendant. A motion and order may be required to get records from Child Protective Services. A subpoena can be issued to the custodian of the records to be returnable on the date of a hearing prior to trial. Their attorney will file a motion to quash, but the records can be provided to the trial court to make an in camera inspection of the records. Most courts will turn over the records to the defense if they feel they contain Brady material. School records of a child complainant can also be obtained in the same way. There should be a motion for discovery on file requesting the information, have the case set for a hearing on the motion and issue a subpoena to the school. Similarly medical or psychology records of the alleged victim are covered by HIPPA, so they can only be obtained by a court approved subpoena for the records.

Subpoenas duces tecum: Defendant issued a subpoena duces tecum for the complainant’s cell phone in order to inspect and copy data. The State filed a motion to quash the subpoena. The State had standing to enforce the victim’s rights. The Trial Court did not have statutory, constitutional or inherent authority to authorize a data dump of the complainant’s phone based on the subpoena. Article 24.02 C.C.P. only authorizes subpoena duces tecum’s to produce an item in court at a hearing. Because there was no hearing scheduled and no motion to be heard, and the trial court failed to grant the State’s motion to quash and request for protective order, mandamus was granted. In re State, 599 S.W.3d 577 (Tex. App. El Paso 2020) SB111 Law enforcement responsibilities This bill was signed by the Governor and takes effect September 1, 2021. It requires that a law enforcment agency filing a case with the attorney representing the state, provide a written statement by an agency employee with knowledge of the case who acknowledges that all documents, items, and information in the possession of the agency that are requried to be disclosed to the defendant in the case under Article 39.14 have been disclosed to the attorney reprsenting the state. If at any time after the case is filed with the attorney representing the state the law enforcement agency discovers or acquires any additional document, item, or information required to be disclosed to the defendant under Article 39.14, an agency emloyee shall promptly disclose the document, item or information to the attorney represneting the state. This amends the Code by adding Article 2.1397 to the Code of Criminal Procedure. HIRE AN INVESTIGATOR? Many times this simply is not an option. Our clients can not afford an investigator. So it is always important to remember that the duty to investigate falls on our shoulders. Failure to investigate and present compelling mitigating evidence of defendant’s family background was a constitutionally deficient performance and CCA had failed to properly consider whether the performance prejudiced him as trial court had recommended granting the Writ. Andrus v. Texas 140 S.Ct. 1875(2020) Investigators are covered by the attorney/client privilege and cannot be called against the client without violating the privilege which protect confidential communications. It might also violate the work product exception which protects the lawyer from having to share his or her fruits of their labor with others. While work product may protect the communications of the agents, it does not protect the underlying factual information. Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006) is the best case to understand the right to consult with an expert, without 12

having to disclose the identity and the point where an expert becomes a designated testifying expert and information must then be provided. Pope v. State, explains that once the lawyer puts it into the public domain, in that case, a motion and request for the appointment of an expert, then that fact is no longer covered by the attorney/client privilege or the work product exception. The Court recommends that attorneys investigate first, consult second, and thirdly designate the witness. Unfortunately, in Pope, the Defendant had designated a DNA expert as a defense expert and then the state’s DNA expert was allowed to testify that no one had contacted their office to request additional testing. So if the investigator is needed to testify for the defense, care should be taken in determining what information will be required to be turned over and whether it waives the attorney/client privilege. Voluntary disclosure waives the privilege. Rule 503 Texas Rules of Evidence. Conclusion Investigators can be a helpful tool to the defense. Investigator can talk to witnesses, get witness statements, locate documents and evidence that might need to be subpoenaed. They can be invaluable, when affordable. This paper is designed to help the practitioner think of ways to investigate the case themselves with limited funds and to determine what might be available out in the general domain, that does not require a specialist to obtain. With the internet, practitioners are only limited by their imagination as to how and what to look for that might help their client’s case.

Texas Criminal Defense Lawyers Association

Sex & Violence

September 9-10, 2021

Topic: Protective Orders/CPS Speaker:

Roberto Balli

PO Box 1058 Laredo, TX 78042-1058 (956) 712-4999 Phone (956) 724-5830 Fax robertoballi@sbcglobal.net email

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

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS Roberto Balli, Attorney at Law Claudia V. Balli, Attorney at Law Introduction As criminal defense lawyers, we often get hired to represent clients in a family violence or sexual assault case. These cases usually have collateral cases, such a protective order, a Child Protective Service case or a divorce case. These collateral cases may create serious burdens on your client. For example, they may have to move out of their home because of the protective order or CPS case. The client may face arrest for new charges if they violate a protective order. The client may face removal of their children. The stakes are high for our clients. As defense lawyers, we must prepare our client for what is to come and advise them of these consequences. There can be many advantages for the same criminal defense team or at least an associated family law practitioner to represent the criminal defendant on these collateral cases. First, we can use these collateral cases as a method of getting discovery, including interrogatories, depositions, and trial testimony. Second, handling the collateral cases, gives us an advantage over the prosecutor who may have more limited knowledge of the case. In the end, we will be more prepared if we have to try the family violence or sexual assault case. Regardless of whether we represent our client on the collateral case, we should be familiar with the processes that our client is facing, because this affects the outcome of the criminal case. This paper will address protective orders for the criminal practitioner. We will leave the divorce cases and CPS cases for another day. Family Violence Definitions Before discussing protective orders, it is essential to understand key the terms like “family violence.” Family violence is a legal term that is used through the Texas Penal Code, the Texas Code of Criminal Procedure, and the Texas Family Code. The term family violence is specifically used in the Texas law related to protective orders. There are other terms such as “dating violence,” “abuse,” and “household,” that are used. These terms are also defined in the different Texas codes. We have created an appendix at the end of this paper for your reference. Protective Orders The term “protective orders” is used generically to describe several types of orders: The Magistrate’s Order for Emergency Protection, Temporary Ex-Parte Protective Order, and the Protective Order. There are family violence protective orders found in Title 4 of the Texas Family Code and sexual assault/stalking protective orders found in Chapter 7B of the Texas Code of Criminal Procedure. However, each of these orders differ in duration, procedure, and substance. Therefore, we should understand each of these types of orders. All of these orders may have state and federal criminal consequences for violations. We will discuss these orders below and emphasize the similarities and differences.

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

Magistrate’s Order for Emergency Protection The Magistrate’s Order for Emergency Protection, pursuant to Article 17.292 of the Code of Criminal Procedure, is the most common type of protective order. These orders are issued by the magistrate after an arrest, and served on the arrestee prior to being released on bond. Discretionary Orders for Emergency Protection The Magistrate MAY issue an Order for Emergency Protection in cases involving family violence or for any of the following offenses: Sexual Assault TPC § 22.011, Indecent Assault, TPC § 22.012, Aggravated Sexual Assault TPC § 22.021, Stalking TPC § 42.072 and certain trafficking of persons offenses found in Chapter 20A of the Texas Penal Code.1 Mandatory Orders for Emergency Protection The magistrate SHALL issue an Order for Emergency Protection if the arrest involves: (a) family violence and the use or exhibition of a deadly weapon during an assault, or (b) family violence and serious bodily injury to the victim.2 Substance of Orders for Emergency Protection In a Magistrate’s Order for Emergency Protection, the magistrate is authorized to issue an order to protect the “protected person” by prohibiting the arrestee from the following acts3: Acts of family violence or assault; Acts in furtherance of human trafficking or stalking; Threatening or harassing communications to the person or to members of the household; Direct threats or threats through a third person; All communication, if good cause found; Going to a person’s home, work, or school of a child, if good cause found; Possessing a firearm, unless the person is a full-time paid peace officer. The magistrate may also order the arrestee to participate in GPS monitoring.4 The magistrate’s order for emergency protection does not prohibit the arrestee from going near the victim, unless the conduct constitutes stalking. Notice and Hearing Magistrate’s Orders for Emergency Protection are issued upon a defendant’s appearance before a magistrate for an arrest.5 The law requires that a defendant be taken before a magistrate within 48 hours.6 There is no requirement of notice anywhere in the code. The victim need not be present7 and 1

TEX. CODE CRIM. PROC. ANN. art. 17.292(a) (West). TEX. CODE CRIM. PROC. ANN. art. 17.292(b) (West). 3 TEX. CODE CRIM. PROC. ANN. art. 17.292(c) (West). 4 TEX. CODE CRIM. PROC. ANN. art. 17.292(c-1) (West). 5 TEX. CODE CRIM. PROC. ANN. art. 17.292(a) (West). 6 TEX. CODE CRIM. PROC. ANN. arts. 14.06, 15.17 (West). 7 TEX. CODE CRIM. PROC. ANN. art. 17.292(d) (West). 2

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

does not even need to request the Order for Emergency Protection, which may be requested by the attorney for the state, a peace officer, or may be issued on the magistrate’s own motion.8 Duration Magistrate’s Orders for Emergency Protection remain in effect for 31-61 days; however, if a deadly weapon is used or exhibited, the duration is 61-91 days.9 Modification of Orders for Emergency Protection After notice to all parties and a hearing, the magistrate may modify the order if the order is unworkable, the victim will not be placed at greater risk by the modified order, and the modified order will not endanger a protected person.10 For example, the magistrate may remove a restriction that prevents the arrestee from going to the home the victim. Family Violence Protective Orders Family Violence Protective Order Process The law related to the protective order process is found in Title 4 of Texas Family Code and involves several steps, starting with the application for protective order, which is a civil petition. Next, the court may issue a temporary ex-parte protective order and issue citation. If the parties cannot agree on a disposition, the court will hold a hearing on the application to decide whether or not to grant a protective order. We will look at each of these steps next. Application for Protective Order The protective order process begins with an application for protective order, which is a civil petition filed with the clerk of the court.11 Any adult member of the family or household has standing to file the application for self-protection or for the protection of another member of the family or household.12 Dating violence applications for protective order may be filed by a member of the dating relationship or by the spouse of the member of the dating relationship.13 Any adult may file an application for protective order for a child.14 Although applicants may hire private counsel15 to pursue a protective order, the Family Code provides that the applicant may be represented by the local prosecuting attorney or the CPS attorney.16 A person may also file an application for a protective order as part of the suit for dissolution of marriage, following the process outlined above.17

TEX. CODE CRIM. PROC. ANN. art. 17.292(a) (West). TEX. CODE CRIM. PROC. ANN. art. 17.292(j) (West). 10 TEX. CODE CRIM. PROC. ANN. art. 17.292(j) (West). 11 TEX. FAM. CODE ANN. § 82.001 (West). 12 TEX. FAM. CODE ANN. § 82.002 (West). 13 Id. 14 Id. 15 TEX. FAM. CODE ANN. § 81.005 (West). 16 TEX. FAM. CODE ANN. §§ 71.007, 82.002 (West). 17 TEX. FAM. CODE ANN. § 6.504 (West). 9

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

Like other civil filings, the respondent to the application of protective order is entitled to service of process.18 The respondent may file an answer but need not do so.19 The court shall set a date and time for a hearing on the application no later than 14 days after the application is filed, and the court may reset the hearing for lack of service for an additional 14 days.20 In counties with more than two-million residents, and a judicial district composed of more than one county, the hearing on the application must be heard no later than 20 days after the application is filed, and the court may reset the hearing for lack of service for an additional 20 days.21 If the respondent to an application for protective order wants to file an application for a protective order, the respondent must file a separate application.22 If the respondent files an application for a protective order, this shall not be reason to delay the original application filed.23 Temporary Ex-Parte Protective Orders If from the contents of the application for protective order, the court finds a clear and present danger of family violence, the court may, without notice to respondent and without a hearing, issue a temporary ex-parte protective order ordering respondent to refrain from specific acts.24 A temporary exparte protective order is only valid for a period not to exceed 20 days.25 The respondent may file a motion to vacate a temporary ex-parte protective order, which the court should set for a hearing as soon as possible.26 Exclusion from Residence in Ex-Parte Order Upon the filing of an application for protective order with a sworn affidavit, the court may issue and order excluding respondent from a residence if the court finds that the applicant resides at the residence or has resided there within the last 30 days of the filing of the application and that there is a clear and present danger that the respondent is likely to commit family violence against a member of the household.27 During the hearing on the ex-parte request, the court may call the respondent by phone to see if the respondent wishes to appear in court on the same date to present testimony regarding the exclusion.28 Default Judgments When proof of service on the respondent is filed with the court prior to a hearing, the court may take a default judgment that is civilly and criminally enforceable.29

TEX. FAM. CODE ANN. § 82.043 (West). TEX. FAM. CODE ANN. § 82.021 (West). 20 TEX. FAM. CODE ANN. §§ 84.001, 84.003 (West). 21 TEX. FAM. CODE ANN. §§ 84.002, 84.003 (West). 22 TEX. FAM. CODE ANN. § 82.022 (West). 23 TEX. FAM. CODE ANN. § 84.001(West). 24 TEX. FAM. CODE ANN. § 83.001 (West). 25 TEX. FAM. CODE ANN. § 83.002 (West). 26 TEX. FAM. CODE ANN. § 83.004 (West). 27 TEX. FAM. CODE ANN. § 83.006 (West). 28 Id. 29 TEX. FAM. CODE ANN. §§ 85.005, 85.006 (West). 19

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

Agreed Protective Orders The parties may agree to the protective order.30 Agreements are often reached to avoid a “family violence” finding or to negotiate some restrictions. An agreed protective order need not contain the family violence finding to be enforceable both criminally and civilly.31 Protective Order Hearing Protective order hearings are heard before judges. There is no entitlement to a hearing before a jury. At the hearing, the court shall determine whether the respondent committed an act of family violence and whether family violence is likely to occur in the future.33 A court shall grant a protective order if it finds that family violence has occurred in the past and is likely to occur in the future.34 32

Substance of Protective Orders A protective order may prohibit the person found to have committed family violence from35: Acts of family violence or assault; Threatening or harassing communications to the person or to members of the household; Direct threats or threats through a third person; All communication, if good cause found; Going to applicant’s home, work, or school of a child; Engaging in stalking behaviors; Possessing a firearm, unless the person is a full-time paid peace officer; or Harming, threatening, or interfering with pets. A protective order may order the person found to have committed family violence to36: Complete a battering intervention program. A protective order may prohibit any party from37: Removing the child from the possession of another party or the jurisdiction of the court; Transferring, encumbering, or disposing of property; or Removing pets from the other party.

TEX. FAM. CODE ANN. § 85.005(West). Id. 32 Roper v. Jolliffe, 493 S.W.3d 624, 634 (Tex. App. 2015). 33 TEX. FAM. CODE ANN. § 85.001 (West). 34 Id. 35 TEX. FAM. CODE ANN. § 85.022 (West). 36 TEX. FAM. CODE ANN. § 85.022 (West). 37 TEX. FAM. CODE ANN. § 85.021 (West). 31

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

A protective order may38: Grant exclusive possession of a residence to a party and order a party to vacate; Provide for possession or access to children; Provide for child support or support for a party; or Award possession of jointly owned properties. A protective order does not prohibit the respondent from going near the applicant, unless the conduct constitutes stalking. Duration of Family Violence Protective Orders Generally, a family violence protective order may be issued for up to two years.39 However, the duration of the family protective order may be extended beyond the two years if: (a) the respondent committed a felony offense involving family violence against the applicant or a member of the applicant’s family or household; or (b) there has been at least two previous protective orders for the protection of the same applicant issued against the same respondent.40 Sexual Assault/Stalking Protective Orders Sexual Assault/Stalking Protective Order Process The process for applying for a protective order is almost identical to the process for applying for a family violence protective order. The procedure regarding Chapter 7B protective orders are found in the family code.41 Application for Protective Order The protective order process begins with an application for protective order, which is a civil petition filed with the clerk of the court.42 Any victim of sexual assault or stalking or the parent/guardian of a minor victim has standing to file the application for protection.43 Although applicants may hire private counsel44 to pursue a protective order, the applicant may be represented by the local prosecuting attorney.45 A person may also file an application for a protective order as part of the suit for dissolution of marriage, following the process outlined above.46 The state’s prosecuting attorney is required by law to file an application for protective order upon the offender’s conviction or placement on deferred adjudication for stalking and sexual assault or abuse offenses enumerated in Chapter 7B, unless an adult victim requests that the application not be filed.47 38

TEX. FAM. CODE ANN. § 85.021 (West). TEX. FAM. CODE ANN. § 85.025 (West). 40 Id. 41 TEX. CODE CRIM. PROC. ANN. art. 7B.008 (West). 42 TEX. FAM. CODE ANN. § 82.001 (West). 43 TEX. CODE CRIM. PROC. ANN. art. 7B.001 (West). 44 TEX. FAM. CODE ANN. § 81.005 (West). 45 TEX. CODE CRIM. PROC. ANN. art. 7B.001 (West). 46 TEX. FAM. CODE ANN. § 6.504 (West). 47 TEX. CODE CRIM. PROC. ANN. art. 7B.001(a-1, a-2) (West). 39

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

Temporary Ex-Parte Protective Orders If from the contents of the application for protective order, the court finds a clear and present danger of sexual assault or abuse, stalking, or other harm to the applicant, the court may, without notice to respondent and without a hearing, issue a temporary ex-parte protective order for the protection of applicant or applicant’s family.48 A temporary ex-parte protective order is only valid for a period not to exceed 20 days.49 The respondent may file a motion to vacate a temporary ex-parte protective order, which the court should set for a hearing as soon as possible.50 Protective Order Hearing Protective order hearings are heard before judges. There is no entitlement to a hearing before a jury.51 During the hearing, the court may admit the hearsay statement of a child victim (younger than 14) of sexual assault or abuse.52 At the hearing, the court shall determine whether there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, or stalking.53 If the court so finds, the court SHALL issue a protective order.54 Substance of Protective Orders A protective order may prohibit the offender from55: Threatening or harassing communications to the person or to members of the household; Direct threats or threats through a third person; All communication, if good cause found; Going to applicant’s home, work, or school of a child; Engaging in stalking behaviors; Possessing a firearm, unless the person is a full-time paid peace officer; or Harming, threatening, or interfering with pets. The court may also order the offender to take any action “that the court determines is necessary or appropriate to prevent or reduce the likelihood of future harm to the applicant or a member of the applicant’s family or household.”56 Duration of Sexual Assault/Stalking Protective Orders Generally protective orders under Chapter 7B may be issued for no more than 2 years.57 The court shall order a protective order for the lives of the victim and the offender, if the offender is convicted of or placed on deferred adjudication for the offenses listed in Chapter 7B and is required to 48

TEX. CODE CRIM. PROC. ANN. art. 7B.002 (West). TEX. FAM. CODE ANN. § 83.002 (West). 50 TEX. FAM. CODE ANN. § 83.004 (West). 51 Roper v. Jolliffe, 493 S.W.3d 624, 634 (Tex. App. 2015). 52 TEX. CODE CRIM. PROC. ANN. art. 7B.005 (West); TEX. FAM. CODE ANN. § 104.006 (West). 53 TEX. CODE CRIM. PROC. ANN. art. 7B.003 (West). 54 Id. 55 TEX. FAM. CODE ANN. § 85.022 (West). 56 TEX. CODE CRIM. PROC. ANN. art. 7B.005 (West). 57 TEX. CODE CRIM. PROC. ANN. art. 7B.007 (West). 49

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

register as a sex offender for life.58 However, an adult victim or the parent/guardian of a child of a minor victim may file a motion to rescind the protective order.59 Crimes Related to Protective Orders Violations of Court Orders The Texas Penal Code makes it a crime to violate a condition of bond, a magistrate’s order of emergency protection, a protective order, or a temporary ex-parte protective order if the temporary exparte protective order has been served on the respondent60. However, not all conditions of these orders are treated the same, only some violations constitute arrestable offenses. A person can be arrested for violating the following conditions of the order61: Acts of family violence or assault; Threatening or harassing communications to the person or to members of the household; Direct threats or threats through a third person; Going to applicant’s home, work, or school of a child; Engaging in stalking behaviors; Possessing a firearm; Harming, threatening, or interfering with pets; Removing or tampering with GPS. A violation of the above provisions of a family violence protective order (including the ex-parte protective order) is a Class A misdemeanor.62 However, if the actor violates the family violence protective order by committing an assault or stalking, it is a felony of the third degree.63 The punishment is also enhanced to a felony of the third degree if the person has been previously convicted two or more times for violation of a protective order.64 A violation of the above provisions of a sexual assault/stalking protective order (including the exparte protective order) is a state jail felony.65 However, if the actor violates the sexual assault/stalking protective order by committing an assault or stalking, it is a felony of the third degree.66 The punishment is also enhanced to a felony of the third degree if the person has been previously convicted two or more times for violation of a protective order.67 State Firearms Offenses The Texas Penal Code makes it a crime to possess a firearm if the person has been given notice 58

TEX. CODE CRIM. PROC. ANN. art. 7B.007 (West). Id. 60 TEX. PEN. CODE ANN. § 25.07 (West). 61 TEX. PEN. CODE ANN. § 25.07 (West). 62 TEX. PEN. CODE ANN. § 25.07(g) (West). 63 Id. 64 Id. 65 Id. 66 Id. 67 TEX. PEN. CODE ANN. § 25.07(g) (West). 59

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

that the person is subject to a magistrate’s order of emergency protection, a family violence protective order, or a sexual assault/stalking protective order (including the ex-parte protective orders).68 A violation of this provision is a Class A misdemeanor.69 Federal Firearms Offenses Since protective orders are very similar across the different states, Congress enacted a federal statute designed to prohibit people subject to protective orders from possessing firearms or ammunition. Specifically 18 U.S.C.A. § 922(g)(8) states the following: A person subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that-(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and (B)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.70 The catch-all, standard, federal provision, applies to “intimate partners” and their children. Therefore, the application of 922(g) is limited to intimate partner family violence and sexual assault/stalking protective orders. Federal law would not apply to magistrate’s order of emergency protection or ex-parte protective orders, since 922(g) requires that the person subject to the order receive notice of the hearing and has a right to the participate in the hearing in which the order was issued. The actor receives no notice and has no opportunity to be heard prior to the issuance of a magistrate’s order of emergency protection or exparte protective order.

TEX. PEN. CODE ANN. § 46.04 (West). Id. 70 18 U.S.C.A. § 922(g)(8) (West). 69

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

Appendix – Definitions “Family violence” means: (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; (2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or (3) dating violence, as that term is defined by Section 71.0021. Tex. Fam. Code Ann. § 71.004 (West) (a) “Dating violence” means an act, other than a defensive measure to protect oneself, by an actor that: (1) is committed against a victim or applicant for a protective order: (A) with whom the actor has or has had a dating relationship; or (B) because of the victim's or applicant's marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and (2) is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault. (b) For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: (1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship. (c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” under Subsection (b). Tex. Fam. Code Ann. § 71.0021 (West) “Family” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together. Tex. Fam. Code Ann. § 71.003 (West) “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. Tex. Fam. Code Ann. § 71.005 (West). Member of a household” includes a person who previously lived in a household. Tex. Fam. Code Ann. § 71.006 (West)

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

About the Authors Roberto Balli is a former Board Member of TCDLA and practices State and Federal Criminal defense in Laredo, Texas, but travels to Federal Courts throughout the state and country. Roberto has significant criminal trial and criminal appellate experience. He is a former First Assistant District Attorney in Webb and Zapata Counties, where he also served a Chief Prosecutor of the Domestic Violence Unit. Roberto is Board Certified in Criminal Law by the Texas Board of Legal Specialization and by the National Board of Trial Advocacy. Roberto earned his JD from the University of Houston Law Center in 1995. Claudia V. Balli is a Board Member of TCDLEI, practicing State and Federal Criminal defense in Laredo, Texas while parenting. Claudia practices criminal defense, both at the trial and appellate levels. Claudia earned her JD from St. Mary’s University School of Law in 2013, graduating cum laude and receiving multiple honors and awards. Claudia was the Symposium Editor for the Scholar: St. Mary’s University Law Review on Race and Social Justice. Roberto Balli and Claudia V. Balli are married to one another and are law partners at Balli & Balli Law Firm, LLP, in Laredo, a firm dedicated to Federal and State criminal defense and criminal appeals. Roberto and Claudia have published several articles and papers together. Roberto can be reached at robertoballi@sbcglobal.net or (956) 712-4999. Claudia can be reacted at claudiavballi@yahoo.com or (956) 712-4999.

BASICS OF PROTECTIVE ORDERS FOR CRIMINAL DEFENSE LAWYERS

Texas Criminal Defense Lawyers Association

Sex & Violence September 9-10, 2021

Topic: Grand Jury Packets Speaker:

Gerry Morris 505 W. 12th St. Suite 206 Austin, Texas 78701 (512) 478-0758 Phone (877) 497-8347 Fax egm@egmlaw.com email egmlaw.com website

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

Examples of Grand Jury Packets AND Attorney Generals Opinion

E. G. Morris Law Office of E. G. Morris 505 W. 12th St. Suite 206 Austin, Texas 78701 512.478.0758 office 877.497.8347 fax

EXAMPLE 1

Law Office of E. G. Morris E. G. “GERRY” MORRIS BOARD CERTIFIED CRIMINAL LAW TEXAS BOARD OF LEGAL SPECIALIZATION egm@egmlaw.com

SUITE B 608 W. 12TH ST. AUSTIN, TEXAS 78701 (512) 478-0758 FAX: (512) 478-0784

SUZANNE M. SPENCER OF COUNSEL sms@egmlaw.com

www.egmlaw.com

MARIAH C. ANGER MARJORIE I. BACHMAN

LEGAL ASSISTANT mca@egmlaw.com

mib@egmlaw.com

April 30, 2012 Christopher Baugh, Esq. Travis County District Attorney’s Office 501 W. 11th St. Austin, TX 78701 Re: State v.

D1DC-11-302569

Dear Mr. Baugh: Thank you for allowing me the opportunity to present a brief statement and other information to the Grand Jury for its consideration in case. We hope that after reviewing the case, the Grand Jury will vote to return a No Bill. Mr. is alleged to have committed the offense of Sexual Assault by engaging in sexual intercourse with the alleged victim without her consent. Mr. adamantly denies that he committed the offense. When originally questioned by the police, Mr. offered to take a polygraph examination. Once Mr. retained me we immediately arranged for him to take a polygraph test with a well-respected examiner, Bruce Stevenson. Mr. Stevenson is formally the chief polygraph examiner with the Austin Police Department and now regularly conducts polygraph exams for the Travis County Community Supervision Department to determine whether individuals on probation for sexual offenses have reoffended or otherwise violated their probation. Mr. Stevenson’s resume is included with this letter. A copy of Mr. Stevenson’s report of the results of Mr. polygraph test is included with this letter. Mr. was determined to have given truthful answers to the following questions: Relevant Q1: Regarding whether or not you had consensual sex with Veronica in August 2011, do you intend to answer truthfully all questions about that? Answer Yes.

Relevant Q2: Did you in any use any force on Veronica sexual contact with you in August 2011? Answer No. Relevant Q3: Did Veronica August 2011? Answer No

to have any

ever say no to having sex with you in

I have interviewed Ricardo Roman about the events of the evening. Mr. Roman told me that Ms. was very affectionate towards Mr. during the evening and it appeared to him that the couple was getting along well. After leaving the Bar District, Mr. drove Mr. Roman to his apartment. (He did not jump out of Mr. vehicle as the Affadavit for Warrant of Arrest claims.) During the ride to Mr. Roman’s apartment Ms. was in a good mood and expressed a desire to continue the evening with more drinking. After dropping off Mr. Roman Ms. began to feel ill. She requested that Mr. take her home. He started to her apartment but she became sick on the way. Mr. stopped to let her throw up. During this time the sprinklers did come on in the area where he had stopped and she and Mr. got wet. She eventually requested that Mr. take her to his apartment. He did so and she spent the night there. At no time did Mr. force Ms. to have sex with him. The next morning she went with him to clean up his truck. He did not force her to stay in his truck or to do anything. He thought that they were getting along fine and believed that they were developing a relationship. The next day after Mr. to Ms. home she began to text message him to ask him if he had used a condom the night before. Mr. saved most of the text message conversation and it is included with this letter. As you can see Ms. appears to become upset because she perceived that Mr. was refusing to talk about the subject. At one point she says: “U wanna ignore me so f**k off and learn the hard way. Bye.” I respectfully suggest that the grand jury review the information included with this letter and consider hearing testimony from Ricardo Roman. The grand jury may also want to hear from Ms. before deciding this important matter. Thank you. Sincerely,

E. G. Morris

EXAMPLE 2

Law Office of E. G. Morris 2202 LAKE AUSTIN BLVD. AUSTIN, TEXAS 78703 OFFICE (512) 478-0758 FAX (877) 497-8347

E. G. “GERRY” MORRIS BOARD CERTIFIED CRIMINAL LAW TEXAS BOARD OF LEGAL SPECIALIZATION egm@egmlaw.com

www.egmlaw.com

MARIAH C. ANGER OFFICE MANAGER mca@egmlaw.com

R. PAIGE FARRIMOND

MARJORIE I. BACHMAN

LEGAL ASSISTANT rpf@egmlaw.com

OF COUNSEL mib@egmlaw.com

ASHLEIGH N. BABIC

SUZANNE M. SPENCER

LEGAL INTERN anb@egmlaw.com

OF COUNSEL sms@egmlaw.com

February 24, 2017 Ms. Monica Flores Assistant District Attorney 314 W. 11th St. #300 Austin, Texas 78701 Re: Dear Ms. Flores: Thank you for allowing me the opportunity to present a brief statement and other information to the Grand Jury for its consideration in ’ case. We hope that after reviewing the case, the Grand Jury will vote to return a No Bill. To the Members of the Grand Jury: is alleged to have committed the offense of Aggravated Sexual Assault of a Child. The alleged victim is , the daughter of ’ now exgirlfriend, . was 8 years old at the time in question. Specifically, is accused of licking on her vagina. is adamant that he didn’t do that and has never engaged in any sort of sexual activity with

As the Grand Jury may know, a person accused of an offense does not have the right to obtain specific information about the accusation before they are indicted other than whatever information is contained in the arrest warrant affidavit. However, in this case, Ms. Flores and her predecessor were good enough to provide me with the police report, screen shots of text messages and, most importantly, an opportunity to watch the video recorded interviews of conducted by a forensic interviewer at the Center for Child Protection (CCP). I also obtained by subpoena the records for cell and home phones.

– Page 1

On April 16 of last year, agreed to babysit and her 9 year old brother , while went to dinner with a friend visiting from out of town. While visited a friend in the neighborhood, and went to a 1 local target store and then went to pick up something to eat. They then went a few short blocks to Slaughter Lane where there are a Wendy’s and a Panda Express restaurant next to each other. wanted something from Panda Express and wanted something from Wendy’s so ended up purchasing food from both restaurants. Records obtained from and from ’ credit card company show that the purchase at Wendy’s was last and occurred at 7:45 p.m. on then drove to her home. The address of the Saturday, April 16. 2 Wendy’s restaurant is 305 W. Slaughter Ln., and home is located at Google Maps shows the driving distance to be 3.4 miles and estimates the driving time to be 10 minutes. 3 At approximately 8:11 p.m. received a call on her cell phone from her home phone which she did not answer and the call went to voice mail. She received another call from her home a few seconds later which she also did not answer and that call also went to her voice mail. That call stayed connected for over two minutes possible indicating that a lengthy voice mail was left. A third call to cell phone from her home phone was received at approximately 8:45 p.m. Again she did not answer and the call was routed to her voicemail. 4 Finally, at approximately 9:47 p.m. answered a call from her home phone that lasted just over twelve minutes. 5 According to statement to a police officer on April 17, she had first missed a call from her daughter the previous evening at about 6:30 p.m. No call at that time is reflected on her phone records. She said that she received another call from at about 8:11 p.m. and she answered it. 6 She reported to the officer that was very upset and eventually told her that she was falling asleep on her bed and that . had licked her on her “private spot.” In a later interview conducted by a police detective on April 26, 2016, reported that she had received two missed calls from

Exhibit 1 is a screen shot from phone showing a transaction on his USAA credit card at the Target store in the Southpark Meadows shopping center on April 16. 2 Exhibit 2 is the information received from USAA. Exhibit 3 is a photograph of a transaction record provided by Wendy’s. 3 Exhibit 4 is a Google Maps view of the route. 4 Excerpts from phone records are attached as Exhibit 5. The referenced phone calls made from her home phone to her cell phone are highlighted in green. The time the call was placed is shown in Coordinated Universal Time (UTC) which during Daylight Savings time is five hours ahead of Austin local time. So five hours must be subtracted from the time shown on the phone records. Also, when a call goes to voice mail two entries show up on the phone records, the entry showing the call ringing the cell phone and the entry showing the transfer to voice mail. 5 See Exhibit 5. 6 Exhibit 6 is an excerpt from the police report authored on April 17, 2016 authored by Austin Police Department Officer Brian McKalip memorializing his interview of on that day.

– Page 2

was upset. her home phone and answered the third one. 7 She again related that was initially reluctant to talk because she said someone was in the room that she didn’t want to talk in front of. told her to go to her room. Once she got there she told her mother that had touched her “down there.” After hearing this immediately headed for home and, on the way, texted to tell him to leave the house. He complied. Records reflect that this text exchange took place from approximately 10:05 p.m. to 10:08 p.m. In the exchange, tried to speculate 8 what might have upset . When she reached her home, she again talked to Her daughter then told her that had licked her on her vagina. On April 18, 2016, was interviewed at the CCP by a forensic interviewer. She told the interviewer that on the evening in question she had been at a neighbor’s house rather than with at Target and then the two restaurants. 9 She said that was at her home when she returned. She described laying on her bed to watch the movie “Frozen” on her TV. When the questioning turned to whether . had done anything to her, she refused to answer. was again interviewed at the CCP on April 26, 2016. She again described being at her friend’s house and then returning to her home where was. She related that she lay down on her bed to watch “Frozen” and soon fell asleep. was not in the room at that time. She woke up and he had entered the room. She again went to sleep. According to her, then licked her on the vagina. However, in the videotaped statement she clearly described the alleged conduct as having happened while she was asleep. She stated that he removed her clothes, performed the act and put her clothes back on her before she woke up. She told the forensic examiner that she felt wetness on the side of her private area and that it was “cold.” said that she then got up and called her mother. However, the first two times she called her mother did not answer. The third time she called, her mother answered and she told her mother that had touched her inappropriately. story simply does not make sense or match the available evidence. First, and most importantly, told the forensic interviewer that she remembered licking her vagina while she was asleep. The forensic interviewer went over this with her at least twice with the same results. She said that he removed her clothes, performed the act, and placed her clothes back on before she woke up. She 7

Exhibit 7 is an excerpt from the report written by Austin Police Department investigator Leif Guevara detailing his interview of on April 26, 2016. told Inv. Guevara that made statements to her about the allegations that weren’t denials. See Exhibit 8. He is clearly stating that he doesn’t know what is talking about. 8 Exhibit 8 is a screen shot from phone. 9 The records showing purchases at both Wendy’s and Panda Express support ’ recollection that he and went to those restaurants together.

– Page 3

stated that she knows that he licked her down there because the side of her vagina was wet and it felt cold. We can only speculate that has been exposed to pornography or somehow picked up some knowledge about oral sex, but she was inaccurate as to what sensation she would have felt had it actually occurred. The sensation would have been warmth rather than cold. She did describe having been on all fours when he was allegedly licking her, something that she could have easily learned from being exposed to pornography. Unfortunately, there are multiple sources nowadays where a child can obtain this type of knowledge. Also, story about calling her mother twice after this allegedly happened then finally reaching on the third try is shown by the phone records to not be true. made four calls to her mother that evening. The first two calls were a few seconds apart at approximately 8:11 p.m., the third was made at approximately 8:45 p.m. all three of these calls went to voice mail. The fourth and final call, which was answered, was made at approximately 9:47 p.m. Clearly, this is the call where told her mother that something had happened because at 10:05 p.m. began texting and shortly thereafter asked him to leave. In her videotaped interview, describes watching most of the movie “Frozen” before falling asleep the second time. ’ credit card records show that he was at Wendy’s at 7:45 p.m. It is a ten minute drive to house. There would not have been time for to have watched most of the movie by 8:11 p.m. even if she had started immediately upon arriving at her home. The scenario that fits the evidence is that called her mother before watching the movie, and called her again when she woke up over an hour and a half later after having dreamed that had performed the alleged act. We all instinctively want to accept a child’s allegations of this sort as true and take action to punish the perpetrator and protect the child. However, the facts in this case show that, through no fault of her own, is reporting something that, in fact, didn’t happen. There is no physical or medical evidence supporting the allegation. The charge is based entirely on belief that something happened to her while she was asleep. This allegation has been devastating to . There is nothing in his past that in any way shows that he is the type of person who would do something like this. He is a 29 year old Army veteran who spent 11 months in Afghanistan in a combat zone as a medic. After being honorably discharged from the service, he attended Virginia College in Austin to pursue a career as a surgical technician. He earned an Associate Degree from that school. At the time these allegations were made he was employed at Brackenridge Hospital as a Sterile Processing Technician. As a result of his arrest he lost his job.

– Page 4

has no criminal history or any other past behavior that would identify him as someone who would do something like this. He is understandably terrified and in disbelief that he could be charge with a serious offense like this based on a report from a child that something happened to her while she was sleeping. respectfully asks that the Members of the Grand Jury consider the materials submitted today and to make the decision to vote for a No Bill in his case. Sincerely,

E G Morris

– Page 5

EXAMPLE 3

Law Office of E. G. Morris 2202 LAKE AUSTIN BLVD. AUSTIN, TEXAS 78703 (512) 478-0758 FAX: (877) 497-8347

E. G. “GERRY” MORRIS BOARD CERTIFIED CRIMINAL LAW TEXAS BOARD OF LEGAL SPECIALIZATION egm@egmlaw.com

www.egmlaw.com

SUZANNE M. SPENCER OF COUNSEL sms@egmlaw.com

MARIAH C. ANGER MARJORIE I. BACHMAN

LEGAL ASSISTANT mca@egmlaw.com

OF COUNSEL mib@egmlaw.com

September 8, 2015 Stephanie McFarland, Esq. Assistant Travis County District Attorney 314 W. 11th St. #300 Austin, Texas 78701 Re: Dear Ms. McFarland: Thank you for allowing me the opportunity to present a brief statement and other information to the Grand Jury for its consideration in case. We hope that after reviewing the case, the Grand Jury will vote to return a No Bill. TO THE MEMBERS OF THE GRAND JURY is accused of sexually abusing his five years old daughter, He adamantly denies those allegations. He will take the unusual step of appearing before you give you the opportunity to meet with him and hear how he came to be falsely accused of this horrific conduct. These allegations are the result of a bitter divorce and now a hotly contested custody fight with ex-wife and the mother of and her twelve years old brother, Because there have been numerous hearings in the custody matter, a great deal of information has been developed concerning how these allegation came to be. The evidence gathered in the course of the custody case and the investigation by Child Protective Services has revealed that story of sexual abuse by her father was the result of a relentless campaign by her mother to perhaps unwittingly obtain from her damaging false allegations against Because of young age and the position of authority her mother occupies in her young world, was particularly susceptible to being influenced to tell a story that she believed would satisfy Ms. She began with interrogating about an innocent incident with what forensic physiologist, Dr. Alissa Sherry, described as “…some of the most inappropriate line of questioning and suggesting I have seen in my years as a forensic psychologist.” What followed was a scenario in which Ms. relentlessly pressed this investigation, despite 1

statements to investigators that nothing improper had happened. She eventually succeeded in influencing to the point that she now makes allegations of sexual abuse against her father which not only have no basis in fact, but contain descriptions of conduct that is physically impossible. Unfortunately, Ms. has also involved twelve years old in the custody proceedings and has blatantly violated a court order in an attempt to alienate him from his father. In an attempt to remove Travis County Judge Lara Livingston from the custody case who had not ruled to her liking, she filed a motion to recuse (remove the judge) swearing that had witnessed and his father, making some sort of delivery to Travis County Sheriff Greg Hamilton at his home, who she maintained is a political ally of Judge Livingston which, in turn, somehow made her unfit to preside over the custody matter. In direct contradiction of a court order, she allowed her son to speak to hear conversations between her and about the sexual abuse allegations. is now understandably alienated from his father. A contempt motion is currently pending seeking to punish for violating the court’s order. Because so much information is available showing that these allegations are false, it is a challenge to present the information concisely so that it will not take more time to review it than the grand jury has available. I will attempt to summarize the information with references to attached documents from which the information is taken. Career and his Divorce From is a licensed real estate broker. He began his career in real estate in 1998 as a salesman and, in 2000 became a broker. For several years was successful in his real estate business. practiced law for a number of years until an illness necessitated that she give up her practice. and married in 2003, soon divorced and then remarried. In 2008, when the real estate market took a downturn, decided to fulfill a lifelong dream to become a law enforcement officer. He worked for six years as a deputy for the Travis County Sheriff’s Office, earning superior reviews during his time there. In 2014, with the real estate market back in full swing, he was offered a job with Berkshire Hathaway Texas. He is now a senior business development manager in charge of nine offices and approximately 130 agents. and divorced again in 2013. This divorce was acrimonious with some six contested hearings over efforts to severely limit visitation with his children. The outcome was that was awarded “expanded standard visitation” which means that he was granted more visitation than is ordinarily ordered. He was given the right to pick up his children on every other Thursday and bring them to stay with him at his home until the following Monday morning. There were other issues in

The foregoing can be verified through

when he appears before you.

the divorce that were not decided in custody award. 2 Ms.

favor but the main issue of contention was the

Suggestively Questions

About

Visitation

From the time that the divorce was final was aware through his conversations with his son, that when would return his children on Monday mornings from his weekend visitations, would question them in detail about what they had done while in their father’s care. discussed this with his father because the questioning was so intense that it became annoying to him. 3 had his children over this past Easter weekend. On April 4, 2015, the Saturday before Easter, and his children were going the spend time on his boat at the lake. He had made an appointment for Saturday morning to get the stereo in the boat repaired and he planned to take his children with him to that appointment. They were running late so he told and “Speed showers for everyone,” to get them to hurry up. was in the shower in the bathroom where was shaving. is not yet able to wash her own hair so took off his robe, entered the shower with her, soaped her hair, rinsed her hair and exited the shower. and his children then went to the appointment to fix the boat’s stereo and ultimately to the lake. They continued to enjoy the rest of the weekend together and he returned his children to on Monday morning. has testified as to what happened twice in the course of the custody proceeding. He has been interviewed by and investigator from Child Protective Services and voluntarily met with a detective from the Travis County Sheriff’s Office for an interview. Each time he has relayed this same account of what happened that Saturday morning. When was returned to her mother on Monday, April 6, 2015, according to Ms she mentioned that she her father had gotten into the shower with her. What happened next is in dispute. Ms. says that told her that her father had engaged in sexual contact with her. According to while driving her daughter home from school that Monday, spontaneously began to tell that she had been in the shower with her father that that she could feel his “tee tee” on her back. She supposedly told her mother that “…tee tee had become huge and in the shower he had said to turn around and close your eyes. ‘We’re going to do shampoo,’ and that his penis was going on her back and that after the shower he had told her ‘Don’t tell your mom about this or anybody else.’” 5 According to went on to describe how “tee tee’ looked, despite having said that her eyes were closed. What is not in dispute, however, is that and attempted to question about whether 2

set up a hidden camera in her home father had engaged in sexual

Ms. dissatisfaction with the outcome of the divorce proceedings is evident in her Motion for Recusal of Judge. 3 is the source of this information and can confirm it for you. 4 testimony in the custody action on April 30, 2015, p. 150-160. 5 Ms. testimony in the custody action on April 30, 2015 at p.5-6.

had been contact with her. 6 On the video it is revealed that, according to talking with about it “all day.” tried to tell that they hadn’t talked about it but one time but persisted saying, “We talked about it all day.” In the video, describes getting into the shower with her and touching his “tee tee” to her back. 7 In response to further questioning by her mother she talks about his small and big tee tee. She states that she didn’t see his tee because she had her eyes closed by she felt it. She stated that this was the only time it had happened. After making the recording of Ms. contacted the Child Protective Services division of the Department Family and Protective Services (CPS) and informed them of alleged outcry. Ms. explained later that because she had represented abused children as an ad litem during her days as an attorney, she was aware of the services offered by CPS and called them for guidance. 8 The Investigation by CPS and the Forensic Interview Reveal “No Credible Evidence” that Sexually Abused After Ms. report to CPS, an investigation was begun by CPS and the Travis County Sheriff’s Department. A forensic interview was scheduled for April 9, 2015, where was interviewed by a forensic interviewer trained to properly interview children where there has been an allegation of sexual abuse. Jonathan Pena, a child protective services investigator with the Department of Family and Protective Services was assigned to the case. In his testimony during the April 30, 2015 hearing in the custody case, he described the outcome of the forensic interview. After watching a recording of the interview he concluded that version of the events in the shower on April 4 with her father did not match those attributed to her in Ms. report to CPS. described penis touching her back in a manner that did not involve any sexual arousal. Investigator Pena concluded, as well as did the forensic interviewer, that there was no outcry of any criminal conduct. 9 was present outside of the interview room and was made aware of the outcome of the interview. After doing further investigation, including talking with Investigator Pena made the decision to close his file. He informed of this and she requested that he keep the file open while she attempted to get her children into therapy. Mr. Pena informed her that his file would be closed unless there was a further outcry. 10 Investigator Pena later submitted a recommendation that the case be closed with a finding that there was no reason to believe that the abuse occurred. 11 Investigator Pena was 6

Transcript of Questioning of told the detective from the Sheriff’s Department and testified in the custody hearing that it is possible that his penis inadvertently touched his daughter’s back as he was soaping and rinsing her hair, but he doesn’t believe that it did. 8 Ms. testimony in the April 30, 2015 hearing, at p. 8. 9 Pena’s testimony in the April 30, 2015 hearing at p. 24-25. 10 Pena’s testimony in the April 30, 2015 hearing at p. 32. 11 Pena’s testimony in the April 30, 2015 hearing at p. 45. The case remained open because of additional reports discussed below. Pena’s testimony at p. 52. 7

asked directly about his conclusion as to whether he found any evidence that sexually abused. He offered the following testimony:

was

Q. In connection with your investigation, Mr. Pena, as you've described it to the Court, did you ever find any evidence of sexual abuse of A. Not that we would -- that we found credible. 12 Ms.

Takes

to Brackenridge Psychiatric Emergency Center

Ms. didn’t agree with the forensic interviewer’s conclusion that didn’t make an outcry of sexual abuse. However, she admitted in her testimony in a hearing in the custody case, ”I think she said basically the same thing to me and the forensic interviewer. I don’t –actually, I don’t know of anything that would be that different.” She also didn’t agree with Investigator Pena’s decision to close the case and asked him to keep it open. Having been told that the case would remain open if there were new outcries of sexual abuse by Ms. took to Brackenridge Psychiatric Emergency Center on April 14, 2015 where was again interviewed. 13 At Brackenridge, licensed professional counselor John Robert Horton-Young interviewed both Ms. and Mr. Horton-Young reported that told him that something bad had happened to her at her father’s house but made no mention of any sexual activity. She talked about a pair of jeans being thrown at her by her father. She went on to discuss feeling ugly. Towards the end of the interview, she expressed a desire for her mother to take a sharp knife and end her ( life). 14 The only mention of the 15 sexual abuse allegations came from Mr. Horton-Young’s conversation with Ms. In fact, Mr. Horton-Young’s notes of session with Ms. and reflect that: mood was cheerful. Her affect and speech were appropriate. Her thought process and content was appropriate. She was open and cooperative to a point, but then stated she didn’t not [sic] want to talk anymore.” Her only comment about her was that he had done something that he shouldn’t have. The notes confirm that all of the 16 information about the alleged sexual abuse came from Ms. Mr. Horton-Young was of the opinion that had suffered some sort of trauma. By the time she saw him we know that had been with her mother exclusively for eight days, been interviewed by a forensic interviewer and by CPS as well as by her mother. Also, the video make of Ms. questioning of on April 6 shows a normal, happy little girl. mood appears to have changed dramatically after Ms. began her quest to pursue charges against

Pena’s testimony in the April 30, 2015 hearing at p. 58. Ms. testimony in the April 30, 2015 hearing at p. 131. 14 Mr. Horton-Young’s testimony in the April 30, 2015 hearing at p. 110 15 . Mr. Horton-Young’s testimony in the April 30, 2015 hearing at p. 114. 16 Crisis Assessment, April 14, 2015. 13

Mr. Horton-Young recommended that receive psychiatric care. The next day, April 15, Ms. took back to Brackenridge Psychiatric Center,. 17 At this time, there was a recommendation that undergo intensive outpatient treatment. Then, the next day, Ms. took to the Guild Guidance Center. After the initial session there, Ms. did not return with She did see a counselor there on that initial visit and there was no mention of any sexual abuse. 18 Through a family member, Ms. located a therapist for named Karen Over a period of several weeks Dr. saw almost daily. Over this time story of sexual abuse expanded to include other acts. Dr. who hold a Doctorate in Educational Psychology but has not received the training or education to be licensed as a psychologist, has made several reports to CPS about this additional detail. These reports somehow resulted in again being subjected to a forensic interview, this time with an interviewer in Williamson County. Although we have not been provided with much information about the result of this interview, it is our understanding that now reports, among other things, that she was sexually abused by while they were in a bath tub together. has apparently described her body contorting during the abuse in a way that is not humanly possible. Additionally, accounts to Dr. of sexual abuse, allegedly by her father, have become increasingly bizarre. For instance, Dr. notes reflect that now reports that her father goes to bed naked with her and that her father is “ALWAYS ALWAYS” naked with her and his “front part gets big.” 19 ( does not sleep with his daughter nor does he sleep in the nude.) During another session, reported that her father put his penis in her mouth and peed, and then he cleaned it up with a rag and bleach. 20 In May of this year, in an attempt to have Judge Laura Livingston removed from the custody case, Ms. filed a sworn pleading making the following bizarre allegation: “Judge Lora Livingston is close friends with Travis County Sheriff Greg Hamilton, who was boss. Sheriff Hamilton and Judge Livingston share many political, religious, and social organizations in common, including the Travis County Democratic Party, and are friends on one another's personal Facebook Friends lists. Sheriff Hamilton has both a ''work" Facebook page called "Sheriff Greg Hamilton" as well as a "personal" Facebook page called "Greg Hamilton". It is the latter that includes his Friend, Lora J. Livingston. Importantly, months after the divorce was final, and her son, were browsing family photos on a computer. One photo was of uniformed accepting his "Top Gun" award from Sheriff Greg Hamilton. 17

testimony in the April 30, 2015 hearing at p. 138. The testimony at the hearing on April 30, 2015 was unclear as to whether Ms. was told that the Child Guidance Center could not offer appropriate services for or whether she failed to return for a scheduled appointment. Ms. testimony in the April 30, 2015 hearing at p. 138. However, there was no mention at the April 30 hearing of any outcry of sexual abuse by during her session at the Child Guidance Center. 19 therapy note of April 23, 2015 as reported in Expert Report Addendum of Dr. Alissa Sherry. 20 therapy note of July 2, 2015 as reported in Expert Report Addendum of Dr. Alissa Sherry. 18

said, "I know that guy." described that back when had come to town before the divorce court, and drove to the man in the photo's house. The man in the photo came out of the house in a bathrobe and slippers. The house was behind a gated wall with crossed concrete pavers for the driveway and there was a two story house. said that and the man spoke for about 30 minutes. handed the man a large brown envelope. This information was not known to during the divorce. There is no reason that a very low ranking officer with no social relationship to the Sheriff, would need to take his divorce attorney on a weekend morning to deliver documents and speak to Sheriff Greg Hamilton in the front yard at his home. was deeply concerned that this had occurred.” 21 These allegations are, of course, completely untrue. Sheriff Hamilton provided us with an affidavit to that effect which I’ve included with these materials. 22 Ms. was representing herself at the time they were made, and they were not pursued once she obtained counsel. Her previous counsel had withdrawn before the motion was filed, citing as among her reasons for withdrawal: The Motion for Recusal was heard by a visiting judge and denied. Judge Livingston is still presiding over the custody case. “Petitioner insists upon pursuing an objective that Attorney considers repugnant or imprudent or with which Attorney has fundamental disagreement. Rule 1.15(b )( 4).” 23 The allegations in the Motion for Recusal of Judge raise several troubling issues. Ms. has either completely fabricated these allegations under oath or she has somehow influenced her son to make damaging allegations against is father and grandfather. She has blatantly disregarded a court order not to discuss the allegations of sexual assault with or allow them to be discussed in his presence. 24 The result of her actions has been that now no longer wants to see his dad because he has come to believe that sexually abused Expert Analysis has retained a well-respected, well credentialed licensed psychologist to help explain to a trier of fact as well as to him how false allegations such as these can be planted in the mind of a five year old by a vindictive parent. Dr. Alissa Sherry, an Associate Clinical Professor at the University of Texas with extensive clinical and forensic experience, has evaluated all of the available materials in this case and authored a report of her analysis. The report is included with these materials and is quite detailed. I refer the Grand Jury members to the report rather than quote it extensively here. The high points are that children of age are extremely susceptible to the creation of false memories by improper questioning about an event. Their susceptibility is increased 21

Motion for Recusal of Judge Affidavit of Sheriff Greg Hamilton 23 Motion to Withdraw With Cause. 24 First Amended Motion for Temporary Orders and Motion for Contempt 22

in situations where there is significant bias on the part of the questioner to have the story go in a certain direction. Another factor that significantly increases the likelihood of the child reporting a false allegation against a parent is the desire of the parent who questions the child to alienate the child from the accused parent. Dr. Sherry sets out in detail the suggestive questioning technique of Ms. and concludes that the questioning “…devolves into some of the most inappropriate line of questioning and suggesting I have seen in my ears as a forensic psychologist.” 25 Upon examining the therapy notes created by Dr. chronicling her counseling sessions with Dr. Sherry authored an addendum to her original report. In her addendum, she provides a detailed chronology of visits with Dr. and the evolution of her stories of sexual abuse. Again, the report is detailed, and, rather than quote it extensively here, I urge the members of the Grand Jury to read it in its entirety. Dr. Sherry goes into detail concerning the process whereby a well-meaning therapist can contribute to the false allegations because of her confirmation bias, or the tendency to find evidence of what one has already concluded exists.26 Dr. Sherry offers the insight that when Ms. reports that regresses following supervised visits with her father, neither she nor Dr. consider the possibility that may regress because bias is Dr. she is being returned to her mother. 27 Also, quite telling of Ms. Sherry’s observation that: “When she learned that CPS had no finding of sexual abuse and did not make an outcry, instead of being relieved, she turned up the effort to get an outcry by taking her to multiple professionals and having her interviewed multiple times.” 28 To assist you in determining the appropriate disposition of this case, I retained Dr. William Lee Carter, a licensed psychologist with offices in Waco, to evaluate its merits. I chose Dr. Carter because I see him most often as an expert witness retained by the Travis County District Attorney’s Office to testify at trial in child sexual abuse cases. He tells me that he has been retained by this District Attorney’s Office and others over 200 times. In his attached report he evaluates the strengths and weaknesses of this case from the standpoint of the arguments both sides would make at trial and concludes that triers of fact will “struggle to find him guilty of child sexual abuse.” 29 Although Dr. Carter has chosen to state his ultimate opinion in terms of whether a jury would convict his analysis seizes on the same factors discussed by Dr. Sherry. Those factors are the suggestive interview technique of a parent in a high stress custody dispute, her actions in relentlessly pursuing the notion that her child had been sexually abused, and the effect of the repeated therapy sessions with Ms. Again, as with Dr. Sherry’s report, Dr. Carter provides a detailed analysis that I will not quote extensively here. I urge the members of the Grand Jury to read his memo in its entirety.

Dr. Alissa Sherry, Expert Report at p. 10. Dr. Alissa Sherry, Addendum to Expert Report, p. 3-5. 27 Dr. Alissa Sherry, Addendum to Expert Report, p. 5. 28 Dr. Alissa Sherry, Addendum to Expert Report, p. 4. 29 Dr. William Carter, Memo p. 4. 26

Dr. Carter will testify before you to aid you in your decision. I invite you to question him at length. You will find that he can provide you valuable assistance in reaching your decision. We ask that you consider this case carefully. Although would likely be found not guilty by a trial jury, the mere allegation of sexual abuse against a child, especially a child of age, would be devastating to him personally and professionally. But most devastating to him would be the thought that someone would believe that he sexually abused his daughter. Sincerely,

E G Morris

January

28,

1975

The Honorable A. R. Schwartz Chairman, Jurisprudence Committee Texas State Senate Capitol Building Austin, Texas

Dear Senator

Opinion No.

H-

508

Re: The applicability of articles 36.03(a)(l) and 36.04(a) to correspondence by an attorney in behalf of a client addressed to a grand jury.

Schwartz:

You have asked our opinion as to the applicability of sections 36.03 and 36.04 of the Texas Penal Code to situations where an attorney corresponds with a grand jury in behalf of a client and furnishes a copy of such correspondence to the prosecuting atto~rney. You describe the situation involved as follows: Under Chapter 36 of the new Texas Penal Code, Sets. 36.03(a) (1) and 36.04(a)(b), certain influences toward public officials are made criminal. It has been the practice in Texas for years to permit counsel to correspond with Grand Juries regarding pending matters provided that opposing counsel is given copies of the correspondence and that the correspondence It is my understandcontains only a factual presentation. ind that such communication,when notice to opposing counsel,has not of the Grand Jury proceedings and appropriate under previous Texas it is the Grand Jury’s duty to hear case. . .

2290

made openly and with affected the secrecy has been found law on the notion that all of the facts in a

The Honorable

A. R.

Schwartz

page 2

(H-508)

My question relates to whether Sets. and 36.04(a)(b) specifically, or any other Chapter 36 of the new Texas Penal Code, such correspondence by Texas attorneys Juries. Section

36.03

provides

(a) A person coercion he:

in pertinent commits

36.03(a)(l) Sections of now prohibit to Texas Grand

part:

an offense

if by means

(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty: . : . Section

36;04

reads

in part:

(a) A person commits an offense if he privately. addressees a representation, ‘~entreaty, argument, or other communication to any public servant who exer-’ cises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law. (b) For purposes of this section, ‘adjudicatory proceeding” means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.

36.03

Notice is made that the term “public servant” as used in sections Section l.O7(a)(30)(B). and 36.04 includes a grand juror.

Considering first the relevance of section 36.03 to the question posed, it is clear that the action of a lawyer, in addressing a grand jury come within the purview by letter in behalf of a client, does not necessarily

p. .2291

The Honorable

A. R.

of section 36.03. is not “coercion” include a “threat.

Schwartz

page 3

(H-508)

When it is limited to factual matters such communication as defined by section 36.01, since “coercion” must ” See sec. 36.01, Texas Penal Code. -

Thus, an attorney’s communication by letter with a grand jury in the course of representing a client, the’letter containing no “threat” to take some action against the grand jury, does not violate the injunctions of section 36.03(a) (1) of the Penal Code. You observe that the lawyer writes to the grand jury as a body and not individually to a member and furnishes a copy of the letter to the opposing counsel, the prosecuting attorney. It is evident, that the attorney has not “privately addressed a representation, entreaty, argument or other communication to&j public servant” as would be required to generate a violation of section 36.04(a). We therefore are of the opinion that correspondence by a lawyer to a grands jury, where the communication is addressed to the panel and a copy is giverrto the prosecuting attorney and where there is no “threat” against the grand jury contained in the correspondence, is not conduct withi’ii’ tli e operation of either section 36.03 or 36.04. Further, we know of no other section of Chapter 36 of the Penal Code which would encompass the type of communication discussed herein. SUMMARY Correspondence of counsel addressed to a grand jury in behalf of a client, a copy of which is delivered to the prosecuting attorney, is not prohibited by articles 36.03(a)(l) or 36.04(a), nor by any other section of Chapter 36, Texas Penal Code, so long as it contains no threat. Very

truly yours,

Attorney

2292

General

of Texas

The Honorable

A. R.

Schwartz

page 4

(H-508)

APPROVED:

DAVID

KENDALL,

I C. ROBERT HEATH,, Opinion dom&tek lg

First

Assistant

Chairman .’ .,

2293

Texas Criminal Defense Lawyers Association

Sex & Violence September 9-10, 2021

Topic: Experts Speaker:

Nicole DeBorde Hochglaube 3515 Fannin St. Houston, TX 77004 ADDRESS 2 (713) 526-6300 Phone (713) 808-9444 Fax Nicole@HoustonCriminalDefense.com email

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

Experts Nicole DeBorde Hochglaube 2021 TCDLA nicole@debordelawfirm.com

What is an Expert? A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. There is a difference between a testifying expert and a consulting expert. Sometimes it is helpful to hire an expert to help provide an understanding some aspect of the case, but the expert may not be someone who should testify as to a defensive issue either because their information is not relevant or could be potentially damaging. It is not required that consulting experts be disclosed to the prosecution even when a request for notice of experts has been filed. Testifying experts on the other hand must be disclosed in certain circumstances. A testifying expert is just what it sounds like – an expert who will testify. There are limits to what an expert can opine upon. The proposed area of expertise must have scientific validity. There must be supporting documentation for the proposed area of expertise. It is helpful to know the proposed expert’s writings, prior testimony and any studies they have reviewed or conducted. Experts are not to be used for credibility determinations. United States v. Azure, 801 F.2d 336, 339-40 (8th Cir. 1986); see also United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995) and “Diagnosis” of abuse is inappropriate Salinas v. State, 166 S.W.3d 368 (Tex. App. - Fort Worth 2005, pet. ref’d).

Motions for Disclosure of Expert Witnesses

The rules of evidence will provide rules for the disclosure of expert witnesses and the reports they produce. Under Texas Rules of Evidence 702, 703 and 704, both sides are required to disclose the name and addresses of witnesses who are to offer testimony at the trial if the request is made 30 days before trial. Tex. Crim. Proc. Code Ann. § 39.14(b). The disclosure must be made no later than the 20th day before

trial. Id. You must be careful who you list as an expert because once the party is listed as a testifying expert, as opposed to a consulting expert, the opposing party may seek further information from or about him for use at trial. Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006). If the defense has not requested notice of expert witnesses, and the prosecution has not, it is not necessary or generally advisable to provide this information to the prosecution. A defense request, however, will trigger the duty to disclose testifying defense experts to the prosecution. There should also be a Motion for List of State Witnesses filed pursuant to 39.14 Texas Code of Criminal Procedure. Upon request, the state shall provide a list of its witnesses. It is always best to specific a deadline for the production of the State’s witness list. The motion can specify a specific date in which the notice must be given or a certain number of days before trial. Can They Talk to My Expert? Defense lawyers can and should contact most experts listed by the prosecution to understand in advance of trial what the expert will testify about. The prosecution, however, should not be contacting defense experts without permission. Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct provides: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 provides: “However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” Further, certain entities profess to be neutral governmental agencies and should not have a “side” to prefer. If their expert refuses to talk with you, this can provide

excellent fodder for cross examination, especially on the issue of bias. Bring a witness for the interview with the opposition’s expert and consider recording the meeting. But You Can Contact Theirs! In preparing to speak to the prosecution’s experts, and to cross examine them at trial, a thorough investigation of the expert and subject matter is required. Ideas on what types of materials to look for include: Lab reports, drafts, notes and worksheets Training Supporting materials Reports CVs and training Personnel files Prior testimony Protocols an manuals Equipment calibration, certification or inspection records Speaking engagements When you go to speak to the prosecutions expert, bring an investigator and record when possible.

Keeping Fake Science out of the Courtroom

There seems to be a trend by the prosecution in our jurisdiction to provide notices of intent to call expert witnesses describing every witness as an “expert”. Left to their own devices, some of these so‐ called experts are willing to opine that every fact they have reviewed is somehow consistent with sexual assault victimization.

The Texas Rules of Evidence provide guidance on qualifying an expert for testimony. Texas Rule of Evidence 705(b) provides for the voir dire examination of an expert about the underlying facts or data before an expert states any opinions before a jury. The court must permit examination about the underlying facts or data to take place outside the presence of a jury. During this hearing, a “Daubert Challenge” can also be made to challenge the “expert’s” qualifications, skill, experience, knowledge and education pursuant to TRE 702. The ability to challenge an expert is rooted in Daubert. Rule of Evidence 705(c) guides the court concerning the admissibility of an expert’s opinion. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion. Consider filing a motion in limine so that inadmissible opinions do not leak out in front of a jury. While a motion in limine will not preserve error, it will prevent the prosecution from poisoning the well by presenting portions of what should be inadmissible testimony before the jury. An expert’s opinion will be admissible only if it the expert is qualified, the testimony is reliable and relevant to a fact in issue. State v Vela 209 SW3d 128, 130 (Tex.Crim.App. 2006). Qualifications will be based upon the complexity of the field, how conclusive the expert’s opinion is, and whether the proposed area of expertise matches the area of inquiry. There are five factors that must be considered when determining whether proposed expert testimony is admissible. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1994). The five factor are:

•

Whether the theory or technique employed by the expert is generally accepted

in the scientific community •

Whether it has been subjected to peer review and publication

•

Whether it can be and has been tested

•

Whether the known or potential rate of error is acceptable, and

•

Whether the research was conducted independent of the particular litigation or

dependent on an intention to provide the proposed testimony. 705 Areas Inquiry •

the expert’s qualifications;

•

the validity of the underlying scientific theory used by the expert;

•

the technique used by the expert to apply the theory;

•

how the expert applied the technique;

•

the legitimacy of the field of expertise;

•

whether the subject matter of the expert’s testimony is within the scope of that field; and

•

whether the expert’s testimony properly utilizes the principles involved in the field What Can an Expert Say?

There are limits on what an expert can and cannot say. A witness may not give an opinion as to the truth or falsity of other evidence. Salinas v. State, 166 S.W.3d 368, 370 (Tex. App.—Fort Worth 2005, pet. ref'd). In almost every jurisdiction, expert testimony is not admissible as to the truthfulness of a child complainant. Id. A witness testimony is not required and therefore should not be admissible when the

jury is in possession of the same information and would be able to fully understand the matter and draw the proper inferences without the expert testimony. Id. at 371. In a case where the expert’s testimony is just a repetition of the complainant’s story, not information based on an expert opinion, the “expert” testimony would only serve to bolster impermissibly the complainant’s testimony. Where a proposed witness is simply repeating the complainant’s testimony, there is no need for an expert since an expert is not needed to simply repeat to the jury what they can hear from someone else. TRE 702 states that the expert testimony should only be admitted if it would “assist the trier of fact to understand or to determine a fact in issue.” Further, experts should not be used for credibility determinations. States v. Azure, 801 F.2d 336, 339-40 (8th Cir. 1986); see also United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995). It is also not appropriate for an expert to render a “diagnosis” of abuse. Salinas v. State, 166 S.W.3d 368 (Tex. App. - Fort Worth 2005, pet. ref’d). Beware of Words Without Meaning The term "reasonable medical certainty" has no scientific meaning. Its legal meaning is at best ambiguous, at worst misleading. It is not required by the Federal Rules of Evidence, nor any other evidence code. More importantly, the term ("scientific certainty") is problematic for a different reason-misleading the jury and should be excluded under Federal Rule 403 for that reason alone. Paul Gianelli, Scientific Evidence" Reasonable Scientific Certainty": A Phrase in Search of a Meaning, Crim. Just., Spring 2010, at 40, 41. Additional Tools •

Police Agencies’ Use of Force Policies

•

Crime Scene Reconstruction

•

Independent evaluation of scientific evidence

•

Strengthening Forensic Science in the United States: A Path Forward https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf

•

National Commission on Forensic Sciences (now disbanded – archived information) https://www.nist.gov/interdisciplinary-topics/national-commission-forensic-science DOJ version here: https://www.justice.gov/opa/file/891366/download

Texas Criminal Defense Lawyers Association

Sex & Violence

September 9-10, 2021

Topic: Parole & Civil Commitments Speaker:

David O’Neil

3700 North Main Street Houston, TX 77009 (713) 863-9400 Phone (832) 879-2185 Fax david@paroletexaslawyer.com email www.paroletexaslawyer.com website

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

WHAT DEFENSE ATTORNEYS NEED TO KNOW ABOUT PAROLE AND OTHER POST-CONVICTION ADMINISTRATIVE MATTERS By:

David P. O’Neil September 2021 3700 North Main Street Houston, TX 77009 Ph: 713 863-9400 (office) 936 661-5648 (cell) Email: david@paroletexaslawyer.com Website: www.paroletexaslawyer.com

What Defense Attorneys Need to Know About Parole And Other Post-Conviction Administrative Matters

Parole eligibility requirements in Texas. A.

General.

Texas parole law does not create a reasonable expectation of a liberty interest in the granting of parole, as some other states do. As a result, due process rights do not attach to the granting of parole in Texas. See, Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997, cert denied). An inmate being considered for parole has no right to a hearing before the Parole Board, and boilerplate language used by the Board to notify an inmate of a parole denial complies with whatever due process rights an inmate may have to be informed of the reason for parole denial. Johnson v. Wells, 566 F2d. 1016 (5th Cir. 1978). Parole eligibility in Texas is governed by the law in effect at the time of the commission of the offense. Texas Government Code §508.145 establishes the eligibility for release on parole in Texas. The complexity of parole eligibility computations has increased dramatically over the years. The law governing parole for offenses occurring between January 1, 1966 and August 31, 1967 (59th Legislature) could be summed up in two sentences: All offenses are eligible for parole when calendar time plus good time credits equal 1/4, including any bonus and blood donation credits. The maximum time for parole eligibility is 15 years. Each time the Legislature meets they cannot resist changing and complicating the parole eligibility laws. The 65th Legislature (1977) gave rise to a new creature called mandatory supervision (MS). Initially, all offenses were eligible for mandatory supervision. Over the years, the legislature has steadily added to the list of offenses not eligible for mandatory supervision, while adding to the complexity of parole eligibility laws. Effective September 1, 1996 mandatory supervision became discretionary, giving rise to the anomaly of “discretionary mandatory supervision.” In recent years, the legislature has added some non-aggravated offenses to the list of offenses for which the parole eligibility requirements are the same as for aggravated offenses under 42.12(3)(g). There is now even an offense for which an individual can become eligible for mandatory supervision before they become eligible for parole. Today it takes four pages to summarize parole and mandatory supervision eligibility. When the Legislature next meets, some of the information in this paper will likely be outdated. Since one’s parole and MS eligibility dates are determined by the law in effect at the time of the commission of the offense, the Texas Board of Pardons and Paroles has included a Parole and Mandatory Supervision Eligibility Chart for “easy” reference at: http://www.tdcj.texas.gov/documents/pd/PIT_English.pdf (at Appendix A). As of the date of this article, the chart reflects parole eligibility requirements through the 84th Legislature. 2

The Board’s general web site is at: http://www.tdcj.state.tx.us/bpp. It contains a wealth of information on all matters related to pardons and paroles, including Parole Board policies and directives. It is a must read for anyone seriously interested in pursuing parole representation. Statutes governing parole matters include Texas Government Code, Chapter 508, and Texas Administrative Code Title 37, Part 5. This paper is designed to cover the basics that all defense attorneys should know about parole law. It is not intended to cover all matters related to parole in Texas, as that would require a seminar of its own. However, over the years, I have taken hundreds, if not thousands, of parole related calls where the caller has identified problems that were, for the most part avoidable. Beyond a discussion of parole eligibility requirements, this paper also discusses a number of those issues. One of the reasons trial attorneys need to be familiar with parole law is Ex Parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012), where the CCA stated: “We now disavow our prior decisions in Ex Parte Evans and Moussazadeh II to the extent that they (1) require parole-eligibility misinformation to form an essential part of the plea agreement in order to make a showing of an involuntary plea that resulted from ineffective assistance of counsel, based upon such misinformation and (2) fail to appropriately recognize the distinction between parole eligibility and parole attainment.” The court then found that trial counsel’s erroneous advice to his client regarding his parole eligibility constituted ineffective assistance of counsel and rendered his plea involuntary. Trial attorneys must at least have a clear understanding of the parole law effecting their clients when they advise them on the effect of a plea agreement. In Ex Parte Patterson, No. AP76,901-CR (Tex. Crim. App. October 31, 2012, per curiam, not designated for publication), the CCA also found defense counsel ineffective and granted relief where the applicant claimed his plea was involuntary “because trial counsel failed to advise him of the effects of the drug free zone allegation on his sentence.” (Drug free zone convictions have their own special parole eligibility issues that will be discussed below.) See also, Ex Parte Fisher, No. WR-85,297-01 Tex. Crim. App. July 27, 2016, per curiam, not designated for publication (plea was involuntary where client was advised parole eligibility for Engaging in Criminal Activity was ¼ flat and good time, when actually it was ½ flat). Not all cases involving ineffective assistance of counsel due to erroneous parole eligibility information will result in a determination that the plea was involuntary. In Ex parte Colquitt, No. WR-25237-04 (Tex. Crim. App. March 21, 2012, per curiam, not designated for publication), the CCA found counsel ineffective for incorrectly advising Colquitt that he would be eligible for parole in four years on his eight year sentence, as opposed to five years; but ruled that Colquitt was not entitled to relief since he had not established that he was prejudiced by the erroneous advice. Critical to the court’s determination was the fact that as part of the plea 3

agreement the State had waived five enhancement paragraphs and Colquitt did not demonstrate “that he would not have pleaded guilty but for counsel’s erroneous advice as to parole eligibility.” In deciding Ex Parte Ward, No. WR-92,193-01 (Tex. Crim. App. February 24, 2021, per curiam, not designated for publication), the CCA declined to extend its holding in Ex Parte Moussazadeh to cases “where counsel does not advise a defendant about parole eligibility.” That despite stating in Ex Parte Moussazadeh that “When a serious consequence is truly clear, counsel has a duty to give correct advice. Both failure to provide correct information and providing incorrect information violate that duty.” Ex Parte Moussazadeh, at 691. The issue was again before the court just a few months later in Ex Parte Allen, No. WR-62564-01 (Tex. Crim. App. May 12, 2021, per curiam, not designated for publication) when the court cited to the same exact language before sending the case back to the trial court for further development of the record. B.

Offenses ineligible for parole.

Certain offenses are ineligible for parole pursuant to Tx.Govt.Code §508.145(a), & (c-1): 1. An inmate under sentence of death, 2. serving a sentence of life imprisonment without parole, 3. serving a sentence for an offense under Section 21.02, TPC, (Continuous Sexual Abuse of Young Child or Children), 4. serving a sentence for an offense under Section 22.021, TPC, (Aggravated Sexual Assault) that is punishable under Subsection (f), i.e., where the minimum punishment is 25 years because the victim is under 6 or, where victim is under 14: SBI or attempt to cause death of the victim or another; by acts or words places victim in fear that any person will become victim for an offense under TPC §20A.02 (Trafficking of Persons), subsections(a)(3), (4), (7), or (8) or that death, SBI, or kidnapping of any person will be inflicted; deadly weapon used or exhibited; acting in concert with another who engages in intentional or knowing sexual contact ; or administers or provides to the victim any substance capable of impairing victim’s ability to appraise or resist the nature of the act. See also TPC §71.02(b) (Engaging in Organized Criminal Activity), LWOP if the offense alleged to have been committed is Aggravated Sexual Assault punishable under Subsection (f), 5. serving a sentence for an offense under Section 20A.03, TPC, Continuous Trafficking of Persons), if the offense is based partly or wholly on conduct constituting an offense under 20A.02 (Trafficking of Persons), Subsections (a)(5), (6), (7), or (8), 6. serving a sentence for an offense under Section 20A.02, TPC, (Trafficking of Persons), Subsections (a)(5), (6), (7), or (8), unless there is a guilty plea and the judge makes an affirmative finding under Art. 42.01991, CCP, that the 4

prosecutor, defense attorney, and the defendant agree in writing the defendant will be eligible for parole after serving, without consideration of good time, one half of the sentence or 30 calendar years, whichever is less, but not less than two years.

*Although not covered In 508.145, Sec. 12.42 (c)(4), TPC, describes certain repeat sex offenders >18 who shall be punished w LWOP (conviction under 20A.03 or any "sexually violent offense" (See 62.001(6) for definition) and previous final conviction under 20A.03 or SVO in Texas, or another state with substantially similar elements).

Offenses eligible for parole after 40 calendar years.

An inmate serving a life sentence for a capital felony under Section 12.31(a)(1), Penal Code (capital felony committed while the inmate was younger than 18 years of age), is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years. Tx.Gov’t.Code §508.145(b). D.

Offenses eligible for parole after 35 years.

“An inmate serving a sentence under Section 12.42(c)(2), Penal Code (certain repeat sex offenders), is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 35 calendar years.” Tx. Govt. Code §508.145(c). This involves cases where a defendant is sentenced to a mandatory life sentence under the habitual offender statute for: Child Trafficking under TPC §20A.02(a)(7) or (8) (causing the victim to engage in or be a victim of sexual offenses, or benefiting from such conduct of another); Indecency with a Child by Contact (TPC §21.11(a)(1)); Aggravated Sexual Assault (TPC §22.021); Sexual Assault (TPC §22.011): Aggravated Kidnapping under TPC §20.04(a)(4), if there was intent to violate the victim sexually; Burglary under TPC §30.02(d), if the burglary involved a habitation and the intent to commit a sexual offense under TPC §20A.02(a)(7) or (8), TPC §21.11(a)(1), TPC §22.021, TPC §22.011, or TPC §20.04(a)(4). AND, the defendant was previously convicted of: Sexual Performance by a Child (TPC §43.25); Possession or Promotion of Child Pornography (TPC §43.26); or Obscenity (TPC §43.23) punished under §43.23 (h), i.e., involving a child <18, an image of a child “virtually indistinguishable” from the image of a child <18, or “an image created, adapted, or modified to be an image of an identified child”; Trafficking of Persons (TPC §20A.02(a)(7) or (8) causing the victim to engage in or be a victim of sexual offenses, or benefiting from such conduct of another; Continuous Sexual Abuse of Young Child or Children (TPC §21.02); Indecency with a 5

Child (TPC §21.11); Sexual Assault (TPC §22.011); Aggravated Sexual Assault (TPC §22.021); Prohibited Sexual Conduct (TPC §25.02); Aggravated Kidnapping under TPC §20.04(a)(4), if there was intent to violate the victim sexually; Burglary under TPC §30.02(d), i.e., if the burglary involved a habitation and the intent to commit a sexual offense under TPC §20A.02(a)(7) or (8), TPC §21.02, TPC §21.11 TPC §22.011; TPC §22.021, TPC § 25.02, or TPC §20.04(a)(4)if there was to violate or abuse the victim sexually; or, an offense under the laws of another state containing elements substantially similar to the elements of an of these offenses. [But as noted above in “Offenses Ineligible for Parole” if serving a sentence for an offense under Section 20A.02, TPC, (Trafficking of Persons), Subsections (a)(5), (6), (7), or (8), there is no parole eligibility unless there is a guilty plea and the judge makes an affirmative finding under Art. 42.01991, CCP, that the prosecutor, defense attorney, and the defendant agree in writing the defendant will be eligible for parole after serving, without consideration of good time, one half of the sentence or 30 calendar years, whichever is less, but not less than two years. Also, for Aggravated Sexual Assault punished under 22.021(f), there is no parole.] E.

Offenses Eligible after ½ Calendar Time Served.

An inmate serving a sentence for an offense described by Article 42A.054 (a), Code of Criminal Procedure (other than an offense under Section 19.03, Penal Code – Capital Murder, or Chapter 20A, Penal Code (Trafficking of Persons) if under subsections (a)(5), (6), (7), or (8), or is punished under 12.42(c)(2)); an offense for which the judgment contains an affirmative finding under Article 42.A054 (c) or (d) (the use or exhibition of a deadly weapon in the commission of a felony) or (d); or an offense under section 71.02 or 71.023, Penal Code, is not eligible for release on parole until the inmate's actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less, but in no event is the inmate eligible for release on parole in less than two calendar years.” Tx.Govt.Code §508.145. This is a provision with which most attorneys are intimately familiar. Offenses under this section that require completion of “one-half of the sentence or 30 calendar years, whichever is less, but in no event …less than two calendar years” include: 1. Criminal Solicitation, TPC § 15.03, if punishable as a first degree felony, i.e., the offense solicited is a capital offense 2. Murder, TPC §19.02; 3. Indecency with a Child, TPC §21.11; 4. Aggravated Kidnapping, TPC §20.04; 5. Aggravated Sexual Assault, TPC §22.021 (unless enhanced under TPC §12.42(c)(4), i.e., LWOP. 6. Aggravated Robbery, TPC §29.03;

7. Offenses under Chapter 481, H&SC for which punishment is increased under §481.140 (use of a child in commission of certain H&SC offenses – no prior conviction required), or “Section 481.134 [Drug-Free Zones] (c), (d), (e), or (f)…if it is shown the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections”; 8. Sexual Assault, §22.011; 9. Injury to a Child, Elderly Individual, or Disabled Individual, TPC §22.04(a)(1) (i.e., involving serious bodily injury), if the victim is a child and the offense is punishable as a first degree felony, i.e., committed intentionally or knowingly; 10. Sexual Performance by a Child, TPC §43.25; 11. Trafficking of Persons, TPC §20.A02 (except if under subsections (a)(5), (6), (7), or (8), where there is no parole, unless a Guilty plea and Affirmative Finding under 42.01991, CCP, in which case parole eligibility is the lesser of 30 flat years or ½, but not <2 years) ; 12. Continuous Trafficking of Persons §20.A03 (except no parole eligibility If conviction based partly or wholly on conduct constituting an offense under 20A.02(a)(5), (6), (7), or (8), and LWOP under 12.42 (c)(4), TPC, (certain repeat sex offenders >18):

13. Aggravated Promotion of Prostitution, TPC §43.04 14. Compelling Prostitution, TPC §43.05; 15. Burglary, TPC § 30.02, if the premises are a habitation and there was an intent to commit a felony under TPC § 21.02 (Continuous Sexual Abuse of Young Child or Children), TPC § 21.11 (Indecency with a Child), TPC § 22.011 (Sexual Assault), TPC § 22.021 (Aggravated Sexual Assault), or TPC § 25.02 (Prohibited Sexual Conduct); 16. An offense for which the judgment contains an affirmative finding of a deadly weapon; 17. Engaging in Organized Criminal Activity, TPC §71.02 but LWOP if the offense alleged to have been committed is Aggravated Sexual Assault punishable under Subsection (f); and,

18. Directing Activities of Criminal Street Gangs, §TPC 71.023. It used to be that generally all aggravated offenses were subject to the ½ rule; however, §508.145(d) made no mention of the offenses listed in TCCP Art. 42.12(3)(g)(a)(1)(L) and (M), (Compelling Prostitution and Trafficking of Persons) until the 83rd Legislature. Also, the 83 rd Legislature added TPC §71.02 and §71.023, and the 82nd Legislature added §20.A03, to the list of offense coming under the ½ rule, even though they were not at the time aggravated offenses described in CCP, 42A.054 (formerly 42.12(3)(g). These kind of statutory disconnects are not uncommon which again is why one must understand what law applied at the time of the commission of the offense for which parole or MS is being considered. 7

It doesn’t pay to run.

“[F]or every 12 months that elapse between the date an arrest warrant is issued for the inmate following an indictment for the offense and the date the inmate is arrested for the offense, the earliest date on which an inmate is eligible for parole is delayed by three years from the date otherwise provided by Subsection (d), if the inmate is serving a sentence for an offense under Section 19.02 (Murder), 22.011 (Sexual Assault), or 22.021 Aggravated Sexual Assault), Penal Code.” Tx.Govt.Code §508.145(d-1). G.

Drug Free Zone Cases.

“An inmate serving a sentence for which the punishment is increased under Section 481.134, Health and Safety Code, is not eligible for release on parole until the inmate's actual calendar time served, without consideration of good conduct time, equals five years or the term to which the inmate was sentenced, whichever is less.” Tx.Gov’t.Code §508.145(e). As noted above, in Ex Parte Patterson, the CCA found defense counsel ineffective and granted relief where the applicant claimed his plea was involuntary “because trial counsel failed to advise him of the effects of the drug free zone allegation on his sentence.” Therefore, it is important that trial counsel understand the complex sentencing scheme for drug free zone case. This is no small challenge when one examines the complexity of the drug free zone statutes, particularly as they relate to parole. For example, §508.145(d)(1) establishes parole eligibility at one-half of the sentence or 30 calendar years, whichever is less, but in no event less than two calendar years for someone serving a sentence for an offense listed in TCCP 42.12 (3)(g)(a)(1)(G) (an offense under Chapter 481 H&SC for which punishment is increased under H&SC § 481.140, or §481.134 (c), (d), (e), or (f) if it is shown that the defendant was previously convicted of an offense for which punishment was increased under any of those subsections; while Tx.Gov’t.Code §508.145(e), establishes parole eligibility at a minimum of five years for someone serving a sentence “for which the punishment is increased under Section 481.134, Health and Safety Code.” When determining parole eligibility under §508.145(e), one must determine whether “punishment is increased under Section 481.134”. The only provision of §481.134 that speaks of punishment being “increased” is 481.134(c). However, other sections permit certain offenses to be punished at a higher punishment range. For instance, 481.134(b) states that “an offense otherwise punishable as a felony of the second degree under [481.112, 481.113, 481.114] is punishable as a felony of the first degree” if it is shown at the punishment stage that the offense occurred in a drug-free zone. An argument can be made that only in those cases where punishment was “increased” under 481.134 (c) is parole eligibility 5 years. However, reading the statutes in context, it appears the Legislature likely intended that by “increased” they also meant where the punishment range was increased. Nonetheless, there does appear to be some room here to at least challenge the five year parole eligibility requirement in those cases. 8

The CCA has shown a willingness to split hairs over the wording of the Drug Free Zones statute. In Moore v. State, No. PD-0965-11 (Tx. Crim. App. June 20, 2012), the CCA analyzed the mandatory stacking provision in §481.134(h) which stated that punishment increased for a conviction under §481.134 “may not run concurrently with punishment for a conviction under any other statute. The court modified the judgment to delete the cumulation order finding that a conviction “under any other statute” does not include a conviction under §481.134. H.

All other cases.

“Except as provided by Section 508.146 (Medically Recommended Intensive Supervision), any other inmate is eligible for release on parole when the inmate's actual calendar time served plus good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less.” Tx.Govt.Code §508.145(f). State jail felonies are not eligible for parole. It is well established law that good time credits only serve to get one to their parole eligibility date sooner. They do not diminish the sentence length. [Under a pilot vocational program, inmates serving a sentence under Chapter 481 H&SC, punishable as a 3rd degree felony, eligible for parole under §508.145(f), and not previously convicted of a felony under Title 5 (Offenses Against the Person), Penal Code, or under Chapters 43 (Public Indecency) or 71 (Organized Crime), may be released “approximately 180 days before the date the inmate would have been eligible for release under §508.145(f). TX.Gov’t.Code §508.1455. I. Medically Recommended Intensive Supervision Medically Recommended Intensive Supervision (MRIS) is addressed in §508.146. An individual may qualify for MRIS regardless of whether they have reached their initial parole eligibility date, except that offenders serving a sentence of death or life without parole are not eligible. Inmates serving a sentence for an offense described in 42A.054, CCP, are eligible for MRIS only if they are identified by the Texas Correctional Office for Offenders with Medical or Mental Impairments (TCOOMMI) and Correctional Managed Health Care as being “elderly, physically disabled, mentally ill, terminally ill, mentally retarded, or having a condition requiring long-term care.” Inmates with a reportable conviction or adjudication under Chapter 62, CCP, are eligible for MRIS only if they are identified by the Texas Correctional Office for Offenders with Medical or Mental Impairments (TCOOMMI) and Correctional Managed Health Care as being in a “persistent vegetative state or being a person with an organic brain syndrome with significant to total mobility impairment.”

Once a determination is made that an individual meets the medical requirements for MRIS, there is a specially designated parole panel that votes whether to approve MRIS. The panel may only grant MRIS if they make a determination that the offender “does not constitute a threat to the public safety.” TCOOMMI must then approve the supervision plan. Inmates who are not legal citizens of the United States may be released to MRIS if: not under a sentence of death or life without parole; their instant offense is not described in 42A.054, CCP; they do not have a reportable conviction or adjudication under Chapter 62, CCP; and, the parole panel determines the inmate would be deported and does not constitute a threat to public safety. II.

Mandatory Supervision

Mandatory supervision (MS) was first implemented for offenses occurring on or after August 31, 1977. At that time MS was just that – mandatory. (There is no MS date for life sentences.) For offenders whose offenses occurred between August 31, 1977, and August 31, 1996, the Parole Board was required to order the release of an inmate to MS when the actual calendar time the inmate had served plus any accrued good conduct time equaled the term to which the inmate was sentenced. For eligible offenses committed on or after September 1, 1996, MS is actually discretionary. In those cases, the Board is still required to release an inmate to MS when the actual calendar time the inmate had served plus any accrued good conduct time equaled the term to which the inmate was sentenced; however, an offender may not be released to MS if a parole panel determines that the offender’s accrued good conduct time is not an accurate reflection of rehabilitative potential, AND the offender’s release would endanger the public. Tx.Gov’t.Code §508.149. For cases governed by the discretionary statute the Board is required to provide an offender with prior notice of the upcoming MS consideration. Failure to do so, or failure to timely make the findings required to deny MS means the offender must be released to MS. See Ex Parte Retzlaff, 135 S.W.3d 45 (Tx. Crim. App. 2004). Current policy is to notify an offender in writing about 90 days prior to the MS date, and to allow 30 days for the offender to submit materials to the Board for their consideration. Unlike Texas parole statutes, because of the way the MS statute is written it creates a liberty interest, and thus the notice and opportunity to respond in MS cases. When entering into a plea agreement for a client who will receive jail time credits, the attorney’s understanding of Ex Parte Retzlaff can sometimes result in a windfall for the client. Because of the Ex Parte Retzlaff decision, the Texas Department of Criminal Justice policy is to immediately release any offender who enters TDCJ past their MS date where the Parole Board has not made the necessary findings required by §508.149 and Ex Parte Retzlaff. Where an attorney can negotiate enough time credits such that their client will be at or past their MS date 10

when they enter TDCJ, under current policy it will result in immediate release to MS. Generally, TDCJ will allow whatever jail time credits are awarded by the court, and which appear on the judgment; however, even where jail time credits are reflected on the judgment TDCJ will not compute jail time credits that predate the offense. Knowledge of MS is also important because MS eligibility is one of two requirements that determine whether an individual is eligible for street time credit if their parole is revoked. Oftentimes, defense attorneys are representing clients who are also facing a parole revocation. Where a client has served years on parole supervision, they will want to know how much, if any, of that time they will be credited for. The street time credits can sometimes be a much larger concern for a client facing new charges than the problem posed by the new charges. This issue will be discussed in more detail later in this paper. Unfortunately, the list of offenses that are ineligible for MS seems to grow each time the legislature meets. This was especially true between 1987 and 1995. Currently, the law states that an inmate may not be released to MS if they are serving a sentence for or have previously been convicted of: (1) an offense for which the judgment contains an affirmative finding under Article 42A.05 (c) or (d), Code of Criminal Procedure; (2) a first degree felony or a second degree felony under Section 19.02, Penal Code (Murder); (3) a capital felony under Section 19.03, Penal Code (Capital Murder); (4) a first degree felony or a second degree felony under Section 20.04, Penal Code (aggravated kidnapping); (5) an offense under Section 21.11, Penal Code (Indecency with a Child); (6) a felony under Section 22.011, Penal Code (Sexual Assault); (7) a first degree felony or a second degree felony under Section 22.02, Penal Code (Aggravated Assault); (8) a first degree felony under Section 22.021, Penal Code (Aggravated Sexual Assault); (9) a first degree felony under Section 22.04, Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual) where the conduct was committed intentionally or knowingly by a person, and resulted in SBI or serious mental deficiency, impairment, or injury, OR if an owner, operator, or employee of a group home, nursing facility, assisted living facility, boarding home, intermediate care facility for persons with intellectual or developmental disability, or other institutional care facility intentionally, knowingly, 11

recklessly, or with criminal negligence by omission causes a resident of the facility to suffer SBI or serious mental deficiency impairment, or injury; (10) a first degree felony under Section 28.02, Penal Code (Arson)(BI or death, or property intended to be damaged or destroyed was a habitation or place of assembly or worship); (11) a second degree felony under Section 29.02, Penal Code (Robbery); (12) a first degree felony under Section 29.03, Penal Code (Aggravated Robbery); (13) a first degree felony under Section 30.02, Penal Code (Burglary)(the premises are a habitation, and any party to the offense enters with intent to commit a felony other than felony theft, or attempted or committed a felony other than felony theft; (14) a felony for which the punishment is increased under Section 481.134 (DFZ) or Section 481.140, Health and Safety Code (use of child in commission of certain H&S Code offenses; (15) an offense under Section 43.25, Penal Code (Sexual Performance of a Child); (16) an offense under Section 21.02, Penal Code (Continuous Sexual Abuse of Young Child or Children); (17) a first degree felony under Section 15.03, Penal Code (Criminal Solicitation of a Capital Offense); (18) an offense under Section 43.05, Penal Code (Compelling Prostitution); (19) an offense under Section 20A.02, Penal Code (Trafficking of Persons); (20) an offense under 20A.03 (Continuous Trafficking of Persons); (21) a first degree felony under Section 71.02 (Engaging in Organized Criminal Activity) (degree of offense depends on the offense committed [one level higher] or conspired [same level]. Offenses punishable as a second or third degree are eligible for MS even though not eligible for parole until the lesser 50% flat or 30 flat years, and in no event less than two years; or 71.023 (Directing Activities of Criminal Street Gangs). When an offender is released to MS, they are required to serve the remainder of their sentence on supervision, without credit for any good time served.

III.

Practical considerations and problem areas related to parole and MS. A.

Time credit for jail time awaiting parole revocation on a new offense.

It is fairly well established that in Texas one is entitled to jail time credit for time spent in jail awaiting trial. However, there are cases where that may not be true. For example, if an individual on parole or MS is arrested for a new offense, makes bond on that new offense, and is then arrested on a blue warrant and taken to jail; they will not be entitled to time credit towards any sentence imposed as a result of the new offense unless and until the bond is relinquished. They will still be entitled to time credit towards the original sentence for which the blue warrant was issued, but not for any new sentence that may be imposed as a result of the new offense for which they posted bond. That said, if the court awards jail time, prison officials cannot deny the jail time credit where the time credits awarded do not exceed the time between the date of the offense and the date of sentencing. See, Ex Parte Harvey, 846 SW2d 328 (Tex. Crim. App. 1993); and Ex Parte Thiles, 333 SW3d 148 (Tex. Crim. App. 2011). Therefore, in a case where the client made bond on a new offense, but was later jailed on a blue warrant and did not get off the original bond; although the client is not entitled to jail time credit for that time towards the sentence imposed for the conviction on the new offense, the attorney can try to negotiate to have the judge award that time credit in the judgment. If the time credit awarded is not for any period that predates the date of the new offense, the time credit should be accepted by prison officials. B.

Sex offender conditions of parole aren’t just for sex offenders.

In Coleman v. Dretke, 395 F3d. 216 (5th Cir. 2005) reh’g en banc denied, 409 F.3d 665 (5th Cir. 2005), the court recognized that sex offender conditions of parole could be imposed on individuals who had not been convicted of a sex offense. The court required that, in such cases, due process must be afforded prior to the imposition of such conditions. In that case, the court declined to specify the due process required. After Coleman, the Texas Board of Pardons and Paroles implemented a procedure whereby they simply notified an offender in writing that they were considering imposition of sex offender conditions and giving the offender 30 days to reply and tell the Board why such conditions should not be imposed. There was no notice of the evidence being considered, no right to a hearing, and no right to call or cross-examine witnesses. In Meza v. Livingston, 09-50367 (5th Cir. 5-20-10), rehearing denied en banc, (5th Cir. 10-19-10), the court concluded that it was a denial of due process to, among other things: deny discovery; not allow the parolee and counsel to be present at the hearing before a disinterested parole panel; not allow sufficient time to review the evidence and to prepare to examine or cross examine witnesses; not allow the parolee or his attorney to subpoena witnesses; not afford a written report stating the panel’s decision. At the Coleman hearing, the state must now prove that an offender “constitutes a threat to society by reason of his lack of sexual control” before sex

offender conditions of parole may be imposed on one who has never been convicted of a sex offense. Initially, the Parole Board chose to apply Meza only to those under old law MS. It was not applied to parole cases until Ex Parte Evans, 338 S.W.3d 545 (Tex. Crim. App. 2011) where the Court of Criminal Appeals held that, for any individual who has never been convicted of a sex offense, the Parole Board must provide due process (a Coleman hearing) before imposing sex offender conditions. Coleman, Meza, and Evans have considerable implications for individuals who have been arrested for or charged with sex offenses+ but have never been convicted of a sex offense. If such an individual is later convicted of some other felony and then released to parole or MS, they will almost certainly be notified that the Parole Board is requiring them to undergo an evaluation and polygraph to determine if the Board will try to impose sex offender conditions of parole based upon the prior alleged sexual misconduct. Depending upon the results of the evaluation and polygraph, the Board may decide to notify the individual that they intend to pursue sex offender conditions. In those cases, they will notify the person that they are entitled to what has come to be called a Coleman hearing. Board Policy BPP-POL. 148.200, Sex Offender Conditions – Releasee Not Convicted of a Sex Offense, states: “It is the policy of the Texas Board of Pardons and Paroles (Board) to review and consider sex offender conditions as a special condition for releases who have not been convicted for a sex offense and are currently on parole or mandatory supervision (1) for an offense which contains a sexual element, or (2) has a past juvenile adjudication for a sex offense.” “It is the policy of the Board to afford releases who have not been convicted of a sex offense or who have a past juvenile adjudication for a sex offense due process prior to the imposition of sex offender conditions.” For those offenders who do not have a conviction for a sex offense but who have been placed on sex offender conditions of parole without the benefit of a Coleman Hearing, the Board will provide for a Coleman hearing. Coleman hearings can, and have, taken place decades after an alleged sexual act. Exculpatory evidence is near impossible to locate that long after the event. Attorneys who represent individuals who are placed on deferred adjudication or who are adjudicated delinquent for a sex offense under the Texas Family Code, and attorneys who are successful in getting dismissals or no bills in sex offense cases should warn the client of the importance of preserving any evidence in those cases, including, but not limited to polygraphs, police reports and DA files (if provided during discovery), and other mitigating evidence. (to the extent that the Morton Act 14

limits the release of discovery to a defendant, it is important for attorneys to preserve exculpatory evidence provided in discovery and relating to a sex offense allegation.) Additionally, where there is a dismissal, getting the court or the prosecutor to state on the record or in the dismissal order that there was no sexual component to an offense (where there is a conviction for a non sex offense as part of a plea bargain), or that the sex offense was dismissed for lack of evidence, can be helpful if the client ever has to go through a Coleman hearing. Where the court or prosecutor makes the make such a statement on the record and there is no written documentation of the same, be sure to advise the client of the importance of ordering a copy of that portion of the record. Save a copy to the file and provide a copy to the client advising them of the importance of preserving the document. Most importantly, clients who have not been convicted of a sex offense should be reminded that it is in their best interest to demand a Coleman hearing when the Parole Board attempts to impose sex offender conditions of parole. Imposition of sex offender conditions in those cases will be preceded by imposition of Special Condition “O.33” calling for an evaluation to determine whether there is a need for sex offender counseling. If the evaluation determines there is such a need, the offender will be served with Parole Division “Notice of Sex Offender Conditions” that will advise the individual in writing of the right to either request or waive a Coleman hearing. Waiving the hearing greatly increases the likelihood that sex offender conditions of parole will be imposed. In fact, the client should consult with an attorney as soon as the client is given notice that they will be evaluated for possible imposition of sex offender conditions of parole. If an attorney is timely retained, they can properly advise the client and may be able to arrange for an evaluation and polygraph using experts of their choosing. This can oftentimes prevent the case from even moving forward to a Coleman hearing. The Coleman Notice will also advise the individual that all documents to be introduced at the hearing must be submitted to the parole officer “not later than seven calendar days prior to the date of the scheduled hearing.” C.

Street time eligibility.

Section 508.283, Tx.Gov’t.Code, also known as the “street-time credit law” entitles offenders who are revoked on or after September 1, 2001 to credit for time served while on parole or MS if they meet two conditions: (1) the offender is not a person described in §508.149(a) as being ineligible for MS, and (2) on the date of the warrant or summons initiating the revocation process the remaining portion of the offenders sentence is less than the time the offender spent on parole, i.e., the offender has successfully completed more than half of his time required on supervision. For revocations occurring prior to September 1, 2001, there was no credit awarded for time served on parole or MS if an offender was revoked. In Ex Parte Noyola, 215 S.W.3d 862 (Tx. Crim. App. 2007), the CCA ruled that eligibility for street time credit under 508.283 is controlled by the particular language of Tx.Gov’t.Code §508.149(a) in effect at the time of the parole revocation – not whether his 15

offense was eligible for MS based on the MS law in effect when the offense was committed. This causes no end of confusion for offenders who are revoked after being on parole or MS for a MS eligible offense. Those offenders invariably believe that they should be entitled to street time credit if they met the ½ requirement. That is simply not the case. That application of 508.283 does not invoke an Ex Post Facto issue, as the MS statute and the street time statute are separate and distinct. The street time statute does not seek to deny the offender their MS eligibility. What it does is define the class of offenders who are eligible for street time credits. The wording of 508.283 creates special concerns for defense counsel who are representing clients on new criminal charges where their client is also on parole or MS for a MS eligible offense and who have successfully completed more than half of that parole or MS. Those individuals are potentially eligible for street time credit for the sentence for which they are on parole if revoked; however, that may depend on what occurs in their pending criminal case. If their client has their parole revoked, and at the time of the revocation the client “is serving a sentence for or has been previously convicted of” an offense listed in 508.149(a), then their client will not be eligible to receive street time credit. In those cases, the defense attorney should certainly consider this factor in any plea negotiations on the new pending charge, as a plea to an offense currently listed in 508.149(a) will disqualify the client for street time credit. Where the client has been on parole or MS for a lengthy period, what may have seemed like a great plea bargain can instead result in a considerably longer sentence than the client had bargained for. The importance of understanding the law on street-time eligibility was evident in Ex Parte Brooks, No. WR-83,550-02 (Tex. Crim. App. October 25, 2017, not designated for publication). Brooks pleaded guilty to aggravated assault while on parole from a twenty-eight year sentence for possession of a controlled substance. He was sentenced to seven years in TDCJ and did not appeal his conviction. He later filed a writ of habeas corpus contending that his attorney advised him that the new seven year sentence would be Brooks’ controlling offense and would “override” the remaining six years on his twenty-eight year sentence. However, when Brooks’ parole was revoked, he forfeited 3,352 days he had spent on parole, substantially changing his discharge date. In its order, the court cited Strickland v. Washington in writing that Brooks “has alleged facts that, if true, might entitle him to relief.” D.

Early Release from Parole Supervision.

Tx.Gov’t.Code §508.1555, Procedures for the Early Release from Supervision of Certain Releasees, provides that the Parole Division may allow releasees to serve the remainder of their sentence without being required to report. The process is initiated by the parole officer and is limited to those releasees who: 1. have been under supervision for at least ½ of the time remaining on the sentence when the release was released from prison; 2. has not had a violation in the previous 2 years; 16

3. has not been revoked on the current parole; and, 4. the division finds a good faith effort to comply with any restitution order, and that it is in the best interest of society. In determining recommendations for early release from supervision parole officers shall consider whether the release has a low risk of recidivism as determined by an assessment developed by TDCJ, and whether the release has made a good faith effort to comply with parole conditions. E.

Consecutive Sentences.

Consecutive sentences pose unique problems in determining parole eligibility. Whereas TDCJ, prior to September 1, 1987, routinely added stacked sentences together and computed parole eligibility based upon the total sentence length, the law changed in 1987. It took TDCJ a few years to comply with the new statute, but parole eligibility on consecutive sentences are now computed in accord with Tex.Gov’t.Code §508.150. Parole eligibility is determined for the first case in the stacked series. When parole is granted on that case, that sentence will be considered to have ceased to operate for purposes of beginning the running of the next sentence in the stacked series. A separate parole eligibility date will then be calculated for that offense, and the same process is followed for each remaining stacked sentence. The offender is not released until parole is granted in the last of the stacked cases, or the offender reached their discharge date – whichever occurs first. MS only applies to the last case in a stacked series, if that offense is otherwise eligible for MS. F.

Miscellaneous Considerations.

-Certain gang affiliations substantially diminish the prospect of parole. If an inmate belongs to a gang that appears on TDCJ’s list of “security threat groups” the inmate will be placed in administrative segregation. The Gang Renunciation and Decertification (GRAD) Program is a lengthy process that allows willing participants to shed their gang tag. TDCJ examines inmates’ tattoos for signs of gang membership. -The Parole Board considers the entirety of an offender’s criminal history, including arrest reports. Many inmates mistakenly expect that by pleading to a lesser offense the Parole Board will not be considering the specific facts of their offense. -Attorneys should advise on parole eligibility and not a date certain when an inmate will be released to parole. -Always try to get jail time credits stated on the record or in writing, especially where a client has been reindicted after serving jail time on a previous indictment. One is not entitled to time credit except for time spent incarcerated before trial on the offense for which they were convicted. 17

-Any plea agreement involving a sex offense should take into account Tex. Health & Safety Code, Chapter 841, Civil Commitment of Sexually Violent Predators. That provides for the Civil Commitment of repeat sexual offenders. A repeat sexual offender includes one convicted of multiple sexually violent offenses at the same court disposition, even if it is under multiple counts and not separate indictments. Even parole approval does not preclude civil commitment under this law. -Certain individuals are eligible for up to 10 year set-offs if parole is denied, ie., Capital felons with a life sentence that is parole eligible, those convicted of Aggravated Sexual Assault under TPC 22.021. For inmates otherwise ineligible for MS, and for an offense punishable as a felony of the second or third degree under Section 22.04, Penal Code (Injury to a Child, Elderly Individual, or Disabled Individual) the set-off can be up to five years. For MS eligible offenses the maximum set-off is one year.

IV.

Conclusion.

Texas parole law is a patchwork body of law. To determine a person’s parole or MS eligibility one must refer to the statute in effect when the offense occurred. Considering the inclination of the legislature to regularly change the parole laws, that requires attorneys to be knowledgeable of current parole law, and in many cases prior parole law. Whereas parole law could be summed up in two sentences years ago, today it is ever changing and ever more complex. The legislature changes the parole laws almost every session and it is likely that there will be additional changes in the next legislative session. To properly advise a client on their options attorneys must be able to advise them on the parole implications of their decisions. Since Ex Parte Moussazadeh, failure to do so constitutes ineffective assistance of counsel and may render a client’s plea of guilty involuntary. Beyond accurately advising a client on parole eligibility, attorneys must also be aware of other parole related matters, such as street time eligibility for those facing parole revocations. More and more, matters that have previously been considered by the courts to be collateral are now being considered essential to a voluntary plea of guilty. Even where the courts have not yet determined that certain information is essential to the rendering of a voluntary plea, attorneys still have an ethical duty to advise their clients on other significant consequences that may attach to the client’s decisions in a given case. Hopefully, this paper will be helpful in doing both.

The original article “Civil Commitment of Sexually Violent Predators: Indeterminate Life Sentencing” was initially written by David O’Neil when he was the first Acting Director of the State Counsel for Offenders Division that represented offenders who were facing civil commitment as sexually violent predators. That article was published in Voice for the Defense, a publication of the Texas Criminal Defense Lawyers Association. In 2008, the article was updated by Mr. O’Neil and Mr. Scott Pawgan, who was then a member of Habern, O’Neil & Pawgan, LLP. The article that appears below is a 2020 revision of the 2010 article made by Mr. William A. Marshall a former State Counsel for Offenders staff attorney. Bill is currently the attorney for several men civilly committed as sexually violent predators and confined in the Texas Civil Commitment Center.

The 85th Legislature recently enacted changes to the Civil Commitment statute and most of those changes are not incorporated in the below article. The recent legislation should be consulted.

CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS: A PRIMER FOR THE UNINITIATED By

William A. Marshall, Scott Pawgan & David P. O'Neil INTRODUCTION Joe reluctantly accepted his plea agreement. His attorney presented strong arguments to convince Joe it was in his best interest, all factors considered. Without the agreement, Joe, if convicted by a jury of his conservative rural Texas neighbors, faced the possibility of life in prison. His attorney explained that although there were inconsistencies in the statements of the state's reluctant witnesses, the prosecutor would portray Joe as a sexual predator of the worst sort, victimizing two innocent 14year-old girls. His attorney also explained how difficult it would be to present an alibi defense, as the state really wasn't bound by the "on or about" dates alleged in the indictment. i Although Joe wasn't sure about the soundness of those arguments, there was one fact he couldn't dispute - his felony conviction for credit card fraud would be admissible if he testified. That alone was enough to tip the scales against him, and was what ultimately led him to accept the plea offer. Another issue Joe had to consider was the requirement that as a convicted sex offender, he would be required to register with local law enforcement annually, perhaps for the rest of his life. ii Furthermore, wherever Joe moved in Texas (and in many other states because of the Sex Offender Registration and Notification Act), it would be a matter of public record that he was, in essence, a child molester. This, however, paled in comparison to the legislature's latest initiative. The Sexually Violent Predator Act confronted Joe with the potential of lifelong "treatment" and rigorous supervision, including the possibility of lifelong total confinement.. Under the Texas commitment law, if Joe is declared a "sexually violent predator" (SVP), he could be

ordered to undergo treatment and supervision, the terms of which must include: residing where instructed by the Texas Civil Commitment Office (TCCO); never having contact with any of his victims; participation in and compliance with sex offender treatment; compliance with all written requirements imposed by TCCO; submitting to appropriate supervision, including GPS tracking; and, securing court permission prior to leaving the state. To make matters worse, under the SVP law a violation of the terms of a commitment constitutes a third degree felony, punishable (if the state alleges and proves two prior final convictions) by a minimum of 25 and a maximum of 99 years, or life, in prison. TEX. PEN. CODE § 12.42(d). The prosecutor's offer was particularly appealing considering the nature of the offenses. Of course, Joe knew the prosecutor made it so attractive only because the state lacked any physical evidence to support the charges. Still, despite all the horror stories he had heard about life behind the walls of the Texas penitentiary, he tried to be upbeat. Joe's attorney assured him that, with good behavior, he could make parole and the odds that he would be committed as an SVP were not high. The advice was sound. Many other attorneys would have provided the same advice under the circumstances.

SCOPE This fictional scenario is one that has taken on very real dimensions for some of the nearly 1,500 sex offenders scheduled for release from the Texas Department of Criminal Justice during 2017. iii This article will focus on the specific provisions of the Texas statute for the Civil Commitment of Sexually Violent Predators; practical considerations for attorneys representing clients who, at any time in their past, have ever been convicted of a sex offense (regardless of whether sentence was deferred or probated, and regardless of whether adjudication occurred in a juvenile court, U.S. federal court, U.S. military court, or the court of another state); and, some of the constitutional issues raised by the Texas statute. This article does not address the policy arguments for and against such legislation. The Legislature purportedly passed the SVP law to address only the worst sexually violent offenders. Their intent was that only 15 persons per year would face SVP civil commitment hearings. iv The imminent departure of nearly 1,500 sexual offenders from TDCJ during the upcoming year would make meeting that

legislative goal impossible. Other states with SVP commitment laws have conducted anywhere from 10 to 30 times the rate of commitment proceedings than that initially projected by the Texas Legislature. v This program has grown well beyond the Legislature's originally stated aims; especially with the Legislature creating the 435 th Judicial District Court in Montgomery County dedicated solely to dealing with SVP cases, which by 2010 was hearing 50 cases per year.

SUBSTANCE OF THE ACT The Texas statute is similar in many respects to the Kansas statute reviewed by the U.S. Supreme Court in Kansas v. Hendricks.vivi In that case, Hendricks was civilly committed for treatment as a "sexually violent predator." Based upon a "long history of sexually molesting children," Kansas sought to civilly commit Hendricks, who was scheduled for release from prison. After considering issues of ex post facto application, due process, separation of powers, and double jeopardy, the Court upheld the Kansas statute.vii The Legislature passed the Texas SVP statute at its next regular session. Act of June 1, 1999, 76 th Leg., R.S., S.B. 365. § 4.01 (codified at TEX. HEALTH & SAFETY CODE, ch. 841).

1. LEGISLATIVE HISTORY The statute begins with legislative findings, deemed essential in Hendricks, that there is a small group of sexually violent predators that have a behavioral abnormality that is not amenable to traditional mental health treatment and that makes them likely to repeat their predatory acts of sexual violence. The findings also note that present involuntary commitment provisions cannot adequately address this threat, and that a long-term supervision and treatment program for these SVPs is "necessary and in the interest of the state." § 841.001. With this predicate, the Legislature established the SVP civil commitment program. 2. WHO IS A SEXUALLY VIOLENT PREDATOR? An SVP is any repeat sexually violent offender who suffers from a behavioral abnormality that makes the offender likely to engage in predatory acts of sexual violence. § 841.003. The first prong of the SVP definition focuses on the nature and number of the prior offenses. The "sexually violent offenses" that may qualify a person as a "repeat sexually violent offender" are:

§ 21.02: Continuous sexual abuse of a child;

§ 21.11(a)(1): Indecency With a Child (sexual contact);

§ 22.011: Sexual Assault;

§ 22.021: Aggravated Sexual Assault;

§ 20.04(a)(4): Aggravated Kidnapping (intent to sexually abuse or violate);

§ 30.02: Burglary (if punishable under § 30.02(d), i.e. premises was a habitation and was entered with intent to commit (or did commit or attempt to commit) a felony in 1-4. above;

A murder that is determined beyond a reasonable doubt to have been based on sexually motivated conduct;

Attempt, conspiracy, or solicitation to commit any offense in 1-5, above;

Offenses under prior state law with elements substantially like 1-6, above; and

10.

Offenses under prior law, another's state law, federal law, or the Uniform Code of Military Justice with elements substantially like 1-6, above. § 841.002(8).

The number of adjudications to qualify as a "repeat sexually violent offender" is less clear. The statute includes those convicted of more than one sexually violent offense and "a sentence is imposed for at least one of the offenses." § 841.003(b)(1)(A). It also applies to those offenders: whose first conviction was set aside after successfully completing probation; or whose first conviction was set aside after deferred adjudication; or who were adjudicated by a juvenile court as having engaged in deliquent conduct constituting a sexually violent offense and was committed to the Juvenile Justice Department. This later group of offenses qualifies a person as an SVP only where the person subsequently commits a sexually violent offense for which he is convicted and a sentence is imposed. § 841.003(b)(2). Thus, a single conviction may qualify a person as a "repeat sexually violent offender." The question of whether the person is a "repeat sexually violent offender" is rarely contested. The issue is usually taken away from the jury by a directed verdict by the judge. The second prong of the SVP definition focuses on whether the repeat sexually violent offender suffers from a "behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence." §

841.003(a)(2). This will be the terrain on which the battle of the experts will be fought. The state will bear the burden of proving that the repeat sexually violent predator has a "congenital or acquired condition that, by affecting a person's emotional or volitional capacity, predisposes the person to commit a sexually violent offense, to the extent that the person becomes a menace to the health and safety of another person." § 841.002(2). As a practical matter, it is likely that the state will always be able to find some expert to opine that a person’s multiple sexually violent offenses evidence a behavioral abnormality that predisposes him to commit a future sexually violent offense. This done, the state will have presented a prima facie case on the final prong of the commitment standard. 3. CIVIL COMMITMENT PROCEDURES a. THE CULLING PROCESS The culling process begins with TDCJ. TDCJ conducts a preliminary assessment of each inmate serving a sentence in TDCJ for a sexually violent offense to determine whether the inmate is serving a sentence for a sexually violent offense. § 841.021(a). Not later than the first day of the 24 th month before the inmate's anticipated release date, TDCJ must provide notice to the "multidisciplinary team" (MDT) for most of the inmates who meet these criteria. § 841.021(c). The notification must include documentation of institutional adjustment and treatment, as well as an assessment of the likelihood of further sexually violent offenses. § 841.021(c). TDCJ is not allowed to send a notice regarding three categories of repeat sexually violent offenders. The first category for whom notice is not to be given is the inmates who will be released on parole or mandatory supervision less than 24 months after the notice will be given. § 841.021(a-1). The second category for whom notice is not to be given is the inmates already released on parole or to mandatory supervision. viii § 841.021(a1). The third category for whom notice is not to be given consists of the inmates for whom notice was previously given to the MDT and for whom the MDT previously recommended further assessment by TDCJ. This third limitation does not apply if, after the earlier recommendation for further assessment, the inmate has been convicted of a new sexually violent offense or had his parole revoked for committing a new sexually

violent offense. § 841.021(d). The MDT assessment is the first significant step in the initial SVP review process. Established by the SVP civil commitment legislation, the team has the Herculean task of reviewing all cases referred to it by the TDCJ. TDCJ sends on average 50 notices per month to the MDT. ix TDCJ is required to provide the MDT written notice of the anticipated discharge of any person who "is serving a sentence for a sexually violent offense; and … may be a repeat sexually violent offender." This wording creates an unforeseen gap by failing to require that TDCJ give the MDT written notice of the anticipated discharge of an offender who has a history of sexually violent offenses, but is presently pending release on a non-sexually violent offense. § 841.021(a)(1). Although TDCJ must give the required notice to the MDT 24 months prior to the anticipated release date, exigent circumstances may permit notice any time before the anticipated release or discharge date. Exigent circumstances will not allow TDCJ to provide notice less that 24 months before the release date for inmates under circumstances controlled by § 841.021(a-1). The MDT includes representatives from the following: DSHS (2), TDCJ (2), DPS (1), TCCO (2), and Council on Sex Offender Treatment (CSOT) (1). All 8 are appointed by the Executive Director of TDCJ. § 841.022. Within 60 days of receiving the notice provided by TDCJ, the MDT must assess the inmate to determine whether he is a repeat sexually violent offender and is likely to commit a sexually violent offense after being released from TDCJ. If appropriate, i.e. the inmate is a repeat sexually violent offender and is likely to commit a sexually violent offense after release, the MDT is to recommend that TDCJ assess the inmate for a behavioral abnormality. § 841.022. On average, the MDT recommends further assessment of 8 inmates per month.x Not later than the 60th day after receiving an MDT recommendation, TDCJ is required to assess the inmate to determine whether he suffers from a behavioral abnormality that makes him likely to engage in a predatory act of sexual violence. To aid TDCJ in making the assessment, it is required to use an expert who is required to make a clinical assessment of the inmate. The clinical assessment must be based on testing for psychopathy, a clinical interview and any other appropriate assessments and techniques. § 841.023(a). Within the same 60 day period, TDCJ is required, if appropriate, to provide notice, to the prosecutor

with felony jurisdiction in the county where the person was last convicted of a sexually violent offense, that TDCJ believes the inmate has a behavioral abnormality and is likely to commit a sexually violent offense after release. TDCJ also must provide supporting documentation. § 841.023(b). On average, over the last two years, TDCJ has sent 3 notices per month to local prosecutors.xi The local prosecutor may request legal, technical, and financial support from the Special Prosecution Unit. If the local prosecutor requests, the Special Prosecution Unit (SPU) must provide that request. § 841.024. Prior to June 17, 2015, the SPU was responsible for prosecuting all Chapter 841 civil commitment cases. As part of the effort to forestall constitutional challenges to the SVP Act, the 84 th Legislature stripped the 435th District Court of its Special Status, e.g. the responsibility to hear all SVP Act cases. Since June 17, 2015, all SVP Act cases must be filed in the county where the inmate was most recently convicted of a sexually violent offense and pursued by the local prosecutor with felony criminal jurisdiction. In order to ensure these cases were handled properly and to minimze the economic impact on the local prosecutors' budgets, the Legislature made provision for the SPU to continue handling the SVP Act cases. b. COMMITMENT PROCEEDINGS

The Attorney for the State, the “district attorney, criminal district attorney, or county attorney with felony criminal jurisdiction” § 841.002(2), has 90 days (§ 841.041(b)) to file a petition in THE court in which the inmate was most recently convicted of a sexually violent offense alleging SVP status and stating facts sufficient to support the allegation. (§ 841.041(a).) Failure to file the case within 90 days will not form a succesful basis for dismissing the case.xii The judge shall conduct a trial on the SVP issue within 270 days of the date on which the inmate is served with the Petition, but in no event later than the inmate's anticipated release date. Both the inmate and the state are entitled to a jury trial, if requested at least 10 days before the scheduled trial date. § 841.061. Upon a showing that the inmate will not be "substantially prejudiced" the judge may grant a party's continuance request based upon good cause, or "in the due administration of justice." In no event may the case be rescheduled to a date occurring later than the inmate's sentence discharge date. § 841.063. Beginning immediately after the filing of a petition, an inmate facing commitment is entitled to counsel

at all stages of a civil commitment proceeding. § 841.144. (The term civil commitment proceeding is limited to the trial or hearing under subchapter D, F or G. Subchapter D is the section that addresses the commitment trial, subchapter F addresses biennial reviews and subchapter G addresses petitions for review. Subchapter E addresses the requirements that must be imposed on an SVP, including the modification of those requirements. § 841.002(3-1).)xiii If the inmate is indigent, the court must appoint counsel from the Office of State Counsel for Offenders (SCFO). § 841.144. If SCFO cannot represent the person, the court must appoint some other attorney. § 841.005. Other rights of the inmate include: the right to be examined by an expert; the right to be present at trial; the right to present evidence and cross-examine witnesses who testify against him; and the right to view and copy all petitions and reports in the file. The state may supplement the petition at trial with documentary or live testimony. § 841.061. Both the inmate and the state are entitled to have the inmate examined by an expert as part of the pretrial procedures. § 841.061(c). If the inmate refuses to cooperate with the state's examination, that refusal can be admitted in evidence at trial, the inmate might lose his right to present expert testimony on his behalf, and the inmate can be held in contempt of court. § 841.061. Although the proceedings are subject to the rules of procedure and appeal for civil cases, the number and selection of jurors is governed by Chapter 33, Code of Criminal Procedure (§ 841.146(a)) and the state bears the burden of proving beyond a reasonable doubt (§ 841.062) that the person is a sexually violent predator. In order to secure the commitment of the inmate, the jury verdict must be unanimous. § 841.062. With respect to the rules of civil procedure governing a jury verdict, TRCP Rule 292(a) states: "[A] verdict may be rendered in any cause by the concurrence, as to each and all answers made, of the same ten or more members of an original jury of twelve." This applies to a “No” verdict in an SVP trial, so a jury vote of 10-2 of “No” results in a state's appeal.xiv If a mistrial is declared, for example because the jury was deadlocked at 6-6, retrial must begin within 90 days. § 841.064. Currently, on average, 36 petitions seeking civil commitment are filed in Texas each year and 35

inmates are civilly committed each year.xv c. COMMITMENT AND TREATMENT

TCCO is responsible for providing appropriate treatment and supervision of any person determined, at trial, to be an SVP. § 841.007. After a trial where a person is found to be an SVP, but before ordering the person into civil commitment, the judge must impose on the person the following requirements necessary to insure compliance with treatment and supervision: (1) reside where instructed by TCCO; (2) prohibiting contact with a victim; (3) participating in and compliance with treatment; (4) submitting to a tracking service and any other appropriate supervision; (5) obtaining court permission before leaving the state. § 841.082(a). The judge enters a Final Judgment ordering the Respondent into treatment and supervision and issues an Order of Commitment in which the requirements are enumerated and imposed. The document ordering the Respondent into civil commitment must order him into “treatment and supervision [beginning] immediately on entry of the order”, however treatment and supervision begins on the person's release from TDCJ and continues “until the person's behavioral abnormality has changed to the extent that the person is no longer likely to engae in a predatory act of sexual violence.” § 841.081(a). (Until 2016 this was a death sentence, because no one had been released from civil commitment because his behavioral abnormality had changed sufficiently. Approximately 20 people had died while under an order of civil commitment, most by suicide.xvi) After commitment, the court entering the Final Judgment retains jurisdiction of the Respondent and case with respect to a proceeding conducted under Chapter 841, except a criminal proceeding involving an offense under § 841.085. § 841.082(d). § 841.085 provides that violation of some of the requirements imposed by the judge constitutes a third degree felony. Failing to live where instructed by TCCO, having contact with a victim, refusing to submit to tracking, and leaving the state without permission from the court are criminal offenses. § 841.085. Most violators will have at least two prior felony convictions, and thus will potentially face 25-99 years in prison as habitual offenders.xvii

TDCJ is supposed to give priorty to enrolling men civilly committed before release in a TDCJ sex offender rehabilitation program. TDCJ and TCCO are supposed to enter into a memorandum of understanding that established their respective responsibilities to institute a continuity of care program. § 841.0821. (Note the requirement is not for a “continuity of treatment program.”) As noted, it is TCCO's responsibility to provide “appropriate and necessary treatment and supervision for committed persons through the case management system and developing and implementing a sex offender treatment program for persons committed under [Chapter 841].” § 841.007. Under the case management system, it is TCCO's duty to: determine the conditions of supervision and treatment; and, provide supervision, which must include GPS tracking and, if needed, supervised housing. It is the responsibility of the man's case manager (who is a TCCO employee) to: coordinate treatment and supervision; perform a periodic assessment of the treatment and supervision; report to TCCO at least semiannually explaining any known change in the person's status that affects the treatment and supervision. § 841.083. TCCO is required to provide a tiered program for treatment and supervision beginning in “a total confinement facility.” § 841.0831. The treatment program is required to provide a seamless transition from a total confinement facility to less restrictive housing and supervision and eventually to release from civil commitment based on the person's behavior and progress in treatment. § 841.0831. The current program has 5 tiers. The 5th tier is living out in the community while still being subject to treatment and supervision.xviii The person's behavior and progress in treatment (allegedly) control movement to release. However, even though she is not a trained counselor or treatment provider the TCCO executive director, not the treatment providers, decides who progresses and regresses and when. The executive director has admitted that she is the ultimate decision maker.xix Prior to 2015, the Texas treatment program was labelled “Outpatient Treatment” and the judge was required to order civilly committed persons into “outpatient treatment” until the person would be released from civil commitment. ( § 841.081 prior to June 17, 2015.) The TCCO executive director has admitted that the Texas Civil Commitment Center (TCCC) is a total

confinement facility AND that “outpatient treatment” is not possible at the TCCC. xx So far no one has been successful in getting a court to require TCCO to provide “outpatient treatment” to persons whose judgment orders them into outpatient treatment until they are released from civil commitment. The statute requires TCCO to transfer committed persons to less restrictive housing and supervision IF TCCO believes it is in the person's best interest and conditions can be imposed on the person to protect the community. § 841.0831(a)-(b). If a committed person believes it would be in his best interest and that conditions can be imposed on him that will protect the community, he can go into court and ask the court to order TCCO to transfer him to less restrictive housing and supervision. Id. If the court finds it to be in the best interest of the person and that conditions can be imposed on him that will protect the community, it shall order the person transferred to less restrictive housing and supervision. Id. If TCCO believes it to be necessary to further treatment and to protect the community it SHALL return the person to more restrictive housing and supervision. § 841.0831(c)-(d). The decision MUST be based on the person's behavior OR progress in treatment. Id. If the person believes that TCCO made a mistake, he can ask the court to review the decision. Id. The Court shall order the person returned to less restrictive housing and supervision ONLY if it finds TCCO did not base its decision on the person's behavior or progress in treatment. Id. Persons allowed to move outside the TCCC must be released to the county where they were most recently convicted of a sexually violent offense, UNLESS TCCO does not have resources available there to provide necessary treatment and supervsion. § 841.0836. If TCCO does not have adequate resources in the county, then TCCO decides where to send them. Id. Today – they only have case managers in Harris, Travis, Dallas & Tarrant Counties.xxi TCCO is always afraid that if they decide to transfer a person back to more restrictive housing, i.e. back to TCCC, the person may resist. xxii In order to return a person to TCCC, TCCO can issue an emergency detention order and have the person taken into custody by law enforcement without having to get a court order. § 841.087. This is not possible in a parole situation unless the parole officer sees the individual commit an offense. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593 (1972).

TCCO has the authority to collect what it determines to be an appropriate amount of money to defray the cost of GPS tracking, housing and treatment from committed persons who are not indigent. § 841.084. In early 2016, TCCO determined that 33 1/3% of all income is the appropriate amount to charge each non-indigent resident of TCCC.xxiii TCCO Policy and Procedure 3.5. TCCO has not changed the same rate since. This rate is within the amount authorized (50%) by TCCO administrative rules. 37 Tex. Admin. Code § 810.273.

TCCO has taken upon itself the authority to: - define who is indigent - anyone who receives $50 or more in a month is not indigent - 37 Tex. Admin. Code Art. 810.122 - define income - anything of value, except used clothes and used books, is income - 37 Tex. Admin. Code Art. 810.122 (the cost of shipping items to a TCCC resident is included in income. Internal TCCO Memo) - whether or not and how to punish anyone who refuses to pay. (No due process is needed for imposing punishment because it is addressed as a “treatment issue” rather than a “behavior issue”.xxiv) d. RELEASE FROM COMMITMENT

Once committed, the SVP may obtain relief from the terms of supervision in three ways: by dieing; through the biennial review process §§ 841.101-841.103, or through a petition for release. §§ 841.121-841.124. Death is far and away the more common means of relief. Nine SVPs have been released by court order while nearly 40 have died.xxv Every two years, each civilly committed person is supposed to get a review by the court that ordered them into civil commitment. § 841.101. TCCO must contract for an expert to conduct a biennial examination of the SVP. Id. (The expert – a psychologist – is also given access to some materials in the files maintained by TCCO and MTC.xxvi) The expert prepares a report that is required to include consideration of the propriety of modifying requirements imposed on the SVP and release of the SVP from civil commitment. Id. TCCO then forwards a copy of the report of the examination, and (although not authorized by the statute) reports by the SVP's treatment provider and case manager xxvii, to the judge for a biennial review. The biennial review has two purposes – determine whether any requirements imposed on the SVP need to be modified and whtehr the SVP should be released from civil commitment. § 841.101. Within 60 days of receiving them, the judge is required to review the materials submitted by TCCO and, presumably, any

materials submitted by SCFO and either end the review or order a hearing. § 841.102. The SVP is entitled to be represented by counsel as part of the judge's “review” but is not entitled to be present. Id. In reality, participation by the SVP's counsel is limited to a submission of information, unless the judge determines a hearing is appropriate. A hearing will be scheduled if the judge determines that the supervision should be modified or that probable cause exists to believe that the SVP's behavioral abnormality has changed to the extent that he is no longer likely to engage in a predatory act of sexual violence. § 841.102. xxviii Most of the same rules, rights, procedures, and standards of proof applicable at the initial commitment trial will apply at the hearing, including the right to a jury trial. § 841.103. However, if the State requests, the SVP's presence will be by videoconference. § 841.152. Hearsay deemed trustworthy by the court may be admitted at a hearing to modify a requirement of supervision. § 841.103(b). Even though there have been a few cases where the psychologist opined in his report of the examination that the SVP's behavioral abnormality had changed to the extent that the person was no longer likely to engage in a predatory act of sexual violence, there has never been a hearing on a biennial review. In one case in 2019 a Motion for a Hearing on a Biennial Review was treated, with the agreement of the Special Prosecution Unit, as an unauthorized petition for review. In re the Commitment of Robinson, Cause No. 13-07-07692-CV, In the 435th District Court, Montgomery County, Texas. Recenly SCFO has followed suit and requested a hearing on a biennial review asserting, as did Robinson's freeworld attorney, that the opinion of the examining expert that the SVP's behavioral abnormality had changed demonstrated probable cause that the SVP's behavioral abnormality had changed sufficiently and therefore the SVP is entitled to a hearing on the bienial review. That motion has been on file snce April of this ear. In re the Commitment of Jamison, Cause No. 04-04-02481-CV, In the 435 th District Court, Montgomery County, Texas. There are two types of petition for review – Authorized and Unauthorized. An authorized petition refers to a petition for release that TCCO authorized the person to file. If TCCO decides that the person's behavioral abnormality has changed to a sufficient extent, then TCCO shall authorize the person to petition the court for release. § 841.121. The SVP must serve a copy of the petition on the court

and the attorney representing the state. Id. The judge shall set hearing on the petition within 30 days. § 841.121. Either party can request jury. Id. At such a hearing, the State's burden would be to prove beyond a reasonable doubt that the person's behavioral abnormality has not changed to the extent the person is not likely to commit predatory acts of sexual violence. Id. As a practical matter, since TCCO has concluded that the SVP's behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual violence, it is hard to imagine why a hearing would be necessary. After all, how could the State hope to rebut, with proof beyond a reasonable doubt, TCCO's conclusion that the SVP's behavioral abnormality had changed. A petition for release filed without permission from TCCO is an Unauthorized Petition for Release. § 841.122. Within 60 days of receiving the it, the Judge shall review, and issue a ruling on, an unauthorized petition. Id. The Judge SHALL DENY the petition WITHOUT A HEARING IF - the petition is frivolous OR - the person has previously filed an unauthorized petition for release and that petition was denied. § 841.123.xxix The Judge is not required to deny a Second or subsequent Unauthorized Petition IF there is probable cause to believe the person's behavioral abnormality has changed enough. § 841.123(d). The language of that subsection seems to allow the Judge to deny a second or subsequent unauthorized petition EVEN IF there is probable cause to believe his behavioral abnormality has changed to the extent the person is not likely to engage in predatory acts of sexual violence. There has never been a hearing on an unauthorized petition for release. As noted above, in the Robinson case, a motion for a hearing on a biennial was treated as an Unauthorized Petition for Review. In that case, the psychologist hired by TCCO had reported that the person's behavioral abnormality had changed to the extent that he was no longer likely to engage in a predatory act of sexual violence. Unfortunately, SCFO did not even point out the psychologist's opinion to the Judge, who did not order a hearing and ordered the person to continue in commitment. Two years later, Robinson hired a free world attorney who hired another one of the experts the State often used in commitment trials. That psychologist agreed with the 2 year old biennial examination report that the person's behavioral abnormality had changed. When confronted by adverse opinions

from two psychologists that it regularly used, the State agreed to stipulate that it could not prevail in a hearing, agreed that the Judge should treat the Motion for Hearing on a Biennial Review as an Unauthorized Petition for Review and release the person. The Court's record gives the impression that the attorney representing the State did not even consult with TCCO on that course of action. Robinson was the 7 th person released from civil commitment by court order. He was released in April 2019. e. MISCELLANEOUS PROVISIONS The Legislature instructed TCCO, not the Board whose responsibility it is to govern TCCO, to administer the SVP commitment statute by rule. § 841.141. TCCO has not made any rules. All such rules have been adopted and/or amended by the Board whose responsibility it is to govern TCCO. xxx Even though in the past the Texas Supreme Court has ruled that a state agency has the authority reasonably necessary to perform its duties, it delined to review the 3rd Court of Appeals' decision that the governing Board had the authority to enact rules for TCCO. Thomas, et al v. McLane, Cause No. 20-0302, Texas Supreme Court On Petition for Review from Appeal No. 03-18-00439-CV, In the Court of Appeals, Third Supreme Judicial District, Pet. Den. 2020. Further, privacy rights of persons subject to determinations under the statute are substantially relaxed, including the availability of certain juvenile records. § 841.142-841.143. Of particular importance to the counties involved are the provisions for court costs, expert witnesses’ fees, and attorney fees related to the commitment proceedings. Reasonable compensation for these expenses is to be paid by the state. § 841.145 and 841.146.

LEGAL AND PRACTICAL CONSIDERATION 1. CONSTITUTIONAL ISSUES The Kansas SVP Act is similar to that of Texas in its retroactive application, but while the Texas SVP Act originally provided for “outpatient treatment and supervision”, the Kansas statute required inpatient treatment, i.e. confinement of the SVPs. In a 5-4 decision, the Court in Hendricks found that the retroactive application of the Kansas statute violated neither the double jeopardy nor the ex post facto provisions of the constitution. The Court further determined that the definition of "mental abnormalities" in the Kansas SVP Act

satisfied substantive due process.xxxi In re Commitment of Michael Fisher, 164 S.W.3d 637 (Tex. 2005) is the Texas Supreme Court's first opinion addressing the contitutionality of the Texas SVP Act. In Fisher's case, in the trial court, he only challenged the constitutionality of the statute on the gorunds of his incompetence to stand trial and the violation of his 5th Amendment right against self-incrimination. After transfer from the 9 th Court of Appeals, the 13th Court of Appeal found the SVP Act "manifestly punitive, both facially and as applied," and, therefore, unconstitutional. In re Commitment of Michael Fisher, 123 S.W.3d 828, 850 (Tex.App.- CorpusChristi, 2004). The Supreme Court, quoting extensively from Hendricks, reversed the Court of Appeals, ruling the SVP Act constitutional. The Texas Supreme Court noted the many similarities between the Texas and Kansas SVP statutes in support of their decision. Those similarities evidence of the intent of the Texas legislature to insure compliance with constitutional protections. The Texas definition of "behavioral abnormality" is virtually identical to the Kansas definition of "mental abnormalities."xxxii Further, by requiring outpatient treatment and supervision versus commitment (prior to June 17, 2015) Texas satisfied even the concerns of the dissenting Hendricks Justices, who noted that use of measures less restrictive than commitment (such as supervision) is an important consideration in guaranteeing protection from double jeopardy and ex post fact violations.xxxiii Since June 2015, the Texas statute has provided a treatment program that has an outpatient component (Tier 5), but no longer requires outpatient treatment. Hendricks, however, is not dispositive of the constitutional issues that will surround application of the revised Texas SVP statute. The Court relied heavily upon the uncontested facts that Hendricks was a diagnosed pedophile and that he would molest again. This fulfilled the requirement that the there be a mental abnormality to support the prediction of future dangerousness.xxxiv Substantive due process issues may still exist, depending upon the specific diagnosis under which the person is committed. In every reported decision the State's expert has opined that the inmate had a condition found either in the Diagnostic and Statistical Manual then recognized by some psychologists and/or psychiatrists. Even though some of those diagnoses have been of questionable applicability and/or validity, xxxv it does not appear that the applicability or validity of such a diagnosis has been

the cause of reversal of a verdict. The Hendricks Court's resolution of double jeopardy and ex post fact claims was based in large part upon a determination that the Kansas SVP law was civil, as opposed to criminal. Our Supreme Court ruled in the Fisher case that the Texas SVP Act is civil and therefore not criminal. With regard to the analysis of whether a state statute is civil or criminal, the Fisher Court quoted Hendricks thus “we will reject the legislature's manifest intent only if Fisher provides " 'the clearest proof' that 'the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil.' " The Fisher Court then proceeded to consider the seven "useful guideposts" identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). xxxvi However, as a result of changes made to the Texas SVP statute in 2015, consideration of those “useful guideposts” may find the “clearest proof” and result in a different conclusion. First among those changes is the termination of the outpatient treatment program and the institution of a treatment program that is required to begin with total confinement and the fact that so few SVPs have been moved out of total confinement, let alone released from civil commitment, over the past 5 years. The Supreme Court viewed favorably the Kansas provision that guaranteed annual review of the committed person's status, noting: "[t]he maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year." xxxvii Each year “the court must once again determine beyond a reasonable doubt that that the detainee satisfies the same standards as required for the initial confinement."xxxviii Texas provides no such guarantee. Instead, an elected judge conducts a biennial review and only grants a new trial on continued commitment if he determines the requirements should be modified, or if he finds probable cause to terminate supervision. § 841.102. In the history of the program, one case which started as a biennial review morphed into an “unauthorized petition”, otherwise, no biennial review has resulted in either modification of requirements or release from the program. The person's right to petition the court for a review also fails to meet the Kansas standard because it relies upon the limited discretion of the judge, xxxix and in the history of the program only 2 men out of the nearly 500 who have been civilly committed have been released as a result of an unauthorized petition for release.

b. PRACTICAL CONSIDERATIONS I. Plea Agreements

Although the Legislature tasked State Counsel for Offenders with representing indigent persons under the SVP statute, all criminal defense attorneys should understand the subtleties of the statute. Every day defendants in Texas enter pleas of guilty to sex offenses, or they enter pleas to other crimes, but have a history of sex offenses. Defense attorneys have an obligation to advise their clients on the consequences of their plea. This includes how the SVP statute can apply to them. It should be noted that the only Texas court of appeals to have considered the question refused to extend Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, 78 U.S.L.W. 4235 (U.S. Mar. 31, 2010) to the failure of a defense attorney to advise his client facing charges of sexually violent offenses of the possibility of civil commitment. In Thomas v. Texas, 365 S.W.3d 537 (Tex.App.-Beaumont 2012) the Court ruled that it did not constitute ineffective assistance of counsel not to have advised the client. That ruling should not form the basis of defense counsel's deceision not to advise the client. Prosecutors familiar with the statute may seek to maximize a defendant's exposure to it when negotiating plea agreements. They may and do insist on guilty pleas to multiple counts or indictments which immediately bring the defendant under the terms of the statute. They may and do insist on stipulations that can later facilitate SVP determinations. The defense attorney will not only have to advise his client on the consequences of these tactics, but will also have to discuss whether it might be preferable to offer such pleas or stipulations to the prosecutor in return for a reduced sentence. The knowledge that the defendant has subjected himself to the SVP statute might dissuade the prosecutor from seeking a stiffer sentence. On the other hand, with the felony enforcement provision, the rarity of release and the high number of men who have died while subject to commitment, the SVP commitment has for most of the men become a de facto life sentence. Further, a person who meets the definition of an SVP may well decide that the conditions of treatment and supervision will be so onerous, and the stigma of registration under the Sex Offender Registration Act so insurmountable, that a guilty plea is not an option.

Defense attorneys also need to know when their clients are not exposing themselves to SVP commitment. For example, even multiple deferred adjudications, multiple probations, and multiple juvenile adjudications of sexually violent offenses cannot serve as the basis of SVP commitment, unless there is a conviction for which sentence is imposed. Certainly no lawyer is expected to advise a client about what the Legislature will do in the future, but the legislative history of the SVP statute and practical realities leave little doubt that there will be future initiatives to change or extend the statute to actual commitment. The original SVP bill called for commitment. Fiscal concerns (perhaps the foremost of which was the focus given to a $1.7 billion tax cut going into the presidential primary season) were a key reason for the present form of the statute. xl What will happen when the first SVP under "supervision" molests a small child? 2. The Commitment Process The SVP statute tries to guarantee that a person who meets the definition of an SVP will have a trial on their SVP status before discharge from TDCJ. Although notice of release of a sex offender "shall" be provided by TDCJ 24 months prior to the release date, in some cases exigent circumstances allow notification any time prior to the release date. Attorneys representing sex offenders should require the state to make the exigent circumstances a part of the record of the proceedings. This may be useful in subsequent litigation. To insure the continued incarceration until commitment, TDCJ's notice must be adequate to permit the multidisciplinary assessment and report; to conduct a behavioral assessment; to file a commitment petition; to give 10 days’ notice so jury trial may be demanded; and to conduct an examination of the person. Even then, a mistrial will require setting another trial date. After the date of discharge from TDCJ there is no provision for detaining the person while awaiting these proceedings or while pending appeal or while awaiting a new trial after reversal of a verdict. Attempts to detain the person beyond the release date should be countered with a writ of habeas corpus. If the state has been unable to show exigent circumstances, that failure will reinforce the equity claim. Further, if the anticipated date of release has passed, challenge the applicability of the statute to such persons. Once the person is committed, there is no appellate jurisdiction over the court's determination in the

biennial review,xli however, a ruling on a petition for release is a final judgment. xlii The court may deny a hearing on a petition for release even if the court finds probable cause to believe the person is no longer an SVP. That denial may be based upon punitive reasons, i.e. the person filed a previous unsuccessful petition. xliii Arguably the court's determination not to grant a trial based upon the biennial review or on a petition for release is appealable.xliv Attorneys should make every effort to obtain a final order on this determination, or consider filing a writ of mandamus in an appropriate case. Finally, the commitment process will consist primarily of supervised housing contracted for by the TCCO. The vast majority of SVPs who have not been sent back to prison for a rule violation will be housed in the Texas Civil Commitment Center in Littlefield, Texas. The Sex Offender Registration Act guarantees the place of residence of SVPs will be public record. In seeking injunctive action or in a civil suit for damages for a client sexually victimized by an SVP, be aware that for every SVP under supervision there is a state pleading and a court finding that it was not only foreseeable that the SVP would commit a future predatory act of sexual violence, but that it was likely. CONCLUSION Joe has now had plenty of time to contemplate the sex offender legislation. As he laments the limitations that it will place on his mandatory release in 2002, he at least considers how lucky he is that the Texas SVP statute does not require civil commitment to a mental institution. The next Legislature may pass that change, but Joe is confident they can't apply it to him - but will they? Micahel Fisher, of In re the Commitment of Fisher fame, has been the guest of the Department of State Health Services since his commitment.

See Hoffman v. State, 922 S.W.2d 663 (Tex. App.-Waco 1996, pet. ref”d): Garcia v. State, 907 S.W.2d 635 (Tex. App.Corpus Christi 1995), aff'd, 981 S.W.2d 683 (Tex. Crim. App. 1998). ii C. Cr. Pro. Art. 62.101. iii TDCJ Statistical Report Fiscal Year 2017 iv v

Paul Burka and Patricia Hart, The Best and the Worst Legislators: 1999, TEX. MONTHLY. July 1999, at 88, 100.

In January, 1999 Department of Corrections officials provided the following information on their respective states: California: in the preceding 16 preceding months 630 cases referred to prosecutor, 495 probable cause hearings conducted or pending, 273 commitment trials conducted or pending. Kansas: Filed petitions to commit only 10% of sexual offenders (from a total prison population of 8,167), resulting in 11 jury trials per year. Illinois: Tried 75 commitment cases in first year. Total prison population of 43,000. Wisconsin: Tried 212 civil commitments in 4 years.. Total prison population of 17,000. vi 521 U.S. 346, 1 1 7 S.Ct. 2072, 138 L.Ed.2d 501 (1997). vii Kansas had petitioned the Supreme Court after the Kansas Supreme Court had found the statute unconstitutional. viii If MDT received the required notice before the inmate's release, it may perform the functions assigned with respect to the inmate. ix Data provided by TDCJ in response to Public Information Act request. x Data provided by TDCJ in response to Public Information Act request. xi Data provided by TDCJ in response to Public Information Act request. xii Tex. Health and Safety Code § 841.1463. xiii This phraseology results in the SVP being denied the right to counsel when the requirements imposed on him are modified. xiv In In re the Commitment of Gipson, 580 S.W.3d 476 (Tex.App.—Austin 2019) the Court of Appeals ruled, and in In re Commitment of Garcia, No. 03-18-00331-CV (Tex.App.-Austin 2019) confirmed, that TRCP 292(a) applies to verdicts that “No, the Respondent is not a sexually violent predator.” Other courts have agreed, but in those other cases the record did not reflect that the jury's vote was 10-2 in favor of the Respondent, resulting in a remand for a new trial. xv Data provided by TCCO in response to PIA request. xvi Data provided by TCCO in response to PIA request. xvii TEX. PEN. CODE ANN. § 12.42(d)(Vernon 1994 & Supp. 1998). Any underlying conviction that the state must plead in the indictment or information cannot also be used to enhance the offense. See McWilliams v. State, 782 S.W.2d 871 (Tex. Cr. App. 1990) (en banc). Defense attorneys should attempt to quash indictments that do not allege the conviction(s) serving as the basis for the supervision. Where there are other convictions that could be pled, trial tactics dictate waiting until sentencing to object. See Wilt: v. State, 787 S.W.2d. 511 (Tex. App.-Houston [1' Dist.] 1990, no pet.). xviii Texas Civil Commitment Handbook. xix Testimony of the executive director during the trial of a civil rights lawsuit filed by a TCCC resident against the executive director. xx Testimony of the executive director during the trial of a civil rights lawsuit filed by a TCCC resident against the executive director. xxi Comments of executive director during September 2020 TCCO Board meeting. xxii Testimony of various witnesses at the trial of a civil rights lawsuit filed by a TCCC resident against the executive director. xxiii TCCO Policy and Procedure 3.5. xxiv Comments of residents of TCCC. xxv Data provided in part by TCCO in response to PIA requests and in part by SVPs. xxvi Source: various biennial evaluation reports filed with the court. xxvii Source: various biennial evaluation packets filed with the court. xxviii The courts of appeal do not have jurisdiction over biennial review orders because they are not final. In re the Commitment of Richards, 202 S.W.3d 779 (Tex.App. - Beaumont, 2006. Consider filing a writ of mandamus in an

appropriate case. Ruling on a Petition for Release is appealable. In re Commitment of Keen, 462 S.W.3d 524 (Tex.App.-Beaumont 2015) xxx Minutes of Meetings of TCCO Board. xxxi Hendricks, 117 S.Ct. at 2079. xxxii Compare Hendricks, 117 S.Ct. at 2077, with § 841.002(2). xxxiii See Hendricks, 117 S.Ct. at 2094-95. xxxiv Id., at 2081. xxxv E.g. paraphilia not otherwise specified otherwise known as “sexual deviance.” xxxvi Fisher, at 647. xxxvii Hendricks, at 2083. xxxviii Id., at 2078. xxxix See supra notes xxviii, xxix and accompanying text. xl See Paul Burka and Patricia Hart, The Best and the Worst Legislators: 1999, TEX. MONTHLY, July 1999, 88 at 100. The original bill called for actual commitment of only 15 persons, at a projected cost of $20 million. As passed, the SVP law carried a fiscal note of $4 million for the anticipated 15 persons. Currently there are 387 residents of the TCCC and the TCCO Board voted in September to ask the legislature for $35,000,000.00 for the next biennium. xli See In re Commitment of Richards, supra. xlii See In re Commitment of Keen, supra at note xxix. xliii Health and Safety Code § 841.123 xliv See notes xli and xlii, supra. xxix

Texas Criminal Defense Lawyers Association

Sex & Violence

September 9-10, 2021

Topic: Ethics Speaker:

Kerri Anderson Donica 301 W. 3rd Avenue Corsicana, TX 75110 (903) 872- 7107 Phone (903) 872-9281 Fax kerri@kerridonicalaw.com email kerridonicalaw.com website

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

Ethics in Sex and Violence Cases Texas Criminal Defense Lawyers Association September 10, 2021 Arlington, Texas Presented by:

KERRI ANDERSON DONICA

THE LAW OFFICE OF KERRI ANDERSON DONICA 301 W. 3RD AVENUE CORSICANA, TEXAS 75110 PHONE: 903.872.7107 EMAIL: KERRI@KERRIDONICALAW.COM KERRIDONICALAW.COM Note: This paper includes the work of the following lawyers: Kristin R. Brown, John Hunter Smith; Richard A. Anderson; Cynthia Orr; and Samuel E. Bassett. I would like to thank these excellent lawyers for their work in this area. Who would think so many criminal defense lawyers were versed in ethics?

Ethical Issues Facing The Criminal Defense Attorney Ethics in cases involving claims of sexual assault and /or violence are at a level of consternation for all of us.

The “#MeToo” movement seems

particularly relevant to this seminar and to a discussion of ethics. We must remember that our profession is an honorable and noble one, one that is historically significant. Let’s first take a brief look at the history of criminal defense lawyers.

History The history of criminal defense can be traced back to ancient Rome. By the 4th century, advocates who defended citizens accused of crime had little training. The profession disappeared after the Dark Ages, but the efforts of the church and state led to its resurgence for the protection of citizens accused of crimes. Beginning around 1730, there were few trained lawyers in the American colonies and indigent defense didn’t exist.

Lawyers usually trained as

apprentices. It wasn’t until the American Revolution that there began to be a demand for professionals and a formalization of lawyer training. Of course, the 1960s, with the civil rights movement and other social problems further fueled the growth of the trained criminal defense lawyers. Law schools began and this raised the bar (so to speak) for legal training. The standards for admittance began to be more formalized.

Why Did You Choose To Practice Criminal Defense?

Each of us has a story, each of us a reason we do what we do today. Take

a few moments to contemplate and remember exactly what the impetus was Ethics in Sex and Violence Cases ~ Page 2

for you. Were you in law school? Out reviewing contracts and being bored out of your mind? Or were you like me – a prosecutor (every so briefly) until you learned how boring that is and how it perhaps is contrary to many of your core beliefs.? Rediscovering the origin of your core motivation for practicing criminal defense is an important starting point for today’s presentation.

These

motivations can guide you in building not just a successful practice, but an honorable one. It is possible to be both an honorable, ethical attorney and a zealous advocate for your client. I have learned that after 35 years as a criminal defense lawyer. Not all prosecutors will like you, but they CAN be forced to acknowledge you are an honorable opponent (well, except those that are not and wouldn’t recognize one if it walked up and bit ‘em on the …. well you get the idea). Begin With Your Client~ Who is He/She?

Critical advice! Know who your client is. Just as we have different personal “styles”, our clients will as well. Here are a few of the types you are likely to encounter. How you handle each will vary but there are some common rules / ideas that will help.  Different Personality Types Just Means Different Problems With Which You’ve Got To Deal 1. The Worrier: This client is usually charged with a minor offense, but worries herself to death that they are going to send her to the pokey for the maximum sentence. They, or a family member, calls almost daily for an update. They generally have legitimate, though sometimes exaggerated, concerns. Ethics in Sex and Violence Cases ~ Page 3

How best to deal with the worrier? Empathy. a. Communicate understanding and concern. Your client needs to know you care. Often the longer we have been doing this, the easier it is to forget what it is like to be in an absolutely foreign situation where you are relying on someone else completely. b. Set boundaries and expectations on when the client should expect to hear from you. Do this as soon as possible in the relationship, and do it in writing, if necessary. Sometimes designate one family member with whom you will speak. c. Build trust. The client will worry less if they have complete trust in you. d. Staff. Have at least one staff member / legal assistant with whom the client or his family can speak. Make sure he feels “heard.” It is also important for the legal assistant to let the lawyer know what is being discussed. Nothing worse than having a client say, “I know your legal assistant told you…” and not knowing the relayed info. Key Note: These clients take a lot of hand‐holding. You can often identify the worrier in your initial meeting, at a time when you can base your fee on the amount of time you will need to spend with this client. 2. The Apathetic /and or Addict: Most often you will find this is a young person who is having a good time and doesn’t want the “nuisance” of a criminal charge slowing him down. Sometimes this reflects a college student spreading his/her wings and the boundaries of freedom from his parent’s control. Other times this reflects a substance abuse problem. Still other times, it is reflective of both. No matter, the client tends to need to be reminded of every court appearance, and is usually late to appointments—that is, if he/she shows up at all. Often this client is all OVER social media with booze or worse… How to best deal with the apathetic addict? a. Identify substance abuse problems and attempt to get the client into an appropriate treatment program. Self-admission Ethics in Sex and Violence Cases ~ Page 4

cannot be used against them and will generally help them in gaining the best resolution of their case. b. Enlist the support of friends and relatives to remind the client of the importance of attending to the criminal matter. c. Notify the client in writing and verbally of all court settings. A phone call a day or two before each and every setting is critical for this client. d. Withdraw from the case if the client does not comply with your instructions—even if this means a partial refund of the fee paid. 3. The Manipulator/Know‐It‐All: This person is usually experienced in the criminal justice system and can instruct you in all areas of the law (insert smirk). At the extreme, this client is a true sociopath who views the lawyer solely as a pawn in their real-life chess game. This client is rarely honest. Many of our serious cases involve this type of personality and, often, they will deny guilt in the face of overwhelming evidence to the contrary. This is the client who will insist on testifying, immediately turn any goodwill the jury had for him away, and proceed to convict himself. The bad news is the client will never see it that way—it will usually be your fault. How best to deal with the manipulator? a. Be hypervigilant about not setting expectationsfor success with this type of client. b. Be careful in fee setting and collection. c. As with the worrier, set boundaries early and often. d. Give updates in writing and identify problems to client in writing. e. Do NOT let this client do things you believe are not in her best interest (such as testifying when there is a plethora of evidence to contradict her story) without documenting, documenting, documenting. Have the client sign acknowledgements of the advice you’ve offered and her rejection of your opinions. Note: A manipulator, more than any other type of client, is likely to get his/her attorney in trouble by asking the attorney to stretch the boundaries of ethics. Ethics in Sex and Violence Cases ~ Page 5

Manipulators often encourage the attorney to facilitate perjury and/or other falsehoods, if they feel it benefits their case. Don’t fall into the trap. 4. The Ideal Client: This is the client who meets with you and follows your instructions to a “T.” This client pays the fee willingly, and on time. This client is not bothersome and generally waits for you to contact them. This client is truly refreshing and is the type of person you want to work even harder for. There are not enough of these! We must remember that we are in a service industry. We serve at the willingness of our clients. This means we need to try to find something to like about our clients, even if they are not very likable. Some of this can come from remembering why we do what we do, and that in protecting the one, we protect us all—an ideal which is much more important than any single case, but involves every single case. Remember – we often do not know where this person came and what struggles he may have had. She may be dealing with personal issues, family issues, mental health issues, financial issues. Try to

Applicable Rules ~ Tex. Disciplinary R. of Prof’l Conduct (TDRPC) Rule 1.01. Competent and Diligent Representation 1. A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer's competence, unless: (1) (2)

Another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances.

Inrepresenting a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients. Ethics in Sex and Violence Cases ~ Page 6

3. As used in this Rule, "neglect" signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients. Comment to Rule 1.01: 1. A lawyer generally should not accept or continue employment in any area of the law in which the lawyer is not and will not be prepared to render competent legal services. "Competence" is defined in Terminology as possession of the legal knowledge, skill, and training reasonably necessary for the representation. Competent representation contemplates appropriate application by the lawyer of that legal knowledge, skill and training, reasonable thoroughness in the study and analysis of the law and facts, and reasonable attentiveness to the responsibilities owed to the client. 2. In determining whether a matter is beyond a lawyer's competence, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience in the field in question, the preparation and study the lawyer will be able to give the matter, and whether it is feasible either to refer the matter to or associate a lawyer of established competence in the field in question. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequences. 3. A lawyer may not need to have special training or prior experience to accept employment to handle legal problems of a type with which the lawyer is unfamiliar. Although expertise in a particular field of law may be useful in some circumstances, the appropriate proficiency in many instances is that of a general practitioner. A newly admitted lawyer can be as competent in some matters as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcend s any particular specialized knowledge. 4. A lawyer possessing the normal skill and training reasonably necessary for the representation of a client in an area of law is not subject to discipline for Ethics in Sex and Violence Cases ~ Page 7

accepting employment in a matter in which, in order to represent the client properly, the lawyer must become more competent in regard to relevant legal knowledge by additional study and investigation. If the additional study and preparation will result in unusual delay or expense to the client, the lawyer should not accept employment except with the informed consent of the client. Competent and Diligent Representation: 5. A lawyer offered employment or employed in a matter beyond the lawyer's competence generally must decline or withdraw from the employment or, with the prior informed consent of the client, associate a lawyer who is competent in the matter. Paragraph (a)(2) permits a lawyer, however, to give advice or assistance in an emergency in a matter even though the lawyer does not have the skill ordinarily required if referral to or consultation with another lawyer would be impractical and if the assistance is limited to that which is reasonably necessary in the circumstances. 6. Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client's behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer. A lawyer's workload should be controlled so that each matter can be handled with diligence and competence. As provided in paragraph (a), an incompetent lawyer is subject to discipline. Neglect 7. Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Under paragraph (b), a lawyer is subject to professional discipline for neglecting a particular legal matter as well as for frequent failures to carry out fully the obligations owed to one or more clients. A lawyer who acts in good faith is not subject to discipline, under those provisions for an isolated inadvertent or unskilled act or omission, tactical error, or error of judgment. Ethics in Sex and Violence Cases ~ Page 8

Because delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness, there is a duty to communicate reasonably with clients; see Rule 1.03. Rule 1.02. Scope and Objectives of Representation (a) Subject to paragraphs (b), (c), (d), and (e), (t), and (g), a lawyer shall abide by a client's decisions: concerning the objectives and general methods of representation; whether to accept an offer of settlement of a matter, except as otherwise authorized by law; 3. In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. 1. 2.

(b) A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation. (c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law. (d) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in substantial injury to the financial interests or property of another, the lawyer shall promptly make reasonable efforts under the circumstances to dissuade the client from committing the crime or fraud. (e) When a lawyer has confidential information clearly establishing that the lawyer's client has committed a criminal or fraudulent act in the commission of which the lawyer's services have been used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take corrective action.

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(f) When a lawyer knows that a client expects representation not permitted by

the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

(g)

A lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client.

Comment to Rule 1.02: Criminal, Fraudulent and Prohibited Transactions 1. A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. 2. When a client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer may not reveal the client's wrongdoing, except as permitted or required by Rule 1.05. However, the lawyer also must avoid furthering the client's unlawful purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required. See Rule 1.15(a)(l ). 3. Paragraph (c) is violated when a lawyer accepts a general retainer for legal services to an enterprise known to be unlawful. Paragraph (c) does not, however, preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. Ethics in Sex and Violence Cases ~ Page 10

4. The last clause of paragraph (c) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities. 5. Paragraph (d) requires a lawyer in certain instances to use reasonable efforts to dissuade a client from committing a crime or fraud. If the services of the lawyer were used by the client in committing a crime or fraud, paragraph (e) requires the lawyer to use reasonable efforts to persuade the client to take corrective action. Rule 1.03. Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 1.04. Fees (a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable. (b) Factors that may be considered in determining the reasonableness of a fee include, but not to the exclusion of other relevant factors, the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood , if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained ; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and Ethics in Sex and Violence Cases ~ Page 11

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. (c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. (d) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (e) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined. Ifthere is to be a differentiation in the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated. The agreement shall state the litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement describing the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case. (f) A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is: in proportion to the professional services performed by each lawyer; or (ii) madebetween lawyers who assume joint responsibility for the representation; and (i)

(2) the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, including:

Ethics in Sex and Violence Cases ~ Page 12

the identity of all lawyers or law firms who will participate in the fee-sharing agreement, and (ii) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and (iii) the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services performed , the basis on which the division will be made; and (3) the aggregate fee does not violate paragraph (a). (i)

(g) Every agreement that allows a lawyer or law firm to associate other counsel in the representation of a person, or to refer the person to other counsel for such representation, and that results in such an association with or referral to a different law firm or a lawyer in such adifferent firm, shall be confirmed by an arrangement conforming to paragraph (f). Consent by a client or a prospective client without knowledge of the information specified in subparagraph (f)(2) does not constitute a confirmation within the meaning of this rule. No attorney shall collect or seek to collect fees or expenses in connection with any such agreement that is not confirmed in that way, except for: (1) the reasonable value oflegal services provided to that person; and (2) the reasonable and necessary expenses actually incurred on behalf of that person. (h) Paragraph (f) of this rule does not apply to payment to a former partner or associate pursuant to a separation or retirement agreement, or to a lawyer referral program certified by the State Bar of Texas in accordance with the Texas Lawyer Referral Service Quality Act, Tex. Occ. Code952.001 et seq ., or any amendments or recodifications thereof. Rule 1.05. Confidentiality of Information (a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule Ethics in Sex and Violence Cases ~ Page 13

5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. (b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the clients’ representatives, or the members, associates, or employees of the lawyer’s law firm. (2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations. (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known. (4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation. (c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. Ethics in Sex and Violence Cases ~ Page 14

(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used. (d) A lawyer also may reveal unprivileged client information. (1) When impliedly authorized to do so in order to carry out the representation. (2) When the lawyer has reason to believe it is necessary to do so in order to: (i) carry out the representation effectively; (ii) defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct; (iii) respond to allegations in any proceeding concerning the lawyer's representation of the client; or (iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in Ethics in Sex and Violence Cases ~ Page 15

death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. (f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b). Note: Also see Texas Family Code Section 261.101 (Duty to Report Child Abuse or Neglect). Rule 3.03. Candor Toward Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false. (b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts. (c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.

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Comments to Rule 3.03: Anticipated False Evidence 5. On occasion a lawyer may be asked to place into evidence testimony or other material that the lawyer knows to be false. Initially in such situations, a lawyer should urge the client or other person involved to not offer false or fabricated evidence. However, whether such evidence is provided by the client or by another person, the lawyer must refuse to offer it, regardless of the client’s wishes. As to a lawyer’s right to refuse to offer testimony or other evidence that the lawyer believes is false, see paragraph 15 of this Comment. 6. If the request to place false testimony or other material into evidence came from the lawyer’s client, the lawyer also would be justified in seeking to withdraw from the case. See Rules 1.15(a)(1) and (b)(2), (4). If withdrawal is allowed by the tribunal, the lawyer may be authorized under Rule 1.05(c)(7) to reveal the reasons for that withdrawal to any other lawyer subsequently retained by the client in the matter; but normally that Rule would not allow the lawyer to reveal that information to another person or to the tribunal. If the lawyer either chooses not to withdraw or is not allowed to do so by the tribunal, the lawyer should again urge the client not to offer false testimony or other evidence and advise the client of the steps the lawyer will take if such false evidence is offered. Even though the lawyer does not receive satisfactory assurances that the client or other witness will testify truthfully as to a particular matter, the lawyer may use that person as a witness as to other matters that the lawyer believes will not result in perjured testimony. Past False Evidence 7. It is possible, however, that a lawyer will place testimony or other material into evidence and only later learn of its falsity. When such testimony or other evidence is offered by the client, problems arise between the lawyer’s duty to keep the client’s revelations confidential and the lawyer’s duty of candor to the tribunal. Under this Rule, upon ascertaining that material testimony or other evidence is false, the lawyer must first seek to persuade the client to correct the false testimony or to withdraw the false evidence. If the persuasion is ineffective, the lawyer must take additional remedial measures. Ethics in Sex and Violence Cases ~ Page 17

8. When a lawyer learns that the lawyer’s services have been improperly utilized in a civil case to place false testimony or other material into evidence, the rule generally recognized is that the lawyer must disclose the existence of the deception to the court or to the other party, if necessary, rectify the deception. See paragraph (b) and Rule 1.05(h). See also Rule 1.05(g). Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal by the lawyer but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer would be aiding in the deception of the tribunal or jury, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.02(c). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer’s advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court. Perjury by a Criminal Defendant 9. Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that in such cases, as in others, the lawyer should seek to persuade the client to refrain from suborning or offering perjurious testimony or other false evidence, there has been dispute concerning the lawyer’s duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available. 10. The proper resolution of the lawyer’s dilemma in criminal cases is complicated by two considerations. The first is the substantial penalties that a criminal accused will face upon conviction, and the lawyer’s resulting reluctance to impair any defenses the accused wishes to offer on his own behalf having any possible basis in fact. The second is the right of a defendant to take the stand should he so desire, even over the objections of the lawyer. Consequently, in any criminal case where the accused either insists on testifying when the lawyer knows that the testimony is perjurious or else surprises the lawyer with such testimony at trial, the lawyer’s effort to rectify Ethics in Sex and Violence Cases ~ Page 18

the situation can increase the likelihood of the client’s being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court. 11. Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This solution, however, makes the advocate a knowing instrument of perjury. 12. The other resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take a reasonable remedial measure which may include revealing the client’s perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. False Evidence Not Introduced by the Lawyer 13. A lawyer may have introduced the testimony of a client or other witness who testified truthfully under direct examination, but who offered false testimony or other evidence during examination by another party. Although the lawyer should urge that the false evidence be corrected or withdrawn, the full range of obligation imposed by paragraphs (a)(5) and (b) of this Rule do not apply to such situations. A subsequent use of that false testimony or other evidence by the lawyer in support of the client’s case, however, would violate paragraph (a)(5). Duration of Obligation 14. The time limit on the obligation to rectify the presentation of false testimony or other evidence varies from case to case but continues as long as Ethics in Sex and Violence Cases ~ Page 19

there is a reasonable possibility of taking corrective legal actions before a tribunal. Refusing to Offer Proof Believed to be False 15. A lawyer may refuse to offer evidence that the lawyer reasonably believes is untrustworthy, even if the lawyer does not know that the evidence is false. That discretion should be exercised cautiously, however, in order not to impair the legitimate interests of the client. Where a client wishes to have such suspect evidence introduced, generally the lawyer should do so and allow the finder of fact to assess its probative value. A lawyer’s obligations under paragraphs (a)(2), (a)(5) and (b) of this Rule are not triggered by the introduction of testimony or other evidence that is believed by the lawyer to be false, but not known to be so. Rule 3.04. Fairness in Adjudicatory Proceedings A lawyer shall not: (a) unlawfully obstruct another party's access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act. (b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time in attending or testifying; (3) a reasonable fee for the professional services of an expert witness. (c) except as stated in paragraph (d), in representing a client before a tribunal: (1) habitually violate an established rule of procedure or of evidence; Ethics in Sex and Violence Cases ~ Page 20

(2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness; (3) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, except that a lawyer may argue on his analysis of the evidence and other permissible considerations for any position or conclusion with respect to the matters stated herein; (4) ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that the question will lead to relevant and admissible evidence; or (5) engage in conduct intended to disrupt the proceedings. (d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client's willingness to accept any sanctions arising from such disobedience. (e) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information. Rule 3.09. Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall: (a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause; (b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights; Ethics in Sex and Violence Cases ~ Page 21

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and (e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07. Comment: Source and Scope of Obligations 1. A prosecutor has the responsibility to see that justice is done, and not simply to be an advocate. This responsibility carries with it a number of specific obligations. Among these is to see that no person is threatened with or subjected to the rigors of a criminal prosecution without good cause. See paragraph (a). In addition a prosecutor should not initiate or exploit any violation of a suspect's right to counsel, nor should he initiate or encourage efforts to obtain waivers of important pre-trial, trial, or post-trial rights from unrepresented persons. See paragraphs (b) and (c). In addition, a prosecutor is obliged to see that the defendant is accorded procedural justice, that the defendant's guilt is decided upon the basis of sufficient evidence, and that any sentence imposed is based on all unprivileged information known to the prosecutor. See paragraph (d). Finally, a prosecutor is obliged by this rule to take reasonable measures to see that persons employed or controlled by him refrain from making extrajudicial statements that are prejudicial to the accused. See paragraph (e) and Rule 3.07. See also Rule 3.03(a)(3), governing ex parte proceedings, among which grand jury proceedings are included. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.04.

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Common Complaints Against Criminal Defense Lawyers Unfortunately, more ethical complaints are lodged against criminal defense lawyers than those practicing any other area of law. Some of the reasons for this include:  Lots of free time—once Johnny goes to prison, what else does he have to do but take cheap shots at you?  Lack of documentation—yeah, I know; I hate acting like a civil lawyer too.  Carelessness—Attorneys can and do get careless, thinking the Grievance Committee will always believe the attorney over the client.  “I’ll call them back tomorrow”—Returning phone calls is a headache, especially to those clients who are difficult or to whom we have less than great news to deliver. Deal with the bad news and the bad clients first, then end your day on a more positive note. Types of Complaints: 1. General Neglect 2. Lack of Communication 3. Representation of Multiple Defendants (Conflict of Interest) 4. Fees (Written Employment Contract) 5. Declining/Terminating Representation 6. Sexual Relationship between Atty/Client 7. Business Relationship between Atty/Client 8. Failure to communicate mistake or malpractice to client 1. Neglect: The majority of complaints lodged against Texas attorneys allege issues of general neglect. Neglect is a “conscious disregard” of the client’s needs. Neglect often results from a personal crisis in the life of the attorney—death, divorce, mental health or substance abuse, or a combination of the foregoing. It is important to remember that our lives are filled with a high amount of stress and TCDLA can be a valuable resource in helping to find attorneys to temporarily manage a caseload during such times. 2. Lack of Communication: One of the most important things that we can do to establish a strong attorney/client relationship is build and maintain Ethics in Sex and Violence Cases ~ Page 23

trust with our client. Communication is the most powerful way to do this. A few simple rules will go a long way in helping you establish successful relationships and a successful practice: a. Return all calls within 24 hours. If you can’t, have someone on your staff do so. b. Return all emails or have someone on your staff do so. Remember to save all emails (incoming and outgoing) to your client folder so you can ultimately save them to your digital client file (or print, if you prefer). c. Document/Log every phone call, every meeting with a prosecutor, every court appearance, every conversation with your client, every conversation with a witness. Tedious work, but worth it if you ever need it. d. Communicate with your difficult clients in writing—expectations, their homework, issues, etc. Follow up phone calls with a letter recapping the conversation. e. Always be respectful. If a client is being especially difficult, reschedule the conversation for another day. f. Don’t take on too much. This is really difficult, but really important. If you don’t have the staff to support the case, and you are already short on time, leave it be. There will be another case. There is always another case. 3. Fees: Setting a fair and reasonable legal fee is a pivotal piece of the private practice puzzle. (Say that three times fast!) Fee setting requires the attorney to consider the attorney’s value, market conditions, and ethics considerations and then strike a proper balance. One should consider our fees determine our worth both financially and as a professional in a competitive legal environment. One consideration is always experience. Most first-year attorney should not be charging the same as most ten, twenty, or thirty-year attorneys. Time Limitations in Fee Setting: Determining the proper flat fee to charge in a criminal case is an important and challenging skill. Make sure you understand both: (1) who the client is, as a person; and (2) what the case is before you attempt to set a fee. It is frustrating to set a fee for what you believe is a simple case only to later learn the amount you charged was an extreme undervaluation of your time. Just as charging too much can be a Ethics in Sex and Violence Cases ~ Page 24

problem, so can charging too little. If you are spending all of your time at work, handling numerous cases, just to keep the lights on, it’s probably time to raise your rates. Also consider charging for different portions of the case. For example, there may be an initial “investigation” phase during which the lawyer can figure out what is happening with the case; this would be followed up by a larger fee if the case is actually filed. Reputation in the Community as a Factor in Fee Setting: A lawyer’s reputation in the community is a critical factor in fee setting. If you are newly licensed, you must make a decision as to what type of practice you want to develop. But, keep in mind that you will discover what you love as you come farther into the practice of law. One may think that a DWI practice would be perfect only to discover that they really do not enjoy those cases. Take the cases that make you happy. These are the cases you will do your best at, which in turn will increase your reputation in the community. Flat or Hourly Fees: Most criminal defense attorneys use the flat fee method for representation. This goes back to our disdain for timekeeping, or other things resembling civil practice. There are occasions though, where an hourly fee might be more appropriate and also more profitable. Even if you DO charge a “flat fee”, be sure to document ALL your time as this is something that may be looked at by their credit card company (you’ve not lived until dear ol’ Mom tells the credit card company it’s a fraudulent charge!), or by a grievance committee. Documentation is NEVER a bad thing. Written Fee Agreements: Always be sure your agreement with your client—either in the form of a letter or a legal services agreement – is in writing and signed by the client. There is no particular form to use, but make sure the writing covers all critical issues in your representation. This will help you if a grievance or fee dispute is filed. Many lawyers are happy to share these documents with others – don’t be afraid to ask. I like to “tweak” mine every so often after looking at the contracts others utilize.

Zealous Representation & Misbehavior by Attorneys The phrase “zealous representation” evokes a number of various images to the public and to the criminal defense attorney. To those of us who cling to Ethics in Sex and Violence Cases ~ Page 25

the notion that the law is a noble profession, the criminal defense attorney is the true crusader for justice, working tirelessly and leaving no stone unturned in his or her fight against the powerful prosecutor. It is in this image that the criminal defense lawyer is truly a shield against the unbridled power of the government. However, a “no-holds barred” zealot usually does his or her client a disservice. This type of attorney alienates prosecutors, judges, and juries right and left, using “zealous representation” as a rationalization for his conduct. Further, this approach demeans the criminal defense bar as a community, and allows the public to form an even less favorable image of us, further jeopardizing a just jury verdict for all citizens accused. As criminal defense attorneys, we have what often seems like a justifiable opportunity to call names, to publically criticize the judges and prosecutors we work with on a daily basis. In such instances, we must first take a step back, realizing that our first duty is to obtain the best possible result for the client within the bounds of our ethical duties. We have truly fallen far to reach to a point where new attorneys must take an “oath of civility,” as the new legislation, effective September 1, 2015, requires. We must take it upon ourselves to act with professionalism and credibility in our zealous pursuit of justice.

Conclusion The work of a criminal defense attorney is not easy. We must run a small business, deal with difficult situations and difficult clients, and work crazy long hours. In the past 18 plus months, we’ve also had to learn how to deal with many virtual hearings and clients who feel like their cases just keep getting pushed back. And try not to appear as a cat on the zoom hearing (or have our clients identify themselves on zoom as BF’er 3000, be lounging in bed, smoking a cigarette, yelling at a kid, or have the camera pointed at the ceiling fan or appear in a drug case wearing a t-shirt touting simply the word “DOPE”). It is important to regularly reflect on out reason for entering this profession and to state personally refreshed and avoid burnout. Our profession is rife with examples of what happens to lawyers who work too Ethics in Sex and Violence Cases ~ Page 26

hard and fail to care for themselves. Alcoholism, drug addiction, and divorce rates are much higher for lawyers that try our sort of cases. Don’t spread yourself too thin and fail to prioritize those things in life that are really important. Evaluate your personal and professional goals regularly. Set aside time for meditation or devotional frequently. Keep your family as a priority. Let your family learn to understand why we do what we do. I tried to let my boys know this at an early age – to know the word “allegedly” is more than a word (and to NEVER speak with law enforcement or school officials until their mother arrived!). Finally, don’t forget that we are here to serve our clients, and get reasonable compensation for our efforts. YOU are a critical component of the very best criminal justice system in the world.

Ethics in Sex and Violence Cases ~ Page 27

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OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases. From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education. TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas. TCDLA continues to foster these relationships and develop additional affiliations. As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

WWW.TCDLA.COM

TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers. New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code. Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments. With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form). Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported. The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission. Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements. Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure. In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county. As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process. Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate. The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study. Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases. While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases. The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions. To learn more about this research please visit the study website at http://texaswcl.tamu.edu. WWW.TIDC.TEXAS.GOV

MARCH 2014