Prairie Pups Nuts N' Bolts

Prairie Pup Nuts N' Bolts Co-sponsored with LCDLA

January 5, 2023 Texas Tech School of Law

Course Directors:

The seminar is sponsored by CDLP, a project of TCDLA, funded by the Texas Court of Criminal Appeals

Rusty Gunter & Chris Wanner

Criminal Defense Lawyers Project

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA

Table of Contents

speakers topic

Dwight McDonald Enhancements and Collateral Consequences

Hon. Douglas Freitag Ethical Considerations for Young Lawyers

Lisa Greenberg

Defending Family Violence Cases Against the Government’s Fictional Perfect Family Standard

Phil Johnson Cop Stuff

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

Date January 5, 2023

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

Course Director Rusty Gunter and Chris Wanner

Total CLE Hours 7.0 Ethics: 1.0

Thursday, January 5, 2023

Daily CLE Hours: 7.0 Ethics: 1.0

Time CLE Topic Speaker

8:00 am Registration / Continental Breakfast

9:00 am .75 LPDO: How It Works and How to Move Up Rusty Gunter

9:50 am Break

10:05 am .75 Pretrial Litigations and Motions Regional Public Defenders Office

10:55 am .75 Enhancements and Collateral Consequences Dwight McDonald

11:45 pm 1.0 Ethics Lunch Presentation: Ethical Considerations For Young Attorneys Practicing in District Courts

1:00 pm

1:10 pm .75

Hon. Douglas Freitag

Break Client Management Laurie Key

2:00 pm .75 Why We Do What We Do Philip Wischkaemper

2:50 pm Break

3:00 pm .75 Domestic Violence Lisa Greenberg

3:50 pm .75 Cop Stuff Phil Johnson

4:40 pm Adjourn

Criminal Defense Lawyers Project

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA

January 5, 2023

Texas Tech School of Law Lubbock, TX

Topic: Enhancements:

How to Earn a Free Extended Stay in a Gated Community

Speaker: Dwight McDonald

Texas Tech University 3311 18th St. Suite 108 Lubbock, TX 79409 806.834.0167 phone 806.742.4199 fax

Dwight.mcdonald@ttu.edu email

Author or Co-Author: Patrick S. Metze

Professor of Law and Director of Criminal Clinics

Texas Tech University School of Law 806.789.8898 phone 806.742.4199 fax

Patrick metze@ttu.edu email http://www.depts.ttu.edu/ website

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

ENHANCEMENTS: How To Earn A Free Extended Stay

In A Gated Community

Patrick S. Metze

1

Section I. Basic Concepts………………………………………………………………………………….…………………………3

Section II. Offenses with Specific Enhancement Provisions…………………………….…………………………..5

Section III. Enhancement of Misdemeanors: Texas Penal Code §12.43………….………………………….11

Section IV. State Jail Felonies: Texas Penal Code §12.35……………………………….…………………………..12

Section V. Enhancement of State Jail Felonies: Texas Penal Code §12.425…….………………………….13

Section VI. Enhancement of Felonies: Texas Penal Code §12.42……….………………………………………18

A CLE paper such as this cannot and should not substitute for your own research. I was asked to speak for 45 minutes on enhancements at the 33rd Annual Rusty Duncan Advanced Criminal Law Course. In addition, I was asked to prepare this paper. This topic could take days to thoroughly cover it. For many years, I have been a fixture at Lubbock Criminal Defense Lawyer Association’s Prairie Dog seminar on this topic and the majority of what I talk about is state jail felonies and the black letter law of enhancements. There are three reasons for this. First, from my experience, those that benefit the most from CLE’s are the young lawyers trying to be diligent in their criminal preparation. Most of my career I remember spending my time in the books after I got a new case. First, I would read the penal code statute, then I would read every case until I felt I had a firm handle on the law. After that I would research the facts of my case, including my client’s version, and then re-read the law – both statutes, case law and secondary sources. Over the years, I have found getting more experience practicing law is the biggest impediment to my doing a good job. Whenever I think I know the answer without researching, I make a mistake. Our mantra at Texas Tech’s clinical program is to read the statute,

1 Professor of Law and Director of Criminal Clinics at Texas Tech University School of Law; additionally teaches in the areas of Capital Punishment and Texas Juvenile Law. B.A. Texas Tech University 1970; J.D. The University of Houston 1973. Thanks to my colleagues on the faculty of the Tech Law School who graciously gave me the opportunity to do this work, and in particular my friends, Professors Donnie Yandell and Dwight McDonald who, by their example, inspire me and motivate me to continue to do this work. My special appreciation goes to my research assistant, Brianna Weis, for her hard work, cheerful professionalism and brilliant mind. Someone needs to give her a job doing criminal law before the civil firms take her away.

read the statute, read the statute, read the statute, read the statute….got it? Case law is helpful, but only after you have….wait for it…. READ THE STATUTE.

Second, in 1993 the legislature created an intermediate crime somewhere between misdemeanors and felonies. These state jail felonies have allowed the politicians to attack the drug wars, petty theft, and other nuisance criminal behavior that takes so much time and money to enforce. During a time of increasing zero tolerance, the creation of the state jail crime resulted in more people in jail than ever without rehabilitation or community supervision and the legislature struggled with how to address their creation. As they always do, they imaged enhancing repeat offenders of these new crimes, with draconian collateral consequences, as the solution. Therefore, punishments, enhancements and collateral consequences for state jail crimes have been in flux ever since creation. I still do not believe all attorneys understand the basic structure of state jails, much less the application of enhancement statutes to all level of crime I am convinced this applies to most assistant district attorneys and I do not think it is our job to educate them but to take advantage of their lack of knowledge.

Therefore, I have prepared this paper and my presentation based on the black letter law of enhancements, supplemented with case law. Use this paper to begin YOUR research. Keep it handy to refresh your memory but grab the books. I promise you, after the next legislative session, much of what is here may well be out of date.

Third, I have found most experienced lawyers get lazy. They shoot from the hip, take the path of least resistance, refuse to spend the time reading the law as they did when they were younger, get off court appointment lists, rely on their associates and law clerks to tell them the law, and basically avoid doing the hard work of being a lawyer. I am sure this doesn’t apply to you, but you know about whom I speak. This is not an indictment of the many lawyers that have practiced at the highest level during their entire career, but face it, lawyer jokes and public attitudes about lawyers are based on the public’s experience dealing with those that do our work. So, with my presentation and this paper I emphasize the basics of enhancements so the young lawyer will benefit from a thorough understanding of the constructs of this area of the law and for the older, more experienced lawyer, who can use a quick reference to this basic information I am not worried about those that practice at the highest level. They will take care of themselves. So, I do not spend much time on enhancements as applied to our clients facing upper level felony charges. Lawyers that represent repeat serious offenders charged with very serious crimes, often facing habitual enhancements including potential mandatory life sentences and the death penalty, do not need my help. Let’s begin.

Section I. Basic Concepts

There are a few basic concepts the attorney must understand about enhancements.

Texas Penal Code §12.46. The use of a prior conviction to enhance does not preclude the subsequent use of that conviction for enhancement.2 Often I hear lawyers ask if a conviction can be used over and over again to enhance. The answer is yes. A few other issues have been raised in case law, however.

Use of prior conviction to establish jurisdiction and to enhance punishment. The state cannot use the prior conviction to both prove an essential element of the offense charged and for enhancement purposes in the same indictment.3 There is a difference between the use of a prior conviction to establish jurisdiction (offense level) and to increase the punishment. So, first determine if the use of the prior conviction is being used to establish jurisdiction or to enhance the punishment. If the state is trying to use the same prior conviction for both purposes in the same case, this is improper.4

What is the date of a final prior conviction? In White v. State, the court noted that for felonies the sentence is the final judgment and that is what the prosecution must prove in order to show a conviction is final.5 The court noted recently that generally an imposition of a sentence is needed to establish a conviction is final.6 Additionally, a sentence is not final if either the sentence has been suspended and probation granted, or the probation was successfully served.7 But, if the probation is revoked, that sentence can become a final conviction.8 In Martinez v. State, the court acknowledged it had long noted that a sentence generally must be produced “to establish the finality of a conviction” for jurisdictional or enhancement purposes.9 However, the judgment in Martinez was used to revoke the defendant's probation, the defendant introduced the judgment, and failed to timely object, so the trial judge could find the judgment as proof of conviction.10 If the exact dates of the prior offenses are not considered to be elements of the current primary offense, the law/statute of the present offense is the one utilized.11

2 Texas Penal Code §12.46.

3 Wisdom v. State, 708 S.W.2d 840, 845 (Tex. Crim. App. 1986) [The state was barred from using a prior rape conviction to enhance the offense punishment, after the prior conviction had been used to allege an essential element of the new charge.]; See Hernandez v. State, 929 S.W.2d 11, 13 (Tex. Crim. App. 1996)

4 Id. See Rivera v. State, 957 S.W.2d 636 (Tex. App. Corpus Christi 1997), petition for discretionary review refused, (May 6, 1998) [felony DWI].

5 White v. State, 353 S.W.2d 229, 231 (Tex. Crim. App. 1961).

6 Ex parte Pue, 552 S.W.3d 226, 230–31 (Tex. Crim. App. 2018), reh'g denied (May 23, 2018).

7 Id. at 230. But see Comeaux. v. State, 151 S.W.3d 710, 713 (Tex. App. – Beaumont 2004, no pet.) The Court decided a successfully completed and subsequently discharged “regular” community supervision can be used to enhance punishment for later offenses when the provision permitting such enhancement did not exist at the time the “regular” community supervision was imposed in lieu of incarceration. Id.

8 Id. at 231.

9 Martinez v. State, 531 S.W.2d 343, 345 (Tex. Crim. App. 1976).

10 Id

11 See Tietz v. State, 256 S.W.3d 377, 378 (Tex. App. San Antonio 2008, pet. ref'd); State v. Mason, 980 S.W.2d 635, 641 (Tex.Crim.App.1998).

Currently pending in the Court of Criminal Appeals is Ex Parte McMillan 12 McMillan contends, among other things, that her sentence is illegal because the prior conviction used as an enhancement an un-revoked, probated sentence from federal court. The CCA ordered the application filed and the matter set for submission.13 So, soon the use of such sentences for enhancement purposes may be affected. Or, may not.

Conviction when case appealed. “The longstanding precedent in Texas regarding the finality of convictions is unambiguous. Convictions for enhancement purposes are not final in cases in which the sentence has been suspended and probation granted; a conviction is not final for enhancement purposes unless that probation is revoked.”14 The prior conviction becomes final when the appellate court issues its mandate after affirming a conviction.15

As to Felonies, only trips to prison count. The good news is that usually only trips to the prison count toward enhancement. A probated sentence is not a final conviction for enhancement purposes until the probation is revoked.16

Limitation. There are two limitations to this general rule. A prior foreign conviction for an offense containing elements substantially similar to the elements of the charged offense listed under subsection Texas Penal Code §12.42(c)(2)(B) [sex crimes] may be used to enhance punishment in Texas, even if the sentence for that foreign conviction was probated and the probation was not revoked.17 Second, see discussion below on Texas Penal Code §12.42(g)(1) and the use of prior sex crime “convictions” if the defendant was adjudged guilty or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication. This enhancement

12

Ex Parte McMillan, WR-88,970-01, 2020 WL 729772 (Tex. Crim. App. Feb. 12, 2020)

13 Id. The matter was ordered submitted “to determine (1) whether Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018), announced a new rule for purposes of retroactivity; (2) if Pue announced a new rule, whether it is a substantive or procedural rule; and (3) whether one of the exceptions to the general rule of retroactivity applies. See Teague v. Lane, 489 U.S. 288, 307 (1989).

14 State v. Burnett, Court of Appeals of Texas, El Paso. December 11, 2019 Not Reported in S.W. Rptr.2019 WL 6725999. See Pue v. State, 552 S.W.3d at 235; Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992)(citing Ex parte Murchinson, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978))

15 Beal v. State, 91 S.W.3d 794, 794-95 (Tex. Crim. App. 2002). ) One limitation is in the context of a civil commitment order, a prosecution for non-compliance of the court’s order is effective immediately and is not dependent on the order being final. Such prosecutions may proceed even when the order is on appeal. Bohannan v. State, 546 S.W.3d 166 (Tex. Crim. App. 2017)

16 Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978)

17 Texas Penal Code §12.42(g)(2); See Ex parte White, 221 S.W.3d 316, 319 (Tex. Crim. App. 2007); See also the mandatory life provision in Texas Penal Code §12.42(c)(2)(B) or repeat sexual offenders who had deferred or regular probation and completed it. Texas Penal Code §12.42(g)(1). See Crabtree v. State, 389 S.W.3d 820, 828 (Tex. Crim. App. 2012) [re: sex-offender registration].

is allowed regardless of the sentence, whether it was ever imposed, probated or defendant was discharged from probation.18

Use of Misdemeanor convictions. “Rather, it is clear the legislature intended to permit the State to utilize misdemeanor convictions to elevate an otherwise misdemeanor offense to a felony, whether the punishment in the prior cases was probated, suspended, or imposed.”19

Constitutionality. The enhancement statutes are constitutional, even if there is alleged lack of uniformity in application and administration.20 The enhancement statutes were intended to be reformatory in nature, and thus, allows for an increase in punishment for defendants who continue in the perpetration of crime.21

Prosecutorial discretion. Both Texas and federal courts recognize that prosecutors have broad discretion in deciding which cases to prosecute. Thus, “[i]f the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether to prosecute and what charge to file generally rests entirely within his or her discretion.”22

Don’t forget, use of a prior conviction to enhance is within the prosecutor’s discretion. She never has to use a prior conviction, and if the decision is made to attempt enhancement, that decision can always be waived and is a chip that should be used in the defense strategy. Don’t forget they have to prove enhancements and often this is not easy. Old judgments often do not have readable fingerprints on them and the availability of someone who witnessed the plea is unlikely. When a young DA tells you because of a prior conviction what the punishment must be, remember they must prove that prior. Often it is just a bluff.

“[T]he state may allege and prove a previous conviction for the purpose of enhancing the punishment under the applicable enhancement statute.”23

Section II. Offenses with Specific Enhancement Provisions

18 Texas Penal Code §12.42(g)(1).

19 Williamson v. State, 46 S.W.3d 463, 466 (Tex. App. Dallas 2001, no pet.).

20 See Mackie v. State (Tex. Crim. App. 1963) 367 S.W.2d 697, 699.

21 Linley v. State, 501 S.W.2d 121, 123 (Tex. Crim. App. 1973).

22 State v. Malone Serv. Co., 829 S.W.2d 763, 769 (Tex.1992); Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.C. 663, 54 L.Ed.2d 604 (1978); See Roberts v. Louisiana, 428 U.S., at 349, 96 S. Ct. 3001, 3013 (J. White, dissent). As to plea bargaining, Justice White similarly reacted, viz: “... A prosecutor may seek or accept pleas to lesser offenses where he is not confident of his first-degree murder case, but this is merely the proper exercise of the prosecutor's discretion as I have already discussed.... Whatever else the practice may be, it is neither inexplicable, freakish, nor violative of the Eighth Amendment. Nor has it been condemned by this Court under other provisions of the Constitution.” Id.

23 Stephens v. State, 377 S.W.2d 189, 191 (Tex. Crim. App. 1964) [emphasis added].

The general enhancement statutes are located in Texas Penal Code §12.43 for misdemeanors,24 Texas Penal Code §12.425 for state jail felonies,25 and Texas Penal Code §12.42 for other felony offenses.26 As to misdemeanors, offense specific statutory enhancement provisions, that are usually located within a specific Penal Code section, control over the general rule.27 “If the punishment scheme for an offense contains a specific enhancement provision increasing punishment for a defendant who has previously been convicted of the offense, the specific enhancement provision controls over this section.”28 By the insertion of this language at the end of the general misdemeanor enhancement statute, it is clear the legislature intended to apply this specific enhancement provision to misdemeanors only. No such language is in the state jail or felony enhancement statutes.

Examples of specific statutory enhancement provisions. Years ago, I attempted to enumerate all the statutes with specific enhancement provisions. This quickly became a life’s work. For example,

1. drug offense classifications are most often enhanced based upon the quantity and type of drug involved;29

2. manufacture of drug paraphernalia’s punishment is increased with a minimum jail time with a prior conviction;30

3. drug and school zones increase drug31 and weapon charge32 punishments based on the location of the crime;

4. driving while license invalid enhances the level of offense within the statute (not punishments);33

5. no liability insurance tickets remain an undesignated “misdemeanor” but the fine is greatly increased with a prior conviction;34

6. the domestic violence assault statute raises the level of offense from misdemeanor to felony based on a prior conviction;35

7. the level of offense in the violation of a protective order statute is increased to felony level for various reasons including prior convictions;36

24

See discussion infra Section III. 25 See discussion infra Section IV. 26 See discussion infra Section V. 27

See discussion immediately following as to driving while intoxicated, theft and domestic assault. 28

Texas Penal Code §12.43(d). 29 Health and Safety Code, Title 6, Chapter 481. Texas Controlled Substances Act. 30

Texas Health & Safety Code § 481.125(e). Normally a Class A misdemeanor, unless it is shown on the trial of a defendant that the defendant has previously been convicted…, in which event the offense is punishable by confinement in jail for a term of not more than one year or less than 90 days. Id.

31 Health and Safety Code §481.134

32

Texas Penal Code §46.11.

33

Texas Transportation Code § 521.457 34 Texas Transportation Code §601.191 35 Texas Penal Code §22.01(b)(2). 36 Texas Penal Code §25.07.

8. crimes committed due to bias or prejudice are normally Class A misdemeanors but become third degree felonies with two or more previous convictions or by committing assault;37

9. the level of offense of stalking is enhanced if previously convicted of stalking in Texas or in other jurisdictions;38

10. the prostitution statute enhances the level of offense based on the number of previous convictions and the type of participation of the defendant;39

11. when one is charged with fraudulent filing of a financial statement the level of crime varies from Class A misdemeanor to second degree felony based on previous convictions or actor’s intent;40

12. the soliciting membership in a criminal street gang statute increases the level of the offense if the charge is a “second or subsequent offense under this section,” saying nothing about previous convictions;41

13. harassment enhancement uses previous convictions among other things;42 and many, many more including crimes that I frankly have no idea what they are like theft or tampering with multichannel video or information system.43

Lest we not forget, there are many crimes that enhance because of the status of the defendant or the victim. A couple examples would be crimes committed by public servants44 and when the victim is a member of a protected class.45 This is a non-exhaustive list of those crimes that I accumulated in my quest, but it shows the lengths the legislature will go to satisfy political interests at the expense of an understandable, predictable and consistent penal code. It would take a book to cover all enhanced statutes. Sadly, the book would be out of date at the passing of the next legislative session. So, I chose three frequently used specific statutes to illustrate the specific versus general statute enhancement application schemes.

Driving While Intoxicated (DWI). The reason enhancements can be confusing, and why I insist that my students read their statutes every time, is the example of specific enhancement compared to general enhancement as applied to driving while intoxicated.

To illustrate my point, I will only address the level of the offense charged and the maximum jail one could receive for a conviction only. Normally, a DWI is a Class B misdemeanor with a maximum punishment of 6 months in jail.46 However, the very same behavior can be prosecuted 37

Texas Penal Code §25.071. 38

Texas Penal Code §42.072. 39

Texas Penal Code §43.02. 40 Texas Penal Code §37.101. 41

Texas Penal Code §71.022. 42 Texas Penal Code §42.07. 43

Texas Penal Code §31.12.

44

Texas Penal Code §31.03(f) Theft by a Public Servant.

45

Texas Penal Code §12.47 Penalty if Offense Committed Because of Bias or Prejudice.

46 Texas Penal Code §49.04(b). Class B misdemeanors carry a maximum term of confinement of 180 days. Texas Penal Code §12.22

as a Class A misdemeanor with a maximum of 12 months in jail if it is shown that the defendant had previously been convicted of an intoxication-related offense as defined in the statute 47

On the other hand, the applicable general enhancement statute for a Class B misdemeanor for one previously convicted of a Class B or greater crime does not increase the maximum jail one could receive and remains at 6 months not increasing the offense level, merely the punishment 48

So which applies whenever a person gets his second DWI? Can it be filed as a higher offense level or merely have the punishment enhanced?

Texas Penal Code §12.43(d) says “[i]f the punishment scheme for an offense contains a specific enhancement provision increasing punishment for a defendant who has previously been convicted of the offense, the specific enhancement provision controls over this section.” The DWI enhancement provisions however are jurisdictional and raise the level of the crime alleged and the just quoted statute speaks only to punishment. Therefore, the Penal Code provides two separate statutes for potentially increasing the punishment in the case of a person’s second driving while intoxicated charge.49

To illustrate further, should the person have two previous convictions under Texas Penal Code, §49.04 [DWI], §49.05 [flying while intoxicated], §49.06 [boating while intoxicated] or §49.065 [assembling or operating an amusement ride while intoxicated] or one previous conviction for intoxication manslaughter,50 a driving while intoxicated charge can be filed as a third degree felony with a potential of 10 years in prison.51 Both of these examples show how the prior conviction(s) are used to enhance the jurisdictional/offense level of the new charge not to merely increase the punishment.

A Class A DWI is now a Class B DWI based on one prior. The basic logic of the preceding paragraphs’ rationale is still good, but it was set on its ear a bit by the Court of Criminal Appeals in 2018 when the Court decided the legislature meant to leave a second DWI a Class B misdemeanor and only use the language of §49.09 as a punishment issue. I have no idea why the Court felt the plain reading of §49.09 was ambiguous but that is now the law. “[U]nlike the existence of two prior convictions for felony DWI, which is an element of the offense of felony DWI, the existence of a single prior conviction for misdemeanor DWI is a punishment issue.”52 I am confident my reasoning is still good as to deciding if a statute enhances the jurisdiction or just the punishment, but the Oliva court decided the long history of statutory interpretation of reading the plain meaning of a statute did not apply to a second DWI. Go figure.

47 Texas Penal Code §49.09(a). Class A misdemeanors carry a maximum term of confinement of one year. See Texas Penal Code §12.21 for Class A Misdemeanor punishments.

48

Texas Penal Code §12.43(b). See infra Section III.

49 See State v. Morgan, 160 S.W.3d 1, 4 (Tex. Crim. App. 2003).

50

Texas Penal Code, §49.08 [Intoxication Manslaughter].

51 Texas Penal Code, §49.09(b)

52 Oliva v. State, 548 S.W.3d 518, 519–20 (Tex. Crim. App. 2018).

A felony DWI is still a felony DWI. The Court above in Oliva however did say the use of the two prior DWI’s was jurisdictional when one is indicted for a felony DWI. This is confirmed by Baxley v. State from Texarkana, “[t]he prior intoxication-related offenses are elements of the offense of DWI” and establish the jurisdiction of a third and subsequent DWI to a third-degree felony not merely enhance the punishment.53 “The prior convictions must be proved at the guilt/innocence phase of trial to secure a conviction.”54

Justification for specific DWI statutes. But is it fair that the legislature takes an otherwise lowlevel crime and potentially exposes one with repeat offenses to felony punishment and the potential of life in prison? The courts have said these specific legislative progressions, such as for DWI offenders, are permissible “to address the human misery and widespread destruction caused by drunk drivers.”55 What human misery and widespread destruction do enhancements statutes cause?

Theft. A stolen pack of chewing gum can result in long prison sentence. For example, in the theft statutes, what is normally a Class A misdemeanor, or less, becomes a state jail felony if “the value of the property stolen is less than $2,500 and the defendant has been previously convicted two or more times of any grade of theft.”56 This is a jurisdictional specific statute. Often prosecutors try to use this theft statute in conjunction with the general habitual enhancement statutes discussed below to attempt to raise the punishment for this state jail felony theft of property of less than $2,500 to a much higher felony punishment. The mechanism of how state jail felonies are enhanced is discussed below, but needless to say, a theft charge involving property worth less than $2,50057 (a pack of chewing gum) cannot be elevated by prior theft convictions beyond a state jail felony as to the jurisdictional level, not the punishment.58

If the indictment alleges the appropriate number of priors, the district court has jurisdiction.59 Prior theft convictions elevate the offense rather than simply the punishment.60

Domestic assault. Finally, when one commits assault which would normally be a Class A misdemeanor, the assault becomes a third-degree felony if the offense is committed against

53 Baxley v. State, 547 S.W.3d 266, 271 (Tex. App. Texarkana 2018, pet. ref'd); Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999).

54 Baxley at p. 272.

55 State v. Cooley, 401 S.W.3d 748, 750 (Tex. App. Houston [14th Dist.] 2013, no pet.) (citing Guinn v. State, 696 S.W.2d 436, 438 (Tex. App. Houston [14th Dist.] 1985, pet. ref'd)).

56 Texas Penal Code §31.03(e)(4)(D)

57 Id. The case of Brown v. State cited in the following footnote uses the maximum stolen amount as $1,500. The maximum amount was increased from $1,500 to $2,500 by a change in the statute, Texas Penal Code §31.03(e)(4)(D), that occurred after the Brown casecase, but the applicable rule outlined in Brown does not change.

58 Brown v. State, 14 S.W.3d 832 (Tex. App. - Austin 2000, pet. pdr ref’d).

59 State v. Reyes, 310 S.W.3d 62, 64 (Tex. App. El Paso 2010, pet. ref'd).

60 Id.; see Gant v. State, 606 S.W.2d 867, 869 n. 2, 871 n. 9 (Tex. Crim. App.1980); Diamond v. State, 530 S.W.2d 586, 587 (Tex. Crim. App.1975).

A person whose relationship to or association with the defendant is in the Family Code §71.0021(b) [dating relationship], §71.003 [family, includes former spouses, parents of the same child, foster child and parent] or §71.005 [household – persons living together in same dwelling – includes those who previously lived in a household (§71.006)], if defendant previously convicted of an offense under Texas Penal Code Chapter 22, Assaultive Offenses, Chapter 19, Criminal Homicide, or §20.03 [kidnapping], §20.04 [aggravated kidnapping], §21.11 [indecency with a child], or §25.11 [continuous violence against the family] against a person whose relationship to or association with the defendant is described in the Family Code §71.0021(b), §71.003 or §71.005, or the offense is committed by intentionally, knowingly or recklessly choking breath or circulation or blocking nose or mouth.61

Could the legislature have made it any more complicated? Once there is sufficient evidence to qualify a misdemeanor assault under one of these statutes, the crime becomes jurisdictionally a felony. In order to be convicted of a third-degree assault, the existence of the prior conviction must be proved during the guilt phase by the State because it enhances the offense and not the punishment.62

Other state’s convictions. Prior convictions from other states can be used to enhance a conviction under the Texas Penal Code provided that the elements of the out-of-state offense is substantially similar to the elements required for a conviction in Texas.63

Date of prior conviction. Even if the prior conviction occurred before the effective date of the statute, it can still be utilized because the status of the defendant is key, and the date of the prior conviction is not an element of the offense.64 Consistent? Not!

Convictions do not mean convictions. The Courts have long found that even though Art. 42.013 of the Code of Criminal Procedure requires a court to make an affirmative finding of family violence in its domestic assault judgments, that in the absence of such a finding this does not in itself preclude the introduction of extrinsic evidence that the previous assault was committed against a family member.65 So even though the assault statute plainly says the new assault is a felony of the third degree if the offense is committed against a family member described above,66

61 Texas Penal Code §22.01(b)(2).

62 Luna v. State, 402 S.W.3d 849, 851 (Tex. App. Amarillo 2013, no pet.).

63 Hill v. State, 392 S.W.3d 850, 857 (Tex. App. Amarillo 2013, pet. ref'd).

64 Manning v. State, 112 S.W.3d 740, 743 (Tex. App. Houston [14th Dist.] 2003, pet. ref'd); see Cannady v. State, 11 S.W.3d 205, 208 (Tex.Crim.App.2000).

65 Eakins v. State, 71 S.W.3d 443 (Tex. App. – Austin 2002, no pet.).

66 Infra note 59.

and the defendant has been previously convicted of an offense against a family member so described,67 it doesn’t mean it. This is when a conviction does not mean a proper conviction, but a “conviction” that can be proven later by extrinsic evidence. Since it is jurisdictional, that means it can be proven in the guilt/innocence phase of the trial prejudicing the defendant.

Next is a discussion of the general enhancement statutes which are the fall back for the state should a statute not provide a specific enhancement, the prosecutor choose to not enhance under the specific statute, or the state fail to be able to prove the elements of the desired enhancement.

Section III. Enhancement of Misdemeanors: Texas Penal Code §12.43.

The general enhancement statute as applied to misdemeanors is Texas Penal Code §12.43.

Class A Misdemeanors. Upon being convicted of a Class A Misdemeanor68, if a person has been previously convicted of either another Class A Misdemeanor or any degree of felony, the punishment enhancement is an increase in the minimum punishment to 90 days. The maximum jail time remains the same at one year, the maximum fine remains the same at $4,000 and the option of both fine and jail time remains.69

Class B Misdemeanors. Upon being convicted of a Class B Misdemeanor70, if a person has been previously convicted of another Class A or Class B Misdemeanor or any degree of felony, the punishment enhancement is an increase in the minimum punishment to 30 days. The maximum jail time remains the same at 180 days, the maximum fine remains the same at $2,000 and the option of both fine and jail time remains.71

Class C Misdemeanors. Upon being convicted of a Class C Misdemeanor of Disorderly Conduct72 or Public Intoxication73 if a person has been previously convicted of either Disorderly Conduct or Public Intoxication three times (including a combination of those offenses), and each prior offense was committed in the 24 months preceding the date of commission of the instant offense, the allowable punishment enhancement is an increase in the fine to a maximum of $2,000, confinement in jail for a maximum of 180 days, or both such fine and confinement.74

67

Texas Penal Code §22.01(b).

68 Texas Penal Code §12.21.

69 Texas Penal Code §12.43(a)

70 Texas Penal Code §12.22.

71 Texas Penal Code §12.43(b)

72 Texas Penal Code §42.01.

73 Texas Penal Code §49.02.

74 Texas Penal Code §12.43(c)

What counts as a prior case or final case? “[T]o enhance the punishment [,] it is necessary that the succeeding conviction be subsequent to the prior conviction, both in point of time of commission of offense as well as the conviction.”75 In this case, because the state did not offer any proof regarding the date the offense was committed, the prior conviction was not proved.76 It is improper for the state to utilize a prior conviction to enhance if the guilty plea for the prior case occurred after the date of the offense for which the defendant is on trial.77

Level of proof needed. “It is well settled that it is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offense.”78 The court has noted “that the object of the doctrine of variance is to avoid surprise to the defendant.”79 Thus, even if the prior offense has the wrong name or the wrong cause number, it will only be a material variance if there is evidence of prejudicial surprise.80 Certified copies are sufficient for a prior misdemeanor and so long as the information and judgment when read together demonstrates the offense for which the defendant was convicted.81 But the state must show that the defendant is the same person as the person convicted of the prior offense in order to enhance.82

Plea of true to enhancement. “If . . . a defendant pleads true to an enhancement paragraph, that relieves the State of its evidentiary burden to prove the enhancement allegations, unless the record ‘affirmatively reflects’ that the enhancements were improper.”83 Perhaps by not pleading true the court will not find the enhancements true.84

Alleging multiple prior convictions. The state is free to allege multiple prior convictions, as there is no limit on the number of prior convictions that can be alleged for enhancement purposes.85 “The statute places no limit on the number of prior convictions which may be alleged, even though two would be sufficient. A cautious grand jury would allege all available convictions, because of the possibility that one might fail of proof.”86

75 Simpson v. State, 233 S.W.2d 584 (Tex. Crim. App. 1950).

76 Id. at 585.

77 O'Rear v. State, 158 S.W.2d 996, 996-97 (Tex. Crim. App. 19420; See also Mullins v. State, 144 S.W.2d 565, 566 (Tex. Crim. App. 1940) [“The indictment must allege directly that . . . the second offense was repeated after conviction for the first.”].

78 Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986).

79 Id. 80 Id.

81 Skaggs v. State, 319 S.W.2d 310, 312-13 (Tex. Crim. App. 1958).

82 Ewing v. State, 286 S.W.2d 938, 939 (Tex. Crim. App. 1956).

83 Hopkins v. State, 487 S.W.3d 583, 586 (Tex. Crim. App. 2016).

84 See Donaldson v. State, 476 S.W.3d 433, 438-39 (Tex. Crim. App. 2015).

85 Rhodes v. State, 197 S.W.2d 359, 359 (Tex. Crim. App. 1946).

86 Id.

Categorization of prior crimes. If a prior conviction is enhanced, that does not change the initial categorization of the offense.87 If the defendant has three prior Class B misdemeanors, even if each was enhanced by a prior felony conviction, they remain Class B misdemeanors for the purposes of subsequent enhancements.88

Section IV. State Jail Felonies: Texas Penal Code §12.35

Before understanding enhancements as applied to state jail felonies, a basic understanding of the structure of state jail felonies is required.

Texas Penal Code §12.35 (a) & (b). The punishment statute for state jail felonies creates two types of state jail felonies. Under Texas Penal Code §12.35 (a) & (b) the basic punishment for a state jail felony is set. With one exception, punishment shall be by confinement in a state jail for any term of not more than two years and not less than 180 days, plus a fine not to exceed $10,000.

Texas Penal Code §12.35 (c). The second type of state jail felony is created by Texas Penal Code §12.35 (c). This is often referred to as an aggravated state jail felony.89 Although a bit convoluted, a careful analysis of the statute explains. A person convicted of a state jail felony shall be punished for a third-degree felony if it shown:

(1) that the person convicted used or exhibited a deadly weapon during the commission of the crime or during the immediate flight following the commission of the crime or the person convicted was a party to the offense and knew that a deadly weapon would be used or exhibited;90 or

87 See Lennox v. State, 06-19-00164-CR, 2020 WL 830842, at *3 (Tex. App. Texarkana Feb. 20, 2020, no pet. h.).

88 Id.

89 See Campbell v. State, 49 S.W.3d 874 (Tex. Crim. App. 2001); Pelache v. State, 324 S.W.3d 568 (Tex. Crim. App. 2010).

90 Texas Penal Code §12.35(c)(1) See State v. Brown, 314 S.W.3d 487, 491 (Tex. App. – Texarkana 2010, no pet.)[Fleeing with a motor vehicle with an allegation of the vehicle being a deadly weapon.].

(2) the person convicted has previously been finally convicted of any one of certain specifically enumerated felonies91 or if the previous conviction judgment contained an affirmative finding under Article 42A.054 (c)92 or (d),93 Code of Criminal Procedure.

Section V. Enhancement of State Jail Felonies: Texas Penal Code §12.425

The statute defining the enhancement of state jail felonies is entitled “Penalties for Repeat and Habitual Felony Offenders on Trial for State Jail Felony.”94 The history of the two state jail felony statutes is best saved for an ethereal law review study. Suffice it to say, they have caused great confusion during their infancy which is probably the reason so many lawyers are confused on the issue of state jail felony punishment and enhancement. Simplistically, Texas Penal Code §12.425 increases the range of punishment for the state jail felony charged, “not the degree, grade, or severity level of the primary offense.”95 The best way to analyze the statute is to take it one paragraph at a time.

Texas Penal Code §12.425(a). If on the trial of a state jail felony punishable under Section 12.35(a) that the defendant was previously finally convicted of two state jail felonies punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree.

Texas Penal Code §12.425(b). If on the trial of a state jail felony punishable under Section 12.35(a) that the defendant was previously finally convicted of two felonies other than a state jail felony punishable under Section 12.35(a), and the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a felony of the second degree.

Texas Penal Code §12.425(c). If on the trial of a state jail felony for which punishment may be enhanced by Section 12.35(c) that the defendant was previously finally convicted of a felony

91 Texas Penal Code §12.35(c)(2)(A) [The enumerated felonies are listed in the Texas Penal Code §20A.03 (Continuous trafficking of persons) or §21.02 (Continuous Sexual Abuse of Child or Children) or listed in Article 42A.054(a), Code of Criminal Procedure (1st degree Criminal Solicitation, Murder, Capital Murder, Aggravated Kidnapping, Trafficking of Persons, Indecency with a Child, Sexual Assault, Aggravated Sexual Assault, 1st degree Injury to a Child, Aggravated Robbery, Burglary under (d) and with the intent to commit a felony under §§21.02, 21.11, 22.011, 22.021, or 25.02, Texas Penal Code, Compelling Prostitution, Sexual Performance by a Child, or Drug offense if Use of Child in Commission of Offense or certain drug offenses in a Drug-free Zone if previously convicted of an offense for which punishment was previously increased, or affirmative finding of the use or exhibition of a deadly weapon. These are what we use to call the 3g offenses.].

92 Paragraph (c) states: “On an affirmative finding regarding the use or exhibition of a deadly weapon as described by Subsection (b), the trial court shall enter the finding in the judgment of the court.” Article 42A.054 (c), Texas Code of Criminal Procedure.

93 Paragraph (d) states: “On an affirmative finding that the deadly weapon under Subsection (c) was a firearm, the court shall enter that finding in the judgment.” Article 42A.054 (d), Texas Code of Criminal Procedure.

94 Id.

95 Henderson v. State, 582 S.W.3d 349, 355 (Tex. App. – Amarillo 2018 pet. ref’d).

other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.

Texas Penal Code §12.425(a)

Two Previous State Jail Convictions (sequential or not). First determine if the crime charged is intended to be punished under Texas Penal Code §12.35 (a) & (b) – the standard state jail felony punishment statute. The easy way to do this is determine if the crime charged is not specifically defined by Texas Penal Code §12.35 (c), see above. In this case, it is intended to be punished under Paragraphs (a) & (b). Then, determine if the person charged has previously been convicted of two of these standard state jail felonies, being state jail felonies not punished under Paragraph (c) of Texas Penal Code §12.35. It doesn’t matter when the person charged received these two previous convictions, just that there are two. The only limitation is that the previous convictions must be final before the date of the commission of the charged crime. In this case, when convicted, the punishment shall be that of a third-degree felony.

Texas Penal Code §12.425(b).

Two Previous Sequential Felony Convictions (other than standard State Jail Felonies). To fit under this enhancement provision, determine if the crime charged is intended to be punished under Texas Penal Code §12.35 (a) & (b) – the standard state jail felony punishment statute. Again, the easy way to do this is determine if the crime charged is not specifically defined by Texas Penal Code §12.35 (c), see above. In this case, it is intended to be punished under Paragraphs (a) & (b). Then, determine if the person charged has previously been convicted of two felonies that are not a standard state jail felonies. Under this provision the convictions must be sequential. That means, the person was charged with a felony that was not a standard state jail felony, was convicted, went to prison, was released, received a second felony which was not a standard state jail felony, was convicted, went to prison, and was released all before committing the crime charged. Once again, the previous convictions must be final and sequential before the date of the commission of the charged crime. In this case, when convicted, the punishment shall be that of a second-degree felony.96

Texas Penal Code §12.425(c)

Finally, this section applies only to state jail felonies punished under Texas Penal Code §12.35(c), or what is called an aggravated state jail felony.97 Remember these §12.35(c) state jail felonies already carry the enhanced punishment of a third degree felony. However, that third degree punishment can be raised to a second degree felony punishment if the person charged with an

96 See Bledsoe v. State, 480 S.W.3d 638 (Tex. App. – Texarkana 2015). Defendant, charged with standard state jail felony, could not be enhanced to a second degree punishment where his priors were a second degree felony and another standard state jail felony, even though the standard state jail felony had been punished at a second degree felony level. Id.

97 See Ford v. State, 334 S.W.3d 230, 233 (Tex. Crim. App. 2011).

aggravated state jail felony, or a §12.35 (c) state jail felony, was previously finally convicted of just one other felony, other than a standard state jail felony. There is little doubt in my mind that this would include a previous conviction for another aggravated state jail felony too. It takes a diligent prosecutor to determine if this enhancement paragraph fits a charged defendant. Therefore, it is not used very often. But when it is, it allows a person to be exposed to a seconddegree felony punishment for a state jail felony offense with only one previous conviction.98

State Jail Felony Cases of Note

As an aside, there is some confusion in interpreting Texas Penal Code §12.425 as to how to handle previous convictions of a state jail felony that wasn’t meant to be punished under Texas Penal Code §12.35 (a) & (b) (the standard state jail felony) but was punished under Texas Penal Code §12.35 (c) (the aggravated state jail felony).99

The Texarkana Court of Appeals in Thomas v. State said that the trial courts could not use a previous state jail felony conviction for the purposes of enhancing a current charge punishable under §12.35(c), whether that previous state jail felony was a standard (§12.35 (a) & (b)) or an aggravated state jail felony (§12.35 (c)) specifically a previous §12.35(c) conviction.100 Although this Thomas decision was reversed by the Court of Criminal Appeals for other reasons, the CCA did not address this issue and it is clear that the CCA was not critical of the Texarkana Court’s reasoning.101 I would argue the COA in Thomas was wrong in their analysis. As authority, they used the case of State v. Webb which was a CCA case from 2000.102 In the year 2000, the subject enhancement language did not reference previous state jail felony convictions of any type.103 But the current wording of the enhancement statute includes the language “previously been

98 See Scales v. State, 2020 WL 1174185 (Tex. App. – Amarillo 2020 unpublished). Note: I ran a Westlaw search on the term “12.425(c)” and discovered only 14 cases. Two of those cases had red flags, one was published (Henderson v. State, 582 S.W.3d 349, 355 (Tex. App. – Amarillo 2018 pet. ref’d), and eleven of the fourteen were either not published or not released for publication yet. This just confirms my belief this statute is not well understood and therefore not frequently used.

99 The Courts use the designation “standard state jail felony” for a state jail punished under Texas Penal Code §12.35 (a) & (b); “aggravated state jail felony” for a state jail punished under Texas Penal Code §12.35 (c); and “enhanced state jail felony” for those enhanced under Texas Penal Code §12.425. See Thomas v. State, 481 S.W.3d 685 (Tex. App.-Texarkana 2015) Overruled on other grounds, see Thomas v. State, 516 S.W.3d 498 (Tex. Crim. App. 2017).

100 Thomas v. State, 481 S.W.3d 685 (Tex. App.-Texarkana 2015) Reversed on other grounds, see Thomas v. State, 516 S.W.3d 498 (Tex. Crim. App. 2017)

101 Thomas v. State, 516 S.W.3d 498 (Tex. Crim. App. 2017).

102 State v. Webb, 12 S.W.3d 808 (Tex. Crim. App.2000).[Webb was about the State and the trial court not understanding the difference been enhancements used to increase merely punishment and enhancements used to raise the level of the crime. The State tried to double enhance – raise the punishment to a second degree because of prior convictions and then use the habitual enhancement statute to raise the minimum to 25 years] Id

103 “Section 12.42, titled “Penalties for Repeat and Habitual Felony Offenders,” provides in relevant part: “…(a)(2) If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a second-degree felony.” State v. Webb at p. 810.

finally convicted of two felonies other than a state jail felony punishable under Section 12.35(a)” when addressing the enhancement of a §12.35(a) state jail felony (standard state jail felony).104 The language emphasized in the preceding sentence was not in the statute as it was written in the Webb case. It is clear, the legislature intended to add state jail felonies punished under §12.35(c) (aggravated state jail felonies) to those felonies that could be used to enhance in this situation. By Statute, state jail felonies have always been classified as felonies105 and by specifically cutting out §12.35(a) felonies the legislature specifically did not cut out the use of §12.35(c) state jail convictions. Had the legislature intended to exclude all state jail felonies from this enhancement they would not have inserted the language emphasized above or left out the specific language to §12.35(a).

I believe a previous aggravated state jail felony punished under §12.35(c) conviction can be used to enhance a standard state jail felony to a second-degree felony punishment under §12.425(c) I thought I might be alone in my belief until I found Terrell v. State out of Houston.106 The Court in Terrell lays out my vision of §12.35(c) Terrell allows the use of §12.35(c) state jail felonies in conjunction with previous felony convictions as set out in Texas Penal Code §12.42(d) to affirm a 50 year sentence for possession of a controlled substance under one gram.107 Although I am horrified that the CCA allowed someone to receive a 50 year sentence for a small drug charge, in their reasoning they confirm my belief that §12.35(a) and §12.35(c) state jail felonies are to be viewed differently in their applications within the enhancement statutes I don’t think Texarkana COA would agree.

Chambless v. State A state jail felony punished under §12.35(c) is a punishment enhancement not a charging enhancement.108 A person may use or exhibit a “deadly weapon” in the course of committing criminally negligent homicide, but it is not necessarily so. If the defendant did not use or exhibit a deadly weapon, then he would only be punished for a state jail felony.109

Raising level of charge versus raising punishment. Should you believe that my emphasis on knowing the difference between enhancements raising the level of the crime and merely raising the punishment is too rudimentary, I direct you to the case of Garcia v. State from Brown County

104

Texas Penal Code §12.425(b).

105 Texas Penal Code §12.04.

106 Terrell v. State, 2016 WL 4374959 (Tex. App. - Houston (1st Dist.) 2016) not designated for publication.

107 Id. Terrell argued since the jury found he used a deadly weapon that his 12.35(a) state jail felony would be properly punished under 12.35(c) and with a prior felony conviction should be punished as a second-degree felony. The COA found since he had two sequential felonies not 12.35(a) state jail felonies, that the 25-life provisions of 12.42(d) applied to him. The case had no writ history. See also Salazar v. State, 474 S.W.3d 832 (Tex. App. – Corpus ChristiEdinburg 2015) [An aggravated state jail felony can be used under Texas Penal Code §12.42(d) [habitual-offender statute] to enhance sentence.]

108 Chambless v. State, 411 S.W.3d 498, 501-02 (Tex. Crim. App. 2013).

109

Chambless v. State, 368 S.W.3d 785, 790–91 (Tex. App. Austin 2012), aff'd, 411 S.W.3d 498 (Tex. Crim. App. 2013).

in 2018. Garcia was charged with a state jail felony drug charge110 which was enhanced under the drug free zone statutes.111 The prosecutor, defense counsel and the court thought the drug free zone enhancement raised Garcia’s state jail felony to a third degree felony which resulted in Garcia eventually being sentenced to six years in prison for a third degree felony. The mistake was the drug free zone enhancement merely raises the punishment to a third-degree level by the plain meaning of the statute. The original judgment finding Garcia guilty of a third-degree felony was void.112

Proof of previous state jail conviction insufficient. Defendant was convicted of aggravated robbery with an affirmative deadly weapon finding and was enhanced to a punishment level of from 25 years to life because of two prior felony convictions.113 The Court of Appeals found the evidence did not support use of prior unlawful use of vehicle conviction for sentencing defendant as repeat offender.114 The prior judgment did not specify whether the Defendant was previously punished under §12.35(a) or §12.35(c).115 The use of a conviction under §12.35(a) may not be used in the habitual enhancement statute.116 The Court remanded the case for a new trial on punishment.117 This case highlights the necessity to obtain copies of the previous judgments used for enhancement and the necessity of putting the State to its burden.

State jail felony punished under §12.35(c) enhanced by previous felony conviction. Jury affirmatively found use of a deadly weapon in commission of a state jail felony118 and Defendant pled true to an enhancement provision.119 The trial court assessed 11 years but erroneously showed the level of offense as a second degree felony.120 The Court of Appeals affirmed the conviction but reformed the judgment to show a conviction of a state jail felony.121 Here, once again, the Court, the prosecutor and the defense lawyer did not understand the difference between using enhancements for jurisdiction/level of offense and using enhancements to merely establish the level of appropriate punishment. Additionally, why enter a plea of true? Put the

110 See Tex. Health & Safety Code Ann. § 481.112 (West Supp. 2017) [Garcia was charged with possession of a Penalty Group I drug under 1 gm, a state jail felony.].

111 See Tex. Health & Safety Code § 481.134(b) [“An offense otherwise punishable as a state jail felony under Section 481.112, is punishable as a felony of the third degree….”].

112 Garcia v. State, 549 S.W.3d 335 (Tex. App. - Eastland 2018, pet. ref’d)

113 Hartwell v. State, 476 S.W.3d 523 (Tex. App. – Corpus Christi-Edinburg 2015, pet. ref’d).

114 Id., at 540.

115 Id.

116 “[l]f it is shown on the trial of a felony offense other than a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses … on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years.” Tex. Penal Code Ann. §12.42(d) emphasis added; See Hartwell at p. 541.

117 Hartwell’s original sentence was 75 years. He is currently serving a 60 year sentence from a 2016 conviction, See https://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action?sid=04358586.

118 Henderson v. State, 582 S.W.3d 349, 350 (Tex. App. – Amarillo 2018 pet. ref’d). 119 Id.

120 Id., at pp. 350-51. 121 Id.

State to their burden. In fact, if you additionally push for the court to make findings, the court may fail to do so requiring a reversal.122

Section VI. Enhancement of Felonies: Texas Penal Code §12.42

Texas Penal Code §12.42 is the primary, generic enhancement statute for first degree, second degree and third-degree felony offenses. The following rules apply to crimes committed on or after September 2, 2011. One should consult the former statute for crimes committed prior to that time. A book could be written on this section of the Penal Code as it was first written by the legislature in 1973 and has been changed virtually every legislative session in the last twenty years. Keeping up with just this section could be your life’s work. As this section deals with the most serious crimes and those that commit them, the experience level of the attorney dealing with this section should be the most experienced of us. Therefore, I will not analyze this section in great detail. This paper and my lecture is aimed more at those attorneys at the beginning of their career in criminal law. With that in mind, here are the basics.

Texas Penal Code §12.42(a)

Third degree punished as second degree. With one exception detailed below, if it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Texas Penal Code §12.35(a), on conviction the defendant shall be punished for a felony of the second degree.

Exception. When a defendant charged with a third-degree felony fits this punishment enhancement, if that defendant also qualifies for enhancement under the mandatory life provisions of Texas Penal Code §12.42(c)(2), Subsection (c)(2) applies first. For a discussion of Subsection (c)(2) see below.

Texas Penal Code §12.42(b)

Second degree punished as first degree. With two exceptions detailed below, if it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Texas Penal Code §12.35(a), on conviction the defendant shall be punished for a felony of the first degree.

Exceptions. When a defendant charged with a second degree felony fits this punishment enhancement, if that defendant also qualifies for enhancement under the mandatory life provisions of Texas Penal Code §12.42(c)(2) or the mandatory life without parole provisions of

122 See Donaldson v. State, 476 S.W.3d 433, 438-39 (Tex. Crim. App. 2015). Trial court failed to make either express nor implied finding of true with respect to enhancement paragraph necessary for habitual or repeat offender sentencing for state jail felonies necessitating a reversal and remand for resentencing. Id.

Texas Penal Code §12.42(c)(4), Subsections (c)(2) or (c)(4) apply first. For a discussion of these Subsections see below.

Texas Penal Code §12.42(c)(1)

Enhanced first degree. If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Texas Penal Code §12.35(a), on conviction the defendant shall be punished by imprisonment for life, or any term of not more than 99 or less than 15 years, and in addition may be punished by a fine not to exceed $10,000.

Texas Penal Code §12.42(c)(2)

Here is an outline of Texas Penal Code §12.42(c)(2) that deals with mandatory life sentences.

Mandatory life sentence. Notwithstanding Texas Penal Code §12.42(c)(1) above [Life, 15-99 years, $10,000 fine], a Defendant shall be punished by imprisonment for life,

(A) if the Defendant is convicted of one of the following:

(i) Texas Penal Code §20A.02(a)(7) [trafficking a child]

Texas Penal Code §20A.02(a)(8) [receiving a benefit from participating in child trafficking]

Texas Penal Code §21.11(a)(1) [indecency with a child – engages in sexual contact]

Texas Penal Code §22.021 [aggravated sexual assault]

Texas Penal Code §22.011 [sexual assault]

(ii) Texas Penal Code §20.04(a)(4) [aggravated kidnapping with intent to violate or abuse victim sexually], or

(iii) Texas Penal Code §30.02 [burglary of a habitation], if punishable under Texas Penal Code §30.02(d) if the defendant committed the offense with intent to commit a felony described by Subparagraph (i) or (ii) immediately above or a felony under Texas Penal Code §21.11 [indecency with a child by contact or exposure];

AND

(B) Defendant has been previously convicted of an offense under:

(i) Texas Penal Code §43.25 [sexual performance by a child]

Texas Penal Code §43.26 [possession or promotion of child pornography]

Texas Penal Code §43.23 punishable under Subsection (h) of §43.23 [obscenity –involving children]

(ii) Texas Penal Code §20A.02(a)(7) [trafficking a child]

Texas Penal Code §20A.02(a)(8) [receiving a benefit from participating in child trafficking]

Texas Penal Code §21.02 [continuous sexual abuse of young child or children]

Texas Penal Code §21.11 [indecency with a child by contact or exposure]

Texas Penal Code §22.011 [sexual assault]

Texas Penal Code §22.021 [aggravated sexual assault]

Texas Penal Code §25.02 [prohibited sexual conduct]

(iii) Texas Penal Code §20.04(a)(4) [aggravated kidnapping with intent to inflict bodily injury or violate or abuse the victim sexually]

(iv) Texas Penal Code §30.02, punishable under Subsection (d) of §30.02, if committed with intent to commit a felony described by Subparagraph (ii) or (iii) immediately above, or

(v) the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv) in Texas Penal Code §12.42(c)(2)(B) immediately above.123

Texas Penal Code §12.42(c)(3)

Habitual capital felony of repeat aggravated assault. Texas Penal Code §12.42(c)(3) makes it a capital offense to commit aggravated sexual assault of a child as a repeat offender. A defendant shall be punished for a capital felony if it is shown on the trial of an offense under Texas Penal Code §22.021 (aggravated sexual assault) otherwise punishable under Texas Penal Code

123 Fisk v. State, 574 S.W.3d 917 (Tex. Crim. App. 2019) overruled Prudholm v. State, 333 S.W.3d 590, 594 (Tex. Crim. App. 2011) and Anderson v. State, 394 S.W.3d 531, 536 (Tex. Crim. App. 2013), in their use of a two-pronged test to define the phrase “substantially similar” as used in Texas Penal Code §12.42(c)(B)(v), holding that the first prong of the test should be applied to the elements of the previous conviction, if proven, and that the second prong of the test should be abandoned.

§22.021(f) [minimum term of imprisonment is 25 years] that the defendant has previously been finally convicted of:

(A) an offense under Texas Penal Code §22.021 (aggravated sexual assault) that was committed against a victim younger than 6 years old or younger than 14 and in a manner described [(i) serious bodily injury (SBI) or attempts death, (ii) puts victim in fear of death, SBI, kidnapping, (iii) threatens death, SBI or kidnapping to any person, (iv) uses or exhibits deadly weapon, (v) acts with another, or (vi) uses date rape drugs; or

(B) a similar offense under the laws of another state.

In Kennedy v. Louisiana, 124 the Supreme Court declared unconstitutional a Louisiana statute similar to Texas Penal Code §12.42(c)(3), used to sentence Kennedy to death for raping his eightyear-old stepdaughter. (5-4 decision) The Court held that the 8th Amendment bars states from imposing a death penalty for rape of a child where the crime did not result, and was not intended to result, in the child's death.

A minority of the Court wrote there is no national consensus on prohibiting the death penalty of child rapists but the trend is toward its use. They opposed application of a “blanket condemnation” barring the death penalty in child rape cases regardless of the facts of the case. The Texas Legislatures in 2009, 2011, 2013, 2015, 2017 and 2019 have failed to repeal or remove Texas Penal Code §12.42(c)(3) (or the procedural statute) from the Texas statutory provisions. The minority noted that the Louisiana statute is different from the Texas statute because in Texas multiple convictions over an extended period of time make a defendant eligible for capital punishment whereas the Louisiana statute allowed a death sentence when first charged with child rape. My belief is the Legislature is saving the statute for a Supreme Court challenge when circumstances present itself.

Texas Penal Code §12.42(c)(4)

Mandatory Life Without Parole. Notwithstanding Texas Penal Code §12.42(c)(1) [enhanced first degree] or Texas Penal Code §12.42(c)(2) [mandatory life sentence], and except as provided by Texas Penal Code §12.42(c)(3) [habitual capital felony of repeat aggravated assault], a defendant shall be punished by imprisonment for life without parole if it is shown on the trial of an offense under Texas Penal Code §20A.03 [continuing trafficking of persons] or of a sexually

124 Kennedy v. Louisiana, 554 U.S. 407 (2008), as modified (Oct. 1, 2008), opinion modified on denial of reh’g, 554 U.S. 945, 129 S. Ct. 1, 171 L. Ed. 2d 932 (2008).

violent offense,125 committed by the defendant on or after the defendant’s 18th birthday, that the defendant has previously been finally convicted of:

(A) an offense under Texas Penal Code §20A.03 or of a sexually violent offense; or (B) an offense that was committed under the laws of another state and that contains elements that are substantially similar to the elements of an offense under Texas Penal Code §20A.03 or of a sexually violent offense.

Texas Penal Code §12.42(c)(5)

Limitation on use of state jail felony conviction. A previous conviction for a state jail felony punishable under Texas Penal Code §12.35(a) [standard state jail felony] may not be used for enhancement purposes under Texas Penal Code §12.42(c)(2) [mandatory life sentence] above.

Texas Penal Code §12.42(d)

Felony punished as habitual felon. With two exceptions detailed below, if it is shown on the trial of a felony other than a state jail felony punishable under Texas Penal Code §12.35(a) that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished by imprisonment for life, or for any term of not more than 99 years or less than 25 years. A previous conviction for a state jail felony under Texas Penal Code §12.35(a) may not be used for enhancement purposes under this subsection.126

Exceptions. When it is intended to enhance a defendant’s punishment under this Subsection, if that defendant also qualifies for enhancement under the mandatory life provisions of Texas Penal Code §12.42(c)(2) or the mandatory life without parole provisions of Texas Penal Code §12.42(c)(4), Subsections (c)(2) or (c)(4) apply first. For a discussion of these Subsections see above.

Texas Penal Code §12.42(f)

Juveniles. Another enhancement that is often not well understood is how an adult can have an adult sentence enhanced by something done during their childhood. This is in Texas Penal Code §12.42(f).

Texas Penal Code §12.42(f). For the purposes of enhancing a felony conviction under

125 Texas Penal Code §12.42(h) defines “sexually violent offenses.” It means an offense (1) described by Article 62.001(6), Code of Criminal Procedure; and (2) for which an affirmative finding has been entered under Article 42.015(b) or 42A.105(a), Code of Criminal Procedure, for an offense other than an offense under Texas Penal Code §21.02 or Texas Penal Code §22.021. A discussion of this provision is beyond the scope of this paper. I refer the reader to the referenced provisions should the need arise.

126 Salazar v. State, 474 S.W.3d 832 (Tex. App. – Corpus Christi-Edinburg 2015) [An aggravated state jail felony can be used under Texas Penal Code §12.42(d) [habitual-offender statute] to enhance sentence.]

Texas Penal Code §12.42(a) [third degree felony punished as a second-degree felony],

Texas Penal Code §12.42(b) [second degree felony punished as a first-degree felony], and Texas Penal Code §12.42(c)(1) [first degree felony punished by life, 15-99 years, with a $10,000 fine permissible],

an adjudication by a juvenile court under Texas Family Code §54.03127 that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Juvenile Justice Department (TJJD) under

Texas Family Code §54.04(d)(2)128 [Indeterminate sentence]

Texas Family Code §54.04(d)(3)129 [Determinate sentence]

Texas Family Code §54.04(m)130 [Habitual felony conduct] or

Texas Family Code §54.05(f)131 [Modification of disposition]

127

Texas Family Code §54.03 is the statute for juvenile Adjudication Hearings, in effect the equivalent to the guiltinnocence stage of an adult trial.

128

Texas Family Code §54.04(d)(2). “[I]f the court or jury found at the conclusion of the adjudication hearing that the child engaged in delinquent conduct that violates a penal law of this state or the United States of the grade of felony, the court or jury made a special commitment finding under Section 54.04013, and the petition was not approved by the grand jury under Section 53.045, the court may commit the child to the Texas Juvenile Justice Department under Section 54.04013, or a post-adjudication secure correctional facility under Section 54.04011(c)(1), as applicable, without a determinate sentence.” Id.

129 Texas Family Code §54.04(d)(3). “[I]f the court or jury found at the conclusion of the adjudication hearing that the child engaged in delinquent conduct that included a violation of a penal law listed in Section 53.045(a) and if the petition was approved by the grand jury under Section 53.045, the court or jury may sentence the child to commitment in the Texas Juvenile Justice Department or a post-adjudication secure correctional facility under Section 54.04011(c)(2) with a possible transfer to the Texas Department of Criminal Justice for a term of: (A) not more than 40 years if the conduct constitutes: (i) a capital felony; (ii) a felony of the first degree; or (iii) an aggravated controlled substance felony; (B) not more than 20 years if the conduct constitutes a felony of the second degree; or (C) not more than 10 years if the conduct constitutes a felony of the third degree.” Id.

130 Texas Family Code§ 54.04(m). “The court or jury may sentence a child adjudicated for habitual felony conduct as described by Section 51.031 to a term prescribed by Subsection (d)(3) and applicable to the conduct adjudicated in the pending case if: (1) a petition was filed and approved by a grand jury under Section 53.045 alleging that the child engaged in habitual felony conduct; and (2) the court or jury finds beyond a reasonable doubt that the allegation described by Subdivision (1) in the grand jury petition is true.” Id.

131 Texas Family Code §54.05(f). “Except as provided by Subsection (j), a disposition based on a finding that the child engaged in delinquent conduct that violates a penal law of this state or the United States of the grade of felony may be modified so as to commit the child to the Texas Juvenile Justice Department or, if applicable, a post-adjudication secure correctional facility operated under Section 152.0016, Human Resources Code, if the court after a hearing to modify disposition finds by a preponderance of the evidence that the child violated a reasonable and lawful order of the court. A disposition based on a finding that the child engaged in habitual felony conduct as described by Section 51.031 or in delinquent conduct that included a violation of a penal law listed in Section 53.045(a) may be modified to commit the child to the Texas Juvenile Justice Department or, if applicable, a post-adjudication secure correctional facility operated under Section 152.0016, Human Resources Code, with a possible transfer to the Texas Department of Criminal Justice for a definite term prescribed by, as applicable, Section 54.04(d)(3) or Section

is a final felony conviction.132

So if a child is placed in the TJJD for a felony, that placement is a final felony that can be used to enhance the punishment of a third, second or first degree felony. Such juvenile adjudications may not be used to enhance an adult conviction under Texas Penal Code §12.42(c)(2) [Mandatory life sentence], Texas Penal Code §12.42(c)(3) [Habitual capital felony of repeat aggravated assault], Texas Penal Code §12.42(c)(4) [Mandatory Life Without Parole], and under Texas Penal Code §12.42(d) [habitual offender statute imprisonment for life, or for any term of not more than 99 years or less than 25 years]. These enhancements are excluded by their omission from Texas Penal Code §12.42(f).

Texas Penal Code §12.42(g)

Expanded definitions of “convictions.” In Texas Penal Code §12.42(g)(1), as to the previous “convictions” of the offenses listed in Texas Penal Code §12.42(c)(2)(B) [laundry list of sex crimes] above, “convicted” includes being adjudged guilty or entering a plea of guilty or nolo contendere in return for a grant of deferred adjudication after September 1, 1997,133 regardless of whether the sentence was ever imposed [went to the pen] or whether sentence was probated and the defendant was subsequently discharged from community supervision [completed probation successfully], and

(2) a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense listed in Texas Penal Code §12.42(c)(2)(B) [laundry list of sex crimes] is a conviction of an offense listed under Penal Code §12.42(c)(2)(B).

Hopefully, this paper has provided you with a start for your own research into criminal enhancements. Enhancements can create a headache for defendants and their attorney’s, but simple research and preparation can provide some clarity. Enhancements is an area of law that

152.0016(g), Human Resources Code, if the original petition was approved by the grand jury under Section 53.045 and if after a hearing to modify the disposition the court finds that the child violated a reasonable and lawful order of the court.” Id.

132 Texas Penal Code §12.42(f) still contains the language that allows not only commitment to the TJJD to qualify as a felony for adult enhancement purposes, but also includes commitment “to a post-adjudication secure correctional facility under Section 54.04011.” Texas Family Code §54.04011 expired December 31, 2018, but still appears in the printed language of Texas Penal Code §12.42(f). I am sure the legislature will correct this oversight. Or not.

133 The deferred adjudication provision of Texas Penal Code §12.42 (g)(1) was deemed unconstitutional as applied in the case of Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001) because the prosecutor tried to use a deferred adjudication as an enhancement provision, but the deferred adjudication was granted and complied with before the “deferred adjudication” conviction provision was added to the statute in 1997. Basically, you can still use a deferred adjudication as an enhancement under this provision if the adjudication was granted after September 1, 1997.

is always changing, but this paper provides the basic starting point. Good luck on future enhancement endeavors.

Criminal Defense Lawyers Project

January 5, 2023

Texas Tech School of Law Lubbock, TX

Topic:

Presiding Judge of the 140th District Court Lubbock County, TX 806.775.1032 phone dfreitag@lubbockcounty.gov email

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

ETHICAL CONSIDERATIONS FOR YOUNG LAWYERS

2023 Prairie Pup Seminar – Lubbock, Texas

Douglas H. Freitag, Presiding Judge

140th District Court – Lubbock County, Texas

Let’s not kid ourselves. While law school was most likely fantastic at teaching you the ins and outs of the theory of law along with some practicalaspectsofwhattoexpectin the practice of law, nothing can prepare for thedayinand dayout of everyday legal practice. No matter the courses you took, nor the grades you received, no matter the competitions you may have competed in, when you have that first (or fifteenth) “real” client, it’s a whole new ballgame.

Young lawyers, and old lawyers too to a lesser extent, are invariably surrounded with scenarios and situations where they are placed outside of their respective comfort zone. This is especially true for the young lawyer who is attempting to

1 Texas Rules of Disciplinary Conduct Rule 1.01 “A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence…”

2 Id. Comment 3. A lawyer may not need to have special training or prior experience to accept employment to handle legal problems of a type with which the lawyer is unfamiliar. Although expertise in a particular field of law may be useful in some circumstances, the appropriate proficiency in many

learn the practice of law while payingtherent,puttingfoodontheir (and their respective family’s) table, cover the cost associated with running an office, and oh yeah, no longerbeing abletoavoidthe9a.m. class. Feeling these, and other, pressures invariably lead young lawyers to take on work which they otherwisewouldnottakeonandthis can be a challenge from a practice standpointaswellas froman ethical standpoint. Beforeyouknowit,you find yourself in over your head and you’ve got a problem.1

While the Comments to Tex. Rule Disc. Conduct Rule 1.01 make it clear that there are many areas where a lawyer can be competent without a need for specialized knowledge or training2, sometimes

instances is that of a general practitioner. A newly admitted lawyer can be as competent in some matters as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.

it simply isn’t worth the headache and heartache. Taking on matters outside of your comfort zone often requiresthat extratimeandeffortbe spent on the matter to the detriment of other matters in the office, or lawyerswillputasidethatwhatthey don’tknowtoworkonwhattheydo. As Comment 7 points out “Perhaps noprofessionalshortcomingismore widely resented than procrastination.”3

Even if the attorney is completely competent to handle the matter, there will be clients that won’t be satisfied. Additionally, as you continue in a criminal defense dominant practice, you are going to haveclientsthatarenotsatisfiedand that have extra time on their hands in which they can, and will, reach out to the State Bar of Texas Office ofChiefDisciplinaryCounseltofile complaints against you. While many, if not all, of these complaints

Comment 4. A lawyer possessing the normal skill and training reasonably necessary for the representation of a client in an area of law is not subject to discipline for accepting employment in a matter in which, in order to represent the client properly, the lawyer must become more competent in regard to relevant legal knowledge by additional study and investigation. If the additional study and preparation will result in unusual delay or expense to the client, the lawyer should not accept employment except with the informed consent of the client

3 Id. Comment 7.

4 Texas Rules of Disciplinary Conduct Rule 4.01 “In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material

will be completely lacking in all merit, you may still be required to respond to them. As such, it is a good idea to get a casual familiarity with the State Bar Grievance Process. Find an attorney that has served on a Grievance Committee. Theyare a wealthofknowledge and will help you avoid making a mistake that would lead to a legitimate complaint.

Beyond current/former clients, the sourcesofcomplaintscanalsocome from other attorneys and, unfortunately, from members of the bench. Conflicts arise. Both in representation and in scheduling. ALWAYStellthetruthandNEVER make a false statement to the Court or the other side. 4,5 Attorneys and judges have long memories when someone isn’t truthful with them.

Mostattorneysarehappytoagreeto reschedule with you because they recall the time that they needed a

fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.”

5 The only attorney I have ever reported to the State Bar was reported for presenting a sworn statement that was false. The lawyer, presented two separate judges with a sworn statement that he couldn’t be in court in one location because he/she was required to be in the court in another location. Judges have phones and email too……That lawyer is currently suspended from the practice of law in the State of Texas for making other sworn false statements to a third judge.

helping hand with a schedule conflict as well. This is especially true in the Lubbock area where we have the good fortune of having attorneys that work well with each other even when on opposing sides ofacase. Don’t forget, you may not have a scheduling conflict today, but there is one coming. It’s only a matter of time as to when it comes alongandwhoknows,thelawyeron the other side may be the same one who is asking you to agree to a reset now.

One of the biggest “dangers” for a young lawyer is ex parte communications.6 Anytimeyouare approaching the Court outside of a scheduled hearing to ask for something that concerns a ruling or an outcome, proceed with caution. There are certain limited situations where an ex parte communication is expresslyauthorizedbylaw. These include temporary restraining orders, default judgments, protective orders, and emergency removals of children by TX DFPS, as well as requests for the issuance of arrest warrants, and issuance of search warrants.

Do what you can to avoid ex parte communications with the Court.

6 Tex. Rule Disciplinary Conduct Rule 3.05 (b)

7 Ake v. Oklahoma; 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)

Send emails and copy opposing counsel. Stay away from text messages to the Court as well as phonecalls/voicemails. Andplease do not sit the court coordinator’s office talking to them (or the court reporter) about the upcoming case. TheCourt’sstaffshouldn’tbeaware of the facts of a case any more than the Judge is.

In everyday practice for a criminal defense attorney, the most common ex parte communication is probably an Ake motion wherein you are requesting that the Court provide funds for expert assistance without having to disclose to the State who the expert is and what the source of their anticipated testimony would be 7,8

Much along the same lines as requesting that the Court advance funds for the use of an expert, the other time that a ex parte motion may be of use is for the production of documents or things in the possessionofathirdpartybutwhere you do not want the State to know you are seeking the documents/things in an effort to not disclose your defensive theory of the case. While at the time of this writing,thatisa legitimateexparte

8 Williams v. State; 958 S.W.2d 186 (1997)

communication9, beware that this could change based upon what the Court of Criminal Appeals does in two pending cases before them.10, 11, 12

9 In re City of Lubbock, No. 07-21-00070-CV (Tex. App. Amarillo Sep. 2, 2021)

10 In re City of Lubbock, WR-93,137-01

11 In re K. Sunshine Stanek, Lubbock County Criminal District Attorney, Relator, WR-93,160-01

12 Oral Argument before the Texas Court of Criminal Appeals can be found on these cases at https://www.youtube.com/watch?v=54jrOZj3bUk

In The Court of Appeals

Seventh District of Texas at Amarillo

No. 07-21-00070-CV

IN RE CITY OF LUBBOCK,

RELATOR

Original Proceeding Arising From Proceedings Before the 140th District Court Lubbock County, Texas

Trial Court No. 2020-421,049; Honorable Douglas H. Freitag, Presiding

September 2, 2021

CONCURRING OPINION

Before QUINN, C.J., and PIRTLE and DOSS, JJ.

I concur with the majority in deciding that the City of Lubbock has no adequate legal remedy and rejecting the argument that the constitutionality of various parts of the Code of Criminal Procedure are under attack. I also agree with the majority’s conclusion that the trial court did not abuse its discretion in entering the order at issue but do so for a different reason.

As the relator, the burden lay with the City to prove entitlement to a writ of mandamus. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (orig.

proceeding) (stating that “[m]andamus will issue if the relator establishes a clear abuse of discretion for which there is no adequate remedy by appeal”). That required it to illustrate that the order under attack constituted an instance of abused discretion. Id. Here, the order under attack directed the City to provide the trial court with the records sought by Rodolfo Zambrano for purposes of conducting an in camera review 1 In so ordering, the trial court expressly reserved its decision on what to do with the records once inspected by it. Given this, the true issue involves the authority of the trial court to order the delivery of the records to it for its review. But, that is not what the City addressed. Instead, its argument concerns whether Zambrano could obtain discovery of the documents as part of a state criminal proceeding. That becomes relevant if, and only if, the trial court decides to allow Zambrano to view them, after it reviews them in camera Until the court so decides, the City’s arguments are premature. The argument being premature and the trial court having yet to decide whether to release the items to anyone else, we cannot tell it whether to release them to Zambrano. See In re Surovik, No. 0720-00371-CV, 2021 Tex. App. LEXIS 1704, at *11 (Tex. App.–Amarillo Mar. 8, 2021, orig. proceeding) (mem. op.) (stating that our "mandamus authority does not include directing a court how it must rule on a matter presently before it") In turn, that leads me to agree with the majority that the City failed to establish an instance of abused discretion.

1 The aspects of the order pertinent to this concurring opinion are: 1) “[t]he Court further ORDERS that both the Defendant and the City of Lubbock Police Department (through City Attorney’s Office) be notified prior to the release of any records outside of the in-camera inspection, in the event that Court determines release should occur after an in-camera inspection is concluded ”; 2) “[t]he Court reserves the right to issue any protective order, or otherwise restrict further dissemination of the records referenced herein (including but not limited to redaction of the records), if the Court deems necessary, in the event that the Court determines any record should be released”; and, 3) “[a]ny records tendered to the Court for in-camera inspection, shall remain under seal unless and until otherwise ordered by the Court.” (Emphasis added)

Another omission I deem pertinent also concerns the absence of explanation. The explanation implicates standing. That is, it would behoove the City to explain its standing to invoke provisions of the Texas Code of Criminal Procedure pertaining to discovery in a criminal proceeding to which it is not a party. The criminal proceeding is between the State of Texas and Zambrano, and the criminal infraction underlying it falls outside the City’s criminal jurisdiction. Yet, to impede disclosure of the records, the City attempts to stand in the shoes of the State by invoking argument concerning the permissible scope of discovery in the State’s prosecution of Zambrano. That, at first blush, would seem to be a battle that only the State could wage. Why the City has standing to wage it on behalf of the State should be explained, in my view. At the very least, the State should be afforded opportunity to participate in resolution of the discovery dispute, especially since the controversy is now part of the public record.

In short, I too would deny the City’s petition for writ of mandamus.

Brian Quinn Chief Justice

In The Court of Appeals

Seventh District of Texas at Amarillo

No. 07-21-00070-CV

IN RE CITY OF LUBBOCK, RELATOR

Original Proceeding Arising From Proceedings Before the 140th District Court Lubbock County, Texas Trial Court No. 2020-421,049; Honorable Douglas H. Freitag, Presiding

September 2, 2021

MEMORANDUM OPINION

Before QUINN, C.J., and PIRTLE and DOSS, JJ.

In this original proceeding, Relator, the City of Lubbock, seeks to set aside the trial court’s Order on Amended Ex Parte Motion for Inspection and Release of LPD Records, directed to the Lubbock Police Department, a department of the City of Lubbock. That order granted the Amended Ex Parte Motion for In-Camera Inspection and Release of LPD Records filed by the Real Party in Interest, Rodolfo Zambrano, seeking certain

records in the possession of the Lubbock Police Department. Based on the reasoning that follows, we deny the petition for writ of mandamus.

BACKGROUND

This original proceeding arises from an ex parte order issued by the 140th District Court following the motion of Rodolfo Zambrano, the defendant in cause number 2020421,049, a criminal case involving sexual assault of a child, pending before that court. 1 Zambrano is the Real Party in Interest in the mandamus proceeding now before us.

In February 2021, Zambrano filed an Ex Parte Motion for Court Ordered Production of Documents and/or Things. On the same day, the court granted that motion and issued its Order on Ex Parte Motion for Production of Documents and/or Things. That order commanded the City of Lubbock to “provide all records held by said entity regarding J****** G*****, DOB: **/**/****, SSN# ***-**- ****, including but not limited to: records where she was reported to be a child victim of sexual abuse.” 2 Because of the ex parte nature of the proceeding, the State of Texas was not given notice of either the filing of the motion or the entry of the order.

Of course, Relator, the City of Lubbock, is not a party to the underlying criminal prosecution. Notwithstanding that fact, the ex parte order commanded the City to produce to Zambrano specific police reports concerning allegations of sexual assault by a child and identify both the child victim and the outcry witness. We note that Zambrano did not seek the desired information and documentation through a subpoena duces tecum or

1 Zambrano was charged with the offense via indictment filed on September 15, 2020.

2 We have redacted the original language of the order to protect the identity of the child victim.

through a discovery motion directed to the State of Texas as typically required by the Texas Code of Criminal Procedure. Rather, Zambrano sought this information through an ex parte motion and the order granting that motion specifically prohibits the City from disclosing the existence or contents of the order to the State or to any other party, including the child victim and outcry witness

The City did not receive notice of the ex parte motion prior to the issuance of the ex parte order. Accordingly, the City filed its Response to the Order on Ex Parte Motion for Court Ordered Production of Documents and/or Things and Motion for Stay and Protective Order after that order was issued. In that response, the City objected to the ex parte nature of the proceedings and the issuance of the ex parte order without being given an opportunity to be heard on the motion. The court granted the City’s request for rehearing and set a date for that hearing. As before, no notice was provided to the State.

On the day of the rehearing, March 23, 2021, Zambrano filed an Amended Ex Parte Motion for In-Camera Inspection and Release of LPD Records. This time, the amended motion requested that the documents Zambrano sought to be produced for incamera inspection by the court rather than delivery directly to Zambrano’s attorney. At the conclusion of the hearing, the trial court vacated the original ex parte order. It also requested briefing on the issues. On April 1, 2021, the court issued an Order on Amended Ex Parte Motion for In-Camera Inspection and Release of LPD Records, commanding the City to produce records for in-camera inspection without notice to the State or any other party to the underlying proceeding. Further, it is undisputed that the court did not order that the Texas Attorney General be given notice of a constitutional challenge to any of the

provisions of the Texas Code of Criminal Procedure pertaining to the discovery or production of documents.

On April 7, 2021, the City filed a Motion for Stay to file a Petition for Writ of Mandamus with this court. The trial court entered an Order to Stay on April 8, 2021, and this petition was filed shortly thereafter.

MANDAMUS STANDARD OF REVIEW

Mandamus is an extraordinary remedy granted only when a relator can show that (1) the trial court abused its discretion and (2) that no adequate appellate remedy exists. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). When seeking mandamus relief, a relator bears the burden of proving these two fundamental requirements. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

To establish an abuse of discretion, a relator must demonstrate the trial court acted unreasonably, arbitrarily, or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To establish no adequate remedy by appeal, a relator must show there is no adequate remedy at law to address the alleged harm and that the act requested is a ministerial act, not involving a discretionary or judicial decision. State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding).

ANALYSIS

ADEQUACY OF APPELLATE REMEDY

At the outset, the City argues it has no adequate remedy at law to challenge the discovery dispute at issue here because it is a non-party to the underlying criminal case. Only a defendant and the State of Texas are permitted to appeal a criminal judgment TEX. CODE CRIM. PROC. ANN. art. 44.01; 44.02 (West 2018). However, “[m]andamus is a proper remedy for a trial court’s action against a non-party who has no right of appeal, but has standing in the mandamus proceeding.” In re BancorpSouth Bank, No. 05-1400294-CV, 2014 Tex. App. LEXIS 4052, at *4 (Tex. App. Dallas Apr. 14, 2014, orig. proceeding). Here, the ex parte order requires the City to produce confidential documents for in-camera review. The City is not a party to this proceeding so it cannot appeal as a party would following the conclusion of the matter. Further, while this matter is interlocutory in nature, it is not of the type of proceeding for which interlocutory appeal is available. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (West Supp. 2020). Accordingly, we find the City has no adequate appellate remedy in this situation and should be permitted to seek relief pursuant to a petition for writ of mandamus

We turn now to the City’s contention that the trial court abused its discretion by acting unreasonably, arbitrarily, or without reference to any guiding rules or principles when it issued its ex parte order.

TRIAL COURT’S ABUSE OF DISCRETION

ISSUE ONE ABUSE OF DISCRETION IN IMPLICIT FINDING THAT PROVISIONS OF CODE OF CRIMINAL PROCEDURE VIOLATE THE UNITED STATES AND TEXAS CONSTITUTIONS WITHOUT REQUIRING THAT THE TEXAS ATTORNEY GENERAL BE MADE A PARTY

In the underlying proceeding, Zambrano sought “documents and/or things” including police offense reports held by the Lubbock Police Department. He specifically sought a report of sexual assault made by a third party, who is a key witness in the matter but is not the complainant in this case. The City argues this is a subject that is squarely addressed by articles 24.02, 3 24.03, 4 and 39.14 5 of the Texas Code of Criminal

3 Article 24.02, entitled Subpoena duces tecum, provides as follows:

If a witness have in his possession any instrument of writing or other thing desired as evidence, the subpoena may specify such evidence and direct that the witness bring the same with him and produce it in court.

TEX CODE CRIM PROC ANN art. 24.02

4 Article 24.03, entitled Subpoena and application therefor, provides as follows:

(a) Before the clerk or his deputy shall be required or permitted to issue a subpoena in any felony case pending in any district or criminal district court of this State of which he is clerk or deputy, the defendant or his attorney or the State’s attorney shall make an application in writing or by electronic means to such clerk for each witness desired. Such application shall state the name of each witness desired, the location and vocation, if known, and that the testimony of said witness is material to the State or to the defense. The application must be filed with the clerk and placed with the papers in the cause or, if the application is filed electronically, placed with any other electronic information linked to the number of the cause. The application must also be made available to both the State and the defendant. Except as provided by Subsection (b), as far as is practical such clerk shall include in one subpoena the names of all witnesses for the State and for defendant, and such process shall show that the witnesses are summoned for the State or for the defendant. When a witness has been served with a subpoena, attached or placed under bail at the instance of either party in a particular case, such execution of process shall inure to the benefit of the opposite party in such case in the event such opposite party desires to use such witness on the trial of the case, provided that when a witness has once been served with a subpoena, no further subpoena shall be issued for said witness.

(b) If the defendant is a member of a combination as defined by Section 71.01, Penal Code, the clerk shall issue for each witness a subpoena that does not include a list of the names of all other witnesses for the State or the defendant.

TEX CODE CRIM PROC ANN art. 24.03

5 Article 39.14, entitled Discovery, provides in relevant part:

Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 24.02, 24.03 (West 2009); art. 39.14 (West Supp. 2020) The City further asserts that Zambrano, rather than utilize the mechanisms already in place for discovery in criminal proceedings, has sought the production of documents via an ex parte motion, arguing that “under our [Code of Criminal Procedure] the defendant is forced to disclose pretrial his defensive theories via his subpoenas in order to obtain documents or other things to which he is constitutionally entitled.” Zambrano further argued in his motion that “[s]ince this is an issue of constitutional dimension, the Texas Code of Criminal Procedure must give way to the rights of the defendant and the duty of counsel. To the extent the Code limits the rights to gather evidence, it is unconstitutional.” Zambrano then asserted that obtaining a subpoena in compliance with the Code of Criminal Procedure infringes on his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and under Article 1, subsections ten, thirteen, fifteen, and nineteen of the Texas Constitution. See U.S. CONST. amends. VI, VIII, XIV; TEX. CONST. art. I, §§ 10, 13, 15, 19.

Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.

TEX CODE CRIM PROC ANN art. 39.14

Despite these assertions, Zambrano steadfastly maintains that his ex parte motion is not a constitutional challenge to any statute that would require notice to the Texas Attorney General under section 402.010 of the Government Code. 6 TEX GOV’T CODE

ANN § 402.010 (West Supp. 2020). Rather, it is the City that argues Zambrano must contend that provisions of the Texas Code of Criminal Procedure are unconstitutional and that the trial court erred by implicitly finding that the discovery provisions of the Code violate his state and federal constitutional rights. The City is simply wrong in this contention for the reason that articles 24.02 and 39.14 of the Texas Code of Criminal Procedure are not the exclusive means by which a party may seek the discovery of

6 Section 402.010 of the Government Code provides as follows:

In an action in which a party to the litigation files a petition, motion, or other pleading challenging the constitutionality of a statute of this state, the party shall file the form required by Subsection (a-1). The court shall, if the attorney general is not a party to or counsel involved in the litigation, serve notice of the constitutional challenge and a copy of the petition, motion, or other pleading that raises the challenge on the attorney general either by certified or registered mail or electronically to an e- mail address designated by the attorney general for the purposes of this section.

(a-1) The Office of Court Administration of the Texas Judicial System shall adopt the form that a party challenging the constitutionality of a statute of this state must file with the court in which the action is pending indicating which pleading should be served on the attorney general in accordance with this section.

(a) A court may not enter a final judgment holding a statute of this state unconstitutional before the 45th day after the date notice required by Subsection (a) is served on the attorney general.

(b) A party’s failure to file as required by Subsection (a) or a court’s failure to serve notice as required by Subsection (a) does not deprive the court of jurisdiction or forfeit an otherwise timely filed claim or defense based on the challenge to the constitutionality of a statute of this state.

(c) This section or the state’s intervention in litigation in response to notice under this section does not constitute a waiver of sovereign immunity.

TEX GOV’T CODE ANN § 402.010

relevant information under the control of a third party. As such, the trial court did not implicitly find any statute to be unconstitutional.

Zambrano argues that neither article 24.02 nor 39.14 apply to this situation. He maintains that “his request is based on the constitutional rights to due process and the effective assistance of counsel.” He contends that while article 24.02 allows the defense to seek a subpoena duces tecum, the defense would have to file the subpoena application with the district clerk under article 24.03. That application, which must be made available to the State, “would disclose the defense’s reason for filing it in the first place. Consequently, that article does not apply to the instant situation.” Of article 39.14, Zambrano states that the “information sought in the instant case is not held by the State. If the documents were held by the State, there would be no need for any ex parte review in the first place.” He further maintains that while there was some discussion at the hearing as to whether the defense challenged the constitutionality of these two articles, his position then and now is that he asserts he did not challenge their constitutionality because “neither provision is applicable.” He says “[w]hat is unconstitutional is the City’s interpretation of either one of the articles as being the exclusive determiner of the issue and foreclosing the relief Mr. Zambrano seeks.” Rather, he argues, the “trial court has the inherent authority to provide the requested relief . . . ” That requested relief is “for direct court intervention and in camera review, a procedure not addressed by any statute.”

As such, Zambrano’s request for the production of evidence is based on his constitutional right of due process, not that of any statute, including articles 24.02, 24.03, and 34.19. The City’s assertion that articles 24.02, 24.03, and 39.14 provide the exclusive vehicle for the relief he requests is the only argument that calls into question the

constitutionality of those statutes. Because Zambrano’s arguments do not challenge the constitutionality of any statute, no notice to the Texas Attorney General was necessary. Issue one is overruled.

ISSUE TWO ABUSE OF DISCRETION IN ISSUING EX PARTE ORDER TO THE CITY OF LUBBOCK TO PRODUCE DOCUMENTS FOR IN-CAMERA INSPECTION WITHOUT NOTICE TO THE STATE OF TEXAS OR ANY OTHER PARTY

The City next argues the trial court abused its discretion by allowing discovery to be conducted outside the provisions of the Code of Criminal Procedure. Zambrano disagrees, again arguing “[t]rial courts have the authority to conduct ex parte proceedings demanded by litigation, even if not specifically mandated by a statute.”

Zambrano’s ex parte motion requested “that the Court order the Lubbock Police Department . . . to provide all records held by said entities regarding [J.G.] . . . including but not limited to: records where she was reported to be a child victim of sexual abuse to the Attorney for Mr. Zambrano. Mr. Zambrano further requests that the Court order the listed records holders to maintain the confidentiality of this request and not reveal it to the State.” He contended that the documents and/or items requested were relevant and material to the development of a defense to his intent to commit the alleged offense and to the development of issues that mitigate against the imposition of his sentence.

In support of his argument, Zambrano argues that he has been accused of the serious offense of sexual assault of a child. He contends that the State has “virtually unlimited subpoena power under the guise of the grand jury” but that defense counsel has “limited ability to obtain evidence on behalf of the accused.” He said he has “limited methods to gather records” and that those methods “may be unconstitutional because it

exposes Mr. Zambrano’s defensive theories to the State.” He further complains that he “has a constitutional right to present a defense but no means of using it. Counsel has a constitutional duty, but no means to carry it out.” While defense counsel recognizes that there are methods available to obtain records in the possession of third parties, he contends that those methods are inadequate to enable him to prepare an “effective” defense under the United States and Texas Constitutions because the procedure in place “allows for the State to be notified of any subpoena the Defense requests. This results in the Defendant having to disclose information concerning his defense prematurely in order to utilize his constitutional right to present a defense, commonly called an unconstitutional condition.” He notes also that a “defense subpoena is inadequate to procure HIPAA protected records” because only law enforcement and grand jury subpoenas will be honored by medical service providers for medical records.

In his motion to the trial court, Zambrano cited two cases to support his position. The first, Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), involved the question of whether the United States Constitution required that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense when his sanity at the time of the offense was seriously in question. Id. at 70. The Court referenced ex parte proceedings only in this context:

A defendant’s mental condition is not necessarily at issue in every criminal proceeding, however, and it is unlikely that psychiatric assistance of the kind we have described would be of probable value in cases where it is not. The risk of error from denial of such assistance, as well as its probable value, is most predictably at its height when the defendant’s mental condition is seriously in question. When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.

Id. at 82-83. See also Rey v. State, 897 S.W.2d 333, 345-46 (Tex. Crim. App. 1995) (finding structural error when the trial court overruled the defendant’s motion for appointment of an independent pathologist (separate from the pathologist already provided to Rey’s co-defendant) because, in doing so, he was denied a basic tool essential to developing and presenting his defensive theory).

Zambrano also relied on the opinion in Williams v. State, 958 S.W.2d 186 (Tex. Crim. App. 1997). There, the Court discussed Ake, 470 U.S. 68, and found that “if an indigent defendant is not entitled to an ex parte hearing on his Ake motion, he is forced to choose between either forgoing the appointment of an expert or disclosing to the State in some detail his defensive theories or theories about weaknesses in the State’s case. This is contrary to Ake’s concern that an indigent defendant who is entitled to expert assistance have ‘meaningful access to justice,’ and undermines the work product doctrine.” Williams, 958 S.W.2d at 193-94. The Court declined to hold that for an indigent defendant to avail himself of one of the “‘basic tools of an adequate defense,’ he may be compelled to disclose defensive theories to the prosecution.” Id. at 194. The Court held an indigent defendant is “entitled, upon proper request, to make his Ake motion ex parte.” Id. Like the Supreme Court, the Texas Court of Criminal Appeals did not otherwise address ex parte proceedings and did not discuss the propriety of utilizing ex parte motions as a means to obtain documents and things of the nature at issue here. While the Courts in Ake and Rey did not otherwise address ex parte proceedings, the use of ex parte proceedings to protect defensive strategy has been widely accepted by the courts.

CONCLUSION

We conclude that the trial court acted within its authority when it entered the ex parte order the subject of this mandamus proceeding. As such, we deny the petition for writ of mandamus.

Patrick A. Pirtle Justice

Quinn, C.J., concurring.

Criminal Defense Lawyers Project

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA

January 5, 2023

Texas Tech School of Law Lubbock, TX

Topic:

Defending Family Violence Cases Against the Government’s Fictional Perfect Family Standard

Speaker: Lisa Greenberg

Law Office of Lisa Greenberg 622 S. Tancahua St. Corpus Christi, TX 78401 361.446.2476 phone 361.288.3476 fax lisagreenberglaw@gmail.com email https://lisagreenberglaw.com/ website

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

Defending Family Violence Cases Against the Government’s Fictional Perfect Family Standard

Lisa Greenberg Law Office of Lisa Greenberg 622 S. Tancahua St. Corpus Christi, TX 78401 (361)446-2476 lisagreenberglaw@gmail.com

Family Violence Cases: Outline of the Paper:

i. Why they are easily one of the most trial worthy cases. ii. Consequences of FV finding iii. Pretrial Preparation

a. Investigation of the case: i. Did the officers talk to both sides? ii. Prior reports iii. Other considerations 1. Department policy 2. VAWA

b. Protective Order hearings- great place for discovery c. CPS hearings/involvement: d. 911 calls?

e. Motions: i. Places to look: Victims Advocate Coordinators ii. Motives: 1. Financial? 2. Affair? 3. Easy way out of marriage? f. Who is pushing the case? CW or other entity i. If CW: Think impeachment.

IV. Trial Strategies: a. Voir Dire b. Opening c. Cross d. Experts e. Closing

V. Some nontraditional ideas on how to deal with a family violence case:

a. parties want to stay together? b. are you fighting or begging? c. what is our goal with this family?

I am a female and a criminal defense lawyer, and while I do recognize there is a problem in our country with domestic violence, I love defending most family violence assault cases. Why? Because as a trial lawyer there is always a story to be told. The history of a couple involving family, culture, background, scandal, trust issues…all of it. And we watch Bravo reality shows and Lifetime television because we love those things! Remember that when you try a family violence case. Very few situations are clear cut abuser/abused cases like we are taught to believe by the family violence advocates. Typically, there is a story or a pattern. It is rare that someone in a toxic relationship has not been in many similar types of relationships before. People tend to end up in the same types of relationships over and over, we stick to what we know, or what is familiar to us. Some people are able to evolve and change that pattern, but as a criminal defense lawyer, we will be looking into the situations for impeachment evidence to change the story from the one the family violence advocate and ADA wants the jury to believe, which is the typical Lifetime Television abuser/abused story. They want the jury and society to believe that an assault happened and that whatever way the complaining witness acts (cooperates/doesn’t cooperate; stays away/goes back; tells a detailed story and wants to press charges/doesn’t want to press charges) is all part of the cycle of violence. It’s all ok and just part of that abused person’s trauma. There is no explanation to those entities other than your client is guilty, no matter what. Note:Remember, it is not our job to change society, it is our job to show they cannot prove their case beyond a reasonable doubt.

Part One: Why these Tend to be the Most Trial Worthy cases:

Think of any relationship you’ve had. Can you sum it up in one sentence? Most of us would like to, but as we know with all relationships, marriages that end badly, public breakups etc., there tends to be two sides to the story. We hear such things as: He cheated and now it’s over or, she became crazy so he finally dumped her, but as with all human experiences that never seems to be the full story.

Think of famous breakups you know of. The Royal Family scandals, Bennifer, Jennifer Aniston and Brad Pitt- we were all obsessed. Why? We wanted to know the story behind the break-up. We are nosy, nosy people and we want to know why things went bad. This is your opportunity to let people see the gray. I have a much harder time telling the story of a DWI case (science doesn’t always make the best story) than in an assault family violence case. The reason being, there is always the story of a relationship to tell! With two sides!

Part Two: The Consequences of Family Violence Finding:

Gun Rights: This gets tricky, even if allowed under State law, may not be under Federal law: If a person is "convicted" in any court of a misdemeanor crime of domestic violence and there is a finding of family violence, he will be forever prohibited by federal law from possessing a firearm or purchasing even a single bullet unless the firearm and its bullets were manufactured in 1898 or earlier. See 18 USC 922(g)(9). The law of the jurisdiction determines whether a conviction has occurred. See 18 U.S.C. 921(a)(33)(ii) and 27 CFR 478.11. Thus, if the law of the jurisdiction does not consider the person to be convicted, the person would not have the 922(g)(9). Under 18 U.S.C. 921(a)(33)(ii), a person is not considered to be "convicted" if the conviction has been expunged or set aside or is an offense for which the person has been pardoned unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

The feds generally treat deferred as a conviction. But, if a person is on deferred for a felony (non-family violence) and is discharged successfully, that person is not considered "under indictment" any longer, so the federal firearm disability no longer applies. The problem with an AFFV is that it does not "go away" even after successful discharge from deferred occurs. Note: This is changing with new case law, pay attention to this!

Custody/Family Law situations: don’t ever forget that whatever happens in the FV case can affect the custodial rights of your client. I have had many civil lawyers try to have my clients testify in their civil hearings about the criminal allegations and I caution them strongly against it. It won’t matter if they win their temporary orders, etc., if that testimony causes them to lose the criminal case. So they win the battle and lose the war if they are not careful. Also be very careful with protective order hearings and testimony. Can be used against your client in the criminal case.

Enhancements: multiple ways: misdemeanor deferred, 2 within one year (continuous assault against the family)

Citizenship consequences: (always consult with Immigration attorney here!)

Part Three: Investigation of the Case: Many people think that because of the Michael Morton Act and 39.14 we get what we need from the discovery provided by the State. I absolutely dispute that and think we’ve done our clients a disservice if we stop there. The State has a duty to give you what they have (but there are still instances of this not happening- another topic for another speaker) but the real meat in the case comes from the impeachment evidence you probably will not be getting from the State. Your basic discovery should be all the police reports, videos body camera videos, dash cam videos, etc., you want to be able to see what the parties looked like at the time law enforcement showed up. Did they take statements from both parties? What the state provides: Police Reports 911 calls Photographs/videos Medical records

Additional places to look: Criminal histories, other police reports (has the CW done this before?), VINE money, etc. corresponding civil cases (divorce? Protective order?)

Civil cases: useful to obtain documents used in those cases and perhaps sworn to. Document different versions of an assault or give information on motive. Protective order applications or testimony during the proceedings which could lead to valuable information for impeachment (if story is changed) and the affidavit filed by the accuser. Text messages and emails, social media posts should be looked at as well.

Pretrial Research on Expert: Find out if expert has testified in civil or family law cases- get transcripts; Research social media of expert to show bias; Do online research on expert pretrial. Find out how they are funded, etc.

IV. Part Four: Trial Strategies:

Voir Dire: I would argue this may be the most important part of the trial. The first thing you need to do is weed out those who have already assumed your client is guilty. By his looks, size, etc. or who are family violence advocates and will not allow you a fair opportunity to cross. Are there self defense issues? Can a man defend himself against a woman? Get them talking and listen!

Tips: Get permission to cross complainant. Get the jury thinking about other reasons why someone may claim family violence- motive, bias, edge in family law case, justification for new relationship, attention, etc. Get permission to challenge the expert, if there is going to be one.

Opening: Tell the Story, make the Jury feel what the situation was like with your words!

Tips: Don’t promise anything you don’t deliver, you build credibility by delivering Always tell the jury what to watch for, so they are prepared, Let them think of the motive you’ve established, or theme while the witnesses are testifying.

Cross: Most of the time the most important cross will be of the complaining witness. I start my prep there first. Develop three goals for each cross, such as: establish motive, discredit and show changes in the story each time CW tells it; etc. Sometimes your goal in cross is not to discredit the witness, such as a police officer, but to show that they got one side of the story, or- made assumptions. Also they believed the complaining witness while knowing nothing about him/her.

a. Experts: once you’ve prepared the jury in voir dire that this may be junk science, you want to establish 1) this person is hired by the state and is a government entity designed to allow the complaining witness to say/do whatever he/she wants and it’s ok because they are a victim; 2) that this expert has never spoken with the complaining witness, your client and knows nothing about this family and 3) that they were sent by the state to say everything falls into the cycle of violence so convict.

a. Look to their bias, background- who’s paying them? Law Enforcement funding, etc.

b. Are you a victim/survivor? Many people been through the experience and that’s why they went into the field

c. How often do you testify for prosecution/defense.

d. Lack of case knowledge- read reports? Reviewed videos?

e. Academic studies?

f. Talk about how the cycle of violence presumes guilt, assumes abuse occurred.

g. Talk about no matter what CW says, all is consistent with family violence.

Closing: Telling the story again, this time making sure you weave in parts of the testimony that show what you said is exactly what happened and you told them the story. You want the jury to see that your client was not listened to and instead fit into a societal narrative of what the State and Prosecutor decided about this relationship/family.

V. When the Government Wants To Break Up a Family (Pretrial bond conditions and creative ideas in dealing with a family violence case):

So you have the client charged with family violence assault. You know the collateral consequences if convicted. You know the ramifications of a family violence finding (and if you

don’t there are plenty of resources to help you with this and advising your client), but what do you do when your client and the complaining witness want to stay together?

Pretrial Bond Conditions:

Not only will you be fighting the government and the judge pretrial, eventually, you will be fighting the victim’s advocate coordinators and their “cycle of violence” mantras. You may be fighting other government agencies, such as Department of Family Services (CPS) etc. and supposed experts. In Nueces County (my area of practice) pretrial bond conditions include a class, such as B.I.P.P, or the YIELD program. Both involve the accused admitting guilt or assault in order to be successful on their bond conditions. I often challenge these right away in pretrial hearings. Or file a motion to modify bond conditions as these are violative of the 5th Amendment and due process. (email or contact me if you need one of these).

Further, many times the Defendant is required to stay away from the complainant, even if the complainant does not request it. This could hurt many families financially, the children’s stability etc. We may need to file motions on that, include non-prosecution statements, etc. Ankle monitors may be a consideration for your client- the cost, stress, hassle to their job, etc; if the parties do not want to be apart, what are we monitoring? We are telling the complainant what she/he can do or whom she can be around?

What if the Family wants to Change and Get Better? Who are we to say families can’t change, grow or heal from situations? Sometimes the offers we get from the State do not allow for this. They require the parties to stay away when it may not be best for them. What about young parents who have kids, financial problems etc., is adding conditions and more financial stress the best thing for them, their kids? How can we help them address the problems that caused the stress/situation without compounding on it? Consider other stressors: If your client’s family has children, DFPS could be involved, they could have multiple requirements from different courts and financial obligations.

Let’s say that the family has already decided they want to heal and get help, look at ideas like: Preemptive counseling- private counselors, churches. While we all must acknowledge that family violence is a problem, it has always been a problem, and needs to be talked about, this article is not about solving that problem. This article is about creative solutions when the prosecutor wants your client convicted, wants the complaining witness and/or children away from your client, and puts obstacles in the way of the family healing as a unit.

Conclusion: Tell the story! Don’t let the State dictate what happened without hearing from your client, or based on one person’s point of view. Relationships never work that way and you have the benefit of hearing BOTH sides of the story. One from the complaining witness (in your police report, her/his statement, videos, medical records, etc.,) and from your client. You get to show you know more than the State and their experts who never met with this family, your client etc. Show them one size does not fit all and this case does not fit into their predetermined inference of guilt. With a little bit of digging and work, you can win these cases by looking for impeachment evidence.

Criminal Defense Lawyers Project

Prairie Pup Nuts N’ Bolts Co-Sponsored with LCDLA

January 5, 2023

Texas Tech School of Law Lubbock, TX

Topic:

Figuring out the Fuzz: Knowing the Adversary

Speaker: Phil Johnson

Jenkins & Young, P.C. 1623 10th St Lubbock, TX 79401 806.549.8208 phone 806.771.8755 fax Pajohnson1973@gmail.com email https://www.jwylaw.com/ website

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

FIGURING OUT THE FUZZ: KNOWING THE ADVERSARY

Prairie Pup Nuts and Bolts January 5, 2023 TCDLA/LCDLA Texas Tech University School of Law

By Phil A. Johnson

1. Texas law enforcement officers (LEO) are licensed by the Texas Commission on Law Enforcement (TCOLE).

2. In Texas, officers have to go through at least 960 hours of training at a certified academy, which equates to approximately 6 months of training. That training consists of multiple areas such as:

a. Arrest, Search and Seizure

b. Standardized Field Sobriety Tasks (SFST’s)/NHTSA (50-72 hours)

c. Code of Criminal Procedure

d. Authorities to arrest (CCP 2.14) (Lubbock PD requires memorization)

e. Penal Code f. Pursuit Driving (NAPD) g. Defensive Tactics h. Constitutional law

i. Accident Investigation (not to be confused with Accident Reconstruction/expert)

j. Cultural diversity

k. Mental Health crisis training (sort of)

l. Felony steps

m. Building searches

n. Multiple testing in all those disciplines

3. After graduating from the academy, all Texas LEO’s must pass the standardized TCOLE test.

4. Thereafter, in most departments, a recruit will have to ride with a field training officer for approximately 18-20 weeks. During that time, there are typically “Phases”. Most departments have 4 phases where the recruit goes from the initial “observation” phase and gradually acquire more responsibility until they are in the final or “ghost phase.”

5. Officers often times attempt to apply numerous advantages to their investigations.

a. Good Cop/Bad Cop. When interrogating a possible suspect, or even a recalcitrant witness, they will do what everyone has heard of as the “good cop/bad cop” methodology. This is interaction is usually predetermined by the officers involved prior to talking to the individual.

b. BWC manipulation. LEO’s are notorious for having conversations they do NOT want the defense attorney (or even their supervisors) to hear. Thus, they will commonly turn off their audio to have these conversations to avoid being captured on camera. They are acutely aware that everything is being recorded and will be scrutinized. Thus, you have to be vigilant in catching these audio breaks, even if it is just to use as negotiations with the DA as possible Brady issues. Be SURE to listen to all of the video! There was a Lubbock PD case in which there was a vehicle pursuit which ended with the suspect being arrested and needing minor emergency attention at University Medical Center. Most defense attorneys would have stopped watching once the chase was over, the suspect arrested, and the transport to UMC was completed. However, there was an offduty Lieutenant working security in the ER. He was unaware the transporting officer’s BWC was still on and asked him if the suspect got the “post chase ass-whipping” that he deserved. That alone got the DA to come down significantly in the offer once this was pointed out to them due to the obvious optics it would have if the case went to trial .

c. Baiting a pursuit. There are some LEO’s that don’t believe a simple traffic stop/ticket is enough and will “bait” a pursuit. To do this, a LEO will see a traffic violation, either wait to turn around or slow down, then once the vehicle is 3-4 blocks ahead, or more, the officer will engage their emergency lights. Their intent is that the individual, most of which would never try to evade, will debate about trying to get out of a possible ticket. This is akin to traffic entrapment: most citizens do not want the hundreds of dollars in traffic fines and insurance increases and thus figure maybe they can simply get away.

This is also useful in negotiations, especially if the officer is known for participating in this kind of activity.

d. Pretext stops. You already know about pretext stops. These are when the officer stops the vehicle for a rudimentary traffic violation with the intent to identify the occupants (“warrant mobile”) or search vehicle. Although these are technically legal, you must know your basic 4th Amendment issues (e.g. Rodriguez v. Michigan) in case they run afoul of the law for suppression issues due to the scope of the stop. Usually, these arise when the officer profiles the vehicle and/or occupants rather than the typical “vanilla” stop. Because of the officer’s intent to investigate past the normal reason for the stop, there are suppression issues to analyze.

6. For the past 20+ years, departments have been videoing their stops and interactions with citizens. Texas has enacted laws that require every law enforcement vehicle that comes into routine contact with citizens, such as patrol cars and undercover vehicles such as the TAG unit here in Lubbock County, to be equipped with some sort of recording equipment, ala Digital Video Recorders (DVR’s). The law does not require vehicles that are not in routine contact with citizens, such as detective units, administration, etc. to be equipped with them.

7. Problems that can be encountered with videos.

a. Missing videos. Often times after you have filed your 39.14 and begun review of the case, you will discover there are missing videos. Sometimes this is an oversight of the DA’s office to get these, but other times it is because they do not exist. If that is the case, there needs to be an inquiry as to why. Whether by mistake, neglect or even intent, the video may have been erased or scrubbed from the law enforcement agency’s because it was not marked as “evidence” and thus not retained or it may have never existed. You have a duty to investigate the reason for the lack of a video, whether it be DVR or BWC due to most agencies requiring these to be activated during the entirety of the citizen/police interaction. Although a spoliation instruction in a criminal case is virtually impossible to obtain, the lack of that evidence is extremely useful at trial during cross-examination

or during negotiations to obtain a better offer since the DA knows this issue will be raised at trial.

b. Agency policies for retention and activating/deactivating DVR/BWC. If there are missing videos, make sure to get the most up to date agency policy for video retention and activation. You can do this through a Texas Public Information Act request which merely requires a request for such or you can email your local list serve to see if anyone already has those. Here in Lubbock, our list serve routinely gets a request for these. They can be useful in both cross-examination as well as negotiating with DA.

c. Watching the videos in their entirety. As stated above, it is necessary to watch the entire DVR/BWC as the parts after the cessation of the main action has occurred may contain valuable information that can help the case. Often times, especially after a volatile or adrenalin-dump call has finished, the officers will talk with each other recounting things left out of the report or possibly speaking with each other about unrelated work issues that could be publicly embarrassing to the agency or DA. Even worse, there could be racially charged statements made by the LEO’s to each other. The major trial that contained those, and may have assisted in the not-guilty verdict, is of course the infamous OJ Simpson double homicide trial. WATCH ALL OF THE VIDEOS!

8. Cop talk.

a. 10 codes. These are the abbreviated codes that LEO’s use when communicating with each other. A sample 10 code sheet that Lubbock PD uses has been attached to this paper for reference. You will hear these in the BWC/DVR’s in a case along with some other LEO nomenclatures such as “Signal 1” or “Code 1”. It is of great use to understand these, and it is not hard to grasp. Once you know what you are listening to, it will help you understand what the officers were doing during the investigation.

b. Call sheet. These are produced in virtually every case, and just like a medical chart if you are not in the medical field, they can be difficult to analyze. Part of the issue is that they sometimes contain multiple entries of 10 codes. These call sheets (CS) will have the date/time/location of the call origination along with the officers that

responded. Understanding these takes a bit of practice, but nothing too daunting. By understanding the 10 codes and the CS, you will be able to better analyze your case and also determine if there was anything unusual or omitted by the officers in their report. I have attached an actual highlighted CS that was used in the presentation to help grasp the information contained.

9. Crossing the cop. This is not a cross examination presentation, so this is just some basics you may come across during the cross of a LEO. Typically, officers see court as a necessary evil, and thus they really do not prepare nearly as much as we do. Therefore, you need to know your case and preparation is imperative. The typical LEO views the defense bar as an adversary, even though they are supposed to be a neutral fact finder. Of course, there is no question the law enforcement community and the DA’s are aligned. Therefore, understanding that officers may not prepare as much as they should and will treat you as an enemy, although typically in a professional way, is instrumental to developing a quality cross examination.

a. The sky isn’t blue witness. It is not uncommon to have an officer, typically a younger officer but sometimes this can be an older particularly cantankerous LEO, that will argue with you at every turn. There was one witness in an Intoxication Manslaughter here in Lubbock that was so argumentative that the defense attorney asked him that if he said the sky was blue, would the witness disagree. The witness did. That was a DPS blood analyst; however, there have been multiple officers that have done the same. (By the way, Mark Thiessen got a not guilty verdict in that case, perhaps because of the witnesses’ penchant for arguing). Remember, arguing with the recalcitrant officer just distracts the jury and is doing a disservice to your case. The jury will hear it and see it so let the officer hang themselves on the stand when they do this. Don’t engage in their tactics. It is like the old saying: wrestling with a pig just gets you dirty and makes the pig happy. (No pun intended).

If you have any questions, feel free to contact me at the information below:

Phil A. Johnson

Jenkins & Young, P.C., Lubbock, Texas 79408. (806)549-8208 pjohnson@jwylaw.com pajohnson1973@gmail.com

Police 10 Codes

Lubbock Police Department

10-2 Signal Good 10-4 Acknowledgment (OK) 10-6 Busy - Unless Urgent 10-7 Lunch break 10-8 In Service 10-9 Repeat 10-10 Fight In Progress 10-12 Stand By (Stop) 10-14 Prowler Report 10-15 Civil Disturbance 10-16 Domestic Problem 10-17 Meet Complainant 10-18 Quickly 10-19 Return to prior location (usually to be named by operator) 10-20 Location 10-21 Call ( ) by Phone 10-22 Disregard 10-23 Arrived at Scene 10-24 Assignment Completed 10-25 Report in Person (Meet) 10-26 Detaining Subject, Expedite 10-27 Drivers License Information 10-28 Vehicle Registration Information 10-29 Check for Wanted (but not typically used, but some do) 10-31 Crime in Progress 10-32 Person with Gun 10-33 Emergency (all unrelated radio traffic goes to secondary/tertiary channels) 10-34 Riot 10-35 Major Crime Alert 10-36 Correct Time 10-37 (Investigating) Suspicious Vehicle 10-38 Stopping Suspicious Vehicle (not typically used, as 10-37 covers both) 10-40 Silent Run - No Light, Siren 10-41 Beginning Tour of Duty 10-42 Ending Tour of Duty

10-45 Animal Carcass at ___ 10-46 Assist Motorist

10-50 Accident involving vehicles. 10-50w or “with” means injuries 10-51 Wrecker Needed 10-52 Ambulance Needed 10-53 Road Blocked at ___ 10-54 Livestock on Highway 10-55 Intoxicated Driver 10-56 Intoxicated Pedestrian 10-57 Hit and Run. 10-57w or “with” means injuries 10-58 Direct Traffic 10-59 Convoy or Escort 10-76 En Route to location 10-77 ETA (Estimated Time of Arrival) 10-78 Need Assistance

10-80 Chase in Progress (Usually just use “Pursuit”) 10-81 Breathalyzer Operator Request 10-84 Status? 10-85 Secure radio traffic 10-87 Dead body 10-89 Bomb Threat 10-90 Bank Alarm at ___ 10-91 Pick Up Prisoner / Subject 10-92 Improperly Parked Vehicle 10-93 Blockade 10-94 Drag Racing 10-95 Prisoner / Subject in Custody 10-96 Mental Subject (“Crazy”) 10-99 Wanted / Stolen Indicated Code 1: Proceed at normal response (no lights/siren). Code 2: Proceeding with lights only (typically prohibited, except when blocking off/directing traffic). Code 3: Emergency response with all lights/sirens engaged. Signal 1: Start backup. Signal 2: Expedited (emergency) response by backup. Signal 4: Cancel backup.

Detailed History for Police Seq# #P160202965 As of 2/08/2016 11:07:04

Output for: 132572

Priority:2 Type:16 - DOMESTIC DISTURB

Location:3618 HARVARD ST, LU btwn N KNOXVILLE AV and END

Created: 02/06/2016 10:33:48DP03149920

Entered: 02/06/2016 10:34:08DP03149920

Dispatch: 02/06/2016 10:35:06DP08131857 Enroute: 02/06/2016 10:35:15W68145396

Onscene: 02/06/2016 10:39:20DP08131857

Transprt: 02/06/2016 11:39:04DP03158496

Complete: 02/06/2016 11:45:28DP03158496

Closed: 02/06/2016 16:56:24TAB006153293

ICUnit:PrimeUnit:1135 Dispo:SRPT Type:16 - DOMESTIC DISTURB

Agency:LPD Zone:Z1 Beat:14 Area:007 Case #:PD160004767, PD160004769 Detail

10:33:48 CREATE Location:3611 HARVARD ST, LU Type:16 Zone:Z1 Area:007 TypeDesc:DOMESTIC DISTURB LocDesc:btwn N KNOXVILLE AV and END Priority:2 Response:2PAT Agency:LPD LocType:S

10:33:48 ALI E911Phne:806/401-1371 E911Pilot:806/211-9462 E911Subs:T-MOBILE WIRELESS E911Srce:WPH2 AliLong:-101.892056 AliLatitude:33.60976 Uncertainty:00000 Confidence:0

10:33:48 ALIGEO GeoLong:-101.892056 GeoLat:33.60976 10:33:50 ALIGEO GeoLong:-101.892056 GeoLat:33.60976 ClosestAdd:3613 HARVARD ST AddDesc:99 ft S ClosestInt:HARVARD ST / N KNOXVILLE AV InterDesc:247 ft SW Area1:007 Area2:007

10:34:08 ENTRY Comment:MALE SHOOTING A MALE 10:34:08 -NPREMS Comment:(none) 10:34:09 -FPREM Comment:HYI 10:34:17 SELECT 10:34:19 HOLD 10:34:21 INFO Comment:BM LSW GRY HOODIE 10:34:42 INFO Comment:BM IN A BRO PC 2DR OLDER MODEL 10:34:48 INFO Comment:VEH IS IN FRONT OF THIS 20 10:35:06 DISP 1135 ID:45396 OperNames:JONES, JEREMY D 10:35:06 DISP 1134 ID:29397 OperNames:SCOTT, MICHAEL 10:35:06 -PRIU 1135 10:35:08 INFO Comment:BM LSW BLK JACKET TRYING TO TAKE THE GUN AWAY 10:35:15 *ENRTE 1135 10:35:18 *ENRTE 1134 10:35:19 INFO Name:HERNANDEZ, GLORIA Phone:(806) 401-1371 10:35:28 INFO Comment:RP ADV BOTH SUBJ IN THE VEH 10:36:01 BACKER 1127 UnitID:1135 Location:3611 HARVARD ST, LU ID:137157 OperNames:SCULLY, JOSIAH Comment:AS A THIRD 10:36:08 BACKER 1116 UnitID:1127 Location:3611 HARVARD ST, LU ID:142753 OperNames:AKINS, JESSE

10:36:46 CHANGE Name:None-->KING, VICKI Phone:None-->(806) 786-8760 Comment:GLD OLDSMOBILE / RP ADV SUBJ ARE SHOOTING EACH OTHER X5 SHOTS

10:37:11 COMBIN Service:P Seq#:#P160202964 Type:321 Agency:LPD

10:37:45 CHANGE Location:3611 HARVARD ST, LU-->3618 HARVARD ST, LU Name:KING, VICKI-->MILLSAPS, FELIPE Phone:(806) 786-8760-->(806) 368-9072

10:37:45 -PREMIS Comment:B

10:37:47 -FPREM Comment:HYI

10:37:48 PRMISE Location:3618 HARVARD ST, LU PremType:B 10:37:51 NOMORE

10:37:57 MISCN Comment:NB PASSING 62ND ST 10:38:22 MISCN Comment:10-22 REF PASSING 62ND 10:39:05 MISC 1127 Comment:I'M 23

10:39:18 MISC 1127 Comment:GIVE ME 10-33

10:39:20 ONSCN 1127

10:39:21 MISC Comment:EMS/FIRE WILL STAND BACK

10:40:10 MISC Comment:27 10-84?

10:40:21 BACKER 1124 UnitID:1127 Location:3611 HARVARD ST, LU ID:18073

OperNames:ADAME, CESAR Comment:CODE 3 10:40:33 MISC 1127 Comment:I GOT ONE RUNNING GRY HOODIE BLU PANTS

10:40:42 BACKER 1120 UnitID:1127 Location:3611 HARVARD ST, LU ID:18403

OperNames:GONZALEZ, JESUS (JESSIE)

10:40:43 BACKER 1132 UnitID:1127 Location:3611 HARVARD ST, LU ID:65509

OperNames:CAMACHO, JOSE Comment:CODE 3

10:40:49 BACKER 1110 UnitID:1127 Location:3611 HARVARD ST, LU ID:19929

OperNames:JACKSON, ANTHONY

10:40:58 BACKER 1122 UnitID:1127 Location:3611 HARVARD ST, LU ID:102413

OperNames:RINEHART, RON

10:40:58 BACKER 1261 UnitID:1127 Location:3611 HARVARD ST, LU ID:140447

OperNames:GAST, AARON

10:41:02 MISC 1261 Comment:CODE 3

10:41:07 MISC 1135 Comment:CODE 3 10:41:10 MISC 1124 Comment:CODE 3 10:41:13 MISC 1261 Comment:CODE

10:41:15 *ONSCN 1134

10:41:19 MISC 1261 Comment:CODE 3

10:41:19 BACKER 1125 UnitID:1127 Location:3611 HARVARD ST, LU ID:128972

OperNames:BARRON, COLE Comment:CODE 3

10:41:41 BACKOS 1121 UnitID:1127 Location:3611 HARVARD ST, LU ID:48413

OperNames:FLORES, FELIPE

10:41:45 MISC 1127 Comment:I LOST HIM IN APTS / RIGHT HERE EAST OF NASHVILLE

10:41:48 MISC 1127 Comment:MY RADIO IS BROKE

10:41:59 DISPER 1262 ID:145006 OperNames:MCREYNOLDS, JOSEPH

10:42:00 MISC 1127 Comment:NEED EMS TO THE ORIGINAL 20, SUBJ HAS A GUNSHOT WOUND

10:42:18 MISC 1262 Comment:CODE 3

10:42:24 MISC Comment:SUBJECT RUNNING THROUGH INDIANA VILLAGE APARTMENT COMPLEX AT 701 N INDIANA

10:42:35 MISC 1127 Comment:ON ITASCA ON GRINKELL ON KNOVILLE AND INDIANA / BM GRY HOODIE BLK WRITING, DARK PANTS, BROWN OR KHAKI

10:42:39 BACKOS 1111 UnitID:1127 Location:3611 HARVARD ST, LU ID:139282

OperNames:GAFFORD, JOSHUA

10:42:42 MISC Comment:SUBJECT HEADED EB IN COMPLEX

10:42:47 CLOS 1121 Location:ITASCA ST/N KNOXVILLE AV, LU 10:42:59 CLOS 1134 Location:1200 BLK N KNOXVILLE AV, LU 10:43:04 *ONSCN 1135

10:43:20 MISC 1127 Comment:CORRECTION: DARK SHORTS, BROWN OR KHAKI

10:43:43 MISC Comment:RP PEREZ, ARMANDO 939-6816 // 10:43:47 MISC 1127 Comment:I'M IN THE MIDDLE OF THE APT COMPLEX AT 1001 N INDIANA

10:43:50 DISP 1263 ID:142875 OperNames:KNOWLTON, NICHOLAS 10:43:50 DISP 1264 ID:131512 OperNames:MORA, MISTY

10:43:55 *ENRTE 1263

10:44:10 MISC 1127 Comment:LAST SAW HM EB IN THE MIDDLE OF THE COMPLEX 10:44:19 MISC 1261 Comment:ANYONE AT THE ORIGINAL 20? 10:44:20 MISC Comment:RP ADV OFFICER DROPPED HIS WEAPON 10:44:25 MISC 1127 Comment:NOT SURE, WE NEED EMS 10:44:30 *ENRTE 1264 10:44:37 ONSCN 1124 Comment:IN AREA 10:44:52 MISC 1124 Comment:DID HE GO EAST ON INDIANA? 10:45:02 MISC 1127 Comment:WE DON'T KNOW IF HE CROSS INDIANA 10:45:06 BACKER 1115 UnitID:1127 Location:3611 HARVARD ST, LU ID:134687 OperNames:GARCIA, MICHAEL 10:45:11 *ONSCN 1261 10:45:14 MISC 1127 Comment:WITNESS IS SAYING HE DID NOT MAKE IT PAST INDIANA 10:45:19 ONSCN 1125 10:45:25 ONSCN 1132 10:45:33 CLOS 1122 Location:ITASCA ST/N INDIANA AV, LU 10:45:38 MISC Comment:CLEAR FOR EMS TO APPROACH 10:45:44 CLOS 1134 Location:N KNOXVILLE AV/MARSHALL ST, LU 10:45:51 CLOS 1111 Location:N ITHACA AV/GRINNELL ST, LU 10:46:12 MISC 1127 Comment:SUBJ IS A BM GRY HOODIE BLK WRITING ON BACK 509/510 POSS 200LBS HAS ON GRY/BROWN SHORTS 10:46:27 MISC 1132 Comment:CHECKING AREA OF CAMERON COURT 10:46:46 CLOS 1261 Location:CAMERON COURT APTS, LU Comment:MAIN ENTRANCE 10:46:52 MISC 1135 Comment:I'M WITH 27 10:47:16 MISC 1111 Comment:WE NEED SOMEONE AT GRINNELA AND KNOXVILLE 10:47:25 MISC Comment:AT CENTER OF INDIANA VILLAGE 10:47:32 MISC Comment:LOST SUBJ NEAR THE POOL 10:47:44 MISC 1116 Comment:WITH VICTIM 10:48:00 *ONSCN 1120 10:48:03 ONSCN 1116 10:48:34 MISC 1127 Comment:AT INDIANA VILLAGE 4600 HARVARD EB / LOST SIGHT AT POOL 10:49:46 MISC 1116 Plate:FYY9097 Comment:28 10:49:46 RFT 1116 Plate:FYY9097 10:50:23 *MISC 1134 Comment:I CAN SEE THE NORTH SIDE OF THE COMPLEX- HAS NOT CROSSED NB OR WB SINCE I'VE BEEN HERE.

10:50:43 MISC Comment:DPS IS GOING TO START THE HELO 10:50:59 LOGM Message:991602061650005327 MessageType:Text Received:02/06/2016 10:50:27 Comment:28 RETURNS TO 1913 13TH ST ....OWNER QUENTIN LACHON MOSES

10:51:07 CLOS 1115 Location:3600 BLK LEHIGH ST, LU Comment:FLAGGED DOWN ABOUT A PHONE FOUND AND A TRAIL OF BLOOD IN ONE APT 10:51:13 CLOS 1134 Location:3600 BLK LEHIGH ST, LU 10:51:49 MISC 1115 Comment:I DO HAVE A FRESH BLOOD TRAIL LEDING UP TO 3604 LEHIGH

10:51:52 MISC 1135 1127 Comment:CLEAR 10:51:59 CHGLOC 1135 1127 Location:3604 LEHIGH ST, LU 10:52:05 MISC 1115 Comment:NEED UNITS IN BACK 10:52:10 CHGLOC 1262 Location:3604 LEHIGH ST, LU 10:52:28 BACKOS 5211 UnitID:1261 Location:CAMERON COURT APTS, LU ID:97915 OperNames:KNOBLOCH, SHAWN 10:52:33 CHGLOC 1263 Location:3604 LEHIGH ST, LU 10:52:38 ONSCN 1135 1127 10:52:57 MISC 1115 Comment:WE HAVE UNITS COVERING THE FRONT 10:53:18 MISC 1127 Comment:WE DO HAVE UNITS IN THE ALLEY OF 3604 LEHIGH? 10:53:18 PRMISE Location:3618 HARVARD ST, LU PremType:B 10:53:21 MISC 1134 Comment:I'M IN THE BACK 10:53:25 MISC 1127 Comment:WE ARE KICKING IN THE DOOR 10:53:27 *ONSCN 1264 10:53:35 ONSCN 5211 10:53:49 MISC 1135 Comment:WE HAVE ONE IN CUSTODY RIGHT NOW 10:53:56 *ONSCN 1263 10:54:08 MISC 1127 Comment:WE NEED SEVERAL MORE UNITS INSIDE 3604 LEHIGH 10:54:23 MISC 1127 Comment:HOLD WHAT YOU HAVE RIGHT NOW, I THINK WE MAY HAVE HIM 10:54:38 MISC 1262 Comment:WE HAVE ONE UNIT COMING TO THE FRONT FROM THE ALLEY 10:55:11 MISC 1125 Comment:DO YOU STILL NEED UNITS INSIDE? 10:55:15 MISC 1127 Comment:WE ARE GOOD RIGHT NOW 10:55:25 MISC Comment:CORR: DPS WILL ONLY SEND THE HELO IF WE NEED THEM, BUT THEY ARE AVAILABLE 10:55:26 MISC 1111 Comment:ARE WE CLEAR TO BREAK PERIMETER? 10:55:56 MISC 1132 Comment:HOLD PERIMETER UNTIL WE CONFIRM THAT THIS IS THE SUBJ STILL OUTSTANDING 10:56:48 MISC 1262 Comment:ARE YALL IN THE GARAGE? 10:56:54 *CHGLOC 1263 Location:3400 ITASCA Comment:ON PERIMETER 10:56:57 *ONSCN 1263 10:58:10 MISC 1127 Comment:SUBJ WE HAVE IS NOT GOING TO BE HIM 10:58:15 MISC 1124 Comment:STILL HOLDING PERIMETER

10:58:51 MISC 1134 Comment:HAVE YALL CLEARED THE RESD, WE ARE STILL OUT BACK 11:00:08 MISC 1127 Comment:SUBJ WE HAVE HAS OLD CUTS ON HIS HAND, BLOOD ON DOOR IS FROM LAST NIGHT / SUBJ POSS AT ORIGINAL PERIMETER AT 1001 N INDIANA

11:00:19 MISC 1127 Comment:GARAGE CLEAR 11:00:33 MISC 1111 Comment:NEED A UNIT AT GRINELL AND KNOXVILLE

11:01:37 CHGLOC 1115 Location:GRINNELL ST/N KNOXVILLE AV, LU

11:02:21 BACKOS 1100 UnitID:1262 Location:3604 LEHIGH ST, LU ID:17578

OperNames:MAYNE, ROBERT

11:02:24 MISC 1100 Comment:WOULD YOU HAVE EMS COME TO 3406 LEHIGH TO LOOK AT THIS GUY'S HAND

11:02:48 MISC 1122 Comment:BAXTOR, DYRON 031884 BM 11:02:49 *ONSCN 1115

11:03:15 MISC Comment:EMS ENROUTE TO 3406 LEHIGH 11:03:19 RFT 1122 Name:BAXTOR, DYRON Race:U Sex:M DOB:03181984 11:03:19 RFT 1122 Comment:INQUIRY QW,INVESTIGATIVE PURPOSE,,BAXTOR, DYRON,M,U,03181984,,,,,,,,,,,,, 11:04:16 BACKER 1266 UnitID:1262 Location:3604 LEHIGH ST, LU ID:117321

OperNames:WARD, JAMISON

11:04:21 LOGM 1122 Message:991602061704005367 MessageType:Text Received:02/06/2016 11:03:31 Comment:TCIC HIT OUT OF LSO FOR BAXTER, DYRONE SAMN DOB/CAUTION FLIGHT RISK ADN VILENT TENDANCIES

11:04:38 RFT 1122 Name:BAXTER, DYRONE Race:U Sex:M DOB:03181984 11:04:38 RFT 1122 Comment:INQUIRY QW,INVESTIGATIVE PURPOSE,,BAXTER, DYRONE,M,U,03181984,,,,,,,,,,,,, 11:04:56 MISC 1124 Comment:HOLDING PERIMETER AT INDIANA VILLAGE (700 N ITHACA) 11:04:59 LOGM 1122 Message:991602061704005376 MessageType:Text Received:02/06/2016 11:04:49 Comment:NEG DL ID UNDER EITHER SPELLING

11:05:00 MISC Comment:DPS105 IS 23 ON THE CALL

11:05:32 MISC Comment:BASTER, DYRONE 10-99 X 1 PD 11:05:43 MISC Comment:BAXTER, DYRONE 10-99 X 1 PD 11:05:47 BACKOS DPS105 UnitID:1127 Location:3604 LEHIGH ST, LU ID:DPS105 OperNames:DPS HELICOPTER 11:05:53 MISC DPS105 Comment:WE SEE YALL 11:06:53 MISC Comment:EMS STOPPED BY OFC TO GO TO 3604 LEHIGH. EMS CLEAR AND 76

11:06:55 MISC 1122 Comment:STANDBY 11:07:11 MISC DPS105 Comment:WAS HE RUNNING NE? 11:07:17 MISC 1127 Comment:EAST 11:07:53 MISC 1115 Comment:WITNESS POSS SAW SUBJ 11:08:03 MISC 1115 Comment:RIGHT WHERE TWO OFCS WERE STANDING, BY THE FENCE 11:08:11 MISC 1127 Comment:CLEAR, WHERE'S THE WITNESS 11:08:16 MISC 1115 Comment:WHI CHEVY PK , COMING UP BEHIND OFCS 11:08:25 MISC 1127 Comment:I'LL 10-17 11:08:28 MISC Comment:NO ADDITIONAL DESCRIPTORS IN TIB FOR BAXTER 11:08:53 MISC 1115 Comment:POSS SAW HIM ON THE WEST SIDE OF THE BUILDING / THEY SAID 5 MINS AGO HE WAS STANDING BY THE FENCE 11:09:39 *ONSCN 1121 11:10:00 MISC 1127 Comment:WITNESS SAID HE WAS JUST SEEN IMMEDIATELY EAST OF 3600 HARVARD ABOUT 5 MINS AGO 11:10:11 CLOS 1263 Location:ITASCA ST/N INDIANA AV, LU 11:10:30 MISC 1127 Comment:I RECOVERED ONE WEAPON, UNK IF HE HAS ANOTHER 11:10:38 MISC 1100 Comment:I'VE GOT THE WEAPON

11:10:53 MISC 1110 Comment:TO PERIMETER UNITS, DON'T LET ANYONE IN AND CHECK EVERYONE COMING OUT

11:11:17 MISC Comment:BAXTER TAT DESC/"FELTON" ON LFARM/WIFE'S NAME ON RFARM/"SAVES" ON LWRST/"JESUS" ON RWRST/NAMES ON HIS ABDOM 11:11:29 MISC 1124 Comment:I'LL BE STOPPING ALL VEHS LEAVING GRINNELL AND INDIANA

11:11:48 MISC 1132 Comment:HE DID SEE SUBJ, BUT HE DIDN'T PASS INDIANA / THEY'RE SAYING HE LIVES IN THE COMPLEX 11:13:11 CHGLOC 1100 Location:UNK HOSPITAL Comment:TO CHECK TO STATUS OF VICTIM 11:13:21 MISCN 1116 Comment:FIND OUT WHO IS WORKING UMC AND GET A STATUS ON THIS GUY

11:13:29 CHGLOC 1100 Location:UMC ER, LU 11:13:51 MISC Comment:PER P200, AT UMC RIGHT NOW, ADV NON LIFE THREATENING AT THIS POINT

11:13:54 MISC 1100 Comment:CEAR 11:13:57 MISC 1100 Comment:CLEAR 11:14:44 MISC 1110 Comment:TO 1100, CAN WE SET UP A COMMAND POST AT ITASCA AND N KNOVILLE

11:14:48 MISC 1100 Comment:STANDBY 11:15:42 MISC 1122 Comment:CONFIRM ON WARRANTS 11:17:01 *ONSCN 1135 11:17:36 MISC 1100 Comment:EVERYONE KEEP THE PERIMETER, WE ARE GOING TO DO A LINE SEARCH

11:18:09 MISC 1110 Comment:IF ANY PRESS SHOWS UP, SEND THEM TO ITASCA AND N KNOXVILLE

11:18:20 MISC 1127 Comment:I LOST MY MIC, IT'S BUSTED SO I JUST DROPPED IT 11:18:26 MISC 1132 Comment:I HAVE IT 11:19:47 CASE 1261 Case#:PD160004767 Comment:SERVED WARRANT 11:20:08 MISC 1263 Comment:I'M WITH WITNESS WHO ADV THAT SHE GAVE THE GUY A RIDE OUT OF THE APT COMPLEX BEFORE WE STARTED GIVING VEH CHECKS 11:20:14 MISC 1263 Comment:I'M AT 3400 ITASCA 11:20:17 MISC 1100 Comment:CLEAR 11:20:25 MISC 1124 Comment:DID SHE SAY WHERE SHE DROPPED HIM OFF? 11:20:34 MISC 1263 Comment:SHE'S PULLING OVER, SHE SAID EB ON ZENITH 11:20:53 MISC 1263 Comment:CORRECTION: EAST SIDE ON ZENITH 11:21:37 MISC 1263 Comment:NEG, SAID HIS NAME WAS "D", SUBJ LEFT HIS BLOODY ITEMS IN THE APT AND FORCEDHER TO TAKE HIM / APT IS 3412

11:22:02 MISC 1110 Comment:DETAIN HER AS A WITNESS IN THE BACK SEAT OF YOUR VEH

11:22:40 MISC 1263 Comment:SHE SAID SHE CAN SAY WHICH HOUSE IT IS WHERE SHE DROPPED HIM OFF

11:22:42 MISC 1110 Comment:CLEAR

11:23:28 MISC 1100 Comment:UNDER THE CIRCUMSTANCES, 10-22 K9

11:23:37 MISCN Comment:LOCAL'S FOR BAXTER CONFIRMED

11:24:08 MISC 1264 Comment:76 WITH A KEY TO THE APT 11:24:26 CHGLOC 1264 Location:INDIANA VILLAGE APTS #3412, LU 11:24:41 MISCN Comment:LSO WARRANT FOR BAXTER CONFIRMED

11:25:32 *ONSCN 1264

11:27:56 MISC 1100 Comment:WE HAVE RECOVERED HIS HOODIE AND STUFF LIKE THAT IN

THE APT, I'LL HAVE THE CSO COLLECT ALL OF THIS

11:29:07 MISC 1100 Comment:10-4

11:29:25 MISC Comment:10-33 CANCELLED AT 1129HRS

11:29:48 MISC 1134 Comment:SUBJ SAYING POSS EAST BLOCK OF ZENITH AT EITHER BAYLOR, BEECH, OR BROWN

11:29:58 MISC DPS105 Comment:WILL CHECK AREA 11:33:03 CLEAR 1124 11:34:54 CLEAR 1266 11:35:03 CLEAR 5211 11:35:26 PRMPT 1111 Comment:Preempted and dispatched to call #P160202953 11:35:36 CLEAR 1262 11:37:46 CASE 1100 Case#:PD160004769 Comment:FOR THE EVENT 11:39:04 TRANSP 1261 Location:UMC ER Comment:FOR MED CLEAR 11:40:12 MISC DPS105 Comment:UTL ON ANYTHING SUSPICOUS ON EAST SIDE 11:40:16 CLEAR DPS105 11:45:28 CMPLT 1261 12:00:29 *CLEAR 1132 12:00:34 CLEAR 1115 Dispo:SRPT 12:06:43 MISC Plate:FZL9970 Comment:PER 1113- WILL BE FEMALE WHO DROVE THE SUSPECT

12:07:01 LOGM Message:991602061807005570 MessageType:Text Received:02/06/2016 12:06:48 Comment:28- FOR FEMALE WHO DROVE SUSPECT 12:07:16 *CHGLOC 1264 Location:LPD 12:07:38 *CHGLOC 1263 Location:PD Comment:DOWNLOAD/RPT 12:10:56 MISC Comment:BAXTER WARRANTS ATTACHED TO TTY #160420 12:13:28 *ONSCN 1264 12:14:09 *ONSCN 1263 12:20:54 *CLEAR 1110 12:23:03 *CLEAR 1100 12:25:18 *CHGLOC 1127 Location:UMC 12:26:17 *MISC 1134 Comment:CLR SCENE- ON RPT 12:28:50 MISC 1116 Comment:10-51 X 1 3600 BLK HARVARD 12:28:53 MISC 1116 Comment:HAVE FIRE COME FOR A CLEAN UP AS WELL 12:29:40 MISCN Comment:WRECKER 76 12:30:31 MISCN Comment:FIRE CLEAR 12:32:10 *CLEAR 1122 12:33:42 *ONSCN 1127 12:33:55 *CHGLOC 1127 Location:PD 12:49:18 *ONSCN 1127 12:52:42 *CHGLOC 1264 Location:PROPERTY ROOM 12:52:44 *ONSCN 1264 13:03:12 *CHGLOC 1264 Location:DRYING ROOM, LU 13:08:58 *ONSCN 1264 13:14:04 *CLEAR 1263 Dispo:SRPT 13:14:37 *CLEAR 1135 Dispo:SRPT 13:14:39 *RFT 1127 Comment:INQUIRY JMQWM,,TX,,,,SMITH, DAMORIAN,B,M,11241990,,,, 13:22:01 *RFT 1134 Comment:INQUIRY DL,RDL,FLOURNOY,JAMAL,04071989,

13:27:03

*RFT 1134 Comment:INQUIRY JMQWM,,TX,,,,FLOURNOY,JAMAL,B,M,04071989,,,, 13:29:47 *RFT 1134 Comment:INQUIRY JMQWM,,TX,,,,,,,,,26506393, 13:34:28 *MISC 1116 Comment:Message From Terminal/Unit: STDR Operator: () Date/Time Sent: 06-FEB-2016 13:34:19 LBX2.W845 .JAR1161.

11054615

REGX.TXMVDW000.LBX2.

TXT

LIC CJ5F256 APR/2016 OLD # CJ5F256 FEB/2015 EWT 5400 GWT 5400 PASSENGER-TRUCK PLT, STKR REG CLASS 02 $ 62.75 SCURRY CNTY TITLE 22130140532095506 ISSUED 01/05/2011 ODOMETER 78097 REG DT 05/04/2015 2003,CHEV,C15,LL,1GNEC16Z43J116302,PASS-TRK,COLOR: MAR, PRICE $ 0.00

PREV OWN FRONTIER MOTOR CO INC,ABILENE,TX OWNER JENNIFER ESPINOZA,ID#=N/A,DIANNE BRADY, PO BOX 1147,,SNYDER,TX,79550

LIEN 12/13/2010,FRONTIER MOTOR CO INC,,4601 N FIRST,,ABILENE,TX,79603

PLATE AGE: 5 LAST ACTIVITY 05/16/2015 RENEW OFC: 208 REMARKS ACTUAL MILEAGE.DATE OF ASSIGNMENT:2010/12/13.PAPER TITLE.

MRI: 11054615 IN: MVDWS 86101 AT 06FEB2016 13:34:19 OUT: LBX2 787 AT 06FEB2016 13:34:19

13:34:43 CHGLOC 1121 Location:PROPERTY ROOM

13:36:33 *MISC 1127 Comment:Message From Terminal/Unit: STDR Operator: () Date/Time Sent: 06-FEB-2016 13:36:25 LBX2.W536 .JSR2837.

11057034 REGX.TXMVDW000.LBX2. TXT

LIC FYY9017 MAY/2016 OLD # HWC262 SEP/2015 EWT 3800 GWT 3800 PASSENGER-TRUCK PLT, STKR REG CLASS 02 $ 70.25 LUBBOCK CNTY TITLE 15232642165142419 ISSUED 06/19/2015 ODOMETER N/A REG DT 06/12/2015 1985,OLDS,DRB,2D,1G3BY37Y7FY372315,PASS,COLOR: TAN, PRICE $ 500.00

PREV TTL: JUR TX TTL # 08500039229134710 ISSUE 06/04/2007 PREV OWN OPEN ROAD MOBILITY LLC,LUBBOCK,TX OWNER QUENTIN LACHON MOSES,ID#=N/A,, 1913 13TH STREET,,LUBBOCK,TX,79401

PLATE AGE: 0 LAST ACTIVITY 06/19/2015 RLSAUT OFC: 297 REMARKS DATE OF ASSIGNMENT:2015/06/09.PAPER TITLE. MRI: 11057034 IN: MVDWS 86414 AT 06FEB2016 13:36:25 OUT: LBX2 790 AT 06FEB2016 13:36:25

13:37:02 *ONSCN 1121 13:37:40 *RFT 1134 Comment:INQUIRY DL,RDL,REYES,JANIE,, 13:40:01 CLOS 1125 Location:LUBBOCK POLICE DEPARTMENT, LU Comment:ON RPT 13:43:47 PRMPT 1120 Comment:Preempted and dispatched to call #P160203025 13:44:55 MISC 1261 Comment:START RELIEF AS SOON AS SOMEONE IS AVAILABLE / ROOM #9 13:45:10 *CHGLOC 1116 Location:PD

13:46:55 *RFT 1134 Comment:INQUIRY JMQWM,,TX,,,,,,,,,39607905, 13:47:46 *RFT 1134 Comment:INQUIRY JMQWM,,TX,,,,,,,,,22682315, 14:22:35 *RFT 1261 Comment:INQUIRY JMQWM,,TX,,,,BAXTER,DYRON,B,M,03181984,,,, 14:22:40 BACKER 2136 UnitID:1261 Location:UMC ER ID:153293 OperNames:GARCIA, ARNOLD Comment:AS RELIEF

14:23:46 *CHGLOC 1116 Location:PROPERTY ROOM 14:23:50 *ONSCN 1116

14:23:55 *CHGLOC 1116 Location:PROPERTY ROOM 14:23:58 *ONSCN 1116 14:25:36 *CLEAR 1264 Dispo:SRPT 14:27:37 *ONSCN 2136

14:39:41 *CHGLOC 1261 Location:PD Comment:RPT 14:39:43 *ONSCN 1261

14:57:59 *CLEAR 1125 Dispo:SRPT 14:58:14 *CLEAR 1121 Dispo:SRPT 15:21:42 LOGM Message:991602062121006290 MessageType:Text Received:02/06/2016 15:21:14 Comment:27/ID

15:22:01 *CLEAR 1116 Dispo:SRPT

15:32:33 *CLEAR 1261 Dispo:RPT

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15:57:20 CMPLT 2136

16:15:43 CLEAR 1127 Dispo:RPT Comment:ACTUAL TIME OF 10-8/10-42 WILL BE 1530 HRS 16:52:10 *CLEAR 1134 Dispo:RPT

16:52:55 CHANGE Dispo:SRPT

16:56:24 *CLEAR 2136 Dispo:SRPT 16:56:24 -CLEAR 16:56:24 *CLOSE

CONTACT INFO:

2022–2023

TCDLA Committee Expression of Interest

TCDLA is seeking enthusiastic and motivated individuals for upcoming openings to its 2022–2023 committees. Committee descriptions and mission statements are listed on the website. Complete the form below and check one or more of the committees that you would be interested in serving on.

Responsibilities of a TCDLA Committee Member:

1. Member of TCDLA.

2. Committees will provide advice, guidance and recommendations to the TCDLA President and/or Board of Directors on relevant matters related to their particular committee. 3. Committees will have assigned responsibilities associated with TCDLA’s strategic plan and objectives.

4. Meet throughout the year via conference call and/or at quarterly board meetings. 5. Members are expected to review and respond to email requests in a timely fashion. 6. Committee Chairs are expected to prepare written reports for inclusion in the board packets for each board meeting. Any items requiring a decision of the Board should be included on agenda. Committee members will assist chairs in the preparation of reports.

Email this completed form with a brief resume. Form may include a personal statement describing your interest in serving on the committee to ksteen@tcdla.com no later than July 1, 2022.

The Texas Criminal Defense Lawyers Association (TCDLA) is the largest state association for criminal defense attorneys in the nation.

TCDLA began more than 45 years ago as a small, nonprofit association and has grown into a state-of the-art organization, providing assistance, support, and continuing education to its members.

TCDLA provides a statewide forum for criminal defense lawyers and is one of the few voices in the legislature interested in basic fairness in the defense of criminal cases. We are proud that many of our 3,600 members are elite criminal defense professionals in Texas.

TCDLA hosts more than 60 seminars each year, providing the highest-quality legal education available for new lawyers as well as seasoned veterans. Our seminars are attended regularly by our members, non-members, judges, and professionals in related fields. Our yearly seminars have increased to over 6,000 people continuing their educational opportunities each year.

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

How to Apply:

• Submit application online at tcdla.com

• Email application to mrendon@tcdla.com

• Mail this membership application to:

Texas Criminal Defense Lawyers Association

6808 Hill Meadow Drive Austin, TX 78736

Texas Criminal Defense Lawyers Association 6808 Hill Meadow Drive Austin, Texas 78736 www.tcdla.com

Membership Application

Apply online at tcdla.com or return this membership application

TCDLA Benefits

See full list at tcdla.com

Resources:

• Networking opportunities with the best criminal defense lawyers in Texas

• Strike Force

• TCDLA APP includes criminal codes, statutes, and case law

• Online Resources, a library including motions, transcripts, briefs, seminars, & more

• Voice for the Defense magazine, the only statewide magazine written specifically for criminal defense lawyers

• Listserv connecting our community on important issues

• Significant Decisions Report emailed weekly

• Legislature lobbyists advocating on behalf of members

• Expert list for experts in a multitude of practice areas

• Moot Court provided on request

Services:

• Ethics Hotline the only anonymous ethics hotline

• Membership Directory provided annually and updated online daily

• TCDLA logo for websites and social media

• Lawyer Locator member publication

Savings:

• Continuing Legal Education seminars & legal publications

• LawPay

• Lenovo

• Professional Liability Insurance

• GAP/Disability Insurance

• Brooks Brothers Corporate Membership Program

• Lucchese Boots

• La Quinta Inn & Suites

• Enterprise Car Rental

• Odyssey Travel

• Sprint

*Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

TCDLA Membership Application

Your membership is effective upon approval of application and receipt of annual membership dues. Please allow two to four weeks for certificate and membership kit.

To join TCDLA you must

• Be a member in good standing of the State Bar of Texas

• Practice criminal defense

Members of the judiciary (except honorary members) and those regularly employed at a prosecutorial office are not eligible.

Name

Business Name Bar Number

Address City, State, Zip

Phone Fax Cell Phone (Will not give out)

Email Website Law School/License Date

Endorsement (Required by a current TCDLA member):

Membership:

Please check appropriate category. Prices are for one year.

 $100 First-time ($100 for each of the first two years)

 $180 Regular member

Name Signature

 $60 Public defender (must be a PD employee)  $330 Voluntary sustaining (required for TCDLA officers and directors)

 $100 TCDLA past president

 $80 Distinguished member (70+ years old)

 $20 Law student (not auto-renew)

 $80 Affiliate  Paralegal  Investigator  Expert  Other (law professors and other persons approved by board) (Members of the judiciary (except honorary members) and those regularly employed at a prosecutorial office are not eligible.)

 I prefer not to participate in Auto-Renewal

 I would like to donate to the TCDLEI scholarship, 501 (c)(3) organization, in the amount of $ ________  I would like to donate to the legislative effort in the amount of $ ________

Payment:

TCDLA encourages all new and renewing members to apply for membership and pay dues safely and securely at tcdla.com. Alternatively, we accept checks sent to the address below. Note: Your membership is effective upon approval and receipt of annual membership dues.

 Automatic Renewal. Pay online using your credit card or authorized automatic withdrawal from your checking account.*

 Credit Card (Visa, Mastercard, Amex, or Discover) online at tcdla.com.

 Check payable to TCDLA, Mail: 6808 Hill Meadow Dr. Austin, TX 78736 OR Fax: 512.469.9107

*As the account holder at the financial institution, I have designated for Automatic Draft. I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date the payment is due. I further understand and agree as follows:

Signature Date

Financial Institution: ___________________________ Routing #: ____________________________ Account #: ______________________

Credit Card (Visa, Mastercard, Amex, or Discover)

Tax Notice: Dues to TCDLA are not deductible as a charitable donation. As an ordinary business expense the non-deductible portion of membership dues is 25% in accordance with IRC sec. 6033. •For your convenience, TCDLA uses AUTO RENEWAL for all membership dues, using your checking account or credit card. You will be automatically enrolled in the auto renewal program so you do not have to do anything while continuing to enjoy membership benefits every year! You can always opt out of auto-renewal by simply contacting TCDLA by emailing mrendon@tcdla.com or by checking the opt·out option above. This authorization will remain in effect until TCDLA receives written notification of cancellation at least 10 business days in advance of the next payment due date. For refunds please note credit cards may take 2-5 business days, checks may take longer. Contact mrendon@tcdla.com for any questions or concerns.

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney Pledge Options

Choose a fund that’s near and dear to you:

For the ASSOCIATE FELLOWS FUND ($750) FELLOWS FUND ($1500) SUPER FELLOWS FUND ($3000) In one lump sum Quarterly Monthly In ____ payments of $________. I would like to designate this donation for use on these specific funds: CHARLES BUTTS Law Student Scholarship in the amount of $_________ Financial CLE SCHOLARSHIPS $___________ For the COMANCHE CLUB in the amount of $_________ For CHRISTINE S. CHENG MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________ BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________ KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________

(Effective 4/2019)

Mr. Ms. Mrs.

Application

Membership Fees Get Involved: Committees/Lawyer Locator

$_______ $100 First-time ($100 for each of the first two years)

$_______ $180 Regular member

$_______ $60 Public defender (must be a PD employee)

$_______ $330 Voluntary sustaining (required for TCDLA officers and directors)

$_______ $100 TCDLA past president

$_______ $80 Distinguished member (70+ years old)

$_______ $20 Law student (not auto-renew)

$_______ $80 Affiliate (: Paralegal Investigator Expert Other (law professors & others approved by board)

I prefer not to participate in auto-renewal

$_______ Total

I’m interested in serving on a committee—send information. Send me a Board application. Yes! Include me in the online Lawyer Locator.** You may list up to three areas of specialty in criminal defense law for public access (example: DWI, sexual assault, appeals). _________________ _________________ _______________

**Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

Payment Method

For your convenience, TCDLA uses AUTO RENEWAL for all membership dues, using your checking account or credit card. You will be automatically enrolled in the autorenewal program so you do not have to do anything while continuing to enjoy membership benefits every year! You can always opt out of auto-renewal anytime by simply contacting TCDLA by emailing mrendon@tcdla.com or by checking the opt-out option above.

As the account holder at the financial institution I have designated for Automatic Draft, I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date the payment is due. I further understand and agree as follows:

• This authorization will remain in effect until TCDLA receives a written notification of cancellation at least 10 business days in advance of the next payment due date. Date

Checking Account

Name of Institution*

Credit card (Visa, Mastercard, Amex, or Discover)

Credit Card Number

Financial Institution 9-Digit Routing # Account #

Expiration Date

Tax Notice: $36 of your annual dues ($19 if a student member) is for a one-year subscription to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033.

Information will be used for TCDLA communication (legislative, SDRs, seminars, events, and other announcements related to criminal defense). Contact office to opt out.