Battling the Resistance-Waco

©TCDLA 2020. All rights reserved.

Texas Criminal Defense Lawyers Association 6808 Hill Meadow Dr., Austin, Texas 78736

BATTLING THE RESISTANCE IN WACO Date January 15, 2021 Location Livestream Event Course Director Susan Kelly and Stan Schwieger Total CLE Hours 6.0 Ethics: 1.0 6.0 Friday, January 15, 2020 Ethics: 1.0

Time

CLE

8:15 am

SEMINAR INFORMATION

Daily CLE Hours: 6.0

Topic

Ethics: 1.0 Speaker

Opening Remarks

Susan Kelly and Stan Schwieger

8:30 am

.75

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

Lisa Greenberg

9:15 am

1.0

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

Anne Burnham

10:15 am 10:30 am

Break .75

11:15 am 11:30 am

The Resistance is Fueled by Fear: (Opening Statements)

Dwayne Simpson

Lunch Break 1.0

The Resistance is Self-Sabotage: (Mental Health)

Robert Sullivan

ETHICS 12:30 pm

Break

12:45 pm

.75

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

Blakely Mohr

1:30 pm

.75

Controlling the Perceptions: (Experts)

Jolissa Jones

2:15 pm

1.0

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

Joseph Esparza

3:15 pm

0

Local Update and Roundtable

Susan Kelly and Stan Schwieger

3:30 pm

Adjourn

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

Texas Criminal Defense Lawyers Association

Battling the Resistance-Waco Table of Contents

Speaker

Topic Friday, January 15, 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 Robert Sullivan

The Resistance is Fueled by Fear: (Opening Statements) The Resistance is Self-Sabotage: (Mental Health)

Blakely Mohr

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

JoLissa Jones

Controlling the Perceptions: (Experts)

Joseph Esparza

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

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

Texas Criminal Defense Lawyers Association

Battling the Resistance-Waco January 15, 2021 Livestream

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.

I.

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.

V.

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.

X.

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.

Texas Criminal Defense Lawyers Association

Battling the Resistance-Waco January 15, 2021 Livestream

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 (210) 436-3413 aburnham@stmarytx.edu

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

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.

3

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.

4

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:

8

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

9

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.

10

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

12

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

13

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

to

a

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

14

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

15

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

of

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

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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.

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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

19

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

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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. ยง

42A.054.

Pursuant to Tex. Crim. Proc. Code Ann. ยง 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. ยง 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.

2.

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:

24

3.

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

25

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

26

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

28

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,

29

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

30

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. ยง 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

31

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...

32

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

33

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

34

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

35

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

36

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.

37

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

38

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

39

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.

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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.

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Texas Criminal Defense Lawyers Association

Battling the Resistance-Waco January 15, 2021 Livestream

Topic: The Resistance is Fueled by Fear: Opening Statements Speaker:

Dwayne Simpson

PO Box 8189 Houston, TX 77288-8189 (832)916-0702 Phone (281)440-4537 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

Texas Criminal Defense Lawyers Association

Battling the Resistance-Waco January 15, 2021 Livestream

Topic: Procrastination: The Most Common Resistance and the Easiest to Rationalize: Voir Dire Speaker:

Blakely Mohr

950 E State Highway 114 Ste 160 Southlake, TX 76092-5261 (817) 345-3637 blakely@themohrlawfirm.com

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

VOIR DIRE

Procrastination – The Most Common Resistance and the Easiest to Rationalize BLAKELY I. MOHR State & Federal Criminal Defense Dallas-Fort Worth & San Antonio, TX

REMEMBER… ▪ PRIMARY GOAL IS TO ADVANCE YOUR THEME AND

THEORY AT ALL TIMES ▪ BEGIN WITH THE END IN MIND ▪ Primacy and Recency

JURY SELECTION IS ▪ #1: A CONVERSATION!!! → BE YOU .

▪ #2: AN OPPORTUNITY TO LISTEN AND

▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪

TO DISCOVER BIAS & PREJUDICE TO REWARD HONESTY TO DISCREDIT STATE’S CASE TO INFLUENCE JUROR’S THOUGHTS TO CREATE CAMPS TO HUMANIZE YOUR DEFENDANT TO MAKE DEFENSE THEORY CREDIBLE TO WIN YOUR CASE

JURY SELECTION IS NOT ▪ A TIME TO ARGUE

▪ A TIME TO CHANGE MINDS ▪ A TIME TO BE ANGRY

▪ A TIME TO BE EMOTIONAL ▪ A TIME TO EMBARASS ▪ A TIME TO CROSS EXAMINE ▪ A TIME TO NARRATE

VOIR DIRE ▪ PREPARATION ▪ “6 P’s” PROPER PREPARATION PREVENTS

PISS POOR PERFORMANCE ▪ PREPARATION = CONFIDENCE = TRUST ▪ ASSISTANCE ▪ PERFORMANCE

PREPARATION

MOTIONS

▪ #1: MOTION IN LIMINE

▪ #2: MOTION PRETRIAL HEARING TO SIMPLIFY ▪ #3: ▪ #4: ▪ #5: ▪ #6:

ISSUES MOTION TO EXTEND TIME FOR VOIR DIRE MOTION FOR ADDITIONAL TIME MOTION FOR ADDITIONAL PEREMPTORY CHALLENGES MOTION FOR COURT REPORTER

PREPARATION

COMMON OBJECTIONS ▪ #1: ▪ #2: ▪ #3: ▪ #4: ▪ #5: ▪ #6: ▪ #7: ▪ #8: ▪ #9:

RIGHT TO CROSS-SECTION OF COMMUNITY RIGHT TO SHUFFLE POWERPOINT LIMINE OPEN THE DOOR OPEN COURTROOM POLICY BATSON CHALLENGE (TCCP 35.261) COVID ISSUES DENIAL OF A RECORD

PREPARATION

PRESERVATION OF ERROR ▪ #1: Objections – Obtain Ruling ▪ Overruled – Done.

▪ Sustained – Must ask for instruction & mistrial.

▪ #2: Bill of Exceptions ▪ Constitutional Errors ▪ Trial Court prohibiting specific questions in Voir Dire.

PREPARATION

KNOW RECENT CASES ▪ Trial Court prohibiting specific questions in Voir Dire → must show

Voir Dire limitation rendered Defendant’s trial fundamentally unfair.

Jacobs v. State, 560 S.W.3d 205 (Tx. Crim. App. 2018) ▪ Juror who flip flops on answers regarding for-cause strike → Deference to Trial Court. Tracy v. State, 597 S.W.3d 502 (Tx. Crim.

App. 2020) ▪ Proof required to show Trial Court improperly denied For Cause challenge → Deference to Trial Court especially if juror’s answers are vacillating, unclear or contradictory. Calvert v. State, 2019 WL 505768 (Tx. Crim. App. 2019) ▪ Batson upheld → one peremptory strike used towards a juror for a racially motivated reason is one too many. Flowers v. Mississippi, 139 S.Ct. 2228 (2019)

PREPARATION

KNOW RECENT CASES ▪ MTS heard on the day of trial in favor of Defendant, but

before Voir Dire and not at a pretrial hearing → Article 28, Sec. 1 does not require the judge to give advance notice to the parties of his intentions in this regard. State v.

Velasquez, 539 S.W.3d 289 (Tx. Crim. App. 2018).

▪ A defendant’s failure to exhaust his peremptory strikes mitigates any harm from disallowing a proper question on Voir Dire because the leftover strikes demonstrate that the Defendant was NOT forced to waste needed strikes before the jury was seated. Gonzalez v. State, 2020 WL 6482409 (Tx. Crim. App. 2020)

PREPARATION

KNOW RECENT CASES ▪ When the trial judge denies a Defendant’s valid challenge

for cause forcing him to use a peremptory strike on a venire member who should have been removed, the defendant is harmed IF HE WOULD HAVE USED THAT PEREMPTORY STRIKE ON ANOTHER OBJECTIONABLE JUROR. Comeaux v. State, 445 SW 3d 745 (Tx. Crim. App. 2014)

PREPARATION

JURY QUESTIONAIRES

PREPARATION

EFFECTIVE POWER POINT ▪ #1: ALWAYS ADVANCE YOUR THEME & THEORY

▪ #2: TEST YOUR TECHNOLOGY (WIFI, PC, CABLES) ▪ #3: LESS WORDS; MORE HIGH-QUALITY IMAGES

▪ #4: EASY TO READ LARGE FONT (MIN. 30 FONT) ▪ #5: EASY TO READ COLOR (PREF. RED ON WHITE)

▪ #6: BE PARTICULAR (LESS IS MORE)

VOIR DIRE EFFECTIVE TRIAL SLIDES Oath & Affirmation

VOIR DIRE EFFECTIVE TRIAL SLIDES SCALED QUESTIONS

VOIR DIRE EFFECTIVE TRIAL SLIDES INDIVIDUAL CONSCIENCE

VOIR DIRE EFFECTIVE TRIAL SLIDES Burden of Proof

VOIR DIRE EFFECTIVE TRIAL SLIDES Bias & Prejudice

VOIR DIRE EFFECTIVE TRIAL SLIDES Bias & Prejudice

VOIR DIRE EFFECTIVE TRIAL SLIDES Bias & Prejudice

VOIR DIRE EFFECTIVE TRIAL SLIDES Bias & Prejudice

VOIR DIRE EFFECTIVE TRIAL SLIDES Bias & Prejudice

VOIR DIRE EFFECTIVE TRIAL SLIDES Weight & Credibility of Evidence

VOIR DIRE EFFECTIVE TRIAL SLIDES Weaving Closing Theme into VD

VOIR DIRE EFFECTIVE TRIAL SLIDES Right to Effective Counsel

PREPARATION THE LAW ▪ Read Ch. 35 TCCP “FORMATION OF THE JURY”

▪ UNDERSTAND ▪ EXCUSES ▪ EXEMPTIONS ▪ CHALLENGES ▪ FOR CAUSE

▪ PEREMPTORY

▪ DISQUALIFICATIONS

PREPARATION

▪ THE HUMAN EXPERIENCE ▪ BIAS? ▪ Disproportionate weight in favor of or against an idea or thing, usually in a way that is closed-minded, prejudicial, or unfair.

Biases can be innate or learned. People may develop biases for or against an individual, a group, or a belief.

▪ PREJUDICE? ▪ Preconceived Judgment or Opinion

PREPARATION ▪ MANY TYPES OF BIAS INCLUDING: ▪ BELIEF BIAS ▪ RACIAL BIAS ▪ IMPLICIT BIAS

▪ CONFIRMATION BIAS ▪ TENDENCY TO SEARCH FOR, INTERPRET,

FOCUS ON AND REMEMBER INFORMATION IN A WAY THAT CONFIRM’S ONE’S PRECONCEPTIONS.

PREPARATION SCORING

PREPARATION SCORING

VOIR DIRE ASSISTANCE ▪#1: RECORD ▪ STATE’S Q & A ▪ FOR CAUSE STRIKE GUIDE ▪ SCALED QUESTION GUIDE ▪ OBJECTIONS LIST – OVERRULED / SUSTAINED ▪ EXHIBIT LIST

VOIR DIRE ASSISTANCE ▪#2: OBSERVE ▪ NUANCE ▪ NONVERBAL CUES / BODY LANGUAGE ▪ VIOLATIONS

OF LIMINE

VOIR DIRE ASSISTANCE â–ª#3: CONTROL CLIENT

VOIR DIRE ASSISTANCE ▪#4: PSYCHODRAMA / ROLEPLAY

(not the funny stuff ☺) ▪Establish Primary Motivations ▪Prospective Jurors ▪District Attorney

VOIR DIRE PERFORMANCE ▪ BE YOURSELF & INTRODUCE YOURSELF

▪ BEGIN WITH THE OATH & AFFIRMATION ▪ CREATE THE IMPORTANCE

▪ EXPLAIN THE RULES FOR SCALED Q’S EARLY ▪ TEACH THE JURY WE ARE HERE ABOUT FEELINGS ▪ THE RIGHT ANSWER VS. JUROR’S FEELING

▪ NO WRONG ANSWER; ONLY HONEST ANSWERS

VOIR DIRE PERFORMANCE ▪ PEREMPTORY CHALLENGE

▪ Article 35.14. A peremptory challenge is made to a juror

WITHOUT ASSIGNING ANY REASON THEREFOR.

VOIR DIRE PERFORMANCE ▪ # OF PEREMPTORY CHALLENGES (generally) ▪ Capital seeking Death Penalty: ▪ Non-Capital Felony and Capital seeking Life:

▪ Misdemeanor tried in District Court: ▪ Misdemeanor tried in County Court: ▪ If Jury Alternates Impaneled 1 or 2 ▪ If Jury Alternates Impaneled 3 or 4; 3 or 4

15 10 5 3 1 add’l 2 add’l

VOIR DIRE PERFORMANCE ▪ FOR CAUSE CHALLENGE ▪ TCCP 35.16 – 11+ FOR CAUSE CHALLENGES ▪ 1. Not a Qualified Voter;

▪ 2. Convicted of Misd. Theft or a Felony; ▪ 3. Under Indictment/Investigation for Misd. Theft or a Felony; ▪ 4. Insane; ▪ 5. Not fit for Jury Service (Physical/Mental Defect);

VOIR DIRE PERFORMANCE ▪ FOR CAUSE CHALLENGE

▪ TCCP 35.16 – 11+ FOR CAUSE CHALLENGES ▪ 6. Witness in the Case; ▪ 7. Served on Grand Jury which found Indictment; ▪ 8. Served on Petit Jury in former Trial of Same Case; ▪ 9. Bias or Prejudice in favor of/against Defendant; ▪ 10. Juror has conclusion to Guilt/Innocense (see next slide) ▪ 11. Cannot Read or Write

VOIR DIRE PERFORMANCE ▪ FOR CAUSE CHALLENGE ▪ TCCP 35.16 – 11+ FOR CAUSE CHALLENGES ▪ Most important - TCCP 35.16(a)(10): That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror's verdict. If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court. If the juror answers in the negative, the juror shall be further examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case. If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged;

VOIR DIRE PERFORMANCE Preserve Record ▪ Establish FC Strike → ▪ If denied, TEST: ▪ (1) Make a record showing clear and specific challenge for cause;

▪ (2) Establish that a peremptory strike had to be used on Juror; ▪ (3) Show peremptory strikes have been exhausted; and ▪ (4) Obtain ruling on additional peremptory strikes; and

▪ (5) Show objectionable juror was sat on jury.

VOIR DIRE PERFORMANCE ▪ *BEWARE REHABILITATION* ▪ Judge will try to save his panel! Example ☺ : ▪ Venire person: Due to a personal experience I do not think I

could follow the law and I have already established a conclusion as to guilt.

▪ Foghorn Leghorn Voice: “Well now…if I instruct you to follow the law, can you follow the law and put those little ole teeny tiny biases and prejudices away? Well, that’s great. For Cause Challenge DENIED!

VOIR DIRE PERFORMANCE ▪ Individual Voir Dire ▪ Method to not embarrass somebody ▪ Allows you to interrogate a venire person without looking

like a jerk or bully in front of the whole panel and possibly turning jurors against you.

VOIR DIRE PERFORMANCE ▪ LOOPING ▪ TRILOGIES ▪ “SHOW OF CARDS” IN SUPPORT OR AGAINST

▪ EFFECTIVE SCALED Q’S – MAKE SURE THEY

KNOW THE RULES ▪ FINDING BELIEVERS AND CYNICS

VOIR DIRE PERFORMANCE ▪ OTHER PRACTICE POINTERS ▪ BE LOUD ▪ BE CONFIDENT ▪ MAINTAIN EYE CONTACT

▪ DO NOT HOLD ANYTHING ▪ LISTEN, LISTEN, LISTEN ▪ DON’T STIR A BEE-HIVE ▪ HONESTY IS THE GOAL

Presented by‌ Blakely I. Mohr, Managing Partner Robert Steve Wilson, Managing Partner Jonathan Stewart, Paralegal Ainsley Dorsey, Legal Assistant Ashley Fletcher, Law Clerk Kim Weber, Legal Secretary The Mohr Law Firm, PLLC 950 E. State Highway 114 Suite 160 Southlake, Texas 76092 8173453637 3030 Nacogdoches Rd. Suite 222C, San Antonio, Texas 78217 2102127589 www.themohrlawfirm.com

Texas Criminal Defense Lawyers Association

Battling the Resistance-Waco January15, 2021 Livestream

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.

1

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

2

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.

Texas Criminal Defense Lawyers Association

Battling the Resistance-Waco January 15, 2021 Livestream

Topic: When the Finish Line is in Sight: Closing Arguments Speaker:

Joseph A. Esparza

1524 N Alamo St San Antonio, TX 78215-1205 josephesparzalaw@gmail.com (210) 354-1919

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

Closing Argument JOSEPH A. ESPARZA GROSS & ESPARZA, PLLC 1524 N. ALAMO ST. SAN ANTONIO, TEXAS 78215 210-354-1919 JOSEPHESPARZALAW@GMAIL.COM

Your last chance to close the deal

What should your mindset be?

Battling the Resistance Within

The Law on closing argument 

Texas Code of Crim Procedure Article 36.07, Order of Argument



Texas Code of Crim Procedure Article 36.08, Number of Arguments

Proper Areas of Argument

Proper Areas of Argument ď ľ

Summation of the evidence

Proper Areas of Argument ď ľ Reasonable

deductions from the evidence

Proper Areas of Argument ď ľ Answer

to argument of opposing counsel

Proper Areas of Argument  Plea

for law enforcement.

 Alejandro

v.

State, 493 S.W.2d 230 (Tex. Crim.

App. 1973)

All you need to argue is within these four walls 

Summation of the Evidence



Reasonable deductions



Answering opposing counsel



Plea for law enforcement

You don’t have to follow a trial college or a specific method

Honestly, you just need to be yourself

Remember: Emotions trump facts 

People get a rush when they hear what they want to hear



People will continue to believe even against their own self-interest if you hook them in the beginning



People will “go with their gut” / what “feels” familiar

Why does familiar work?

Familiar = Comfort FAMILIAR REMINDS THE JUROR OF SOMETHING THEY ALREADY KNOW TO BE TRUE OR CORRECT

7 Classic Themes for closing argument

Classic pointers for your Classic themes 

K.I.S.S. – Keep It Simple, Stupid



B.L.U.F. – Bottom Line, Up Front

Classic Theme #1: The General Denial

Classic Theme #1: The General Denial ď ľ

Find flaws in the State’s evidence

Classic Theme #1: The General Denial 

Find flaws in the State’s evidence



Use demonstrative evidence/timelines

Classic Theme #1: The General Denial 

Find flaws in the State’s evidence



Use demonstrative evidence/timelines



If GD is theme, your CX needs to be everything

Small town capital trial using general denial

Classic Theme #2 S.O.D.D.I.

Classic Theme #2 S.O.D.D.I. ď ľ

They got the wrong guy

Classic Theme #2 S.O.D.D.I. ď ľ

They got the wrong guy

ď ľ

This theme requires an alternate suspect or shoddy investigation

Classic Theme #2 S.O.D.D.I. 

They got the wrong guy



This theme requires an alternate suspect or shoddy investigation



Looking for that 1 juror, client not need to testify

Classic Theme #3 The Alibi

Classic Theme #3 The Alibi ď ľ

Defendant/family/friend takes the stand, establishes the alibi

Classic Theme #3 The Alibi ď ľ

Defendant/family/friend takes the stand, establishes the alibi

ď ľ

Alibi supported by circumstantial or physical evidence (location services, receipts, pics, texts, posts, etc.)

Classic Theme #3 The Alibi 

Defendant/family/friend takes the stand, establishes the alibi



Alibi supported by circumstantial evidence (location services, receipts, pics, texts, posts, etc.)



Check videos or CCTV footage

Classic Theme #4 Justification

Classic Theme #4 Justification ď ľ

Argue the law if you have it, that’s why the legislature created it

Classic Theme #4 Justification 

Argue the law if you have it, that’s why the legislature created it



Defendant takes the stand or it’s established through other witnesses

Classic Theme #4 Justification 

Argue the law if you have it, that’s why the legislature created it



Defendant takes the stand or it’s established through other witnesses



Need to make jury feel for client, justification needs to resonate with them and make sense

(This movie’s soundtrack is

by Duke Ellington too)

Classic Theme #5 An Innocent Man/Woman

Classic Theme #5 An Innocent Man/Woman ď ľ

Always argue your client’s testimony if they take the stand and are innocent

Classic Theme #5 An Innocent Man/Woman 

Always argue your client’s testimony if they take the stand and are innocent



Always argue your client’s decision to testify when they didn’t have to

Classic Theme #5 An Innocent Man/Woman 

Always argue your client’s testimony if they take the stand and are innocent



Always argue your client’s decision to testify when they didn’t have to



Always argue in a positive way their demeanor and lack of comfort

Classic Theme #6 Nobody likes a liar

Classic Theme #6 Nobody likes a liar ď ľ

Use this theme for cases with informants, snitches, liars, witnesses with bad character for truthfulness

Classic Theme #6 Nobody likes a liar 

Use this theme for cases with informants, snitches, liars, witnesses with bad character for truthfulness



Remind the jury why people generally despise liars (can’t trust them)

Classic Theme #6 Nobody likes a liar 

Use this theme for cases with informants, snitches, liars, witnesses with bad character for truthfulness



Remind the jury why people generally despise liars (can’t trust them)



Argue to the jury every single benefit the snitch/informant/liar gets from testifying this way

Classic Theme #7 The Axiom Closing

Classic Theme #7 The Axiom Closing ď ľ

Your theme can be a saying that everybody knows and identifies with

Classic Theme #7 The Axiom Closing ď ľ

Your theme can be a saying that everybody knows and identifies with

ď ľ

This closing really has the best chance at familiarity with jury

Classic Theme #7 The Axiom Closing 

Your theme can be a saying that everybody knows and identifies with



This closing really has the best chance at familiarity with jury



This theme can help make complex matters easily digestible

Avoid these common traps in closing argument

Most common closing trap: Lack of balance 

Your argument is all summation, not persuasive 

The grocery list “argument”

Most common closing trap: Lack of balance ď ľ

Your argument has so many deductions that you sound like a conspiracy nut

Most common closing trap: Lack of balance ď ľ

Your argument spends too much time answering opposing counsel (waste your time, YOUR argument and theme never gets presented)

Don’t overthink your closing argument

Other Closing Tips 

Always argue a trial gift should one fall in your lap (Homeless Willy)



Always make a list of all the missing evidence in every case and remind the jury of it constantly



Always argue good character evidence if you have it



Never inject your personal morality/norms into your argument (Sex in a parked car fiasco)

Other Closing Tips: The One Trick Pony

What to avoid, a.k.a., Pet Peeves ď ľ

Don’t reintroduce yourself to the jury at the beginning of closing argument

What to avoid, a.k.a., Pet Peeves 

Don’t reintroduce yourself to the jury at the beginning of closing argument



Don’t talk about what a privilege it is to defend your client, etc., unless client is special in some way (beloved person in community, etc.)

What to avoid, a.k.a., Pet Peeves 

Don’t reintroduce yourself to the jury at the beginning of closing argument



Don’t talk about what a privilege it is to defend your client, etc., unless client is special in some way (beloved person in community, etc.)



Don’t thank the jury for being there/doing their job

What to avoid, a.k.a., Pet Peeves 

Don’t reintroduce yourself to the jury at the beginning of closing argument



Don’t talk about what a privilege it is to defend your client, etc., unless client is special in some way (beloved person in community, etc.)



Don’t thank the jury for being there/doing their job



Don’t phone it in and basically concede guilt (the tepid argument ex.)

Preserving Error in closing argument

Preserving Error in closing argument 

Statutory Authority: 

Texas Rule of Appellate Procedure 33, Preservation of Appellate Complaints



Know TRAP Rule 33.1 --- lays out what exactly you have to do!

Preserving Error in closing argument 



(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: 

(1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and



(2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

Rule 33.1 - Preservation; How Shown, Tex. R. App. P. 33.1

Preserving Error in closing argument 

“. . . we hold a defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal . . .

Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.”



Cockrell v. State, 993 S.W.2d 73 (Tex. Crim. App. 1996)

Preserving Error in closing argument ď ľ

It is improper for a prosecutor to engage in namecalling designed to evoke an emotional response and thus encourage the jury to come to a verdict on some other basis than the facts before it. Renn v. State, 495 S.W.2d 922 (Tex. Crim. App. 1973) (calling the defendant a hippie, anti-Christ, and Communist).

ď ľ

Nevertheless, a prosecutor is allowed to argue that witnesses for the defense are not worthy of belief. Satterwhite v. State, 858 S.W.2d 412, 425 (Tex. Crim. App. 1993). Arguing that a witness is lying constitutes an argument to the jury that the witness is not worthy of belief.

Preserving Error - Careful ď ľ

The prosecutor argued outside the record when he stated that a co-defendant in the case had received the death penalty.

ď ľ

Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999)

Preserving Error - Careful [Appellant's Counsel]: Your Honor, we object to that. That's outside the record. We had that issue before and he knew he wasn't supposed to bring that up.

[The Court]: The Jury heard the testimony of the witnesses that were presented. What the lawyers say is not evidence. The Jury will be governed by the testimony you remembered having heard.

[Appellant's Counsel]: Judge, may I have a ruling on my objection?

[The Court]: That's the ruling.

[Appellant's Counsel]: Your Honor -[The Court]: What the lawyers say is not evidence.

[Appellant's Counsel]: Is my objection overruled or -[The Court]: No, sir, it's not overruled.

[Appellant's Counsel]: -- sustained? Well, then, Your Honor, we ask for an instruction that this Jury be instructed to disregard Mr. O'Brien's last comments.

[The Court]: Ladies and gentlemen, disregard any comments that were made that were not raised by the evidence.

[Appellant's Counsel]: Your Honor, we move for a mistrial.

[The Court]: That's denied.

Closing Argument must haves 

Always argue relevant sections of the judge’s instructions to the jury, esp. if they help you

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Always argue the presumption of innocence

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Recall your juror information, play to their interests

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Anticipate the prosecutor’s rebuttal

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Argue reasonable doubt and always declare its existence in your case

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Work all of the above into your classic theme(s)!

Always remember, evoke an emotion and hook

Always remember, evoke an emotion and hook

Always remember, evoke an emotion and hook

Always remember, evoke an emotion and hook

Always remember, evoke an emotion and hook

Project sincerity

YOU NEED TO CONVEY AN EMOTION TO THE JURY AND GET THEIR “BUY IN”

The End

Joseph Esparza Gross & Esparza, PLLC (210) 354-1919 josephesparzalaw@gmail.com www.txmilitarylaw.com