Battling the Resistance in SPI by TCDLA

Texas Criminal Defense Lawyers Association

Battling the Resistance Table of Contents

-Speaker

Topic July 8, 2021

Lisa Greenberg

The More Important the Action, the Greater the Resistance (Cross Examination)

Anne Burnham

The Battle Must be Fought Anew Every Day (Pretrial)

Dwayne Simpson

The Resistance is Fueled by Fear (Opening Statements)

Joseph Hoelscher

The Resistance is Self-Sabotage (Mental Health) July 9, 2021

Clifford Duke

Procrastination; the Most Common Resistance and the Easisest to Rationalize (Voir Dire)

Jolissa Jones

Controlling the Perceptions (Experts)

Matthew Allen Kerri Anderson Donica

When the Finish Line is in Sight (Closing Arguments) Ethics

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

BATTLING THE RESISTANCE IN SPI SEMINAR INFORMATION Date Location Course Director Total CLE Hours 6.0 Thursday, July1.0 8, Ethics: Time

July 8-9, 2021 The Pearl – 310 Padre Blvd, South Padre Island, Texas, 78597 Adam Kobs, Bobby Lerma, and Carmen Roe 6.0 Ethics: 1.0

2021

CLE

Daily CLE Hours: 3.0 Ethics: 0.0 Topic

Speaker

8:15 am

Continental Breakfast and Registration

8:45 am

Opening Remarks

Carmen Roe and Adam Kobs

9:00 am

.75

The More Important the Action, the Greater the Resistance: (Cross Examination)

Lisa Greenberg

9:45 am

.75

The Battle Must be Fought Anew Every Day: (Pretrial)

Anne Burnham

10:30 am

Break

10:45 am

.75

The Resistance is Fueled by Fear: (Opening Statements)

Dwayne Simpson

11:30 am

.75

The Resistance is Self-Sabotage: (Mental Health)

Joseph Hoelscher

12:15 pm

Adjourn

12:45 pm

Beach Bar-B-Q the Outlaw Grillers Bobby Lerma & Bill Trantham

Friday, July 9, 2020 Time

CLE

Daily CLE Hours: 3.0 Ethics: 1.0 Topic

Speaker

8:15 am

Continental Breakfast and Registration

8:45 am

Opening Remarks

Carmen Roe and Bobby Lerma

9:00 am

.75

Procrastination; the Most Common Resistance and the Easiest to Rationalize: (Voir Dire)

Clifford Duke

9:45 am

.75

Controlling the Perceptions: (Experts)

Jolissa Jones

10:30 am

Break

10:45 am

.75

When the Finish Line is in Sight: (Closing Arguments)

Mathew Allen

11:30 am

.75

Ethics

Kerri Anderson Donica

12:15 pm

Adjourn

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

Criminal Defense Lawyers Project

Battling the Resistance July 8, 2021 310 Padre Boulevard South Padre Island, TX

Topic: The More Important the Action, the Greater the Resistance: (Cross Examination)

Speaker:

Lisa Greenberg 622 S Tancahua St Corpus Christi TX 78401-3426 (361) 446-2476 phone (361) 288-3476 fax lisagreenberglaw@gmail.com

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

How to Kick Ass at Cross Examination By: Lisa Greenberg

“Cross examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, (1974). Cross Examination is one of the hardest trial skills a trial lawyer needs to master. However, we owe a duty to our practice, our clients and ourselves to grow and learn how to cross-examine effectively. We need to tailor our cross examination to each and every trial and be prepared for witnesses’ testimony on both direct and cross. Each witness is being used by the Prosecutor as a piece of the puzzle to convict your client, it is your duty, in turn to dissect those pieces individually. In doing so, you prove yourself to be prepared, competent and skilled while telling your client’s story.

Importance of Cross: a. Storytelling Function- you are telling a story at all times when you speak as an attorney. If you are not telling that story, you should not be speaking. b. Learning how- sources: MacCarthy on Cross-Examination, Terrence MacCarthy, The Art of Cross-Examination by Francis L. Wellman, Collier Books; The Ten Commandments of Cross Examination by Professor Irving Younger. c. TCDLA trial college! d. Difficulty- Cross is a science, not an art. Needs to be learned and studied. May take the most preparation and time of your trial prep. It is hard and should be viewed like surgery. Precise. In and out and no extras! You know the result you want and go for that solely. i. Sadly, most lawyers think cross is where you fight or demolish a witness, or worse, they just repeat what the Prosecutor said. e. Preparation- THIS IS KEY! i. This is where you spend your pretrial preparation time, after you have prepared by writing your closing. What details from the evidence are helpful to your story telling? This is where you bring them out. ii. Know each witness and what they will say: 1. How do they add or hurt your theory of the case iii. Listen to their direct and know what evidence they have given iv. Be prepared for how they help/hurt your theory. v. Know their background fully- this is pretrial prep. 1. How- from these sources: a. Discovery b. Informal conversation c. Investigation facts d. Subpoena documents e. Police reports, court histories etc.

f. Watch the witness’ demeanor in any interviews or on direct (if nothing else available) g. Listen: listen to the witness in interviews and direct

II. III.

IV.

VI.

VII.

Scope of Cross: Limited to subject matter of the direct examination and matters affecting credibility of witness. What is the Purpose? a. Always you are telling your story, advancing your theory. b. At best, helps win a decision on points, not knockouts. c. At worst, you look good and enables you to act like you are scoring, even if you are not. Style of Cross: a. “Look Good” system b. change from a dialogue to a monologue c. You do not care what the witness says. What is the Look Good style of cross? a. What is your purpose with the witness? i. Discredit? ii. Show Bias or Motive? iii. Mental Instability? iv. Poor vision/Memory? b. Style/Manner: i. This is entirely up to you. You have to be YOURSELF. ii. Getting permission in Voir Dire if you have to be rough on some witnesses. Rules: a. Use Short Statements i. Why they are important? Goal is control. ii. Don't make too long of a question. iii. Do not ask open ended questions. b. Your questions are statements. 1. One fact per question. 2. Break this rule and you’ve lost control. 3. Also, you do not look good and loses jury’s attention 4. Only answer is yes or no. c. Make transitions: i. Show the listener where you are going. ii. Ex: “I want to ask you a few questions about what you saw when you left Murphy’s bar at 3 in the afternoon, you understand?” iii. Book marker for listener d. NO LEGALESE! Your goals: Tell your story!

VIII.

IX.

a. Use statements of the witness b. Destroy credibility of those who hurt you. i. Key point is witnesses will abandon logic and truth in order to preserve their sense of self. ii. Create a cross designed to force a witness to agree to a damaging fact or facts in order that the witness may maintain his/her self image intact. How to: a. I separate witnesses with folders. i. In each folder I have any statements they made, their statement in discovery, notes from videos, info etc b. Write down goals. “I must prove this” c. Then work in reverse, how do you get to that goal? d. Example- cop wants jury to believe your client offered undercover heroin. i. Officer you had a role during the meeting with alleged dealers ii. You had a tape recorder iii. Didn’t wear it on his body iv. Tape recorder was in briefcase v. Briefcase could go anywhere vi. Recorder in briefcase was turned on vii. Recorder was left in the car viii. You left car with the briefcase at the time of the meeting ix. You couldn’t record anything without briefcase x. Any conversation you had, you had near car xi. Tape didn’t pick up conversation xii. There is no tape with conversation you related to this jury. e. Close escape routes: i. Reviewed documents ii. Could make changes and didn’t iii. Didn’t tell anyone about errors iv. Court reporter has machine to take down what you say v. Different witnesses: different tactics: a. Cop- never admit to not being thorough b. Mother- never admit to being neglectful c. Expert- never admit to not being knowledgeable d. Snitch- try to hold on to some self respect How to maintain control of witness: a. Your goal is a Pavlovs dog response. b. Try to look good, maintain manners and not ask for help. c. Try not to: i. Interrupt a witness ii. Instruct the witness to answer yes or no. 1. Better alternatives are: a. I’m sorry I confused you, let me try again?

b. Can you try and answer MY question? c. You came to tell the truth, if the simple truth is yes, can you just tell us yes? d. What did I ask you? e. Or repeat the same question slowly with rising inflection and use the witness’ name. XI.

May be times we do not want to cross examine: a. Do I need to cross examine this witness? b. Will other witnesses demonstrate the same point with less danger to my client/theory c. Will another witness highlight the illogic or unreasonableness of this witness? d. Children? Crying witnesses? Painful recount would only hurt you? e. Does this witness matter? i. Errors in time/distance the jury will forgive the witness, not you. ii. Big issues are the only things to ever fight about.

Cross Examination of the Lead Detective Lisa Greenberg Law Office of Lisa Greenberg, PLLC 622 S. Tancahua St. Corpus Christi, TX 78411 (361) 446-2476 lisagreenberglaw@gmail.com

Importance of CrossExamination

• “Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.” John Henry Wigmore •

Preparation is the MOST important part!

What is your Theme?

What is Your Theory of the Case? Theory: a well substantiated explanation of an aspect of the natural world that can incorporate laws, hypothesis and facts.

YOU become the Investigator!

You Investigate: Who is this Detective?

Who is this Detective? • • • • • • • •

Ask around! TCOLE Records Google search Deep dive social media etc. Check out other reports, writing style, interviewing style How does he/she testify? Won awards? Competing for award/title/bonus? What is at stake professionally?

What was His Role at Time of Incident?

Detective’s Report: • How does he write? • Refer to himself? • ”cop speak”? • Detailed? • Time frame- always write out a detailed timeline. • How long did they spend investigating, etc.

Conversations With the DA • Check to see how many times they were asked to do more• Get through discovery motion specifically requesting all communication of all parties involved, including DA, (CAC, CPS, etc.) • Were they instructed to talk to more witnesses? • Get more evidence?

Who Did The Detective Speak To? • What witnesses did they choose? • Did they make attempts to speak to everyone? • How soon did they quit making attempts before they turned in the case? • Did they look for ways to contact witnesses?

Who Did they NOT Speak to? • Arguably, most important! • Did they try? • Look for contact info? • Make any phone calls? • Do a search?

Their Interview Style: Are they The Nice guy? The Mean guy? The Liar? Intimidating bully?

What is THEIR Goal?

The Michael Morton Compliance Affidavit This is a wealth of info and gold for cross examination! • What did they swear to on a government document • Is an Affidavit, not a report, it is sworn to. • When was it signed?

Have a Clear Organization and Structure to your Cross: • Always start with your goals (I list 3) • Make sure what you are asking goes towards one of those goals • If not, consider removing it. • Make your questions and topics clear and organized.

How to ask your questions: • Don’t be scared to ask hard leading questions. This is our job! • Practice! • Make sure no escape routes. • Be prepared. • Shows witness you know what you are talking about! • Shows DA you know what you are talking about! • Shows Judge you know what you are talking about! • Shows Jury you know what you are talking about!

Maintain Control: Goals: look good, maintain manners and don’t ask for help.

Criminal Defense Lawyers Project

Battling the Resistance July 8, 2021 310 Padre Boulevard South Padre Island, TX

Topic: The Battle Must be Fought Anew Every Day: (Pretrial)

Speaker:

Anne Burnham 2507 NW 36th St San Antonio, TX 78228-3918 (210) 431-5753 phone (210) 436-3413 fax aburnham@stmarytx.edu

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

NO. STATE OF TEXAS

)

IN THE COUNTY COURT

VS.

)

AT LAW NUMBER

)

BEXAR COUNTY, TEXAS

MOTION TO REDACT INADMISSIBLE PORTIONS OF AUDIO ON POLICE OFFICER VIDEO RECORDINGS TO THE HONORABLE JUDGE OF SAID COURT:

Now comes the Defendant, , defendant in the above and numbered cause, and respectfully requests the Court to instruct the State to redact inadmissible statements and for good cause shows the following: Pursuant to Texas Rules of Evidence 801, 802, 803, 104(b), 401, 402, 403, and 404(b), the following statements are inadmissible. Inadmissible statements are made in the recordings of Officer , Officer and body cameras (files ”, “ ”and “ ", respectively). The body camera recordings made at the scene, contain the following

inadmissible statements and video portions: I. Statements made by the complaining witness (“ ”) contains inadmissible statements and prejudicial hearsay.

Statements made by the complaining witness are inadmissible hearsay. Tex. R. Evid. 801, 802, and 803. Furthermore, the statements are also irrelevant and highly inflammatory. See Tex. R. Evid. 401, 402, 403 and 404(b). The use of alleged past acts to show character is prohibited by the Texas Rules of Evidence. Tex. R. Evid. 404(b); see Montgomery v. State, 8100 S.W.2d 372, 386 (Tex. Crim. App. 1991). The proffered statements of the complaining witness have no relevance to the charges at hand and are therefore, inadmissible. Id. at 387 (stating that evidence relevant only to character conformity is inadmissible). Video File ID

Video Time

Inadmissible Statements

23:34-23:38

Complainant: “You should drug test him too cause he’s all on ice”

27:50-27:52

Complainant: “I can’t tell them about his drug addiction”

28:10-28:24

Complainant: “well what about my car, cause like he know where I live and he’s broke– my car looks like that for a reason. Cause I have– so I’m scared like is he going to come back and do something my car since its out there”

30:31-30:37

Complainant: “He said he was going to take it to the junkyard and get like three thousand or something. I’m like why you going to screw the guy over”

30:35-31:05

Complainant: “Oh, I had a question. Supposedly he said that he uh cause two days he hit me and the same thing. I don’t know if it was two days ago exactly. I think it was Tuesday but that’s not two days ago but supposedly he um made a police report on himself. But now what I heard him talking to yall made it seem like he didn’t do anything. I’m wondering, did he really make that police report.”

31:55-32:01

Complainant: “Because my other assault case, he was supposed to go to court but he didn’t go to court.”

40:55-41:05

Complainant: “Well I had, they called me and I told them you know what he’s in jail, don’t worry about it. Like he was in jail for something else so this one I’m going through.”

2:46-3:09

Complainant: “I can’t believe he was trying to say I was. And when he showed me the police report he was like ‘look I even called the cops on myself saying that I hit you but that you have to come forward.’ And now I’m hearing that he’s trying to say that I did it.

6:26-6:38

Complainant: “I don’t know but now I’m mad that he put those because if I was calling yall two days ago or Tuesday when he hit me, like I couldn’t even breathe. He punched me in the back. I should have called.”

6:50-7 : 0 0

Complainant: “I know man, but I should have called when he hit me the other day.”

7:45-7:48

Complainant: “It’s cause he broke my make up too, he’s broken a bunch, and he made a hole.”

8:01-8:06

Complainant: “this but that wasn’t today so I guess we shouldn’t add them right.”

11:15-11:19

Complainant: “I should have called, I’m telling you I was laying in bed for two days because he punched my back.”

11:20-11:24

Complainant: “ I couldn’t even breathe, I would have gone to the hospital but he stole my keys so I wasn’t going to leave.”

15:09-15:14

Complainant: “yeah he had a razor to his throat. You need to make sure he’s on suicide watch.”

6:37-6:55

Complainant: “But two days ago he hit my back and I could not walk for two days and I have tiny bruises on my shoulder. But he like, I’m telling you he does it enough to where he don’t leave marks and I’ve been dealing with this for like”

9:55-10:12

Complainant: “multiple times, but today probably like 30 minutes before I had called y’all. But today want as severe as like two days ago when he hit my back and I couldn’t even breathe. I was going to go to the hospital but that’s when he stole my key and I didn’t want to leave my door open.”

10:59-11:02

Complainant: “ Yeah I mean he’s choked me before but this was today.”

11:14-11:22

Complainant: “but like in the car one time too he only punched me like my jaw hurts but he doesn’t leave scars or bruises”

11:39-11:55

Complainant: “But he showed me a police report from like two days ago supposedly –okay but I want to know about this police report. Supposedly he said he called the cops on himself and they said they said they couldn’t do anything unless I came forward. I want to know if that police report is true?”

38:10-38:18

Complainant: “Well I had, they called me and I told them you know what he’s in jail, don’t worry about it. Like he was in jail for something else so this one I’m going through.”

32:07-32:16

Complainant: “ I just feel like if I leave he’s gonna, well not right now cause he’s going to jail but he’ll probably try to break in again when I’m at work or something.”

II. Statements made by Officers contain inadmissible hearsay. The inadmissible statements are made in the body camera videos for officers . If the prosecutor is allowed to present and publish the aforementioned videotape in its entirety, ordinary objections during the course of trial, even sustained and including proper instructions to the jury, will not remove the harmful effect of same in view of their highly prejudicial content. See Fischer v. State, 252 S.W.3d 375, 376 (Tex. Crim. App. 2008) (holding that law enforcement officer's factual observations of scene of crime are not admissible hearsay as a present sense impression and distinguishing it from a case in which an officer described the suspect's conduct during pursuit).

Video File ID

Video Time

Inadmissible Statement

10:57-12:36

Officer S: “Of course, we ran your history when we came over here and one of the first things that pops up is that you run you know. I don’t mind running on my off duty but I hate running like this man so you know.” Defendant: “No uh well I don’t run that was before when I lost my marriage”

Officer S:: “Okay” Defendant: “you know I went on a high speed chase cause I didn’t have nothing to lose. It wasn’t even a high speed chase it was from downtown to my house and 10mph, they ended up dismissing it and then they dismissed it as a felony and they put it as a misdemeanor well my lawyer failed to tell me so they had it as a sealed case so then it opened up into a warrant for my arrest for alluding a police officer”

Officer S: “really?” Defendant: “it wasn’t eluding a police officer like running from a cop”

Officer S: “right not evading” Defendant: “it was it was not showing up in court cause it was a sealed case. So”

Officer S: “wow. So they originally filed eluding in a vehicle and then it came back as uh as uh” Defendant: “as dismiss as uh they dropped it as a misdemeanor because”

Officer S: “yeah as evading okay, okay” Defendant: “they saw the camera and he was only 6

Officer S: “Okay” Defendant: “and they got me for evading arrest in a motor vehicle”

Officer S: “okay” Defendant: “so from there they dropped it to a misdemeanor and my lawyer was like no its dismissed you don’t have to go to court anymore so then two months later I call and im like what’s going on. I got a letter in the mail that I have a warrant for eluding a police officer. Well its because I didn’t show up to court and then long story short I end up going in for that and got it time served and I mean I have no problem”

Officer S: “Okay” Defendant: “I don’t I don’t run from the cops cause I don’t I mean if something’s wrong, if I did something wrong then I have to pay but I mean I don’t run from the cops cause it doesn’t pay man all it does it prolong it and all im wanting is all my stuff so I can at least move to my dads”

18:26-19:45

Officer S: “O1: yeah yeah it doesn’t say much more than that it just says the eluding–“ Defendant: “yeah I don’t know why, it’s missing a court date and you can even investigate or whatever its missing a court date”

Officer S: “Yeah they only give us limited information so it only pops up these little three liners” Defendant: “:and I was trying to get it all sealed, I need to get a lawyer to get it all sealed from employers cause they see that and or to go get an apartment or somewhere, they see that and they’re like oh no”

Officer S: “Yeah” Defendant: “its not bad it looks bad but”

Officer S: “that happened to one of my ex wives relatives he uh had a robbery and he uh did a deferred adjudication at 17 years of age. Deferred is guilty and so uh yeah I had to write a letter to the realtor board of San Antonio to say hey you know good guy, all that stuff cause he had a felony on him and that lawyer didn’t say hey by the way deferred means guilty like you’re saying okay I did it you’re just not going to do anything to me” Defendant: “Yeah”

Officer S: “so yeah I feel you on that whole lawyer thing they don’t always explain everything you know whatever happened with your lawyer that should be on them” Defendant: “yeah well it was a court appointed and then I offered to pay her and I said forget it let me take of this on my own”

Officer S: “paperwork filing issue but now you get slammed with it.”

31:41-31:50

Officer S: “Just like with him and the uh the fact that he’s been arrested. I told him yeah you know we are going to put handcuffs cause you’re a runner as far as we know.”

40:48-40:56

Officer S: “Cause if you didn’t, that’s always the intent to trigger like the investigation to press charges. Cause if you didn’t that might be part of the reasin why you are still held up on the other case.:

29:16-29:20

Officer O: “The four years they’ve haad several run ins with us over here.”

Video File #

Video Time

Inadmissible Statement

53:12-54:54

Officer O: “So do you have another son? Yeah its not with her right? Okay. So you do have justice of the peace warrants as well. Defendant: warrant? Officer O: Failure to go to school. I’m guessing that’s for your son? Defendant: Failure to go to school? Officer O: Yeah that’s what I says. Failure to go to school? To attend. Yes so if your child is kept out of school or stuff like that. Defendant: My son is 6 years old and his mom works so I doubt it. Officer O: Okay so ultimately we don’t arrest on justice of the peace warrants, I’m just letting you know you have those two warrants. Okay well its just popping up with two. Did you use to live off Revina. Defendant: yeah when I was like 18 years old Officer O: Oh okay. Yeah this was in 2003, so maybe its for you. Did you Defendant: I dropped out of school and then went back to get my GED. Officer O: oh yeah. I mean you can take it up with them. Its not something we usually arrest on or anything like that. Yeah so its like Bandera and Guilbeau. There’s like a bexar county office over there for more information.

29:14-29:32

Officer T: “Uh the good news is the officers felt that is was imminent danger if he stays here with you. That’s why he is going in right now. Okay, but in order for you to continue the process you want to keep him in jail then you need to follow up with the detective after.

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that this Court instruct the State to redact the above listed inadmissible statements made during the police officer video recordings. Respectfully submitted: /s/

CERTIFICATE OF SERVICE I hereby certify that a copy of Defendant’s Motion To Redact Inadmissible Portions of Audio on Police Officer Video Recordings has been delivered to the Bexar County District Attorney's Office on this the ________day of ________________, 2021.

/s/

No:

STATE OF TEXAS

IN THE COUNTY COURT

AT LAW NUMBER

BEXAR COUNTY, TEXAS

ORDER On this the

day of

, 2021, came on to be considered Defendant's

Motion To Redact Inadmissible Portions of Audio on Police Officer Video Recordings. (GRANTED) (DENIED). SIGNED on the date set forth above.

JUDGE PRESIDING

BATTLING THE RESISTANCE: PRETRIAL INVESTIGATION AND PRACTICE by Anne More Burnham

Anne More Burnham Center for Legal and Social Justice 2507 NW 36th Street San Antonio, Texas 78228 Office Tel: 210-431-5753 Office Fax: 210-436-3413 Mobile Tel: 210-218-4355 Email: ABurnham@stmarytx.edu

The Battle Must Be Fought Anew Every Day: Pretrial Practice Tools Cases are not won in a vacuum.

Winning takes considerable pretrial

preparation, which includes a strong defense investigation, research of the applicable law, and the filing and litigation of pretrial motions. This paper will focus on several powerful pretrial tools from each category, to add to your defense arsenal. I. Top Tips for Pre-trial Investigation A.

The Productive Client Interview: Productive interviews require Preparation

Investigation in the case begins even prior to the first client meeting. The first meeting with your client will be productive in direct proportion to the amount of information you have. With that in mind, it is advisable to obtain the following prior to the initial meeting: 1.

Obtain the charging instrument from the court. This is not part of the discovery you obtain from the State. Rather, you

must obtain the charging instrument from the Court. Without it, you will not know what the precise charges against your client are. Having this 2

information prior to interviewing the client is essential as you cannot rely on the client knowing what the charges offense(s) are; particularly when the arrest was made at large, or your client does not believe they were involved in criminal activity. Without the charging instrument, you cannot explain to the client the elements of the offense, defenses available, or the range of punishment. Furthermore, many charging instruments are defective for one or more reasons, and early examination of it will be valuable to your decision whether to file a motion to set aside the charging instrument. 2.

The Penal (or other) Code provision the client is charged with: Once you have identified the charges, you must research the law to know

the elements of the charged offense, available defenses, and the range of punishment and lesser included charges. In the first meeting, every client wants to know the range of punishment, and particularly, the worst thing that can happen to them. 3.

Obtain a copy of the police report.

You should obtain this from the arresting agency, if you have not yet received case discovery from the State. You will need this to ascertain the factual allegations of the charges, and to explain them to the client. 4.

Obtain enough client identifiers to look up their current case and criminal history: At the least, you will want the client’s full name and any aliases; home

address; date of birth; social security number; SID number; TDCJ number, if they have been previously incarcerated; Texas Driver’s License number; case number(s); the nature and location of any other charges presently pending; the arresting agency; the date, time and location of the arrest(s); which court(s) the cases are pending in; time and date of the next setting(s); client’s probation/parole status; client’s immigration status; client’s bond information; client’s warrant status; client’s employment. 5.

Advise your client, in the strongest possible terms, that they talk to no one before the scheduled meeting with you. Make sure to emphasize there are no exceptions to this rule.

Having the above referenced information is essential to developing client confidence, and your client’s confidence and trust in you is the cornerstone to building a solid case. For additional tips on conducting a client interview, especially for new lawyers, see the attached Client Interview Checklist. B.

Do what you can to get the Client out of jail

If your client is in jail, that will be an impediment to trial preparation, as well as a constant matter of concern to your client and their family. All of the ways in which your client can make themselves look better on paper, such as working, attending school, engaging in counseling, self-help and community service, are frustrated if they are stuck in jail. Additionally, even before the emergence of Covid-19, getting to visit our clients in jail is far from easy and often of questionable privacy. To address the matter and hopefully, get the client out of jail, you should file an Application for Writ of Habeas Corpus Seeking Bail Reduction. Hearings on writs are not subject to the Texas Rules of Evidence. Thus, hearsay is admissible, which includes affidavits of family and friends of the client regarding bail issues, or an Inmate Declaration from the client. IMPORTANT PRACTICE CAVEAT: Do not request a bail reduction via a pretrial motion, because you have no right to an interlocutory appeal of a denial of motion to reduce bond. See 5

Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). However, if the court denies a Writ of Habeas Corpus Seeking Bail Reduction, you can file an interlocutory appeal right away.

The Defense Investigation: Case investigation begins with the client interview, but entails much more. Not only must counsel investigate the facts pertaining to guilt-innocence, but counsel is charged with the responsibility of investigating punishment evidence, particularly mitigation evidence. Investigate the Guilt-Innocence Facts: Our knowledge of the case comes from both the discovery we obtain from the State, and our independent defense investigation. A thorough investigation entails the following: Go to the scene: This should be done as soon as possible, as the appearance of the scene is subject to change. If possible, and when it seems necessary for understanding of the facts, invite your client to accompany you to the scene. In situations where the client is unable to accompany you, you should make a detailed 6

map, diagram, video or take photos of all aspects of the scene so that you can go over them in detail with the client. It is best to observe the scene at the same time of day and/or under the same conditions present during the time of the allegation. For example, in a DWI, you want to go to the scene of both the drive and the stop during similar traffic conditions, weather conditions, lighting conditions, etc… Taking photographs under these conditions is a good idea (note authentication of photographs, per Texas Rule of Evidence 901 requires a person of knowledge testify the photograph fairly and accurately depicts the thing in question).

Because Texas Rule of

Disciplinary Conduct Rule 3.08 prohibits you as counsel from being a witness in the case, you should bring someone with you, who could serve as an investigation witness, for purposes of admitting such evidence, if necessary. Request Surveillance Video (when appropriate): A picture says a thousand words, and a video even more. Videos are everywhere today – many traffic lights have cameras, and indoor and outdoor security cameras are not only at business locations, but many private homes have them also. Therefore, it is quite possible the alleged offense was caught on nearby video. But before you start inquiring about the existence of video of third parties, and certainly before you subpoena 7

any, you want to have an honest conversation with your client about whether the video would be likely to help or harm their case. If the client still wants video after an honest discussion about how bad it would be for the defense to subpoena damaging evidence in their case, by all means obtain it. This needs to be done quickly though, as older, unimportant recordings are deleted or recorded-over. Talk to Fact Witnesses: Conduct an independent investigation with alleged fact witnesses, and do not rely exclusively on police reports or witness statements, as they may be incomplete or misleading. It is best to utilize a licensed investigator to interview witnesses. If that is not possible or practical, make sure you bring a person who is not a lawyer in the case, so that they can serve as an impeachment witness, if needed. Stearns, 780 S.W.2d 216, 224 (Tex. Crim. App. 1989) (holding “[u]nless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present his impeaching testimony, the lawyer should avoid interviewing a prospective witness except in the presence of a third person.) Prepare for Law Enforcement Witnesses:

Obtain Officer TCOLE (Texas Coalition of Law Enforcement) records for each of your officers. This is both free and easy to do from your computer. You send an open records request email to open_records@tcole.texas.gov. The email must have your name, address and as detailed a description of what you are requesting as possible. In the email you request TCOLE records of each officer – and include their name, badge number and agency.

TCOLE records, once

requested are usually returned within a day or so. These records provide valuable information as to what training and certifications an officer has received, and how long ago. There are certain classes all officers take, but like to down play during testimony. It is not uncommon for officers to spend days in courses teaching them how to testify and behave as a witness. Defense witnesses, if any, have had no such training. When dealing with police officer credibility as an issue in your case, it is helpful to point out the precise number of hours in the officer’s career that were spent learning how to testify, answer questions and present themselves on the witness stand. Similarly, officers have been trained in detail how to write a police report, and some have days of such training. In the right case, it would be helpful to get the officer to admit exactly how much training they have in these matters, as it could impact the

jury’s assessment of their credibility. Now that virtually all cases have hours of body camera footage, which are often muted or shut off in critical places, it becomes helpful for your cross-examination to have a combination of records evidencing the hours that officer trained on how to use the body camera, as well as law enforcement agency procedures regarding silencing the audio on body camera video. If the officer is certified in any skill, such as field sobriety tests, these records will evidence the certification level and dates of certification. Knowing these facts in advance of trial will help you prepare your cross-examination. Law Enforcement Protocol Manuals: Additionally, obtain and review pertinent law enforcement agency protocol manuals and internal operating procedure material prior to trial. In light of recent pushes toward transparent government, many of these are available for download on the police agency’s website. If not, however, they can be obtained via an open records request of the agency. If one is up against a time crunch or the agency takes too long to produce the material, it can also be requested via a subpoena duces tecum of the agency’s custodian of records to produce the materials in court.

Mobile Data Terminal/Mobile Computer Terminal Records: Obtain Mobile Data Terminal/ Mobile Computer Terminal records of the officers involved in your case. This can be done by a subpoena duces tecum of the custodian of records for the law enforcement agency. Mobile data terminals are the laptop computers inside police cars that provide police access to mapping, crime information databases, communication with central dispatch and other officers. Sometimes officers use this system to message one another. As is the case with texting generally, these message are not filtered and often contain sentiments the officer would not put in their report, or even allow to be captured on body camera audio. Occasionally, if an officer texts something improper, or that evidences their bias about a case or defendant, the information can be used for impeachment purposes. If inflammatory enough, such communications might cause the case to be dismissed. Although not expressly recognized as the reason for dismissal, I had a DWI dismissed not long ago in a case where the MDT showed the officer joking around with fellow on-duty DWI task force officers about whose turn it was to get the next “free lunch,” which was what these officers called a call-for-assistance from an officer who had made a stop for suspected DWI, but were not certified in 11

administering standardized field sobriety tests. My client’s case ended up being this officer’s “free lunch.” The officer’s indiscretion of gloating on his mobile data terminal about being handed an arrest (before even assessing the driver or finding probable cause for the arrest) certainly facilitated the dismissal of my client’s case. Conduct a Defense Mitigation Investigation Mitigating evidence is another factor that takes time to thoroughly investigate, regardless of whether your client wants a jury trial or a plea bargain. Simply put, mitigating evidence is anything that militates in favor of a less harsh sentence. Mitigating evidence is always relevant to punishment and sentencing. When investigating mitigating evidence, make sure to have a series of releases available for your client to sign: HIPAA releases for protected medical/mental health records, releases for school records, releases for prior attorney’s files and records, and general releases to use as needed. The law requires it: The duty to investigate mitigation falls squarely on defense counsel’s shoulders. Wiggins v. Smith, 539 U.S. 510 (2003) is the seminal case on defense counsel’s Sixth Amendment duty to independently investigate mitigating evidence

for their clients. In Wiggins, 539 U.S. at 523, the U.S. Supreme Court held that the evaluation of counsel’s decision not to introduce mitigating evidence during sentencing depended on whether counsel’s investigation supporting the decision not to produce mitigating evidence was itself reasonable, based on prevailing professional standards. In Wiggins, the Court held that defense counsel’s failure to investigate the defendant’s social history was based on counsel’s inattention and was unreasonable and inconsistent with professional standards. Id. at 526 – 34. The Court determined that if Counsel had presented the jury with available mitigating evidence of the defendant’s sexual abuse, isolation and physical torment as a child, there was a reasonable probability that the jury would have returned a different sentence. Id. at 536. Accordingly, Texas courts have embraced Wiggins. In Ex parte Gonzalez, 204 S.W.3d 391 (Tex. Crim. App. 2006), the Court of Criminal Appeals held that counsel was ineffective for failing to investigate mitigating evidence. Specifically in Gonzalez, counsel failed to ask either the defendant or defendant’s immediate family whether the defendant suffered childhood abuse. To put counsel’s duty in context, Gonzalez’s counsel interviewed the defendant’s sister and called her to testify at the punishment phase regarding the defendant’s problems with, for

instance, epilepsy, attention deficit disorder, being bullied in school and being diagnosed as borderline mentally retarded. Id. at 395. Nevertheless, the Court of Criminal Appeals held that defense counsel rendered ineffective assistance because counsel did not investigate available mitigating evidence from other relatives which would have revealed that Mr. Gonzalez suffered severe physical and sexual abuse as a child. Id. at 397. Even though Ex parte Gonzalez was a capital case, Wiggins applies to non-capital cases as well. See Ex parte Briggs, 187 S.W.3d 458, 466 (Tex. Crim. App. 2005) (applying Wiggins and Strickland standards in a felony injury

child

case);

and

Ex parte Napper,

322

S.W.3d

202

(Tex. Crim. App. 2010) (applying Wiggins and Strickland standards in a sexual assault and kidnapping case). Additionally, intermediate appellate courts throughout Texas have also embraced Wiggins in their Sixth Amendment analysis in non-capital cases. For instance, in an aggravated sexual assault case, Freeman v. State, 167 S.W.3d 114 (Tex. App. — Waco 2005, no pet.), the court of appeals held that counsel’s failure to investigate defendant’s mental health history, for purposes of mitigation, prejudiced the defendant and required a new punishment hearing. Also in a case involving possession of controlled substances Wiggins was

applied. See Lair v. State, 265 S.W.3d 580 (Tex. App. — Houston [1st Dist.] 2008, no pet.). In Lair, the court of appeals held that the defendant was denied effective assistance of counsel when the only witness presented at punishment, when other witnesses were available to testify, was the defendant’s sister-in-law, and this prejudiced the defendant’s case. Id. Even prior to Wiggins, Texas courts have held that a failure to investigate, evaluate and present helpful mitigating evidence at the punishment phase of a non-capital trial, when family and friends are available to testify, is objectionably unreasonable and as such amounts to ineffective assistance of counsel. See, e.g., Milburn v. State 15 S.W.3d 267 (Tex. App. — Houston [14th Dist.] 2000, pet. refused) (case involving possession with intent to deliver where the court of appeals held that defense counsel’s failure to present mitigating evidence was prejudicial because testimony must first be evaluated before determining that it will not be helpful); Moore v. State, 983 S.W.2d 15, 22 – 25 (Tex. App. — Houston [14th Dist.] 1998, no pet.) (a case involving delivery of less than twenty-eight grams of cocaine where defense counsel, in a post-trial affidavit, both averred that he had no trial strategy for failing to investigate mitigating evidence and listed what mitigating evidence was available, such as the

defendant’s work history, his military service, his awards and his parental responsibilities). Prepare a Mitigation Case Early: Topics that must be investigated for a strong mitigation case: 1.

Client’s

history

neglect

and/or

abuse:

(physical,

emotional,

psychological, mental, sexual) by anyone [spouse/partner, parents, siblings, extended relatives, teachers, peers, employers, etc...). Make sure your client understands why you are asking about this: evidence of abuse and neglect is relevant at punishment. In Wiggins v. Smith, 539 U.S. 510, 512-13 (2003), the Supreme Court called such evidence “troubled history” evidence, and characterized it as “powerful” mitigation evidence. Id. 2.

Mental Illness: Rather than only asking your client whether they have been diagnosed with mental illness or mental health issues; consider asking about mental health diagnoses in the context of all medical diagnoses, thus reducing any individualized stigma. For example, ask broad questions such as, “are you under the care of any medical professionals? If yes, please provide professional’s name and specify condition(s) being treated for”; or consider presenting a list of medical diagnoses alphabetically, and include 16

mental health diagnoses: e.g., “Have you been diagnosed with any of the following: ADHD or ADD (Attention Deficit (Hyperactivity) Disorder), Angina (heart disease), Anti-social Personality Disorder, Anxiety, Asthma, etc...”

Of course you cannot anticipate every possible mental health

diagnosis, but you can fit the primary ones into a list, and include space for “other.” To determine if your client suffers from intellectual or developmental disabilities, it is helpful to ask about school. Did they have an individualized education plan (“IEP” or a “504 plan”) in school? Were they in mainstream classes in school? Or, did they receive help or “special education” in their school classes? If possible, have some releases available for the client to sign that can be used to obtain school records. 3.

Medical Diagnoses: While it may not provide a defense, the defendant’s poor health at the time of the offense and at the time of trial can be mitigating. Showing that your client has advanced stage cancer, progressive cognitive impairment, or suffers from various neurological conditions might prompt a court to keep your client out of prison. Similarly, if your client is a caregiver for someone suffering from serious illness, this too might prompt

mercy from the sentencer- if not for your client, perhaps for the person who your client cares for. 4.

Get character witness information: Get names of people who know your client and who would say positive

things about them. Importantly, these witnesses will need to know about the offense your client is charged with. A character witness is someone who should be able to say they know your client well. That message falls apart if, after saying glowing things about your client, they have to admit on the witness stand that they were unaware of the criminal charges. Also, it is important to discuss relevant punishment testimony with any character witness prior to putting them on the stand. In obtaining character witnesses, try to branch out from family. This is important for several reasons. First, it can show your client’s connection with various aspects of the community (i.e., church, volunteer work, school, employment, etc...). Second, close family members do not always make the best witnesses. When their loved one is convicted, their disbelief, anger and grief are often all-encompassing and can obstruct rational, and relevant, testimony. A mother or father who firmly believes their child is innocent, may not be able to testify during punishment about anything other than their child’s innocence. 18

Obviously, testimony about innocence is not relevant punishment evidence, and can be an affront to the jury who just convicted the defendant. One must also vet their character witnesses for any prior offenses that would be admissible. Failure to do so could result in your character witnesses having their own characters impeached during cross-examination. Reputation and opinion testimony are relevant at punishment. Reputation testimony pertains to your client’s reputation in the community for a certain character trait. It is elicited by “have you heard” questions. The witness need not know the defendant personally, but only has to have discussed the defendant’s reputation with more than one person. Opinion testimony, on the other hand, is elicited by “did you know” questions, and requires the witness to know the defendant. 5. Have your client to “build” mitigating evidence by engaging in self-improvement: Advise and encourage your client to make changes that show they are working on self-improvement. For example, in a DWI case, have your client go to alcohol awareness and victim impact classes, go to counseling or attend Alcoholic Anonymous meeting, and get a sponsor. Advise them to get started on community

service and make sure to get proof. In drug possession cases, help your client find rehabilitation if they are open to that, go to Narcotics Anonymous meetings, start getting proof of clean urinalysis tests, attend counseling, and complete community service. In an assault or domestic violence case, have your client start counseling, take an anger management class, and do community service. Proof of these things will be helpful for your client at a punishment proceeding. Make sure the client understands you are asking them to do these things, not because you do not believe in their case, but because you will need powerful mitigation in the event they are convicted. While it is possible these proactive measures will actually help the client, they are also important in building a strong punishment case. Furthermore, the client’s hard work in building a mitigation case, may also convince the State to make the plea offer your client wants, or even prompt a dismissal. II. Research the Applicable Law and File and Litigate Pretrial Motions A thorough case investigation should prepare you for trial and punishment, if needed. But it should also enable you to provide enough information to help the client assess whether they should go to trial, or plea bargain for a known result. To

do this, we must also identify significant collateral consequences of conviction, research applicable law and file and litigate pretrial motions. There are early considerations related to both punishment and the impact of a conviction, that can steer the course of the representation early on, and impact the ultimate disposition of the case. In order to effectively advise our clients whether to plea bargain or take their case to trial, so that they can make an intelligent decision between the two, you will need to have investigated punishment evidence and the impact of the disposition on the particular client and their circumstances. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970) (a voluntary and knowing plea can only be made with information sufficient to make an intelligent choice among the alternative courses of action open to the defendant). 1.

Law to Research and Assess in Every Case Who should decide punishment, judge or jury?

The decision whether to have the judge or jury decide punishment in a trial depends on several factors. An important consideration will be who can give probation in the case. There are limitations on court-ordered community supervision for certain offenses, 21

including aggravated felonies and cases involving a deadly weapon finding. In those cases, if the jury is able to recommend probation, the defendant frequently elects to go to the jury for punishment. The court cannot order community supervision in the following cases: Criminal Solicitation when charged as a first degree felony; Murder; Capital Murder; Aggravated Kidnapping Trafficking of Persons; Indecency with a Child; Sexual Assault; Aggravated Sexual Assault; Injury to a Child/Elderly/Disabled Individual, when punishable as felony of the first degree and victim is child; Aggravated Robbery; Burglary when actor committed the offense with the intent to commit a felony under Section 21.02, 21.11, 22.011, 22.021, or 25.02, Penal Code; Compelling Prostitution; Sexual Performance by a Child; certain offenses under Chapter 481, Health and Safety Code when child is used in commission of the offense or committed in drug-free zone; or for any felony offense when it is shown that a deadly weapon was used or exhibited during the commission or immediate flight from commission of the felony.

See Tex. Crim. Proc. Code Ann. §

42A.054. Pursuant to Tex. Crim. Proc. Code Ann. § 42A.056, the jury is unable to recommend probation for the following offenses: Murder; Indecency with a 22

Child/ Sexual Assault/ and Aggravated Sexual Assault of a Child younger than 14 years of age at the time the offense was committed; Aggravated Kidnapping if the victim was younger than 14 years of age at the time the offense was committed and the intent to violate or abuse the victim sexually. Human Trafficking, Sexual Performance by a Child, or a Chapter 481 Health and Safety Code violation in a drug-free zone. Tex. Crim. Proc. Code Ann. § 42A.056 (West). In these cases, where a court can order probation, the defendant usually elects to have the court assess punishment. Other factors that bear on the decision of who should assess punishment include the type of offense, public sentiment regarding the offense, and whether the community or the court are known for harsh judgment for that type of offense. Public disdain for certain offenses militate against having the jury decide punishment. For example, DWI is a divisive and inflammatory offense that people feel strongly about. The court hears the facts of DWI cases every day and is unlikely to be influenced by emotion in sentencing. It is unusual for a court to order jail in a standard first-time DWI, but juries are far less predictable. Over time, practitioners in a community gain information about the various judges, and learn to know the community sentiments, if any, for various offenses. 23

However, if you are practicing in a region where you do not know these factors, it is wise to consult local counsel, through TCDLA or an affiliate organization, to learn more about the community and court with regard to sentences. 2.

Procedure on How to Make an Election as to Punishment:

Thoughtfully deciding whether the judge or jury should assess punishment in a case is important, but knowing how to make that happen procedurally is critical. Punishment Election is provided for by Texas Code of Criminal Procedure Art. 37.07 §2(b). There are essentially three ways to elect who will assess punishment. The first two guarantee the jury will assess punishment: 1.

Cases where jury can recommend probation – by filing sworn motion for probation before trial begins.

By electing in writing before the commencement of the voir dire examination of the jury panel, that the punishment shall be assessed by the jury, or the court - whichever is being elected.

The third way in which an election as to punishment occurs is not by action, but inaction:

by doing nothing.

If the defendant does nothing with regard to election of punishment, the court will assess punishment, as that is the statutory default. See Tex. Crim. Proc. Code Ann. § 37.07 §2(b).

Of course, this result is fine if it is planned, but it can be

devastating if it is the result of an oversight. Counsel’s failure to properly elect the jury to assess punishment is most devastating in cases where 1) the defendant expected to request probation and, 2) only the jury can recommend probation. See Ex parte Walker, 794 S.W.2d 36, 36 (Tex. Crim. App. 1990)(ineffective assistance of counsel where defense counsel intended jury to assess punishment but failed to timely file written election for jury to assess punishment). 3.

Assess Eligibility for Deferred Adjudication

Hand-in-hand with learning about the various collateral consequences ofconviction, our clients want to know whether some means to avoid conviction exists, if not through dismissal, then deferred adjudication or pretrial diversion. Both of these results are only available through plea bargaining. Only the court can order deferred adjudication for certain offenses, and not when the defendant pleads not guilty. Tex. Crim. Proc. Code Ann. § 42A.101. See

also, Burch v. State, 541 S.W.3d 816 (Tex. Crim. App. 2017) (acknowledging a defendant who pleads not guilty at trial, and then is found guilty, cannot receive deferred adjudication from the court). Pretrial diversion is an agreement with the State and can only be obtained with the State’s approval. Just as it is incumbent upon us to know if our client is eligible for these things, we must also know whether deferred adjudication, in our client’s case, is the same as a conviction for purposes of collateral consequences. Even though a deferred adjudication spares one from a final conviction, for federal immigration purposes, a deferred adjudication is the same as a conviction for deportation and removal purposes. See 8 U.S.C. § 1101(a)(48)(A). If deferred adjudication would provide a helpful buffer from collateral consequences attendant with conviction, a plea bargain to include deferred adjudication might well be in the client’s interest. Per Chapter 481 Health and Safety Code, it is not available for offenses involving a drug-free zone; a sexual offense against a child if the defendant has previously been placed on probation for such an offense; Continuous Sexual Abuse of Young Child/Children, Aggravated Sexual Assault when charged as repeater or habitual, or when minimum term of imprisonment is increased to 25 years because the victim is younger than six years of age, or younger than 14 years of age but committed

causing or threatening serious bodily injury. Tex. Crim. Proc. Code Ann. § 42A.102 (a). Avoiding a final conviction with deferred adjudication can be alluring to the defendant. The court will admonish the defendant that violation of the terms of the deferred adjudication could result in being sentenced the high end of the full range of punishment, regardless of how long they have been on deferred adjudication. See Tex. Crim. Proc. Code Ann. § 42A.102(b). However, so that your client fully understands what can happen, defense counsel should fully counsel the client on what that means for him, in practical terms. Not every defendant is a good candidate for probation, and an even worse candidate for deferred adjudication because the liability is so great. For example, if you have a client with a drug addiction problem, and they are unable to stop using, deferred adjudication could serve as an indirect pathway to a sentence for the highest punishment available. 4.

Identify Significant Collateral Consequences Before Trial:

The statutorily prescribed range of punishment is only part of the “worst case scenario” that our clients want to know about when they seek our counsel. Full investigation of the collateral consequences of conviction, is one of the first things we research so as to provide critical information our clients need to decide 27

how to dispose of their case. The effects of various collateral consequences of conviction, punishment or both, often cause our clients to think about alternative dispositions, and plea bargaining to avoid those consequences. Such collateral consequences include, but are not limited to, immigration consequences, the loss of one’s driver’s license, ignition interlock, loss of professional licenses, loss of right to possess firearm, loss of job, inability to obtain student loans, public housing, etc... Immigration: The Supreme Court noted in Padilla v. Kentucky that the landscape of immigration law had changed so as to make deportation or removal commonplace consequences of criminal convictions. Padilla v. Kentucky, 559 U.S. 356, 360 (2010) (holding “[t]he ‘drastic measure’ of deportation or removal, Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. 433 (1948), is now virtually inevitable for a vast number of noncitizens convicted of crimes.”). The offenses triggering this consequence include aggravated felonies, crimes of moral turpitude and crimes of violence. Padilla requires defense counsel, per the Sixth Amendment, to properly advise the defendant of immigration consequences when deportation or removal is conceivable. Id., 559 U.S. at 374. For purposes of proper advice, it should be noted that deferred adjudication is considered to be a

conviction under federal immigration law. See 8 U.S.C. § 1101(a)(48)(A); Moosa v. INS, 171 F.3d 994, 1005–06 (5th Cir. 1999) (acknowledging that assessment of deferred adjudication in Texas constitutes conviction for immigration purposes). Even more, pretrial diversion, which promises outright dismissal of charges upon successful completion, can be considered a conviction for federal immigration purposes if it is administered in a way that requires the defendant to enter a judicial confession or admission of guilt. See 8 U.S.C. § 1101(a)(48). The Loss of One’s Right to Possess Firearms: Conviction of a Class A family violence assault results in the loss of one’s right to possess a firearm for the later of either 5 years from the release from confinement or date of release from probation. See Tex. Penal Code § 46.04 (b). Texas State law provides that a person convicted of a felony family violence offense cannot possess a firearm until the later of the following: after fifth anniversary of the person’s release from confinement following conviction of the felony, or the person’s release from community supervision, parole or mandatory supervision. Tex. Penal Code § 46.04 (a)(1).

After the period described in subsection (a)(1), a person commits an

offense if they possess a firearm at any location other than the premises at which the person lives. Tex. Penal Code § 46.04 (a)(2). As a matter of federal law,

however, a felony conviction, including one for domestic violence, results in the loss of the defendant’s right to bear firearms for life. See 18 USC 922(g). In fact, a person with a felony conviction could be prosecuted under federal felon in possession of a firearm laws if they are found in possession of any firearm. See 18 USC 922(g). Felony Conviction Consequences: Right to Vote: A person who has a final felony conviction is not eligible to register to vote until they have either successfully completed their punishment, including incarceration, parole, supervision, period of probation, or been pardoned. At that time, the person is eligible to register to vote. Texas Election Code § 11.002. Right to Sit on a Jury: A person who is either presently charged or convicted of a misdemeanor theft or felony is not eligible to be selected for jury service or grand jury service. Tex. Code Crim. Proc. Art. 19.08 (7) & (8). Loss of Professional Licenses: While the last legislative session saw some favorable changes to the laws regarding licensure. A person convicted of a felony or crime of moral turpitude may be ineligible to obtain, or maintain, their state or

federal professional licenses. The Texas State Law Library website has compiled a list of the collateral consequences of a felony conviction. It has documented over 165 restrictions placed on convicted felons in Texas. This website also lists the effect of a felony conviction on different occupations and licenses: https://www.sll.texas.gov/library-resources/collections/restrictions-on-convi cted-felons/ What is significant, and must be assessed in each case, is that deferred adjudication, for a felony offense, often has the same consequences as a conviction for purposes of many occupations and licenses. Drug Convictions and Loss of Government Benefits: Pursuant to 21 U.S.C. § 862(a), those convicted of state and federal drug possession and distribution offenses, are subject to denial of federal benefits, including public housing, food stamps, and medicare and medicaid. First and second time offenders are subject to a temporary denial of benefits, and third time offenders are subject to mandatory permanent ineligibility. Id. Drug Convictions and Loss of Student Financial Aid: A person

convicted of any state or federal offense involving the sale or possession of controlled substances is subject to temporary or permanent ineligibility for federal student loans or grants. The Drug Free Student Loan Act, 20 USC 1091 (r) provides the time line for how long a student remains ineligible. Texas law also imposes ineligibility for State financial aid and forfeiture of prepaid higher education tuition for those who have been convicted of or adjudicated as having engaged in delinquent conduct constituting a felony, a class A misdemeanor, or any offense in Chapter 481 of the Texas Controlled Substances of Act. See Texas Education Code §54.633(b). This includes even class B and C misdemeanors such as possession of marijuana and drug paraphernalia. Suspension of Texas Driver’s License: Conviction for certain offenses, including alcohol related offenses and motor vehicle felonies result in suspension of driving privileges. Such offenses include criminally negligent homicide, evading arrest, DWI, Intoxication Assault, Intoxication Manslaughter, motor vehicle felonies, failure to stop and render aid resulting in injury/death, use of fictitious license, etc...

Depending on the client and case, any one of these collateral consequences may present serious enough liability, to cause your client to plead to another offense that does not carry the untenable consequence. 5.

Can the charges be enhanced?

It is important to know the effect of any prior offenses that could be used for enhancement. For instance, if your client’s case is eligible for enhancement, you may advise your client that pleading to the undercharged offense would be advantageous, so as to avoid the greater liability should the case ultimately be enhanced. Also, if the State has enhanced the client’s case, it is important to assess whether the enhancement is legitimate, or not. Several factors, including the following, need to be considered: A. The Finality of the Prior Conviction: The law requires the prior conviction used for enhancement purposes be a final conviction. In Robertson v. State, 420 S.W.3d 832, 838 (Tex.Crim.App. 2013) the Court of Criminal Appeals held if the record “...affirmatively reflects that a prior conviction was not final, then the conviction cannot be used to enhance

punishment, even though the defendant pled ‘true’ to the enhancement paragraph.” Id. B. Whether an Out of State Offense Can Be Used to Enhance Section 12.41 of the Texas Penal Code is entitled “Classification of Offenses Outside this Code” and sets forth classification of offenses outside of the penal code, including offenses out of the State for purposes of enhancement. Tex. Penal Code Ann. § 12.41.

In Ex parte Blume, 618 S.W.2d 373, 376

(Tex.Crim.App.1981), the Court of Criminal Appeals explained section 12.41 was enacted “...to deal specifically with the classification for enhancement purposes of convictions obtained outside the [Texas] Penal Code”). The Court of Criminal Appeals has noted that if a federal conviction or a conviction from a sister state is punishable by confinement in a penitentiary, it shall be classified as a third degree felony for enhancement purposes. Davis v. State, 645 S.W.2d 288, 292 (Tex.Crim.App.1983). C. Whether the State Can Authenticate the Prior Offense? There are multiple ways for a prior offense to be authenticated for purposes of enhancement, and admissibility as punishment evidence pursuant to Tex. Code

Crim. Proc. Art. 37.07. The acceptable modes of authentication include certified copies of the judgment from the court of conviction, or non-certified copies introduced via the custodian of records; the penitentiary file (“pen packet”) of an inmate certified by the record clerk of TDCJ, or authenticated in court by the custodian of records; or, by testimony in the form of admissions, stipulations, and pleas of true. See Beck v. State, 719 S.W.2d 205, 209-210 (Tex. Crim. App. 1986). File and Litigate Pre-trial Motions There are many places to find standard and creative pretrial motions to file in your cases, including resources on the TCDLA website, and attorney Mark Stevens’ website where he shares many motions. Below are just a few of the powerful motions that will boost your resistance to the State’s case. 1.

Filings to Protect Against Extraneous Misconduct Evidence

File a Request for Notice of Extraneous Offenses: The State always wants to introduce extraneous misconduct, and it is always bad for the defense. There are several roadblocks we can set up to try to keep that damaging evidence out. One of the routine things defense counsel can do to protect their clients from extraneous offense “bad acts” evidence at all stages of the trial, including

punishment, is to file a “Request for Notice of the State’s Intent to Offer Extraneous Offenses at Trial per Tex. Code Crim. Proc. Art. 37.07, Tex. Code Crim. Proc. Art. 38.37, and Tex. R. Evid 404(b) and 609.” In Roethel v. State, 80 S.W.3d 276, 281 (Tex. Cr. App. 2002) the Court of Criminal Appeals explained: "Before 1993, the State could not offer evidence of unadjudicated extraneous offenses at punishment hearings. In 1993, the Legislature simultaneously removed the bar to the admissibility of such evidence based on its substance and imposed a procedural requirement for its admissibility. The language of section 3(g) is mandatory; it states that the State "must" give notice upon timely request and deems the notice a "requirement." The logical and proper consequence of violations of section 3(g) is that the evidence is inadmissible." [internal citation omitted] Id. Importantly, defendant must request notice of such extraneous offenses or bad acts which the State intends to introduce in its punishment case-in-chief, in order to be entitled to receive notice of those extraneous matters, including the date of the alleged incident, the county where it allegedly took place, and the alleged victim’s name, before trial. Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Cr. App. 2002). This request should be filed in every case and served upon the State, with a copy filed

with the clerk of court in the case. The request should be timely filed, well in advance to accomplish its purpose. See Espinosa v. State, 853 S.W.2d 36 (Tex. Crim. App. 1993)(holding a request made on the day of trial is not timely). Because this is a request of the State, and not a motion, no court action is needed, and the request itself is sufficient to trigger the State’s obligation to provide requisite notice. Id. There are exceptions to the requirement of notice. Although notice of extraneous misconduct the State intends to offer in it case-in-chief must be provided, the State is not required to provide notice of rebuttal extraneous office evidence either at guilt-innocence or punishment, Jaubert v. State, 74 S.W.3d 1, 3 (Tex. Crim. App. 2002), or same-transaction contextual evidence (evidence which is related to the context of the offense for which defendant was charged, and therefore not conduct that was extraneous to defendant’s commission of that offense). Worthy, 312 S.W.3d 34, 37 (Tex. Crim. App. 2010). Similarly, the State need not provide notice of extraneous offenses for which the defense opened the door to, either through testimony or via a defense to which the State is entitled to rebut.

Upon proper objection by the defense, the State’s wholesale failure to respond to a timely request for notice, renders it error for the court to admit evidence of the extraneous misconduct. Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). When the State provides notice of intent to offer extraneous misconduct, the notice also must be sufficient and timely. While there is no clear direction from the courts on what timely notice is, Texas Rule of Evidence 404(b) requires it be “reasonable” notice. Hayden v. State, 66 S.W,3d 269 (Tex. Crim. App. 2001). One court of appeals addressing reasonable notice determined notice of only three days was not reasonable. Webb v. State, 36 S.W.3d 164, 179 (Tex. App.—Houston [14th Dist.] 2000)(holding “[h]aving requested notice of the State's intent to use extraneous offense evidence more than six months before trial, the appellant was entitled to assume that the State did not intend to use such evidence because the State had not provided the requisite notice by the eve of trial.). But see, Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.—Corpus Christi 2000, no pet.)(three days notice was sufficient in that the extraneous misconduct evidence derived from the defendant’s statement). The following analysis regarding the reasonableness of notice shows the courts determine reasonable notice in light of how long the

defendant’s request had been on file with respect to when, and how close to trial, the state responded with notice: “Instead, the reasonableness of the notice is determined by all of the facts and circumstances of the case. See id. Several cases closely approximate this situation, however, and are enlightening on what has been considered reasonable. The Waco Court of Appeals held that so-called “Friday notice” was unreasonable, but did so in light of the fact that the defendant's request for notice had been on file for over ten months prior to trial. See Hernandez v. State, 914 S.W.2d 226, 234 (Tex.App.—Waco 1996, no pet.). Similarly, the Austin Court of Appeals held the State's notice unreasonable when that notice was provided on the morning of trial, despite the fact that the defendant's request was made six weeks earlier. See Neuman v. State, 951 S.W.2d 538, 540 (Tex.App.—Austin 1997, no pet.). By contrast, the Fort Worth Court of Appeals held the notice was reasonable when it was provided five days prior to trial after a request made two weeks earlier. See Self v. State, 860 S.W.2d 261, 264 (Tex.App.—Fort Worth 1993, pet ref'd).” Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.—Corpus Christi 2000, no pet.) Thus, a practice takeaway tip is, make sure to file the Defendant’s Request for Notice of Intent early in the representation as it will give you more footing to challenge a late response from the State. In addition to being timely, the State’s response providing notice of their intent to offer extraneous misconduct must be sufficient. It is not sufficient for the State to allege it provided requisite notice simply by providing the defense

discovery, or making their file available. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995)(holding “we cannot conclude that the mere opening of its file containing an offense report detailing extraneous evidence satisfies the requirement of giving notice “of intent to introduce” such evidence.”). For punishment extraneous evidence, per Tex. Code Crim. Proc. 37.07, Sec. 3, if the extraneous act that does not constitute an offense, or did not result in a final conviction, the State’s notice must include the date of the alleged extraneous act, the county in which the alleged extraneous act occurred, and the name of the alleged victim. File and Litigate Pretrial Motions in Limine: While a motion in limine is not the way to challenge the admission of extraneous act evidence or preserve error for the trial court’s erroneous admission of extraneous offenses, it is an excellent way to protect your client from ambush with inadmissible extraneous act evidence. File and litigate a detailed pretrial motion in limine and obtain, if possible, a ruling in limine that precludes the State and its witnesses from blurting out evidence about alleged extraneous acts, unless it first gets a ruling from the court allowing same.

File Motions to Set Aside: We should evaluate every case for the possibility of filing a Motion to Set Aside the Charging Instrument (a.k.a., Motion to Quash or Motion to Dismiss). While it is true the State can refile the case if it is granted, they do not always do that. Furthermore, if the State had problems the first charging instrument, who is to say there will not be additional problems with the second (or third, fourth…) charging instrument. There are many issues that can be challenged by means of a Motion to Set Aside. The motion to set aside in a theft case, appended hereto, is an example of three such challenges to one erroneous charging instrument.

The Battle Must Be Fought Anew Every Day: Pretrial Practice Weapons for the War Chest

PRESENTED BY: Anne Burnham

TRIALS ARE NOT WON IN A VACUUM CRIMINAL DEFENSE INVESTIGATION

RESEARCH APPLICABLE LAWS

FILE AND LITIGATE PRETRIAL MOTIONS

The Defense Investigation: Top Tips

Begins With the First Call • Initial advice:

Keep a low profile • Don’t talk about your case. • To anyone • Anywhere • On the phone (text or voice) • Email • Jail

DO WHAT YOU CAN TO TRY TO GET THEM OUT OF JAIL • Best for everyone to try to get them out • Do NOT try to get them out via a motion to reduce bond. • No interlocutory appeal. • Application for Pretrial Writ of Habeas Corpus Seeking Bail Reduction. • Appealable immediately • TRE do not apply to writ hearings.

SOCIAL MEDIA – A POWERFUL INVESTIGATORY TOOL Oh that one would hear me! behold, my desire is, that the Almighty would answer me… and that mine adversary had written a book. Job 31: 35

ALWAYS MEET WITH THE CLIENT ALONE

Make the Interview Productive • Come Prepared: • Charging Instrument • Police Report • Penal Code Provision

Assess Client’s Criminal History • Starts with asking the Client • Client’s TCIC/NCIC- via Discovery • Use various databases and Apps: • Obtain TDPS criminal record • Online Clerk’s records for known jurisdictions; • Westlaw, LexisNexis • People finder, Been Verified, etc…

CLIENT INTERVIEW – BUILD THE CASE INVESTIGATION • Ask about “fact” witnesses • Explain and ask about “character” witnesses • Discuss the need for mitigation – plea bargaining and punishment.

The Scene • Go Right Away Appearances are subject to change Witnesses Disappear Audio/Video recordings disappear • Go During Same Circumstances and Time • Go with your client, if possible. • Get photos, video (at time they “accurately depict” the thing in question. • Request surveillance video – after candid discussion with your client.

Talk to Witnesses • Stearns v. Clinton, 780 S.W.2d 216, 224 (Tex. Crim. App. 1989) • Witnesses do not belong to the State

• Defense counsel has responsibility to seek out and interview potential witnesses. • Best practice - go in person • Use an Investigator • But always take a third party witness with you. • Texas Rules of Disciplinary Conduct prohibits counsel from being a witness in the case. • Avoid having to choose between foregoing impeachment with what the witness told you or withdraw from case.

Key Impeachment Tools • Obtain Officer TCOLE (Texas Coalition of Law Enforcement) records for each of your officers (name, badge #, agency) • Open records request email to open_records@tcole.texas.gov. • Dates of service, training records, certifications • Law Enforcement Protocol Manuals and IOPs • Subpoena Mobile Data Terminal Records

CONDUCT A MITIGATION INVESTIGATION

Mitigating Evidence • Militates in favor of a less harsh sentence • Requires defense counsel’s independent factual investigation Wiggins v. Smith, 539 U.S. 510 (2003) • Ineffective Assistance of Counsel

Obtain a Detailed Family and Social History • Interview family, significant people in client’s life • Aspects of upbringing that give context to client’s actions and thinking. • Family background (neglect or abuse, illness, victimization, poverty, family/children to support).

Dig deep for Mitigating Evidence • Mental illness/ Medical problems • (obtain client’s records by release/ others’ by HIPAA subpoena) • Cognitive deficits (school records, special education, testing records) • Community involvement (religious communities, charity groups, good deeds) • Special skills (heightened social or community value) • Good employment history • Responsibilities (support and care for others) • Pre-sentencing success on various programs (compliance with bond, mental health pretrial supervision, etc…) • Document client’s success on prior probations and supervisions

Remorse • True remorse is acceptance of responsibility and feeling bad about your actions, not getting caught.

Build Mitigation

• Obtain work/ enroll in school • Pay restitution upfront, if able • Community Service – do good deeds and document • Obtain regular clean UAs prior to trial • Attend counseling and offense related classes • Get mental health or substance abuse treatment, if needed • Attend meetings (AA, NA, etc…) and get a sponsor

The Role of Experts • Medical experts • Psychiatrists, Psychologist • Helps to explain client’s behavior and thinking • Ake v. Oklahoma and the 6th Amendment

Character Witness Information

You Want These Types Of Character Witnesses

Investigate Positive Reputation and Opinion Evidence From Family and Friends

Discuss Client Concerns, Collateral Consequences of Conviction, and Case Disposition Options

Deferred Adjudication Probation Pre-Trial Diversion

Deportation Reentry

Travel Prohibition

Padilla Decision

State Law Misdemeanor FV Conviction Not for 5 years after release or discharge Felony Conviction Do Not have a right to possess firearm Except: 5 years after discharge or release may possess a single firearm for use at home Federal Law

For Life

LOSS OF PROFESSIONAL LICENSE Teacher Nurse Doctor Lawyer Real Estate Agent Insurance Agent If there is a Regulation or State Board Professional License is at Risk With Convictions 2019 Legislature: Intent to enhance opportunity for excons to find employment. No blanket prohibitions

TOC 51.355: Licensing authority must assess the elements of offense and find nexus to the whatever employment is covered by the license.

Loss of Financial Aid Federal Law Drug Free Student Loan Act 20 U.S.C 1091 (r) State Law Texas Education Code § 54.633

Loss of Government Benefits 21 U.S.C. § 862 (a)

DAMAGE CONTROL: BARTERED CASE DISPOSITIONS

Deferred Adjudication Probation Pre-Trial Diversion Texas Government Code §76.011

TCCP Art. 42A.101

A FEW GOOD MOTIONS • DEFENDANT’S MOTION FOR DISCOVERY AND OTHER RELIEF • TCCP 39.14 Michael Morton Act • Brady v. Maryland, 373 U.S. 83 (1963) • Shultz v. Comm’n. for Law. Discipline, OP. 55649 (Tex. Bd. Disp. App. 55649, Dec. 17, 2015)

Request for Notice of Intent to Offer Extraneous Conduct Under Rule 404(b) and Evidence of Conviction Under Rule 609(f) and Evidence of Extraneous Crime or Bad Acts Under Art. 37.07

• Request not a motion • Served on State (copy filed in court same day to date stamp it) • Timely Request itself triggers State’s obligation to provide notice. • No notice provided-error to admit evidence.

Request for Notice of Intent to Offer Extraneous Conduct Under Rule 404(b) and Evidence of Conviction Under Rule 609(f) and Evidence of Extraneous Crime or Bad Acts Under Art. 37.07

Unreasonable Notice = Error to Admit Evidence • State’s notice must be reasonable • No bright line rule • KEY FACTOR: • Timeliness of request: timeliness of notice Ratio • 10 months before trial: Friday before a Monday trial = unreasonable notice (Hernandez) • 6 weeks before trial: morning of trial = unreasonable notice (Neumann) • 2 weeks before trial: 5 days before trial = reasonable (Self)

Motions to Set Aside the Charging Instrument •Motion to Quash … •Motion to Dismiss •Filed at least one day prior to trial •Evaluate in every case •Why? •Big bang for your buck

Motions to Set Aside the Charging Instrument

Case Information charged: Defendant did “…unlawfully appropriate property, to wit: consumable goods, said property having the value of one-hundred dollars ($100.00) or more, but less than seven-hundred and fifty dollars ($750.00), with intent to deprive the owner of the property, without the owner’s effective consent, contrary to and in violation of the Texas Penal Code, and Against the Peace and Dignity of the State.”

No Information, No Case. No Case, No Conviction. • Swabado v. State: • Plain and intelligible • Sufficiently identify (property) • Bar prosecution for same offense • On the face of the instrument • No need to look elsewhere.

• Byrd v. State: • Owner must be named • Charging instrument named Walmart Manager Mike Morales as owner • At trial only proved Walmart was the owner. • Legally insufficient because no proof Mike Morales. • Reversed and remanded.

• Geter v. State: • TPC 31.03(b) provides 4 negatives to consent • Charge must state which negative State intends to prove for appropriation without effective consent; • Without this - Defendant lacks notice of the charged offense • Defendant is unable to intelligently formulate her defense.

Deprivation of Notice is Deprivation of Due Process

Obtain Pretrial Hearings When Possible • Police officer testimony in the case: • Evidentiary Motions – Motions to Suppress Evidence or Statements • Hearing per Franks v. Delaware • ALR hearings • Civil depositions or trials in collateral civil proceedings • Sworn pleadings

EFFECTIVE PRETRAL PRACTICE = EFFECTIVE PREPARATION. “He may be the richest lawyer in America. . .” “Anybody who thinks they’re smart enough to go to court and the Holy Ghost is going to descend upon them with all the knowledge they need to win is goofy,” Jamail says. “If you’re not prepared, you’re just not gonna win.”

Presenter: Anne Burnham Email: aburnham@stmarytx.edu Cell: 210-218-4355

Please do not hesitate to contact me with questions, or if I can be of any help.

Criminal Defense Lawyers Project

Battling the Resistance July 8, 2021 310 Padre Boulevard South Padre Island, TX

Topic: The Resistance is Fueled by Fear: (Opening Statements)

Speaker:

Dwayne Simpson

25511 Budde Road Suite 2701 The Woodlands, TX 77380 (832)916-0702 phone (832) 430-7075 fax dsimpson@simpson-lawgroup.com

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

CRIMINAL DEFENSE: OPENING STATEMENT

OPENING STATEMENT LEGAL FRAME OF REFERENCE • Texas Code of Criminal Procedure Article 36.01

• (a) A jury being impaneled in any criminal action, except as provided by Subsection (b) of this article, the cause shall proceed in the following order:

• 1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07 • 2. The special pleas, if any, shall be read by the defendant’s counsel, and if the plea of not guilty is also relied upon, it shall also be stated. • 3. The State’s attorney shall state to the jury the nature of the accusation and the fact which are expected to be proved by the State in support thereof. • 4. The testimony on the part of the State shall be offered. • 5. The nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant’s counsel. • 6. The testimony on the part of the defendant shall be offered. • 7. Rebutting testimony may be offered on the part of each party. • 8. In the evet of a finding of guilty, the trial shall then proceed as set forth in Article 37.07

• (b) The defendant's counsel may make the opening statement for the defendant immediately after the attorney representing the State makes the opening statement for the State. After the defendant's attorney concludes the defendant's opening statement, the State's testimony shall be offered. At the conclusion of the presentation of the State's testimony, the defendant's testimony shall be offered, and the order of proceedings shall continue in the manner described by Subsection (a) of this article.

OPENING STATEMENT REASONS FOR ELECTING TO GIVE AN OPENING STATEMENT

• Preliminary Considerations

• What you want the jury to understand about your case. • Determine if you need exhibits during your opening statement and how best to use those exhibits (and familiarity of the court’s capabilities)

OPENING STATEMENT PREGAME ADVICE

OPENING STATEMENT NOT OVERLOOKING THE SMALL STUFF • Arriving at your trial early. • Being dressed appropriately • Not surrendering the desk closest to the jury • Properly addressing the court, even when you may feel slighted by the court. • Don’t be afraid to go to trial for your client and defend their innocence.

OPENING STATEMENT OPENING YOURSELF TO THE JURY

OPENING STATEMENT FINDING YOUR INNER STORYTELLER • Don’t give a speech, tell your client’s story

• Don’t depend on notes when giving your opening statement • Spend the additional time to get to know your client, not just all the details regarding your client’s case.

• Be Authentic • Keep if Simple

OPENING STATEMENTS ELEMENTS • Tone • Theme • Structure • Big Finish

OPENING STATEMENT ELEMENTS: TONE • Tone – Point of View • • • • •

Open and Conversational Too Early to Argue (leave that for the closing) Public Speaking Tips Facts vs. Emotions Tell a Story

OPENING STATEMENT ELEMENTS: TONE • Types of Stories to Focus on for the Opening Statement • Case against your client vs. Your side • Third Person vs First Person

OPENING STATEMENT ELEMENTS: THEME • Open and Conversational (stay away from making an argument) • Repeat your theme • Use it as a refrain • Use it as a transition • Treat it like poetry • Practice saying it

OPENING STATEMENT ELEMENTS: STRUCTURE • Preview it • Use Human Emotion to connect with the jury • Chronology • Just the right details • Use exhibits for emphasis

OPENING STATEMENT ELEMENTS: BIG FINISH • Explain to the jury what are your expectation from them • Let them know what is the main issue (has the Government mt it burden?) • Show the jury how that main issue the theme of your case should show that the Government has not met it burden of proof

OPENING STATEMENT FINDING YOUR INNER STORYTELLER AN EXAMPLE FROM GERRY SPENCE

Criminal Defense Lawyers Project

Battling the Resistance July 8, 2021 310 Padre Boulevard South Padre Island, TX

Topic: The Resistance is Self-Sabotage: (Mental Health)

Speaker:

Joseph Hoelscher 3030 Nacogdoches Rd tte 222 San Antonio, TX 78217-4540 (210) 222-9132 phone (888) 519-8229 fax joe@hgclaw.com www.hgclaw.com

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

Mental Health and Criminal Practice

Joseph Hoelscher Managing Attorney Hoelscher Gebbia Cepeda PLLC 3030 Nacogdoches Rd., Ste. 222 San Antonio, TX 78217 210-222-9132 (o) 888-519-8229 (f) Joe@HGCLaw.com

2021 LEGISLATIVE UPDATE

Joseph F. Hoelscher, II 3030 Nacogdoches, Ste. 222 San Antonio, TX 78217 210-222-9132 (o) 888-519-8229 (f) Joe@HGCLaw.com SUMMARY Award-winning attorney with experience in over 100 trials, both civil and criminal, as well as high-profile and complex cases. Previous cases have featured in national media including America’s Most Wanted, Dateline, Crime Watch Daily with Chris Hansen, The New York Daily News, and National Public Radio. Published author and regular Continuing Legal Education presenter. Principle practice areas are civil Child Welfare, felony Child Abuse, and Intoxication Offenses. PROFESSIONAL EXPERIENCE Hoelscher Gebbia Cepeda PLLC, San Antonio, Texas Managing Attorney, May 2017-Present General practice law firm with emphasis in Family and Criminal Law. Practice areas include child welfare (CPS/DFPS cases), Foster Parent law, Driving While Intoxicated and other intoxication offenses, major felonies, capital cases, complex divorce and child custody, and trial advocacy. ● Lead Counsel for novel case regarding paternity and child custody after informal assisted reproduction in an alleged same-sex informal marriage ● Mediated simultaneously, as Lead Counsel, twenty-three child welfare cases on behalf of an attorney and guardian ad litem against the Texas Department of Family and Protective Services, the Bexar County Ad Litem Attorneys’ Association, and the Bexar County District Attorney’s Office resulting in a reversal of a communications ban on our client ● Maintained winning record in jury trials in civil and felony cases ● Won appeals supporting suppression of blood alcohol evidence and standing for foster parent intervenors in a child custody case Our Lady of the Lake University, San Antonio, Texas Adjunct Professor of Political Science, Spring 2020 Teaching Law School Preparation & Intro to the Legal System (POLS 3337) course designed to prepare students for the first year of law school. Hoelscher Law Office, San Antonio, Texas Attorney-Owner, May 2007-April 2017 General practice law firm with emphasis in Family and Criminal Law.

Mental Health

● Successfully exposed systemic failures in the Bexar County breath alcohol testing program, resulting in Brady notices in dozens of cases ● Caught a corrupt lab tech resulting in the suspension of blood alcohol testing in Bexar County, ultimately affecting hundreds of cases ● Forced an investigation and suspension of a San Antonio Police Dept. Field Training Officer who was considered the best DWI officer in Bexar County ● Appointed by two courts as prosecutor pro tem St. Mary’s University, San Antonio, TX Asst. Director of Forensics, January 1998-July 2002 Developed and instituted primary training program for an internationally competitive speech and debate team. Taught persuasion, logic, rhetoric, and procedure. Analyzed lay person judging in adversarial systems to construct model decision making paradigms. ● Featured by the BBC for a global audience ● Toured Israel by invitation to lecture at major universities ● Worked with Russian, Japanese, British, and Israeli National Debate teams in cultural exchange programs Texas Military Institute, San Antonio, TX Director of Forensics, August 1999-July 2001 Head of nationally competitive speech and debate program, managed budget over $40,000 annually, hired and directed coaching staff.

CLERKSHIPS Hon. George Allen, District Court Judge (51st District Court), Waco, TX Judicial Clerk, August 2006 – January 2007 Prepared bench memoranda, performed legal research and analysis, handled court correspondence. Goldstein Goldstein & Hilley, San Antonio, TX Law Clerk, May 2004 – August 2004 Performed legal research, drafted trial motions and supporting briefs, prepared appellate documents and writs. Assisted in trial preparation and investigation.

FORMAL EDUCATION

Baylor University Law School, Waco, TX Juris Doctor with Criminal Law Concentration, November 2006

Mental Health

●

Order of Barristers, Moot Court Board, Moot Court and Client Counseling Teams. ● Dean’s Academic Excellence Scholarship ● Designed trial advocacy problems for the Practice Court program as assistant to Prof. Gerald Powell, Head of Practice Court. St. Mary’s University, San Antonio, TX Master of Arts in International Relations with Western Hemisphere Concentration, December 2002 ● Conducted economic and political development field research in Haiti and Cuba ● Completed foreign language component of comprehensive examination in Spanish St. Mary’s University, San Antonio, TX Master of Arts in Communications Studies, December 2002 ● Thesis: Deconstructing Speech Codes - an analysis of critical race theory and deconstructionism in relation to First Amendment free speech protections in the context of institutional rules regulating communication in academic settings. St. Mary’s University, San Antonio, TX Bachelor of Arts in Political Science, May 1998 ● University President’s Scholarship

PUBLICATIONS Contributor, “Law in the Time of Coronavirus.” Voice For The Defense (Vol. 49, No. 6, p. 24). Texas Criminal Defense Lawyers Association, July/August 2020. Practice Guide to Texas Drunk Driving Law, 2019 Ed., Matthew Bender/LexisNexis Publishing, 2019. Practice Guide to Texas Drunk Driving Law, 2018 Ed., Matthew Bender/LexisNexis Publishing, 2018. “Consider A National Registry For Child Abuse Cases,” San Antonio ExpressNews, September 3, 2018.

Mental Health

“Alcohol Can Dim Holiday Cheer,” San Antonio Express-News, Sunday, December 17, 2017. Practice Guide to Texas Drunk Driving Law, Matthew Bender/Lexis-Nexis Publishing, 2017. “Speedy Trial: Punishing the System for Making Us Wait.” Voice For The Defense Magazine, Texas Criminal Defense Lawyers’ Association, November 2015. “Sealing Criminal Records,” The Defender Magazine, San Antonio Criminal Defense Lawyers’ Association, (Summer 2012). Contributor, “Foreign Corrupt Trade Practices Act,” Chester’s Practical Guide to International Trade Law, (2008).

SPEAKING ENGAGEMENTS “Playoffs?: Appeals,” Defense: We Make Champions CLE – MacAllen, Texas Criminal Defense Lawyers Association, November 2019. “Playoffs?: Appeals,” Defense: We Make Champions CLE – San Angelo, Texas Criminal Defense Lawyers Association, September 2019. “Discovery and Evidentiary Issues in Child Abuse Cases,” Against All Odds CLE, Texas Criminal Defense Lawyers Association, August 2018. “Asymmetrical Discovery - Tactics to Make the State Fight Itself,” San Antonio Defense Lawyers’ Association Monthly CLE, August 2017. “Elements of Storytelling in Criminal Trial,” San Antonio Criminal Defense Lawyers’ Association Monthly CLE, December 2016. “Cops as Witnesses: Friend and Foe,” Plaintiff Litigation INSIGHT CLE, August 2015 “Communicating With Clients With PTSD,” PTSD: The Elephant in the Courtroom CLE, 2015. “Unsinking the Ship: What to Do When Your Client Has Confessed,” San Antonio Criminal Defense Lawyers’ Association Monthly CLE, March 2015 “Marijuana Law in Texas,” Bexar County Republican Liberty Caucus, January 2015

Mental Health

“How Judges affect the Residential Care Industry,” San Antonio Residential Care Homes, October 2012 “Contract Systems for Indigent Defense,” Bexar County Task Force on Indigent Defense, March 23, 2011 “Changing Lanes: New Directions in Vehicle Search Laws,” San Antonio Criminal Defense Lawyers Assoc. Monthly CLE, June 2009 Business and Non-Profit Organization Radio Series, sponsored by Get Up! Community Center: Guest Host ● Serving the Community as a Business, July 5, 2009 ● Legal Issues Involving Minors, June 20, 2009 ● Selecting Legal Representation for Your Business, June 14, 2009 ● Open Forum Legal Q&A, June 6, 2009 ● Criminal and Civil Liability Issues for Non-Profits, May 30, 2009 ● The Role of Non-Profits in Criminal Justice, May 16, 2009

MEDIA APPEARANCES & COMMENTARY (Not Comprehensive) Medina, Mariah. “Bexar County to hold civil jury trials virtually, opening door to possibility of remote criminal jury trials.” KENS 5 News (CBS Affiliate), San Antonio, Texas, July 29, 2020. Braff, Danielle. “Some lawyers have baked their political views into their firms’ DNA.” ABA Journal, June 1, 2020. Lauer, Claudia and Colleen Long. “U.S. Prisons, jails on alert for spread of coronavirus.” The Washington Post, March 6, 2020. Medina, Mariah. “Here’s Why January is Known as Divorce Month.” KENS 5 News (CBS Affiliate), San Antonio, Texas, January 1, 2020. Williams, Geoff. “6 Financial Considerations for Remarriage.” U.S. News & World Report, November 18, 2019. Salles, Alice. “Child Abuse Training for Teachers Both Praised and Criticized,” The Epoch Times, November 1, 2019. Zapata, Kimberly. “How to Tell If Someone Is Lying,” O: The Oprah Magazine, October 25, 2019.

Mental Health

Bruk, Diana. “12 Ways to Get Help If You’re a Victim of Domestic Violence,” MSN.com, Oct. 22, 2019. Yuko, Elizabeth. “10 Undeniable Facts About Mass Shootings in America,” Reader’s Digest, August 2019. Martin, Eric J. “One Quarter of Small Businesses Plan to Reinvest in Their Enterprises,” CO (United States Chamber of Commerce Newsletter), May 7, 2019. Kowarski, Ilana. “Why Is It So Hard to Get Into a Top Law School?,” U.S. News & World Report – Grad School Ranking Edition, March 2019. Galli, Joe. “Lawyers respond to Gov. Abbott’s request to fast track executions for mass murderers.” News 4 San Antonio (NBC Affiliate), San Antonio, Texas, September 4, 2019. Caltabiano, David. “Convicted habitual drunk driver faces murder charge.” News 4 San Antonio (NBC Affiliate), San Antonio, Texas, February 28, 2019. O’Neil, Bill. “Defense Attorney Criticizes Bexar Prosecutors.” KTSA Radio, San Antonio, Texas, March 16, 2017. McCarty, Melissa. “San Antonio Mother of Three Remains Missing a Year After Dispute with Husband.” Crime Watch Daily with Chris Hansen. (Warner Bros.), Feb. 13, 2017 Dunson, Alex. “Special Report: Where’s Bianca?.” CBS-7 News (CBS Affiliate), Midland, Texas, Nov. 04, 2016. Bourke, Justin. “Search Continues After 6-month Anniversary of S.A. Mother’s Disappearance.” KENS-5 News (CBS Affiliate), San Antonio, Texas, Nov. 04, 2016. Contreras, Guillermo. “A District Attorney’s Bumpy Ride.” San Antonio ExpressNews, Oct. 7, 2016. Spriester, Steve. “SAPD Chief, Attorney Have Different Reactions to Dashcam Video.” KSAT-12 News (ABC Affiliate), San Antonio, Texas, Aug. 29, 2016. Santos, Renee. “Bexar County in Need of Foster and Adoptive Parents.” FOX 29 News (Fox Affiliate), San Antonio, Texas, Aug. 28, 2016. Avila, Jaie. “Undercover Investigation: Parking Lots Booting Cars Against City Ordinance.” NEWS 4 San Antonio (NBC Affiliate), San Antonio, Texas, Aug. 28, 2016.

Mental Health

Santos, Renee. “The Fight For Kenya: Families seeking adoption of one year old girl.” FOX 29 News (Fox Affiliate), San Antonio, Texas, May 5, 2016. Degollado, Jessie. “Foster Parents Sue CPS To Adopt Child: Agency defends family reunification policy.” KSAT-12 News (ABC Affiliate), San Antonio, Texas, April 27, 2016. Locklear, Michael. “Bexar County Catching Up On DWI Blood Sample Backlog.” NEWS 4 San Antonio (NBC Affiliate), Dec. 11, 2015. Price, Robert. “Attorney Accused of Sex with Clients Remains on Job.” News 4 San Antonio (NBC Affiliate), Dec. 1, 2015. Baucom, Emily. “Candid Conversation On Police Patrol.” WOAI News (Fox Affiliate), San Antonio, Texas, Nov. 20, 2015. Chasnoff, Brian. “When Do We Get The Blood Back?” San Antonio ExpressNews, July 31, 2015. Spriester, Steve. “Bad Blood?” KSAT-12 News (ABC Affiliate), San Antonio, Texas, February 25, 2015. Guzman, Stephanie. “Lawyers Adjust Amid Changes In Prosecuting DWIs.” San Antonio Business Journal, Jan. 30, 2015. Malik, Alia. “DNA Links Man to Knifepoint Rape.” San Antonio Express-News, April 24, 2014. Cassidy, Michelle. “Jury Acquits Man in Prostitute Knife Attack.” San Antonio Express-News, Feb. 4, 2014. Goyette, Braden. “Dog left out in Texas heat bites face of 3-year-old girl.” New York Daily News. June 26, 2012. Wolfe, Elaine. “Lawyers Challenge Reduced Fees for Children’s Court.” Plaza de Armas, 2011. (No Longer Available). Wolfe, Elaine. “For Poor Defendants, The Wheel Spins Once More.” Plaza de Armas, 2011. (No Longer Available).

AWARDS Reader’s Choice Runner Up, The San Antonio Current, 2020 Top DWI Lawyer in San Antonio, Scene in San Antonio Magazine, 2020

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Top Family Lawyer in San Antonio, Scene in San Antonio Magazine, 2020 Client Champion Award – Gold, Martindale-Hubbell, 2019 Top 100 Trial Lawyers, National Trial Lawyers, 2014 - 2019 Featured Member, National College of DUI Defense, May 2019 “Best DWI Lawyers,” Scene in San Antonio Magazine, 2018, 2019 “Best Lawyers” list, Scene in San Antonio Magazine, 2012 - 2019 Client Distinction Award, Martindale-Hubbell, 2015 “Best Family Lawyers,” Scene in San Antonio Magazine, 2014, 2016 “Top 30 Criminal Defense Attorneys,” Scene in San Antonio Magazine, 2014, 2015, 2016 “Best of the Best: Criminal Practice,” Texas Lawyers’ Group, 2012 Avvo.com “Superior” 10 out of 10 Attorney Rating, 2011-Present Delta Theta Phi International Legal Fraternity: Justice James Norvell Memorial Award & Scholarship, 2005, 2006 University of San Diego: 2nd Place Overall, National Criminal Procedure Tournament, 2005 Naman Howell Smith & Lee: Semi-Finalist, Client Counseling Tournament, 2005 Texas Forensics Association: Texas State Championship Coach, 2001 International Public Debate Association: National Debate Champion, 1998

MEMBERSHIPS AND ADMISSIONS Member, State Bar of Texas, Admitted May 2007 Texas State Bar No. 24042972 Admitted to practice in the Federal Western District of Texas, 2007 Member, Board of Directors, Texas Criminal Defense Lawyer’s Association, June 2020 – Present • •

Member, Judicial Conduct Committee Member, Media Relations Committee

Member, North San Antonio Chamber of Commerce, 2018-Present Board Member, Starlite Autism Center, 2018-2020 Co-Chair, Retention Committee of the San Antonio Criminal Defense Lawyers Association (advises newly elected Bexar County DA regarding retention of ADAs), 2018 Member and Speaker, Texas Criminal Defense Lawyers Project, 2018-Present

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Member, College of the State Bar of Texas, 2009-Present Member, Pro Bono College of the State Bar of Texas, 2015-Present Member, American Bar Association Advisory Panel, 2009-2014 Mentor, San Antonio Bar Association Mentorship Committee, 2010-2015 Member, National Association of Criminal Defense Lawyers, 2009-Present Member, National College of DUI Defense, 2016-Present Member, Texas Criminal Defense Lawyers’ Association, 2007-Present Founding Member and Parliamentarian, Texas Association of Cannabis Lawyers, 2017-Present Member, San Antonio Criminal Defense Lawyers’ Association, 2007-Present Member, Legal Committee, National Organization for the Reform of Marijuana Laws, 2008-Present (some years excepted)

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Overview

I was once told, “arguing with a crazy person makes you look crazy, too.” I think that’s right. Which is why I avoid talking to most prosecutors. As the voice of the accused, though, we can’t avoid talking to our clients. Inevitably, as criminal trial lawyers, we have to not only talk with mentally impaired persons, but represent their interests, sit with them, and tell their stories. How does that make us look? For a lot of jurors, prosecutors, and judges, it makes us look worse than crazy. In their minds, we are gaming the system to help our clients escape responsibility for their actions. After trying both competency and sanity to verdict, interviewing jurors post-verdict, and working with innumerable mental health professionals on a variety of civil and criminal cases, I believe the best way to raise mental health concerns is by following the experts. This paper provides an overview of how to identify and work with clients who have mental health issues, and then address competency and/or sanity in the criminal context.

II.

Identifying Mental Illness Criminal defense attorneys are in unique positions to assist those suffering

from mental illness. Criminal defense attorneys usually come to clients in their darkest, lowest periods in their lives. They may be suffering from severe, debilitating mental illness that substantially contributed to their legal situation. For example, those suffering from mental illness may be struggling to understand the consequences of their actions, control their physical movements, or even

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comprehend reality. The unique position of criminal defense attorneys allows the lawyer to skillfully and delicately guide the client in treatment; assisting them to regain control of their lives and avoid recidivating behaviors. Every client suffering from mental illness is unique in their own right. Criminal offenders tend to be less educated, addicted to some kind of debilitating substance, intellectually disabled or severely mentally ill. Often, a client will be suffering from multiple issues at once. When a client is both suffering from a drug addiction and a severe mental illness, treatment must be unique, tailored and targeted to ensure that the client can both comprehend their behaviors and ensure they do not relapse due to their mental condition. However, an attorney must be able to guide such a client through the legal process, which can be difficult and may result conflicting interests at times. One of the most difficult parts of representing a mentally ill client can be their denial that anything is wrong with them. Many of these people are self-medicating with addictive, sometimes illegal, substances; and they struggle to comprehend the legal system. Texas has adopted many provisions designed to assist the practitioner, as well as the legal system, in dealing with individuals suffering from mental illness. These provisions recognize that each case should be treated based on its unique facts and circumstances. Representing the mentally ill requires the attorney to function on a different level, as they work within both the legal and mental health fields to get the best results for the client. a. Interview the Client

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The first place the lawyer should look to identify potential mental illness is by talking to the client. Take time to interview your client thoroughly. The longer you talk to the client, the more likely you will begin to notice signs if they are suffering from mental illness. Mental illness can range from depression to severe cases of schizophrenia. Obviously, signs of mental illnesses range drastically, and most attorneys are not licensed mental health professionals. However, there are some signs that are often present in someone suffering from mental illness and may support your efforts to get the client further evaluated. Some signs to look for are: •

Confused thinking;

•

Sadness or irritability;

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Extreme highs and lows in emotional responses;

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Excessive fears or anxiety to social or personal situations;

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Withdrawn social behavior;

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Drug addiction;

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Delusional thoughts;

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Hearing or seeing things that are not actually there (i.e., hallucinations);

•

Strong feelings of anger or uncontrollable anger;

•

Dramatic changes in eating or sleeping habits (e.g., anorexia or insomnia)

•

Suicidal thoughts or tendencies;

The key thing to keep in mind during these interviews is that you must find a delicate balance between questioning them about any potential mental health issues

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and maintaining trust. As a counselor at law, it is important that you maintain the trust of your clients, and this challenging task can be compounded when someone is suffering from a debilitating mental health disorder. Some clients are open about their mental health diagnosis, others refuse to recognize that they are different and struggle to understand why they are in the situation they are in. You must learn how to deal with both. b. Family History Often, the family and friends of the client can be just as useful a tool as the client. They will have much needed knowledge regarding day-to-day interactions with the client. Furthermore, a parent may know if the client was treated for mental illness or has a mental health diagnosis. Furthermore, investigating where the client came from may clue you in on a potential history of mental illness within the family and trigger a duty to investigate further for potential mitigating evidence. For example, if a client’s parents are heavy drug users, that may suggest that there is a history of potential addiction, or health conditions within the family. Some important questions to ask include: How did the client behave growing up? What kind of friends did they have? Did they do well in school? Did they suffer any head trauma? Did they have a healthy home environment? Was there a history of abuse? Were they ever hospitalized? c. History of Mental Illness The interview with the client and the collaterals may trigger a duty to further investigate a client’s mental health for potential defense or mitigating evidence. If the client has been hospitalized in a mental health facility or has been treated by

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multiple mental health professionals in the past, these records can be a gold mine for mitigation and punishment evidence. Even if you believe they may be damaging and should not be introduced, you have both an ethical and legal duty to investigate these documents and may a calculated, knowledgeable decision not to use them. If your client indicates they have had treatment or have a medical condition, you should get them to authorize disclosure of their records by signing a HIPAA release. See Form, Authorization to Disclose Protected Health Information, The Office of the Attorney General of Texas, available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumerprotection/hb300-Authorization-Disclose-Health-Info.pdf.

III.

Competency Evaluating and advising a client regarding mental health issues such as

competency or insanity requires a firm knowledge of both the criminal justice system and the mental health system. In addition, you must have a clear understanding of both the psychological and legal factors that are unique to each case. Competency refers to whether the defendant is presently able to comprehend the charges against him, understand the legal process, and participate in his or her defense. Competence is determined at the time of the proceedings, not at the time of the offense. Lasiter v. State, 283 S.W.3d 909, 925 (Tex. App.— Beaumont 2009, pet. ref’d). On the other hand, insanity refers to whether the defendant had the mental capacity to comprehend the crime at the time of

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commission. These two issues are the main issues that arise during representation of an individual suffering from mental illness. a. Competency Defined A criminal defendant is presumed competent to stand trial in Texas. Tex. Code Crim. Proc. art. 46B.003(b). This means a criminal defendant is competent to stand trial unless proven incompetent by a preponderance of the evidence. Id. “A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person.” Id. at 46B.003(a). b. Raising Competency The issues of competency to stand trial can be raised at any time, by any party to the case, or on the judge’s own suggestion. Tex. Code Crim. Proc. art. 46B.004 (a). The party suggesting incompetency should file a motion, which may be supported by affidavits setting out the facts on which the suggestion is made. Id. See Form, Motion Suggesting Incompetency and for Evaluation. Once a party or the judge has suggested incompetency, the court shall conduct an informal inquiry into whether “some evidence from any source . . . would support a finding that the defendant may be incompetent to stand trial.” Tex. Code Crim. Proc. art. 46B.004(c). If the court determines some evidence exists to support a finding of incompetency, the court will stay all proceedings in the case to conduct an evaluation. Id. at 46B.004(d). c. Competency Evaluations

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Once the judge has determined that there is credible evidence that suggests the defendant may be incompetent to stand trial, the judge shall order a qualified psychiatrist or psychologist to conduct an evaluation of the defendant to determine whether the defendant is competent to stand trial. Tex. Code Crim. Proc. art. 46B.021(a). This expert will: (1) examine the defendant and report to the court on the issue of competency or incompetency of the defendant; and (2) testify as to the issue of competency or incompetency of the defendant at any trial or hearing on the matter. Id. This expert must meet qualifications listed in Article 46B.022 of the Texas Code of Criminal Procedure, which requires them to be licensed in the State and have the appropriate certifications, training and criminal forensics training. An expert must satisfy the precise list of requirements under this section to qualify as an expert for purposes of testifying and determining a defendant’s competency. Owens v. State, 437 S.W.3d 584, 586 (Tex. App.—Texarkana 2014), rev’d on other grounds, 473 S.W.3d 812 (Tex. Crim. App. 2015). There are a number of factors that will be considered during this evaluation by the qualified expert when formulating an opinion as to competency: •

The capacity of the defendant during criminal proceedings to: (1) rationally understand the charges against them and the potential consequences of the pending criminal proceedings; (2) disclose to counsel pertinent facts, events, and states of mind; (3) engage in reasoned choice of legal strategies; (4) understand the adversarial nature of criminal proceedings; (5) exhibit appropriate courtroom behavior; and (6) testify in their own defense;

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•

Whether the defendant is suffering from a diagnosed mental illness or mental retardation and the impact that this mental health diagnosis has on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and

•

If the defendant is taking a psychoactive medication: (1) whether the medication is necessary to maintain competency; and (2) the effect, if any, the medication may have on the defendant’s appearance, demeanor or ability to engage and participate in proceedings.

Tex. Code Crim. Proc. art. 46B.024. The attorney is not required to be present during such an evaluation, however, some client prefer to have legal representation during a competency evaluation and proceeding, and they are entitled to such representation. Id. at 46B.006. Attending these evaluations can provide you with valuable information for the case. Furthermore, if you are present, you can help ensure that your client is not answering any questions that would violate their constitutional rights, such as questions that would result in a confession by the defendant. d. Agreed vs. Contested Incompetency Findings After an evaluation is conducted, a competency finding will be either agreed or contested. If both the State and the defense agree that the defendant is not competent, no hearing is necessary to make a finding of incompetency. Tex. Code Crim. Proc. art. 46B.005(c). Following an agreed incompetency finding, the court must next determine whether the defendant is a danger to either themselves or others. If the defendant is not a risk, they may be released and treated on an

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outpatient basis for the purpose of attaining competency. Id. at 46B.072. Such a commitment to outpatient treatment cannot exceed 120 days. Alternatively, if the defendant is not released on bond pursuant to Texas Code of Criminal Procedure 46B.072, then the defendant is committed to an inpatient mental health facility for a period not to exceed 120 days. Id. at 46B.073. If the defendant is charged with a violent offense defined under Article 17.032(a) of the Code of Criminal Procedure or the indictment alleges use of a deadly weapon, the defendant will be committed to a maximum-security unit or a facility designated by the Department of State Health Services. Id. at 46B.073(c). If the issue of competency is not agreed and either the state or the defense is contesting the issue of whether the defendant is competent, then the court shall hold a trial on the issue of competency under Article 46B.005. This hearing is conducted through a bench trial unless either party or the court requests a jury for the issue. Tex. Code Crim. Proc. art. 46B.051(a). The verdict on the issue of competency must be unanimous. Id. at 46B.052(b). If the jury (or court) find the defendant to be incompetent, then the issue of whether the defendant should be released on bail or ordered to in-patient treatment is addressed by the court, not the jury. Id. at 46B.071–46B.072. e. Extended Commitment The program provider for which the defendant is ordered for competency restoration can request an extension of the restoration period under Article 46B.080. The court may enter an order extending the initial restoration period for an additional 60 days if the court determines that: (1) the defendant has not attained

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competency; and (2) the extension of the restoration period will enable the facility or program to restore the defendant to competency within the extension period. Only one period of extension can be granted under this provision. Tex. Code Crim. Proc. art. 46B.085. After an initial restoration period and an extension ordered, any subsequent orders for treatment must be issued under Subchapter E or F, the provisions dealing with civil commitment orders.

IV.

Sanity

As is the case with competency, a criminal defendant is presumed to be sane until the contrary is established by a preponderance of the evidence. Bonner v. State, 520 S.W.2d 901 (Tex. Crim. App. 1975). Because of this presumption of sanity, the defendant will bear the burden of proving that he or she was insane at the time of the offense. Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App. 1993); Rundles v. State, 486 S.W.3d 730 (Tex. App.—Texarkana 2016, pet. ref’d); see also Allen v. State, 232 S.W.3d 776 (Tex. App.—Texarkana 2007, no pet.); Reyna v. State, 116 S.W.3d 362 (Tex. App.—El Paso 2003, no pet.); Dashield v. State, 110 S.W.3d 111 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

a. Raising the Insanity Defense In order to raise the insanity defense, a defendant must file with the court a notice of the defendant’s intention to offer evidence of insanity. Tex. Code Crim. Proc. art. 46C.051(a). The notice must include a certificate of service to the attorney for the State and must be filed at least 20 days prior to trial or 20 days prior to a pre-

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trial hearing. See Form, Notice of Intent to Raise Insanity Defense; Motion for Examination Regarding Insanity Defense. b. Burden of Proof Since the insanity defense is an affirmative defense, a defendant generally bears the burden to prove that (1) because of severe mental disease or defect, (2) he or she did not know right from wrong at the time of the offense. However, if the court has previously adjudged the defendant insane, the burden shifts to the State to prove the defendant was sane at the time of the offense. Tex. Penal Code Ann. § 8.01; Hines v. State, 570 S.W.3d 297, 303 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Riley v. State, 830 S.W.2d 584, 585 (Tex. Crim. App. 1992). c. Evaluation Similar to the competency findings, the court may order the defendant to an evaluation regarding the insanity defense. Tex. Code Crim. Proc. art. 46C.101(a). Furthermore, the defense can appoint one or more disinterested experts to assist in formulation of the defense apart from the court’s expert. “If the defendant wishes to be examined by an expert of the defendant’s own choice, the court on timely request shall provide the examiner with reasonable opportunity to examine the defendant.” Id. at 46C.107. Keep in mind that the Code further provides for provisions that force the defendant to submit to an evaluation ordered under the provisions above. Id. at 46C.104. A written report of the evaluation shall be submitted to the court no later than the 30th day after the date of the order for examination, and a copy of this report is to be disclosed to all attorneys on the case. Id. at 46C.105(a). This report must

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include a description of the procedures used during the examination and the observations and findings pertaining to the insanity defense. Id. at 46C.105(b). The examiner must also include a separate report concerning whether the defendant is presently suffering from mental illness and would benefit from mental health services and whether they are suffering from mental retardation. Id. at 46C.105(c). d. Determining Insanity The issue of insanity is a fact question left to the trier of fact. Therefore, if the defendant is being tried by the jury, the jury decides whether the defendant was insane at the time of the offense. Id. at 46C.151. However, the judge must first decide if there is competent evidence to support the issue being submitted to the jury in the first place. Id. In order to determine whether the defendant is not guilty by reason of insanity: (1) the prosecution must establish beyond a reasonable doubt that the alleged conduct constituting a crime was committed by the defendant; and (2) the defendant must establish by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct. If these factors are established, the jury may enter a finding of either guilty, not guilty, or not guilty by reason of insanity. Id. at 46C.151. However, the parties to the case, with the consent of the judge, agree to dismiss the indictment or information on the ground that the defendant was insane or enter judgment of dismissal due to the insanity. An entry of judgment under these provisions is the same as if the defendant is found not guilty by reason of insanity. Id. at 46C.153(b)–(c).

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Mental Health and Mitigation

Even where the State jumps the hurdles of competency and sanity, mental health evidence can play a powerful role at sentencing. Defense counsel must be ready to rebut fearmongering by the prosecution that plays on the stigma of mental health concerns. We must also look for opportunities to gain sympathy from the jury or mitigate aggravating factors by explaining our client’s mental or emotional impairments. For example, in an aggravated assault case, a convicted service member with PTSD because of his/her service may be viewed much more favorably by a judge or jury. However, that same client could be demonized as inherently violent and thought to require a longer sentence to protect the public. Explaining how PTSD works, deficiencies in treating it by the VA, a treatment plan that will help our veteran, and telling the story of how he or she came to have PTSD could relieve the jury’s fears while maybe convincing the jurors that our soldier has been punished enough by the system that let him/her down. That is a recipe for leniency. In fact, it may be the best defensive strategy you have in a particular case. Preparing mitigation requires expert assistance. Proving that your client’s prior history is no indication of a criminal future requires expert opinion and a credible treatment plan. Many mental health disorders have chemical or neurological causes, further mitigating culpability as they are beyond your client’s control. Look for mitigation experts who can handle the life history investigation and make referrals to experts such as neuropsychologists or specialists in your client’s specific mental health condition. At a minimum, hold the State’s experts who

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testified that your client is competent, despite mental health issues, to their prior testimony where their focus was on how easily you could overcome your client’s condition. Then, ask that their recommendations inform your client’s conditions of probation by specifying accommodations he or should be allowed.

VI.

Ineffective Assistance of Counsel

As defense attorneys, we have an obligation to investigate. This duty does not mean that counsel has an obligation to present all evidence concerning mental health diagnosis to a jury or judge. However, failure to investigate possibility of an insanity defense has constituted ineffective assistance of counsel. See Ex parte Imoudu, 284 S.W.3d 866 (Tex. Crim. App. 2009). This is true even where the insanity defense could have been rooted in voluntary intoxication. See Ex Parte Howard, 425 S.W.3d 323 (Tex. Crim. App. 2014). Further, failure to investigate for mitigation evidence, such as mental health history, can be ineffective assistance. See Wiggins v. Smith, 539 U.S. 510 (2003) (failure to investigate Defendant’s life foe mitigation evidence was ineffective), Lampkin v. State, 470 S.W.3d 876 (Tex.App. – Texarkana 2015, pet. ref’d) (failure to investigate mental health history for use in mitigation was ineffective). In the capital litigation context, failure to present mitigation evidence has been held ineffective, repeatedly. See Ex Parte Gonzales, 204 S.W.3d 391 (Tex.Crim.App. 2006). It is vital that you, as a defense attorney, at least investigate and determine whether these documents and records would be helpful for the defense.

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2021 LEGISLATIVE UPDATE TCDLA LEGISLATIVE TEAM THE HONORABLE ALLEN D. PLACE, JR. Place Law Office 109 S. 7th St. Gatesville, Texas 76528 (254) 865-8475 allenplacejr@aol.com

SHEA PLACE Place Law Office 1122 Colorado St., Ste. 1910 Austin, Texas 78701 (512) 477-6424 sheaplace@gmail.com

DAVID M. GONZALEZ Sumpter & Gonzalez, L.L.P. 3011 N. Lamar, Ste. 200 Austin, Texas 78705 (512) 381-9955 david@sg-llp.com

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MENTAL HEALTH 1. Amended procedures for incompetency and mental illness. o Full Legislative History: SB 49 o Statute: TEX.CODE.CRIM.PRO. art. 46; 16.22 o Legislative Intent: S.B. 49 would ensure that officials responsible, including sheriffs and personal bond officers, for the incarcerated persons in their custody, or for their supervision if they are out on bail, have access to information regarding a mental health condition or intellectual or developmental disability defendants might have. This would ensure that such persons are treated appropriately given their condition and provided with an adequate amount of supervision. As proposed, S.B. 49 amends current law relating to a written report regarding a defendant suspected of having a mental illness or an intellectual disability. The final bill is much broader that the legislative intent. o Full Text: Article 16.22(a)(2), Code of Criminal Procedure, is amended to read as follows: (2) The magistrate is not required to order the interview and collection of other information under Subdivision (1) if the defendant is no longer in custody or if the defendant in the year preceding the defendant's applicable date of arrest has been determined to have a mental illness or to be a person with an intellectual disability by the service provider that contracts with the jail to provide mental health or intellectual and developmental disability services, the local mental health authority, the local intellectual and developmental disability authority, or another mental health or intellectual and developmental disability expert described by Subdivision (1). A court that elects to use the results of that previous determination may proceed under Subsection (c). SECTION 2. Article 16.22, Code of Criminal Procedure, is amended by amending Subsection (b-1) and adding Subsection (b-2) to read as follows:

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(b-1) The magistrate shall provide copies of the written report to: (1) the defense counsel; (2) [,] the attorney representing the state; (3) [, and] the trial court; (4) the sheriff or other person responsible for the defendant's medical records while the defendant is confined in county jail; and (5) as applicable: (A) any personal bond office established under Article 17.42 for the county in which the defendant is being confined; or (B) the director of the office or department that is responsible for supervising the defendant while the defendant is released on bail and receiving mental health or intellectual and developmental disability services as a condition of bail. (b-2) The written report must include a description of the procedures used in the interview and collection of other information under Subsection (a)(1)(A) and the applicable expert's observations and findings pertaining to: (1) whether the defendant is a person who has a mental illness or is a person with an intellectual disability; (2) whether there is clinical evidence to support a belief that the defendant may be incompetent to stand trial and should undergo a complete competency examination under Subchapter B, Chapter 46B; and (3) any appropriate or recommended treatment or service. SECTION 3. Article 17.04, Code of Criminal Procedure, is amended to read as follows: Art. 17.04. REQUISITES OF A PERSONAL BOND. (a) A personal bond is sufficient if it includes the requisites of a bail bond as set out in Article 17.08, except that no sureties are required. In addition, a personal bond shall contain: (1) the defendant's name, address, and place of employment; (2) identification information, including the defendant's: (A) date and place of birth; (B) height, weight, and color of hair and eyes; (C) driver's license number and state of issuance, if any; and (D) nearest relative's name and address, if any; and (3) except as provided by Subsection (b), the following oath sworn and signed by the defendant: "I swear that I will appear before (the court or magistrate) at (address, city, county) Texas, on the (date), at the hour of (time, a.m. or p.m.) or upon notice by the court, or pay to the court the principal sum of (amount) plus all necessary and reasonable expenses incurred in any arrest for failure to appear." Mental Health

(b) A personal bond is not required to contain the oath described by Subsection (a)(3) if: (1) the magistrate makes a determination under Article 16.22 that the defendant has a mental illness or is a person with an intellectual disability, including by using the results of a previous determination under that article; (2) the defendant is released on personal bond under Article 17.032; or (3) the defendant is found incompetent to stand trial in accordance with Chapter 46B. SECTION 4. Subchapter D, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.0735 to read as follows: Art. 46B.0735. DATE COMPETENCY RESTORATION PERIOD BEGINS. The initial restoration period for a defendant under Article 46B.0711, 46B.072, or 46B.073 begins on the later of:

Mental Health

the date the defendant is: (A) ordered to participate in an outpatient competency restoration program; or (B) committed to a mental health facility, residential care facility, or jail-based competency restoration program; or (2) the date competency restoration services actually begin. SECTION 5. Article 46B.080, Code of Criminal Procedure, is amended by adding Subsection (d) to read as follows: (d) An extension under this article begins on the later of: (1) the date the court enters the order under Subsection (a); or (2) the date competency restoration services actually begin pursuant to the order entered under Subsection (a). SECTION 6. Article 46B.090, Code of Criminal Procedure, is amended by amending Subsections (a-1), (b), (c), (f), (g), (i), (j), (k), (l), (m), and (n) and adding Subsections (f1), (l-1), (l-2), and (o) to read as follows: (a-1) If the legislature appropriates to the commission [department] the funding necessary for the commission [department] to operate a jail-based restoration of competency pilot program as described by this article, the commission [department] shall develop and implement the pilot program in one or two counties in this state that choose to participate in the pilot program. In developing the pilot program, the commission [department] shall coordinate and allow for input from each participating county. (b) The commission [department] shall contract with a provider of jail-based competency restoration services to provide services under the pilot program if the commission [department] develops a pilot program under this article. (c) The executive [Not later than November 1, 2013, the] commissioner [of the department] shall adopt rules as necessary to implement the pilot program. [In adopting rules under this article, the commissioner shall specify the types of information the department must collect during the operation of the pilot program for use in evaluating the outcome of the pilot program.] (f) To contract with the commission [department] under Subsection (b), a provider of jail-based competency restoration services must [demonstrate to the department that]: (1) be [the provider: [(A) has previously provided jail-based competency restoration services for one or more years; or [(B) is] a local mental health authority or local behavioral health authority that is in good standing with the commission, which may include an authority that is in good

2021 LEGISLATIVE UPDATE

standing with the commission and subcontracts with a provider of jail-based competency restoration services [that has previously provided competency restoration services]; and (2) contract with a county or counties to develop and implement a jail-based competency restoration program. (f-1) The [the] provider's jail-based competency restoration program must: through the use of a multidisciplinary treatment team, provide jail-based competency restoration services that are: (A) [uses a multidisciplinary treatment team to provide clinical treatment that is: [(i)] directed toward the specific objective of restoring the defendant's competency to stand trial; and (B) [(ii)] similar to other [the clinical treatment provided as part of a] competency restoration programs [program at an inpatient mental health facility]; (2) employ [(B) employs] or contract [contracts] for the services of at least one psychiatrist; (3) provide jail-based competency restoration services through licensed or qualified mental health professionals; (4) provide [and (C) provides] weekly competency restoration [treatment] hours commensurate to the [treatment] hours provided as part of other [a] competency restoration programs [program at an inpatient mental health facility]; (5) operate in the jail in a designated space that is separate from the space used for the general population of the jail; (6) ensure coordination of general health care; (7) provide mental health treatment and substance use disorder treatment to defendants, as necessary, for competency restoration; and (8) supply clinically appropriate psychoactive medications for purposes of administering court-ordered medication to defendants as applicable and in accordance with Article 46B.086 of this code or Section 574.106, Health and Safety Code [(3) the provider is certified by a nationwide nonprofit organization that accredits health care organizations and programs, such as the Joint Commission on Health Care Staffing Services, or the provider is a local mental health authority in good standing with the department; and [(4) the provider has a demonstrated history of successful jail-based competency restoration outcomes or, if the provider is a local mental health authority, a demonstrated history of successful competency restoration outcomes]. (g) A contract under Subsection (b) must require the designated provider to collect and submit to the commission [department] the information specified by rules adopted under Subsection (c).

2021 LEGISLATIVE UPDATE

(i) A [The] psychiatrist or psychologist for the provider who has the qualifications described by Article 46B.022 shall evaluate the defendant's competency and report to the court as required by Article 46B.079 [conduct at least two full psychiatric evaluations of the defendant during the period the defendant receives competency restoration services in the jail. The psychiatrist must conduct one evaluation not later than the 21st day and one evaluation not later than the 55th day after the date the defendant begins to participate in the pilot program. The psychiatrist shall submit to the court a report concerning each evaluation required under this subsection]. (j) If at any time during a defendant's participation in the jail-based restoration of competency pilot program the psychiatrist or psychologist for the provider determines that the defendant has attained competency to stand trial: the psychiatrist or psychologist for the provider shall promptly issue and send to the court a report demonstrating that fact; and (2) the court shall consider that report as the report of an expert stating an opinion that the defendant has been restored to competency for purposes of Article 46B.0755(a) or (b). (k) If at any time during a defendant's participation in the jail-based restoration of competency pilot program the psychiatrist or psychologist for the provider determines that the defendant's competency to stand trial is unlikely to be restored in the foreseeable future: (1) the psychiatrist or psychologist for the provider shall promptly issue and send to the court a report demonstrating that fact; and (2) the court shall: (A) proceed under Subchapter E or F and order the transfer of the defendant, without unnecessary delay, to the first available facility that is appropriate for that defendant, as provided under Subchapter E or F, as applicable; or (B) release the defendant on bail as permitted under Chapter 17. (l) If the psychiatrist or psychologist for the provider determines that a defendant ordered to participate in the pilot program has not been restored to competency by the end of the 60th day after the date the defendant began to receive services in the pilot program, the jail-based competency restoration program shall continue to provide competency restoration services to the defendant for the period authorized by this subchapter, including any extension ordered under Article 46B.080, unless the jailbased competency restoration program is notified that space at a facility or outpatient competency restoration program appropriate for the defendant is available and, as applicable: (1) for a defendant charged with a felony, not less than 45 days are remaining in the initial restoration period; or

2021 LEGISLATIVE UPDATE

(2) for a defendant charged with a felony or a misdemeanor, an extension has been ordered under Article 46B.080 and not less than 45 days are remaining under the extension order. (l-1) After receipt of a notice under Subsection (l), [: [(1) for a defendant charged with a felony, the defendant shall be transferred, without unnecessary delay and for the remainder of the period prescribed by Article 46B.073(b), to the first available facility that is appropriate for that defendant as provided by Article 46B.073(c) or (d); and [(2) for a defendant charged with a misdemeanor, the court may: [(A) order a single extension under Article 46B.080 and the transfer of] the defendant shall be transferred without unnecessary delay to the appropriate mental health facility, [or] residential care facility, or outpatient competency restoration program [as provided by Article 46B.073(d)] for the remainder of the period permitted by this subchapter, including any extension that may be ordered under Article 46B.080 if an extension has not previously been ordered under that article. If the defendant is not transferred, and if the psychiatrist or psychologist for the provider determines that the defendant has not been restored to competency by the end of the period authorized by this subchapter, the

2021 LEGISLATIVE UPDATE

(1) defendant shall be returned to the court for further proceedings. For a defendant charged with a misdemeanor, the court may: (1) [under the extension; [(B)] proceed under Subchapter E or F; (2) [(C)] release the defendant on bail as permitted under Chapter 17; or (3) [(D)] dismiss the charges in accordance with Article 46B.010. (l-2) The court retains authority to order the transfer of a defendant who is subject to an order for jail-based competency restoration services to an outpatient competency restoration program if: (1) the court determines that the defendant is not a danger to others and may be safely treated on an outpatient basis with the specific objective of attaining competency to stand trial; and (2) the other requirements of this subchapter relating to an order for outpatient competency restoration services are met. (m) Unless otherwise provided by this article, the provisions of this chapter, including the maximum periods prescribed by Article 46B.0095, apply to a defendant receiving competency restoration services, including competency restoration education services, under the pilot program in the same manner as those provisions apply to any other defendant who is subject to proceedings under this chapter. (n) If the commission [department] develops and implements a jail-based restoration of competency pilot program under this article, not later than December 1, 2021 [2018], the executive commissioner [of the department] shall submit a report concerning the pilot program to the presiding officers of the standing committees of the senate and house of representatives having primary jurisdiction over health and human services issues and over criminal justice issues. The report must include the information collected by the commission [department] during the pilot program and the executive commissioner's evaluation of the outcome of the program as of the date the report is submitted. (o) This article expires September 1, 2022. After the expiration of this article, a pilot program established under this article may continue to operate subject to the requirements of Article 46B.091. SECTION 7. Article 46B.091, Code of Criminal Procedure, is amended by amending Subsections (g) and (j) and adding Subsections (j-1) and (m) to read as follows: (g) A psychiatrist or psychologist for the provider who has the qualifications described by Article 46B.022 shall evaluate the defendant's competency and report to the court as required by Article 46B.079 [conduct at least two full psychiatric or psychological evaluations of the defendant during the period the defendant receives competency restoration services in the jail. The psychiatrist or psychologist must conduct one

2021 LEGISLATIVE UPDATE

evaluation not later than the 21st day and one evaluation not later than the 55th day after the date the defendant is committed to the program. The psychiatrist or psychologist shall submit to the court a report concerning each evaluation required under this subsection]. (j) If the psychiatrist or psychologist for the provider determines that a defendant committed to a program implemented under this article has not been restored to competency by the end of the 60th day after the date the defendant began to receive services in the program, the jail-based competency restoration program shall continue to provide competency restoration services to the defendant for the period authorized by this subchapter, including any extension ordered under Article 46B.080, unless the jail-based competency restoration program is notified that space at a facility or outpatient competency restoration program appropriate for the defendant is available and, as applicable: (1) for a defendant charged with a felony, not less than 45 days are remaining in the initial restoration period; or (2) for a defendant charged with a felony or a misdemeanor, an extension has been ordered under Article 46B.080 and not less than 45 days are remaining under the extension order. (j-1) After receipt of a notice under Subsection (j), [the defendant shall be transferred, without unnecessary delay and for the remainder of the period prescribed by Article 46B.073(b), to the first available facility that is appropriate for that defendant as provided by Article 46B.073(c) or (d); and [(2) for a defendant charged with a misdemeanor, the court may: [(A) order a single extension under Article 46B.080 and, notwithstanding Articles 46B.073(e) and (f), the transfer of] the defendant shall be transferred without unnecessary delay to the appropriate mental health facility, [or] residential care facility, or outpatient competency restoration program [as provided by Article 46B.073(d)] for the remainder of the period permitted by this subchapter, including any extension that may be ordered under Article 46B.080 if an extension has not previously been ordered under that article. If the defendant is not transferred, and if the psychiatrist or psychologist for the provider determines that the defendant has not been restored to competency by the end of the period authorized by this subchapter, the defendant shall be returned to the court for further proceedings. For a defendant charged with a misdemeanor, the court may: [under the extension;] (1) [(B)] proceed under Subchapter E or F; (2) [(C)] release the defendant on bail as permitted under Chapter 17; or (3) [(D)] dismiss the charges in accordance with Article 46B.010. (m) The court retains authority to order the transfer of a defendant who is subject to an order for jail-based competency restoration services to an outpatient competency restoration program if: (1) the court determines that the defendant is not a danger to others and may be safely treated on an outpatient basis with the specific objective of attaining competency to stand trial; and 33

(2) the other requirements of this subchapter relating to an order for outpatient competency restoration services are met. SECTION 8. Subchapter E, Chapter 46B, Code of Criminal Procedure, is amended by adding Article 46B.1055 to read as follows: Art. 46B.1055. MODIFICATION OF ORDER FOLLOWING INPATIENT CIVIL COMMITMENT PLACEMENT. (a) This article applies to a defendant who has been transferred under Article 46B.105 from a maximum security unit to any facility other than a maximum security unit. (b) The defendant, the head of the facility to which the defendant is committed, or the attorney representing the state may request that the court modify an order for inpatient treatment or residential care to order the defendant to participate in an outpatient treatment program. (c) If the head of the facility to which the defendant is committed makes a request under Subsection (b), not later than the 14th day after the date of the request the court shall hold a hearing to determine whether the court should modify the order for inpatient treatment or residential care in accordance with Subtitle C, Title 7, Health and Safety Code. (d) If the defendant or the attorney representing the state makes a request under Subsection (b), not later than the 14th day after the date of the request the court shall grant the request, deny the request, or hold a hearing on the request to determine whether the court should modify the order for inpatient treatment or residential care. A court is not required to hold a hearing under this subsection unless the request and any supporting materials provided to the court provide a basis for believing modification of the order may be appropriate. (e) On receipt of a request to modify an order under Subsection (b), the court shall require the local mental health authority or local behavioral health authority to submit to the court, before any hearing is held under this article, a statement regarding whether treatment and supervision for the defendant can be safely and effectively provided on an outpatient basis and whether appropriate outpatient mental health services are available to the defendant. (f) If the head of the facility to which the defendant is committed believes that the defendant is a person with mental illness who meets the criteria for court-ordered outpatient mental health services under Subtitle C, Title 7, Health and Safety Code, the head of the facility shall submit to the court before the hearing a certificate of medical examination for mental illness stating that the defendant meets the criteria for courtordered outpatient mental health services. (g) If a request under Subsection (b) is made by a defendant before the 91st day after the date the court makes a determination on a previous request under that subsection, the court is not required to act on the request until the earlier of: (1) the expiration of the current order for inpatient treatment or residential care; or (2) the 91st day after the date of the court's previous determination. (h) Proceedings for commitment of the defendant to a court-ordered outpatient treatment program are governed by Subtitle C, Title 7, Health and Safety Code, to the 34

extent that Subtitle C applies and does not conflict with this chapter, except that the criminal court shall conduct the proceedings regardless of whether the criminal court is also the county court. (i) The court shall rule on a request made under Subsection (b) as soon as practicable after a hearing on the request, but not later than the 14th day after the date of the request. (j) An outpatient treatment program may not refuse to accept a placement ordered under this article on the grounds that criminal charges against the defendant are pending. SECTION 9. Article 46C.102(a), Code of Criminal Procedure, is amended to read as follows: (a) The court may appoint qualified psychiatrists or psychologists as experts under this chapter. To qualify for appointment under this subchapter as an expert, a psychiatrist or psychologist must: (1) as appropriate, be a physician licensed in this state or be a psychologist licensed in this state who has a doctoral degree in psychology; and (2) have the following certification [or experience] or training: (A) as appropriate, certification by: (i) the American Board of Psychiatry and Neurology with added or special qualifications in forensic psychiatry; or (ii) the American Board of Professional Psychology in forensic psychology; or (B) [experience or] training consisting of: (i) at least 24 hours of specialized forensic training relating to incompetency or insanity evaluations; and (ii) at least [five years of experience in performing criminal forensic evaluations for courts; and [(iii)] eight [or more] hours of continuing education relating to forensic evaluations, completed in the 12 months preceding the appointment [and documented with the court]. SECTION 10. Section 511.009(d), Government Code, is amended to read as follows: (d) The commission shall adopt reasonable rules and procedures establishing minimum standards regarding the continuity of prescription medications for the care and treatment of prisoners. The rules and procedures shall require that: (1) a qualified medical professional shall review as soon as possible any prescription medication a prisoner is taking when the prisoner is taken into custody; and (2) a prisoner with a mental illness be provided with each prescription medication that a qualified medical professional or mental health professional determines is necessary for the care, treatment, or stabilization of the prisoner. 35

7/8/2021

Joseph Hoelscher Managing Attorney Hoelscher Gebbia Cepeda, PLLC 210-222-9132 Joe@HGCLaw.com

Mental Health in Criminal Cases

Overview 1. Identifying Mental Health Concerns 2. Competency 3. Sanity 4. Mitigation 5. Give yourself a break

Identifying Mental Health Conditions

The experts are YOUR friends.

7/8/2021

Who Can Help? 1. Public Defenders 2. Social Workers/Case Managers 3. Investigators 4. Mitigation Experts 5. Treating Physicians/Counselors 6. Family Members 7. Neurologists/Neuropsychologists

TCDLA Working for YOU!

7/8/2021

There’s gonna be paperwork…

Competence 1. Sufficient present ability to consult with person’s lawyer with a reasonable degree of rational understanding 2. Rational as well as factual understanding of the proceedings against the person TCCP 46B.003(a)

Sanity 1. Because of severe mental disease or defect 2. Defendant did not know right from wrong 3. At time of offense TPC 8.01

7/8/2021

Give Notice of Intent

20 days before trial or pretrial hearing TCCP 46C.051(a)

Mitigation

Avoiding Ineffective Assistance

1.Investigate 2.Consult 3.Call Experts

7/8/2021

Outcomes

Thank you for being in the trenches with us!

Criminal Defense Lawyers Project

Battling the Resistance July 9, 2021 310 Padre Boulevard South Padre Island, TX

Topic: Procrastination; the Most Common Resistance and the Easiest to Rationalize: (Voir Dire)

Speaker:

Clifford Duke

133 N Riverfront Blvd Dallas, TX 75207-4339 (214) 875-2319 phone (214) 653-3539 fax cliff.duke@dallascounty.org

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

The Law of Jury Selection Qualification & Disqualification in the Art of Voir Dire. Clifford P. W. Duke Assistant Public Defender, Dallas County 133 N. Riverfront Blvd. LB2 Dallas, TX 75207 (214)-875-2319 cduke@dallacsounty.org

“The Right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.” -

Texas Constitution Article I Section 15

It goes without saying that the right to trial by jury is a cornerstone of fundamental rights in this country. It was among the grievances cited in the Declaration of Independence, ensconced in the Sixth Amendment to the United States Constitution and Article I of the Texas Constitution. But how is that jury selected? There are as many opinions on the correct style and art to conduct voir dire (I won’t insult you by pointing out this is French for “To Speak the Truth”) as there are attorneys selecting juries. There are however specific rules on the qualification and disqualification of the persons who will be deciding our client’s fate. “The voir dire process is designed to insure – to the fullest extent possible – that an intelligent, alert and impartial jury will perform the duty assigned to it by our judicial system.” DeLaRosa vs. State, 414 S.W.2d 668, 671 (Tex. Crim. App. 1967).

No matter how you decide to talk to your venire, the attorney that knows the rules has the upper hand. I.

Qualifying the Juror

Qualifications for jurors are governed both by the Texas Government Code Chapter 62 as well as the Texas Code of Criminal Procedure Chapter 35. While the two can appear redundant, look back at the Government Code qualifications in conjunction with the Code of Criminal Procedure for additional authority to support your arguments. A. Basic Qualifications The goal of jury selection is to select a jury of twelve persons in a felony case and six persons in a misdemeanor. TEX. CODE CRIM. PRO. §33.01. The Government Code lays out the general qualifications for a juror, while the Code of Criminal Procedure provides the mechanism to reject a juror who does not meet those qualifications. TEX. GOV’T. CODE §62.102 & TEX CODE CRIM. PROC. §35.16. General requirements for a juror are (1) At least 18 years of age; (2) A citizen of the United States; (3) Is a resident of this state and the county in which the person is to serve as a juror; (4) Is qualified under the constitution and laws to vote in the county in which the person is to serve as a juror; (5) is of sound mind and good moral character; (6) is able to read and write;

(7) Has not served as a juror for six days during the preceding three months in the county court or during the preceding six months in the district court; (8) Has not been convicted of a misdemeanor theft or of a felony; and (9) Is not under indictment or other legal accusation for a misdemeanor theft or felony. TEX. GOV’T. CODE §62.102

Three of those standards are absolute: if convicted of or under indictment for a misdemeanor theft or felony, or if they are insane they cannot serve. TEX. CODE CRIM. PROC. §35.19. Every other qualification can be waived by the parties. Id. Yup, if everyone agreed you could have a six-yearold on your jury. B. Disqualifications Some things which you would assume would disqualify a juror are actually not disqualifications. A juror is not required to be registered to vote. TEX. GOV’T. CODE §62.1031 Blindness and deafness are not a bar to jury service, unless a judge finds specifically that the disability renders them unfit to serve. TEX. GOV’T. CODE §62.104 & §62.1041 Section 1041 even specifically requires reasonable accommodation for a deaf or hard of hearing juror, allowing an interpreter to accompany a juror during all proceedings and deliberations in a case. Id. Other disqualifications to a specific case include if the potential juror: (1) Is a witness in the case;

(2) Is interested, directly or indirectly, in the subject matter of the case; (3) Is related by consanguinity or affinity within the third degree, as determined by Texas Government Code Section 573, to a party in the case; (4) Has a bias or prejudice in favor of or against a party in the case; or (5) Has served as a petit juror in a former trial of the same case or in another case involving the same questions of fact. - TEX. GOV’T. CODE §62.105 C. Exemptions Aside from disqualifications, there are also exemptions from serving on a jury. A person who is otherwise qualified may establish an exemption if the person is: (1) over 70 years of age; (2) has legal custody of a child younger than 12 that cannot find adequate supervision of; (3) is a student at a public or private secondary school; (4) is enrolled in and in attendance at an institution of higher education; (5) is elected to or employed by the legislative branch of state government; (6) has served on a jury in the last 24 months in a county with a population of at least 200,0000; (7) is the primary caretaker of a person unable to care for themselves; (8) has served on a jury in the last three years in a county with a population over 250,000; or

(9) is a member of the US Military on active duty and deployed out of their county of residence - TEX. GOV’T. CODE §62.106 A person can also establish a temporary or permanent exemption based on physical or mental impairment or an inability to understand English. TEX. GOV’T. CODE §62.109 D. Excuses Everyone wants to do jury service, right? No. And if you haven’t already you will hear some amazing excuses at times. The court is allowed to excuse a juror with a sufficient excuse. TEX. GOV’T. CODE §62.110. While these can be claims of exemption or lack of qualification discussed previously, they don’t have to. The court or their designee may, for any reason except an economic reason, excuse or reschedule any juror who submits a statement of the exemption, lack of qualification, or excuse. Id. Prospective jurors can be excused for economic reasons, but only if each party of record is present and approves the release. TEX. GOV’T. CODE §62.110(c) E. Challenging the Array What do you do if the entire panel was summoned against your client? “Either party may challenge the array only on the ground that the officer summoning the jury has willfully summoned jurors with a view to securing a conviction or an acquittal.” TEX. CODE CRIM. PROC. §35.06. A challenge to the array must be in writing and, if filed by the Defendant, must be supported by affidavit. Id. A challenge to

the array is heard before any other qualification determinations. TEX. CODE CRIM. PROC. §35.06. If sustained, a new array is summoned. TEX. CODE CRIM. PROC. §35.09. F. Seating & Shuffling your Venire All of these qualification determinations are before we even get to talk to our venire. The disqualifications or exemptions are filed with the court or their designee or tested under oath by the court or their designee. TEX. GOV’T. CODE §62.110 & TEX. CODE CRIM. PROC. §35.10. Depending on how your jurisdiction manages their jury summons these qualifications may be done in the courtroom by the judge, in a central jury room, or even online before your potential juror even reports to the courthouse. TEX. CODE CRIM. PROC. §35.03. After qualification questions by the Judge, but before the attorney’s questioning of the venire, either party can request that the jury panel be “shuffled”. The “Jury Shuffle” is not clear from the statute, but very well established in Texas jurisprudence. See TEX. CODE CRIM. PROC. §35.11; Alexander v. State, 523 S.W.2d 720, 721 (Tex. Crim. App. 1975) citing Woerner v. State, 523 S.W.2d 717 (Tex. Crim. App. 1975) “The right to have a jury panel assigned to a case redrawn is clearly provided for in Art. 35.11.” A “Jury Shuffle” may be demanded by either the State or Defense, but only one shuffle is required. Jones v. State, 833 S.W.2d 146, 148 (Tex. Crim. App. 1992 En Banc.). Failure to grant a motion to shuffle

is reversible error, and no harm need be found. Id. Once the venire is qualified, the disqualifications, exemptions, and excuses filed, your jury shuffled and is seated and assuming there is no challenge to array, you may now begin your voir dire. II.

Conducting the Voir Dire

“The paramount concerns of jury selection and the laws governing is the ability for a defendant to exercise their preemptory challenges intelligently.” See Wappler v. State, 183 S.W.3d 765, 772 (Court of Appeals of Texas, Houston 1st Dist.) citing Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1985). “The right to question venire members to exercise preemptory challenges intelligently is an essential part of that Sixth Amendment guarantee.” Id. citing Franklin v. State, 138 S.W.3d 351, 354 (Tex. Crim. App. 2004); see also Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App. 1999) (“[T]he right to pose proper questions during voir-dire examination is included within the right counsel under Article I §10 of the Texas Constitution”). That does not mean there are no limitations on how voir dire is conducted. “Texas trial courts have broad discretion over the jury-selection process. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App 2002). Both the trial court’s discretion and established case law will limit what and how you can question your venire. A. Time Limitations

The first hurdle you may have to get over is how much time you have to question your venire. Although it is unclear why anyone would need more than thirty minutes to question eighty-five people regarding guilt and innocence and punishment in a case involving sexual abuse, DNA, codefendants, and police misconduct some attorneys may find they want more time. Time limits on jury selection deal with two competing rights: the constitutional right to question prospective jurors and a trial judge’s right to impose reasonable restrictions. McCarter v. State, 837 S.W.2d 117 (Tex.Crim.App. 1992) citing Naugle v. State, 40 S.W.2d 92, 94 (Tex.Cr.App 1931); McManus v. State, 591 S.W.2d 505, 520 (Tex.Crim.App. 1979). It’s well established that a trial court can impose reasonable limits on questioning and time. Id. citing McManus v. State, 591 S.W.2d 505, 520 (Tex.Crim.App 1980) (not abuse of discretion to disallow duplicitous question); Clark v. State¸608 S.W.2d 667, 669 (Tex. Crim. App. 1980) (trial court can set reasonable time limits); Abron v. State, 523 S.W.2d 405, 408 (Tex.Crim.App. 1975) (trial court can set reasonable time limits, restrict repetitious or vexatious questions, restrict questions asked in improper form, restrict questions directed at personal habits of jurors). Because it is a balancing of two rights, a trial court’s decision to limit voir dire is reviewed for abuse of discretion. Id. citing Smith, 703 S.W.2d 641, 643 (Tex.Crim.App. 1985). Some time limits are too much. See Eg. Morris v. State, 1 S.W.3d 336 (Tex.App –

Austin 1999) (45 minute time limit in Aggravated Assault case inappropriate); Cartmell v. State, 784 S.W.2d 183 (Tex.App – Fort Worth 1990) (20 minute time limit in DWI unreasonable). The central question is did counsel have enough time to intelligently question the venire? Look a little later in the paper for how to preserve error if your time is cut short. B. Question Limitations In addition to the trial court’s discretion, the Court of Criminal Appeals has defined limits of what questions may be asked during Voir Dire. “A question is proper if it seeks to discover a juror’s views on an issue applicable to a case.” Barajas, at 39 citing Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App. 1987) Questions which would be appropriate can become objectionable when they are either too vague or too specific. 1. Overly Broad With the touchstone of attempting to intelligently strike jurors, either preemptively or for cause, we need to make our voir dire questions specific enough to touch the issues of our case. “[A] trial judge can exercise his discretion to prevent an improperly phrased question from being asked when it threatens to duplicate earlier questions, or presents so broad a question as to constitute a global fishing expedition.” Smith v. State, 703 S.W.2d 641 (Tex.Crim.App. 1985 overruled on other grounds). The Smith case provides great examples of asking too broad or too narrow of questions.

Mr. Smith’s attorney was relying entirely on the insanity defense at trial. Counsel’s question of the jurors about “their thoughts” on the insanity defense was found to be too broad. The Court found that to be a “general topic for discussion” and did not attempt a more restrictive question or direct the question to specific jurors based on prior answers. Id However, counsel’s question to the jury panel of “their idea of punishment” and “what they think its purpose should be” where his client was charged with murder and had filed for probation was proper. Id. Unfortunately Smith was overruled by Easley v. State, which relegated limitations on juror questioning to non-constitutional harm analysis. Easley v. State, 424 S.W.3d 535 (Tex.Crim.App. 2014). Nonetheless craft your questions to the theme and points in your case, and object when the other side does not. 2. Commitment Questions Too tight of a scope of question can draw and objection just as quickly as one that is too broad. Trying to nail a juror down to a specific answer may draw that terrible and confusing objection: a commitment question. What is a commitment question? “Commitment questions are those that commit a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact.” Standfer v. State, 59 S.W.3d 177 (Tex.Crim.App. 2001). Not all commitment questions are objectionable. Id. at 182. To be objectionable a commitment question

must either (1) ask a commitment where the law does not require one or (2) provide facts in addition to what is needed to establish a challenge for cause. Id. a. The Inappropriate Commitment In the first scenario the problem is asking the juror to commit when it’s not appropriate. The question “Can you consider the entire punishment range in a murder case?” is a proper commitment question. However, the question “Can you consider my clients age in mitigation?” is not. A juror cannot be challenged for cause for failure to consider specific mitigation evidence. Raby v. State, 970 S.W.2d 1, 3 (Tex.Crim.App.), cert. denied, U.S., 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998). The key is does a possible answer to the question lead to a valid challenge for cause? Id. In the example above, no matter what the answer is considering your clients age, you cannot challenge the juror for cause. Remember that as long as you’re not seeking commitment, you are not prohibited from exploring any number of issues. Consider these two questions: “Do you believe age can influences a person’s choices and actions?” vs. “Can you consider my client’s age when looking at his actions?” The first question is a information gathering question. It does not demand a commitment. Question two however… b. Committing To Too Much

The second scenario is when the question adds too much to your commitment question. Look at a permutation of our appropriate commitment question on a range of punishment: “Can you consider the entire range of punishment in a murder case when the victim was a clown?” Now we have an additional fact: the identity of the victim. “To be proper, then, a commitment question must contain only those facts necessary to test whether a prospective juror is challengeable for cause.” Standfer, 59 S.W.3d at 182 The Court in Standfer uses the example of the decision in Atkins v. State. There the prosecutor asked prospective jurors if they could convict a person of possession of a controlled substance if the crack pipe in their pocket during arrest had residual amount of cocaine in it. Atkins v. State, 951 S.W.2d 787, 789 (Tex.Crim.App.1997). The additional facts of the arrest, the crack pipe, and the fact that it was in defendant’s pocket “rendered improper what otherwise would have been a proper question designated to assess whether a prospective juror was challengeable for cause. Id. To keep it in perspective then remember it’s ok to ask a juror to commit, as long as the law requires them to. C. Juror Questionnaire Not all examination of the venire has to be done orally. A well-crafted juror questionnaire can not only help with identifying specific jurors you want to zero in on and challenge for cause, but frequently will give you some information on that juror in the back you never got to while you’re doing your strikes.

There is no requirement that a judge allow or include the use of any questionnaire or a specific questionnaire. Remember that the trial court has very broad discretion in conducting voir dire that trial courts are given. Barajas, at 38 (Tex.Crim.App 2002). If you get shut down, make your record as to how your inability to use a questionnaire inhibits your ability to effectively question the venire and exercise your preemptory challenges. Also make the case to your judge that the questionnaire will make voir dire go faster, since you’ll have to ask all those questions in person if you can’t do it on paper. Even if a questionnaire is allowed BEWARE! You cannot rely on a questionnaire alone to challenge for cause. Gonzales v. State, 3 S.W.3d 915 (Tex. Crim. App. 1999). You must follow up with oral questions to establish a jurors answer. “[W]ritten questionnaires, while often helpful tools in conducting voir dire, do not constitute a formal part of the voir dire proceeding.” Gzarza v. State, 7 S.W.3d 164, 166 (Tex. Crim. App. 1999). A questionnaire can be an amazing tool for jury selection but can only go so far. D. Preserving Error What do you do if you feel like your questions were inappropriately excluded, either by time or direct objection? To preserve error concerning the manner of voir dire, the record must reflect a question which the trial court has not allowed to be answered. Caldwell v. State, 818 S.W. 29d 790, 794 (Tex.Crim.App. 1991). It has to more than just a general question. “A

question that is so vague or broad as to constitute a global fishing expedition is not proper, and fails to preserve error because it is impossible for a reviewing court to determine if the question is relevant and property phrased.” Id. The abuse of discretion test for voir dire is three pronged: (1) whether the party attempted to prolong the voir dire; (2) whether the questions that the party was not permitted to ask were proper voir dire questions, and; (3) whether the party was not permitted to examine prospective jurors who actually served on the jury. Ratfill v. State, 690 S.W.2d 597, 600 (Tex.Crim.App. 1985). To preserve the error the reviewing court will need enough information to answer those questions. As a practical matter to do this you will need to identify the person or persons you were unable to question, the specific questions that would have been asked, and that these persons actually served on the jury. This can done either by dictating that information to the court reporter or by filling a bill of exceptions. But be careful! The timeliness requirement of objections requires that the trial court is made aware of objections or complaints at a time when there is an opportunity to cure or respond to the complaints. The “contemporaneous objection rule” is that an objection must be made at the first opportunity to do so. TEX. R. APP.P. 33.1; Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997). Filing your bill of exception or dictating objections after a Jury is sworn will probably be to late. Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991)

III.

Challenging the Juror

Let’s step back and remember why we are asking these questions: to intelligently exercise our peremptory challenges. Smith supra. There are three ways a prospective juror may be dismissed. The first is by agreement of the parties. TEX CODE CRIM. PROC. §35.05. Second is to establish for the court that a potential juror is not qualified. TEX CODE CRIM. PROC. §35.16. Finally, is to use one of the limited number of preemptory challenges afforded each side. A. Challenges for Cause A challenge for cause is established from a juror not meeting the basic qualifications discussed above or by showing some objectionable level of bias or prejudice. The sole finder of fact on the disqualification of jurors is the Judge. “The court is the judge, after proper examination, of the qualifications of a juror, and shall decide all challenges without delay and without argument thereupon.” TEX CODE CRIM. PROC. §35.21 1. Basic Qualifications Any juror may be dismissed for failing to meet one or more of the basic qualifications from the Texas Government Code or Code of Criminal Procedure noted above. “A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.” TEX CODE CRIM. PROC. §35.16(a). Additionally, the State may dismiss any juror within the third degree of consanguinity or affinity of the Defendant. TEX CODE CRIM. PROC. §35.16(b). The

Defendant may do the same for any person injured by the alleged offense, or to any prosecutor in the case. TEX CODE CRIM. PROC. §35.16(c). Remember that with the exception of having a pending misdemeanor theft or felony, being convicted for one, or being insane any juror disqualification can be waived. TEX CODE CRIM. PROC. §35.19; Mayo v. State, 4 S.W.3d 9, 12 (Tex.Crim.App. 1999). And even past insanity may not be enough! See Carter v. State 278 S.W.840 (Tex.Crim.App. 1925). In Carter the Defendant found out after the trial that one of his jurors “had been duly adjudged a lunatic and confined in the insane asylum at Terrell…” Id. However, because there was no objection, and because the court did not clearly abuse its discretion in judging the juror sound of mind, there was no error. Id. You must lodge an objection to preserve an error for appeal. 2. Bias or Prejudice In addition to the qualification issues for each juror “a prospective juror is challengeable for cause if he or she has a bias or prejudice against the defendant or against the law upon which either the State or the defense is entitled to rely. Buntion v. State, 382 S.W.3d 58, 83 (Tex.Crim.App 2016) citing TEX CODE CRIM. PROC. §35.16(a)(9) & (c)(2); Gardrner v. State, 306 S.W.3d 274, 295 (Tex.Crim.App. 2009) A prospective juror is disqualified if their bias or prejudice would substantially impair their ability to follow their oath to uphold the law. Id. citing Wainwright v. Witt, 469 U.S.412, 424 (1985).

Bias does not have to be proven with unmistakable clarity. Id. For a prospective juror to be excused for cause the law must be explained to them, they must understand the requirements of the law, and they cannot overcome their prejudice well enough to follow the law. Davis v. State, 329 S.W.3d 789, 807 (Tex.Crim.App. 2010). The proponent for the challenge for cause has the burden to show their challenge is proper. See, e.g., Howard v. state, 941 S.W.2d 102, 128 (Tex.Crim.App. 1996); Harris v. State, 784 S.W.2d 5, 25 (Tex.Crim.App. 1989). The flip side of a direct answer establishing bias is an evasive or vacillating venireman. Getting different answers, or having a juror who is unable or unwilling to say that they can follow the law is a basis for cause. Riley v. State, 889 S.W.2d 290, 300 (Tex.Crim.App. 1993). The central test for juror bias isn’t whether a person is influenced by their background or pre-conceived notions. If a prospective juror is consistent that they can put aside bias, even if it would be difficult or “violate their moral conscious”’, they are not challengeable for cause. Id. The test if they are unwilling or unable to follow the law. Id. Remember the foundation of who is making the final decision. The trial court is given extreme deference since they are “in the best position to evaluate a venire member’s demeanor and responses.” Colburn v. State, 966 S.W.2d 511, 517 (Tex.Crim.App. 1998). An appeals court will review all the evidence for a challenge for cause, and only reverse on a clear abuse of discretion. Davis, 329 S.W.3d at 808.

3. Rehabilitating Jurors Once a potential juror reveals a bias or prejudice can they be brought back from being caused? The answer is maybe. The general rule is that once a bias or prejudice is established, the juror must be dismissed. TEX. GOV’T. CODE §62.105(4); TEX CODE CRIM. PROC. §35.16(a)(9). It is not discretionary. The previous rule was once established, a juror could not be rehabilitated. Sullemon v. US Fidelity & Guaranty Co., 734 S.W.2d 10, 14 (Tex.App – Dallas 1987, no writ). Even if a juror is “rehabilitated through the efforts of counsel or the court by stating that he would decide the case on the evidence and could be fair to both sides, the trial court must excuse the juror.” White v. Dennison, 752 S.W.2d 714 (Tex.App. – Dallas 1988) citing Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex.App. – Corpus Christi 1984, no writ). While not specifically overruling that standard, the Texas Supreme Court in 2005 essentially left the determination with the trial court’s discretion. Cortez ex rel. Estate of Puentes v. HCCI – San Antonio, Inc. 159 S.W3d 87 (Tex. 2005). In disapproving of the hard and fast rule of no rehabilitation, the Supreme Court in Cortez held that “trial courts exercise discretion in deciding whether to strike venire members for cause when bias or prejudice is not established as a mater of law, and there is error only if that discretion is abused.” Id. at 92. “If the initial apparent bias is genuine, further questioning should only reinforce that perception…” Id. at 93.

4. Preserving Error So what to do if the Judge denies your perfect challenge for cause? “To establish harm for an erroneous denial of a challenge for cause, the defendant must show on the record that he used a preemptory strike to remove the venireperson and thereafter suffered a detriment from the loss of the strike.” Buntion v. State, 482 S.W.3d 58 (Tex.Crim.App. 2016). Preserving error in jury selection is a five step process: 1) make a clear and specific challenge for cause; (2) use a preemptory challenge on the complained of venire; (3) exhaust your preemptory challenges; (4) request and be denied additional strikes; and (5) identify an objectionable juror you were forced to accept. Id. citing Chambers v. State, 866 S.W.2d 9, 22 (Tex.Crim.App. 1993). Make a cheat sheet. Check your list. Don’t skip your steps. B. Peremptory Challenges Juror number twelve is giving your client the stink eye, but knows how to answer all of your brilliant cause questions and not get kicked. What to do? Bring out the peremptory challenge. “A peremptory challenge is made to a juror without assigning any reason therefor.” TEX CODE CRIM. PROC. §35.14. These are your strikes to dismiss jurors who are not otherwise disqualified. 1. How Many You Get and How To Get More The number of challenges given to each side is governed by level of offense being tried. A capital case receives fifteen strikes,

non-capital felonies ten, misdemeanors tried in District Court five, and misdemeanors tried in the County Court, or County Court at Law, three. TEX CODE CRIM. PROC. §35.15. If two or more co-defendants are tried together a capital defendant receives eight strikes, non-capital felony six, and misdemeanors three each. Id. The State then receives equal strikes (eg. two defendants with three strikes each equals six strikes for the State). Id. If alternate jurors are to be used, both the State and Defense get one additional peremptory challenge if one or two alternates are to be used, two additional peremptory challenges if three or four alternates are used. TEX CODE CRIM. PROC. §35.15(d). Those additional strikes can only be used on alternates, and your other strikes cannot be used on alternates. Id. Additional peremptory strikes are discussed above with challenges for cause. An additional peremptory strike is granted to allow the judge “the opportunity to correct his error by granting additional peremptory strike to make up for the one that was wrongfully denied.” Comeaux v. State, 445 S.W.3d 745, 751 (Tex.Crim.App. 2014). Rule of thumb, you’ll never get more if you don’t ask. 2.

Discriminatory Use (Batson)

Peremptory challenges are used any way one wants to, within limits. Either party “may strike any member of the venire panel for any reason (except a prohibited reason such as race or sex) or no reason at all.” Id. at 749. Strikes based on gender or race violate the equal protection clause of the

fourteenth amendment. Batson v. Kentucky, 476 U.S. 79 (1986); Ladd v. State, 3. S.W.3d 547, 563 (Tex.Crim.App. 1999 overruled on other grounds). To establish a Batson challenge the party objecting must make a prima facie showing of discriminatory motives behind peremptory strikes. Herron v. State, 86, S.W.3d 621, 630 (Tex.Crim.App. 2002). Strikes in a pattern against a specific race or gender, along with statements during voir dire may support or refute the inference of a discriminatory purpose. Batson, at 97. If the court determines a prima facie showing of discriminatory use of peremptory challenges the burden shifts to the other party to provide a discriminatory neutral explanation for the use of their challenge. Id. The trial court will then make a determination if intentional discrimination has been shown. Id. The trial court must consider the entire record. Watkins v. State, 245 S.W3d 444 (Tex.Crim.App. 2008). The final determination is a fact question, and the trial court is given extreme deference in their findings. Id. In addition to race, gender cannot be the basis for exclusion from jury service. JEB v. Alabama, 511 US 127 (1994); Fritz v. State, 946 S.W.2d 844 (Tex. Crim. App. 1997). Not all classes are protected from a biased peremptory strike. Batson’s foundation is equal protection analysis. Harkening back to law school days, some classes and groups receive more protection than others. “A violation of the Equal Protection Clause may occur when the government discriminates

against the members of a class of individuals who have historically suffered discrimination, i.e., a “suspect” class, or when the government impairs the members of a class from exercising a fundamental right.” Casarez v. State, 913 S.W.2d 468, 473 (Tex.Crim.App. 1995). Equal protection analysis does not apply to peremptory challenges of prospective jurors on the basis of religion. Id. at 472-74. Striking a juror for age is not prohibited. See Gerber v. State, 845 S.W.2d 460, 465 Tex. App.—Houston [14th Dist.] 1993, pet. ref’d.) While a juror may not be dismissible simply because of their disability, a rational explanation stemming from a disability is not prohibited. US v. Harris, 197 F.3d 870 (7th Cir. 1999) (Dismissal of a juror with multiple sclerosis was proper due to medication making her tired). The prohibition against peremptory challenges based on race is codified at TEX. CODE CRIM. PROC. §35.261. But don’t stop just at race. Batson does not apply to a challenge for cause. When a potential juror cannot follow they law, they can be precluded from jury service. See Staley v. State, 887 S.W.2d 885 (Tex. Crim. App. 1994). If however there is a discriminatory purpose behind the use of preemptory challenges it must be rationally related to a legitimate governmental interest. Casarez, at 474. Watch how voir dire is conducted and preserve that discriminatory challenge if it appears to be harming your client. IV.

Conclusion

So how do you do this? That is a question of style and far beyond my area to lecture

on. If by the Colorado Method or psychodrama, rhetorical or scaled questions, lecture or looping every person has their own style. If I have learned anything it’s that while you can learn from every attorney you watch you cannot be any of them. You need to find your style. But while you’re doing that keep the central tenants in mind: 1) The trial court is going to make the ultimate determination with wide deference. 2) The exclusion of a juror isn’t because they have a bias or prejudice, but because they cannot put it aside and 3) harm for appeal only comes about if you have an objectionable juror on your case either because you had to waste a peremptory on anther, or got cut off and didn’t get to question that objectionable juror. The rules of voir dire are not short and sweet. And every voir dire should be different for every case. Set your theme, convey your foundations, and seek out the jurors sympathetic to your case. It is the court’s job to find a neutral and unbiased jury. It is ours to advocate for our clients.

Clifford P. W. Duke

Dallas County Public Defenders Office

cduke@dallascounty.org

What Are We Going To Talk About Today

BASIC QUALIFICATIONS

PROCEDURAL

LIMITATIONS

QUESTION LIMITATIONS

CHALLENGING & REHABILITATING JURORS

PREEMPTORY CHALLENGES

Texas Government Code Chapter 62 Texas Code of Criminal Procedure Chapter 35

EXEMPTIONS & EXCUSES

TEX. GOV’T. CODE §62.105

TEX.CODE.CRIM. § PRO 35.16

Waiver of Objections

The Shuffle

TEX. CODE CRIM. PROC. §35.11

Time Limits “Time limits on jury selection deal with two competing rights: the constitutional right to question prospective jurors and a

trial judge’s right to impose reasonable restrictions.” McCarter v. State, 837 S.W.2d 117 (Tex.Crim.App. 1992)

Questionnaires

Not to Broad Not to Specific

Commitment Questions

Preservation of Error

Challenges For Cause

- Basic Qualifications

- Bias or Prejudice

Rehabilitation

Peremptory Challenges

Obtaining More Challenges

Limits on Peremptory Strikes

– Batson v. Kentucky

Thank You! Clifford P. W. Duke 133 N. Riverfront, LB2 Dallas, TX 75247 214-875-2319 cduke@dallascounty.org

Criminal Defense Lawyers Project

Battling the Resistance July 9, 2021 310 Padre Boulevard South Padre Island, TX

Topic: Controlling the Perceptions: (Experts)

Speaker:

Jolissa Jones

1923 Blodgett St Houston, TX 77004 (346) 571-1852 phone (713) 520-7000 fax jolissa@thesparkslawfirm.com

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

IS THERE A DOCTOR IN THE HOUSE? How the Use of Experts Helps Shape Your Story JoLissa Jones INTRODUCTION We have all seen the dramatic moments on TV and in movies where someone faints in the food court, has an episode on a plane, or gets inured in a crowd. Inevitably, a bystander will yell, “IS ANYONE A DOCTOR?” And, of course, it makes perfect sense. When there is an emergency, we look to those who are learned, qualified, and trained to make better and more informed observations and decisions than we would be able to. In the instance of a criminal case, this is also true. A criminal prosecution is an emergency that can lead to the loss of life and liberty of our clients. Often, it is the most severe emergency that some of our clients have ever faced. Luckily, our clients have us. Eager, competent, and dedicated attorneys who know the law. However, a criminal prosecution is a complicated matter. Rarely is the journey from arrest to disposition a straight line with no bumps in the road. Criminal defendants are often complex humans who find themselves in complex situations. An extra set of eyes and multiplied brain power can often be the key to a better resolution for our clients. That’s where experts come in. In our representation of our clients, we should seek to leave no stone unturned when it comes to crafting the right defense or compelling mitigation. An expert gives us an opportunity to discover issues we didn’t know were there or widen the lens focused on a defendant that results in compassion and justice in sentencing. The use of experts has value that cannot be overstated. WHY DO I NEED AN EXPERT?

Of course, you’re great at what you do. Many a case has been resolved without the use of an expert! That’s true! On the other hand, what might have happened in some of those more difficult cases if you had an investigator to find more witnesses or collect affidavits? What if a cellular data expert could show how incredibly flawed the state’s evidence was? There are countless situations in which an expert can be helpful, both in the background and foreground of your case. When a client walks into your office or when you first meet them after being appointed, they often tell you their most polished version of their story. The one that has enough truth to convey the general sequence of events and makes them look like they have the least culpability possible. It is human nature to put our best foot forward. As time goes on, the walls start to come down and hopefully we build relationships with our clients that allow for us to get a fuller picture of the facts. In this case, an investigator can be helpful in speaking to complainants, witnesses, and law enforcement. Experts can also help in obtaining security footage, affidavits, and securing records. Of course, investigators aren’t the only experts that are helpful. There are countless types of experts who can assist in the early stages of a case that will set the path of the litigation. Consider a defendant charged with Driving While Intoxicated. The prosecutor sees the offense report and the results of the breath or blood sample taken from the defendant and makes their decisions based on that information. Here, an independent scientist may be able to look at the records from the lab, calibrations of the breath testing machine, whether the nurse who drew the blood used the proper procedures to open pathways to challenge the results before the case is anywhere close to being before a jury. This is especially true in a time where many District Attorney’s offices are understaffed and overworked and prosecutors do not have the time to

evaluate each of their cases thoroughly. They miss things. Hiring experts helps ensure that the defense does not miss those mistakes. Even if the use of an expert cannot help you avoid trial, enlisting the help of an expert can ensure that you get to trial knowing every weapon you have in your cache to secure justice for your client. Consider a situation where the prosecutor will not listen to reason or negotiate with you regarding an offer for your client. Experts who specialize in the particular details of your case can ensure that when it comes to cross-examining the state’s witnesses or making motions regarding the evidence, you are prepared and educated in how to handle them. Once the case is going to trial, the assistance of experts cannot be understated. It is one thing to prepare reports or advise on strategy and quite another to testify to the judge or jury about the work behind the opinions. Think of popular shows like Law & Order, CSI, Bones, or House. The rise of shows like these have tremendously influenced how the people that make up juries process information. Watching the process play out in these media, no matter how different it is from reality, also changes what kind of evidence people expect to see presented and who they trust. When someone’s behavior needs to be explained, a congenial and knowledgeable psychiatrist can humanize your client and make the behavior at the center of the case understandable if not excusable. When challenging the plausibility of the state’s facts, scene reconstruction experts can physically show that your client could not have done what the state says they did. When there is a guilty verdict, a mitigation expert can run down the litany of factors that makes your client human, not a monster, worthy of mercy and justice in regard to their own trauma. Experts assist with big picture of criminal defense. They are often a big part of the heart and soul of a defendant’s case.

WHAT KIND OF EXPERT DO I NEED? If you seek, you shall find. There is an expert for everything. From blood spatter to street gangs to eyewitness identification, if you need it, it’s out there. If there is a niche issue you need explored, it is almost guaranteed that someone has made that particular thing their area of expertise. That being said, the most basic experts integral to any case are investigators and mitigators. Investigators are the “boots on the ground” when it comes to working up a case. Investigators spot potential witnesses in offense reports, visit scenes, interview necessary parties, and can even testify. Finding an investigator that aids your preparation and understands your methods is incredibly important. Investigators also often have connection and contacts within organizations to aid in getting access to records or media that would otherwise be cumbersome. In regard to mitigation, finding someone to gather and conglomerate mitigating evidence is of the utmost importance. Mitigation is important in any case, but whether an expert is needed is a matter of preference and judgment. A misdemeanor possession of marijuana case may not require an expert; character letters and other mitigation items provided by your client or his or her family may be enough to negotiate with the state. In any case that may be heading to trial or sentencing by way of Pre-Sentence Investigation or plea agreement, mitigation experts are trained to gather all of the records and documentation needed to paint the full and colorful picture that represents your client. Their assistance is invaluable and undoubtedly saves lives. Complicated issues necessitate more complex solutions. As a result of review of the case or the investigation done by your investigator, issues may arise with fundamental evidentiary elements in the case. Bullet trajectory, blood spatter, cell data dumps, or drug analysis may

become issues. While a good attorney may be prepared to fight fourth amendment violations or raise Daubert challenges, an expert is required to explain the more minute details of the evidence. Consider the case of Noel Dean. In 2007, Mr. Dean’s wife was found dead in the bathroom of their home. Mr. Dean was immediately the primary suspect in her killing, and the medical examiner subsequently ruled the death of Mr. Dean’s wife, Shannon, a homicide.1 After a mistrial in his first case, Harris county tried him again. This time, defense counsel retained an expert to review the evidence and assist in Mr. Dean’s defense. The expert found that the bruising and “tattooing” left behind at the entry wound was consistent with a self-inflicted wound. An officer had attended the autopsy and told the medical examiner his theory of the case and what the officer hoped the autopsy would show. As a result of this excellent work, Harris County’s Medical Examiner changed his testimony while on the stand, and the District Attorney’s Office dismissed the case against Mr. Dean, finally freeing him to properly mourn his wife. Mr. Dean got his life back thanks to the hard, keen-eyed work of defense counsel and a team of experts. The issue of tattooing as a result of a gunshot wound is something that could easily be missed by someone who simply doesn’t know what they don’t know. This is why experts are so incredibly important to the resolution of cases where the literal lives of defendant’s are on the line. Our life experience, training, and connections cause all of us to see the world slightly differently. Just as we often consult our colleagues on novel issues or have them proofread our briefs to find mistakes we cannot see; experts provide that in a way that cannot be quantified.

Dean v. Phatak, No. 16-02650, http://www.ca5.uscourts.gov/opinions/pub/16/16-20650-CV0.pdf.

Failure to employ the proper expert leaves cards on the table and our clients insufficiently represented.

HOW DO I FIND EXPERTS? Google it. No, really. Google is the easiest way to find people who have the particular credentials you are looking for in a case. Notably, a Google search will show thousands of results of varying relevance, but if starting from scratch it is a relatively easy way to come up with a list of experts to investigate further. This is a simple method, but it is by no means the most efficient method. Use your resources! Word of mouth serves so many purposes in our profession. From informing us about the judges in our courthouses to finding an attorney to sponsor your pro hac vice, lawyers like to share the wealth. If you belong to social media groups for attorneys, ask there. If you hear of any interesting cases in the courthouse, talk to the attorneys to see what experts they used and if they’d recommend them going forward. Finally, make use of the resources afforded to you by your professional membership organizations. TCDLA’s listserv is teeming with wonderful advice and recommendations. Occasionally, an attorney will post with their results and the name of the expert that secured victory for them. Other times, attorneys will ask colleagues for help in finding an expert for a particular issue and TCDLA members are always willing to help. This is also another avenue in which your investigators or mitigation experts can assist with. As the “generalist” experts typically on a case, many investigators and mediators have worked with other experts in more specialized fields on cases and can make recommendations.

So, you have your list of potential experts. Now how do you choose one? Choosing an expert depends on the delicate balance of scope & quality of the work done and the communication skills of the expert. If the expert will need to testify at trial, it may be prudent to choose an expert who is more limited in scope but can convey the most relevant issues to the jury better. Where the expert is merely preparing a report for presentation to the judge, charisma and likeability is less of a factor. Of course, more than likeability or charisma, your expert must be trustworthy. The jury needs to buy-in and follow what the expert is trying to tell them. The last thing you need when fighting for your client’s life is an expert who is too professorial and drones on like the adults in a Peanuts cartoon. Meet with the expert and see how they might be perceived. When making initial contact, ask if they have any trials approaching and do your best to observe them in their element. Make sure that they are the best person for the job before you hire them.

HOW DO THE EXPERTS GET PAID? There is no doubt about it, experts and expert testimony is expensive. It often costs money that clients simply do not have, but it is clear from the facts of the case that an expert is necessary for the just resolution of your client’s case. This is a difficult part of being an attorney, realizing that there may be a way to preserve your client’s freedom, but they do not have the funds to pay for it. In cases like these, there is Ake v. Oklahoma.2 In Ake, the Supreme Court held that indigent defendants are entitled to the same experts employed by the state and, like attorneys, if the defendant cannot afford to hire an expert one can be provided to them. Even if the attorney

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

on the case is hired, this does not prevent the court from providing funds to hire an expert on the case if it can be shown that the defendant has exhausted all of his or her resources and cannot afford to pay for expert assistance our of pocket. Ake practice can be tricky. A significant factor in whether your motion is granted or denied is where you’re practicing and the presiding judge. Smaller counties tend to have tighter purse strings, some judges will grant these motions liberally, others will make you jump through hoops. Though it can be difficult, the challenge is worth it to attempt to secure an expert for your client. As an important note, some counties will grant these motions and appoint a particular expert. Fight this to the best of your ability to ensure that the expert chosen for your case is as detached from the state if possible. If a motion for funds is not an option where you practice, make sure the client knows that there is an extra cost incurred if experts are needed. You could also take the potential need for expert testimony into consideration when setting fees and taking consultations. Clients don’t often like to hear that the things they need to get their case handled will cost them extra money, but it is important that they know the right expert could be the difference between living in freedom and losing their liberty to the government. CONCLUSION Proficient experts can be the difference between a conviction and dismissal. Competent expert testimony can be enough to create reasonable doubt. Making sure to hire competent experts is an investment that pays incredible dividends when used effectively. The stories of our clients are of the utmost importance. Always be sure to use the best tools to tell it.

Is There a Doctor on Board? How the use of experts help to tell your client’s story.

How juries evaluate evidence Foreground and Background Support

Changing Perceptions

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2 Visit the Scene

3 Use an investigator

4 Ask your client

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Criminal Defense Lawyers Project

Battling the Resistance July 9, 2021 310 Padre Boulevard South Padre Island, TX

Topic: When the Finish Line is in Sight: (Closing Arguments)

Speaker:

Matthew Allen 310 S. St. Mary's St. #965 San Antonio, TX 78205 (210) 413-0195 phone (210) 209-8143 fax mtallenlaw@gmail.com www.mattallenlaw.com

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

CLOSING ARGUMENTS: THE BEGINNING OF THE END

MATTHEW T. ALLEN, San Antonio Law Office of Matthew Allen

Texas Criminal Defense Lawyer’s Association BATTLING THE RESISTANCE October 16, 2020 Corpus Christi

MATTHEW T. ALLEN LAW OFFICE OF MATTHEW T. ALLEN 310 S. ST. MARY’S ST. #965 SAN ANTONIO, TEXAS 78205 TEL. 210-413-0195 / FAX 210-209-8143 MTALLENLAW@GMAIL.COM My name is Matthew Allen. I was born in California but raised in San Antonio, Texas where I went to UTSA and St. Mary’s. I participated in the criminal clinic in law school and graduated Magna Cum Laude. I went straight in defense work after school. I started practicing in 2013 and have tried over 50 cases and done about 20 appeals as a defense attorney. I’m the Treasurer and Editor of the Defender Magazine for the San Antonio Criminal Defense Lawyer’s Association. I am married to a wonderful woman, Abby, who allows me to basically live at the office during trial. We have a three-year-old son nicknamed Whomper and are expecting our second child, Maizy, any day now.

TABLE OF CONTENTS THE BEGINNING OF THE END……………………………………………………………………………………………………..4 THE STATUTORY AUTHORITY….………………………………………………………………………………………………….4 HOW TO PRESERVE ERROR…….………………………………………………………………………………………………….4 PROPERLY OBJECTING DOES NOT MEAN AUTOMATIC REVERSAL……………………..……………………….4 OBJECTIONS TO MAKE AND AVOID…………………………………………………………………………………………….4 ARGUING OUTSIDE THE RECORD…………..………………………………………………………….……………5 NO UNSWORN TESTIMONY…………………..………………………………………………………….……………5 COMMENT ON DEFENDANT’S FAILURE TO TESTIFY…………….…………………………….……………5 PUTTING JURY IN SHOES OF VICTIM……………………………………………………………………………….5 BURDEN SHIFTING………………………………………………………………………………………………………5-6 NONTESTIMONIAL BEHAVIOR……….……………………………………………………………………………….6 STRIKE AT DEFENDANT OVER COUNSEL’S SHOULDERS……………………….………………………….6 COMMUNITY EXPECTATIONS………..……………………………………………………………………………….6 PUTTING IT ALL TOGETHER…….………………………………………………………………………………………………….6 FAIL TO PREPARE AND PREAPRE TO FAIL……………….………………………………………….………..6-7 CONNECT WITH THE JURY………..…………..………………………………………………………….……………7 MAKE YOUR CLOSING UNIQUE TO YOUR CASE…………..…………………………………….……………7 TELL A CAPTIVATING STORY AND GRAB A SECOND CHAIR…………..…..……………….……………7 YOU ARE A LONE RENEGADE…EMBRACE IT…………..……………………………………….……………7-8

CLOSING ARGUMENTS

THE BEGINNING OF THE END You have made it to the end of your case. Your focus is on: what was proven; what was not proven; and how to best present a compelling summary of the trial to your jury. Of course, these are important things to consider but we must not forget the legal rules of closing arguments whether it is statutory or via case law. This paper will focus mostly on these sometimes forgotten aspects of closing arguments. THE STATUTORY AUTHORITY The United States Supreme Court was clear that you have a Constitutional right to a closing argument, even in a bench trial.1 This is granted by the Sixth and Fourteenth Amendments to the United States Constitution. HOW TO PRESESRVE ERROR As with every case and every objection, we have to think quickly whether to object and preserve the error or simply let something go to avoid bringing undue attention to it. But if you want to object properly and preserve error, follow these two rules: 1. Make a specific objection. An objection of “improper argument” is too general.2 2. AND pursue that an objection until you receive an adverse ruling.3 PROPERLY OBJECTING DOES NOT MEAN AUTOMATIC REVERSAL After you have made your proper objection, the Courts of Appeals will review if the improper argument(s) by the prosecutor affected the substantial rights of the defendant.4 Courts have continually held that even a properly preserved error does not affect a defendant’s substantial right when there is a "fair assurance that the error did not influence the jury, or had but a slight effect."5 Courts will review ‘the entire record including testimony and physical evidence, the nature of evidence supporting the verdict, the character of the error and how it is considered in conjunction of other evidence, the jury instructions, the State’s theory and any defensive theories, voir dire, and closing arguments.’6 OBJECTIONS TO MAKE AND AVOID This next section will focus on objections you can make against and things you may hear from the prosecutor and things for you to consider when crafting your closing as to avoid being objected to in your closing argument. 1. Arguing outside of the record: You must keep your closing argument condensed to the following or else you open yourself up to an objection: a. Summarize the evidence from the trial; 1

Herring v. New York, 422 U.S. 853, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). See Hougham v. State, 659 S.W.2d 410 (Tex. Crim. App. 1983). 3 Tex. R. App. 33.1. 4 King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). 5 Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). 6 Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). 2

b. Make reasonable deductions from the evidence at trial; c. Answer argument of opposing counsel; AND d. Plea for law enforcement.7 2. No unsworn testimony: Neither side can argue their personal opinion as it is unsworn testimony. a. State personal opinion about a topic or subject. i. This is usually done to talk about the veracity of a witness such as “Ms. Smith was the most honest witness.” ii. Another example is when a prosecutor stated Defendant states or alludes that a witness was scared of the defendant, absent evidence, or that the defendant is “scary.”8 This was held to be harmless error because the prosecutor didn’t emphasize the comment or elaborate on it and the verdict was much more likely based on the strength of the case of than the comment by the prosecutor. 3. Comment on Defendant’s failure to testify – As defense attorneys, we have to listen carefully to everything but especially to a prosecutor who crosses the line and violates a Defendant’s 5th Amendment right against self-incrimination and the right to remain silent. a. This is not only a statement such as “he didn’t testify.” It can include arguing that the Defendant did not express any sympathy or remorse.9 Even when the Defendant has invoked their 5th Amendment privilege during the investigation, a prosecutor will argue that by “not saying” a response, that is evidence of guilt such as when a Defendant was asked consuming alcohol and had no response.10 4. Putting jury in shoes of victim – It can be a powerful tool to be able to have the jury put themselves in the shoes of a party such as when we ask them to put themselves in the shoes of the defendant during a self-defense argument. But this type of argument is improper when the prosecutor does this such as asking how the jury would feel if this happened to them.11 5. Burden Shifting – Another area ripe for objections is when the Prosecutor attempts to shift the burden to the defense. a. This typically happens when implying or saying the defense has a burden to prove anything, other than the exception for affirmative defenses. You should be careful that you can open yourself up to a proper argument about shifting the burden to produce evidence such as if you make an argument but fail to produce 7

Tex. R. App. 44.2(b); See Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019). See Johnson v. State, 662 S.W.2d 368, 369 (Tex. Crim. App. 1984); Kelly v. State 463 S.W.3d 256 (Tex.App.— Beaumont, 2015). 9 Caldwell v. State, 818 S.W.2d 790, 800 (Tex. Crim. App. 1991) 10 Friend v. State, 473 S.W.3d 470 (Tex.App.—Houston 1st, 2015) (pet. ref’d). 11 Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985). 8

any evidence to back up that argument that could have been made other than with testimony from the defendant. For instance, the defense argued the defendant was a model prisoner and the prosecutor argued they failed to produce “a shred of documents” that would support that theory.12 This argument was proper as it could have been produced from evidence outside of testimony from a defendant. Id. 6. Nontestimonial behavior – It can be proper or improper to argue nontestimonial behavior depending on where that nontestimonial behavior comes from during the trial. a. If it is from the witness stand then it is proper argument as you are allowed to argue the credibility of witnesses, even if it is the Defendant who testified. b. If it is from the Defendant’s seat and not when he testifies, this is improper argument about nontestimonial behavior.13 7. Strike at defendant over counsel’s shoulders – Sometimes a prosecutor argues outside of the record and attacks not only the Defendant, but attacks defense counsel. Although the classic line of ‘if you don’t have the law, argue the facts and if you don’t have the facts, argue the law and if you don’t have either, argue everything.’ Although that example is not objectionable14, here are some examples of objectionable attacks are: a. He gets paid to defend him or think he’s innocent. b. They want to divert from the truth.15 c. Defense counsel stood up here and lied to you.16 d. Argue law or facts or if you don’t have either, argue anything 8. Community expectations – Although a prosecutor can argue and plea for our community to enforce laws, they cannot tell the jury that the community demands a certain sentence or verdict.17 ‘ PUTTING IT ALL TOGETHER Now that you are prepared to make and meet objections, you need to actually prepare and make an effective closing argument. 1. FAIL TO PREPARE AND PREPARE TO FAIL If you are waiting until the end of your case to start preparing your close, you are behind. At the beginning of your case, take a sheet of paper just for points or statements made that you can use during your closing argument. This can be the very first thing said by the State in voir dire until their last statement in closing.

Bible v. State, 162 S.W.3d 234, 249 (Tex. Crim. App. 2005). Cole v. State, 2014 Tex. Crim. App. Unpub. LEXIS 607; Good v. State, 723 S.W.2d 734, 736 (Tex. Crim. App. 1986). 14 Coble v. State, 871 S.W.2d 192, 203-204 (Tex. Crim. App. 1993). 15 Mosley v. State, 983 S.W.2d 249, 248-59 (Tex. Crim. App. 1998). 16 Brown v. State, 270 S.W.3d 564, 571-72 (Tex. Crim. App. 2008). 17 Porter v. State, 154 Tex. Crim. 252, 226 S.W.2d 435 (Tex.Cr.App.1950). 13

2. CONNECT WITH THE JURY Hopefully you have started forming a connection in voir dire. Review those notes from voir dire to help tailor your closing argument to reintroduce and remind the jury what they thought was important. For instance, if a juror stated that an intoxicated person would be “swaying” or “slurring,” you should circle back to that; “Mr. Jones, you stated that an intoxicated person would be swaying and slurring but you did not hear any testimony about that or see it in the video.” It shows that you were listening and makes the juror feel empowered that they are correct to say your client is not-guilty. 3. MAKE YOUR CLOSING UNIQUE TO YOUR CASE Of course, you will reuse the same concepts and ideas but create a new closing argument for each case. This is especially true if you are using powerpoint. It’s critical you go through the powerpoint presentation and tailor it to your facts. You cannot take someone else’s closing argument and copy it exactly. You need to create a closing argument that you truly believe and fits your case or else the jury is not going to believe it. 4. TELL A CAPTIVATING STORY AND GRAB A SECOND CHAIR Steven Spielberg once said, “The most amazing thing for me is that every single person who sees a movie, not necessarily one of my movies, brings a whole set of unique experiences, but through careful manipulation and good storytelling, you can get everybody to clap at the same time, to hopefully laugh at the same time, and to be afraid at the same time.” Each of your jurors has their own unique point of view and circumstances that will affect how they view your case. But if you can tell a compelling, provocative, and succinct story, your jury will be captivated and can truly feel what your client is feeling. Personally, I like to break up my closing argument into two segments; one to focus on the fine points using reason and logic with the second to end my closing with an emotionally compelling story. If possible, I would try to break-up the closing between you and your trial partner. I typically try and get a person who has a different style than myself. I prefer to use powerpoint and take it step-by-step or point-by-point with my partner telling the story to finish it up. If this isn’t possible or you prefer to do it yourself, I would suggest using powerpoint for the first part and then you put that powerpoint away so the jury focuses and hangs on every word of your provocative story. I had a partner give a short closing argument that told the story from our clients perspective in a self-defense case; the jury was captivated and they reported they could see themselves from the eyes of our client. 5. YOU ARE A LONE RENEGADE…EMBRACE IT “To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.” Clarence Darrow spoke those words and it is easy to feel like this when defending your client against the State of Texas or United States of America. Make sure the jury knows your client is a human being with a name. Refer to them as Joe or Marcy, not “my client” or “the defendant.”

Embrace this challenge! Embrace your fear! And know that if your hand trembles in front of the jury or you take a moment to gather yourself, the jury is going to see that you care and that you’re human.

7/16/2021

WHEN THE FINISH LINE IS IN SIGHT: CLOSING ARGUMENTS MATTHEW T. ALLEN

MATTHEW T. ALLEN • Practicing in San Antonio since 2013 • Tried over 50 cases to verdict • Written over 20 briefs on appeal • Board of Directors for TCDLA and SACDLA • Treasurer for SACDLA and editor of Defender Magazine

7/16/2021

PREPARE YOUR CLOSE FROM MINUTE ONE • Have a theme for your case BUT be prepared to modify it • The Hickey Defense

• Start in voir dire • Even use the prosecutors words against them • The duty of a prosecutor

• Have your “Closing Points” sheet ready • Extremely Helpful if you’re short on time

CONTENT FOR CLOSING • Voir Dire – circle back • Theme – hopefully that started in voir dire and opening • Favorable Points • Unfavorable Points • Arguments of the State • The Law that Applies – Judge _____ instructs you

7/16/2021

CONNECT WITH THE JURY • Pay attention in voir dire and use their ideas and words • Make them commit to you in voir dire • I DON’T KNOW = NOT GUILTY

• Use their names • Look them in their eyes • START STRONG!!! DO NOT BE A ROBOT

STEAL IDEAS BUT MAKE THEM YOUR OWN • You can steal ideas from other attorneys BUT YOUR closing argument needs to be YOURS

• Practice your closing argument • Tailor each closing argument to your case

7/16/2021

TELL YOUR STORY • Give the jury your story of what happened • Make it compelling and dramatic • Be complete but succinct – do NOT just talk to take up the time • BELIEVE YOUR STORY OR NO ONE ELSE WILL

GIVE THE JURY MULTIPLE LOOKS • If possible, get a second chair to split up closing • Even if only for a few minutes

• Try to give different, but complimentary styles • Try to use powerpoint or visuals for some of the argument • If possible, call out what the prosecutor is going to do

7/16/2021

USING POWERPOINT • It is not a substitute for your closing • Use it for a purpose • Use technology to “WOW” the jury

7/16/2021

WHAT DID VERONICA VICTIM TELL YOU AUGUST 1, 2020

JUNE 2, 2021

• He took my phone and I couldn’t call

• I had my phone but was scared to

police

• This was the first time • He hit me twice with open palm

call police

• Been assaulted multiple times prior • He hit me at least 6 times

TYPE OF EVIDENCE YOU WANT TO SEE • Fair and impartial investigation • Video/Surveillance • Testimony • Crossing every “t” and dotting every “i” • Following procedures • Physical evidence to corroborate testimony • Common Sense

7/16/2021

•Use your common sense • Fill gaps with the presumption of innocence

•Protect the community

“You are instructed that

you are not to let bias, • 19 months after reported prejudice, or sympathy play any part in reaching a verdict in this case.”

PROPER AREAS FOR CLOSING ARGUMENT • Summarize the evidence from trial • Make reasonable deductions from evidence • Answer argument of opposing counsel • Plea for law enforcement

7/16/2021

COMMON OBJECTIONS • Arguing outside of the record • No unsworn testimony (personal opinion) • Put the jury in shoes of the victim • Imagine how you’d feel if ______ happened to you

• Burden Shifting • Careful you don’t open yourself up to this

MORE OBJECTIONS • Strike at Defendant over counsel’s shoulders • • • •

He gets paid to defend him or think he’s innocent They want to divert you from the truth Defense counsel stood up here and lied to you OKAY – if you don’t have the law, argue the facts. If you don’t have the facts, argue the law. If you don’t have either, argue everything.

• Community Expectations • A prosecutor can’t tell them the community demands a certain verdict or sentence

7/16/2021

OBJECTIONS RELATING TO THE DEFENDANT • Commenting on Defendant’s failure to testify • Did not express sympathy or remorse • Arguing that “not saying” anything in response to a question is evidence of guilt

• Nontestimonial behavior • If from Defendant’s seat and not the witness stand

• “To be an effective criminal defense counsel, an attorney must be prepared to be demanding, outrageous, irreverent, blasphemous, a rogue, a renegade, and a hated, isolated, and lonely person – few love a spokesman for the despised and the damned.” - Clarence Darrow

Criminal Defense Lawyers Project

Battling the Resistance July 9, 2021 310 Padre Boulevard South Padre Island, TX

Topic: Ethics

Speaker:

Kerri Anderson Donica 301 W 3rd Ave Corsicana, TX 75110-4665 (903) 872-7107 phone (903) 872-9281 fax kerri@kerridonicalaw.com www.kerridonicalaw.com

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

7/9/2021

Ethical Quandaries presented by: Kerri Anderson Donica Law Office of Kerri Anderson Donica Corsicana, Texas kerri@kerridonicalaw.com

Co-Defendants Can I represent both?

Rule 1.06 • Clear you cannot represent opposing parties • Grave Potential for Conflict with Co-D • Ordinarily a Lawyer Should Not Represent Co-Defendants

7/9/2021

Rule 1.06 • Requires Full Disclosure • In writing (summary of considerations)

• Informed Consent

• Written/Signed • If disinterested lawyer wouldn’t, you shouldn’t

• Out for One = Out for All • unless all consent

Loyalty

Do you have my back?

What if my former client will testify against my new client? Rule 1.05 • You may not use confidential information of former client against former client without former client’s consent • You owe LOYALTY to former client

7/9/2021

Rule 1.06 • You shall not represent client if matter substantially related matter where client’s interest are materially and directly adverse to interest of another client [or former client] • See also 1.16 if conflict arises after undertaking representation, you must take action to correct, including withdrawing if necessary

A limitation on undertaking a representation against a former client is that it may not be done if there is a reasonable probability that the representation would cause the lawyer to violate the obligations owed the former client under Rule 1.05. Thus, for example, if there were a reasonable probability that the subsequent representation would involve either an unauthorized disclosure of confidential information under Rule 1.05 (b) (l) or an improper use of such information to the disadvantage of the former client under Rule 1.05 (b) (3), that representation would be improper under paragraph (a).

Loyalty A limitation on undertaking a representation against a former client is that it may not be done if there is a reasonable probability that the representation would cause the lawyer to violate the obligations owed the former client under Rule 1.05. Thus, for example, if there were a reasonable probability that the subsequent representation would involve either an unauthorized disclosure of confidential information under Rule 1.05 (b) (l) or an improper use of such information to the disadvantage of the former client under Rule 1.05 (b) (3), that representation would be improper under paragraph (a).

7/9/2021

Confidentiality Dealing with Family Questions

Can I discuss my client’s case with his family? His momma calls every day…

Rule 1.05 • Confidential Information is BOTH privileged and unprivileged information • Privileged is based on attorney-client relationship • Unprivileged is all information acquired during course of representation

Rule 1.05 • You cannot reveal confidential information absent client’s permission or waiver

• Waiver due to necessary to further representation • Waiver due to defend the lawyer against claims by client • Waiver to prevent fraud • By order of court • Prove services for fee collection

7/9/2021

DUTY TO CLIENT What do I need to tell my client?

Rule 1.01 • Don’t neglect a matter or frequently fail to carryout obligations owed to client’ Rule 1.02 • You shall disclose offers to settle (proposed plea bargain offers in criminal cases)

Rule 1.03 • Keep client reasonably informed about the status of a matter • Promptly comply with reasonable requests • Adequately explain matter so that client can make informed decisions

7/9/2021

Failure to communicate is alleged in most grievances Duty to communication is affirmative and not dependent upon client’s request

It is imperative that you not only convey offers and discuss whether to proceed to trial but also consult with the client about the consequences of each decision. The client must understand the trial process and its pros and cons along with the evidence that is likely to be admitted.

Summary Status of the Matter

Review Evidence for Informed Decisions

Offers to Plead

Consequences of Plea or Trial

7/9/2021

Client Files: Who Owns Them? Do I have to give a copy to my client?

Rule 1.15 • Upon termination, you must take steps to protect client’s interest • Including surrendering papers and property • FILE IS CLIENT’S PROPERTY Ethics Opinion 610 • No lien on file, even if he owes you $$

Michael Morton Act • You are prohibited from providing copies to client or others • Except consultants • Client can view discovery but you must redact identifying information CCP 2.139 • You can provide DWI video to client

7/9/2021

Caution! • Be careful with subsequent attorneys • Unless client consents, you may not just turn over HIS file to new counsel • Get consent in writing In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013)

Duty to Report Unethical Conduct

Must I?

Rule 8.03

You must report conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer

7/9/2021

Rule 8.03

You must report judicial conduct that raises a substantial question as to the judge’s fitness for office

Rule 8.03

Except for chemical dependency issues or mental illness which may be referred to a peer assistance program

Duty to Investigate What if my client just wants to plead guilty?

7/9/2021

Duty to Investigate • You must make a reasonable effort to investigate the case • Unless after discussions with the client, make a reasonable determination that investigation is not necessary •

Maybe client just wants to plea and not wait on investigation

Rule 1.02: lawyer shall abide by client’s decision as to a plea to be entered • The decision to enter a plea rests solely with the informed client; therefore, you should thoroughly document your discussions with the client about whether investigation is necessary.

Scope of Representation Must I file particular motions dictated by client?

7/9/2021

You shall abide by a client’s decisions in a criminal case, after consulting with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify

You will make all other decisions Rule 3.01 (Meritorious Claims and Contentions) states a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous

Duty to Client

But momma pays the bills…

7/9/2021

Duty is to Your Client

Rule 1.08(e)

Not Momma

SOCIAL MEDIA FOR CLIENTS

Should I tell my client to delete posts or accounts? Spoliation Tampering with Evidence Obstruction of Justice

Tread Lightly and Be Informed

7/9/2021

Caution Clients About New Posts and Possible Consequences Find out what social media accounts your client has and what is posted on them You Must Understand Social Media

SOCIAL MEDIA for YOU Is it really advertising?

Yes, Social Media is Advertising Where Open to Public Rules 7.02 and 7.04 Rule 7.07 – File with Advertising Committee

7/9/2021

Do I have a duty of confidentiality

prior to undertaking representation of a client?

YES Careful with Friends and Social Situations

Competent and Diligent Representatio

I can’t stand my client, but I need the money.

7/9/2021

Rule 1.01: Competent and Diligent Representation

Can I ____?

Bottom Line: It’s Not Always Clear

Resources – -Texas Rules of Disciplinary

Conduct -Other Lawyers -Ethics Opinions -TCDLA ListServe -Common Sense

7/9/2021

The End

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

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.

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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

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Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership. Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

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