35th Annual Rusty Duncan Advanced Criminal Law Seminar by TCDLA

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2:30 PM 5:30 PM

7:00 PM 7:00 PM

Daily CLE Hours: 7.00 Ethics: 1.00 7:30 AM 5:30 PM 7:30 AM 8:30 AM 8:00 AM 8:05 AM 1.00 8:05 AM 9:05 AM 1.00 9:05 AM 10:05 AM 1.00 10:05 AM 11:05 AM 11:30 AM 11:05 AM 12:35 PM 12:45 PM 12:50 PM 1.00 12:50 PM 1:50 PM 1.00 1:50 PM 2:50 PM 2:50 PM 3:10 PM 1.00 3:10 PM 4:10 PM 1.00 4:10 PM 5:10 PM 4:15 PM 5:15 PM 5:10 PM 5:15 PM 6:15 PM 5:30 PM 6:30 PM 6:30 PM 8:30 PM

Early‐Bird Check‐In Members and Family Reception

THURSDAY ‐ June 16, 2022 ‐ Ballroom Registration Continental Breakfast President's Message & Opening Remarks ~ Michael Gross & Kerri Anderson Donica Burn the State: Cross‐Exam ~ Mark Daniel The Good, The Bad & The Ugly: Extraneous Acts ~ Anne Burnham The Family Limits: Ethics ~ Mark Snodgrass Golf at the Quarry ~ Tee Time 12 noon Lunch On Your Own/ Awards Banquet (Ticket Needed) President‐Elect Message & Opening Remarks ~ Heather Barbieri & Clay Steadman Ten Commandment: Case Law Update ~ Hon. David Newell and Hon. Bert Richardson The Sit Down: Voir Dire ~ Frank Sellers Break Going Against the Family: Search & Seizure ~ David Guinn Jr. Trusting Outsiders: Crimmigration ~ Krista Harvey Excutive Committee Meeting in Chula Vista Adjourn New Lawyers, New Members and Law School Students Reception with Board Members (Hotel Bar) TCDLEI Fellows and Super Fellows Reception (Invitation Only) Goldestein and Orr Pachanga

FRIDAY ‐ June 17, 2022

Daily CLE: 7.5 Ethics: 2.0 7:45 AM 7:45 AM

18.5 total CLE, including 3.0 Ethics

WEDNESDAY ‐ June 15, 2022 ‐ Ballroom

5:30 PM 8:45 AM

Registration Continental Breakfast

Track I ‐ Regency Ballroom Forensics & Cyber Crimes

Track II ‐ Rio Grande Ballroom Substance Abuse Crimes

8:00 AM

8:05 AM

Opening Remarks ~ Clay Steadman

Opening Remarks ~ Carmen Roe

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8:50 AM

Going too Far: Child /Revenge Porn ~ Eric Davis

A Dirty Business: Drugs ~ Carmen Roe

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9:35 AM

The State's Goomba: Experts ~ Sarah Roland

Modern Prohibition ~ Doug Murphy

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TCDLEI Annual Board Meeting (Chula Vista) Break New Business: Marijuana ~ Don Flanary

Misery Loves Company: Online Solicitation ~ Shane Phelps The Score: Cell Towers ‐ EX Martin

Not Good or Bad, Just Labs ~ Deandra Grant

CDLP Committee Meeting (Chula Vista) Lunch On Your Own The Burnout Resistance Roundtable Women's Caucus Roundtable Bring Your Lunch

Track III ‐ Regency Ballroom Violent Crimes

Track IV ‐ Rio Grande Ballroom Family Business

1:10 PM

1:15 PM

Opening Remarks ~ Heather Barbieri

Opening Remarks ~ Kerri Anderson Donica

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A Family Beef: Domestic Violence ~ Lisa Greenberg

Maintaining Your Territory Ethically ~ Nicole DeBorde Hochglaube

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5:00 PM 5:05 PM 6:00 PM 8:00 PM 12:00 PM

Daily CLE Hours: 4.0 Ethics: 0

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7:45 AM 8:45 AM 8:00 AM 8:05 AM 8:05 AM 9:05 AM 9:05 AM 10:05 AM 10:05 AM 11:05 AM 12:05 PM 11:05 AM 12:05 PM 12:15 PM 2:00 PM

Packin' Heat: DW & Aggravated Findings ~ Monique Sparks Shake Down & Minding Your Business ~ Cynthia Orr Break ‐ Family Ice Cream Social Defending the Perp: Complex Assault Cases ~ John Hunter Smith Sleeping with the Fishes: Office Ethics ~ David Moore

How to Get Away with Murder ~ Leticia Quinones

Speaking as a Boss: Public Speaking & Presentations ~ Paul Tu

Adjourn Friends of Bill (Pecan Room, Hill Country level) TCDLA Annual Membership Party —Hyatt Regency Ballroom (ticket required)

SATURDAY ‐ June 18, 2022 Registration & Continental Breakfast Opening Remarks ~ Heather Barbieri Supreme Court Update ~ Gerry Goldstein Robert Durst Trial ~ Dick DeGuerin The Greg Kelley Case ‐ Keith Hampton "Being Greg Kelley" ~ Greg Kelley Adjourn 51st Annual TCDLA Members' Meeting and Swearing in of Officers and Board Members Rosario's Celebration Lunch

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Defense Seminar Table of Contents speakers

topic Thursday, June 16, 2022

Mark Daniel Anne Burnham Mark Snodgrass Hon. David Newell and Hon. Bert Richardson Frank Sellers David Guinn Jr. Krista Harvey

Burn the State: Cross‐Exam The Good, The Bad & The Ugly: Extraneous Acts The Family Limits: Ethics Ten Commandment: Case Law Update The Sit Down: Voir Dire Going Against the Family: Search & Seizure Trusting Outsiders: Crimmigration

Friday, June 17, 2022 - Track I: Regency Ballroom Forensics & Cyber Crime Sarah Roland

The State's Goomba: Experts

Shane Phelps

Misery Loves Company: Online Solicitation

EX Martin

The Score: Cell Towers Track II: Rio Grande Ballroom Substance Abuse Crimes

Carmen Roe Doug Murphy Don Flanary Deandra Grant

A Dirty Business: Drugs Modern Prohibition New Business: Marijuana Not Good or Bad, Just Labs

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

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Defense Seminar Table of Contents speakers

topic Track III: Regency Ballroom Violent Crimes

Lisa Greenberg

A Family Beef: Domestic Violence

Monique Sparks

Packin' Heat: DW & Aggravated Findings

Letitia Quinones

How to Get Away with Murder Track IV: Rio Grande Ballroom Family Business

Nicole DeBorde Hochglaube David Moore Paul Tu

Maintaining Your Territory Ethically Sleeping with the Fishes: Office Ethics Speaking as a Boss: Public Speaking & Presentations Saturday, June 18, 2022

Gerry Goldstein

The New Supreme Court

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

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Burn the State: Cross-Exam Speaker: Mark Daniel 301 Commerce Street, Ste 2001 Fort Worth, TX 76102 (817) 332-3822 Phone (817) 332-2763 Fax Mark.Daniel@markdaniellaw.com Email

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

BURN THE STATE: CROSS EXAMINATION

MARK G. DANIEL DANIEL, MOORE, EVANS, BIGGS, DECKER & SMID FORT WORTH, TEXAS

TEXAS CRIMINAL DEFENSE LAWYERS

33RD ANNUAL RUSTY DUNCAN ADVANCED CRIMINAL LAW June 16, 2022 San Antonio

BURN THE STATE: CROSS EXAMINATION

INTRODUCTION AND SCOPE OF ARTICLE

Cross-examination is at the heart of the adjudication of criminal trials. It is only through cross-examination that the jury is led to see the "whole truth". Cross-examination is the most important thing the criminal practitioner will undertake. Most cross-examinations are conducted without a great deal of prior preparation or thought. Far too often, crossexamination consists of a number of unplanned and misdirected questions without purpose that often fill gaps for the prosecution, repeat direct testimony and often result in an argument with the witness. The only absolute rule in the trial of a criminal case is that everything that counsel does, including crossexamination, must be done with a sincere and alert consideration of the jurors' beliefs and the integrity of his or her position. Sound judgment, not rules, must determine how the cross-examiner approaches each witness. While cross-examination is an art, this article cannot begin to make a lawyer proficient. The cross-examiner must have a deep understanding of the considerations involved, experience, psychology, and ability to make immediate judgments and talent to execute without having time to think of all the consequences. There are no neat concepts or techniques for cross-examination that overlap into every case. Every successful cross-examination hinges on a combination of all these factors. The criminal practitioner cannot hope to become proficient in the art of cross-examination without first becoming thoroughly conversant with the constitutional principles governing cross-examination and the applicable rules of evidence. Particularly important are Article IV, Relevancy; Article VI, Witnesses; and Article VII, Opinion and Expert Testimony. What follows should be more than a practice guide but less than a legal treatise. It is hoped that this blend of ingredients will fuel the reader through your next cross-examination without the knocking, pinging and stumbling so often associated with this endeavor. Good luck!! II.

THE AUTHORITY TO CROSS-EXAMINE A. GENERALLY

Cross-examination is a matter of right. California v. Green, 399 U.S. 149 (1970). It is one of the safeguards essential to a fair trial. Alford v. United States, 282 U.S. 687 (1931). B. CONSTITUTIONAL RIGHT OF THE ACCUSED U.S. Constitution Amendment VI: "In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...". Texas Constitution, Article I, § 10: "In all criminal prosecutions the accused...shall be confronted by the witnesses against him..." The Bill of Rights in the United States and Texas Constitutions contains a confrontation clause. U.S. Constitution, Sixth Amend.; Tex. Const. Art. 1, Sec. 10. The primary purpose of the right of confrontation is the opportunity to cross-examine. Douglas v. Alabama, 380 U.S. 415 (1965); Alford v. United States, supra; Mattox v. United States, 156 U.S. 237 (1895). The Texas Constitution Art. I, Sec. 10 has been similarly interpreted to embody the valuable right of cross-examination in the confrontation clause. Garcia v. State, 151 Tex.Crim.R. 593, 210 S.W.2d 574 (1948). Long v. State, 742 S.W.2d 302, (Tex.Crim.App. 1987). Although Texas decisions parallel the federal case law, it was not until 1965 that the landmark decision in Pointer v. Texas, 380 U.S. 400 (1965) incorporated the Sixth Amendment confrontation clause into the Fourteenth Amendment due process clause applicable to the states. The Supreme Court’s interpretation of the Constitution’s Confrontation Clause came to be intertwined with the evidentiary rule of hearsay and its accompanying exceptions. This view of the Clause as an evidentiary rule came to a head in Ohio v. Roberts, 488 U.S. 56 (1980). Under Roberts, the out-of-court statements of an unavailable witness would be admitted so long as those statements bear “adequate indicia of reliability.” The reign of the Roberts “reliability test” continued for 24 years until the Supreme Court’s decision in Crawford v. Washington which restored the Clause as a procedural guarantee against the government’s presentation of ex parte testimony. The clause guarantees a face to face meeting with witnesses appearing before the trier of fact. Coy v. Iowa, 487 U.S. 1012 (1988). Coy struck down a state law allowing child witnesses to testify behind a screen in child abuse cases as a denial of the right to physical confrontation in court before the fact finder. See also Long v. State, supra, where the Texas Court of Criminal Appeals held that the use of videotape testimony of a child witness was a violation of the right to confrontation, declaring Art. 38.071, V.A.C.C.P. unconstitutional. However, the Court later rejected this proposition in Briggs v. State, 789 S.W.2d 918 (Tex.Crim.App.1990). The Briggs Court ruled that the statute [38.071 1

BURN THE STATE: CROSS EXAMINATION

C.C.P.] was not unconstitutional on its face, but recognized that the statute may function in an unconstitutional manner, depending on the circumstances of the case. The Courts have continually wrestled with the admissibility of child testimony by means of closed circuit television in the face of the Confrontation Clause. Before a trial court is allowed to utilize a closed-circuit system of transmitting a child’s testimony into the courtroom, the court must hear evidence and make three case-specific findings: 1) use of the one-way closed-circuit procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) the child witness would be traumatized by the presence of the defendant; (3) the emotional distress suffered by the child witness in the presence of the defendant is more than mere nervousness or excitement or some reluctance to testify. Hightower v. State, 822 S.W.2d 48 (Tex.Crim.App. 1991); Maryland v. Craig, 110 S.Ct. 3157 (1990). A defendant’s right to confront a witness may be satisfied absent a face-to-face confrontation only when the denial of face-to-face confrontation is necessary to further an important public policy and a trial court’s finding of the requisite three prong necessity may be made implicitly. Lively v. State, 968 S.W.2d 363 (Tex.Crim.App. 1998). The constitutional right to cross-examine witnesses is not absolute and can be denied when the evidence bears an indicia of reliability to insure the integrity of the fact finding process. For example, testimony subject to crossexamination by the same party at a former trial is admissible when the witness is unavailable so long as there is an indicia of reliability. Mancusi v. Stubbs, 408 U.S. 204 (1972). See also, Chambers v. Mississippi, 410 U.S. 284 (1973). The preceding cases deal with well recognized exceptions to the hearsay rule such as business records that would not literally survive a confrontation analysis but are allowed because they are deemed reliable. "From the earliest days of our Confrontation Clause jurisprudence, we have consistently held that the Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause". Idaho v. Wright, 497 U.S. 805 (1990); see Dutton v. Evans, 400 U.S. 74 (1970) (right to confrontation does not require that no hearsay ever be introduced). Although the hearsay rules and the Confrontation Clause generally protect the same values, the two are not identical. "The Confrontation Clause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule." Idaho v. Wright, supra, at 814 (1990). The Confrontation Clause might be violated even if evidence is admitted under a recognized hearsay exception. "The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied." California v. Green, 399 U.S. 149 (1970). The Court of Criminal Appeals addressed improper denial of the right to cross-examination in Shelby v. State, 819 S.W.2d 544 (Tex.Crim.App. 1991). In Shelby, the Court adopted the Sixth Amendment test to determine when the denial of cross-examination requires reversal. Citing Delaware v. Van Arsdall, 475 U.S. 673 (1986) the Court first examined the potential harm of limiting cross-examination. Next, the Court reviewed the error, considering the following factors: 1) The importance of the witness' testimony in the prosecution's case; 2) Whether the testimony was cumulative; 3) The presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; 4) The extent of cross-examination otherwise permitted; and 5) The overall strength of the prosecution's case. The Court of Criminal Appeals revisited Shelby in Young v. State, 891 S.W.2d 945 (Tex.Crim.App. 1994) and held that where a limitation on cross-examination prevents a defendant from negating one of the elements the prosecution was required to prove, the use of the overwhelming evidence test is inappropriate. Young did not address constitutional harm under Article 1, Section 10 of the Texas Constitution. However, it is still incumbent on counsel to pack the record with reasons why a limitation on cross-examination would constitute harm and how it might impact one of the elements of the offense. A request to “visit with” the witness in the presence of the jury about three pending criminal cases without specifically apprising the trial court of the relevance and importance preserves nothing for appellate review and constitutes waiver. McBurnett v. State, No. 04-11-00021-CR (Tx.Ct.App.—San Antonio 2012) / 2012 WL 2583407 (unpublished). III.

CRAWFORD AND ITS PROGENY A. THE CRAWFORD OPINION

In 2004, the Supreme Court rendered the most impactful decision on criminal jurisprudence in more than two decades. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004), the Court held that the only indicium of reliability sufficient to satisfy constitutional demands is that of confrontation. Crawford involved an assault and 2

BURN THE STATE: CROSS EXAMINATION

attempted murder where the prosecution introduced a recorded statement that Crawford’s wife made during a police interrogation to refute a claim of self defense. The trial court admitted the statement pursuant to a declaration against penal interest hearsay exception. The opinion in Crawford included a historical analysis of the Confrontation Clause and labeled “ex parte examinations as evidence against an accused” as a “principal evil.” The Court wrote that the authors of the Constitution would not have allowed admission of testimonial statements of a witness who did not appear at trial unless the witness was unavailable to testify and the defendant had had a prior opportunity for cross-examination. The Court condemned the practice of admitting ex parte testimony upon a finding of reliability. The Court held that the Constitution prescribes the procedure for the determining the reliability of testimony in criminal trials and no court has authority to replace it with one of its own. The opinion further labeled the right of confrontation is a “bedrock procedural guarantee” applicable to both federal and state prosecutions. The Court rejected the view that the Confrontation Clause applies only to in-court testimony and that its application to out of court statements introduced at trial depends upon “the law of evidence for the time being.” The Court further condemned exceptions to the hearsay rule when it wrote that where testimonial statements are involved, “the framers of the Constitution did not mean to leave the Sixth Amendment protection to the vagaries of the Rules of Evidence, much less the amorphous notions of reliability” and “admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.” The Court found the practice of courts admitting untested testimonial statements with reliability in the very factors that make the statements testimonial to be insulting. The opinion concludes by holding that where testimonial statements are at issue, the only reliability sufficient to satisfy constitutional demands is the one that the Constitution actually prescribes: confrontation. Crawford, with its explicit requirement of confrontation has served as an effective impediment to the admission of evidence pursuant to many well recognized exceptions to the hearsay rule including excited utterances, present sense impressions, existing mental, emotional and physical states, statements against interest, and the business records exception. B. DAVIS AND HAMMON The Crawford opinion has endured much analysis in our appellate courts with efforts to interpret revise, and define the term “testimonial.” In Crawford, the Supreme Court did not provide a clear or workable definition of the term “testimonial”. In 2006, the Supreme Court issued two companion case decisions, Davis v. Washington, 126 S.Ct. 2266 (2006) and Hammon v. Indiana. Although the opinion, also authored by Justice Scalia, failed to offer a “comprehensive definition” of “testimonial,” the Court did offer guidance in the context of statements made during “police interrogations.” Davis and Hammon address the issue of when statements may qualify as testimonial. In sum, they hold that B applying an “objective standard” which examines the primary purpose of a police interrogation B statements recorded during an on-going emergency 911 call are nontestimonial (Davis), while statements made during an on-scene interrogation where the declarant is separated from her alleged assailant are testimonial (Hammon). In Davis, the defendant’s former girlfriend made the relevant statements in the course of a 911 call reporting a domestic disturbance. The alleged victim related the context of the assault. The trial court allowed the state to play a recording of the 911 call. In Hammon, police went to the scene of a reported domestic disturbance. The police separated the defendant from his wife and proceeded to question them both independently. During a bench trial, the state called the interviewing police officer to the stand to testify to statements made by the alleged victim. The Supreme Court expressly held what it had first alluded to in Crawford: that only testimonial statements implicate the Sixth Amendment’s Confrontation Clause. The Court next turned to the issue of whether each of the statements qualified as testimonial. Rather than offering a generally applicable definition of the term “testimonial statement,” the Court confined its holding to the specific facts of the cases. “Without attempting to produce an exhaustive classification of all conceivable statements - or even all conceivable statements in response to police interrogation - as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Applying this standard, the Court held that the statements made during the 911 call in Davis were not testimonial. 911 calls, the Court reasoned, are not ordinarily initiated to establish or prove past facts, but to allow police to render assistance. 3

BURN THE STATE: CROSS EXAMINATION

However, the Court did not hold that all emergency calls to 911 would be considered entirely nontestimonial. Justice Scalia left open the possibility that a call initiated for the purposes of emergency assistance could evolve so as to elicit testimonial statements. It will be left to the trial courts, through in limine procedure, to redact the testimonial portions of such a call. The Court then turned to the statements at issue in Hammon, easily finding them to be testimonial and their admission violative of Hammon’s constitutional right to confrontation. C. THE CRAWFORD TEST The central holding of Crawford is that the Confrontation Clause is a rule of statements that declarants would reasonably expect to be used for evidentiary purposes no longer turns in any way on “the vagaries of the rules of evidence, much less [on] some amorphous notions of ‘reliability.’” 541 U.S. at 61; see also United States v. Cromer, 389 F.3d 662 (6th Cir. 2004)(“If there is one theme that emerges from Crawford, it is that the Confrontation Clause confers a powerful and fundamental right that is no longer subsumed by the evidentiary rules governing the admissibility of hearsay statements.”). In other words, the constitutional considerations requiring testimonial statements to be subject to cross-examination in criminal cases “do not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justifiable in other circumstances.” Crawford, 541 U.S. at 56 n.7. The basic rule following Crawford can be stated as follows: The Confrontation Clause of the Sixth Amendment will bar the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant was afforded a prior opportunity for cross-examination. Thus, to determine if statements of a particular witness implicate the Sixth Amendment, ask: 1. Is the statement testimonial, and 2. Was the witness unavailable for cross-examination at trial? If both of these questions are answered affirmatively, the Sixth Amendment is implicated. To determine if a defendant’s Sixth Amendment right to confrontation is violated, ask: 1. Is the witness unavailable to testify, and 2. Was the defendant afforded the opportunity to cross-examine the witness at trial or on a prior occasion? If either of these questions is answered negatively, the defendant’s right to confront that witness is violated. The violation is subject to a harmless error analysis. D. SPECIFIC APPLICATIONS OF CRAWFORD 1. Placement of Burden The burden is on the proponent (i.e. the prosecution) to show an out-of-court statement is admissible under Crawford. 541 U.S. 36, 68; see also Mason v. State, 173 S.W.3d 105 (Tex. App. – Dallas 2005, pet. ref’d.) Once the defendant objects to the admission of evidence on Confrontation Clause grounds, the burden shifts to the State, as the proponent of the objected-to evidence, to establish its admission. De La Paz v. State, 273 S.W.3d 671 (Tex.Crim.App. 2008). Without evidence of the timing of the complained-of statements, the appellate court cannot perform the factintensive analysis of whether circumstances were present that would indicate the existence of an ongoing emergency establishing the admissibility of the notes under Crawford. McDowell v. State, No. 02-17-00410-CR, 2018 Tex.App. LEXIS 9762 (Tex.App. --Fort Worth, 2018). 2. Preservation of Error To preserve a violation of the right to confront the witnesses against him, the defendant must object on constitutional grounds. An objection on the basis of hearsay will not preserve error on a Confrontation Clause claim. Neal v. State, 186 S.W.3d 690 (Tex. App. B Dallas 2006). “Hearsay objections and objections to violation of the constitutional right to confront witnesses are neither synonymous nor necessarily coextensive.” Eustis v. State, 191 S.W.3d 879 (Tex. App. – Houston [14th Dist.] 2006, no pet. h.). 3. Prior Testimony The term “testimonial” clearly encompasses prior testimony at a preliminary hearing, before a grand jury, or at a former trial. Crawford v. Washington, 541 U.S. 36 (2004). Deceased witness’ prior testimony is admissible over Confrontation Clause objection because defendant had opportunity to cross-examine the witness at first punishment hearing as well as a similar motive to do so despite differences in the jury charge. Martinez v. State, 327 S.W.3d 727 (Tex.Crim.App. 2010). In Hemphill v. New York, 142 S.Ct. 681 (2022), the trial court permitted the State to introduce parts of a transcript 4

BURN THE STATE: CROSS EXAMINATION

of an unavailable witness’ plea allocution in a related hearing. The out of court statements were not subject to cross examination but the trial court felt that the defendant had opened the door and the admission was necessary to correct a misleading impression. The Supreme Court held that this admission of the transcript (without cross-examination) violated the Sixth Amendment right to confront witnesses. 4. Forensic Analyst Reports A forensic analyst’s laboratory report prepared for use in a criminal prosecution “testimonial” evidence subject to the demands of the Sixth Amendment’s Confrontation Clause as set forth in Crawford v. Washington. The Supreme Court held that state forensic analyst’s lab report that is prepared for use in a criminal prosecution is subject to the demands of the Sixth Amendment’s Confrontation Clause. The Court reasoned that the lab reports constitute affidavits which fall within the “core class of testimonial statements” covered by the Confrontation Clause. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The Supreme Court again reviewed forensic analyst reports in Briscoe v. Virginia, 130 S.Ct. 1316 (2010) and it vacated the judgment of the Supreme Court of Virginia allowing a prosecutor to introduce a certificate of forensic laboratory analysis without presenting testimony of the analyst who prepared the certificate. The Supreme Court held that such a practice was violative of the Sixth Amendment. Introduction of blood-alcohol analysis report through testimony of non-testing, not-certifying analyst violated the Confrontation Clause. Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011). A forensic specialist at state police lab testified that she matched a DNA profile produced by an outside laboratory. The specialist also testified that the outside laboratory was an accredited laboratory. The defense moved to exclude on Confrontation Clause grounds. The Supreme Court held that Crawford, while departing from prior Confrontation Clause precedent in other respects, reaffirmed the proposition that the Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” For Confrontation Clause purposes, the references to the outside laboratory in the trial record either were not hearsay or were not offered for the truth of the matter asserted. This conclusion is consistent with Bullcoming and Melendez-Diaz, where forensic reports were introduced for the purpose of proving the truth of what they asserted. In contrast, the outside laboratory’s report was considered for the limited purpose of seeing whether it matched something else, and the relevance of that match was established by independent circumstantial evidence showing that the report was based on a sample from the crime scene. The outside laboratory report’s primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at the time. No one at the outside laboratory could possibly know that the profile would inculpate the defendant. There was thus no “prospect of fabrication” and no incentive to produce anything other than a scientifically sound and reliable profile. Williams v. Illinois, 132 S.Ct. 2221 (2012). Admission of expert’s remote testimony violated the Confrontation Clause because there was no showing that testifying remotely was necessary. The fact that the expert was testifying “only” as an expert did not demonstrate a necessity for the State to procure her testimony remotely. Further, it was not an important public policy to allow the State to procure a witness’ testimony remotely when the State had sufficient time and ability to subpoena the witness, and the witness was available to appear and testify. Haggard v. State, 612 S.W.3d 318 (Tex.Crim.App. 2020). Article 38.41 C.C.P. provides for the admissibility of a certificate of analysis that allows the state or a defendant to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of an analyst personally appearing in court. Article 38.41 does not limit any party to subpoena a witness to introduce admissible evidence relevant to the analysis. Article 38.41 also provides that not later than the twentieth (20th) day before trial the certificate must be filed with the clerk of the court and a copy provided to the opposing party. The certificate is not admissible if the opposing party files a written objection to the use of the certificate with the court and provides a copy of the objection to the opposing party. In Deener v. State, 214 S.W.3d 522 (Tex.App.—Dallas, 2006), the Court acknowledged that Article 38.41 was enacted shortly prior to the Supreme Court’s opinion in Crawford. The Court went on to hold that the statutory procedure under Article 38.41 C.C.P. does not violate the Confrontation Clause of the Sixth Amendment. Deener preceded Melendez-Diaz and Briscoe. An Article 38.41 C.C.P. certificate of analysis can be supported by an affidavit from someone other than the analyst who conducted the testing. This holding does not prevent a defendant from asserting his Sixth Amendment Right to Confrontation. If the State elects to use a certificate of analysis to prove scientific testing, a defendant can still object to it even if there is nothing wrong with the certificate at all. He or she just has to do it within the time period set out in the statute. Williams v. State, 585 S.W.3d 478 (Tex.Crim.App. 2019). A defendant does not have a right to confront and cross examine the specific technical supervisor responsible for the intoxilyzer at the time of the breath test. A statement made by a technical supervisor in a business record that he correctly calibrated the instrument is not a testimonial statement subject to cross examination under the Confrontation 5

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Clause. Beard v. State, 421 S.W.3d 676 (Tex.App. – Waco 2014, pet. ref’d); Boutang v. State, 402 S.W.3d 782, (Tex.App. – San Antonio 2013, pet. ref’d); Settlemire v. State, 323 S.W.3d 520, (Tex.App. – Fort Worth, 2010); Lara v. State, 487 S.W.3d 244 (Tex.App. -- El Paso, 2015). The admission of a lab report created solely by a non-testifying analyst, without calling that analyst to sponsor it, violates the Confrontation Clause. Doing so deprives a defendant of his opportunity to cross-examine the nontestifying expert about the conclusions contained in the report and how the non-testifying expert arrived at those conclusions. Additionally, testimony from an expert explaining that non-testifying analyst’s report does not provide an adequate substitute for cross-examination even if the testifying expert is generally familiar with how the relevant analysis is customarily performed. When the testing was conducted, a defendant still cannot adequately challenge through cross-examination the conclusion of that non-testifying analyst offered in that non-testifying analyst to be admissible, the testifying expert must testify about his or her own opinions and conclusions. While the testifying expert can rely upon information from a non-testifying analyst, the testifying expert cannot act as a surrogate to introduce that information. Paredes v. State, 462 S.W.3d 510 (Tex.Crim.App. 2015). 5. Police Interrogations Crawford held that police interrogations are the type of statements encompassed by the protections of the Confrontation Clause. Crawford involved statements made by a declarant during a police interview at the stationhouse and after Miranda warnings. The Court declared that statements under such circumstances qualify as testimonial. In Davis v. Washington and Hammon v. Indiana, 126 S.Ct. 2266 (2006), the Court revisited the issue of testimonial statements in the context of police interrogations. The Court set forth an objective test that examines the circumstances of the interrogation to determine its “primary purpose.” If the primary purpose of the interrogation is to enable police to render assistance in an ongoing emergency, the statements are nontestimonial. However, if the primary purpose of the interrogation is to “establish or prove past events potentially relevant to a later criminal prosecution,” the statements elicited are testimonial and implicate the Sixth Amendment. In Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006), officers questioned and took pictures of the assault victim in the hospital. The victim did not testify at trial, but the officers testified to the “excited utterances” made concerning appellant’s attack. These statements were “testimonial” and thus inadmissible under Crawford v. Washington, 541 U.S. 36 (2004), because a reasonable person in the victim-declarant’s position would likely believe that the statements would be used in a prospective prosecution. In Vinson v. State, 252 S.W.3d 336 (Tex.Crim.App., 2008) police were dispatched to a possible emergency at an apartment. The 911 call was terminated and the 911 operator called back to the residence where a male answered and responded there was no emergency. The 911 heard a disturbance in the background and someone yelling for police assistance. The officer asked the complainant what happened and she responded that her boyfriend had assaulted her. The complainant later said that the defendant knocked the phone out of her hand when she called 911. The defendant walked into the room and asked the complainant to “tell the truth and not let them take him to jail.” Further questioning was conducted on the complainant. The court found that the initial statements by the complainant were not testimonial when she stated that her boyfriend had assaulted her. However, statements about knocking the phone out of her hand were testimonial statements made after the defendant had been removed during an interview about the details about the assault were also testimonial. The Court reasoned that the emergency situation was not still in progress therefore those statements were inadmissible. 6. Child Hearsay Statements Describing Abuse a. To law enforcement officers – Every court to address this issue has held that statements made during interviews with law enforcement officers are testimonial. See, e.g. Flores v. State, 120 P.3d 1170 (Nev. 2005); People v. Vigil, 127 P.3d 916 (Colo. 2006); Hobgood v. State, 926 So.2d 847 (Miss. 2006). b. To state-employed child interview specialists – Courts unanimously have held that statements made during interviews done specifically to investigate and gather evidence for a criminal prosecution are testimonial. Coronado v. State, 351 S.W.3d 315 (Tex.Crim.App. 2011); United States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005). Admitting videotaped interview of child abuse victim along with answers to written interrogatories pursuant to Article 38.071, §2 of the Code of Criminal Procedure, violates a defendant’s right to confrontation. Coronado v. State, 351 S.W.3d 315 (Tex.Crim.App. 2012) c. To state social workers or child protective services workers during “risk assessment interviews” – Most courts have held that such statements are testimonial, regardless of whether the law enforcement personnel are involved in the interview or the interview is conducted at the behest of law enforcement . State v. Snowden, 867 A.2d 314 (Md. 2005); Flores v. State, 120 P.3d 1170 (Nev. 2005); State v. Contreras, 979 So.2d 896 (Fla. 2008); T.P. v. State, 911 So. 2d 1117 (Ala.Crim.App. 2004); Rangel v. State, 199 S.W.3d 523 (Tex.App. 2006); Wells v. State, 241 S.W.3d 172 6

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(Tex.App. 2007); But a significant minority treats such statements as nontestimonial when the police are not yet directly involved. State v. Bobadilla 709 N.W.2d 243 (Minn. 2006); State v. Muttart, 875 N.E.2d 944 (Ohio 2007); Seely v. State, 373 Ark. 141 (Ark. 2008). d. To private therapists or victims’ services personnel – when such private personnel interview child victims in coordination with law enforcement, courts have held that resulting statements are testimonial. State v. Bentley, 739 N.W.2d 296 (Iowa 2007); People v. Sharp, 155 P.3d 577 (Colo.App. 2006). e. To school employees – One court has held that a report of abuse to a social worker at a public school is testimonial. People v. Stechly, 870 N.E.2d 333 (Ill. 2007). A report of criminal conduct to a teacher (especially those with reporting requirements) may be testimonial on the ground that it accuses someone of wrongdoing and seeks an official response. In Ohio v. Clark, 135 S.Ct. 2173, 192 L.Ed.2d 306, the Supreme Court held that a statement qualifies as a testimonial statement if the primary purpose of the conversation was to create an out of court substitute for trial testimony. The trial court should examine all of the relevant circumstances to determine the primary purpose and that in this instance the conversation was informal and spontaneous and intended to end a threat. The Court went on to hold that statements by very young children will rarely, if ever, implicate the Confrontation Clause. f. To family members – Courts unanimously have held that child statements given to family members before the police are involved are non-testimonial. Hobgood v. State, 926 So.2d 847 (Miss. 2006)(statements to police testimonial but no statements to relatives before police were involved); In re Rolandis G., 817 N.E.2d 183, 186 (Ill. App. Ct. 2004)(statement to mother not testimonial where “[t]here is no indication that [mother] suspected he had been the victim of a crime and that she was attempting to elicit evidence for a future prosecution”)’ State v. Walker, 118 P.3d 935 (Wash. App. 2005)(statement to mom not testimonial); State v. Shafer, 128 P.3d 87 (Wash. 2006)(same regarding statements to mom and family friend). g. Transcripts Admission of a transcript of testimony from a pre-trial hearing on the admissibility of outcry testimony violates the Confrontation Clause. Sanchez v. State, 354 S.W.3d 476 (Tex.Crim.App. 2011) 7. Statements by Confidential Informants The Fifth Circuit has held that statements made by confidential informants to the co-conspirators of a crime are not testimonial, because such statements “do not resemble in any of the >core class’ of statements articulated by the Court in Crawford.” United States v. Crespo-Hernandez, 186 Fed. Appx. 419 (5th Cir. 2006) (unpublished). A description of the defendant provided by a confidential informant and included in a search warrant affidavit introduced at trial was held to be nontestimonial. Ford v. State, 179 S.W.3d 203, 208 (Tex. App. – Houston [14th Dist.] 2005). In Langham v. State, 305 S.W.3d 568 (Tex. Crim. App., 2010), the Defendant was arrested after police found cocaine residue in the house she shared with her boyfriend. The search was executed pursuant to a warrant based on a confidential informant’s statements to police that a crack-cocaine enterprise was being operated out of the residence. These statements were introduced through the testimony of a detective over defendant’s hearsay and Crawford confrontation objections. The “primary purpose” of the detective’s communication with his confidential informant was to pave the way for a potential criminal prosecution. Information that cocaine was being peddled from the residence . . .as the confidential informant asserted, was unquestionably relevant to the subsequent prosecution. The confidential informant specifically asserted that the appellant “was also involved” in the illegal enterprise. The Court held that a search warrant is never an end in itself. While securing a search warrant may have been the detective’s “first-in-time” objective in talking to his confidential informant about the activities, potentially securing a conviction and punishment for those involved was his “first-in-importance” objective. The out-of-court statements were testimonial for Confrontation Clause purposes. 8. Casual and Informal Remarks Casual remarks are nontestimonial under Crawford, and their introduction generally does not implicate the Confrontation Clause. Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004) (casual remarks made by coconspirator to acquaintances were nontestimonial); see also Smith v. State, 187 S.W.3d 186 (Tex. App. – Fort Worth 2006) (statements made by cohort at informal gathering of friends while drinking beer were nontestimonial); King v. State, 189 S.W.3d 347 (Tex. App. – Fort Worth 2006, no pet. h.) (statements made by co-conspirator to friend regarding the disposal of a body were not testimonial). The Court in Bates v. State, No. 06-14-00096-CR (Tex. App.- Texarkana 2015) held that the admission of DVD recording from police cruiser’s video camera, which included statements made by witnesses to police outside the view of the camera, violated defendant’s right of confrontation. 9. Statements by Co-Defendants In Hernandez, 273 S.W.3d 685 (Tex.Crim.App. 2008), the defendant and co-defendant were charged with capital 7

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murder. The defendant claimed she was an innocent bystander. The defendant called two inmates as witnesses, each of whom testified that the co-defendant made statements while in jail taking full responsibility for the crime. The codefendant’s statement to the detective, although testimonial, was offered in rebuttal for the non-hearsay purpose of impeaching the credibility of the other inmates. The non-hearsay aspect of the co-defendant’s confession (to prove what happened when co-defendant confessed, not to prove how the murder was committed) raised no Confrontation Clause issue. When the defendant called the co-defendant to testify through the inmate witnesses, the defendant placed the co-defendant’s credibility in issue. In Walter, 267 S.W.3d 883 (Tex. Crim. App., 2008), evidence showed that the defendant and co-defendant made incriminating statements to family members and friends. At issue was the admissibility of the testimony of witness X about statements made by the co-defendant (X’s brother) that incriminated the defendant. The Court addressed Rule of Evidence 804(24) (statement against penal interest). Statements that are directly against the declarant’s interest and collateral “blame sharing” statements may be admissible under rule 803(24), if corroborating circumstances clearly indicate their trustworthiness. “Blame-shifting” statements that minimize the speaker’s culpability are not, absent extraordinary circumstances, admissible under the rule. Statements by co-conspirators made in furtherance of the conspiracy have been held to be nontestimonial in both Texas and federal courts. Wiggins v. State, 152 S.W.3d 656 (Tex. App. – Texarkana 2004, pet. ref’d.); see also United States v. Robinson, 367 F.3d 278, 292 (5th Cir. 2004). These cases seize on language in Crawford stating, A[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial - for example, business records or statements in furtherance of a conspiracy.” Non-testifying co-defendant was recorded without his knowledge by a relative who was working with the police. The statements were found to be testimonial and thus a violation of Confrontation Clause. The primary purpose of the interrogation was to record a past event therefore the statements were testimonial under Crawford and its progeny. A document created solely for an “evidentiary purpose”…made in aid of a police investigation ranks as testimonial. Cazares v. State No. 08-15-00266-CR 2017 (Tex.App. -- El Paso 2017). 10. Disciplinary Reports by Corrections Officers Inmate disciplinary reports have been held to be testimonial in Texas. The Texas Court of Criminal Appeals has held that the admission of “incident reports” by county jail officials and TDCJ “disciplinary reports” at the punishment phase of trial violated the defendant’s right to confrontation. Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005). However, Ford v. State, 179 S.W.3d 203 (Tex. App. – Houston [14th Dist.] 2005, pet. ref’d.) held that jail records not containing observations by correctional officers to be public records and nontestimonial. In Smith v. State, 297 S.W.3d 260 (Tex.Crim.App, 2009), the Court of Criminal Appeals revisited the Russeau opinion in examining penitentiary packets and prison disciplinary reports and hearing records regarding an inmate’s conduct within the prison population. Penitentiary records were admitted at trial containing offense descriptions that came from prison guard reports. These materials were used and read aloud to the jury during the punishment phase of the trial. The Court held that there is a distinction between (1) official records that set out a sterile and routine recitation of an official finding or unambiguous factual matter such as a judgment or conviction or a bare bones disciplinary finding and (2) a factual description of specific observations or events that is similar to testimony. The Court went on to hold that some of the disciplinary reports contained testimonial statements which were inadmissible under the confrontation clause because the state did not show the declarants were unavailable and the defendant never had an opportunity to cross examine. However, the Court found that since the state concentrated its punishment arguments on the heinous nature of the capital murder and not disciplinary reports that there was no harm. In Segundo v. State, 270 S.W.3d 79 (Tex.Crim.App. 2008), the Court of Criminal Appeals acknowledged the distinction between (1) official records that set out a sterile and routine recitation of an official finding or unambiguous factual matter such as a judgment or conviction or a bare bones disciplinary finding, and (2) a factual description of specific observations or events that is similar to testimony. In Grey v. State, 299 S.W.3d 902 (Tex.App.—Austin 2009), the Court again reviewed penitentiary packet materials from a retaliation conviction. Specifically, the Court addressed a four page Department of Corrections Social and Criminal History prepared when the defendant was admitted into prison. This history recounted fifteen to nineteen prior arrests, juvenile adjudications, criminal charges, criminal convictions (some with details), probation revocations, prison disciplinary violations and a detailed account of the actual offense for which the defendant was serving a sentence. The Court reviewed the intended or anticipated use of such statements in determining whether the same are testimonial. The Court concluded that the criminal history summary was not made in anticipation of prosecutorial use and was not testimonial and the admission of the summary and evidence did not violate the Confrontation Clause. 11. School Disciplinary Records Portions of school disciplinary records that contain statements by teachers specifically describing a defendant’s 8

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behavior are testimonial and inadmissible unless the State shows that these teachers were unavailable to testify at trial and the defendant had a prior opportunity for cross-examination. Grant v. State, 218 S.W.2d 225 (Tex. App. -- Houston [14th Dist.] 2007). 12. Chain of Custody Affidavits Evidentiary chain of custody affidavits are “testimonial.” However, to preserve error, a timely, written objection must be filed at least 10 days before trial. Deener v. State, 214 S.W.3d 522 (Tex. App. – Dallas 2006, pet. filed). 13. Autopsy Reports Autopsy reports are nontestimonial public records, and their admission does not implicate the Confrontation Clause. Mitchell v. State, 191 S.W.3d 219 (Tex. App. – San Antonio 2005, pet. ref’d.); Denoso v. State, 156 S.W.3d 166 (Tex. App. – Corpus Christi 2005, pet. ref’d.). But, in Wood v. State, 299 S.W.3d 200 (Tex.App.—Austin 2009), the Court held that not all autopsy reports are testimonial but that such can be determined to be testimonial where it is reasonable to assume that a witness understood that the report contained factual findings and opinions that would be used in a prosecution. The Court did not hold that autopsy reports are categorically testimonial and found any error to be harmless. Wood was decided after MelendezDiaz. 14. Urinalysis Test Results One unpublished case in Texas has held that the results of urinalysis testing are not testimonial. In re J.L.R.G., No. 11-05-00002-CV (Tex. App. – Eastland April 27, 2006) (unpublished memorandum opinion in a juvenile probation disposition). 15. Other Documents Vehicle registration records are nontestimonial in nature and admissible as public records. Nieschwietz v. State, 24-05-00520-CR (Tex. App. – San Antonio [4th Dist.] 2006, no pet. h.)(unpublished). Other documents which record routine facts that would not be collected for the purposes of investigation will generally not be considered testimonial. Receipts from a private business transaction are not testimonial. United States v. Ramirez, 479 F.3d 1229 (10th Cir. 2007). A photocopy of an identification card is not testimonial. United States v. Lopez-Moreno, 420 F.3d 420, 436 (5th Cir. 2005). Postal records, as business records, are not testimonial. United States v. Baker, 458 F.3d 513 (6th Cir. 2006). A cell phone bill is not a testimonial statement. Miller v. State, 208 S.W.3d 554 (Tex. App. – Austin 2006). 16. Identification in Photo Array Identification of a defendant in a photo array is testimonial, and admitting the identifying statements through the investigating officer violated the defendant’s confrontation rights. Walker v. State, 180 S.W.3d 829 (Tex. App. -Houston [14th Dist.] 2005, no pet.). 17. Testifying Anonymously or in Disguise In Romero v. State, 173 S.W.3d 502 (Tex. Crim. App. 2005), an eyewitness to the shooting was a reluctant witness and was allowed to testify wearing a disguise. The Court of Criminal Appeals held that the defendant’s right to confrontation was violated in this case. “An encroachment upon face-to-face confrontation is permitted only when necessary to further an important public interest and when the reliability of the testimony is otherwise assured.” 18. Statements Pertaining to Medical Diagnosis; Statements made during Medical Treatment Rule 803(4) T.R.E. allows admissibility of hearsay statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. In Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008), the Court allowed the State to produce a litany of hearsay from a therapist regarding the alleged victim child of an alleged sexual assault. Essentially, if the “victim’s” and therapist’s sessions are pertinent to ongoing treatment, then everything the alleged victim says to the therapist is admissible hearsay. Taylor excluded testimony and statements identifying the alleged perpetrator as falling outside the medical treatment hearsay exception. In United States v. Santos, 589 F.3d (5th Cir. 2009) the 5th Circuit held that admission of alleged victim’s statements to prison nurse did not violate defendant’s Confrontation Clause rights and that such statements were admissible under hearsay exception for statements made for purposes of medical diagnosis or treatment. Some statements made to a prison nurse would be testimonial due to the nurse’s dual role in providing treatment and gathering information regarding the incident. 19. Sexual Assault Exams The Sixth Amendment and Confrontation Clause does not prohibit a nurse’s testimony about sexual assault examination reports when observations of the complainant during the examination were part of medical reports created for the purpose of medical treatment. There must be no dispute that the nurse’s observations of the complainant during 9

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the examinations were part of medical reports created primarily for the purpose of legitimate medical treatment. Contrast that with Berkley v. State, 298 W.S.3d 712 (Tex.App. -- San Antonio 2017) and Kou v. State, 536 S.W.3d 535 (Tex.App.--San Antonio 2017, pet. ref’d) holding that the State failed to show that the “primary purpose” for testing the complainant for herpes was for medical treatment because “the record does not show the lab test results were used for anything other than prosecution.” Therefore, admission of the test results violated the Confrontation Clause. Deleon v. State, No. 13-18-00480-CR, 2019 Tex.App. LEXIS 8116 (Tex.App.--Corpus Christi 2019). 20. Presentence Reports, Pretrial Hearings and Probation Revocation Hearings. In Stringer v. State, 276 S.W.3d 95 (Tex.Crim.App. 2010) the Court held that when the sentence is determined by the judge, the information in a presentence report is not subject to the Confrontation Clause. When a presentence report is used in a non-capital case in which the defendant has elected to have the judge determine sentencing, Crawford does not apply. This holding is limited to a sentencing hearing in which the judge assesses punishment In Vanmeter v. State, 165 S.W.3d 68 (Tex.App. – Dallas 2005, pet.ref’d), the Dallas Court of Appeals held that pretrial suppression hearings are not a stage in a criminal prosecution at which the Confrontation Clause applies. In Trevino v. State, 218 S.W. 3d 234 (Tex.App. – Houston [14th Dist.], 2007, no pet.), the Court held that probation revocation hearings do not constitute a criminal prosecution and the Confrontational Clause does not apply. Community supervision revocation proceeding is not a stage of a criminal prosecution. The Confrontation Clause is inapplicable in those proceedings, and the trial court did not err by allowing a probation officer to testify in part from information reflected in community supervision records that had been recorded by other individuals. Pickins v. State, No. 02-17-00050-CR, 2018 Tex.App. LEXIS 5528 (Tex.App.--Fort Worth 2018). 21. Punishment Hearings While the Fifth Circuit has held that the Confrontation Clause and Crawford do not apply to sentencing hearings, the Texas Court of Criminal Appeals has continued to address Confrontation Clause issues raised by the evidence. McNac v. State, 215 S.W.3d 420 (Tex.Crim.App. 2007). 22. Trial Court’s decision to not allow cross-examination of breath test expert. In Holmes v. State, 323 S.W.3d 163 (Tex.Crim.App. 2010) the trial court denied appellant’s motions to crossexamine the state’s expert on the Intoxilyzer 5000, and the appellant’s pleaded no contest and appealed. What was excluded here, though was not simply the ability to question experts, “it was the right to present a defense.” Disallowing cross-examination of the experts “violated the defendant’s fundamental rights to a fair trial.” 23. Memory Loss and Confrontation Clause “Memory loss” does not make a witness unavailable for purposes of the Confrontation Clause if that witness is present in court and testifying. Woodall v. State, 336 S.W.3d 634 (Tex.Crim.App. 2011). 24. Forfeiture by Wrongdoing a. In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266 (U.S. 2006), the Supreme Court addressed the doctrine of forfeiture by wrongdoing. The Court held that when a defendant seeks to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require the Court to stand silent. Defendants have no duty to assist the prosecution in proving their guilt but have a duty to refrain from acting in ways that destroy the integrity of the criminal trial system. The Court held that when one secures the absence of a witness by wrongdoing he forfeits the constitutional right to confrontation. b. Federal Rules of Evidence 804b(6) provides that a statement offered against a party that has engaged in wrongdoing that was intended to and did procure the unavailability of a witness is a hearsay exception. c. In Giles v. California, 128 S.Ct. 2678 (U.S. 2008), the Supreme Court found that the defendant had forfeited his right to confront the victim’s hearsay testimony because the defendant had committed the murder for which he was on trial in an intentional act and made the victim unavailable to testify. One Texas opinion addressing forfeiture by wrongdoing actually predated Giles. In Gonzalez v. State, 195 S.W.3d 114 (Tex.Crim.App. 2006), police were dispatched to a murder scene where one of the victims remained conscious and identified the person who had shot her. The victim died a few hours later. The Court held that the defendant forfeited his right to confrontation of the doctrine of forfeiture by wrongdoing and therefore were not testimonial and subject to the protection of Crawford. d. In Sohail v. State, 264 S.W.3d 251 (Tex.App.—Houston [1st Dist.], 2008), the Court found that a defendant’s intimidation causing a plaintiff to refuse to testify at trial did not violate the confrontation clause due to the defendant’s deliberate wrongdoing procured the unavailability of the complainant as a witness. e. Without a murder, or some other offense that necessarily causes a victim’s absence, there needs to be more than simply the past commission of family-violence assaults to show causation. Therefore, the past commission of family-violence assault offenses does not, standing alone, show that a defendant caused the victim to be absent from trial. Brown v. State, 618 S.W.3d 352 (Tex.Crim.App. 2021). f. During 2013, Texas adopted a statutory forfeiture by wrongdoing statute in Article 38.49 C.C.P. Article 38.49 10

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C.C.P. is much broader in application than Giles. Article 38.49 C.C.P. provides as follows: (a) A party to a criminal case who wrongfully procures the unavailability of a witness or prospective witness: (1) May not benefit from the wrongdoing by depriving the trier of fact of relevant evidence and testimony; and (2) Forfeits the party’s right to object to the admissibility of evidence or statements based on the unavailability of the witness as provided by this article through forfeiture by wrongdoing. (b) Evidence and statements related to a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of a witness or prospective witness are admissible and may be used by the offering party to make a showing of forfeiture by wrongdoing under this article, subject to Subsection (c). (c) In determining the admissibility of the evidence or statements described by Subsection (b), the court shall determine, out of the presence of the jury, whether forfeiture by wrongdoing occurred by a preponderance of the evidence. If practicable, the court shall make the determination under this subsection before trial using the procedures under Article 28.01 of this code and Rule 104, Texas Rules of Evidence. (d) The party offering the evidence or statements described by Subsection (b) is not required to show that: (1) The actor’s sole intent was to wrongfully cause the witness’ prospective witness’ unavailability; (2) The actions of the actor constituted a criminal offense; or (3) Any statements offered are reliable. (e) A conviction for an offense under Section 36.05 or 36.06(a), Penal Code, creates a presumption of forfeiture by wrongdoing under this article. (f) Rule 403, Texas Rules of Evidence, applies to this article. This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law. 25. Crawford is not retroactive In Ex Parte Keith, 2002 S.W.3d 767 (Tex.Crim.App. 2006), the Court found a defendant’s conviction to become final prior to the Crawford v. Washington opinion. The Court concluded that Crawford does not apply retroactively and denied relief. IV. SCOPE OF CROSS-EXAMINATION The constitutional scope of cross-examination has been described as follows: Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject to the broad discretion of the trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit the witness. Davis v. Alaska, 415 U.S. 308, 316 (1974). As noted, the trial court retains the power of reasonable regulation of the cross-examination, to prevent confusion, U.S. v. Ackal, 705 F.2d 523 (5th Cir.1983); or to prevent inquiry into matters having little relevance or probative value, U.S. v. Young, 655 F.2d 624 (5th Cir.1981). Recognizing the important role that cross-examination plays in the truth finding process, Texas has historically allowed wide latitude in the cross-examination of witnesses: "A witness may be cross-examined on any matter relevant to any issue in the case, including credibility." Rule 610(b) T.R.E. This rule endorses the Texas practice of wide open cross-examination, unlike the examination permitted in federal courts which limits cross-examination to the scope of direct examination." 33 S. Goode, O. Wellborn & M. Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal, Sec. 611.4 (Texas Practice 1988); see Wiggins v. State, 778 S.W.2d 877, 895 (Tex.App. – Dallas 1989, pet ref'd); Arnold v. State, 679 S.W.2d 156, 159 (Tex.App. – Dallas 1984, pet. ref'd). Adoption of this rule indicates a specific intent by the Court of Criminal Appeals to follow longstanding precedent in Texas and to refuse to adopt the related federal rule that limits the scope of cross-examination to the subject matter of the direct examination and to credibility of the witness. Therefore, in state court counsel can inquire into other relevant areas outside the direct testimony and often obtain favorable evidence from the opponent's witness. Texas permits cross-examination of any matter relevant to the issues. On the other hand, cross-examination cannot extend to irrelevant, collateral and immaterial matters. A matter is "collateral" if the cross-examining party would not be entitled to prove such matter as part of his case-in-chief. Posey v. State, 738 S.W.2d 321, 325 (Tex.App. --Dallas 1987, no pet.) Compare the Texas rule with the following Federal Rule 611(b), Scope of Cross-Examination: Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The Court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. "Federal Rule of Evidence 611 makes clear that a trial judge is not required to permit cross-examination that exceeds the scope of the direct examination." U.S. v. Carlock, 806 F.2d 535, 553 (5th Cir. 1986) cert. denied, 107 S.Ct. 1611 (1987); see 11

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also Lowenberg v. U.S., 853 F.2d 295, 300 (5th Cir. 1988). The strict effect of this rule would require that the witness be called back to the stand during the examiner's portion of the case to adduce testimony outside the scope of direct. However, the rule grants the trial court discretion to prevent this inefficiency by allowing the examiner to proceed as if on direct. This usually means that once counsel strays beyond the scope of cross, he or she may no longer ask leading questions. V. CREDIBILITY OF THE WITNESS A. IMPEACHMENT WITH BIAS OR MOTIVE TO TESTIFY One of the most fertile areas of cross-examination is establishing bias of a witness. It is here that lawyers are permitted to probe the state of mind of the witness. Bias is defined in U.S. v. Abel, 105 S.Ct. 465, 468 (1984) as "a term used in the `common law of evidence' to describe the relationship between a party and witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self interest." The State also has the right of thorough cross-examination on the issues of bias, interest, prejudice, motive or any other mental state affecting credibility. Duncantell v. State, 563 S.W.2d 252 (Tex.Crim.App. 1978). This right flows from the common law and not the Constitution. The trial court should generally allow the defendant great latitude to show any relevant fact that may affect a witness' credibility. Virts v. State, 739 S.W.2d 25 (Tex.Crim.App. 1982). Even though Texas law provides that great latitude should be permitted in impeachment, counsel must be careful to establish the proper predicate during crossexamination for collateral impeachment. In Willingham v. State, 897 S.W.2d 351 (Tex.Crim.App. 1995), the State presented a witness who testified that the Defendant admitted to him that he committed the murders. The Defendant cross-examined the witness but never asked him if he had any kind of interest in the resolution of the case. When the Defendant sought to impeach the witness by calling another witness to explain the first witness' interest in the case (the witness purportedly received preferential treatment in prison), the trial court sustained the State's objection. The Court of Criminal Appeals held that in order to lay a proper predicate for impeachment, the witness should be asked about any possible interest or bias he may have before there is an attempt to prove interest or bias otherwise. Because the Defendant did not establish a "nexus" between the witness and his alleged interest, the Defendant did not establish the proper predicate and no error was preserved. 1. Snitches and Accomplices It is fundamental that the defense is entitled to be made aware of the terms of any agreement or "deal" with the prosecution. However, the inquiry does not stop there because it is the witness' state of mind or possible expectations that are the crucial issue, not the formal terms of the agreement or "deal". In fact, cross-examination is allowed in this area even when the witness and the prosecutor claim there is no "deal". Spain v. State, 585 S.W.2d 705 (Tex.Crim.App. 1979). Therefore such things as juvenile probations which might otherwise be undiscoverable or inadmissible must give way to the right to expose possible motives to prevaricate before the jury. This is true even in the face of statutory constraints. See Davis v. Alaska, supra. In Davis v. Alaska, the Defendant sought to cross-examine the State's witness about a pending juvenile probation. Alaska state law made juvenile probations confidential. The Supreme Court ruled that the State's interest in the confidentiality of juvenile court proceedings must give way to the Defendant's right to cross-examine the witness and bring before the jury the argument that the witness might be motivated to testify on behalf of the State. The Court held that the Defendant was entitled to expose this possible motive to the jury. The court also recognized that this was not an attempt to impeach the witness' character with a prior conviction but to show his possible state of mind and motivation to testify. A number of Texas courts have found harm where cross-examination was restricted in violation of Davis v. Alaska. Appellant had an unqualified right to ask the State's primary witness whether she had also been accused of the offense on trial, because the jury was entitled to understand the witness' vulnerable status. Harris v. State, 642 S.W.2d 471 (Tex.Crim.App. 1982). The trial court erred in not allowing Appellant to prove that the complaining witness had three arrests -- for possession of marihuana, unlawfully carrying a weapon and burglary -- and that all three charges had been dismissed. Simmons v. State, 548 S.W.2d 386 (Tex.Crim.App. 1977). The trial court erred in not permitting Appellant to prove that the principal witness against her had been charged with a felony drug offense and the State had not filed a Motion to Revoke Probation, even though the witness testified that "no one has offered me anything." Coody v. State, 812 S.W.2d 631 (Tex.App.—Houston [14th Dist.] 1991). The Defendant was entitled to demonstrate to the jury the bias or motive of the State's rebuttal witness by proving that he was under indictment. This is true even though the prosecutor denied there was a deal for his testimony. Randle v. State, 565 S.W.2d 927 (Tex.Crim.App. 1978). The trial court erred in prohibiting Appellant from showing that the State had filed and then withdrawn a Motion to Revoke 12

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Probation against its eyewitness. Morgan v. State, 740 S.W.2d 57 (Tex.App.—Dallas 1987). The Court of Criminal Appeals recognized Davis v. Alaska in Carroll v. State, 916 S.W.2d 494 (Tex.Crim.App. 1996) when the trial court refused to permit impeachment of the state's witness with evidence that he was awaiting trial on an aggravated robbery charge. The broad scope of cross-examination "necessarily includes cross-examination concerning criminal charges pending against a witness and over which those in need of the witness' testimony might be empowered to exercise control." Such evidence is always admissible to prove bias. It is not determinative that there is no agreement between the state and the witness. Carroll also held that the confrontation clause will prevail in any conflict with Rule 608(b) which prohibits the inquiry into specific instances of conduct for purposes of attacking credibility. However, a number of Texas courts have found no error from restrictions placed on cross-examination in violation of Davis v. Alaska. The trial court did not err in prohibiting Appellant from impeaching the State's witness where appellant did not show that the witness testified against him as a result of bias, motive or ill will emanating from his status of deferred adjudication. Callins v. State, 780 S.W.2d 176 (Tex.Crim.App. 1986). Davis v. Alaska is not offended when a defendant is prohibited from asking a witness about an unrelated pending charge, provided that the defendant has otherwise been afforded a thorough and effective cross-examination and where the bias and prejudice of the witness is patently obvious. Carmona v. State, 698 S.W.2d 100, 104 (Tex.Crim.App. 1985). The trial court did not err in refusing impeachment with a pending worthless check case having no connection with the instant case. Green v. State, 676 S.W.2d 359, 363 (Tex.Crim.App. 1984). The Court of Criminal Appeals held in Irby v. State, 327 S.W.3d 138 (Tex.Crim.App. 2010) that a defendant must show some causal connection or logical relationship between a witness’ probationary status and his potential bias to testify favorably toward the State before the witness may be cross-examined regarding that status. Evidence that a witness with a juvenile record might be testifying because of a need to “curry favor” with the State or shift suspicion away from himself is constitutionally relevant and admissible under the Confrontational Clause. But, the mere fact that a witness is on probation is not sufficient, by itself, to establish a potential bias or motive to testify. In Johnson v. State of Texas, 490 S.W.3d 895 (Tex.Crim.App. 2016), the Court of Criminal Appeals held that evidence the victim had been placed in counseling because victim had sexually abused his sister was admissible. The Court of Criminal Appeals examined Rule 412 T.R.E. and determined that jurors are entitled to have the benefit of the defense theory so that they can make an informed judgment as to the weight to place on the witness’ testimony. The Sixth Amendment could be offended if an evidentiary rule prohibited the defendant from cross-examining a witness concerning possible motives, biases or prejudices to such an extent he could not present a vital defense theory. In a case where the believability of the complainant forms the foundation of the prosecution, Texas law favors the admissibility of evidence that is relevant to the complainant’s bias, motive for fabrication, credibility or interest to testify in a particular fashion. As noted, an inquiry to show bias or motive is not subject to the same standard as impeachment with prior convictions and is therefore not subject to the requirements set out in Rule 609, F.R.C.E. and T.R.C.E. See Massengale v. State, 653 S.W.2d 20 (Tex.Crim.App. 1983) "Great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive or animus on the part of any witness testifying against him." Evans v. State, 519 S.W.2d 868, 871 (Tex.Crim.App. 1975); Steve v. State, 614 S.W.2d 137 (Tex.Crim.App. 1981). In Evans the Court ruled that it was reversible error to prohibit evidence of a pending sodomy charge against the witness. See also, Parker v. State, 657 S.W.2d 137 (Tex.Crim.App. 1983). The trial court may have discretion to disallow such evidence if there is a basis to find that the pending charges are minor or unrelated and prejudice outweighs probative value. Gutierrez v. State, 681 S.W.2d 698 (Tex.App. – Houston [14 Dist.]) 1984). However, the trial court is entertaining the risk of fundamental error because if wrong: The erroneous denial of this right to confrontation is constitutional error of the first magnitude and no amount of showing of want of prejudice will cure it. Spain v. State, supra, citing Davis v. Alaska, supra, 415 at 318 and Evans v. State, supra. The harm is done when a proper cross-examination is restricted by the trial judge. It is not necessary for the defendant to show that answers to proper questions would be favorable. The defendant should, however, proffer the questions by an informal bill of exception for the reviewing court. Hurd v. State, 725 S.W.2d 249 (Tex.Crim.App. 1987), Koehler v. State, 679 S.W.2d 6 (Tex.Crim.App. 1984) and Spain v. State, supra. Defense counsel retains an absolute right to make a bill of exception in question and answer form. Kipp v. State, 876 S.W.2d 330 (Tex.Crim.App. 1994). The Court held that the right to confront witnesses does not prevent a trial court from imposing some limits on the cross-examination into the bias of a witness. Trial courts retain some discretion in deciding how and when bias may be proved, and what collateral evidence is material for that purpose. Spriggs v. State, 652 S.W.2d 405 (Tex.Crim.App. 13

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1983) and Green v. State, 676 S.W.2d 359 (Tex.Crim.App. 1984). In exercising this discretion, the trial courts have the latitude to impose reasonable restrictions on such cross-examination. These restrictions may be based on concerns such as harassment, prejudice, confusion of issues, the witness' safety, or interrogation that is repetitive or marginally relevant. The trial court's discretion in this area has limits. For example, a trial court may not restrict a defendant to any one method in showing any fact which would tend to establish bias. Harris v. State, 642 S.W.2d 471 (Tex.Crim.App. 1982). Also, it is not within a trial court's discretion to prohibit a defendant from engaging in "otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness". Delaware v. Van Arsdall, supra at 679. But see Gutierrez v. State, 764 S.W.2d 796 (Tex.Crim.App. 1989) for an example of limitation of impeachment on collateral issues. In a departure from Davis v. Alaska, the Court of Criminal Appeals issued Carpenter v. State, 979 S.W.2d 623 (Tex.Crim.App. 1998). In Carpenter, the Court addressed an issue of the defendant seeking to cross-examine the state’s cooperating witness concerning the existence of pending federal conspiracy charges. The Court held that the existence of such charges may be relevant to establish bias or motive but that the trial court retains discretion and that the proponent of the evidence must establish that the evidence is relevant. The Court went on to hold that in order for the evidence to be relevant and admissible, the proponent must establish some causal connection or logical relationship between the pending charges and the witness’ “vulnerable relationship” or potential bias or prejudice for the state or testimony at trial. The Criminal Court of Appeals held in Johnson v. State, 433 S.W.3d 546 (Tex. Crim. App. 2014) that a trial court’s refusal to allow defendant to impeach state’s witnesses during cross-examination with evidence of specific pending felony charges against them did not violate defendant’s right to confrontation. Johnson also held that the trial court’s refusal to allow defendant to impeach the witness during cross-examination with evidence of punishment ranges attendant to their pending charges did not violate defendant’s right to confrontation. The Fifth Circuit follows the principles set forth in Davis v. Alaska. In United States v. Alexius, 76 F.3d 642 (5th Cir. 1996), the Court held that the district court erred in limiting cross-examination of the government's primary witness concerning pending drug charges. The witness, who was in federal custody, had pending drug charges in federal and state court. Alexius sought to ask the witness about the pending cases in an effort to demonstrate his motive for testifying for the government. The trial court refused to allow this impeachment. Outside the jury's presence, the witness stated that he had not been promised anything for his testimony, and he did not know if it might aid him in his pending cases. The Fifth Circuit held that because Alexius' defense hinged on the witness' credibility, and because the restriction on cross-examination removed Alexius' only impeachment evidence, the trial court abused its discretion in refusing to permit the questioning. The Fifth Circuit also found an abuse of discretion in limiting cross-examination in U.S. v. Landerman, 109 F.3d 1053 (5th Cir. 1997). The Court found error in the trial court restricting cross-examination of a cooperating witness by holding that Defendant should be allowed great latitude in cross examining a witness regarding his motivation or incentive to falsify testimony. This is especially so when cross examining an accomplice or a person cooperating with the Government. 2. Other Forms of Bias. a. Favor: whether or not the witness is a friend, relative, employee, member of the same organization or otherwise aligned with one side. b. Hostility: previous trouble with the adverse party, including litigation. This might also include prior hostile acts of the witness which would otherwise be inadmissible as extraneous misconduct. c. Financial Stake: also includes litigation, either pending or contemplated. Zuniga v. State, 664 S.W.2d 366 (Tex.App. – Corpus Christi 1983) and Shelby v. State, 819 S.W.2d 544 (Tex.Crim.App. 1991). Victim's assistance claims should be considered, especially if they require or would be enhanced by close cooperation with law enforcement. See Art. 56.03(g), C.C.P., Victim Impact Statements. d. Civil Litigation: In Hoyos v. State, 982 S.W.2d 49 (Tex.Crim.App. 1998), the Court of Criminal Appeals addressed the scope of cross-examination where a witness has instituted civil litigation in connection with circumstances being litigated in a criminal trial. The defendant was charged with aggravated robbery and the complaining witness had filed a civil suit against her apartment complex alleging a failure to maintain effective security. The Court of Criminal Appeals found that since the defendant was not a party to the civil litigation that the defendant failed to demonstrate relevance. Shelby v. State, 819 S.W.2d 544 (Tex.Crim.App. 1991) and Blake v. State, 365 S.W.2d 795 (Tex.Crim.App. 1963) previously held that any civil suit by a victim based on the same occurrence is relevant to show bias. The Court of Criminal Appeals distinguished Hoyos because (1) the defendant was not a party to the civil suit, (2) there was not a fact issue as to whether the crime occurred and (3) there was no other reason to 14

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believe the lawsuit might cause the complainant to be biased in her testimony at the criminal trial. e. Prior False Accusations of Child Abuse The Court of Criminal Appeals held in Lopez v. State, 18 S.W.3d 220 (Tex.Crim.App. 2000) that Rule 608 T.R.E. prohibited admission of specific instances of conduct of a witness for the purpose of attacking or supporting credibility, other than a conviction of a crime, may not be inquired until cross examination or proved by extrinsic evidence. The Court went on to hold that a Child Protective Services report of a case being closed or ruled out for abuse or ruling out a prior accusation by the complainant was inadmissible since the Confrontation Clause does not demand admissibility of such evidence. The Court reasoned that probative value is extremely low and the risk of admission would confuse the jury. Lopez was qualified somewhat in Hammer v. State, 296 S.W.3d 555 (Tex.Crim.App. 2009) where the complainant had been unwilling to attend a sexual assault examination and had run away for two days. The records also showed that the complainant was angry at the defendant and told about prior sexual abuse by her uncle which was identical to the conduct the defendant was accused of committing. The complainant had also stated to a friend that someone else had assaulted her and she did not want her dad to know which is why she blamed the defendant. The Court held that the child victim’s anger towards the defendant/father was admissible to show motive to falsely accuse but that the medical records showing the child was taken by the defendant for a sexual assault examination previously where she told the medical personnel that the sexual acts were consensual and not assaultive were found to be unfairly prejudicial. The Court also excluded evidence of the child victim’s journal. The Court did hold that evidence that the child victim had told others she had been molested by her mother’s boyfriends and that she lied to her grandmother about being threatened with sexual assault at knife point was admissible under the doctrine of chances to show the victim’s bias against the defendant and her possible motive to testify falsely. This same issue was also addressed in Billodeau v. State, 277 S.W.3d 34 (Tex.Crim.App. 2009). This case consisted of an aggravated sexual assault conviction with the only evidence being the testimony of the complainant versus the testimony of the accused. The defendant sought to present evidence about threats and false similar accusations made by the complainant after the date of the charged offense. The Court reversed because the defendant was not permitted to ask questions supporting the complainant’s denial after the complainant had testified on cross examination about not making such threats. f. Victim’s Past Sexual Abuse as Motive. The defendant is permitted to cross-examine the child victim regarding the victim’s past sexual abuse of his sister because such evidence supported defendant’s theory that the victim had, at that time, a motive to falsely accuse defendant sexual molestation. The evidence was admissible under Tex.R.Evid. 412, it was required to be admitted under the Confrontation Clause, and the probative value of the evidence outweighed the danger of unfair prejudice. Johnson v. State, 490 S.W.3d 895 (Tex.Crim.App. 2016). 3. Procedure For Examining a Witness as to Bias Under Rule 613(b) T.R.E., the witness must be confronted with the circumstances of the claim of bias and first be given a chance to explain or deny the bias. If the witness admits the bias then no further extrinsic evidence is allowed. Corresponding Rule 613 F.R.C.E. deals with prior statements of a witness but contains no specific rule as to bias of the witness. B. IMPEACHMENT WITH PRIOR CONVICTIONS Rules 609 T.R.E. and 609 F.R.C.E. set out the requirements for impeachment with prior convictions. It is not within the scope of this article to exhaust the law of impeachment. Suffice it to say that a witness may be impeached with a prior felony conviction or other crime of moral turpitude when the conviction or release from confinement is not more than ten years old. Counsel may prove a foreign conviction by offering supporting documents from the country of conviction, accompanied by proper authenticating testimony. Jordan-Maier v. State, 792 S.W.2d 188 (Tex.App. – Houston [1st Dist.] 1990). An otherwise final conviction may not be used to impeach a defendant if it was obtained when the defendant was without counsel. Loper v. Beto, 405 U.S. 473; Wood v. State, 478 S.W.2d 513 (Tex.Crim.App. 1972). This applies to any conviction that resulted in imprisonment. Aldrighetti v. State, 507 S.W.2d 770 (Tex.Crim.App. 1974). A prior final conviction obtained without counsel is admissible for impeachment if imprisonment did not result. To contest the use of a prior conviction for impeachment on these grounds the defendant should assume the burden of showing the following: 1. The absence of counsel at the time of conviction; 2. The indigency of the defendant at the time of the conviction; 3. The right to counsel was not waived or that there was no offer of counsel made; and 15

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4. Defendant would have accepted counsel if offered. Jenkins v. State, 488 S.W.2d 130, 131 (Tex.Crim.App. 1973): As mentioned above, if the impeaching offense is not a felony, it may only be used for impeachment if it involves moral turpitude. There is no statutory definition of this term, and the appellate courts have undertaken to determine whether offenses involve moral turpitude on a case-by-case basis. Generally, moral turpitude means something that is inherently immoral or dishonest. Hutson v. State, 843 S.W.2d 106 (Tex.App. BTexarkana 1992). Offenses that have been found to involve moral turpitude include the following: 1. Theft. Poore v. State, 524 S.W.2d 294 (Tex.Crim.App. 1975). 2. Aggravated assault on a female. Trippell v. State, 535 S.W.2d 178 (Tex.Crim.App. 1976). 3. Prostitution. Johnson v. State, 453 S.W.2d 828 (Tex.Crim.App. 1970). 4. Making a false report to a police officer. Robertson v. State, 685 S.W.2d 488 (Tex.App. --Fort Worth 1985). 5. Indecent exposure when it involves intent to arouse or gratify sexual desire. Polk v. State, 865 S.W.2d 630 (Tex.App. --Fort Worth 1993). 6. Hardeman v. State, 868 S.W.2d 404 (Tex.App. Austin 1993) which held that a misdemeanor assault conviction by a man against a woman is admissible for impeachment under Rule 609 T.R.C.E. as a crime of moral turpitude. 7. Sale or purchase of a child. In re Thacker , 881 S.W.2d 307 (Tex. Crim. App. 1994). 8. The offense of failure to identify by intentionally giving a false or fictitious name to a peace officer is an offense involving moral turpitude. Lester v. State, 366 S.W.3d 214 (Tex.App. – Waco) 2011, pet. ref’d). Offenses that have been held not to involve moral turpitude include the following: 1. Driving while intoxicated. Cohron v. State, 413 S.W.2d 112 (Tex.Crim.App. 1967). 2. Illegal sale of whiskey. Smith v. State, 346 S.W.2d 611 (Tex.Crim.App. 1961). 3. Unlawfully carrying a weapon. Trippell v. State, 535 S.W.2d 178 (Tex.Crim.App. 1976). 4. Driving without a license and drunkenness. Ochoa v. State, 481 S.W.2d 847 (Tex.Crim.App. 1972). 5. Criminal mischief. Gonzales v. State, 648 S.W.2d 740 (Tex.App. – Beaumont 1983) 6. Misdemeanor possession of marijuana. Bell v. State, 620 S.W.2d 116 (Tex.Crim.App. 1981). 7. Criminally negligent homicide. Arnold v. State, 365 S.W.3d 542 (Tex. App. – Tyler 2000). 8. Bad checks. The offense of issuance of a bad check does not involve moral turpitude unless it can be shown that the offense contained the element of intent to defraud. Dallas County Bail Bond Board v. Mason, 773 S.W.2d 586 (Tex.App.—Dallas 1989, no writ) 9. The offense of failure to identify by refusing to give the requested information to a peace officer is not a crime of moral turpitude. Lester v. State, 366 S.W.3d 214 (Tex.App. – Waco) 2011, pet. ref’d). Counsel must be cognizant of Rule 609(f) T.R.E. which provides that evidence of a conviction is not admissible if after timely written request by the adverse party specifying the witness or witnesses, the proponent fails to give to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. Rule 609(f) T.R.E. was interpreted in Cream v. State, 768 S.W.2d 323 (Tex.App. – Houston [14th Dist.] 1989) as constituting a method to prevent ambush of an adverse party's witness with prior convictions when the adverse party has not had a fair opportunity to contest the use of such evidence. There is no such ambush where the only convictions the defendant had to consider prior to testifying were those already known to him. Although there is no authority interpreting what would constitute "written request for notice" under Rule 609(f) T.R.E., counsel should avoid "hiding" the request in a motion for discovery. By analogy, the Court of Criminal Appeals held in Espinosa v. State, 853 S.W.2d 36 (Tex.Crim.App. 1993) that filing a motion for discovery in the trial court and serving a copy on the State does not trigger the notice provisions of T.R.E. 404(b) and the defendant instead must obtain a ruling on his Rule 404(b) motion in order to invoke the protection of that rule. In Theus v. State, 845 S.W.2d 874 (Tex.Crim.App. 1992), the Court of Criminal Appeals addressed the impeachment of a defendant who had previously been convicted of arson being charged with delivery of controlled substance. The defendant sought at a pretrial hearing to determine the admissibility of his prior conviction for purposes of impeachment and even offered to the trial court a certified copy of the probable cause affidavit from the arson prosecution which reflected some mitigating circumstances in connection with that offense. The trial court overruled the motion. The defendant testified at trial and was impeached with evidence of his prior arson conviction. In Theus, the Court of Criminal Appeals held that there are several factors to weigh in determining whether the probative value of a conviction outweighs its prejudicial effect: (1) the impeachment value of the crime; (2) passage of time; (3) similarity of offenses; 16

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(4) importance of defendant's testimony; and (5) importance of credibility issue in the trial. The Court found that the offense of arson had little to do with the credibility issue and was somewhat dissimilar from the offense of delivery of controlled substance. The Court further analyzed the importance of the defendant's testimony and the nature of the trial itself, that being a swearing match. Finally, the Court found that the refusal to allow the defense to mitigate the prejudice by explaining the facts and circumstances of the arson conviction outweighed the factors in favor of admissibility so much that the abuse of discretion standard was satisfied. Following the principle of Theus, counsel should never concede that felony or moral turpitude convictions are always available for impeachment and serve as a prohibition against the testimony of a witness. The opinion invites a pretrial determination of the admissibility of the prior convictions for purpose of impeachment and could be the basis for introducing mitigating evidence of a prior offense of conviction to the court or jury. See also Dale v. State, 90 S.W.3d 826 (Tex. App.—San Antonio 2002). In deciding whether, in the interests of justice, the probative value of a remote conviction substantially outweighs its prejudicial effect, a court may consider all relevant specific facts and circumstances, including whether intervening convictions dilute the prejudice of that remote conviction. Leyba v. State, 416 S.W.3d 563 (Tex.App.—Houston [14th Dist.] 2013 pet. ref’d.); Meadows v. State, 455 S.W.3d 166 (Tex.Crim.App. 2015). In Luce v. United States, 469 U.S. 38 (1984), the defendant moved in limine to preclude the government from using a prior conviction for impeachment. This motion was overruled, and appellant did not testify. The Supreme Court held "that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." This is also the rule in Texas. Richardson v. State, 832 S.W.2d 168 (Tex.App. – Waco 1992). C. IMPEACHMENT WITH CHARACTER EVIDENCE Rules 608 T.R.E. and 608 F.R.C.E. control impeachment with character evidence and limit it to the character trait of truthfulness. In contrast to the Texas rule, the federal rule does allow an inquiry into specific instances of conduct in cross-examination as long as the inquiry concerns that witness' character for truthfulness. Compare F.R.C.E. 608(b) with T.R.E. 608(b); see U.S. v. Farias-Farias, 925 F.2d 805 (5th Cir. 1991); U.S. v. Thorn, 917 F.2d 170 (5th Cir. 1990); see also Ramirez v. State, 802 S.W.2d 674 (Tex.Crim.App. 1990) (unlike its federal counterpart, Rule 608(b) T.R.E. allows for no exception). The Texas rule does not allow evidence or cross-examination about specific conduct. The federal rule leaves this to the discretion of the court under certain circumstances. D. IMPEACHMENT WITH PRIOR INCONSISTENT STATEMENT Rules 613 T.R.E. and 613 F.R.C.E. are treated more specifically elsewhere in the paper. The state and federal rules differ somewhat but generally the witness must first be advised of the contents, time, place and to whom the statement was made so that the witness may explain or admit the inconsistent statement. If the statement is admitted, no extrinsic evidence is allowed in state court. If the witness denies or equivocates, extrinsic evidence and further crossexamination may follow. If the statement is in writing, it need not be furnished to the witness but must be given to adverse counsel upon request. E. IMPEACHMENT WITH WRITING USED TO REFRESH MEMORY 1. Texas Rule 612 If a witness uses a writing to refresh his memory for the purpose of testifying either while testifying or before testifying, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. Rule 612 T.R.E. 2. Texas Case Law a. A writing used by a witness to refresh his memory either while or before testifying is discoverable, even though the statement was not made by the witness. In Marsh v. State, 749 S.W.2d 646 (Tex.App. – Amarillo 1988) the court 17

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held that statement used to refresh memory is discoverable "regardless of authorship". b. In Marsh v. State, 749 S.W.2d 646 (Tex.App. – Amarillo 1988), a supervisor from the Texas Department of Human Services testified for the state, and admitted to having previously examined records compiled by a colleague. The trial court denied defendant's request to inspect the department's file. This was error under former Rule 612 (now Rule 612 T.R.E.). "The wording of the Rule is unambiguous and unequivocal. If a witness uses a writing to refresh his memory for the purpose of testifying, an adverse party is entitled to immediate production of the writing for the purposes specified in the Rule. The witness used the DHS file to prepare for her testimony. Therefore, appellant was entitled to the file as requested". c. Where the prosecutor testifies that he reviewed his jury selection notes prior to testifying at a Batson hearing, defendant is entitled to production of those notes under Rule 612. Salazar v. State, 795 S.W.2d 187 (Tex.Crim.App. 1990). d. Rule 612 is "cast in terms of entitlement". Young v. State, 830 S.W.2d 122 (Tex.Crim.App. 1992). When appellant invokes Rule 612, the trial court is obliged to honor the request by requiring the witness to produce the materials before directing appellant to proceed with cross-examination. e. Once appellant moves for production and that motion is denied, error is complete. Appellant does not bear the burden of acquiring these withheld records from the witness for inclusion in the appellate record. Young v. State, 830 S.W.2d 122 (Tex.Crim.App. 1992). f. Ballew v. State, 640 S.W.2d 237 (Tex.Crim.App. 1980) is a pre-rules case. The court recognized that the attorney-client privilege extends to a psychiatrist hired to assist in the preparation of an insanity defense. The court went on to hold, however, that the privilege is waived when the defendant calls the psychiatrist to testify. Accordingly, it was not error for the trial court to compel the defense to allow the state to examine the notes and reports the witness made during his examination of the appellant for purposes of cross-examination. g. On direct examination, the state's witness, a juvenile probation officer, testified that he had prepared for testifying by reading a psychological evaluation of defendant. The document was used to refresh the witness' memory. The report related to his testimony. Robertson v. State, 871 S.W.2d 701 (Tex.Crim.App. 1993), 115 S.Ct. 155 (1994). The trial court erred in not admitting this report in its entirety on cross-examination under former Rule 611 (now Rule 612 T.R.E.). "When the writing is used by the witness to refresh his memory, the opposing party upon request can inspect the document and use if for purposes of cross-examination. Further, the opposing party can introduce the document, not for the truth of the matter asserted, but for use by the jury in comparing the document to the witness's testimony." F. PRODUCTION OF STATEMENTS OF WITNESSES FOR IMPEACHMENT 1. Texas Rules of Evidence 615 a. Motion for production. After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and his attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified. b. Production of entire statement. If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party. c. Production of excised statement. If the other party claims that the statement contains matter that does not relate to the subject matter concerning which the witness has testified, the court shall order that it be delivered to the court in camera. Upon inspection, the court shall excise the portions of the statement that do not relate to the subject matter concerning which the witness has testified, and shall order that the statement, with such material excised, be delivered to the moving party. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of appeal. d. Recess for examination of statement. Upon delivery of the statement to the moving party, the court, upon application of that party, shall recess proceedings in the trial for a reasonable examination of such statement and for preparation for its use in the trial. e. Sanction for failure to produce statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice. f. Definition. As used in this rule, a "statement" of a witness means: (1) a written statement made by the witness that is signed or otherwise adopted or approved by him; 18

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(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof, or (3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury. 2. Application of Rule 615 a. Rule 615 applies and governs criminal proceedings in all Texas courts and in examining trials before magistrates. Rule 101 T.R.E.. However, this does not include evidentiary hearings held concerning motions to suppress confessions and illegally obtained evidence. Rule 101 T.R.E.; Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002). 3. Texas Case Law a. Rule 615(d) provides for a recess to allow a reasonable examination of the statement in question. How much of a recess is "reasonable?" In Camacho v. State, 864 S.W.2d 524 (Tex.Crim.App. 1993), cert. denied, 114 S.Ct. 1339 (1994), no abuse of discretion was found where the trial court recessed long enough for counsel to read and comprehend the statement and to compare that statement with statements given by other witnesses. b. Before Rule 615, the question on appeal was whether the trial court had abused its discretion in not ordering production. The rule now governs. "Under the provisions of Rule 614 if the requested statement is in the possession of the State, a trial court, upon timely request by the accused, must order the attorney for the State to produce such statement if it relates to the subject matter to which the witness testified." Marquez v. State, 757 S.W.2d 101 (Tex.App. – San Antonio 1988), no error where records shows report was not in possession of the state. c. The work-product rule and the attorney-client privilege cannot be asserted to prevent discovery under Rule 615(a). Mayfield v. State, 758 S.W. 2d 371 (Tex.App. – Amarillo 1988). d. Rule 615 error may be harmless where the material is consistent with the trial testimony and where virtually all the information in the material is developed at trial. Mayfield v. State, 758 S.W.2d 371 (Tex.App. – Amarillo 1988). e. In Newsome v. State, 829 S.W.2d 260 (Tex.App. – Dallas 1992), the first appeal was abated for a retroactive Batson hearing, at which time appellant sought production of the prosecutor's notes for cross-examination under Rule 615 of the Texas Rules of Criminal Evidence. The prosecutor responded that he had no notes from the jury selection itself, but that he had prepared some notes in anticipation of Batson hearing. He objected to disclosure, invoking the work product privilege and the trial court sustained the objection. The court of appeals affirmed the judgment below on two grounds. First, the court held that these "private writings that a witness has made solely for his own use in testifying and that only the witness has seen" are not "statements" within the purview of Rule 615. Second, even if these notes where within the purview of Rule 615, appellant failed to preserve this issue on appeal. Even though trial counsel requested that the notes be made a part of the record, they were not included in the record. "The record does not reflect any efforts to incorporate the statement in the appellate record nor does Newsome complain in a point of error of the trial court's refusal to include the statement in the record." f. In Guilder v. State, 794 S.W.2d 765 (Tex.App. – Dallas 1990), the court held that appellant's request for the prosecutor's notes under Rule 615 was properly denied since these notes do not constitute a "statement" as contemplated by that rule. Appellant did not complain on appeal that the notes were producible under former Rule 612 (now Rule 615 T.R.E.). g. In Jenkins v. State, 912 S.W.2d 793 (Tex.Crim.App. 1995), the state called a narcotics investigator with the Texas Department of Corrections who testified about the importation of drugs into prison and their widespread use. On cross-examination, he testified that it was part of his job to make reports and findings of his investigations. Appellant requested production of these reports under Rule 614 (now Rule 615 T.R.E.), and the request was denied, except as to those report that specifically concerned appellant. This was not error, since the statements were not in the possession of the prosecutor. "We hold the `plain language' of Rule 614(a) (now Rule 615 T.R.E.) requires a prosecutor to produce witness statements that are in the prosecutor's possession. And, since the record does not reflect that the investigator's reports were in the prosecutor's possession or that Bitter was part of the prosecutorial arm of the government the trial court did not error in denying appellant's request to order the witness to produce them". h. A report by the arresting police officer detailing the items found after an inventory of appellant's car was a "statement" under Rule 615. Cross v. State, 877 S.W.2d 25 (Tex.App. – Houston [1st Dist.] 1994, pet. ref'd). The statement was not discoverable because it had been destroyed, and was therefore not in the state's possession. i. Victim impact statements made pursuant to Article 56.03(g) are not exempted from disclosure required by Rule 615 of the Texas Rules of Evidence. Enos v. State, 889 S.W.2d 303 (Tex.Crim.App. 1994). j. The trial court erred, under Rule 615, in not providing to appellant a transcription of the testimony of an eyewitness given at the trial of appellant's co-defendant. The statement was in the state's possession because it was readily accessible to the state. Appellant had a particularized need for the transcript to impeach the witness. Brooks 19

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v. State, 893 S.W.2d 604 (Tex.App. – Fort Worth 1994). VI.

RECALLING WITNESSES FOR CROSS-EXAMINATION TO GAIN TACTICAL ADVANTAGE

A. TEXAS CASE LAW 1. In Craig v. State, 594 S.W.2d 91 (Tex.Crim.App. 1980) defense counsel announced after direct examination that he had no questions "at this time". After his motion for instructed verdict was overruled, the defendant attempted to recall the witness for cross-examination. The trial court refused to allow this procedure. The Court of Criminal Appeals found that this was error. "A defendant does not lose his right to recall a State's witness for cross-examination merely because he does not exercise the right of cross-examination immediately after direct examination by the State, nor because the witness was subpoenaed by him and then placed on the witness stand by the State." However, in Craig error was not preserved because no bill of exception made. In Love v. State, 861 S.W.2d 899 (Tex.Crim.App. 1993), Appellant preserved error through an offer of proof which showed he wanted to recall the witness to impeach the credibility and reliability of his previous testimony. 2. The trial court abuses its discretion in not permitting the defense to recall a state's witness where further crossexamination would not cause undue delay in the trial or present cumulative evidence. Love v. State, 861 S.W.2d 899 (Tex.Crim.App. 1993). 3. Error, of course, is subject to review for harm. In Love v. State, 861 S.W.2d 899 (Tex.Crim.App. 1993), the Court applied a three prong analysis for making this determination, and found the error was harmful. Other courts have held this to be harmless error. Johnson v. State, 773 S.W.2d 721 (Tex.App. – Houston [1st Dist.] 1989). B. FEDERAL CASE LAW 1. The trial judge did not err in refusing to permit the defense to recall a government agent as a defense witness for further cross-examination after the government had rested its case, because the witness already had already been extensively cross-examined. United State v. James, 510 F.2d 546 (5th Cir.); Vasquez v. United States, 423 U.S. 855 (1975). 2. The recalling of witnesses for further cross-examination, and acceptance or rejection of rebuttal testimony, are matters within trial court's broad discretion, the exercise of which will not be disturbed on appeal, absent a clear showing of abuse. Johnson v. United States, 207 F.2d 314, 322 (5th Cir. 1953), cert. denied, 347 U.S. 938 (1954). VII.

PREPARATION-PRETRIAL INVESTIGATION AND DISCOVERY

To steal a line from Larry Pozner: Preparation is quiet work in the office and in the mind that leads to the very visible mastery in the courtroom. The advocate who desires to become a great cross examiner has only to better prepare their cross examinations. Power comes from preparation. Cross Examination: Science and Technique by Pozner and Dodd. The key to effective cross-examination is full preparation which begins with a thoroughly developed defense theory. Many times an entire defense strategy will be based on destruction of the prosecutor's case by crossexamination of the witnesses. This being the case, counsel's mastery of the facts and attention to the direct examination will be essential to success. Before you have fully developed your defense theory -- long before -- begin the investigatory procedures which hopefully will enable you to know all there is to know about the prosecution witnesses including facts which the prosecution does not know or does not know that you know. Counsel should build an extensive profile on each of the potential prosecution witnesses including not only his expected testimony, but also relevant impeachment information. The following are some steps which will aid the cross-examiner in achieving these objectives: A. TALK TO EVERY WITNESS PRIOR TO TRIAL (EVEN IF ONLY TO GET THEM TO REFUSE TO TALK) Contact the witness for an interview. If possible, record the conversation with the witness for later transcription and also for your own protection. In most cases, especially those involving the hostile witness, you will want to have a third party witness present for the interview so they can testify if necessary at trial. In any event, record your recollection of the interview immediately. Try to secure a written statement from the witness even if it is damaging. It is very difficult for anyone to tell the same story twice and you will have a version not available to the prosecutor. If the witness refuses to talk with you, 20

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find out why and learn the details. Counsel may very well learn that the prosecutor has instructed him not to speak with anyone associated with the defendant. If the witness refuses to talk to you, send them a carefully drafted letter by certified mail explaining that you are seeking to "learn the truth" and wish to talk to them for just a few minutes. If the witness persists in refusing to talk or continues a pattern of avoidance, this letter can provide significant cross-examination and evidence of evasiveness when comparing the number of meetings and elaborate witness preparation by the prosecution. If the witness does agree to meet with you but indicates he/she will do so only with the prosecutor present, you can be assured that this was at the prosecutor's suggestion. This can be further exploited during trial by asking the witness if there were any other suggestions the prosecutor made that he/she chose to follow concerning their testimony. It doesn't matter what answer you receive. B. USE PRETRIAL DISCOVERY Use pretrial discovery to gain information about the case. However, remember it is always better if the prosecution does not know that you know. Obviously, documents produced in discovery will assist you to isolate areas of further investigation. C. OBTAIN A TRANSCRIPT OF PRELIMINARY PROCEEDINGS Obtain transcripts of preliminary or other proceedings such as examining trials, traffic citation hearings, and divorce proceedings so that you have available all testimony preserved for future use. In counties where the grand jury does not meet on a regular basis and may be unavailable to return an indictment within the time set for the examining trial, this procedure can provide a very useful discovery and cross-examination preparation tool. Defense counsel should use the examining trial to extensively cross-examine all witnesses called on behalf of the State in order to obtain information to be used in impeachment and for discovery of the exact nature of the State's evidence. Further, counsel should obtain witness statements pursuant to Rule 612 T.R.E. for purposes of cross-examination. Article 16.09 C.C.P. requires that the testimony of each witness appearing at the examining trial be reduced to writing (or statement of facts) and can provide not only a free and useful cross-examination tool but preservation of that testimony without the necessity of court reporter expense. D. TRY TO OBTAIN DIAGRAMS AND EXHIBITS WITHOUT THE PROSECUTOR HAVING A COPY Have witnesses draw diagrams of the scene and describe it at a preliminary hearing. Write the name of the witness on the exhibit. Do not seek to introduce the diagram or exhibit into evidence. Take it with you. The witness won’t remember what was said many months later when called upon to testify at trial. E. USE SUBPOENAS FOR DISCOVERY Pretend you are a prosecutor with a stack of grand jury subpoenas. Well in advance of actual trial, subpoena documents to which you would otherwise not have access such as bank records, medical records, insurance investigations and phone records. Select some preliminary court date. Issue a subpoena and attach a letter explaining that the records custodian may or a may not be actually called as a witness on the date in question and that the subpoena may be complied with by furnishing true copies of the documents to you and the witness can then remain on call until actually needed in court. Always explain that if the records custodian prefers, they can actually appear in person with the originals. F. VISIT WITH THE EXPERT WITNESS(ES) Go to the office of the expert witness prior to trial and talk with him. While there, make notes of diplomas, professional memberships or recognitions and the books in his or her office which concern the subject matter of his testimony. Thereafter you may want to consult your own expert, particularly if the testimony is subject to opinion as in the case of handwriting experts and especially in the case of psychiatrists. Counsel should carefully study the diplomas and certificates of the expert and maybe learn that his present field of expertise is a second, or even third, career. Look for gaps in his educational process and try to learn what he was doing during those periods of time. Also, look for any literature or brochures in the waiting area or that have been distributed by the expert that might be used in cross-examination. Utilize the Texas Public Information Act to determine if the expert has ever been disciplined by the regulatory board or agency governing his or her profession. When counsel is involved in a case where the medical examiner's opinion will be critical to the outcome of the case, a public inquest should be requested by letter. This request will be summarily rejected or ignored. It is also an excellent idea to retain your own forensic expert or pathologist. Send a letter requesting that your own expert be present for the autopsy or any other testing performed. Finally, counsel must be familiar with the Medical Examiners Act codified in Chapter 49 of the Texas Code of Criminal Procedure. Section 49.25 requires that the medical examiner maintain extensive records (not just a formal report) of each homicide case and mandates that these records are "public". These records should be requested pursuant 21

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a letter. This statutory provision is separate and apart from the Texas Public Information Act, so the medical examiner should not be permitted to avoid releasing the records by asserting the law enforcement investigative exception contained in the Texas Public Information Act. When meeting with the medical examiner or expert, this is also the time to ask all of those opened ended questions you dare not ask in front of the jury. -- But do not disclose too much, i.e., do not argue or disagree with the expert because you will reveal your cross-examination and allow him or her to prepare. In preparing to cross-examine experts, counsel should be thoroughly familiar with Rule 803(18) T.R.E. which provides an exception to the hearsay rule as follows: Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. Rule 803 (18) T.R.E. provides an excellent vehicle to present an expert's opinion from learned treatises by simply having the opposing party's expert recognize the material as "reliable authority" in the field. The material can then be literally read to the jury. In a very poorly reasoned opinion, the Amarillo Court of Appeals even went as far as to hold that a videotape can qualify as a learned treatise under this rule. Loven v. State, 831 S.W.2d 387 (Tex.App. – Amarillo 1992). In Zwack v. State, 757 S.W.2d 66 (Tex.App. – Houston [14 Dist.] 1988) counsel sought to introduce material from learned treatises after the State's expert had completed his testimony and been excused. Zwack expressly recognized and authorized the procedure set forth in Rule 803(18) T.R.E., but held that learned treatises are to be used only in conjunction with testimony by an expert witness, either on direct or cross-examination, even though the authority of the treatise or publication is otherwise established. G. DISCOVER LAW ENFORCEMENT INSTRUCTION MANUALS Instruction manuals used in the training of law enforcement officers can be very useful in the cross-examination of those officers and especially so in the case of police officers and D.E.A. agents. The manuals can be used to show the inconsistencies between the actions of the officers and the training received. These instruction manuals are generally available under the provisions of the Freedom of Information Act, 5 U.S.C. 522(a)(2)(c) and The Texas Public Information Act, Chapter 552 of the Texas Government Code. H. COMPILE A WITNESS BOOK OR FILE FOR EACH WITNESS In the early phases of preparation, begin a file for each potential witness. As your preparation proceeds, add to the file any material which constitutes either a statement of the witness or a mention of him and his conduct in the statement of another, any biographical data, any employment information, or any other information which even remotely concerns the individual witness. As a practical matter, counsel should always have two copies of any statement or report by each witness. One copy can be used to highlight or make notes and a "clean" copy to be utilized with the witness in the presence of the jury. Before preparing your specific areas of cross-examination or the precise questions you want to address with the witness, review all the information you have collected in that witness' file. A vital clue to preparation at this phase is to look for what has been omitted as well as the more obvious contradictions. These omissions may warrant further investigation to determine whether some useful fact is being obscured by the witness. Your "witness book" (either a file folder or a loose leaf notebook) should contain documents, notes, and evidence upon which you want to cross-examine the witness and, at the front, a summary sheet which contains: a brief biographical summary, a list of potentially harmful facts in the knowledge of the witness, a list of facts you want to elicit, any impeachment information you plan to use, and an applicable list of exhibits upon which you want to examine the witness. The summary sheet should be typed and generously spaced so you can make notes upon it during the witness' direct examination. This device enables you to observe the demeanor of the witness on the stand without being distracted by trying to take copious notes of his direct examination. This is also a judgment call because often it is important to take detailed notes not only for cross but for comparison with other witness' testimony. I. USE SOURCES OF BACKGROUND INFORMATION You can never know too much about a witness. Here are a few sources of such information: 1. TCOLE Records TCOLE records on police officers are public information and can reveal the officer’s certification date, training, schools and departments where he was employed. This is valuable information to generate a few pointed questions to cause the witness to wonder how and why you know so much about him. This leads to control. 22

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TCOLE records can be obtained through a written request under Chapter 552 of the Government Code (Public Information Act) by (1) email to the Public Information Officer (as of 2020 this is Cera Thornton at open_records@tcole.texas.gov), (2) facsimile at 512-936-7714 or (3) mail to Texas Commission on Law Enforcement, 6330 East Highway 290, Suite 200, Austin, Texas 78723. The request must be in writing and addressed to TCOLE. The correspondence must be labeled as a “Public Information Request.” Requests sent via facsimile or email must be addressed to the public information officer or to the person designated by that officer to receive such requests. Each request must contain the officer’s name, identification number and police agency where he/she is employed. The request should seek disclosure of the officer’s training and education. However, the request should state that it is not seeking social security numbers, home addresses, home phone numbers or other personal information. 2. Public Records Do not forget tax records, vehicle registrations, driving records and civil court proceedings. Domestic relations Court is often a fertile ground for pleadings, temporary orders and social study reports. Additionally, conferences with an ex-spouse following a divorce will prove invaluable. If one can determine that a witness is behind in child support payments, counsel should find a creative way to make it an appropriate subject for cross-examination. This is especially true where the witness is a cooperating government informant who is being compensated for information and testimony. Counsel should be thoroughly familiar with the provisions of the Texas Public Information Act, Chapter 552 of the Government Code. The Texas Public Information Act is invaluable in obtaining jail records, booking records, offense reports and witness statements from disposed cases and police officer resignation and termination records. Section 552.301 of the Government Code provides that when a governmental body receives a written request for information that it considers to be within one of the Texas Public Information Act exceptions, it must ask for a decision from the Attorney General about whether the information is within that exception if there has not been a previous determination about whether the information falls within one of the exceptions. The governmental body must ask for the Attorney General's decision within a reasonable time but not later than ten (10) business days after receiving the written request. If a governmental body does not request an Attorney General decision as provided by Section 552.301 of the Government Code, the information requested in writing is presumed to be public information. In 1981, the Attorney General's Office ruled in ORD-278 that documents containing the reasons and circumstances surrounding a public employee's resignation or termination are not exempt from disclosure under the Texas Public Information Act. Because of their role in protecting the safety of the general public, law enforcement officers generally can expect a lesser degree of personal privacy than other public employees. Texas State Employees Union v. Texas Department of Mental Health & Mental Retardation, 746 S.W.2d 203 (Tex. 1987). General information about a police officer usually is not excepted from required public disclosure by Government Code § 552.108. For example, a police officer’s age, law enforcement background, and previous experience and employment usually are not excepted from disclosure by § 552.108. Open Records Decision Nos. 562 (1990) and 329 (1982). However, the disclosure of information from the personnel files of police officers serving in cities that have adopted Chapter 143 of the Local Government Code (the fire fighters’ and police officers’ civil service law) is restricted by § 143.123 of the Local Government Code. City of San Antonio v. Texas Attorney General, 851 S.W.2d 946 (Tex.App. – Austin 1993). Similarly, information about complaints against police officers generally may not be withheld under Government Code § 552.108. For example, the names of complainants, the names of the officers who are the subject of complaints, an officer’s written response to a complaint and the final disposition of a complaint generally are not excepted from disclosure by § 552.108. Public Information Decision Nos. 350 (1982) and 342 (1982). However, the identities of witnesses, informants, and persons interviewed in the course of a police internal investigation may be withheld under § 552.108 if the police department determines that disclosure either might subject these individuals to possible intimidation or harassment or might harm the prospects of future cooperation. Public Information Decision Nos. 329 (1982), 313 (1982), 297 (1981) and 252 (1980). Furthermore, in cities that have adopted Chapter 143 of the Local Government Code, § 143.123 the Local Government Code makes information about complaints against police officers confidential under § 552.101 if the department took no disciplinary action or the disciplinary action was taken without just cause. City of San Antonio vs. Texas Attorney General, 851 S.W.2d 946 (Tex.App. – Austin 1993). 3. Public Utilities These records will reveal who is (or is not) paying the bill. The application always contains valuable information such as previous addresses. 4. Cellular phone Records These records can connect witnesses together or to law enforcement and gives counsel the date and time of the calls. Subpoena witnesses to bring their cell phone records. If you know the provider, subpoena cellular phone records. 5. Military Records 23

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These records will reveal terms of discharge, locations of assignment and disciplinary matters. 6. Bank Records and Credit Card Statements Persons to whom witnesses write checks and the dates and amounts of deposits are often very revealing. Credit card records always leave a revealing trail of information. 7. Incarceration Records These materials invariably reveal disciplinary matters while in jail, psychiatric evaluations and parole hearings. The identity of visitors and persons providing support (money on their books) will also be revealed. Records of tattoos revealing gang affiliation, girlfriends and beliefs can prove to be very beneficial. Many county jails now maintain intake booking photos of gang members flashing gang signs in order to verify and provide for gang segregation. These photos could prove invaluable depending on what one of these witnesses says at trial. An invaluable source for cross-examination material is found in classifications files maintained by the Institutional Division of the Texas Department of Criminal Justice. These records are maintained on every inmate who has ever passed through doors of the Texas penal system. The custodian of these records is Classifications Director, P.O. Box 100, Huntsville, Texas 77703. These classification records contain judgments and sentences for respective convictions, psychological reports, diagnostic interviews, gang classification, disciplinary hearing reports including the inmate's version, medical records, work assignments, personal family information, military and educational background, and the defendant's version of the offense for which he is incarcerated. Classifications can be reached by phone at (409) 294-6496. 8. Medical and Psychiatric Records Valuable information can be found hidden in doctors' notes. If counsel is aware of previous mental health treatment, you may want to file a pretrial motion to determine competency of the witness under Rule 104(a) T.R.E. (providing the competency of a person to be a witness is a preliminary question) and Rule 604 T.R.E. This hearing should provide a forum to subpoena and peruse these records if they cannot otherwise be obtained. 9. Community Supervision Files The contact log and monthly reporting form of the community supervision officer can disclose some productive statements (usually self serving and deceitful) made by the witness. Further, counsel can invariably anticipate false statements to the community supervision officer about simple things like employment, residence, associates, drug usage and even arrests while on probation. A community supervision officer may become a valuable witness as to the reputation for truth and veracity of a prosecution witness. 10. Applications Made By the Witness This material includes apartment rental agreements, loan applications, credit applications, bankruptcy filings and employment applications. This is another excellent source of false statements and associates. If counsel is aware of a previous bankruptcy, that petition is overflowing with valuable information and misrepresentations. 11. Victim Impact Statements and Crime Victim Compensation Applications A victim impact statement is subject to discovery under Article 39.14 C.C.P. before the testimony of the victim is taken only if the court determines that the statement contains exculpatory materials. Article 56.03(g) C.C.P. The Court of Criminal Appeals has held pursuant to Article 56.03(g) C.C.P. that a victim impact statement is discoverable before the testimony of the victim is taken only if the court determines that the statement contains exculpatory material. Enos v. State, 889 S.W.2d (Tex.Crim.App. 1994). Enos went on to hold that Article 56.03(g) addresses only discoverability of victim impact statements before the victim's testimony whereas Rule 615(a) T.R.E. address the discoverability of statements after a witness testifies on direct examination. The Crime Victims' Compensation Act is contained in Articles 56.31 through 56.61 C.C.P. This fund is administered by the Attorney General. The Act is silent on whether the records generated the Attorney General are public. Therefore, counsel should always request this material pursuant to the Texas Public Information Act. Some of the possible sources of information include: a. A verified/sworn application including a description of the offense, expenses, other indemnification sources and the extent of disability. Article 56.36 C.C.P. b. The victim must report the crime within a reasonable time of the conduct. c. Payments received by the victim. The victim can be paid in lump sum or installments. 12. Public Data.Com and Other Public Databases Public Data.Com is an invaluable source to obtain public records (driver’s license, addresses, property, water bills, vehicles) and other information on individuals. 13. Facebook and Twitter Accounts Need I say more? There is not a more rewarding source of information than to learn what a witness says about 24

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himself to others. 14. Divorce Files from County or District Clerk It has been said that if a lawyer can locate an ex-spouse of a witness, a panacea of valuable information will follow. Divorce proceeding records lead to and reveal animosity, credibility and personal information no witness wants the opponent’s lawyer to have available to conduct a cross-examination. 15. Confrontation in Child Abuse cases and Prior False Accusations It appears the Court of Criminal Appeals in Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009) and Billodeau v. State, 277 W.W. 3d 34 (Tex. Crim. App. 2009) is providing a narrow opening to the admissibility of other false accusations. Counsel must be diligent in investigation and confirmation of other incidents and false accusations to determine if such can fit within the narrow scope of admissibility. VIII.

CONDUCTING THE CROSS-EXAMINATION: GENERAL RULES

Conducting an effective cross examination is a combination of system and style. The cross examiner tells the story and the witness simply confirms it. The cross examination should be crisp, concise and clear. There should be no stumbling by the lawyer, no asking the judge for time, no arguing with the witness, and no snide remarks directed at the opposition. The cross examiner is confident. The cross examiner knows exactly what he will be asking. The cross examiner should know what the witness will say. He knows how to respond if the witness does not say what he expects. The cross examiner is in complete control. Every cross-examination should be tailored to the specific case and the witness. However, counsel might want to consider and adopt the following general rules of cross-examination: A. ALWAYS ASK LEADING QUESTIONS One of the primary difficulties in cross-examination is controlling the witness. Leading questions will allow you to restrict the testimony to the essential points you want brought out without allowing the witness to meander, explain or otherwise dilute the impact of the cross-examination. By the use of leading questions, you can get the witness to agree with your characterization of the testimony. If possible, always frame your questions so the witness has only one answer -- "YES". This means you are: (1) asking leading questions, (2) controlling the witness, (3) describing the facts with words you, rather than the witness, have chosen. To accomplish this you must apply some of the rules which follow. B. KEEP THE QUESTIONS SIMPLE. A question loaded with too many facts or exaggerations will always allow the witness to wiggle. Also, the jury will be offended if you are obviously trying to add facts to your question which the witness is unwilling to adopt. Incorporate only one fact per question until you get the witness to admit to that fact, then you can add it to your next question for repetitive emphasis. C. QUESTIONS SHOULD BE FRAMED WITH AS FEW NEGATIVES AS POSSIBLE The use of negatives in questions is an all too common mistake in cross-examination. This approach causes confusion and ambiguity. It allows a witness to transform an affirmative answer into a negative one or vice versa. For example: Q: Didn't you see my client running from the fight? A: Yes. This response could mean "yes, I did" or "yes, you are right, I did not see that." No one knows, and the jury may not understand. Avoid the use of negatives. If it does happen, and you receive an ambiguous answer, correct it immediately: "By 'yes', I take it that you mean to say that you did see my client running away?" The use of negatives can create additional problems. Double negatives create hopeless confusion-i.e., "Isn't it a fact that you did not see the light change, before entering the intersection?" Even if the jury understands the witness's meaning from inflection or expression, those factors do not appear in the written record. Thus, you should eliminate phrases containing negatives such as "Do you know whether or not, " or "is that not correct?" Avoid mixing positive and negative statements in the following manner: "You never studied serology in the police academy, is that right?" An affirmative or a negative answer will breed confusion. Does a positive response mean that the examiner is right and that serology was not studied, or that it was studied? In order to ask leading questions with clarity, frame your inquiries without gratuitous phrases such as, "Isn't that correct?" or "Is that not right?" These are difficult habits to break and require discipline but are absolutely essential for a successful cross-examination. D. CONSIDER NOT IMMEDIATELY ATTACKING THE FINAL ANSWERS WHICH THE WITNESS GAVE ON DIRECT Lawyers will often be tempted to begin cross-examination by establishing the falsehood of the last several points 25

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made on direct. This temptation must be resisted. Sometimes, the closing points are only minor and addressing them first will lessen the impact of a carefully planned cross-examination. Your opponent may even be attempting to distract your attention from the main issues. On the other hand, the opponent may close direct examination with his strongest points, and you may be biting off more than you can chew by meeting the witness head-on without softening him up first. In some instances, counsel may need to demonstrate the untruthfulness of the witness immediately and forcefully. Then counsel should leap right in and attack the final answers of the witness. The advantage here is that the responses are fresh in the jury's mind, and you are showing them what the witness just said is wrong with the clear implication that the rest of the testimony is equally tainted. Before you adopt this tactic, be certain that you can successfully attack the witness, because if you fail at the outset of the cross-examination, you will have set the tone for the rest of the examination. The jury may think that you have thrown your best punch and failed to land it. Also, if the witness survives your first volley, he will think the worst is over and begin to gain confidence. Worst of all, he will then be in control. E. ASK THE WITNESS WHETHER THEY WANT TO CHANGE OR CORRECT ANY ANSWERS At the conclusion of the testimony, consider giving the witness an opportunity to change answers. Sometimes this may be the last thing you want to do, but it can have its advantages. It gives you the appearance of being fair-minded, while placing the witness in a difficult position. If an answer is changed, the witness impeaches himself to a certain extent and opens up new areas for cross-examination into the reasons for the change e.g., "Which testimony is truthful, your original or your amended testimony?" (Note: Do not ask "why?") In those rare instances where counsel truly knows (and can prove) that the witness has lied on direct examination, you may consider beginning cross-examination with a series of lock down questions: Q. You didn’t mislead this jury with your answers to the prosecutor’s questions? Q. You didn’t say anything that might leave this jury with a false impression? Q. Were you 100% truthful with this jury in everything you told them in response to the government's questions? Q. Were you every bit as truthful today with this jury as you were when you appeared at the grand jury and offered testimony concerning these same events? Q. Did you tell the government lawyers the same thing during the three times you met with them that you told this jury today? Q. So, since you have been 100% truthful in your testimony today, you do not wish to change any answers to the testimony you have provided? Is that correct, sir? Q. Are you absolutely certain about that, sir? (if he doesn't know what is coming by now, he really is stupid). Q. By the way, this is the first time that you have had a representative of the defendant, Mr. Smith, actually asking you questions on his behalf? Is that not correct? This series of lock down questions should telegraph to the jury that you know the witness has lied. Counsel should be 100% certain that he will be able to prove the same. This questioning also telegraphs that the witness has lied to the grand jury and lied to the government during previous witness interviews. F. LET THE JURY KNOW THE WITNESS HAS NEVER BEEN CROSS EXAMINED OR CHALLENGED Q. I was not present when you first met with the Government, was I? Q. I was not present at the second meeting, was I? Q. I wasn't present inside the Grand Jury, was I? Q. No one representing Mr. Smith has ever asked you questions? H. QUIT WHEN YOU ARE AHEAD OR SCORE THE POINT DESIRED First, consider you might be ahead if you do not cross-examine the witness at all. For example, in a burglary case in which the victim testifies solely to the fact that a burglary occurred, makes no attempt at identification, and you have no "quarrel" with the testimony, you would probably be better off not to cross-examine. Whether you want to crossexamine depends entirely on your defense theory and the facts you need to elicit in support of that theory. If you are going to cross-examine a minimal witness, be brief. Develop the questions so you not only lay a proper predicate, but also so you get the witness committed to the desired position before you score your point. Once he is committed or boxed in, then bear down on the meat of the examination. Ordinarily you will not have more than a few points you want to make. When you get those points made, stop. Remember too, there is still the specter of redirect facing you, so limit the possible ammunition for rehabilitation once you have the testimony desired. I. DO NOT CROSS-EXAMINE THE WITNESS WHO DID NOT HURT YOU Less seasoned veterans of courtroom battles may consider it necessary to cross-examine every witness. Clients 26

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sometimes favor this approach based on their exposure to Perry Mason but ultimately the burden of the outcome is on the attorney. Do not cross-examine on minor discrepancies just for the sake of the exercise or to demonstrate your perceived brilliant command of the case. Ask yourself, "Have I been hurt by this witness' testimony?" Then ask yourself “are there any other favorable facts I can secure through this witness?” If not, then do not cross-examine. Counsel must proceed with caution because the potential for harmful answers might outweigh the favorable information you are seeking. Remember, all lawyers invariably forget to ask questions on direct and wish they could have the witness back. If you cross-examine, your opponent will have time to think of the forgotten questions and cure their omissions on redirect. J. DO NOT CROSS-EXAMINE ON MINOR MATTERS UNLESS YOU ARE CERTAIN OF SUCCESS Why take on the witness in areas where you have little to gain in the way of information and much to lose in terms of credibility? You should cross-examine on minor matters only if you can go in, make a quick score, and get out. You must keep your examination terse and hardhitting. Do not focus on unimportant discrepancies in the witness's testimony. Haggling over relatively insignificant points detracts from your presentation and confuses the jury as to the truly important elements of your examination. Regrettably, if the witness outmaneuvers you on a lesser point, the impact is not lessened commensurately in the jury's mind. The fact is that you have lost a battle, and the jury will probably sense that. In addition, the witness will gain confidence, and you will have greater difficulty in controlling him or her. On the other hand, if you feel you can nail the witness, do so early during the cross-examination. Try to build up the issue into one of life-or-death proportions as if the entire case rested on its resolution. It is possible to win cases on minor matters, if they can be used to destroy credibility. Thus, even though it is irrelevant that the light was red and not green, it is relevant that the witness insists incorrectly that it was red. K. MAINTAIN YOUR THEORY OF DEFENSE THROUGHOUT THE CROSS-EXAMINATION Counsel should always avoid asking questions simply to demonstrate a brilliant command of the English language or knowledge of the case. If the questions asked are not supportive of your defense theory, do not ask them. If the testimony to be elicited supports your defense theory, then bear down until you get the desired testimony. L. DO NOT RE-EMPHASIZE DAMAGING TESTIMONY Do not give the prosecution double exposure by allowing the witness to repeat damaging testimony given on direct. If you must cover the subject, frame your questions as to the harmful testimony in such a way that the harmful testimony is not repeated. M. IF IN DOUBT ABOUT A QUESTION, DO NOT ASK IT In examining an adverse witness, the odds are such that if you do not know what the answer is likely to be and are in doubt about the question, the response will not be helpful and may be damaging. If in doubt, do not ask! N. GET THE WITNESS CLEARLY COMMITTED TO TESTIMONY BEFORE DEMONSTRATING HIS ERROR Counsel is often called upon to move the witness into a position favorable to the defense theory. You may want to first get the witness to testify as to agreed upon facts which support your defense theory. Then ask him a series of questions to which he will give affirmative responses. Begin in a soft, nonconfrontational manner to get the witness to agree with you. In this way, the witness is not alerted to the trap you are laying, is not aware of any antagonism, and is thus much less apprehensive himself. Do not alert the witness to the error you intend to demonstrate so that he can seize the offensive and attempt to explain it away. Write down your roadmap in detail. Do not become overanxious and step by seductive step you can lead the witness to the end of the journey and be at the destination before he knows you have arrived. Remember, use only one fact per question. O. NEVER ASK AN ADVERSE WITNESS "WHY" OR "HOW" OR “PLEASE EXPLAIN” Telling a witness to “explain” or asking "why" or "how" will permit the witness to take control of the testimony. This will invariably result in a rambling, self-serving explanation and eventual dilution of the testimony you have adduced. It will invariably cause serious damage to your position. SAVE THE ANSWER TO YOUR "WHY" OR "HOW" QUESTION FOR FINAL ARGUMENT. Assuredly, you can make the point sound much better than any adverse witness will ever permit. P. MAINTAIN GOOD EYE CONTACT When cross-examining a difficult witness, always maintain strict eye contact. Avoiding eye contact is often interpreted as weakness. Our life experiences verify this. People who will not look us in the eye appear uncomfortable and less than forthright. If the cross-examining lawyer suspects the witness will become unresponsive, the lawyer must keep his eyes fixed on the witness when asking questions and when receiving the answer. It is important that counsel avoid looking away to refer to or jot down notes. By directing your full attention at the witness' eyes, you serve 27

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nonverbal notice that you will put up with no nonsense, and permit no deviation from the question and answer approach you have been following. Q. REMOVE PHYSICAL BARRIERS BETWEEN YOU AND THE WITNESS Remember the college professor who stood behind a large lectern, twenty feet from the nearest student? Boring, right? Contrast him with the instructor who sat right next to the students in a seminar class. It was easier to establish rapport in the latter situation which is more conducive to a relaxed interchange of ideas. The same principle applies to dialogue in the courtroom. Thus, the importance of the physical layout should not be underestimated. Desks, tables, lecterns, and other physical objects that stand between you and the witness also separate you psychologically from the witness. They are obstacles that you want removed. If you desire to get closer to a witness in order to become familiar and to demonstrate your sympathetic and unthreatening attitude, these barriers stand in your way. You also want to get as close to the hostile witness whom you wish to attack. Objects in the courtroom are protective barriers which weaken your assault and allow the witness to hide. Physical proximity is intimidating. This is the very reason why many judges require counsel to examine witnesses from behind counsel table or the lectern. Find a way to approach the witness perhaps using the easel or a chart. If not, counsel should consider standing to the side of or even sitting on the front or the counsel table. R. USE OF CHARTS AND DIAGRAMS The cross-examiner should utilize charts and diagrams whenever possible to emphasize specific and favorable areas in cross-examination. If a witness provides four favorable points, they should be written on the easel pad under the witness' name, marked as an exhibit and offered as a summary. If not admitted, the summary should be offered "for the record" to insure that it is not disposed of at the end of the day by the bailiff and will still be available to display to the jury during final argument. Clearly, jurors recall far more than what they hear and see in writing two times. The cross-examiner should always draw diagrams themselves and avoid asking the witness to draw on the easel or make diagrams. They rarely get it right. If you are in control (which you should be before going to the easel), the witness will likely give you the testimony you need to support the diagram or exhibit which you draw. S. DO NOT BEAR DOWN ONCE YOU GET THE ANSWER YOU WANT This rule might appear repetitious and, if so, it warrants repeating. Quit while you are ahead. Do not let the witness go on and explain after you have your answer -- and do not give him the opportunity to rehabilitate himself or his testimony by continuing the line of questioning which elicited the desired response. When you begin a new line of questioning after having elicited the desired response, return to your soft, nonconfrontational demeanor. Bearing down and pounding a witness on a favorable point tends toward making the cross examiner look like a bully. No one likes a bully. Jurors do not like bullies. T. GET FAVORABLE TESTIMONY BEFORE MAKING THE WITNESS MAD When dealing with antagonistic witnesses, you know they hold views which oppose your defense and theory of the case. They will be on their guard. However, there may still be undisputed facts which will bear on your defense theory. Have the antagonistic witness commit to those issues first. Seek to lull them into a monotonous rhythm of affirmative responses before you antagonize the witness or tap into his submerged antagonism. You should not get angry with the witness, even though you might feign anger for effect. If you become angered or frustrated with the witness, you will have lost control of the testimony. Lull the witness into a sense of security with you, get him relaxed, get favorable testimony before coming back to areas guaranteed to make him mad. But do not fail to ask questions which might anger the witness just because of that potential. His demeanor, as well as yours, will go to the credibility ultimately accorded him by the jury. Q. Officer, writing a police report is an important function in law enforcement work? Q. The report should be detailed and accurate? Q. Others in your department, including your superiors, rely on what you include in your reports? Q. You are proficient in writing a report? Q. You did an excellent job in your report regarding this case? U. USE THE APPROACH OF ASKING THE WITNESS "YOU HAVE GIVEN THE IMPRESSION THAT SUCH AND SUCH IS TRUE" The cross examiner must choose the vocabulary used carefully. Use the approach of asking the witness "you have given the impression that such and such is true," as this is much harder for him to get around than "Isn't it a fact that you're lying!" V. WRITE ON THE PROSECUTOR'S EXHIBITS Often you can demonstrate favorable facts by writing on the prosecutor's exhibits so that the jury has the benefit of the demonstration on one exhibit. The prosecutor may squeal about your writing on their exhibits, but the fact of the matter is the exhibits are for the benefit of the jury and you can make a persuasive argument to this effect. 28

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Doug Tinker always had a good approach: "But Judge, they are the jury's exhibits, not the prosecutor's." W. DO NOT LET THE JURY KNOW WHEN YOU'VE BEEN HURT If the witness' response has been harmful to your case, quietly pass on to the next question. If it is a response you can't ignore and must pursue, you might give the impression you're not hurt by saying "Well, let's just talk about that" or “we will visit about that later.” X. LEAVE ARGUMENT FOR CLOSING Resist the temptation to argue your case too soon or trying to do it through the witness. Rarely will the witness adopt your arguments. When you get to the argument phase, you will be able to tie up all the loose ends, to highlight the inconsistencies in testimony and to address the witnesses' credibility. Argument incorrectly included in the crossexamination phase will usually have a negative effect on the jurors. The witness will dilute what you are saying. It also gives the prosecutor an opportunity on redirect to have the witness explain away the points you have made. Once again, you can always make it sound better than any adverse witness. Y. REPEAT HELPFUL FACTS Just because you heard an answer you liked doesn't mean the jury will remember it, or grasp the significance. After you get a favorable fact confirmed, continue to incorporate it in your questions in a manner that would not be subject to an objection for being repetitious. (Example: "So, after you made those false statements to the Grand Jury, did you have a cup of coffee with the prosecutor?" Did you ever happen to call the prosecutor and tell him about the false statements you told?"). This will not only make certain that the jury remembers the fact, it will begin to condition them to accept your theory of defense. Z. DO NOT GIVE THE WITNESS AN OPPORTUNITY TO EXPLAIN Any experienced lawyer knows that the jury wants to know why a witness has testified to one set of facts at a given time and then testified on a different occasion to a different set of facts. Once again, the lawyer can always say it better in argument than the witness will say it from the stand. One should never ask a "why" question on cross-examination or “please explain.” In matters of inconsistency, it is equally unwise to ask the witness for reasons. The time and place to explain the witness' motivation to the jury is in the cross-examiner's closing argument. At that time, the witness can no longer contradict the cross-examiner or persuade the jury. If the witness is asked why the story has changed, the witness inevitably will have a perfectly logical explanation. Simple psychology tells us that whether the witness is an intentional deceiver or honestly and understandably mistaken, the witness will have an acceptable explanation for the jury. AA. CONTROLLING THE DIFFICULT WITNESS Many witnesses, especially police officers, want to aid the prosecution by adding unresponsive information to their answers on cross-examination. Any lawyer who has tried cases for any significant period of time has encountered difficult to handle runaway witness. Regardless of the lawyer's training or preparation, these witnesses always seem to appear in the most difficult of cases at the most perilous times. These witnesses ramble and talk at length in a nonresponsive fashion when all that counsel's question warranted was a simple "yes" or "no" answer. If counsel yells or confronts the witness and cuts him off with "just answer my question" or requests the judge to instruct the witness accordingly, counsel will appear rude or afraid of the answer. Further, most judges will simply look at the jury and tell the witness that he may explain his answer if an explanation is necessary (and the witness will always claim that it is). The bottom line is that one can never count on the court for help. For a lawyer to instruct a witness to "answer the question yes or no" is a signal to the jury that you are not in control. It suggests to the jury that you, as the lawyer, are trying to trick the witness or put words in the witness' mouth. Such an exchange does nothing but lower the credibility of counsel and his position in the eyes of the jury. The following constitutes a number of tried and proven techniques for dealing with the difficult, nonresponsive or runaway witness. Naturally each technique should be tailored to a given situation and the amount of latitude that the jury will grant in those given situations: 1. Saving the Best for Last In situations where you have developed damaging information through preparation with which to confront the witness and he is well aware that you have this information, you can gently apply significant pressure by saving this material until the very end of the examination. You may even want to dance right up to it and tell the witness "we'll come back to that later". This tactic holds the witness in a state of constant fear over the timing of the moment of truth. Prior to the examination, the witness has prepared for the fact that you will deliver your strongest blows in the opening rounds. When this does not occur, and when the examination proceeds in mundane fashion, confusion results and the energy stored up to resist you is dissipated. As you proceed, the fear begins to rebuild and the confusion is reinforced. The witness wonders when the blow will fall and ponders why you have not yet delivered the coup-de-grace. You are 29

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in control. Psychologists tell us that people often find prolonged periods of anxious waiting for an event more trying than when it finally comes. 2. Sarcasm Counsel may consider peering up at the witness and semi-sincerely say, "perhaps you didn't understand my question." After you've done this a few times, the jury will get the idea and blame the witness instead of you. As for the witness who can never seem to understand your question, especially if he would rather not answer, you might ask, "are my questions more complicated than the prosecutor's?" Be extremely careful with this kind of sarcasm because it will backfire unless you are in the jury's good graces and unless the witness is clearly being evasive. If your question was indeed a simple one, you might just ask, "what part of the question did you not understand?" Of course, none of this will work if your questions are not clear so remember -- keep it simple and limit yourself to one fact per question. 3. "That Didn't Answer My Question, Did it?" First approach: Q: You did not identify my client? A: It was a long day. I was very tired. There was a lot of stress from the robbery. Q: A:

That didn't answer my question, did it? No.

Q: A:

The question is: You did not identify my client? No, I did not identify your client.

Second approach: Q: You did not identify my client? A: It was a long day. I was very tired. There was a lot of stress from the robbery. Q: A:

That didn't answer my question, did it? Yes, I think it did.

Q: A: or A:

Repeat my question? (If you're lucky) I don't know it.

(If you are very lucky and having one of those truly incredible days in the courtroom) ...I know it was something about your client. What was it? This technique clearly borders on being confrontational. In order to be successful, counsel must recognize that this confrontation is necessary before it is used. The witness must have repeatedly refused to answer simple questions. 4. "So Your Answer Is Yes" This is a very simple approach that can be used with the witness who is willfully nonresponsive or tends to ramble in order to avoid questions. The cross-examiner's tone should be adjusted depending on the circumstances, but not the question itself. That is to say, if the unresponsiveness is obvious and is only the latest in a string of nonresponsive answers, the tone can be firm. If the witness' personality tends toward unresponsive answers or answers at length, then the lawyer can be more kind, gentle, and understanding. Regardless of where on the emotional spectrum the voice falls, the question remains the same: "So your answer is yes?" Then complete the question with the information you are seeking to elicit. This technique is best utilized after a long unresponsive answer, without moving or taking your eyes from the witness' eyes and with a slight, helpful smile. Usually the affirmative response is quickly forthcoming. This technique was used in The Nuremberg Trials. Sir David Maxwell-Frye's cross-examination of Herman Goring during the Nuremberg Trials contained the following example of this technique: Maxwell-Frye: This order would be dealt with by your Prisoner of War Department in your Ministry, wouldn't it? Goring: This department, according to the procedure adopted for these orders, received the order, but no other department received it. Maxwell-Frye: I think the answer to my question must be "yes." It would be dealt with by the Prisoner of War Department, your ministry, isn't that true? Goring: I would say yes. 5. Using the Court Reporter The court reporter can be a most valuable tool in controlling a difficult unresponsive witness. The judge is the 30

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highest ranking member of the courtroom. However, the jury views all court personnel as persons of authority. All members of the judge's staff are seen as "official" and are treated by the jury with special respect. More importantly, the courtroom staff is seen as neutral. Having asked the witness a leading question and having received a rambling non-responsive answer, counsel should turn to the court reporter and ask, "May I please have my question read back to the witness?" The courtroom will grind to a chilled silence as the reporter locates the question and slowly reads it back. Having the question repeated by a court official and read back with simple clarity is persuasive to the jury and should bring the non-responsive witness back to reality with a short, responsive answer. Most judges consider the court reporter as an extension of the court. When using the court reporter technique, the judge seems to listen more intently to the read back and often visually, if not verbally, directs the witness to answer the question as read back. This is a very subtle way of having the judge volunteer to get involved by directing the witness to answer the question. 6. Repeat The Question Some witnesses are just impossible. The lawyer will ask a good, basic question, in its briefest, simplest form, using words of common understanding. The only possible answer is "yes". But in order to avoid giving the crossexaminer an answer, the witness sidesteps or rambles with a non-answer. Without taking your eyes from the witness, slowly ask the question again, in exactly the same words and tone of voice, articulating each word. If the witness is so foolish as to again ignore the obvious "yes," slowly lean slightly forward never taking your eyes from the witness. Repeat the identical brief, simply constructed question. The successively slower repetition of the identical words and tone emphasizes to the witness, the court, and, most importantly, the jury that the witness is avoiding or refusing to answer. The forward body motion emphasizes that all are waiting for a response. What about the judge who will not permit the lawyer to ask the same question? This technique maximizes the likelihood that the judge will voluntarily intervene and insist that the witness answer the simple question. Further, counsel should argue that it is not redundant or repetitious to ask the same questions, if that question has not been answered. Q: You were in a hurry? A: I was traveling down the street, and started to go through a green light...I saw your client come out of the bank with a gun. Q: A:

(Slower) You were in a hurry? Well, the light was green when I went through it. I could see everything just fine...including your client.

Q: A:

(Slower Still) You were in a hurry. Yes, I was in a hurry.

7. Using the Hand to Stop the Rambling Witness A witness begins to answer the question with a long unresponsive answer. The lawyer can simply hold up his or her hand like a traffic officer's stop signal (we have all been psychologically conditioned). It sounds odd, but it is psychological body language at its best. Once the lawyer has silently interrupted, the witness will wait to see what will happen next. The safest way to get back on track is to remind the witness gently of where the lawyer is in the questioning and begin the next question: "Let me make sure we understand each other. My question is ..." 8. Eliminating Non-Responsive Answers Until You Get Desired Answer This approach is particularly valuable to teach the witness that it can be embarrassing - even humiliating -to be a runaway witness. It tells the witness: "We can do this the easy way or the hard way, but we will do it." The question is posed, and the witness gives a nonresponsive answer. The cross-examiner begins eliminating other possible factual variations. At some point during the process, the witness will offer to give the "yes" that was warranted by the original question asked. Do not let the witness off the hook. Continue with this technique until the witness insists on giving the response that you first requested. Q: My client's shirt was white? A: Well, I only saw it for a moment... (Minutes later the answer concludes without ever giving the color of the shirt.) 31

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Q: A:

The shirt was black? No.

Q: A:

The shirt was green? No.

Q: A:

The shirt was purple? No.

Q: A:

The shirt was yellow? No it was white. It was white.

Thank you.

The more undesirable the witness and willful nonresponsive the answer, the more outrageous the process of elimination. 9. The Witness Who Does Not Recall The "I do not recall" response is an effective defense mechanism for any evasive witness. It becomes a smoke screen of failed memory and blunts further inquiry. If counsel is not prepared to deal with this tactic, cross-examination will be stymied and the witness will leave the witness stand undamaged. First, you should recognize that a failure of memory on the part of a hostile witness is actually an opportunity to exploit. The witness should initially be neutralized by carefully exploring the scope of the absence of recollection. Demonstrate the witness's inability to testify on as broad a range of issues as possible. You may want to take the additional step of demonstrating the implications of the witness's failure to recollect for the jury: Q: Who was present at the drug buy of January 1, 2009? A:

I do not recall.

If you do not remember who was present at the meeting, then I take it that you can't contradict Mr. Thompson's testimony that my client was not present.

If the witness had no “I do not recall” answers for the prosecution, you may want to point that out to the jury if the witness appears to use that as a crutch to avoid questions posed by the cross examiner. Counsel should demonstrate that the witness's recall of contemporaneous events is unimpaired. The witness should be set up for this approach during background examination before asking about the key events. At that time, he will be unaware that you are actually pinning him down for later impeachment. Then demonstrate that the witness has a selective memory. Refer to his direct testimony or defensive reactions on cross to point out that he has no problem recalling information that is helpful to his side. If the forgotten facts are crucial to the resolution of the prosecution, then they probably would have been important to the witness at the time of their occurrence. Common experience indicates that people tend to remember such things. Therefore, you should highlight the importance of the events in questions to the witness. For example, you might show that someone in his position is actually responsible for remembering or at least making a record of such matters. The foundation for this type of examination can also be laid early in the examination during the background questioning, when you determine the witness' responsibilities and duties and the type of information necessary to carry out those duties. Such questions should be asked with little emphasis in an almost perfunctory fashion. Make the witness think the questions are purely routine, and thus conceal your purpose. 10. The Witness Who Asks For Definitions We have all experienced it many times. We ask the witness a question ("Have you ever conducted an identification procedure before?") and he asks us to define our terms ("That depends on what you mean by an identification procedure"). This type of response disrupts the flow of cross-examination and puts you on the defensive. Keep in mind that this is precisely what the witness is trying to do. He is seizing control, while gaining time to formulate a response. Undoubtedly, some problem will be found with your definition, which you were forced to come up with on the spur of the moment, and the witness will haggle with you over your definition. Then it looks as if you have failed to answer the question. The jury will not hold this delay against the witness, because it appears to them that he is 32

BURN THE STATE: CROSS EXAMINATION

merely trying to understand your question. Do not take the bait. If so, you will invariably appear to be unfair. Obviously, you have got to turn the tables quickly and decisively with this type of witness. There is a simple and effective technique available. It will not only allow you to regain control, and put the witness back on the defensive by forcing him to answer. It will also send an important psychological message. The witness will realize that you are skillful and experienced and that you will not relinquish control of the examination. Ask the witness to state their definition of the term, and then incorporate it into your question: Q: How would you define identification procedure Officer Smith? A: Well... a photospread, a physical lineup or a show up. Q:

Using your definition, have you ever performed an identification procedure?

This method has a positive impact on the jury. Besides demonstrating that you are in command, you demonstrate your fairness and objectivity through your willingness to use the witness's own definition. By allowing the insertion of a familiar definition, you have permitted the witness to anticipate in formulating the question. If he fails to answer, there will be little excuse for evading what is in effect his own question. 11. Be Alert for Qualifiers in the Answer: Eliminate Weasel Words Counsel should always eliminate unnecessary qualifiers from cross-examination questions. By the same token, one should never let the witness sneak them into their answers. Qualifiers inserted by the witness limit the answer you are seeking. Do not let the witness escape by using weasel words. If you ask the witness how fast he was driving and he answers that he was driving at a "moderate" rate of speed, do not let it go at that. You may be able to show that the witness is being deliberately evasive. More importantly, you should be certain that the testimony is clear, even if it is adverse, so that you can impeach the individual later. Pin the witness down. Ask for the definitions of any relative terms. The next logical question is simple: "What do you mean by 'moderate'?" and then follow up with 'Well, if 70 miles per hour is 'moderate', then what speed do you consider to be 'fast,' Mr. Jones?" . 12. Pointing Out Signs of Shifty or Evasive Demeanor A polygraph examination merely provides evidence of physiological factors that are believed to relate to truthfulness. A qualified examiner must interpret the results. The parameters measured, such as heart rate or skin response, are for the most part not ordinarily observable. In a way, the jury functions much like a polygraph, searching for observable clues to credibility, such as a shifty and evasive demeanor. Of course, squirming about in the witness chair may prove no more than that the witness becomes dreadfully self-conscious when everyone is staring. The jury's task of assessing credibility is far more complex when it evaluates testimony. During trial, if you want to put pressure on a nervous witness, you should consider focusing on certain physical factors in your questioning in order to note their existence in the record. This is one area where the "why" question may be appropriate. Ask the witness whether he/she is nervous; why he/she is sweating; why he/she will not look you in the eye; why he/she looks at the prosecutor before answering; or why he is taking long pauses before answering each question. You will notice that these are open-ended questions. There is some risk involved in asking them, because the response is likely to be very defensive and hostile. You should take this risk only where you have scored heavily and want to rattle the witness even further. A no risk question that can be posed to snitches and cooperating witnesses (not police officers) is to ask: "Is there something distinctive that you do... something we all can observe... when you are not being truthful?" The witness will invariably answer "no" at which time the predicate is established to argue that "we" (i.e. the jury) simply can't tell when and if he is lying and that it appears he is a seasoned liar. 13. Do Not Use the Word “Lie” or “Liar” in Cross Examination Generally, the cross examiner should avoid use the short, ugly words of “lie” or “liar”. Even though there is often ample provocation for such a direct statement, it is unwise to characterize the testimony of the witness as a “lie” or characterize the witness as a “liar”. Nothing is more resented by the jury than such a characterization by the attorney. Most of our cases are tried against the burden of proof or fall within the shades of gray. Rarely can testimony actually be labeled as a lie. Even then, it is not wise for the attorney to so characterize the witness. There is seldom a case where the versions are not contradictory. It is obvious that one side or the other is in error. Both cannot be right. It is far easier for the jury to rationalize contradictory testimony as a mistake in recollection or handicapped observation than to think that people testifying are deliberately lying. Sometimes, however, the lie is so utterly apparent that it must be exposed. Even then, counsel has a method available other than using those bitter words in the courtroom: i.e. make the witness call himself a “liar.” The cross examiner may consider writing each of the contradictory versions on a blow up and have the witness concede that both 33

BURN THE STATE: CROSS EXAMINATION

contradictory positions can not be truthful. Have the witness then concede that if only one is the truth the other must be “something else”. Ask the witness what that other “something else” is. The witness will generally say “untruth”, “error” or some other self serving term. Do not let the witness off the hook. The ask the witness if there is some other word that begins with the letter “l” that comes to mind. You will eventually get him to admit that one of the statements is a “lie.” Then ask the witness what term is used to describe people who tell lies. Make the witness spell the word “liar.” Then ask the witness if people who tell lies only do it only one time or repeatedly. Ask him also if people who tell lies are the type of people who would ever do so under oath. The list of entertaining questions is limited only by one’s imagination and good judgment. Counsel must know when to stop and that usually coincides with the precise moment in time that the point has been made. Anything further can be described as self aggrandizing. The jury can immediately go from disliking the witness to disliking the cross examiner. Further, the cross examiner should not use this tactic and this demeaning method of cross examination unless there is truly a black and white issue with no logical rationalization for the differing versions. Also, counsel should never use this approach on meaningless points. Ensure that the area where you have caught the witness in the lie is truly material and critical to the trial of the case. 14. Some Police Officers Need Correcting Most jurors tend to respect police officers and give them some aura of credibility. Thus, it is rarely effective cross examination to attack a law enforcement witness without provocation. However, some police officers are often evasive or become advocates. The following sampling of questions offers some ideas on how to combat those law enforcement witnesses: Q.

Do you have an interest in the outcome of this case?

You do realize that a witness who is interested in the outcome of the case is sometimes known as a biased witness?

Do you agree that it is proper in a trial that a witness be fair, honest and forthright with all persons in the case?

Do you recall answering the prosecutor’s questions?

You didn’t argue with him, did you?

You didn’t interrupt him, did you?

You’ve gone through police training to learn how to testify, haven’t you?

Why did you have to go through specialized training to learn to be truthful?

What did they teach you?

You, in fact, were taught to be an “effective advocate” for the state?

The idea was to teach you how to be a “convincing witness”, wasn’t it?

IX. CONCLUSION Cross-examination is unquestionably the most effective tool in a lawyer's arsenal. Along with the almost lost art of skillful oratory, it can still lead to victory in many cases. It remains, as Justice Holmes once wrote, "the greatest locomotive for the discovery of the truth." While cross-examination may be an art, effective cross-examination is possible for any lawyer willing to devote the hours necessary to achieve it. Some lawyers are naturally gifted. Others can achieve the same results, but have to do it with hard work and painstaking hours of preparation and thought. Always remember that the only thing that counts at the end of a trial is the information the jurors recall which controls their verdict. A jury's attention span is short. Sometimes a cross-examination needs to be extensive. This does not mean you cannot make it interesting. Find a way to tell your client's story through your opponent's witnesses. There is always more than one way to ask a question or to make a point. Any lawyer can ask it the boring way. The winning lawyers thoroughly plan and come up with a roadmap that has the most impact. Always remember that the purpose is not to impress your fellow lawyers or even your client with cutting 34

BURN THE STATE: CROSS EXAMINATION

remarks. We must only impress the jury. The jury will help those that they like. They favor lawyers who are respectful, well prepared and humble. Always be humble.

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: The Good, The Bad &The Ugly: Extraneous Acts Speaker: Anne Burnham 2507 NW 36th St San Antonio, TX 78228-3918 (210) 218-4355 Phone (210) 436-3413 Fax aburnham@stmarytx.edu Email

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

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Maintaining Your Territory Ethically Speaker: Nicole DeBorde Hochglaube 3515 Fannin St. Houston, TX 77004 (713) 526-6300 Phone (713) 808-9444 Fax Nicole@HoustonCriminalDefense.com Email www.debordelawfirm.com Website

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

Maintaining Your Territory Ethically

By: Nicole DeBorde Hochglaube & George Graves Hochglaube & DeBorde, PC nicole@debordelawfirm.com 713-526-3600

Ethical Marketing Texas Disciplinary Rules of Professional Conduct 7.01 states, in part: “A lawyer shall not make or sponsor a false or misleading communication about the qualifications or services of a lawyer or law firm... [a] communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. A statement is misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation, or if the statement is substantially likely to create unjustified expectations about the results the lawyer can achieve.” TX ST RPC Rule 7.01 Rule 7.01 applies to all communications made about a lawyer’s services, including advertisements and solicitation communications. Any statement “substantially motivated by pecuniary gain” made regarding a lawyer’s services falls within Rule 7.01’s purview. Further, misleading truthful statements are also prohibited under Rule 7.01. A communication that truthfully reports results obtained by a lawyer on behalf of former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without regard to the individualized facts or legal circumstances of each client’s case. (TX ST RPC Rule 7.01, Comment 2; Comment 5). The inclusion of a disclaimer or qualifying

language may preclude a finding that a statement is likely to mislead the public. (TX ST RPC Rule 7.01, Comment 5).

Regarding advertisements, Rule 7.02(b) states: “A lawyer who advertises may communicate that the lawyer does or does not practice in particular fields of law, but shall not include a statement that the lawyer has been certified or designated by an organization as possessing special competence or a statement that the lawyer is a member of an organization the name of which implies that its members possess special competence, except that: 1) a lawyer who has been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization in the area so advertised, may state with respect to each such area, “Board Certified, area of specialization---Texas Board of Legal Specialization”; and 2) a lawyer who is a member of an organization the name of which implies that its members possess special competence, or who has been certified or designated by an organization as possessing special competence in a field of practice may include a factually accurate, non-misleading statement of such membership or

certification, but only if that organization has been accredited by the Texas Board of Legal Specialization as a bona fide organization that admits to membership or grants certification only on the basis of published criteria which the Texas Board of Legal Specialization has established as required for such certification.”

TX ST RPC Rule 7.02 (b). Advertisements concerning a lawyer’s services that fall under Rule 7.02 (b) are subject to the “false and misleading” standard applied by Rule 7.01 and must be objectively based on the lawyer’s experience, specialized training, or education. (TX ST RPC Rule 7.02, Comment 3). Further, if a lawyer advertises themselves as a certified specialist in a specific area of law, the name of the certifying organization must be included in any communication regarding the certification. Rule 7.03(b) states: “A lawyer shall not solicit through in-person contact, or through regulated telephone, social media, or other electronic contact, professional employment from a non-client, unless the target of that solicitation is: 1) another lawyer;

2) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or 3) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters.

TX ST RPC Rule 7.03(b). Regular mail or e-mail targeted to a person that the lawyer knows or reasonably should know needs the advertised legal services is considered a solicitation within the meaning of 7.02(b)(2), but is not prohibited because, unlike telephone calls or social media, mail and email solicitations can be ignored, set aside, or reconsidered. (TX ST RPC Rule 7.03, Comment 6). Therefore, the risk of overreaching to a potential client is diminished. Shapero v. Kentucky B. Ass’n, 486 U.S. 466 (1998). Further, there is a substantially reduced likelihood that a lawyer would engage in overreaching against a former client or a person with whom the lawyer has a close personal, family business, or professional relationship. (TX ST RPC Rule 7.03, Comment 7). A lawyer may have a referral agreement to refer cases to another lawyer or non-lawyer professional as long as the client is informed of the existence, the nature of the reciprocal referral agreement is not exclusive, and the lawyer exercises independent professional judgment in making referrals. (TX ST RPC

Rule 7.03 (e)). Reciprocal referral agreements should not be indefinite and should be reviewed periodically to ensure compliance with disciplinary rules. (TX ST RPC Rule 7.03, Comment 16). When to seek approval After disseminating an advertisement for legal services, a lawyer must file to the Advertising Review Committee, within ten days, a copy of the advertisement, a completed lawyer advertising and solicitation communication application, and payment to the State Bar of Texas fee. (TX ST RPC Rule 7.04(a)). However, a lawyer may secure pre-approval of an advertisement or solicitation communication by submitting, not fewer than thirty days prior to the date of first dissemination, the specified materials in paragraph (a). Any finding of noncompliance by the Advertising Review Committee is not binding in a disciplinary proceeding or action through this preapproval process. (TX ST RPC Rule 7.04(c)). Further, while a lawyer or law firm’s entire website must be compliant with Rules 7.01 and 7.02, the only material subject to Rule 7.04 filing requirements is the contents of the homepage. (TX ST RPC Rule 7.05, Comment 2). What about social media? Where a lawyer’s social media page on Facebook, LinkedIn, Twitter, etc. is available to the public to the general public, the page is considered an

advertisement. Where access to the page is limited to personal friends or existing clients, filing with the Advertising Review Department is not required. Rule 7.07(e), sometimes referred to as a “tombstone advertisement”, exempts contact information, dates of admission to the bar, areas of practice, acceptance of credit cards, languages spoke, and other specified information from the filing requirements with the Advertising Review Committee. This information can be included in an advertisement, including a lawyer or law firm’s website, without the need to file with the Advertising Review Committee. Further, a lawyer’s blog or social media status updates that are education or informational in nature do not need to be filed with the Advertising Review Committee. However, the State Bar’s Interpretative Comment 17 warns lawyers to ensure that blog or social media posts do not meet the definition of an advertisement under the Texas Disciplinary Rules of Professional Conduct. Further, blogs or social media posts must comply with all Texas Disciplinary Rules of Professional Conduct, including maintaining client confidentiality (Rule 1.05), candor towards the tribunal (Rule 3.03), trial publicity (Rule 3.07), truthfulness in statements to others (Rule 4.01), and conduct involving dishonesty, fraud, deceit, or misrepresentations (Rule 8.04).

Reviews The Texas Disciplinary Rules of Professional Conduct do not prohibit a lawyer from encouraging current or former clients to leave positive review or ratings online. However, the lawyer cannot encourage the clients to make statements that are false, misleading, or unfounded. If the lawyer controls the content of the website or social media platform, the lawyer has an affirmative duty to monitor websites or social media platforms for false, misleading, or unfounded statements. If a lawyer becomes aware that a client posted a favorable review that is false, misleading, or unfounded, the lawyer should take reasonable steps to see that the statement is corrected or removed. (Professional Ethics Committee for the State Bar of Texas, Opinion #685, January 2020). Alternatively, the lawyer should consider making a curative comment on the website or social media platform. However, the lawyer must be careful not to breach the lawyer’s duty of confidentiality regarding client information in a curative response to a false or misleading review. (Professional Ethics Committee for the State Bar of Texas, Opinion #662, August 2016). If a former client leaves a negative online review of the lawyer, the lawyer “may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the Texas Disciplinary Rules of Professional Conduct.” (Professional Ethics Committee for the State Bar of Texas, Opinion #662, August 2016).

What about LinkedIn? In the context of LinkedIn, a user can prescreen recommendations before they’re posted on the lawyer’s profile for public view. Rule 7.02 prohibits comparisons to other lawyers’ services unless substantiated by objective and verifiable data. If a lawyer’s client submits a LinkedIn recommendation claiming that the lawyer is the “best lawyer in the county”, a revision before publication is required. Further, lawyers should not promise reciprocal positive reviews with another professional. For example, a lawyer should not promise their accountant a positive review in exchange for receiving a positive review from the accountant. Such a reciprocal positive review would be in violation of Rule 7.03(b).

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Sleeping with the Fishes: Office Ethics Speaker: David Moore 110 W Methvin St Longview, TX 75601-6307 (903) 758-2200 Phone (903) 758-7800 Fax dmoore@holmesmoore.com Email www.holmesmoore.com Website

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

HOW TO AVOID SLEEPING WITH THE FISHES Lessons from The Godfather Trilogy

Presented by David Earl Moore Holmes, Moore, Waldron, and Parrish 110 W. Methvin - Longview, Texas 75701 (903) 758-2200 (903) 758-7864 (fax)

TCDLA – RUSTY DUNCAN Advanced Criminal Law Course June 16-18, 2022 San Antonio, Texas

Sincere appreciation to Anne Burham for allowing me to pirate portions of her ethics paper and to my son Jacob for his help with the PowerPoint.

HOW TO AVOID SLEEPING WITH THE FISHES Ethic Lessons from The Godfather Trilogy We all love The Godfather trilogy (well, okay, at least “One” and “Two”). Francis Ford Coppola’s classic films delivered a mob story that remains etched in our psyche fifty years after the release of The Godfather. Brilliant acting and direction, a compelling storyline, and jam-packed with iconic scenes one after another, “One” and “Two” both remain on most critics and fans alike short lists of the greatest films ever. Most of us can recognize or even quote lines from these movies - quotes that still resonate a half century later. Many of those quotes from those great scenes stick with us because they are applicable to so much of our everyday lives, regardless of whether we are mobsters or lawyers. “Luca Brasi sleeps with the fishes” After Don Vito Corleone has been shot in an assassination attempt, his oldest son and next in line of succession, Sonny, has gathered with other members of the crime family to discuss the family’s response. With Don Vito hospitalized Sonny, Michael, the family consigliere Tom, and a handful of lieutenants sit around contemplating their next step. Notably missing from the group is Luca Brasi, the Corleone family enforcer and one of their most loyal lieutenants. As they are discussing their strengths and strategies, they ask amongst themselves the whereabouts of Brasi, when there is a knock on the door. A sentry ominously announces that there is a package that has been delivered to the front gate. Sonny dispatches Tessio to retrieve it, and a minute later he returns and hands the opened package to Sonny. As Sonny pulls back the wrapping, he sees a dead fish wrapped in a bullet-proof vest. Sonny at first doesn’t understand what he is looking at, but he is told that it is a Scicillian message that “Lucas Brasi sleeps with the fishes” – that the formidable family enforcer is dead, assassinated by their powerful rival. None of us want to get that knock on our door, that email, or certified letter that a grievance has been filed against us, or even worse that we are suspended or disbarred. Let’s look at some rocky ethics shoals that we can try to navigate so that our tickets to practice law don’t wind up the way of Luca Brasi. Let’s talk about how to avoid “sleeping with the fishes” with a little help from The Godfather trilogy. I. CONFIDENTIALITY The Rules: TDRPC Rule 1.05 and Texas R. Evid. 503 “Don’t ask me about my business Kate!” Michael Corleone to his wife Kate when she asks him whether he had his brother-in-law killed. The Godfather By far the most inviolable of rules of attorney ethics pertain to client confidentiality, and the attorney-client privilege. Both Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, and Texas Rule of Evidence 503 pertains to the Confidentiality of Information. Rule 1.05 defines confidential information to include both "privileged information" and 2

"unprivileged information." And Tex. R. Evid. 503(b) (2) creates a “special” rule in criminal cases whereby anything learned in the course of representation is privileged. The implications of the latter rule places great restriction on what the criminal defense attorney can disclose without breaching client confidential information. Importantly, the privilege attaches to clients who merely seek to employ an attorney, as well as those ultimately employ that attorney. Rule 1.05 provides: (a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client. (b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i)

A person that the client has instructed is not to receive the information; or

(ii)

Anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyers’ law firm.

(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations. (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known. (4) Use privileged information of a client for the advantage of the lawyer or of a third person unless the client consents after consultation. (c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation. 3

(2) When the client consents after consultation. (3) To the client, the client's representatives, or the members, associates, and employees of the lawyer's firm, except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer's associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act. (8) To the extent revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used. (9) To secure legal advice about the lawyer's compliance with these Rules. (10) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide. (d) A lawyer also may reveal unprivileged client information. (1) When impliedly authorized to do so in order to carry out the representation. (2) When the lawyer has reason to believe it is necessary to do so in order to: (i) Carry out the representation effectively; (ii) Defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct; 4

(iii) Respond to allegations in any proceeding concerning the lawyer's representation of the client; or (iv) Prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. (f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a) (2), 3.03(b), or by Rule 4.01(b). TDRPC 1.05. Tex. R. Evid. 503: As stated above, Texas Rule of Evidence also addresses the attorney-client privilege, and in Tex. R. Evid. 503(b) (2) establishes a "Special Rule in a Criminal Case," which broadens the scope of criminal client's privilege to "any other fact which came to the knowledge of the lawyer or the lawyer's representatives by reason of the attorney-client relationship." The latter essentially incorporates anything the attorney learns or obtains in the course of the representation. In complete form, Tex. R. Evid. 503 provides: (a) Definitions. In this rule: (1) A "client" is a person, public officer, or corporation, association, or other organization or entity--whether public or private--that: (A) Is rendered professional legal services by a lawyer; or (B) Consults a lawyer with a view to obtaining professional legal services from the lawyer.

(2) A "client's representative" is: (A) A person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or (B) Any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client. (3) A "lawyer" is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation. (4) A "lawyer's representative" is: (A) One employed by the lawyer to assist in the rendition of professional legal services; or (B) An accountant who is reasonably necessary for the lawyer's rendition of professional legal services. (5) A communication is "confidential" if not intended to be disclosed to third persons other than those: (A)

To whom disclosure is made to further the rendition of professional legal services to the client; or

(B)

Reasonably necessary to transmit the communication.

(b) Rules of Privilege. (1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client: (A) Between the client or the client's representative and the client's lawyer or the lawyer's representative; (C) Between the client's lawyer and the lawyer's representative; (D) By the client, the client's representative, the client's lawyer, or the lawyer's representative to a lawyer representing another party in a pending action or that lawyer's representative, if the communications concern a matter of common interest in the pending action;

(E) Between the client's representatives or between the client and the client's representative; or (F) Among lawyers and their representatives representing the same client. (2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer's representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship. (c) Who May Claim? The privilege may be claimed by: (1) The client; (2) The client's guardian or conservator; (3) A deceased client's personal representative; or (5) The successor, trustee, or similar representative of a corporation, association, or other organization or entity--whether or not in existence. The person who was the client's lawyer or the lawyer's representative when the communication was made may claim the privilege on the client's behalf--and is presumed to have authority to do so. (d) Exceptions. This privilege does not apply: (1) Furtherance of Crime or Fraud. If the lawyer's services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. (2) Claimants through Same Deceased Client. If the communication is relevant to an issue between parties claiming through the same deceased client. (3) Breach of Duty by a Lawyer or Client. If the communication is relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer. (4) Document Attested By a Lawyer. If the communication is relevant to an issue concerning an attested document to which the lawyer is an attesting witness. (5) Joint Clients. If the communication: (A) Is offered in an action between clients who retained or consulted a lawyer in common; 7

(B) Was made by any of the clients to the lawyer; and (C) Is relevant to a matter of common interest between the clients. TEX. R. EVID. Rule 503. The “Family” Issue - Does the client’s biological family have a right to know the specifics about the case or about the communications you have with their loved one? Or should those things remain within his “law family,” i.e., you and your office? “Never tell anybody outside of the family what you are thinking ever again!” Don Vito chastising Sonny for speaking out of turn to the rival family heads. The Godfather This is a simple answer. Look at Rule 1.05 (e) and (f). A lawyer shall not knowingly reveal confidential information of a client or a former client. You should deal with this issue in your in your first meeting with your client and/or their family. Make sure that your first meeting with the prospective client is private, just you and the client. You can bring the family in toward the end of your meeting. Take time to explain to them the attorney-client privilege and how it is there to protect their loved one (and them) from prying prosecutors. Explain how the privilege can be lost or inadvertently waived by failing to protect it. Explain to them that your conversations must be private to be covered. Most clients, and their families, will understand, and even thank you for looking out for them. The last thing that a client will want is to have to disclose his or her conversations with you to a judge or jury. Similarly, the family members will not want to put themselves in a position where they may have to testify against their loved one about something that has been disclosed to them. Take the time and explain why the confidential information needs to stay with their loved one and his “law family,” you and your staff. The Non-Client Payor Issue: Similarly, does the person who pays the fee have a right to know? See above. Just like family, the person who is footing the bill doesn’t have a right to know the client’s confidences. Explain to this person, from the beginning of your conversations with them, the limitations that will be placed on their role. See also Rule 1.08 which prohibits us from taking compensation from someone other than the client on the client’s behalf unless the client consents to the transaction, there is no interference with the lawyer’s independence of professional judgment or with the attorney-client relationship, and the client confidentiality is protected as required by Rule 1.05. Confidentiality Dilemma: When can or must you reveal confidential client information? Lawyers have been required to reveal information pursuant to Rule 1.05 (d)(1), to prevent a crime or fraud, if the lawyer’s services were obtained or sought to enable or aid anyone to 8

commit what the client knew or should have known was a crime or fraud. Many scenarios involving the crime fraud exception are intuitive, but Ethics Opinion 473 hits close to home in that it requires the court-appointed attorney of an indigent client to disclose to the court: 1) if “the defendant is not in fact indigent and could pay for retained counsel,” and/or 2) if the defendant is unemployed at the time counsel is appointed and subsequently during the time of the criminal case obtains employment that would enable him to pay for retained counsel. In both scenarios, the committee opined both Rule 3.03 and 1.05 requires these disclosures so “to avoid assisting a criminal or fraudulent act.” THE PROF’L ETHICS COMM. FOR THE STATE BAR OF TEXAS, Ethics Opinion 473 (1991). Recently, three significant amendments to the Rules of Professional Responsibility added to disclosure requirements. The first, 1.05(c)(10) (10) requires disclosure “[w]hen the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide.” Sadly, many of us have had clients whose circumstances have led them to dark places where this concern has been very real. In those instances, the duty to preserve life outweighs the client’s assertion of the privilege. The second and third amendments work together to allow counsel to seek advice on ethics and how the Rules of Professional Responsibility apply to their cases: The addition of 105(c)(9) requires disclosure “[t]o secure legal advice about the lawyer's compliance with these Rules;” and the newly added 105(c)(23) states “[a] lawyer's confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer's responsibility to comply with these Rules. In most situations, disclosing or using confidential information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure or use is not impliedly authorized, subparagraph (c)(9) allows such disclosure or use because of the importance of a lawyer's compliance with these Rules.” Thus, now counsel is authorized to make necessary disclosures to ethics hotlines, and when seeking ethical opinions. Issues regarding billing: How much detail can you put in billing to pay your court appointed fees? Can you provide an itemized statement regarding the work you have done for the court appointed client which includes subject matter, particular records reviewed, details regarding legal research, etc.? The answer is no, you cannot divulge particularized information because that is privileged. General descriptions of the services performed are allowed, but detailed itemization is prohibited. Opinion 599, Supreme Court of Texas Professional Ethics Committee (July 2005). Issue related to enforce a claim/defense: Can you reveal confidential information either to enforce a claim you have against your client or to establish a defense you have to a client’s claim against you? Yes, you may reveal confidential information to collect your debt if five conditions are met. Opinion 652, Supreme Court of Texas Professional Ethics Committee (January 2016). First, 9

your representation must have concluded. Second, the fee must not be unconscionable. Third, counsel should have exhausted all other reasonable avenues. Fourth, counsel must retain control over the collection agent and the process. Fifth, you can only reveal the minimum amount of information necessary to collect the debt. Similarly, you can reveal privileged information to defend yourself against claims made against you by the client. However, here again, you must restrain the amount of privilege information that you reveal to the minimum amount necessary to establish your defense. The independent contractor issue: Can you send material to an independent contractor privileged information, such as a copy or transcription service without the express consent of the client? Yes. Unless the client has specifically told you otherwise, you can farm out privileged information to independent contractors such as copying or transcription service providers. Opinion 572, Supreme Court of Texas Professional Ethics Committee (June 2006). However, you should do your due diligence to investigate the outsourced company’s policy of confidentiality and proceed only if you reasonably believe based upon your investigation that the company in question will respect the confidential nature of the items they are sent. The discussion with fellow lawyers issue: Can you seek advice about your client from fellow lawyers in private or group discussions? Yes. Unless the client has expressly forbidden you from doing so, you can consult with other lawyers about your cases either in online groups, in-person meetings or otherwise. However, you must honor your duty of confidentiality. THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS, Ethics, Opinion 673, (August 2018). However, to the extent possible, you should limit the inquiry to general or abstract inquiries so as not to disclose confidential privilege information. If the abstract inquiry will risk that the responding lawyer will match any political to specific persons, or if there is a risk that it could cause harm, embarrass, or prejudice your client, you should refrain. Also, it is necessary to reveal confidential privileged information, you may not do so without the client’s express, informed consent. You should be sure that the responding lawyer has agreed to maintain the confidentiality of the consultation. And, if you are the lawyer who is being consulted, you should take the steps to avoid providing information that could impair your obligations to your clients. II. DEALING WITH THE DIFFICULT CLIENT Don Corleone – “Why do you come to me? Why do I deserve this generosity?” The Turk – “If you consider a million dollars cash just finance, ‘tu salute’ Don Corleone.” (raising his glass) Don Corleone – “I said I would meet with you because I heard you were a serious man, to be treated with respect. But, uh, I must say no to you, and I will give you, my reasons.” 10

Don Vito Corleone meeting with Sollozo, “The Turk,” at Sollozo’s request to discuss a possible drug business venture. The Godfather A. How do we avoid getting there in the first place? Like Don Corleone above, sometimes you need to avoid problems by just saying no from the start. How do you identify the problem client, hopefully before it’s too late? You have to start at the outset, at your initial screening and intake. Try to learn what you can about the case before the client ever arrives. Have your legal assistant get any news reports, probable cause affidavits, search warrant affidavits, docket entries, etc. that they can after the appointment is made. Often the news reports are based on police information. Those coupled with PC affidavits can give you part of the State’s version to let you know how serious the accusations are. That information can also serve as a backdrop to give you an idea if your client is shooting straight with you and whether or not they are minimizing aspects of the case in an effort to keep your fee suppressed. In the initial meeting if not beforehand, you should always begin by ascertaining how old the case is, what the status is, and whether or not the client has had previous counsel. If you are Bachelorette or Bachelor Number Two in this dating game, you need to ascertain what the problem was between the client and their previous lawyer (s). Listen, listen, listen. It is the only way that you will identify early on the potential problem clients. Are they angry when they come in? Are they pushy? Control freaks? Unrealistic about their circumstance? As you are listening, be sure to correct up front any misunderstandings they have to misrepresentations they make about the law. For your part, you should do the best that you can to set or adjust their expectations. The wisdom of under promising and over performing has never been truer than in our profession. Don’t tell them what they want to hear just to get hired because I promise you will regret it in the long term. Whenever they ask you for guarantees or promises, do not get sucked into that vortex because you will have a hard time escaping it. If they tell you that Lawyer B down the street made them a promise about what they would get in return for their money if they hired him/her, tell them they should leave your office then and go hire him/her. Identify the problem clients and don’t be afraid to say no. Or at least get your fee accordingly if you decide to get onboard. The other thing you should always try to do is control any potential client’s expectations regarding access to you. If you are busy and hard to get a hold of, tell them that upfront so they won’t hold it against you later if you don’t call them back within the hour. Likewise, always introduce them to your staff or anyone else that may touch their file and extoll the capabilities of that employee. Encourage the potential new client to reach out to one of your 11

staff if you are not immediately available and assure them that they will be taken care of by them. B. When you smell smoke, try to put out the fire. “I hoped we could come here and reason together. And as a reasonable man, I’m willing to do whatever is necessary to find a peaceful solution to the problems.” Don Vito Corleone to the heads of the five families. The Godfather So now you are on board and things seem to be going south. Do not ignore the problem and hope it goes away! Try to connect with the disgruntled client. Get them in and spend time with them. Let them talk, most of them just want to be heard. Try to be accommodating. Deescalate the situation by using phrases like “I hear you” or “I understand where you are coming from.” A great one is “You may be right.” Turn down the heat. But, don’t promise them things that you will not deliver. Do not tell them that you are going to take some action or do something tomorrow unless you know for a fact that you will. After that, put in a little extra work. If you call them or go see them on a weekend, or after hours, or better yet on a holiday, then they will know that you care about them and their case. C. So, what if things continue to get worse? Try to recognize this as early as possible. If the client is going to obviously be an ongoing, perhaps growing problem, make up your mind EARLY whether or not you want to try to hang on and possibly ride it into the ground or punch out. If you have a threatening client, one who says things like “you are going to regret it if. . .” or maybe one who is openly talking about grieving you, get out! Likewise, if they are mistreating your staff, do not put up with that just to try to hang on to a fee. Be sure that your staff knows to tell you when this is going on and don’t tolerate it ever! D. The Motion to Withdraw “It’s not personal Sonny. It’s strictly business.” Michael Corleone to Sonny. The Godfather These fall into two categories – those cases where the client wants to replace you with someone else, the client wants to fire you, and those where you are trying to fire the client. The procedures on withdrawing are found in Rule 1.15: (A) A lawyer shall decline to represent a client or, where representation has commenced, shall withdraw, except as stated in paragraph (C), from the representation of a client, if: 12

1. The representation will result in violation of Rule 3.08, other applicable rules of professional conduct or other law; 2. The lawyer’s physical, mental, or psychological condition materially impairs the lawyer’s fitness to represent the client; or 3. The lawyer is discharged, with or without good cause. (B) Except as required by paragraph (a), a lawyer shall not withdraw from representing a client unless: 1.

Withdrawal can be accomplished without material adverse effect on the interests of the client;

The client persists in a course of action involving the lawyer’s services that the law reasonable believes may be criminal or fraudulent;

The client has used the lawyer’s services to perpetrate a crime or fraud;

A client insists upon pursing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement;

The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services, including an obligation to pay the lawyer’s fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

The representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

Other good cause for withdrawal exists.

Here, you need to realize that a judge is much more likely to turn you loose if you are early on in the process. There is a plethora of reported cases where the lawyer waits until the 11th hour to try to withdraw and the Courts have been upheld on appeal in their denial of the motion. In filing your motion to withdraw and presenting it, you also need to be aware that you may still be bound by ethical considerations as they relate to the attorney client privilege. Be sure to read In re Reed, 2018 Tex. App. Lexis 2998 | 2018 WL 1974470, (Tex. App. – Fort Worth 2018, no pet.) and Sims v. Sims, 623 S.W. 3d 47, (Tex. App. – El Paso 2021). In those cases, the Courts of Appeals stated that the lawyers who were trying to withdraw were correct in their assertions that Rule 1.05 prohibited them from disclosing privileged information in support of their motions. In situations where you are trying to withdraw, it is important that you maintain your credibility with the court that you are in front of. Don’t get in the habit of trying to withdraw on the smaller issues. In The Godfather Part II, Michael talks about fellow mob boss Hyman 13

Roth’s propensity to always exaggerate about his poor health commenting derisively, “He’s been dying of the same heart attack for the last twenty years.” Do not get that Hyman Roth reputation with the judges that you practice in front of. Zealously guard your reputation, credibility, and image with the judges so that they know that you wouldn’t be filing to withdraw unless it was absolutely necessary.

E. The Judge grants your Motion to Withdraw “Don’t ever take sides against anyone outside of the family again. Ever!” Michael Corleone chastising his brother, Fredo for taking sides with Mo Green against the Corleone Family interest. The Godfather I’m out! Now what? Rule 1.15 (d) states: D.

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property which to the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law only if such retention will not prejudice the client in the subject matter of the representation.

You are not free to take sides at this point against the client. You still are bound by confidentiality considerations. You have any ongoing duty to protect the client’s interest. You should be gracious and help the client’s new lawyer to the degree that you can. If the new lawyer wants the file, give it to him but make sure that you have written consent from the client to do so first. Also, promptly turn over to the client the things in their file which you are allowed to. Opinion 657, Supreme Court of Texas Professional Ethics Committee (May 2016). In that regard, the client is not entitled to anything produced by the State under 39.14 (a)(f). The client bears the expense of any delivery or shipment of the file outside of your office. They may designate a third party to receive it, but the restrictions of 39.14 apply to this circumstance as well. If they want to designate a third party, you should warn them that the file contains privileged information and that they are potentially waiving these privileges by doing so. If they persist, have them sign an acknowledgement that they understand this and that they want you to forward it anyway. If you want to retain a copy of the file, you have to bear the cost of doing so. The format of the file must be reasonably accessible for the client, and the lawyer must absorb the costs of converting it if necessary to make it accessible. Lastly, if there is anything that is unique in form that is in the file which was acquired from the client, it must be returned without alteration. Some lawyers, when asked for the file, will purge their notes claiming that it is their “work product.” You cannot do this! There is no “work product privilege that allows the lawyer to 14

remove their notes from the file before turning the file over to the client. THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS, Ethics Opinion 570 (2006). F. Please come back! “Just when I thought I was out, they pull me back in.” Michael Corleone The Godfather Part III If you have practiced very long, you have no doubt run into the penitent former client that you previously withdrew on who is now in your office promising to do better and offering to pay up front. Don’t do it! Proverbs 26:11 – “As a dog returns to his vomit, so does a fool to his folly.” G. Overruled! I’m Stuck, Now What? “Never hate your enemies – it affects your judgment.” Michael Corleone to Vincent who is lobbying to kill competitor boss Joey Zasa. The Godfather Part III “My father taught me many things . . . Keep your friends close, but your enemies closer.” Michael Corleone explaining his revenge plot to Frankie Pentangeli. The Godfather Part II So, the judge has overruled your motion to withdraw, where do you go from here. Rule 1.15 (C) clearly states as follows: (d) When ordered to do so by a tribunal, a lawyer shall continue representation not withstanding good cause for terminating representation. Consider whether there is a ground for reconsideration or possibly a mandamus action. Absent that, soldier on and protect your client, and yourself, while doing so. Be a professional! Be sure to build the file for the grievance that is coming. Have staff or your investigator attend meetings with you and the client. Document profusely your conversations and actions to your file. If you can safely do so by making sure that it is for the client’s eyes only, you should send the client written memorandums about what you have talked about. If that is not possible, consider having them read the written memorandum the next time you meet, sign it, and then keep it in your file. Consider whether you should record conversations with your client. Always assume that they are recording you and do not let false statements by them go unchallenged.

Redouble your efforts for the client and your communications. While there are circumstances recognized by the rules which would justify delaying or withholding communications to clients, try to give them all the information you can in a timely fashion. Remember you should always relay to the client proffered plea offers and fully explain the offer and its ramifications. While I know the rules offer an exception when the client has categorically told you unequivocally that they will not field any offers, in my opinion you are still better off attempting to relay those offers and discuss them. Begin the discussion with those clients by telling them that you understand that they probably won’t be interested but that our rules require you to advise them of the offer. If they refuse offers, or refuse to even entertain them, have the client sign a note to your file saying so. If they refuse to do that, try to have someone from your team with you when the information is given to them. Document your file. Even in these dark hours of our job, do not speak poorly of your client. Don’t make comments about them to anyone, especially to prosecutors or judges. II.

MAKE YOUR STAFF “REALLY GOOD”

“Now listen, I want somebody good, and I mean really good, to plant that gun. I don’t want my brother coming out of that toilet with his d k in his hands. Alright?” Sonny to Clemenza and Tom when discussing the importance of having only their best and most reliable people planting a gun in the restaurant bathroom that Michael will use to kill a rival crime boss and a dirty cop. The Godfather You can be an excellent lawyer, and a poor staff can make your practice a nightmare. Conversely, you can be an average lawyer, and an exceptional staff can make your office seem like a first-tier outfit compared to others. A. Duty to train We are required to train our employees regarding our ethical obligations. Furthermore, we can be held personally responsible and disciplined if our staff violates any of the rules. Rule 5.03 states: With respect to a non-lawyer employee or retained by or associated with a lawyer: (a) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (b) A lawyer shall be subject to discipline for the conduct of such a person that would be a violation of these rules if engaged in by a lawyer if: 1. The lawyer orders, encourages, or permits the conduct involved; or 16

2. The lawyer: (i) Is a partner if the law firm in which the person is employed, retained by, or associated with; or is the general counsel of a government agency’s legal department in which the person is employed, retained by, or associated with; or has direct supervisory authority over such person; and (ii) With knowledge of such misconduct by the nonlawyer knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of that person’s misconduct. Your paralegals, legal assistants, legal secretary, or anyone who works in your office must follow the Bar rules. Try to encourage them to actively participate in associations that provide training. Consider paying for all their costs for both their membership dues as well as yearly training. Furthermore, you should make a point to forward to them and discuss with them any ethics opinions that come out as well as any pertinent caselaw that affects your ethical obligations. Make sure that your staff also understand the rules related to any other areas that might fall within their duties such as Compliance with 38.14 and the limitations on what the client can access. The bottom line is, your staff is an extension of you and you are responsible for ensuring that everyone in your office is complying with the ethics rules. B. Confidentiality. Keep it in the law firm family. “Never tell anybody outside of the family what you’re thinking ever again.” Don Vito Corleone chastising Sonny for speaking out of turn to others in a meeting with “The Turk.” The Godfather As we discussed earlier, confidentiality is one of the linchpins of the attorney-client relationship. Your staff needs to have the obligations of confidentiality drilled into the consciousness over and over again. They need to be trained that it is a cardinal sin to talk about clients outside of the office. That means they should never speak of what happens in the office to anyone – not their spouse, not their friends, not their parents, not their dog . . . Nobody! That secrecy and confidentiality is a core tenant in our law offices, and your employees need to understand that fact along every step of their journey with you. You should have new employees sign a nondisclosure/confidentiality agreement when they begin at your office. Additionally, your employee handbook should have an entire section devoted to the topic of maintaining the confidential nature of the practice. When that employment ends, if possible have them sign an exit letter reaffirming their ongoing duty of confidentiality. If they are fired and/or refuse to sign an exit letter, send them a certified letter setting forth the same. Should you become aware that an employee has violated any ethical obligation, you should immediately take corrective action against the employee and remedial action to mitigate damages to your client. You should notify your client of the breech. 17

What happens where a former employee files for unemployment or sues you? You again have an ongoing duty to protect the confidences of your clients. If that litigation has any reference to a client, you should move to strike that information from the record and move for a protective order as to any confidential client information. Also, the client should be notified in that situation because they can also take personal action to enforce their attorney-client privilege in the litigation. III.

SELF PRESERVATION

“This is the business we have chosen” Hyman Roth to Michael Corleone. The Godfather Part II Hyman Roth was right; they all chose to be in a rough business. But so have we. It’s amazing how for a bunch of guys who didn’t bat an eye at wreaking murder and mayhem, the characters in The Godfather trilogy spewed forth some memorable lines about the things in life that really matter. A. Take Care of Yourself “Good health is the most important thing. More than success, more than money, more than power.” Hyman Roth to Michael Corleone. The Godfather Part II Lord knows, our profession is a health wrecker. While it’s certainly true that, unlike the mobsters in the trilogy, we are not worrying daily about whose hit list we may be on, we nevertheless live in a stressful environment that takes its toll on our physical well-being, our mental and emotional health, and our relationships with loved ones. Take time out from your practice to tend to yourself. Find ways to decompress, to get exercise, and to get rest. If you think that you need help, reach out to someone. TCDLA and the State Bar have excellent resources to help you. B. Spend Time With Your Family “A man who doesn’t spend time with his family can never be a real man.” Don Vito Corleone to Johnny Fontane. The Godfather If there is anyone who suffers as much or more than we do from the toll of our profession, it’s our families. Take care of your loved ones. C. Keep Your Priorities Straight “Leave the gun, take the cannoli.” Corleone lieutenant Peter Clemenza to fellow lieutenant Rocco after killing family traitor Paulie. The Godfather

One of my personal favorites. The setting from this scene is that loyal Corleone lieutenant Clemenza has been instructed to kill Paulie, the traitor who allowed the assassination attempt on Don Vito. As the unsuspecting Paulie gets behind the wheel of the car with Clemenza in the passenger seat and Rocco in the back, Clemenza’s wife comes out of the house and hollers at Clemenza to be sure to bring home a cannoli. Later as the trio are parked on a rural roadside and Clemenza gets out to take a bathroom break, Rocco dispatches the traitor Paulie with a gunshot to the back of the head. Clemenza walks back to the vehicle and tells Rocco to leave the gun, but don’t forget to grab the cannoli from the seat. A couple of things here. First, tend to your family’s requests to you as priorities. It would be easy with the distractions and demands of our often grueling, sometimes unsavory work to forget to do things for those close to us. Second, once the job is done, separate yourself from it and take time to reward yourself and your family before picking up the next file. Don’t forget the cannoli!

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Speaking as a Boss: Public Speaking & Presentations Speaker: Paul Tu 200 South 10th Street Richmond, TX 77469 (713) 774-2800 Phone (713) 774-2808 Fax paul@atblawfirm.com Email paul@atblawfirm.com Website

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

Public Speaking & Client Relationships

PAUL TU, Richmond Arrington Tu & Burnett

ADVERTISING OR SOLICITATION An “advertisement” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters.1 A “solicitation communication” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to a specific person who has not sought the lawyer’s advice or services, which reasonably can be understood as offering to provide legal services that the lawyer knows or reasonably should know the person needs in a particular matter.2 The two definitions by the Texas Disciplinary Rules of Profession Conduct are very similar but turn on who the communication is directed and whether the lawyer’s advice or services are sought. An advertisement is communicated to the general public and a solicitation is directed at a specific person, and furthermore, the specific person did not seek the attorney’s advice or services. Based on this distinction, I believe any social media posts, such as Facebook or Instagram falls under the definition of advertisement. These communications are sent generally to the users’ social network or general public via the media platform. However, text message to individual cellular phone by its nature is a communication to a specific person. The State Bar of Texas Committee on Professional Ethics has not published an opinion on this specific form of communication. However, Comment 10 of Rule 7.03 does require text message or messages on social media to include “ADVERTISEMENT” as the first word in the message.3 In my opinion, text messages are a solicitation or prohibited communication and therefore should not be used in any lawyer’s marketing strategy. CONTRACTS IN GENERAL Generally, a contract should be a legally binding agreement entered into providing for an exchange of defined performances. The structure and language of the contract should state plainly and simply to what each party is agreeing. Courts are now encouraging the use of plain language in a contract. However, the language used in the contract by its plain meaning should create sufficient legal effect to bind all parties to its terms and cover any reasonably foreseeable circumstance that might frustrate the execution of the contract by any party. The following is a review of an employment contract for legal services used by the law firm of Arrington, Tu & Burnett. L.L.P TITLE AND PREAMBLE The Title should accurately describe the substance and overall goal of the contract. Here the title is simply “Employment Contract for Legal Services in State of Texas vs. Client’s name.” A more detailed statement as to the specific services that will be rendered will be outlined later on in the contract. The Preamble specifically identifies the parties and what service is going to be provided. In this contract the client is identified by name. If a third party is paying the legal fees associated with your representation, this is a good opportunity to remind them of your ethical duties to the client and not the

Tex. Disciplinary R. Prof. Conduct, Rule 7.01(b)(1) Tex. Disciplinary R. Prof. Conduct, Rule 7.01(b)(2) 3 Tex. Disciplinary R. Prof. Conduct, Rule 7.03. 2

third party.4 The preamble goes on to describe the Cause Number of the case, the county in which the case is pending, and the title of the offense. 5 This is important, especially for clients that maybe enhanced to higher criminal charges or new allegations after being released on bond. Some clients may believe that their new charges are covered by the original contract. The attorney always has the option to incorporate any new charges the client incurs, additional charges stemming from the same incident, or an upgrade in the level of offense into a new contract encompassing these changes. If executing a new contract, describing all the cases to be covered, incorporating a merger clause, and stating the new fee agreement is recommended. DISCLAIMER It should be conveyed to the Client that the court system is adversarial, and no promises or guarantees can be made about any particular outcome. In the case of the example contract, this is accomplished by informing the Client that, “We cannot guarantee any expected outcome or conclusion due to numerous and complicated factors which are beyond our control.” FEE AGREEMENT The Fee Agreement section will usually make up the bulk of the contract and will contain much more specific language than other areas of the contract. This is necessary to ensure that the Client fully understands how much they are paying in the fee, how that fee is earned, and avoid any disputes over either of those aspects in the future. Attorneys have a lot of latitude in how their fees are structured. The American Bar Association’s Model Code of Professional Responsibility provides guidelines for determining a reasonable fee. 6 While the ABA has focused on the reasonableness of the fee, the mechanism of how that fee is collected has been largely left up to the individual attorney. This contract states that the fee contemplates the attorney’s investigation into the facts and laws pertaining to this case and attempts at resolving the case without the necessity of a trial. How an attorney structures their fee is up to the attorney. Whether the fee be flat, hourly, or contingent, this should be clearly stated in the Fee Agreement clause. The example contract incorporates a fixed or flat fee structure. This contract specifically sets forth for the client how the legal fee is earned. In this particular agreement 50% of the total fee is earned at the signing of the contract and communication with the attorney for the government. This communication can include filing a Notice of Appearance with the Court and prosecutor’s office or even a phone call or email to the attorney. Another 25% of the total fee is earned upon the first court appearance. The final 25% of the fee is earned when the prosecution’s offer is either accepted or rejected by the client. If the Client accepts the offer from the prosecution, the case is disposed and the entire fee is earned. If the Client rejects the prosecution’s offer, the case will proceed to trial.7 In any case, 100% of the fee will be earned upon a dismissal or rejection of the allegations against the Client. While the attorney is free to negotiate any reasonable fee arrangement within the bounds of ethics and the law, a policy of at least one half the fee is the best recommended practice. Should the attorney negotiate for some other fee arrangement such as barter or trade, each item should be expressly listed with a reasonable descriptor such as make, model, serial number, condition, and assigned a value agreed

Tex. Disciplinary R. Prof. Conduct, Rule 1.06 It is also recommended that the level of offense be included in the case description. Driving While Intoxicated can take on several levels of offense depending on the circumstances of the case. 6 Model Code of Professional Responsibility DR 2-106 (1981). 7 Trial fees are not included in the original contract. 5

to by the attorney and the Client. 8 This will avoid confusion later should the attorney withdraw or be discharged by the Client. In that instance the contract should include the mechanism for returning any unearned fee in the item. 9 TRIAL FEE The Trial Fee clause expressly informs the client that should the Client fail to accept the plea bargain of the District Attorney’s Office and the Client’s case is set for trial, the Client will be required to pay an additional advanced fee for trial and trial preparation which will be determined based upon the type of trial the Client requests. This is to clearly and expressly let the Client know that this contract does not include a trial fee. Again, the attorney is free to negotiate the method in which they collect any reasonable fee. However, due to the time and attention required to prepare for a trial it is recommended that the trial fee be paid in full 30 days after the case is placed on the court’s trial docket. The example contract here outlines how the trial fee is earned. 50% of the trail fee is earned upon the date that the case reaches its first reset on the trial docket. The other 50% of the fee is earned upon commencement of the trial. The contract goes onto define what constitutes commencement of the trial; start of jury selection, swearing of the first witness, or the start of argument in motions preceding trail. This section also explains that appeals and retrials are not included in the trial fee. The trial fee should be detailed in a separate contract. ADMINISTRATIVE DRIVER’S LICENSE SUSPENSION Unique to the criminal charge of DWI is that a driver’s license suspension proceeding can accompany it. In the example DWI contract here, the quoted fee includes the driver’s license suspension hearing. However, the contract expressly states that any appeals of the administrative law judge’s decision are not included in the quoted fee. EXPENSES The expenses clause simply informs the Client of additional expenses that are not covered by the contract. These additional expenses can cover everything from fax, copies, travel expenses, and postage to lodging, fines, polygraph, and medical examinations. It is up to the individual attorney to decide what expenses are covered by the fee and which ones the client will be billed directly to Client. The list does not have to be exhaustive, but robust enough to include reasonably expected expenses, and when available the cost of those expenses up front. POWER OF ATTORNEY The Power of Attorney clause is the heart of the employment contract for legal services. This clause should state simply that the Client authorizes and empowers the attorney to take the reasonably necessary steps to resolve the case. This allows the attorney to negotiate with the state on behalf of the Client.

FEES NOT COVERED This section expressly covers fees that are not covered by this contract that the client may incur. These fees can include: motions subsequent to the entry of a plea in the case; motions to adjudicate, revoke, or modify probation conditions; petitions for expunction or non-disclosure; appeals or retrials of the case; 8

Even if the item is kept as collateral, it should be expressly itemized, sufficiently described, and given an agreed value. 9 The contract should include whether the Client is returned the item or the monetary equivalent of the unearned fee.

or any other proceeding, motion or action not specifically identified by or covered by this contract. It is up to the individual attorney to include or exclude any of these services in the original contract. However, whether an attorney wishes to include or exclude any service covered by the contract, it should be explained explicitly in writing to the Client. If these services are specifically excluded, it is recommended that a separate contract be drawn up for those services. OCCUPATIONAL DRIVER’S LICENSE Because of the potential of a driver’s license suspension hearing with a DWI charge, this contract also has a provision that covers the Occupational Driver’s License hearing. This section advises the client that they have the option to obtain an Occupational Driver’s License after a suspension decision by the SOAH. The Occupational Driver’s License fee is not included in the original contract. The Occupational Driver’s License should be a in a separate contract or be made as an amendment to the original contact. CONCLUSION It is important for an attorney to have a contract for employment that expressly and plainly sets out exactly what the client is hiring the attorney for and contain sufficient language to protect both the attorney and client from any confusion or misinterpretation. This language does not necessarily need to be legally formalistic but does need to be specific enough to preclude differing interpretations.

200 SOUTH TENTH STREET RICHMOND, TX 77469

TEL: (713) 774-2800 FAX : (713) 774-2808

ATTORNEY-CLIENT COMMUNICATION: THIS DOCUMENT AND ITS CONTENTS CONSTITUTE LEGALLY PRIVILEGED INFORMATION

May 20, 2022 Pappy Van Winkle 123 Weller Way Buffalo Trace, TX

RE: EMPLOYMENT CONTRACT FOR LEGAL SERVICES IN STATE OF TEXAS VS. PAPPY VAN WINKLE Dear Mr. Van Winkle: This letter is to describe the terms and conditions under which Arrington, Tu & Burnett, hereafter referred to as the Firm, is offering to represent Pappy Van Winkle hereafter referred to as Client, in connection with the following: •

Arrest of Pappy Van Winkle for the alleged offense of Driving While Intoxicated >.15 BAC in Weller County, Texas, Cause # 21-CCR-123456.

•

Suspension of Pappy Van Winkle’s Driver License because of the arrest or refusal to provide breath/blood sample on or about July 4, 2021.

This letter is a legal contract, and the terms and conditions of our agreement are described in some detail. This letter not only establishes the terms of our contract with you, but it will also help to prevent any misunderstandings. When you sign and return a copy of this letter, you are agreeing to the terms and conditions of representation which are described in this letter. We cannot guarantee any expected outcome or conclusion due to numerous and complicated factors which are beyond our control. We make no express warranties concerning this transaction, and hereby expressly disclaim any implied warranties concerning it. It is expressly understood and agreed that no other representations have been made to you except those set out in this letter. Client agrees to keep our office apprised of your home and cellular phone numbers and email address so that we can communicate with you during the day or evening hours. You agree to

promptly inform us of all changes in your contact information as soon as such changes occur. You agree to attend all court dates, court hearing, and other official appearances in connection with this matter. You further agree to immediately inform the Firm of any event that will prevent you from attending scheduled court dates or appearances. The Firm will represent Client by investigating the law and facts, by preparing for all hearings, negotiating with attorney for the Government, and preparing for trial if necessary. If the matter requires negotiation, the Firm will negotiate with the prosecutor's office on your behalf. We will not accept a plea bargain without your approval. Do not communicate with any of the alleged victims, witnesses or attorneys in the case without our involvement. The Firm and Client have agreed upon a fee of $100,000 for the representation of Pappy Van Winkle for the alleged offense of Driving While Intoxicated. Client understands that the funds shall be deposited into the Firm’s trust account. 50% of the total fee will be moved into the Firm’s operating account upon signing this contract and the Firm’s first communication with the attorney for the government. An additional 25% of the fee will be moved into the Firm operating account upon the first court appearance, and the final 25% of the total fee will be earned and moved onto the operating account upon Client either accepting or reject the prosecutor’s final offer. 100% of the fee is earned by the Firm upon dismissal, rejection or No Bill of the allegations against Client. If the final offer is reject and the court set a trial date, then 100% of the trial fee is to be paid and deposited into the Firm’s operating account after filing of any pre-trial motions or 30 days from the date the case is set for trial, whichever comes first. Trial Fees are earned as follows; (1) 50% upon the date that the case is reset for Trial not the actual Trial date. (2) 50% upon commencement of the trial such as start of jury selection, swearing of the first witness or the start of argument of counsel in motion settings (This does not include appeals or retrials which require additional advance fees.) The attached Exhibit "A" shows those items which are specifically included in, and those items which are specifically excluded from, the flat fee agreement. If this contract is terminated by either party for any reason, then a rate of $350.00 per hour shall be calculated for all work perform from the acceptance date to the termination date of the contract. The attorney shall provide an invoice of all work performed within 60 days of the termination of the contract. The attorney's fees do not include photocopying charges, long distance telephone charges, travel expenses, fees for investigators and experts, witness fees, costs of preparing a reporter's record, or other court costs. These costs will be treated as additional expenses and will be included in our bill. You agree to pay those reasonable expenses. If payments are not made promptly to us as requested, we reserve the right to immediately withdraw from representing you in any and all matters that the law firm is handling. You agree to the withdrawal.

This Agreement is performable in Fort Bend County, Texas. All monies owed hereunder are to be paid at our office in Fort Bend County, Texas. Jurisdiction and venue of any dispute arising hereunder are also performable in Fort Bend County, Texas. Should it become necessary for the firm to collect any unpaid balance or debt owed to the firm in connection with this case, you agree to pay any additional fees associated with the collection, including but not limited to employment of an outside collection agency, attorney’s fees and court cost. You authorize us with your power of attorney to sign court or other legal documents which may be required in the course of the case. Also, you also will designate the Firm as your attorneyat-law and in-fact to act in your name, sign legal pleadings on your behalf and to perform the acts necessary and appropriate to affect the above described legal representation. Please sign in the space provided below so that we may begin working on your behalf. If you have any questions concerning our fees or this legal matter, please call me at (713) 774-2800.

SIGNED on this

day of April 2022.

Pappy Van Winkle

SIGNED on this

day of April 2022.

Paul F. Tu Arrington, Tu & Burnett 200 S. Tenth Street Richmond, Texas 77469 (713) 774-2800 tel (713) 774-2808 fax Texas Bar No. 24045197

ATTORNEY-CLIENT COMMUNICATION: THIS DOCUMENT AND ITS CONTENTS CONSTITUTE LEGALLY PRIVILEGED INFORMATION EXHIBIT "A" Items Included in a Flat Fee Arrangement: •

Preparation, investigation, negotiation, and representation of Pappy Van Winkle for the alleged offense of Driving While Intoxicated >.15 BAC in Weller County, Texas, Cause # 21-CCR-123456.

•

Preparation, investigation, negotiation, and representation of Pappy Van Winkle’s suspension of driver license because of the arrest or refusal to provide breath/blood sample on or about July 4, 2021.

Items Not Included in a Flat Fee: ➢ Any Bench/Jury trial, Post-trial motions, appeals, motion for early termination, or petitions for non-disclosures. ➢ Any Petition for Occupational Driver License ➢ The firm has agreed to a jury trial fee of $6,000 to $12,000.

SIGNED on this

day of December 2022.

Pappy Van Winkle SIGNED on this

day of December 2022.

Paul F. Tu Arrington, Tu & Burnett 200 S. Tenth Street Richmond, Texas 77469 (713) 774-2800 tel (713) 774-2808 fax Texas Bar No. 24045197

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Supreme Court Update Speaker: Gerry Goldstein 310 S Saint Marys St Ste 2900 San Antonio, TX 78205-3117 (210) 226-1463 Phone (210) 226-8367 Fax gerrygoldsteinlaw@gmail.com Email www.ggandh.com Website

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

THE SUPREMES Some Hot New Tunes, Some Not So Hot (THE 4TH AMENDMENT, A RIGHT WITHOUT A REMEDY?)

35th Annual Rusty Duncan Seminar June 17th-18th Hyatt Regency San Antonio, Texas Presented by: GERALD H. GOLDSTEIN 29th Floor Tower Life Building San Antonio Texas 78205 (210) 226-1463 ggandh@aol.com

GOLDSTEIN & ORR 29TH FLOOR TOWER LIFE BUILDING 310 S. ST. MARY’S STREET, SUITE 2900 SAN ANTONIO, TEXAS 78205

Table of Contents INTRODUCTION......................................................................................................................... 5 WHAT CONSTUTES A SEARCH FOR 4TH AMENDMENT PURPOSES ........................... 5 CONTINUED VIABILITY OF THE “EXCLUSIONARY RULE” ........................................ 6 Hudson v. Michigan, 547 U.S. 586 (2006): ............................................................................ 7 Herring v. U.S., 555 U.S. 135 (2009): .................................................................................... 9 Davis v. U.S., 564 U.S. 229 (2011): ...................................................................................... 10 PROTECTING THE CITIZENRY FROM ITS PROTECTORS .............................................. 11 U.S. v. Leon, 468 U.S. 897 (1984): ....................................................................................... 12 SUBJECTIVE VS OBJECTIVE INTENT OF THE OFFICER ................................................ 14 COLLECTIVE BAD FAITH .................................................................................................... 14 (WHAT IS GOOD FOR THE GOOSE) .................................................................................... 14 FRANKS-TYPE MISREPRESENTATIONS............................................................................ 15 MATERIAL OMMISSIONS AS MISSTATEMENTS ............................................................ 15 MAGISTRATE MUST BE “NUETRAL AND DETACHED” ................................................ 16 AFFIDAVIT TOTALLY LACKING IN PROBABLE CAUSE ............................................... 16 FACIALLY DEFICIENT WARRANT .................................................................................... 17 RELIABILITY OF THE INFORMANT AND INFORMATION ............................................ 17 MISTAKE OF LAW BY POLICE IS AN EXCUSE ................................................................. 17 Heien v. North Carolina, 135 S.Ct. 530 (2014): ................................................................... 17 “ATTENUATION” OF THE INITIAL ILLEGALITY.......................................................... 18 Utah v. Strieff, 136 S.Ct. 27 (2015): ..................................................................................... 18 UNAUTHORIZED DRIVER’S STANDONG TO COMPLAIN OF THE SEARCH OF A RENTAL VEHICLE .................................................................................................................. 20 Byrd v. United States, 138 S.Ct. 1518 (2018) ....................................................................... 20 District of Columbia v. Wesby, 138 S.Ct. 577 (2018): ......................................................... 21 WARRANTLESS BLOOD DRAW FROM UNCONSCIOUS SUSPECT ............................ 21 Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019):.................................... 21 DIGITAL IS DIFFERENT ........................................................................................................ 22 Riley v. California, 134 S. Ct. 2473 (2014): ......................................................................... 22 CELL TOWER LOCATION INFORMATION (CSLI) ......................................................... 23

Carpenter v. United States, 138 S.Ct. 2206 (2018): ............................................................. 23 FROM PORCHES TO DRIVEWAYS ..................................................................................... 27 Florida v. Jardines, 569 U.S. 1 (2013): ................................................................................ 27 Collins v. Virginia, No. 138 S.Ct. 1663 (2018): ................................................................... 30 TRACKING WITH A GLOBAL POSITIONING SYSTEM (GPS) ..................................... 31 U.S. v. Jones, 565 U.S. 400 (2012): ...................................................................................... 31 OVER BREADTH AND GENERAL SEARCHES ................................................................. 33 NEXUS BETWEEN PROBABLE CAUSE AND .................................................................... 34 THE PLACE TO BE SEARCHED ........................................................................................... 34 PROSECUTION SHOULD BEAR THE BURDEN ................................................................. 37 OF DEMONSTRATING “GOOD FAITH” .............................................................................. 37 “GOOD FAITH” RELIANCE ON SUMMONS ....................................................................... 37 “GOOD FAITH” EXCEPTION APPLIES TO WARRANTLESS ADMINISTRATIVE SEARCHES AUTHORIZED BY STATUTE LATER FOUND UNCONSTITUTIONAL . 38 Illinois v. Krull, 480 U.S. 340 (1987): .................................................................................. 38 OTHER WARRANTLESS SEARCHES.................................................................................. 39 City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015): .......................................................... 39 Rodriguez v. United States, 135 S. Ct. 1609 (2015): ............................................................ 40 Akinmboni v. United States, 126 A.3d 694 (D.C. Ct. App. 2015): ........................................ 41 DIGITAL SEARCHES............................................................................................................... 42 USE OF SOPHISTICATED TECHNOLOGY ........................................................................ 43 “GOOD FAITH” MUST BE OBJECTIVE.............................................................................. 44 “UNREASONABLE DELAY” BEFORE PRESENTMENT AS GROUNDS FOR SUPPRESSION OF CONFESSION ......................................................................................... 46 Corley v. United States, 556 U.S. 303 (2009) ....................................................................... 46 STATES ARE FREE TO PROVIDE GREATER PROTECTIONS TO THEIR CITIZENS .... 47 Lego v. Twomey, 404 U.S. 477 (1972). ................................................................................. 47 SEVERAL STATES HAVE REJECTED ANY LEON “GOOD FAITH” EXCEPTION ......... 50 SUBJECTIVE INTENT OF THE OFFICERS ........................................................................ 53 INVADING THE THRESHOLD OF ONE’S HOME............................................................. 54 CONSENSUAL SEARCHES ................................................................................................... 55 REMOVING THE NON-CONSENTING ................................................................................ 55 SPOUSE FROM PREMISIS ..................................................................................................... 55 Fernandez v. California, 571 U.S. 292 (2014). .................................................................... 55 EXIGENT CIRCUMSTANCES ................................................................................................ 56 Kentucky v. King, 563 U.S. 452 (2011)................................................................................. 56 WARRANTLESS BLOOD DRAW ......................................................................................... 58 Missouri v. McNeely, 569 U.S. 141 (2013). .......................................................................... 58 3

DNA SAMPLE TAKEN AT BOOKING.................................................................................. 60 Maryland v. King, 569 U.S. 435 (2012). ............................................................................... 60 DEADLY FORCE AND THE FOURTH AMENDMENT ....................................................... 62 Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam)........................................................... 62 EROSION OF THE EXCLUSIONARY REMEDY ................................................................ 64 BURDEN SHIFTING ............................................................................................................... 66 THE VANISHING “FRUIT OF THE POISONOUS TREE” DOCTRINE .............................. 66 CONCLUSION ........................................................................................................................... 67

INTRODUCTION Despite early signs to the contrary, the new majority of the Supreme Court appears on course to continue the slow-but-steady deconstruction of many time-honored Constitutional protections, once considered sacrosanct by fellow lawyers, courts and the citizenry in general. Nowhere has this trend been more evident than with respect to a citizen’s right to privacy. Whether addressing the continuing debate over the appropriate test for what constitutes a 4th Amendment violation in the first instance, or what remedy to apply if we conclude that such a violation has occurred, the future course of protecting our citizens’ Constitutional right to privacy appears to be in jeopardy. The Constitutional protections provided by the 5th and 6th Amendment appear to be fairing not much better. This paper is one lawyer’s modest attempt to address these and other timely issues confronting the Court and our Country in these times of turmoil and crisis. Hopefully, by examining what may be going wrong, together we can find a way to right our ship of state and set her back on course, preserving the rights and liberties our founding fathers intended the Constitution to protect.

WHAT CONSTUTES A SEARCH FOR 4TH AMENDMENT PURPOSES There remains a continuing debate as to precisely what the 4th Amendment right of privacy protects. In one camp are those clinging to the belief that the test for determining whether a search has occurred depends upon whether the police have physically trespassed upon one of the areas expressly enumerated in the Constitution (i.e. persons, houses, papers and effects). See Justice Scalia’s majority opinion in United States v. Jones, 565 U.S. 400 (2012), and Justice Gorsuch’s dissent in Carpenter v. United States, 138 S.Ct. 2206 (2018), where he notes that “[t]he Amendment's protections do not depend on the breach of some abstract ‘expectation of privacy’ whose contours are left to the judicial imagination”: “Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.”

On the other hand, there are those who have a more expansive view, holding to Justice Harlan’s analysis, that the right of privacy protects “people not places,” and that the correct test for determining whether a search has occurred is dependent upon whether the citizen’s “reasonable expectation of privacy” has been invaded.

See Katz v. U.S., 389 347 (1967) (Harlan, J.,

concurring); See also Justice Kagan’s concurrence in Jardines, 569 U.S. 1 (2013). To further complicate the matter, Justice Scalia suggests in Jardines that the two tests are not mutually exclusive, rather the Katz’ “expectation of privacy” test for determining what constitutes a search “is not a substitute for, but…an alternate to the physical intrusion approach.” And then there is the view expressed by Justice Gorsuch as a sitting judge on the 10th Circuit Court of Appeals, before he was appointed to the Supreme Court, that this whole dispute is really a distinction without a difference. “So, it seems that, whether we analyze the ‘search’ question through the lens of the government’s preferred authority — Katz — or through the lens of the traditional trespass test suggested by Jones, they yield the same (and pretty intuitive) result [opening someone’s] email constitute[s] a search.” If a search has occurred, the next step is whether or not that search is one requiring the government obtain a warrant. For this determination, an additional test is performed. The Court must analyze whether, in addition to being a search that invades one’s privacy, the search was required for the promotion of legitimate governmental interests. See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) citing Riley v. California, 573 U.S. 373, 134 S. Ct. 2473 (2014). Regardless which definition or test the Court ultimately settles upon, the question of what remedy to apply if it is determined that a citizen’s right to privacy has been violated is one that has come under recent scrutiny.

CONTINUED VIABILITY OF THE “EXCLUSIONARY RULE” Once thought to be a given, the concept that evidence acquired as the fruit of illegal police conduct would be suppressed at trial has recently been called into serious question. In a trilogy of cases, Hudson v. Michigan, 547 U.S. 586 (2006), Herring v. U.S., 555 U.S. 135 (2009), and Davis v. U.S., 564 U.S. 229 (2011), the United States Supreme Court has raised serious questions

regarding the continued viability of the exclusionary remedy for violations of a citizen’s privacy rights, except in limited and very difficult to prove circumstances.1 Since the landmark case of Mapp v. Ohio, 367 U.S. 643 (1961), the exclusionary rule has functioned as the only practical mechanism to discourage and remedy violations of individuals’ rights by law enforcement officers.2

Where evidence was discovered as the result of an

unreasonable (i.e. an unconstitutional) search or seizure, same necessarily mandated the suppression of that tainted evidence, except in certain well-defined cases.3 As Justice Sotomayor recently noted, dissenting in Utah v. Strieff, 136 S. Ct. 2056 (2016): “When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” Recently, this seemingly well-settled and time-honored concept has been called into question. Hudson v. Michigan, 547 U.S. 586 (2006): With little fanfare and even less warning, Justice Scalia made the startling revelation that: “We have never held that evidence is ‘fruit of the poisonous tree’ simply because `it would not have come to light but for the illegal actions of the police.'" See Hudson, 547 U.S., at 592 (emphasis supplied) (Scalia, writing for a 5 to 4 majority).4 Based upon the Court’s reasoning in Hudson, Herring, Davis, and Heien the majority now seem to require a showing that illegal police conduct resulting in the discovery of incriminating evidence be demonstrably “deliberate,” “culpable,” and “flagrant” in order to warrant the exclusionary remedy. 2 The Court in Mapp held that the exclusionary remedy, "founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice." Commonly referred to as the “imperative of judicial integrity.” See Mapp, 367 U.S., at 660 (Justice Clark, speaking for a 6 to 3 majority, held that “the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments” and “is not only the logical dictate of prior cases, but it also makes very good sense.” Justice Clark notes, as well that “by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold.” At 667). 3 As Justice Powell noted in U.S. v. Watson, 423 U.S. 411 (1976) "There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few 'jealously and carefully drawn' exceptional circumstances." at p. 427, Powell, J. concurring. Examples of recognized exceptions to the warrant requirement, include situations involving “exigent circumstances,” making obtaining a warrant difficult, if not impossible, See South Dakota v. Opperman, 428 U.S. 364 (1976), and vehicle searches, See Carroll v. U.S., 267 U.S. 132 (1925) (where the Court created a bright-line rule based upon the exigent circumstances rational). 4 Scalia’s pronouncement is, at best, arguable. See Alito’s subsequent opinion in Davis, where he explicitly calls into question Scalia’s suggestion that the Court had “never held that evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police,” noting that the Court has “abandoned the old, ‘reflexive’ application of the [exclusionary] doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” All of which also calls into question Wong Sun’s time honored “fruit of the poisonous tree” doctrine (that 1

Previously, the Supreme Court had held in a unanimous opinion by Justice Thomas, that requiring officers with a search warrant to “knock and announce” their presence before entering a residence is a Constitutionally mandated requirement, See Wilson v. Arkansas, 514 U.S. 927 (1995).5 Nevertheless, eleven years later, in an opinion authored by Justice Scalia, for a 5 to 4 majority, the Court determined that violations of the Fourth Amendment’s “knock-and-announce” requirement do not implicate the exclusionary rule. See Hudson v. Michigan, 547 U.S. 586 (2006). This idea, that citizens have Constitutional protections without any real mechanism to remedy their violations, is perplexing.6 The opinion seems to have three lines of reasoning justifying that conclusion. The first is that the social costs of the exclusionary rule (i.e. suppression of material evidence in a criminal prosecution) substantially outweigh the potential deterrent effect of exclusion in knock-andannounce violations. Second, there now exist other means of deterring police actions that violate individual rights, including civil rights suits and civilian review boards. Finally, there is a substantially attenuated causal connection between the failure to announce entry and the recovery of evidence once inside. The Hudson Court reasoned that whether the exclusionary sanction is appropriate in a given case is an issue separate and apart from the question of whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police misconduct in the first place. Scalia writes: “Suppression of evidence…has always been our last resort, not our first impulse. The exclusionary rule generates ‘substantial social costs’…which sometimes include setting the guilty free and the dangerous at large…. We have…repeatedly emphasized that the rule’s

all evidence and information obtained as a result of the police’s illegal conduct are suppressible as fruit of the poisonous tree). 5 In Wilson v. Arkansas, 514 U.S. 927 (1995), Justice Thomas, writing for a unanimous Supreme Court, had held that the “[t]he common law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.” Although it appears that waiting just 15 seconds after knocking, before breaking in, is sufficient to satisfy the knock-and-announce requirement in either the statute or the Constitution. See United States v. Banks, 540 U.S. 31 (2003), Justice Souter, writing for a unanimous Supreme Court. 6 Scalia writes in Hudson that a § 1983 civil rights lawsuit provides sufficient remedy for a 4th Amendment violation, noting that “[w]e cannot assume that exclusion in this context is a necessary deterrence simply because we found that it was a necessary deterrence in different contexts and long ago. That would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago. Dollree Mapp could not turn to 42 U. S. C. §1983 for meaningful relief.” However, it would seem axiomatic that neither judges or juries are likely to award substantial damages to one whose Constitutional violations have revealed evidence of their guilt in serious criminal activity.

‘costly toll’ upon the truth-seeking and law enforcement objectives presents a high obstacle for those urging its application.” The opinion in Hudson is perhaps most disturbing for what it portends than what it holds. For many readers, the Court’s opinion foretells a future where constitutional rights are stripped of what may be the only truly effective means of judicial enforcement. If the exclusionary rule does not function to enforce a right, as a practical matter, does that right really exist? Will police and executive policy makers truly be deterred from constitutionally offensive conduct by the threat of a civil rights lawsuit? What other constitutional rights will the Court deem unworthy of a remedy such as the exclusionary rule? Relying upon the Supreme Court’s rationale in Hudson, lower courts have held the exclusionary rule inapplicable in a variety of circumstances. For example, the Ninth Circuit has now held that under Hudson, an officer’s failure to leave a copy of the executed warrant on the premises does not warrant suppression, even if the requirements to serve a copy of the warrant is of a constitutional dimension. See U.S. v. Hector, 474 F.3d 1150 (9th Cir. 2007). The Seventh Circuit, following a Hudson analysis, held that the failure to create a written search warrant, required by the federal telephonic search warrant statute, does not trigger the 4th Amendment’s exclusionary rule. The Fourth Circuit takes Hudson even further, holding that fingerprints taken following an illegal arrest are subject to suppression only if taken for an “investigative,” rather than an “administrative” purpose. See U.S. v. Oscar-Torres, 507 F.3d 224 (4th Cir. 2007). Herring v. U.S., 555 U.S. 135 (2009): Bennie Herring had driven to the Coffee County, Alabama Sheriff's Department to check on his impounded pickup truck . Mark Anderson, an investigator with the Coffee County Sheriff's Department, who had a long and contentious history with Herring, asked the department's warrant clerk to check for any outstanding warrants; the warrant clerk in the neighboring county’s Sheriff's Department was contacted, and advised there was an outstanding warrant. Although the Dale County clerk called back within 15 minutes to warn the Coffee County Sheriff's Department a clerical mistake was made (the warrant had been recalled five months prior),it was too late; Anderson had already arrested Herring and searched his vehicle, discovering firearms and methamphetamine.

Chief Justice Roberts, writing for another 5 to 4 majority, held Herring’s arrest and the subsequent search based on the invalid warrant did not necessitate suppression of the evidence discovered as a result of this Constitutional error,7 because the mistake was not based on a “systematic error or reckless disregard of constitutional requirements.” Citing Hudson, the Court reasoned that: “Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence, attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.” Davis v. U.S., 564 U.S. 229 (2011): In Davis, Officer Curtis Miller arrested Petitioner Willie Davis for using a false name during a routine traffic stop. Incident to arrest, Officer Miller searched the vehicle and discovered a gun Davis’s jacket. Davis was charged with being a convicted felon in possession of a firearm. Following a jury trial, Davis was convicted and sentenced to 220 months in prison. The U.S. Court of Appeals for the Eleventh Circuit found that while the search was illegal, the evidence found in the vehicle was still admissible. Davis obtained a writ of certiorari on the issue of whether the good-faith exception to the exclusionary rule applies to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional. 8 The Court devotes a considerable amount of time to its pre-Arizona v. Gant searchincident-to-arrest cases because Davis’s arrest pre-dated Gant. At first glance, such an approach would seem most peculiar, until one reads the language which follows. The Court follows a summary of New York v. Belton and similar automobile search-incident-to-arrest cases with a frightening description of the exclusionary rule; not as a personal, individual right, but rather as a tool only to find application when the benefit of deterring future violations of the Fourth Amendment outweigh the heavy social costs of letting the guilty go free and the dangerous to

Justice Roberts questioned whether there was a Constitutional violation, but for purposes of the decision, assumed a violation, without deciding same. 8 See Arizona v. Gant, 556 U.S. 332 (2009), where Justice Stevens, writing for what amounted to a 5 to 4 majority, held that officers are permitted to conduct a New York v. Belton-type warrantless search of the passenger compartment of a legitimately stopped vehicle only if it was reasonable to believe that the arrestee might access the vehicle at the time of the search, that the vehicle contained evidence of the offense of arrest or that the officers had, at the time, cause to believe evidence of some other crime would be found within the car’s passenger compartment.

remain at large. The Court adopts this stance not withstanding its well-established precedent that the exclusionary remedy is “synonymous with violations of the Fourth Amendment.” Arizona v. Evans, 514 U.S. 1, 13 (1995) [citing Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560 (1971)]. It is important to note that an officer’s understanding of the law and court decisions undoubtedly requires officers to make subjective judgments in carrying out their duties. However, the Supreme Court has previously made clear that courts should not consider the particular officer’s “subjective intent” in determining probable cause for an arrest and/or search. See Whren v. U.S., 517 U.S. 806 (1996), and in Davis, Justice Alito, speaking for a 7 to 2 majority, holds the officers’ objectively reasonable reliance on binding appellate precedent rendered their conduct inapplicable to the exclusionary rule, noting that for exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Of significance is Justice Alito’s chiding response to Scalia’s suggestion that the Court has “never held that evidence is ‘fruit of the poisonous tree’ simply because `it would not have come to light but for the illegal actions of the police.'" See Hudson, 547 U.S., at 592. Alito

tersely retorts that: “We came to acknowledge the exclusionary rule for what it undoubtedly is—a ‘judicially created remedy’ of the Court’s own making…We abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits…We also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct at issue.”

PROTECTING THE CITIZENRY FROM ITS PROTECTORS Despite this recent trend, the exclusionary rule remains today as the primary vehicle for enforcing compliance with the Fourth Amendment. For over a half century the Court had recognized that the prohibition against admitting illegally obtained evidence9 not only served to deter illegal police conduct, but also maintained the “imperative of judicial integrity” by extricating courts from participation in illegal and unconstitutional police conduct.10

See Mapp v. Ohio, 367 U.S. 643 (1961), written by Justice Tom Clark, a Texan. As succinctly expressed in Terry v. Ohio, 392 U.S. 1 (1968), “Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the Constitutional rights of citizens by permitting use of the fruits of such invasions.” 10

The Supreme Court has repeatedly reiterated that the judiciary stands as the citizens’ only meaningful protection against our protectors. “[Fourth Amendment rights]... are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.... But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside the court.” Illinois v. Gates, 462 U.S. 213, 274-75 (1983) [Brennan, J., dissenting]. In 1984 the Court was confronted with the opportunity to closely re-examine the underpinnings of the exclusionary remedy for illegal police conduct. After all, nowhere does the exclusionary rule, or any other remedy, for that matter, appear in the text of the 4th Amendment prohibition against illegal searches. U.S. v. Leon, 468 U.S. 897 (1984): Over two decades after their landmark decision in Mapp, a majority of the Court, seemingly ignoring Mapp, Gates and their progeny, rejected the time-honored “imperative of judicial integrity” or any justification other than the “deterrence rationale” for excluding illegally obtained evidence from criminal trials, noting that “[t]he rule thus operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal right of the person aggrieved’” See U.S. v. Leon, 468 U.S. 897, 905 (1984). Over the quarter century since, the Court has found application of the exclusionary remedy inappropriate based upon a balancing test, weighing the competing interests of the often guilty accused’s Constitutional rights against society’s competing interest in protecting the safety of the public in general.11 See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) [refusing to apply the exclusionary rule to deportation proceedings because the deterrent effect was outweighed by the social costs

A seemingly no-win balancing test, to which the Court would return in a series of cases decades later. See Hudson, Herring and Davis discussed hereafter. Suffice it to say that the outcome would appear a foregone conclusion, when balancing the rights of an apparently guilty defendant (caught with incriminating contraband), against society’s interest in protecting the public from the prospect of “allowing the guilty to go free” or “the dangerous to remain at large.”

involved in the context of “unique immigration proceedings” that are “preventative as well as punitive”]; U.S. v. Janis, 428 U.S. 433 (1976) [noting evidence illegally seized by state officers not excluded in federal civil tax proceeding as additional deterrence deemed outweighed by social costs]; U.S. v. Calandra, 414 U.S. 338 (1974) [stating exclusionary rule not applicable to grand jury proceedings]; Stone v. Powell, 428 U.S. 465 (1976) [suppression issues are not cognizable in writs of habeas corpus, because the proceeding is so removed from the prior police illegality as to have lost its deterrent effect]. In U.S. v. Leon, a majority of the Supreme Court established the most significant exception to the “exclusionary rule,” allowing use of admittedly illegally obtained evidence where the officer acted in “objective good faith” reliance upon a warrant signed by a neutral and detached magistrate. U.S. v. Leon, 468 U.S. 897 (1984). See also Massachusetts v. Sheppard, 468 U.S. 981 (1984) [holding officer’s reliance on warrant reasonable, since it lacked particularity due to magistrate’s clerical error and magistrate said he would edit the form to include objects sought by police who relied on magistrate’s assertions] and U.S. v. Gomez, 652 F. Supp. 461 (E.D.N.Y. 1987), holding that a “reasonably well-trained officer” could not have determined that a magistrate-authorized search was illegal, under good-faith exception. As the Court in Leon acknowledges, the so-called “good faith” exception does not apply where the magistrate has been misled by the officer who obtained the warrant. See Franks v. Delaware, 438 U.S. 154 (1978) [good faith exception does not apply when determining whether officer obtained a warrant by making material misrepresentations to the magistrate in reckless disregard for the truth] or where the warrant is based upon “affidavits so lacking in evidence of probable cause as to render official belief in its existence entirely unreasonable do not fall within this exception.” See United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). In addition, courts do not consider the Leon “good faith” exception when deciding whether to suppress evidence preindictment, pursuant to a motion for return of seized property. Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975); Gurleski v. U.S., 405 F.2d 253 (5th Cir. 1968). The rationale for nonapplication of the “good faith” exception here, is that the court is exercising its authority to correct the misconduct of the prosecutor and his agents. Other circumstances under which the “good faith” exception does not apply include situations where the warrant is so facially deficient in particularly describing the place to be searched or the

things to be seized that the executing officers cannot reasonably presume it to be valid. See U.S. v. Russell, 960 F.2d 421, 423 (5th Cir.), cert. denied, 506 U.S. 953 (1992). While Leon specifically and expressly dealt with an officer’s “good faith” reliance upon a warrant lacking in probable cause (expressing a “preference for warrant practice” among law enforcement), its rationale has been extended to warrantless arrests and seizures, as well. See Davis and Herring, discussed supra. See also Illinois v. Krull, 107 S.Ct. 1160 (1987). See contra U.S. v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc).

SUBJECTIVE VS OBJECTIVE INTENT OF THE OFFICER The Court notes that “[t]he officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable...and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Leon, 468 U.S. at 922-23.12 How one determines an officer’s good faith without evaluating his or her subjective intent, is a question left for another day.

COLLECTIVE BAD FAITH (WHAT IS GOOD FOR THE GOOSE) Just as courts may cumulate officers’ knowledge to determine whether probable cause existed to justify a search, officers obtaining or executing a warrant may not insulate their knowledge or good intentions from fellow officers acting in bad faith. Instead, according to the Court in Leon: “It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable cause determination. Nothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a “bare bones’ affidavit and then rely on colleagues who are ignorant 12

In Whren v. United States, 517 U.S. 806 (1996) a unanimous Supreme Court held that courts do not look to the officer’s subjective intent in determining probable cause for a search or seizure, noting that “subjective intentions play no role in ordinary probable cause Forth Amendment analysis.”

of the circumstances under which the warrant was obtained to conduct the search....” Leon, 468 U.S. at 923 n.24. As the Court recognized in Franks v. Delaware, 438 U.S. 154 (1978) the “...police [can]not insulate one [sic] officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.” See also U.S. v. Cortina, 630 F.2d 1207, 1212, 1217 (7th Cir. 1980) [the good faith exception would become a “Maginot Line”, laughingly circumvented by police if courts were to insulate falsehoods in an affidavit from invalidating a warrant simply because the executing officer was unaware of the lies]; U.S. v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (en banc) [quoting Franks “police [can] not insulate one officer’s deliberate misstatement...”]; U.S. v. Coplon, 185 F.2d 629, 640 (2d Cir. 1950) [matters obtained through a violation of law by one official may not be introduced in evidence by the prosecution]. Furthermore, evidence which is based on information which is the product of an illegal search cannot serve as probable cause for the issuance of a search warrant entitling the executing officers to good faith reliance. U.S. v. Vasey, 834 F.2d 782 (9th Cir. 1981). Moreover, this “objective reasonableness” standard must be applied to all officers involved, not merely those who executed the warrant, but also to those who obtained or provided information to secure it. Leon, 468 U.S. at 923 n.1; see also U.S. v. DeLeon-Reyna, 898 F.2d 486 (5th Cir. 1990).

FRANKS-TYPE MISREPRESENTATIONS The Leon Court “noted” that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Leon, 468 U.S. at 317. “Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923.

MATERIAL OMMISSIONS AS MISSTATEMENTS Furthermore, material omissions from the officer’s affidavit have been considered equivalent to misstatements. United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980). “[R]ecklessness

can in some circumstances be inferred directly from the omission itself.” United States v. Tomblin, 46 F. 3d 1369 (5th Cir. 1995).

MAGISTRATE MUST BE “NUETRAL AND DETACHED” The Leon Court also recognized the “good faith exception” to the exclusionary rule should not apply where the issuing magistrate wholly abandoned his role as a “neutral and detached” judicial officer. Leon, 468 U.S. at 923 citing Lo-Ji Sales Inc. v. New York, 442 U.S. 319 (1979) (magistrate utilizing prepared form warrants joined and led search); but see U.S. v. Orozco-Prader, 732 F.2d 1076, 1088 (2d Cir.), cert. denied, 469 U.S. 845 (1984) (judge was neutral and detached despite his statement at time of issuing the search warrant that government agents and U.S. Attorney “know proof and know significance ... and therefore the court has to accept their representations without question”]; U.S. v. Rome, 809 F.2d 665 (10th Cir. 1987) (the Magistrate’s failure to follow letter of Rule in issuing telephonic warrant by neglecting the requirements of (1) a verbatim record (2) a “duplicate original warrant” (3) particularity and (4) his immediate signature of the “original warrant” did not abandon detached and neutral rol); U.S. v. Breckenridge, 782 F.2d 1317 (5th Cir. 1985) (stating a neutral and detached magistrate who failed to read warrant affidavit had not abandoned his judicial role and did not spoil officer’s good faith reliance on warrant); and U.S. v. Harper, 802 F.2d 115 (5th Cir. 1986).

AFFIDAVIT TOTALLY LACKING IN PROBABLE CAUSE The Leon Court further indicated that the “good faith exception” to the exclusionary rule would not apply where the warrant affidavit was so totally lacking in probable cause as to make any reliance thereupon unreasonable. See Illinois v. Gates, 462 U.S. 213 (1983). “Nor would an officer’s manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’.” Leon, 468 U.S. at 923.

See People v. Mitchell, 678 P.2d 990 (Colo. 1984) (Colorado “good faith” statute inapplicable where individual arrested and searched on strength of arrest warrant “totally devoid of factual support”). “...The warrant was void not because the facts supporting it fell somewhat below the Constitutional threshold of probable cause, but so far as the record shows, because there were no facts at all to support its issuance.” Mitchell, 678 P.2d at 2004. See also U.S. v. Cardall, 773 F.2d 1128 (10th Cir. 1985) (a warrant should not be considered to be so deficient as to defeat an officer’s “good faith” reliance upon it unless the underlying affidavit is totally devoid of factual support); Cassias v. State, 719 S.W.2d 585 (Tex. Crim. App. 1986) (Court holds that, under the “totality of the circumstances”, the “facts and circumstances presented... are too disjointed and imprecise to warrant…belief that [drugs] would be found at the described residence”).

FACIALLY DEFICIENT WARRANT The Court in Leon also recognized that reliance may be unreasonable where the warrant is “facially deficient,” such as failing to particularize the place to be searched or the things to be seized. Leon, 468 U.S. at 923.

RELIABILITY OF THE INFORMANT AND INFORMATION A mere statement by law enforcement that affiants have received reliable information from a credible source is insufficient to provide a substantial basis for determining probable cause. Illinois v. Gates, 462 U.S. 213, 239 (1983).

MISTAKE OF LAW BY POLICE IS AN EXCUSE Heien v. North Carolina, 135 S.Ct. 530 (2014): Heien involved a traffic stop stemming from the initiating police officer’s misinterpretation of a North Carolina statute involving break light requirements. The officer believed that the statute required all lights on the rear of the vehicle to be in good working order. However, North Carolina did not require all rear brake lights to function, but rather only one break light.

The majority opinion, written by Chief Justice Roberts, held that the police officer’s objectively reasonable mistaken interpretation of an ambiguous statute would excuse any 4th Amendment violation. That ruling is interesting, because the Court finds that a reasonable mistake of law by law enforcement personnel does not violate the Fourth Amendment, while it is wellsettled that a citizen’s “ignorance of the law is no excuse.” In her dissent, Justice Sotomayor touches on the potential consequences of the majority’s opinion, noting that the exclusionary rule “is a remedial concern, and the protections offered by the Fourth Amendment are not meant to yield to accommodate remedial concerns. Our jurisprudence draws a sharp ‘analytica[l] distinct[ion]’ between the existence of a Fourth Amendment violation and the remedy for that violation.” Hein v. North Carolina, 135 S.Ct. 530, 545 (2014) (Sotomayor, J., dissenting) (citing Davis, 564 U.S. at 243-44). A concept that has come back to haunt both the Justice and those particularly concerned with the preservation of Constitutional rights and remedies. Judge Gorsuch’s prescient dissent while he was serving as a judge on the 10th Circuit Court of Appeals in United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013), abrogation recognized 630 Fed. Appx. 873, anticipated Chief Justice Robert’s 8 to 1 opinion in Heien v. North Carolina. Dissenting from a majority holding that an officer’s seizure, based upon a mistake of law, is per se a violation of the 4th Amendment, Judge Gorsuch opines: “My colleagues suggest that an investigative detention resting on an officer’s mistake of law always violates the Fourth Amendment—even when the law at issue is deeply ambiguous and the officer’s interpretation entirely reasonable. Having found a Fourth Amendment violation, they proceed to order the suppression of all evidence found during the detention and direct the dismissal of all charges. Respectfully, I have my doubts.” Nicholson, 721 F.3d at 1247 (emphasis supplied) (Gorsuch, J., dissenting).

“ATTENUATION” OF THE INITIAL ILLEGALITY Utah v. Strieff, 136 S.Ct. 27 (2015): There had been an anonymous message left on a drug tip line that narcotics activity was taking place at a residence. Id. at 536. Throughout the week, an officer monitored the home for about 3 hours total and observed what he felt was suspicious “short term traffic” at the home. Id. Based upon this information the officer concluded that the traffic indicated possible drug sales activity. During his observations, the officer did not see Strieff enter the home but saw him leave 18

the residence and walk toward a convenience store. The officer ordered Strieff to stop so that he could ask what was going on in the home. The officer asked Strieff for his identification, called his license into the police dispatcher, and discovered Strieff had an outstanding “small traffic warrant.” Id. The officer arrested Strieff based on this information and found a baggie of methamphetamine and drug paraphernalia during the search incident to arrest.

The State

acknowledged that the Terry-type stop was without probable cause or reasonable suspicion but argued the discovery of the valid outstanding traffic warrant “attenuated” the initial police illegality. On February 22, 2016, the first oral arguments were heard on the case since Justice Scalia’s passing. The government argued that the officer’s stop was a reasonable and good faith mistake and that suppression would harm society far more than deterring similar mistakes. Justice Thomas, writing for a 5 to 3 majority, held that despite the uncontested fact the officer acted purposely without reasonable suspicion in stopping Strieff, the resulting discovery of the outstanding traffic warrant, “attenuated” that illegality warranting admission of the methamphetamine, glass pipe and triple beam scale discovered by the search of his person, incident to the arrest on the outstanding warrant. Justice Sotomayor expressing her exacerbation in dissent, noted that 80% of the population in Ferguson, Missouri has outstanding traffic warrants and that in the past the Court had not hesitated to suppress evidence which constituted the fruit of police illegality. “When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” (Sotomayor, J., dissenting). Sotomayor caustically chides the Court’s insensitivity to the plight of those systematically subjected to such police intimidation, noting: "We must not pretend that the countless people who are routinely targeted by police are 'isolated.' They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but."

UNAUTHORIZED DRIVER’S STANDING TO COMPLAIN OF THE SEARCH OF A RENTAL VEHICLE Byrd v. United States, 138 S.Ct. 1518 (2018) Tarrance Byrd’s fiance, Latasha Reed rented a Ford Fusion from Budget rent-a-car in her name as the only authorized driver. She walked out of the rental office and handed the rental car keys to Byrd, who as luck would have it, was a convicted felon (for weapons and drugs). Byrd had an outstanding warrant for a probation violation, and if that was not enough, Byrd had no valid driver’s license. Byrd took the keys and drove directly home, picked up a laundry bag containing 49 bricks of heroin and put the bag in the trunk of the rental vehicle. A State Trooper stopped Byrd, because he was “suspicious of Byrd for driving with his ‘hands at the 10 and 2 position’ on the steering wheel.” A search of the trunk revealed the drugs. Justice Kennedy, writing for a unanimous Court held: “[T]he mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy in that vehicle.” However, the Court remanded the case for a determination as to whether “one who intentionally uses a third party to procure a rental car by fraudulent scheme for the purpose of committing a crime is no better situated than a car thief.” As might be expected, on remand the 3rd Circuit held the search of the rental vehicle’s trunk would be justified if Ms. Reed’s fraudulent use of a straw renter deprived Byrd of standing (legitimate expectation of privacy), or if probable cause existed to conduct the search, even if Byrd had standing, or if Byrd consented to the search of the car’s trunk, remanding the case back to District Court with instruction that: “As any one of the three grounds discussed would justify the denial of Byrd’s motion to suppress if supported by a more developed record, we will remand this case to the District Court for further proceedings consistent with this opinion.”

District of Columbia v. Wesby, 138 S.Ct. 577 (2018): In District of Columbia v. Wesby, the D.C. Metropolitan Police Department responded to a noise complaint. After hearing loud music, the police entered the home. Inside, the officers found partygoers drinking and watching “scantily clad women with money tucked into garter belts.” The individual hosting the party aptly named “Peaches” was then confronted by the police, who inquired whether she was the owner of the home. “Peaches” acknowledged that she was in the process of renting the property. The actual owner of the home was contacted and confirmed that they had not given consent or permission for the party. As a result, the police arrested the partygoers for trespassing. Ultimately, all charges were dropped and the partygoers sued for false arrest. Among the questions presented to the court was whether the officers had probable cause to arrest the party goers for unlawful entry under D.C. law, which at the time required that the arrestees knew or should have known that they entered the house against the will of the owner. The party goers claimed they were present on the premises relying in good-faith on the invitation of one who had apparent authority, a claim the D.C. District Court found to be valid. Another issue was whether the District’s law was so clearly established

thearresting officers were

precluded from immunity. Justice Thomas, writing for a unanimous Court, held that “[t]he police officers had probable cause to arrest several of the partygoers” and that the officers were entitled to qualified immunity.”

WARRANTLESS BLOOD DRAW FROM UNCONSCIOUS SUSPECT Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019): Police found Mitchell walking near a beach after receiving reports he appeared intoxicated before he had gotten into a van and drove away. Police officers noted Mitchell had trouble maintaining his balance and speaking, and he admitted to drinking before driving. Officers arrested him and took him to a hospital to have his blood drawn after determining based on his physical condition it would be unsafe to perform a field sobriety test. At the hospital Mitchell was

unconscious. Nonetheless, the officer read a form entitled “Informing the Accused” to the unconscious Mitchell and proceeded with the blood draw, pursuant to Wisconsin’s implied consent law. The Supreme Court, in a four-justice plurality opinion by Justice Alito, held that when a driver is unconscious and cannot be given a breath test, the exigent circumstances doctrine generally allows a blood test without consent or a warrant. Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040, (2019). The Court made clear, however, that they were not addressing exigent circumstances involving a broad category of driving under the influence cases, only the instance of an unconscious motorist. The focus of the majority opinion was the necessity of collecting evidence before it dissipated, and the compelling public interest in deterring drunk driving. The Court’s discomfort in approving a blanket exception to the warrant requirement is obvious in its parsing and limiting language, and inclusion of counter examples that would not justifyimplementingexigent circumstance warrantless blood draws. Moreover, the Court remanded the case for further proceedings to determine if the police would have sought a BAC test first before considering a blood draw and to determine if a warrant application would have labored the police officer’s other duties. Justices Sotomayor, Ginsburg, and Kagan vigorously dissented, noting that technology is rapidly diminishing the burden and delay in procuring a search warrant, portending that the Court may revisit this limited exception to the warrant clause in the future. Justice Gorsuch dissented, criticizing the majority’s failure to address the issue of Wisconsin’s implied consent law.

DIGITAL IS DIFFERENT Riley v. California, 134 S. Ct. 2473 (2014): During a valid traffic stop, the police discovered that Riley was driving on a suspended driver’s license. Based upon “department policy,” the vehicle was impounded and an inventory search was conducted. A loaded firearm was found under the hood of Riley’s vehicle and he was arrested. Incident to arrest, Riley was searched and a cell phone (“smart phone”) was found in his pocket. The arresting officers searched the cell phone’s contents without a warrant.

The cell phone

content searches identified videos and photos showing an affiliation with a gang (“the Bloods”) and other incriminating evidence. All of which was offered at Riley’s trail. Under the Court’s prior precedent, officers may search and seize items found on the person of an arrestee (or within his or her reach), incident to that person’s lawful arrest, including any writings, journals or other items found on their person, See Chimel v. California, 395 U.S. 752 (1969). In a surprising unanimous decision, the Chief Justice wrote for the Court holding that digital content is very different inrespect to what arresting officers may generally searchincident to a valid arrest. . For example, it is well settled arresting officers are entitled to read and review any notes, writings and/or ledgers seized from the arrestee’s person or within his or her immediate reach. However, when it comes to digital devices, such as cell phones or computers, the vast amount of personal information that may be stored on such devices warrants a different result. As the Chief Justice notes: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’...The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.” (emphasis supplied).

CELL TOWER LOCATION INFORMATION (CSLI) Carpenter v. United States, 138 S.Ct. 2206 (2018): Typically cell service providers such as AT&T, Verizon, Sprint, and T-Mobile utilize cell towers to facilitate their communication network.13 Cell phones search for the nearest cell tower

Cell phone service providers such as AT&T, Sprint, Verizon and T-Mobile connect to their customers’ cell phones by means of a series of cell towers which pass the communications between mobile phones. As one travels from one locale to another, the smart phone communicates with the nearest cell tower, whether it is in use, or not. The cell service providers maintain this digital data reflecting this information (known as CSLI) for the primary purpose of maintaining this communication system. A corollary use of this digital data is to approximate the location of the cell phones communicating with the provider’s cell towers is utilized by both commercial entities and law enforcement agencies. 13

to transmit and receive digital communications.14 Generally, these cell service providers maintain this data for approximately 5-years. Retrieving or mining this digital information provides an approximate location of a cell phone at a given time.15 Law enforcement uses this historical location information to demonstrate where a particular cell phone (and generally the subscriber/owner/user of that cell phone) was located. While investigating a string of 9 armed robberies targeting Radio Shack and T-Mobile retail stores in Michigan and Ohio between 2010 and 2011, the FBI sought and obtained this location data for suspects covering a 127-day period during the time the robberies took place. The Government obtained the digital records pursuant to a disclosure order under the Stored Communications Act of 1986,16 rather than by securing a warrant based upon probable cause. Using that data, the FBI produced maps placing Carpenter’s phone near 4 of the charged robberies at the time they were committed. Previously the Supreme Court held that bank records actually belong to the bank, See U.S. v. Miller, 425 U.S. 435 (1976), and telephone toll records belong to the telephone service provider. See Smith v. Maryland, 425 U.S. 435 (1976). A concept that became known as the “third-party doctrine.” Writing for a 5 to 4 majority, Chief Justice Roberts first interestingly points out that “[t]here are 396 million cell phone service accounts in the United States—for a Nation of 326 million people.” Rejecting the notion that the third-party doctrine the Court applied to telephone toll records captured on the pen register in Smith v. Maryland could be applied to the sophisticated cell phone location information utilized to determine Carpenter’s location during the critical period relating to the armed robberies, the majority notes this new technology "has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers [of the US Constitution], after consulting the lessons of history, drafted the Fourth Amendment to prevent.”

The cell phone will search for the nearest cell tower, whether it one is communicating conversations, texts or any digital data, or not. As one travels from one point to another, one’s cell phone is constantly seeking out the nearest cell tower in order to maintain the strongest signal. 15 This location information is only approximate and will only reveal whether the particular cell phone is within that cell towers range, which is usually some 2 to 5 miles, depending on the concentration of that provider’s towers, the more towers in that area, the more accurate the location data. There are other variables as well, such as during times of heavy traffic, weather conditions and the like, a cell tower will pass on that transmission to the nearest available tower in order to continue one’s service, which would give the false impression as to the approximate location of that particular cell phone. 16 The Stored Communications Act of 1986, 18 U.S.C. §§ 2701-2712, permits law enforcement to obtain CSLI by summons, without probable cause or a warrant. Rather the statute permits a summons process without notice to the subscriber with only a showing that the governmental entity “offers specific and articulable facts showing that there are reasonable grounds to believe that the…records or other information sought, are relevant and material to an ongoing criminal investigation.’

“[S]eismic shifts in digital technology made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.” Apparently relying on Alito’s concurring opinion in U.S. v. Jones, 565 U.S. 400 (2012) (regarding monitoring a GPS device), Roberts’ notes that the “[c]ourt has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.” “In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person's whereabouts.”17 As in Riley v. California,18 the Chief Justice goes on to hold that “[b]efore compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.” (emphasis supplied).19 Justices Kennedy, Thomas, Alito and Gorsuch each write separate and, at times caustic, dissents. Justice Thomas first bashes the majority’s reliance on the “reasonable expectation of privacy” test for what constitutes a search, and then, agreeing with Justice Kennedy’s lead dissent, goes on to suggest that under the third-party doctrine he would have held that “[b]y obtaining the cell-site records of Metro P.C.S. and Sprint, the Government did not search Carpenter’s property,” the records belonged to the provider. Justice Alito, in dissent distinguished the Stored Communications Act summons from an actual search, noting that: “The Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and

Nevertheless, Justice Alito dissents from the Chief Justice’s opinion. Chief Justice Roberts requotes his language from Riley v. California (the cell phone search case), noting that “[a]llowing government access to cell-site records-which ‘hold for many Americans the 'privacies of life-contravenes’” those citizens’ expectations of privacy. 19 Responding to some of the concerns expressed by the dissenters, the Chief Justice took considerable pain to point out that their opinion was not intended to “affect other parts of the third-party doctrine, such as banking records, nor does it prevent collection of cell tower data without a warrant in emergencies or for national security issues”. 17 18

produce certain documents—must every grand jury subpoena duces tecum be supported by probable cause?” While recognizing the dilatory effect of new technology on a citizen’ reasonable expectation of privacy, Justice Alito expressed the view that on balance the cost to judicial economy and law enforcement efficiency were of paramount concern. “I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.” Justice Gorsuch’s dissent is more complex. On the one hand Gorsuch finds that Miller and Smith’s “third-party doctrine” was not consistent with the original meaning of the 4th Amendment and there is no basis, either historically or in the text of the 4th Amendment to resort to the “reasonable expectation of privacy” test relied upon by the majority. On the other hand, in what reads more like a concurrence, Gorsuch opines these cell phone location records are the “property” of the cell phone owners, and accordingly the 4th Amendment would require a warrant to obtain same. An apparent nod to Scalia’s property-trespass test espoused by Justice Thomas. On remand, the 6th Circuit affirmed, citing the officers’ good faith reliance on the Stored Communications Act of 1986 and Carpenter was sentenced to 116 years in prison. “The unconstitutionality of the Government’s search was not clear until after the Supreme Court reversed our decision....Because these agents reasonably relied on the Stored Communications Act (SCA), we AFFIRM the judgment of the district court.” In a post-Carpenter case, the Texas Court of Criminal Appeals tackled the issue of whether a person is entitled to a reasonable expectation of privacy in real-time cell site location information (CSLI) stored in a cell phone’s electronic storage. See Sims v. State, 569 S.W.3d 634 (Tex. Crim. App. 2019). Sims was charged with the murder of his grandmother, Annie Smith, after police

officers witnessed Sims and his girlfriend purchasing items at a Walmart with the victim’s credit card and driving off in her vehicle. Officers were able to “ping” Sims’s cell phone in order to obtain his location information without a warrant by using an “Emergency Situation Disclosure” form provided by Sims’s wireless carrier. The Court of Criminal Appeals, relying on Carpenter reasoned these cases must be determined on a case-by-case basis. The CSLI data collected in Carpenter consisted of seven days of surveillance, and thus was long-term, which is distinguished from the location data collected in Sims which consisted of less than three hours of real-time CSLI. Furthermore, Sims did not have a legitimate expectation of privacy in his physical movements or location.

FROM PORCHES TO DRIVEWAYS THE “CURTILAGE” OF A HOME Florida v. Jardines, 569 U.S. 1 (2013): Based on an uncorroborated, anonymous tip, officers of the Florida Bureau of Investigation brought their drug sniffing dog by the name of “Franky” to the front porch of Joeliss Jardines’s home in an attempt to determine if there were drugs inside the home. The dog alerted, a warrant was obtained, and the search of Jardines’s home revealed marijuana growing inside. While the issue on which certiorari was granted was whether the dog sniff constituted a search, Justice Scalia, writing for a 5 to 4 majority held the officers and their drug dog were trespassers on Mr. Jardines’s porch when they conducted the dog sniff at his front door. “When the government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has undoubtedly occurred.” While Scalia takes pains to note that a home is one’s castle and is “first among equals” when it comes to 4th Amendment analysis, neither the officers nor the dog ever entered Mr. Jardines’s house. The Court resolves this seeming dilemma, by noting the porch is within the

home’s “curtilage,” and as such, is entitled to the full protection of the 4th Amendment’s warrant and probable cause requirements. “We…regard the area ‘immediately surrounding and associated with the home’— what our cases call the curtilage—as part of the home itself for Fourth Amendment purposes…That principle has ancient and durable roots.” Courts have long held that the increased protection afforded to houses by the Fourth Amendment “has never been restricted to the interior of the house”, but includes the “area immediately surrounding the dwelling”, known as the “curtilage”, as well. Wattenberg v. U.S., 388 F.2d 853, 857 (9th Cir. 1968). See also Fullbright v. U.S., 392 F.2d 434-35 (10th Cir. 1968); U.S. v. Davis, 423 F.2d 974, 977 (5th Cir. 1970); Fixel v. Wainwright, 492 F.2d 480, 483 (5th Cir. 1974); U.S. v. Whaley, 781 F.2d 417, 419–21 (5th Cir. 1986). As in U.S. v. Jones, 566 U.S. 400 (2012), the majority is divided on the reasoning employed to answer the question posed. Justice Scalia answers the question of “whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment,” by noting the Fourth Amendment establishes a simple baseline, that “[w]hen ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a search within the original meaning of the Fourth Amendment’ has ‘undoubtedly’ occurred.” Jardines, 569 U.S. at 5 (quoting U.S. v. Jones, 565 U.S. 400, 406 n. 3 (2012)). Justice Kagan notes in her concurring opinion (joined by Justices Ginsberg and Sotomayor) that while the Court decided the case under the property rubric, in her judgment, the Court, “could just as happily have decided it by looking to Jardines’s privacy interests,” based upon Mr. Jardines’s “reasonable expectation of privacy.” Id. at 13 (Kagan, J., concurring). Justice Kagan notes police officers approached the door of Jardines’ home with a “super-sensitive instrument” which they used to detect things inside that otherwise would have remained undetected. Id. (Kagan, J., concurring). “Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of [his reasonable expectation of] privacy? Yes, that as well.” Id. (Kagan, J., concurring).

Justice Alito begins his dissent in Jardines, much like his dissent in Jones, by describing the reasoning employed by the Court’s majority as deciding an important Fourth Amendment issue by using “a putative rule of trespass law.” Id. at 16 (Alito, J., dissenting). Justice Alito notes the custom of allowing members of the public to approach a front door extends to friends, relatives, and delivery persons, as well as solicitors and peddlers who would likely be unwelcomed. Id. (Alito, J., dissenting). As to the issue of privacy noted by the concurrence, Justice Alito explains that “[a] reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human. Id. at 1421 (Alito, J., dissenting). Nonetheless, the holding remains, “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Id. at 1417–18.

In an interesting case, prior to his appointment to the Supreme Court, Judge Gorsuch, then sitting on the 10th Circuit Court of Appeals took issue with his colleagues’ interpretation of the Supreme Court’s decision in Florida v. Jardines, 133 S.Ct. 1409 (2013), noting that if a resident impliedly consents to the general public approaching their front door, that resident has the ability to withdraw that implied invitation, as well. See United States v. Carloss, 818 F.3d 988 (10th Cir.), cert. denied, 137 S. Ct. 231 (2016). “[T]he homeowner is traditionally said to invite even ‘solicitors’ and ‘hawkers’ to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave… But what happens when the homeowner manifests an obvious intention to revoke the implied license to enter the curtilage and knock at the front door? When the owner literally substitutes the knocker with a No Trespassing sign, one smack in the middle of the front door? When she adds two more No Trespassing signs at the driveway's mouth to the street, one on either side of the only clear access route from the street to the front door— and along the very route any visitor would use to approach the home? And when,

for good measure, she posts still another No Trespassing sign between the driveway and the house? So that to enter the home’s front porch, its constitutionally protected curtilage, visitors would have to disregard four separate and plainly visible warnings that their presence is wholly unwelcome? May officers still—under these circumstances—enter the curtilage to conduct an investigation without a warrant and absent an emergency?...Respectfully, I dissent.” Gorsuch goes on to emphasize the dangers inherent in the ever-increasing use of the “knock-and-talk” ruse. “Because everything happens with the homeowner’s consent…a warrant isn’t needed…No doubt for just this reason law enforcement has found the knock and talk an increasingly attractive investigative tool. But in the constant competition between constable and quarry, officers sometimes use knock and talks in ways that test the boundaries of the consent on which they depend.” Collins v. Virginia, No. 138 S.Ct. 1663 (2018): Officers pursuing a motorcycle for traffic offenses, suspected the motorcycle was stolen, but lost sight of their prey. The following day, in the same neighborhood, the officers observed a motorcycle in plain view, partially covered by a tarp in Collins’s driveway next to his garage. Suspecting this was the same motorcycle they had been chasing the day before, and relying on the automobile exception to the warrant requirement, the officers walked up Collins’s driveway and lifted the tarp. The officers called in the license number and registration of the motorcycle and confirmed it was reported stolen. Justice Sotomayor, writing for an 8 to 1 majority, and relying upon the Court’s reasoning in Jardines held the officers’ intrusion onto Collins’s driveway violated his home’s “curtilage,” and required a warrant. “In physically intruding on the curtilage of Collins’s home to search the motorcycle, Officer Rhodes not only invaded Collins’s Fourth Amendment interest in the…motorcycle, but also invaded Collins’s Fourth Amendment interest in the curtilage of his home.” Nevertheless, the Court remanded the case back to the Virginia Supreme court: “We leave for resolution on remand whether Officer Rhodes’ warrantless intrusion on the curtilage…may have been reasonable on a different basis, such as the excigent circumstances exception to the warrant requirement.” 30

On remand, the Virginia Supreme Court held that: “In our opinion, the exclusionary rule does not apply in this case even if no exigent circumstances existed because, at the time of the search, a reasonably well-trained officer would not have known that a search of the motorcycle, located a few feet across the curtilage boundary of a private driveway was unconstitutional.” Moreover, in a troubling reference to the requirement in Hudson, Herring and Davis’ the officers’ conduct must be shown to be “deliberate,” “culpable,” and “flagrant,”to invoke the exclusionary rule.The Virginia Supreme Court goes on to note that: “We begin with a settled but often overlooked premise. Standing alone, ‘[t]he fact that a Fourth Amendment violation occurred…does not necessarily mean that the exclusionary rule applies…The Fourth Amendment prohibits unreasonable searches and seizures but “says nothing about suppressing evidence obtained in violation of this command.”

TRACKING WITH A GLOBAL POSITIONING SYSTEM (GPS) U.S. v. Jones, 565 U.S. 400 (2012): In Jones the Court determined whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

Believing Jones was involved in narcotics trafficking, the District of

Columbia police obtained a warrant to install and monitor a GPS device on the undercarriage of Jones’ pickup truck. However, their monitoring exceeded both the geographical and time limits of that warrant. Accordingly, the Supreme Court treated both the installation and monitoring of the device as warrantless. While the decision was unanimous, the rationale for same was divided 5 to 4. Scalia, writing for the 5-Justice majority, held that the “attaching” of the GPS device constituted a search, requiring a warrant, reasoning the installation constituted a physical trespass on one of the 4th Amendment’s expressly protected areas, namely “persons, houses, papers and effects.” “At bottom, we must ‘assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted…As explained, for most of our 31

history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas it enumerates.” Scalia, J. Scalia’s majority opinion does not address the issue of monitoring, noting that "It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.” Alito, concurring, reaches the same conclusion with regard to attaching of the device, relying upon the “reasonable expectation of privacy” standard, noting that: “[T]he search of one’s home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person’s privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment.”

However, Scalia goes a step further to find that under the expectation of privacy test, the lengthy monitoring presented in this case, constituted an invasion of Jones’ expectation of privacy, requiring a warrant. “I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove…I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment.” Alito, J. Sotomayor writes separately opining that even cases involving “short-term” monitoring may violate one’s reasonable expectation of privacy. That would make 5 votes for the proposition that any monitoring would constitute a search, requiring a warrant. Given that almost every person and vehicle now come equipped with a GPS device (already furnished with their cellphones, digital devices or their “intelligent” vehicles), five Justices held that the continued warrantless monitoring of that device was an illegal “search.” In March of 2013, the First Circuit examined a case in which FBI agents attached a GPS tracking device to the vehicle of a suspected bank robber. U.S. v. Sparks, 711 F.3d 58 (1st Cir.

2013). Although the ruling in Jones controls the case, the First Circuit concluded the good-faith exception “applied in cases like this one (or Davis itself), where new developments in the law have upended the settled rules on which the police relied.” Id. at 68. The court noted that the officer’s actions had been guided by binding precedent in that circuit. Id. at 67.

OVER BREADTH AND GENERAL SEARCHES Courts have not hesitated to find that a warrant lacking in particularity will not pass Constitutional muster. “Th[e] particularity requirement serves three related purposes: preventing general searches, preventing the seizure of objects upon the mistaken assumption that they fall within the magistrate’s authorization, and preventing the issuance of warrants without a substantial factual basis.” U.S. v. Young, 745 F.2d 733 (2d Cir. 1984), cert. denied, 470 U.S. 1084 (1985). In U.S. v. LeBron, 729 F.2d 533, 536-39 (8th Cir. 1984), the Eighth Circuit held that a warrant for “other stolen property” or “any records which would document illegal transactions involving stolen property” lacks the requisite particularity: “A valid warrant should describe the things to be taken and the place to be searched with particularity such that it provides a guide to the exercise of informed discretion of the officer executing the warrant.... We recognize that, despite the dangers, a warrant may issue to search and seize records if there is probable cause to believe that records which are evidence or instrumentality of a crime will be there and the description is stated with sufficient particularity....The warrant in the instant case, without more, authorized a search for ‘any records which would document illegal transactions involving stolen property’. There is no attempt to particularize the description of the property or of the records themselves. The only limiting factor is the reference to ‘stolen property’. As earlier discussed, this generic classification is not sufficient to provide any guidance to an executing officer. Absent as well is any explanation of the method by which the officers were to distinguish such records from any documents relating to legal transactions.” LeBron, 729 F.2d at 536, 538-39. See also U.S. v. Guarino, 729 F.2d 864 (1st Cir. 1984) [striking down a warrant authorizing seizure of “obscene” films “of the same tenor” as certain enumerated items]; U.S. v. Spilotro, 800 F.2d 959 (9th Cir. 1986) [items relating to loan sharking and bookmaking not described with sufficient particularity]; U.S. v. LeBron, 729 F.2d 533, 539 (8th Cir. 1984) [a search for any records that

would show transactions in stolen property was too generic a classification and thus constituted an impermissible general search]. Contra U.S. v. Gomez, 652 F. Supp. 461 (E.D.N.Y. 1987) [similar case with opposite result]; U.S. v. Burke, 718 F. Supp. 1130 (S.D.N.Y. 1989); U.S. v. Buck, 813 F.2d 588 (2d Cir. 1987), cert. denied, 484 U.S. 857 (1987) [even though warrant lacked sufficient particularity, same was not so apparent that executing officers could not rely on the warrant, especially in light of fact that officers searching in 1981 could not reasonably have anticipated developments in the law]; U.S. v. Villegas, 899 F.2d 1324 (2d Cir. 1990) [“sneak peek” warrant authorizing covert entry to take pictures was held constitutional]. A search warrant which utterly fails to describe the persons or things to be seized has been held to be per se invalid, even if the particularized description is provided in search warrant application. Groh v. Martinez, 540 U.S. 551 (2004).

NEXUS BETWEEN PROBABLE CAUSE AND THE PLACE TO BE SEARCHED There must be sufficient “nexus” between probable cause to believe that the contraband will be located at the place to be searched. “For a probable cause determination to be meaningful there must be a nexus among (1) criminal activity, (2) the things to be seized, and (3) the place to be searched.” W. LaFavre Search and Seizure, 33.7(d) (1978). See also Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 358 (1974); U.S. v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982); U.S. Maestas, 546 F.2d 1177, 1189 (5th Cir. 1977). It also should be clear that an arrest at one location does not give sufficient particularized probable cause to believe evidence of that crime will be located at some distant location, even if same constitutes the arrestee’s residence. U.S. v. Gramlich, 551 F.2d 1359 (5th Cir. 1977) [“This fact alone is insufficient to justify the inference that incriminating evidence existed at that residence”]. This is because warrants are directed against evidence of crime and not against persons. Thus, “[t]he fact that there is probable cause to arrest a person for a crime does not automatically give police probable cause to search his residence or other area in which he has been observed for evidence of that crime.” U.S. v. Savoca, 739 F.2d 220, 224 (6th Cir. 1984). “The affidavit in Gramlich stated that the defendant had been observed over a period of several weeks. During that time, he purchased a van, motorboat and radio equipment under an assumed name. The defendant was also known to possess a

23-foot motorboat named “Pronto” which, according to the affidavit had been docked at the pier outside of the defendant’s residence. Gramlich, 551 F.2d at 1362 n.7. The affidavit went on to relate that on several occasions the defendant had been observed piloting “Pronto” out into the Gulf of Mexico in order to rendezvous with other boats. Based upon the surveillance described, in addition to the arrest of the defendant fifty miles away while he was unloading marijuana from a motorboat, the magistrate granted a search warrant for the defendant’s house. The Fifth Circuit suppressed the evidence obtained as a result of that search because the information in the affidavit failed to establish an adequate connection between the residence searched and the alleged drug smuggling activities.” U.S. v. Gramlich, 551 F.2d 1359 (5th Cir. 1977). Likewise, reliable information that a known felon has committed a burglary and was arrested with some of the proceeds some distance from his home, will not authorize a search of his residence. U.S. v. Flanagan, 423 F.2d 745 (5th Cir. 1970); see also U.S. v. Bailey, 458 F.2d 408 (9th Cir. 1972); U.S. v. Whitlow, 339 F.2d 975 (7th Cir. 1964); Gillespie v. U.S., 368 F.2d 1 (8th Cir. 1966). “The statement (in an affidavit), even if reliable, that a named person who is a known felon has committed a burglary, plus possession by the suspect of some of the proceeds when arrested, does not without more authorize the issuance of a warrant to search the residence of the accused miles away.” Flannagan, 423 F.2d at 747. In U.S. v. Green, 634 F.2d 1222 (5th Cir. 1981), the Fifth Circuit noted that while a “careful review of the affidavit reveals ample evidence from which the magistrate could conclude that (the defendant) was engaged in criminal activity in California,” . . . “no evidence, other than residence, was set forth in the affidavit that connected the Key West, Florida, home to the criminal activity.... The motion to suppress should have been granted.” Green, 634 F.2d at 1225-26. Similarly, in U.S. v. Lockett, 674 F.2d 843 (11th Cir. 1982) the only statement evidencing a nexus between explosives and the residence to be searched, in an affidavit reciting numerous other events and activities of George Lockett, read: “On July 11, 1980, this affiant observed these premises from the public county road and I saw no structures which would indicate proper storage facilities on the premises for storing high explosives. Record, Vol. 1 at 16. There follows a hand

written statement by the affiant to the effect that he believes that dynamite is on the premises.” Lockett, 674 F.2d at 845. In the Eleventh Circuit’s view, “such a conclusory statement, without more, of course has no probative value.” As a result, the Lockett Court concluded the affidavit set forth no facts from which the magistrate could infer that dynamite was located at that particular place”. Lockett, 674 F.2d at 846. See U.S. v. Algie, 721 F.2d 1039, 1042 (6th Cir. 1983) [fifteen phone calls from an apartment “which authorities knew to be used for gambling coupled with an affiant’s belief that telephones are often used to make lay-off bets”, is “insufficient to convince a reasonably prudent person that contraband or evidence of a crime would be found on the premises”].

Another court, however, has applied the good faith exception despite any lack of nexus between the house to be searched and the evidence seized. U.S. v. Hendricks, 743 F.2d 653 (9th Cir. 1984). “Federal agents were in possession of a cocaine-bearing package from Brazil, which they anticipated would be picked up by the individual to whom it was addressed, ...the warrant stated that the package ‘is now being concealed’ at defendant’s residence and added’ the search warrant is to be executed only upon the condition that the above described box is brought to the aforesaid premises’.” The Court concluded the warrant lacked probable cause and explained the magistrate abdicated to the agents “an important judicial function—the determination that probable cause exists to believe that the objects are currently in the place to be searched”. Nevertheless, the court determined the agents acted in “reasonable reliance on the warrant and hence declines to order suppression of the fruits of the search”. Hendricks, 743 F.2d at 655; see also U.S. v. Gant, 759 F.2d 484 (5th Cir. 1985); Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985) [holding lack of substantial nexus between the street crime and the premises to be searched renders the warrant facially invalid]; U.S. v. Marriott, 638 F. Supp. 333 (N.D. Ill. 1986). But see U.S. v. Asselin, 775 F.2d 445 (1st Cir. 1985)

[officers were found to have acted in “good faith” interpreting the word “premises” to include surroundings so as to authorize two searches of a disabled car adjacent to the carport and a birdhouse hanging from tree fifteen feet from trailer steps]; U.S. v. Kenney, 595 F. Supp. 1453 (D.C. Ma. 1984) [“probable cause existed to search safety deposit box for cash “because officers had probable cause to believe defendant was engaged in trafficking”, but there existed no nexus between the gold, silver and jewelry found in the box and suspected drug trafficking].

PROSECUTION SHOULD BEAR THE BURDEN OF DEMONSTRATING “GOOD FAITH” The Supreme Court in Leon appeared to place the burden on the prosecution “to establish objective good faith”. “The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the goodfaith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecutions should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.” Leon, 468 U.S. at 924. See also U.S. v. Gant, 587 F.Supp. 128 (S.D. Tex. 1984), rev’d on other grounds 759 F.2d 484 (5th Cir. 1985), cert. denied, 474 U.S. 851 (1985) [allocating burden of proof upon the Government, “which if proved by the government, would save the evidence from the effects of the exclusionary rule”]; U.S. v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984)[“The standard to be employed [in determining the officers’ good faith reliance] is an objective one and the prosecution bears the burden of proof’].

“GOOD FAITH” RELIANCE ON SUMMONS The good faith exception also applies in other areas where law enforcement officers are acting in reliance on the issuance of process by a grand jury or prosecutor on its behalf. U.S. v. Gluck,

771 F.2d 750 (3d Cir. 1985) [“good faith” exception applies to IRS summons based on facially valid grand jury disclosure order unauthorized under U.S. v. Baggot, 771 F.2d 750, 103 3164, 77 L.Ed.2d 785 (1983)].

“GOOD FAITH” EXCEPTION APPLIES TO WARRANTLESS ADMINISTRATIVE SEARCHES AUTHORIZED BY STATUTE LATER FOUND UNCONSTITUTIONAL Illinois v. Krull, 480 U.S. 340 (1987): The Supreme Court extended the good faith exception to a warrantless administrative search conducted in objectively reasonable reliance on a statute later held unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987). However, constraints similar to those set forth in Leon apply. “A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional.... [T]he standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.” Krull, 480 U.S. at 355 [citing Leon, 468 U.S. at 919 n.10]. The Court also recognized the risks involved in its holding. “It is possible, perhaps, that there are some legislators who, for political purposes, are possessed with a zeal to enact a particular unconstitutionally restrictive statute, and who will not be deterred by the fact that a court might later declare the law unconstitutional. ...[W]e are not willing to assume...legislators ... perform their legislative duties with indifference to the constitutionality of the statutes they enact. If future empirical evidence ever should undermine that assumption, our conclusions may be revised accordingly. Krull, 480 U.S. at 352 n.8 [citing Leon, 468 U.S. at 927-28]. Justice O’Conner, writing for the 4 dissenting justices, noted that: “Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws. . . . [i]t cannot be said that there is no reason to fear that a particular legislature might yield to the temptation offered by the Court’s good faith exception.” Krull, 480 U.S. at 352 [O’Connor, J., dissenting].

OTHER WARRANTLESS SEARCHES Brown v. Polk County, Wisconsin, 141 S. Ct. 1304 (2021) Although the Supreme Court denied certiorari, Justice Sotomayor provided a statement. In this case, the defendant contested an invasive search of her body during pre-trial detention. In this search, the petitioner was examined by a doctor who used a speculum to spread open her vagina and shine a light inside to search for contraband; the same was done to her rectum. The 7th Circuit found mere reasonable suspicion justified this search—the same degree used for Terry stops. Petitioner argues the extreme invasiveness of these procedures should require probable cause and a warrant or exigent circumstances. Justice Sotomayor emphasizes “the degree of suspicion required for a search should be substantially informed by the availability of less intrusive alternatives.” Justice Sotomayor chastises the 7th Circuit for failing to consider whether other alternatives were available before holding reasonable suspicion alone was sufficient justification to perform “this degrading search” on a person who had not even been convicted of any crime. Petitioner was arrested for shoplifting and during her second day in jail, two inmates reported petitioner was hiding drugs in her body. Based on the inmates word alone, petitioner was taken to the hospital and although an ultrasound found no foreign objects the doctor proceeded to perform the visual inspections of her vagina and anus. Jail personnel indicated these searched were ordered whenever someone made such an accusation without any consideration of the source’s reputation for honesty, or any other investigation of the accusation. Justice Sotomayor expressly states the 7th Circuit’s failure to consider something less intrusive that would still meet the interest of ensuring jail security was error. There were a myriad of less invasive alternatives and the method used should be the least intrusive means

reasonably available to verify or dispel the officer’s suspicion. Florida v. Royer, 460 U.S. 491, 500 (1983). City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015): The Los Angeles Municipal Code (LAMC) required hotel and motel operators to keep records with detailed information about their guests. The LMAC also authorized police officers to inspect these records at any time without requiring a search warrant. The Patels, who owned and operated a hotel in Los Angeles, filed a petition, arguing the LMAC violated their Fourth Amendment protection against unreasonable seizures. Justice Sotomayor delivered the 5-4 majority opinion and held that an individual may challenge a statute for violating the Constitution on its face without needing to allege unconstitutional enforcement, and that the municipal ordinance in question is unconstitutional on its face because it does not allow for hotel operators to engage in pre-compliance review by questioning the reasonableness of the subpoena in district court. The Court also held that hotels are not a “closely regulated” business and therefore do not fall under that exception to the warrant requirement. Justice Scalia wrote a dissent, arguing the ordinance is constitutional because it is not unreasonable under the circumstances. Rodriguez v. United States, 135 S. Ct. 1609 (2015): Rodriguez was pulled over for a minor traffic violation for which he received a warning. After giving the warning, the officer asked permission to walk his K-9 unit around Rodriguez’s vehicle, which he refused. The officer ordered Rodriguez to exit the vehicle and walked the K-9 around his car and the dog alerted. A search revealed a large bag of methamphetamine. Rodriguez argued the K-9 search violated his Fourth Amendment rights. The Court held the use of a K-9 unit after completion of an otherwise lawful traffic stop exceeded the time reasonably required to handle the matter and therefore unreasonable under the Fourth Amendment. The Court clarified

that a seizure unrelated to the reason for the stop is lawful only if it doesn’t measurably extend the stop’s duration. Akinmboni v. United States, 126 A.3d 694 (D.C. Ct. App. 2015): In Akinmbomi, The court held the warrantless search and removal of items from an individual’s body cavity violates the Fourth Amendment.

Akinmboni v. United States, 126 A.3d

694, (2015). Here, the defendant was pulled over for a broken taillight. The officer smelled burnt marijuana when approaching the defendant’s car and noticed the defendant placed an item in his mouth and began chewing. Id. at 695. Unable to retrieve that item. the officer conducted a search of the vehicle, found marijuana, and arrested the defendant. At the stationhouse, the officer conducting a pat down search of defendant felt a foreign object. They asked the defendant to remove all of his clothing and to permit visual inspection of his anal cavity. Id. at 696. Upon inspection, officers found three separate baggies containing marijuana, pills of assorted colors, crack, and cocaine. Defense counsel subsequently filed a motion to suppress the evidence under the Fourth Amendment, arguing that officers lacked a warrant and a doctor should have been involved. Id. The trial court denied the motion, and after a jury trial, Akinmboni was convicted of possession of controlled substances. Appeal followed. On appeal, it is uncontested that the officer directive to the defendant to remove the items from his anal cavity constituted a Fourth Amendment search and seizure Determining whether a search or seizure was conducted in a reasonable manner requires a balancing of the needs of the government against the invasiveness of the intrusion and its impact on the suspect. Bell v. Wolfish, 441 U.S. 520, 559 (1979). In assessing reasonableness, courts “must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id.; see also, e.g., Washington v. United States, 594 A.2d 1050,

1052 (D.C. 1991). Where a search or seizure involves the removal of items from sensitive body cavities, including anal or vaginal cavities, the reasonableness of the methods used may depend upon “a variety of factors including hygiene, medical training, emotional and physical trauma, and the availability of alternative methods for conducting the search.” United States v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015). It was argued that the officer acted in accordance with official policy, and therefore the search was constitutional. Id. However, the fact a search was conducted in accordance with an applicable policy does not by itself establish that the search was reasonable. See, e.g., Way v. County of Ventura, 445 F.3d 1157, 1160–62 (9th Cir.2006). Therefore, the court found that even though officers complied with their established policy, the removal of the items was substantially more intrusive than a search that entails only visual inspection.

DIGITAL SEARCHES In U.S. v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), the 10th Circuit was confronted with the practice of 3rd party providers (in this case AOL) scanning all outgoing e-mails with an “automated filter”20 for known images of child pornography, upon receiving a “positive hit,” sending that e-mail, together with any attachments to the National Center for Missing and Exploited Children (NCMEC), a private entity, who in turn open the e-mail and, if finding evidence of child pornography, refers same to criminal investigators. As for whether the opening of the e-mail by NCMEC, a private entity, constitutes “state action” for 4th Amendment analysis, Judge Gorsuch makes short shrift, holding that NCMEC is

Utilizing an algorithm that produces a hash value, some consider a “digital fingerprint.” See Richard P. Salgado, Fourth Amendment Search and the Power of the Hash, 119 Harv. L. Rev. F. 38, 38-40 (2005). 20

the Government for 4th Amendment purposes, and even if it isn’t, it is an agent of the Government under these circumstances. “[NCMEC is an] organization that was statutorily obliged to operate as official national clearinghouse for information about missing and exploited children [and thus] was a government entity for purpose of determining whether its search of defendant’s e-mail violated [the] Fourth Amendment.” Ackerman, 831 F.3d at 1292. With regard to whether the opening of that e-mail constituted a “search” for 4th Amendment purposes, Judge Gorsuch again has no problem reaching that conclusion in simple, concise and piercing terms: “We are dealing…with the warrantless opening and examination of (presumptively) private correspondence that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment.” “Of course, the framers were concerned with the protection of physical rather than virtual correspondence. But a more obvious analogy from principle to new technology is hard to imagine.” Moreover, Judge Gorsuch cuts to the quick of the long-standing dispute between whether we analyze the search issue in terms of Scalia’s property-trespass approach or in terms of Alito’s reasonable expectation of privacy analysis.21 Without taking sides, Gorsuch describes the opening of Ackerman’s e-mail intuitively as a “trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment,” noting: “So it seems that, whether we analyze the search question through the lens of the government’s preferred authority— Katz —or through the lens of the traditional trespass test suggested by Jones, they yield the same (and pretty intuitive) result: NCMEC conducted a ‘search’ when it opened and examined Mr. Ackerman’s email.”

USE OF SOPHISTICATED TECHNOLOGY In U.S. v. Denson, 775 F.3d 1214 (10th Cir. 2014) Gorsuch was confronted with the use of a small hand-held “Doppler radar device” capable of detecting the presence of individuals inside See Comparison between Scalia’s lead opinion and Alito’s concurrence in U.S. v. Jones, 565 U.S. 400 (2012) 21

a residence. Taking his lead from the Supreme Court’s thermal imaging case22, the new Justice had no difficulty determining that using such a “powerful tool to search inside homes poses grave Fourth Amendment questions.” Denson, 775 F.3d at 1218. “The government brought with it a Doppler radar device capable of detecting from outside the home the presence of ‘human breathing and movement within.’…. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights. See, e.g., Kyllo v. United States, 533 U.S. 27, 33–35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment). Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings.23 We have little doubt that the radar device deployed here will soon generate many questions for this court and others along both of these axes.” Id. Nevertheless, Gorsuch, applying the “independent source rule,” easily affirms Denson’s conviction, noting that “all of the facts we’ve outlined above were discovered independently of the potentially problematic radar search—a fact that requires us to defer those questions to another day.” Id. at 1218-19.

“GOOD FAITH” MUST BE OBJECTIVE The standard for applying the “good faith” exception to the exclusionary rule is an objective, not subjective one. “Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. ‘Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth See Kyllo v. United States, 533 U.S. 27, 33–35 (2001) [use of a “thermal imaging” device]. However, Scalia’s 5 to 4 opinion rests on the finding that such technology was “not readily available,” a scary concept, not mentioned in Gorsuch’s holding that the use of a Doplar radar device constituted a search. 23 Gorsuch’s statement that “unlawful searches…may require suppression of evidence in criminal proceedings,” would appear to be a subtle recognition of the Supreme Court’s recent insistence that evidence obtained through the violation of an individual’s constitutionally protected right to privacy is not necessarily subject to the exclusionary remedy. Compare Hudson v. Michigan, 547 U.S. 586 (2006) with Davis v. U.S., 546 229 (2011) and see discussion regarding erosion of the exclusionary rule hereafter. 22

Amendment.’ The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits.” U.S. v. Leon, 468 U.S. 897, 919 n. 20 (1984) (internal citations omitted). As Professor Jerold Israel has observed: “The key to the [exclusionary] rule’s effectiveness as a deterrent lies, I believe, in the impetus it has provided to police training programs that make officers aware of the limits imposed by the Fourth Amendment and emphasize the need to operate within those limits. [An objective good-faith exception]...is not likely to result in the elimination of such programs, which are now viewed as an important aspect of police professionalism. Neither is it likely to alter the tenor of those programs; the possibility that illegally obtained evidence may be admitted in borderline cases is unlikely to encourage police instructors to pay less attention to Fourth Amendment limitations. Finally, [it] ...should not encourage officers to pay less attention to what they are taught, as the requirement that the officer act in ‘good faith’ is inconsistent with closing one’s mind to the possibility of illegality.” Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich. L.Rev. 1319, 1414 n. 396 (1977). Whether the officer acted in good faith is a question of law which receives an independent review in the courts of appeal. For example, the Supreme Court found that a mistake in the execution of a warrant might, under the circumstances of the case, warrant application of the “good faith” exception. However, the exception will not apply if officers are negligent in execution of a warrant and their mistake is unreasonable. In Maryland v. Garrison, the Court found the objective good faith standard was met where officers made a mistake conducting a search where the warrant did not authorize. The officers obtained a warrant for an apartment on the third floor of a building, but mistakenly thought the apartment named in the warrant covered the entire floor. The court held that the officers made a “good faith” mistake in searching the wrong apartment. Maryland v. Garrison, 480 U.S. 79 (1987). But see U.S. v. Palacios, 666 F. Supp. 113 (S.D. Tex. 1987) [stating evidence is not admissible under good faith exception when arrest warrant is negligently executed thereby arresting wrong person; mistake was not reasonable].

While the Supreme Court has voiced concern over the “substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights” it leaves no question as to the rule’s continued viability. U.S. v. Leon, 468 U.S. 897, 907 (1984). “The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern....” “...Nevertheless, the balancing approach that has evolved in various contexts—including criminal trials—forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment.” U.S. v. Leon, 468 U.S. 897, 907 (1984). Despite the Court’s concern, a study regarding the practical effect of the “good faith” exception on warrants indicates no increase in their quality and quantity. Rather, some studies suggest that the effect of the Leon decision has been to encourage prosecuting authorities to seek warrants in situations where previously they would not. Police Executive Research Forum, The Effects of United States v. Leon on Police Search Warrant Policies and Practice (1988). Texas’ Statutory equivalent to the Federal Exclusionary Rule also provides for a good faith exception. Tex. Code Crim. P. art. 38.23(b) (Vernon 1989). [where a defective warrant has been issued by a magistrate and the warrant was based on probable cause, if the executing officer believes in good faith the warrant is valid, the evidence is nevertheless admissible].

“UNREASONABLE DELAY” BEFORE PRESENTMENT AS GROUNDS FOR SUPPRESSION OF CONFESSION Corley v. United States, 556 U.S. 303 (2009) A divided Court held in Corley v. United States, 556 U.S. 303 (2009), that 18 U.S.C. § 3501 did not overrule the Court’s line of cases following McNabb v. United States, 318 U.S. 332 (1943) superseded by statute 556 U.S. 303, and Mallory v. United States, 354 U.S. 449 (1957) superseded by statute 354 U.S. 449.

In his opinion for the Court, Justice Stevens considered rationale of 46

McNabb-Mallory and the legislative history of § 3501 to conclude that Congress only intended to limit McNabb-Mallory and not to eliminate it. Corley, 556 U.S. at 306. Stevens went on to state that “Justice Frankfurter’s point in McNabb is as fresh as ever: ‘The history of liberty has largely been the history of observance of procedural safeguards.’” Id. at 321 (citing McNabb). The result of Corley, however, is not that a confession obtained prior to presentment is automatically suppressed, but rather “… a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was ‘reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]’). If the confession came within that period, it is admissible, subject to other Rules of Evidence, so long as it was “made voluntarily and … the weight to be given to [it] is left to the jury.” If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed. Corley at 322.

STATES ARE FREE TO PROVIDE GREATER PROTECTIONS TO THEIR CITIZENS Lego v. Twomey, 404 U.S. 477 (1972). Since United States Constitution sets a floor below which our constitutional rights cannot fall and the states set the ceiling, states are free to provide greater protections than afforded citizens under the federal system. Lego v. Twomey, 404 U.S. 477 (1972); Oregon v. Hass, 420 U.S. 714 (1975); Texas v. White, 423 U.S. 67 (1975); Michigan v. Mosley, 423 U.S. 96 (1975). “[I]t is appropriate to observe that no state is precluded from adhering to higher standards under state law. Each state has the power to impose higher standards governing police practices under the state law than is required by the federal constitution.” Mosley, 423 U.S. at 120.

For example, Pennsylvania has rejected the Leon good faith exception to the exclusionary rule. See Com. v. Edmunds, 586 A.2d 887 (Pa. 1991) [finding that the exclusionary rule also protects the individual’s right to privacy the Court rejected the Leon good faith exception]; State v. Santiago, 492 P.2d 657 (Haw. 1971) [rejecting Harris v. New York, 401 U.S. 222 (1971)]; State v. Johnson, 346 A.2d 66 (N.J. 1975) [rejecting waiver of constitutional right approach of Schneckloth v. Bustamonte, 412 U.S. 218 (1975)]; Blue v. State, 558 P.2d 636 (Alaska 1977) [rejecting Kirby v. Illinois, 406 U.S. 682 (1972) [interpretation of right to counsel at pre-indictment lineups)]; State v. Kaluna, 520 P.2d 51 (Haw. 1974) [rejecting Supreme Court’s interpretation of right to search incident to an arrest in U.S. v. Robinson, 414 U.S. 218 (1973) and Gustafson v. Florida, 414 U.S. 260 (1973)]; State v. Jackson, 688 P.2d 136 (Wash. 1984) [rejecting the Gates “totality” test]; State v. Sidebotham, 474 A.2d 1377 (N.H. 1984) [Jones-type automatic standing held still available in New Hampshire]; State v. Bolt, 689 P.2d 519 (Ariz. 1984) [refusing to allow securing premises for purposes of obtaining warrant as per Segura]; Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986) [noting independent state constitution restricts use of even uncounseled silence]; State v. Jewitt, 500 A.2d 233 (Vt. 1985); State v. Young, 867 P.2d 593 (Wash. 1994). “Since 1970 there have been over 250 cases in which state appellate courts have viewed the scope of rights under state constitutions as broader than those secured by the federal Constitution as interpreted by the United States Supreme Court.... ‘A lawyer today…who does not argue that the state constitution provides…protection is skating on the edge of malpractice’…. [T]he philosophy of the U.S. Supreme Court may ebb and flow…. The development of state constitutional jurisprudence will call for the exercise of great judicial responsibility as well as diligence from the trial bar. It would be a serious mistake for this court to use its state constitution chiefly to evade the impact of the decisions of the U.S. Supreme Court. Our decisions must be principled, not result oriented.” State v. Jewett, 500 A.2d 233, 222-24 (Vt. 1985). The Supreme Court dismissed as improvidently granted a writ of certiorari on the ground that the court below had rested its suppression decision “on independent and adequate state grounds”.

This was in spite of the fact that the Court had decided the same issue on the same day differently in a Federal case where the decision below rested solely on Federal Constitution standards, reaffirming that States are free to prescribe greater protections for their citizenry. Florida v. Casal, 462 U.S. 637 (1983). Even in Gates, the Supreme Court recognized that a different rule would attach if it were considering actions of state officials under state statutes: “‘Due regard for the appropriate relationship of this Court to state courts,’ demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials...we permit a state court, even if it agrees with the state as a matter of federal law, to rest its decision on an adequate and independent state ground.” Gates, 462 U.S. at 221-22. In California v. Ramos, the Supreme Court, speaking through Justice O’Connor, reiterated that: “It is elementary that States are free to provide greater protections in their criminal justice system than the Federal Constitution requires.” California v. Ramos, 463 U.S. 992 (1983). Again, as set out above, Texas has a statutory exclusionary rule, Tex. R. Cr. P. 38.23. However, note that the Texas Court of Criminal Appeals, in an en banc opinion, held that the Texas Constitution contains no requirement that a seizure or search be authorized by a warrant, and any seizure or search that is otherwise reasonable will not be found to be in violation of Texas Constitution because it was not authorized by a warrant. Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998). Additionally, the court added that it had “expressly conclude[d] that this court, when analyzing and interpreting article I, section 9 of the Texas Constitution, will not be bound by Supreme Court decisions addressing the comparable Fourth Amendment issue,” quoting Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991); see also Polk v. State, 704 S.W.2d 929, 934 (Tex. Crim. App. 1986); Oliver v. State, 711 S.W.2d 442, 445 (Tex. App.—Fort Worth, 1986) [the independent

source and inevitable discovery exceptions to the judicially created exclusionary rule do not apply to article 38.23 and will not, short of an amendment]; Com. v. Upton, 476 N.E.2d 548 (1985) [twopronged Aguilar-Spinelli test retained for state law purposes instead of the Gates totality of the circumstances standard. Court noted that the Aguilar standard had been working well for twenty years, encouraged careful police work and tended to reduce the number of unreasonable searches]; State v. Jackson, 688 P.2d 136 (Wash. 1984).

It should be noted, however, that even if a state

provides protections greater than those required by the Constitution, it does not necessarily trigger constitutional protections. See Virginia v. Moore, 553 U.S. 164 (2009) [Fourth Amendment did not require exclusion of evidence obtained as a result of a search based on an arrest permission under federal constitutional protections but illegal under state law].

SEVERAL STATES HAVE REJECTED ANY LEON “GOOD FAITH” EXCEPTION A number of state courts rejected the Leon “good faith” exception to the exclusionary rule on state constitutional grounds: “By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court’s decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and benefits of creating a good faith exception to the federal exclusionary rule. This empirical assessment can inform this Court’s decision on the good faith exception only to the extent that it is persuasive. If the assessment is flawed, this Court cannot simply accept the conclusion the Supreme Court draws from it. To do so would be contrary to our obligation to ensure that our state exclusionary rule effectuates [our State Constitutional provisions], and would deserve those rights. “When the [United States Supreme] Court’s analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the ‘costs’ of excluding illegally obtained evidence loom to exaggerated heights and where the ‘benefits’ of such exclusion are made to disappear with a mere wave of the hand.” “The exclusionary rule’s deterrent effect, however, does not rest primarily on ‘penalizing’ an individual officer into future conformity with the Constitution. Rather, it rests on ‘its 50

tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally.’...It creates an incentive for the police as an institution to train its officers to conform with the Constitution. Consequently, the important question is not whether it is of any benefit to ‘penalize’ the objectively reasonable conduct of an individual officer, but rather whether failure to do so will lower the incentive for institutional compliance.” State v. Oakes, 598 A.2d 119 (Vt. 1991); see also Com. v. Edmunds, 586 A.2d 887, 899 (Pa. 1991). “Indeed, we disagree with that Court’s suggestion in Leon that we in Pennsylvania have been employing the exclusionary rule all these years to deter police corruption. We flatly reject this notion. We have no reason to believe that police officers or district justices in the Commonwealth of Pennsylvania do not engage in ‘good faith’ in carrying out their duties. What is significant, however, is that our Constitution has historically been interpreted to incorporate a strong right of privacy, and an equally strong adherence to the requirement of probable cause under Article 1, Section 8. Citizens in this Commonwealth possess such rights, even where a police officer in ‘good faith’ carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause. To adopt a ‘good faith’ exception to the exclusionary rule, we believe, would virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.” Com. v. Edmunds, 586 A.2d at 399. “Initially, we note that the exclusionary rule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.... If we were to adopt the good faith exception, our practice of declining to address doubtful constitutional issues unless they are essential to the disposition of a case would preclude our consideration of probable cause beyond reviewing whether an officer had an ‘objectively reasonable’ belief in its existence. Absent a meaningful necessity to review probable cause determinations, we conclude that close cases will become ‘both the hardest to decide and the easiest to dispose of under the good faith exception; in such cases the officer’s objective good faith is clearest’...In short, we are simply unable to sanction a practice in which the validity of search warrants might be determined under a standard of ‘close enough is good enough instead of under the ‘probable cause’ standard mandated by article 1 section 7, of our state constitution.” State v. Marsala, 579 A.2d 58 (1990), remanded, 620 A.2d 1293 (Conn. 1993). See also State v. Guzman, 842 P.2d 660, 672, 677 (Idaho 1992). “In sum, the United States Supreme Court has abandoned the original purposes of the exclusionary rule as announced in Weeks and adopted by this Court in Arregui, in that the federal system has clearly repudiated any purpose behind the exclusionary rule other than that of a deterrent to illegal police behavior. Thus, the change in federal law has provided an impetus for a return by this Court to exclusive state analysis.... The exclusionary rule unencumbered by the good faith exception provides incentives for the police department and the judiciary to take care that each warrant applied for and issued is in fact supported by probable cause. In

addition to encouraging compliance with the constitutional requirement that no warrant shall issue but upon probable cause, it also lessens the chances that innocent citizens will have their homes broken into and ransacked by the police because of warrants issued upon incomplete or inaccurate information. We believe these are laudable effects of the exclusionary rule which appear to have gone unrecognized by the Leon majority.” State v. Guzman, 842 P.2d at 672, 677. “The Leon good faith exception contemplates that appellate courts defer to trial courts and trail courts defer to the police. It fosters a careless attitude toward details by the police and issuing judicial officers and it even encourages them to attempt to get away with conduct which was heretofore viewed as unconstitutional.... The decision in Leon represents a serious curtailment of the Fourth Amendment rights of the individual. But under the broader protection guaranteed the individual under our State Constitution, the State is not permitted to introduce evidence in its case in chief which has been seized without probable cause.” State v. Novembrino, 491 A.2d 37, 45-46 (N.J. 1985). “Whether or not the police acted in good faith here, however, the Leon rule does not help the People’s position. That is so because if the People are permitted to use the seized evidence, the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action and a positive incentive is provided to others to engage in similar lawless acts in the future. We therefore decline, on State constitutional grounds, to apply the good-faith exception the Supreme Court stated in United States v. Leon.” People v. Bigelow, 488 N.E.2d 451 (N.Y. 1985); See also State v. Grawien, 367 N.W.2d 816 (Wisc.), rev. denied, 371 N.W.2d 375 (1985); State v. Joyce, 639 A.2d 1007 (1994). Other state courts have come to the same conclusion on statutory grounds. See Com. v. Upton, 476 N.E.2d 548 (Mass. 1985); Gary v. State, 422 S.E.2d 426 (Ga. 1992), aff’d, State v. Gary, 432 S.E.2d 123 (Ga. 1993). But see State v. Wills, 524 N.W.2d 507 (Minn. App. 1994); Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990). Texas has a statutory exclusionary rule, Tex. R. Cr. P. art. 38.23(a) which provides that: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” TEX. R. CRIM. P. Art. 38.23(a). Tex. R. Cr. P. Art. 38.23(b) provides that: “It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith

reliance upon a warrant issued by a neutral magistrate based upon probable cause.” TEX. R. CRIM. P. Art. 38.23(b). The Texas Court of Criminal Appeals has interpreted the language of this particular statute to constitute an express legislative rejection of any Leon “good faith” exception. “We also note the appeals court was incorrect in finding the statute a codification of United States v. Leon,...because Art. 38.23(b) requires a finding of probable cause, while the exception enunciated in Leon appears more flexible in allowing a good faith exception if the officer’s belief in probable cause is reasonable. Thus, we must direct our attention to the validity of the warrant and affidavit without recourse to any ‘good faith’ exception to the warrant requirement.” Gordon v. State, 801 S.W.2d 899, 912–13 (Tex. Crim. App. 1990).

SUBJECTIVE INTENT OF THE OFFICERS The Supreme Court has repeatedly held that the “motivations of individual officers,” their “subjective intentions play no role in ordinary probable cause Forth Amendment analysis.” Whren v. U.S., 517 U.S. 806 (1996).

Supreme Court reiterates that it will “not entertain Fourth

Amendment challenges based on the actual motivations of individual officers.” “A traffic-violation arrest will not be rendered invalid by the fact that it was ‘a mere pretext for a narcotics search.” Arkansas v. Sullivan, 532 U.S. 769 (2001). Furthermore, in a unanimous opinion the Supreme Court held that officers may enter a residence without a warrant where there exists an emergency, regardless of the officers “subjective intent.” See Brigham City Utah v. Stuart, 547 U.S. 398, 405 (2006) (“[i]t therefore does not matter here…whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence.” The distinction between an “inventory” and a “search” is “based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence of crime.” Florida vs. Wells, 495 U.S. 1 (1990). In City of Indianapolis v. Edmond, “[t]he primary purpose of the Indianapolis narcotics checkpoints is in the end to advance the general interest in crime control…. We decline to suspend the usual requirement of individualized

suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes.” 531 U.S. 32 (2000). The Court held that it “cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.” However, in practice, courts, of necessity, regularly look to an officers, purpose or subjective intent when making such determinations. For instance, in Bond v. U.S., an officers purpose in squeezing a bag in a closed compartment was “exploratory”, and thus a “physical manipulation of petitioner’s bag [that] violated the Fourth Amendment.” 529 U.S. 334, 339 (2000). In U.S. v. Green, officers could not search the passenger compartment of a vehicle pursuant to New York v. Belton, where Defendant was arrested some six to ten feet away from his vehicle. “The principle behind Belton and Chimel is [protection of] police officers and citizens who may be standing nearby from the actions of an arrestee who might gain access to a weapon or destructible evidence…. Although Green tried to flee…at the time the search occurred he was handcuffed and lying face down on the ground surrounded by four police officers, approximately six to ten feet from his vehicle.… Because none of the concerns articulated in Chimel and Belton regarding law enforcement safety and the destruction of evidence [were] present in this case, the Government cannot justify the search of Green’s vehicle under Belton or Chimel.” U.S. v. Green, 324 F.3d 375, 379 (2003). Driver’s license roadblocks used to enforce general criminal investigations are prohibited, in Texas. “While the statute purports to give peace officers the right to stop and detain motorists for the limited purpose of checking their driver’s or operator’s licenses, it does not authorize fishing expeditions.” Meeks vs. State, 692 S.W.2d 504 (1985).

INVADING THE THRESHOLD OF ONE’S HOME

“[T]he Fourth Amendment has drawn a firm line at the entrance to the house, holding that absent exigent circumstances, the threshold of the home may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573 (1980). Police must obtain an arrest warrant to arrest someone in their home, even where the suspect voluntarily opens the door and exposes himself to public view in response to police knocks. Payton establishes a bright-line rule that “any physical invasion of the structure of the home, ‘by even a fraction of an inch,’ is too much.” McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007).

CONSENSUAL SEARCHES (CO-OCCUPANT’S REFUSAL) In Georgia v. Randolph, 547 U.S. 103 (2006), the Court held that law enforcement officers’ warrantless search of a shared home pursuant to the consent of one resident violated the Fourth Amendment rights of another resident who is present and expressly objects to the search. The Court reasoned that the Fourth Amendment’s prohibition of unreasonable searches and seizures forbade law enforcement officers to conduct a warrantless search of a home pursuant to the consent of the wife when the husband was present on the scene and objected to the search.

REMOVING THE NON-CONSENTING SPOUSE FROM PREMISIS Fernandez v. California, 571 U.S. 292 (2014). Police entered the Fernandez residence, responding to a family disturbance. When officers asked for consent to search Fernandez refused. After arresting and removing Fernandez from the premises, those same officers returned about an hour later, and after obtaining his wife’s consent proceeding to search the home.

Justice Alito, writing for the majority, noted: “[t]he Court’s opinion [in Randolph] went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present.” Id. at 301. The Court held “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” Id. at 303. Justices Scalia and Thomas concurred in the judgment, yet wrote separately to state that they would “find this a more difficult case if it were established that property law did not give petitioner’s cotenant the right to admit visitors over petitioner’s objection.” Id. at 1138 (Scalia, J., concurring). This rationale is consistent with Justice Scalia’s previously employed reasoning in U.S. v. Jones, 565 U.S. 400 (2012) and Florida v. Jardines, 569 U.S. 1 (2013), where he used property law to decide Fourth Amendment issues. In their dissent, Justices Ginsburg, Sotomayor, and Kagan note that the case should have been easily resolved adhering to the warrant requirement. “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.” Fernandez v. California, 571 U.S. 292 (2014).

EXIGENT CIRCUMSTANCES Kentucky v. King, 563 U.S. 452 (2011) Although warrantless searches are presumptively unreasonable under the Fourth Amendment, the Court has carved out exceptions to that general rule for (among other things) exigent circumstances, such as the imminent destruction of evidence. The lower courts had held that the exigent circumstances rule did not apply when the exigency was created by police conduct, but there was no consensus on how to determine when police impermissibly create such exigencies. In Kentucky v. King, the Court, in an opinion by Justice Alito, held that the exigent

circumstances rule applies as long as the police do not use an actual or threatened violation of the Fourth Amendment to gain entry to a premises. The case arose from efforts by police to follow a suspected drug dealer into an apartment building. Although the officers were unsure which apartment the suspect had entered, they smelled marijuana wafting from one apartment: they then knocked on that door and identified themselves as police. When they heard shuffling noises inside the apartment after the knock, the police believed evidence was being destroyed and entered the apartment without a warrant; inside, they found respondent Hollis Deshaun King, along with drugs and drug paraphernalia. In reaching its holding, the Court rejected several other tests adopted by lower courts generally and the Kentucky Supreme Court in this case: it reasoned, for example, that a “bad faith” requirement would be inappropriate because only objective reasonableness is relevant; that a “reasonable foreseeability” test would be too unpredictable and difficult to quantify; that requiring police to get a warrant as soon as they have probable cause would “unjustifiably interfere[] with legitimate law enforcement strategies” and is inefficient; that a test that inquires into whether police used standard or good investigative tactics would “fail[] to provide clear guidance for law enforcement officers”; and that a test that examines whether the police action “would cause a reasonable person to believe that entry is imminent and inevitable” turns on too many “subtleties.” The Court explained that its test will still provide “ample protection for the privacy rights that the Amendment protects.” Occupants may still decline to open the door or speak with police, and if they choose to open the door they can refuse to answer questions or allow the police to come inside. “Occupants who…elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue,” the Court warns.

In her dissent, Justice Ginsburg contends that the Court’s decision “arms police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases”. In a largely rhetorical question, she also asks whether our homes will actually remain secure “if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity[.]” To maintain the protections of the Fourth Amendment, she argues, the exigent circumstances must exist “when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.” Justice Ginsburg notes that if the police had not knocked, no evidence would have been destroyed; she emphasizes that even the Court’s opinion concedes that “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police,” and here the suspects would not have anticipated police discovery but for the knock. The police could have posted officers outside the apartment while obtaining a warrant for entry because there was “very little risk” that the evidence would have been destroyed while awaiting a warrant. In its opinion, the Kentucky Supreme Court had assumed without deciding that exigent circumstances were present in this case, and the Court’s opinion did not resolve that question, instead leaving that factual question open for the Kentucky Supreme Court to decide on remand.

WARRANTLESS BLOOD DRAW Missouri v. McNeely, 569 U.S. 141 (2013). Shortly after 2am, a Missouri police officer stopped McNeely’s truck after observing him speed and cross the centerline repeatedly. Id. After failing field-sobriety tests and declining to take a portable breath analysis test, McNeely was arrested. Id. While in transport to the station house, McNeely indicated that he would refuse to take a breath test at that location. Id. Without attempting to secure a warrant, the officer took McNeely to the hospital. Id. There, he advised

McNeely that refusal to submit voluntarily to a blood draw to test for alcohol would result in an automatic suspension of his license. Id. McNeely nonetheless refused. Id. “The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent, which was well above the legal limit of 0.08 percent.” Id. The Court noted that a warrantless search of a person is reasonable only if it falls within a recognized exception. Id. at 148 (citing United States v. Robinson, 414 U.S. 218, 224 (1973)). “That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616 (1989); McNeely, 569 U.S. at 148. The Court noted that there are exigencies which are so compelling that law enforcement may engage in a warrantless search which is, at that time, objectively reasonable. Id. These include: “law enforcement’s need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47–48 (2009) (per curiam), engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42–43 (1976), or enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509–510 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. See Cupp v. Murphy, 412 U.S. 291 (1973); Ker v. California, 374 U.S. 23, 40–41 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because “there is compelling need for official action and no time to secure a warrant.” Tyler, 436 U.S., at 509; McNeely, 569 U.S. at 159 (emphasis added). The Court went on to note that “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 145. “While the desire for a bright-line rule is understandable, the Fourth Amendment will

not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.” Id. at 158. Further, “the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impracticale in a particular case.” Id. at 160. Writing for another 5 to 4 majority, Justice Sotomayor holds that: “…natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all drunk-driving cases, and instead, exigency in this context must be determined case by case based on the totality of the circumstances.” McNeely, 569 U.S. at 145 (2013). In a characteristically short dissent, Justice Thomas wrote: “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.” McNeely, 569 U.S. at 176 (Thomas, J., dissenting).

DNA SAMPLE TAKEN AT BOOKING Maryland v. King, 569 U.S. 435 (2012). In 2009, Alonzo King was arrested for assault. King, 569 U.S. at 440. As part of the booking procedure for serious crimes used in Wilcomico County, Maryland, King’s DNA sample was taken by applying a buccal swab to the inside of his cheeks. Id. The DNA was found to match that from a rape case, six years prior. Id. The Court of Appeals of Maryland later “ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person” and set aside his conviction. Id. In an opinion authored by Justice Kennedy, the Supreme Court reversed the judgment of the Maryland court. Id.

Justice Kennedy noted that “[a]lthough the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established.” Id. at 1968. The Justice went on to note that “[a] buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no ‘surgical intrusions beneath the skin.’” Id. at 446 (citing Winston v. Lee, 470 U.S. 753, 760 (1985)). In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur, 531 U.S. 326 (2001). “Those circumstances diminish the need for a warrant, either because ‘the public interest is such that neither a warrant nor probable cause is required,’ or because an individual is already on notice, for instance because of his employment, or the conditions of his release from government custody, that some reasonable police intrusion on his privacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Maryland v. King, 569 U.S. 435, 447 (2013) (internal citations omitted). Under this background, Justice Kennedy went on to note that the Maryland DNA Collection Act, which allowed the collection of King’s DNA, calls for “all arrestees charged with serious crimes [to] furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks.” Id. at 447–448. In this scenario, the arrestee is “already in valid police custody for a serious offense supported by probable cause.” Id. Justice Kennedy also described how he determined the sample taking to be reasonable when compared to the interest served. “The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”

Id. Further, “[a] suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.” Id. at 450. In conclusion, Justice Kennedy offered: In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent, not only so that the proper name can be attached to his charges, but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. King, 569 U.S. at 465-466. Justice Scalia in his dissent, which was joined by Justices Ginsburg, Sotomayor, and Kagan, Justice Scalia sarcastically opined that: “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” King, 569 U.S. at 482 (Scalia, J., dissenting).

DEADLY FORCE AND THE FOURTH AMENDMENT Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam). In Mullenix, a police officer approached Israel Leija, Jr., at a drive-in restaurant with an arrest warrant. 136 S.Ct. 305, 306 (2015). The suspect next took police on a high-speed chase for nearly 20 minutes at speeds between 85 and 100 miles per hour. Id. Leija called police dispatch twice during the chase, claiming he had a gun and threatening to shoot at the police if they did not terminate their pursuit. Id. Trooper Chadrin Mullenix and other officers continued to pursue Leija.

Officer Mullenix drove to a nearby location to set up spikes to stop the suspect, but after learning that other spikes had been set up at different locations, he began to consider shooting at Leija’s car to disable it instead. Id. When Leija’s car approached, Mullenix fired six shots, the car struck the spike strips, hit the median and rolled several times. Id. at 307. It was later determined that Leija died as a result of being shot my Mullenix. Id. Respondents sued Mullenix, alleging he violated the Fourth Amendment by using excessive force against Leija. Id. Mullenix moved for summary judgment, arguing he was entitled to qualified immunity, but the District Court denied his motion. Id. The District Court found that there were genuine questions of fact regarding whether, under the circumstances, Mullenix acted as a reasonable officer would have. Id. Mullenix appealed, but the Fifth Circuit affirmed and subsequently denied his petition for a hearing. In a per curiam opinion, the Court held that there was no clearly established law that the use of deadly force directed at a fleeing suspect posing a danger to others violates the Fourth Amendment. The Court held that the proper question in such scenarios is whether, under the specific context of the case, the Fourth Amendment prohibited the officer’s conduct. Id. at 308. The Court concludes that because it was not clearly established that Officer Mullenix’s actions were inappropriate under the specific circumstances, the appellate court and district court erred in holding that he was not entitled to qualified immunity. Id. at 312. In a concurring opinion, the late Justice Scalia articulated that it was conceded in the case that Mullenix did not shoot to kill or wound Leija, but only to cause the car to stop by destroying the engine. Id. at 313. Scalia wrote that the Fourth Amendment requires us to ask whether it was reasonable to shoot at the engine in light of the risk Leija. Id.

Justice Sotomayor dissented, arguing that it was clear under Fourth Amendment precedent that an officer in Mullenix’s position should not have acted as he did unless there was a significant interest that outweighed the intrusion into Leija’s Fourth Amendment rights.

Id.

Justice

Sotomayor asserts that under the circumstances, Mullenix had no plausible reason to choose to shoot at the suspect rather than wait for the results of the spike strips. Id. at 315. She concludes that because of this, she would hold that Mullenix violated Leija’s “clearly established right to be free of intrusion absent some governmental interest.” Id. Sotomayor also asserts that the majority focused on the wrong legal question by dwelling on the imminence of the threat posed by the suspect. Id. at 316.

EROSION OF THE EXCLUSIONARY REMEDY Given the steady erosion of that remedy in recent years, Justice Gorsuch’s views may prove critical, particularly given that many of the opinions limiting the application of the exclusionary remedy were decided by a 5 to 4 vote on the Court. Obviously, Gorsuch and Kavanagh’s vote will prove critical with respect to whether the exclusionary rule will continue as an effective and meaningful remedy for Constitutional violations. This past decade has seen a trend toward a much more forgiving attitude when it comes to illegal and unconstitutional police conduct. The Court’s new majority seems increasingly willing to sacrifice citizens’ Constitutional rights and liberties in order to obtain evidence and convictions of those that our Constitution and those same officers are supposed to protect. For example, in Hudson v. Michigan, 547 U.S. 586 (2006), Justice Scalia, writing for a 5 to 4 majority, opines that the Court has never held evidence inadmissible, simply because it was obtained by reason of an unconstitutional search or seizure.

“We have never held that evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” (emphasis supplied). In Herring v. U.S., 555 U.S. 235 (2009) the Chief Justice, writing for another 5 to 4 majority, takes this concept one step further, holding that in order to warrant suppression of evidence obtained by exploitation of an illegal search or seizure the law enforcement’s unconstitutional conduct must have been “culpable” and “deliberate.” “Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence, attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence…The principal [social] cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that offends basic concepts of the criminal justice system.” In Davis v. U.S., 569 U.S. 229 (2011) Justice Alito goes even further, taking issue with Scalia’s insistence that the Court has never held that evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Justice Alito announces that the Court has now “abandoned the old ‘reflexive’ application” of the exclusionary remedy, opting instead for a balancing test, a “cost-benefit analysis,” limiting exclusion to those where the police’ misconduct is culpable and flagrant. “We came to acknowledge the exclusionary rule for what it undoubtedly is—a ‘judicially created remedy’ of the Court’s own making…We abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits…We also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct at issue.” Again, Justice Alito, writing for a 6-member majority,24 makes clear that whether courts will apply the exclusionary remedy depends upon a cost/benefit balancing test.

Kagan joined Alito’s opinion and Sotomayor wrote a concurrence. 65

“But when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful…the ‘deterrence rationale loses much of its force,’ and exclusion cannot ‘pay its way.’”

BURDEN SHIFTING However, there is considerable difference between excusing illegal police conduct (not applying an exclusionary remedy) where it can be shown to have been engaged in “reasonable good faith,” and shifting the burden to the accused to show that same was “deliberate,” “culpable,” and “flagrant.”

THE VANISHING “FRUIT OF THE POISONOUS TREE” DOCTRINE s

Even more troubling is the most recent of these exclusionary rule cases. In Utah v. Strieff, 136 S.Ct. 2056 (2016), Justice Thomas, writing for a 5-member majority,25 held that an outstanding warrant, discovered as the direct result of his illegal stop, admittedly without reasonable suspicion, somehow “attenuated” the contraband discovered incident to that arrest. “To enforce the Fourth Amendment's prohibition against ‘unreasonable searches and seizures,’ this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits…We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer's discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.” Strieff, 136 S.Ct. at 2059. This balancing test, weighing the “deterrence benefits” of applying the exclusionary rule against its “social costs,” described by the Court as “letting guilty and possibly dangerous defendants go free,” is a test that will leave the accused citizen with a difficult, if not impossible burden.

This opinion, written after Justice Scalia’s death, was 5 to 3, with Justice Breyer joining the majority. Accordingly, the addition of Justice Gorsuch would, in all likelihood, not change the outcome. 25

In her dissent, Justice Sotomayor seems to understand the sophistry of accepting the prospect that we have been promised fundamental Constitutional rights, without providing any meaningful remedy for their violation. “It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right. When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” Strieff, 136 S.Ct. at 2065 (internal citations omitted). Whether a long-time, well-settled doctrine or a fresh new concept, the impact of this new cost/benefit balancing test upon remedying constitutional violations is obvious. It would appear that henceforth it may become incumbent upon defense counsel not just to establish that the contraband or incriminating evidence was discovered by reason of a Constitutional violation, but to demonstrate that the police conduct was culpable, deliberate and flagrant, as well as illegal. Moreover, Gorsuch’s vote could be critical to any interpretation and/or reevaluation of this more “rigorous” test for whether to provide a meaningful remedy for Constitutional violations, particularly given the close majority insistent upon this requirement. Perhaps Justice Sotomayor’s pithy and telling dissent will have some impact on our junior Justice: “We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”

CONCLUSION “Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers—one at a time.” Kaley v. U.S., 571 U.S. 320 (2014), Roberts, Ch.J., dissenting.

The Chief Justice is speaking to each one of us, Brothers and Sisters, paying tribute to the critically important role our defense function plays in the criminal justice system we all serve. Our collective voices are strong and our skills and talents formidable. Let us stand up to injustice and raise our voices in protest. We owe that to ourselves, our clients and our profession. .

EXTRANEOUS ACTS, OFFENSES AND MISCONDUCT EVIDENCE: THE NOT-SO-GOOD, THE BAD AND THE UGLY

ANNE MORE BURNHAM Clinical Professor of Law and Supervising Attorney The Criminal Justice Clinic The Center for Legal and Social Justice St. Mary’s University School of Law

CONTACT INFO: Anne More Burnham The Center for Legal and Social Justice 2507 N.W. 36 th Street San Antonio, Texas 78228 Tel. 210-431-5753 Email: aburnham@stmarytx.edu

Anne More Burnham The Center for Legal and Social Justice St. Mary’s University School of Law 2507 N.W. 36th Street San Antonio, Texas 78228 Tel. 210-431-5753 Email: aburnham@stmarytx.edu Education: B.A. in Political Science, The University of Wisconsin-Madison, 1989 J.D., St. Mary’s University School of Law, 1996 Legal Background: Anne Burnham is a Clinical Professor of Law in the St. Mary’s University School of Law’s Criminal Justice Clinic where she practices criminal defense, and teaches law students licensed to practice under her supervision. After graduating from law school, Anne served as a Briefing Attorney for Chief Justice David Wellington Chew on the Eighth Judicial District Court of Appeals in El Paso, Texas, and Judge Charles Baird on the Texas Court of Criminal Appeals. She began her criminal defense career as an associate in the San Antonio-based law firm Goldstein, Goldstein and Hilley (now Goldstein and Orr). Prior to joining the St. Mary’s Law faculty, Anne had her own criminal defense firm where she practiced at the trial, appellate and post-conviction levels in State and Federal Court. Anne speaks at seminars and conferences throughout the state on various issues pertaining to the practice of criminal law, including pretrial and sentencing considerations, evidence, preservation of error, legal ethics, appellate practice and post-conviction litigation. She writes on issues related to criminal law and practice. Anne has served as an officer with the San Antonio Criminal Defense Lawyers Association from 1999-2011, and has continued to serve on the Association’s Board of Directors since 2011. She also serves on the Board of Directors of the Texas Criminal Defense Lawyers Association and is actively involved with several committees, including the Criminal Defense Lawyers Project Committee, the Indigent Defense Committee, and the Law School Committee, of which she is the chair. Through her work with TCDLA, Burnham became involved as a mentor with the Future Indigent Defense Lawyer program. She is a Fellow of both the American Bar Foundation and Texas Bar Foundation. Anne is licensed to practice law in Texas, the United States District Court for the Western District of Texas, the Fifth Circuit Court of Appeals and the United States Supreme Court. Professional Acknowledgment: I would like to acknowledge the criminal law practitioner-scholars, whose prior papers and scholarly works were instrumental resources in the research and writing of this CLE material, including: Stephanie Stevens, Mark Stevens, Catherine Burnett, William Stradley, Jack Strickland, George McCall Secrest, Jani Maselli Wood and the appellate section of the Harris County Public Defender Office.

TABLE OF CONTENTS I. The Scope of This Paper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 II. General Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Extraneous evidence does not need to be a crime, misconduct or bad act . . . . . . . . . . . 5 B. Historical Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 III. Texas Rules of Evidence Related to Admissibility of Extraneous Offenses. . . . . . . . . . . . . . . . . . . . . . 7 A. Texas Rule of Evidence 104: Preliminary Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. Texas Rule of Evidence 401: Test for Relevant Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. Texas Rule of Evidence 402: General Admissibility of Relevant Evidence . . . . . . . . . . . . 8 D. Rule of Evidence 403: Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 E. Texas Rule of Evidence 404: Character Evidence, Crimes and Other Acts . . . . . . . . . . . . . . . . . . 10 F. Exceptions to 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1. Motive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 a. Motive is Relevant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 b. To show victim's state of mind or motive in the confrontation that led their death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 c. Extraneous acts committed before or after the charged offense can be admissible to show motive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 d. Admissibility of extraneous acts which were the motive for the charged offense itself . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 e. Extraneous acts that share the same motive as the charged offense, may also be admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 f. Be careful of character propensity evidence masquerading as evidence showing motive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 2. Opportunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3. Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 4. Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 5. Absence of Mistake/ Lack of Accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 6. Preparation/Common Scheme or Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 7. Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Other Issues that Make Extraneous Offenses Admissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 8. The "Doctrine of Chances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 9. Malice Toward Parties of One Class of People . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 H. Texas Rule of Evidence 405: Methods of Proving Character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 1. Reputation Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 2. Opinion Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 I. Texas Rule of Evidence 609: Impeachment by Evidence of a Criminal Conviction . . . . . . . . . . . 20 IV.

Other Laws and Statutes Pertaining to Extraneous Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Extraneous Offenses at Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 1. Tex Code Crim. Proc. 37.07 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Other Statutes Related to Extraneous Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Tex. Code Crim. Proc. Article 38.36: Evidence in Prosecutions for Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Tex. Code Crim. Proc. Article 38.37: Evidence of Extraneous Offenses or Acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Tex. Code Crim. Proc. Article 38.371: Same Household/ Dating Relationship Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V.

20 20 21 21

Other Issues Related to Admission of Extraneous Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Either Party Can Seek to Introduce Extraneous Act Evidence . . . . . . . . . . . . . . . . . . . . . 2. Contextual Evidence/"Same Transactional"/ "Res Gestae" Evidence . . . . . . . . . . . . . . . 3. Opening the Door: Don't! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. Opening Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Defenses can Open the Door . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Meet, Rebut and Explain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

21 21 21 22 22 22 23 23

VI. Trial Strategy to Keep Out Extraneous Offense Evidence and Related Issues . . . . . . . . . . . . . . . . . . 1. File a Request for Notice of Extraneous Offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. If Requested, The State Must Provide. . . . . . . . . . . . . . . . . . . . . . . . . . . b. Exceptions to Notice Requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . c. Without Notice, Object to Admission of Extraneous Offenses . . . . . . . d. When is Notice Timely and Sufficient? . . . . . . . . . . . . . . . . . . . . . . . . . . i. Timeliness of the State's Notice . . . . . . . . . . . . . . . . . . . . . . . . . ii. Sufficiency of State's Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. File and Litigate Pretrial Motions in Limine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Object When the State Tries to Admit the Extraneous Act Evidence . . . . . . . . . . . . . . . a. Object to Relevance, Rules 401 and 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b. Object -Relevant only to Character Conformity, Rule 404(b) . . . . . . . . . . . . . . . c. Request that the State Articulate Purpose Evidence is Offered . . . . . . . . . . . . . d. Object -Probative Value is Outweighed by Unfair Prejudice, Rule 403 . . . . . . . e. Request Limiting Instruction at the Time Evidence is Admitted. . . . . . . . . . . . . f. Request Limiting and Burden of Proof Jury Charge Instruction . . . . . . . . . . . . . 4. Don't Otherwise Waive the Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Meet, Rebut or Explain as Needed, Without Waiving Error . . . . . . . . . . . . . . . . . . . . . . .

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case itself. Therefore, the rules regarding admissibility and exclusion cannot be applied with predictability from case to case. For this reason, the relevance and admissibility of extraneous offenses are some of the most litigated issues in Texas criminal jurisprudence.

I. The Scope of This Paper: This paper will address the general substantive Texas law regarding extraneous offenses at both the guilt-innocence and punishment phases of trial, some common traps and practice tips, and the procedures we use in efforts to exclude them, or minimize their damage to the defendant. Because extraneous offense jurisprudence is vast, and there are many exceptions and offense-specific rules, this paper does not cover, in any detail, Texas statutes dealing with specific types of offenses, particularly those involving sexual offenses against children, murder, domestic/dating violence, stalking or witness tampering in family violence cases. It does not cover the federal rules and federal circuit cases on extraneous offenses.

A. Extraneous evidence does not need to be a crime, misconduct or bad act What we commonly refer to as "extraneous offense evidence” is a misleading label. Texas Rule of Evidence 404 speaks of extraneous acts or conduct, not misconduct or offenses. While the topic certainly encompasses offenses, bad acts, general misconduct, and negative character evidence, it also includes other acts and general “conduct.” See Bishop v. State, 869 S.W.2d 342, 345-46 (Tex. Crim. App. 1993). As noted by the Fourteenth Court of Appeals in the case of Fox v. State, 283 S.W.3d 85, 92–93 (Tex. App.—Houston [14th Dist.] 2009) “the plain language of rule 404(b) provides that evidence of other crimes, wrongs, or acts are not admissible to show character conformity. Tex.R. Evid. 404(b). The objectionable evidence need not be a bad or wrongful act or a crime punishable by statute.” Id. In Fox, the extraneous evidence in question was of the Defendant’s cross-dressing. In holding the trial court erred in admitting the extraneous evidence of crossdressing, the court explained that while not inherently bad or wrong, “cross-dressing constitutes “other acts” under rule 404(b).” id., citing Tex.R. Evid. 404(b). Case law makes it clear the admission of both “extraneous offenses” and “prior misconduct” are addressed in the same manner. Templin v. State, 711 S.W.2d 30, 32 (Tex. Crim. App. 1986) (citing Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985).

II. General Introduction The law regarding extraneous offenses draws from many sources, and its evolution is rooted in the Constitution’s presumption innocence. People v. Molineux, 61 N.E. 286 (N.Y. 1901) (holding the prohibition against admission of extraneous offenses “is the product of the same humane and enlightened public spirit which, speaking through our common law, has decreed that every person charged with the commission of a crime shall be protected by the presumption innocence until he has been proven guilty beyond a reasonable doubt.”). There is a great wealth of Texas case law on the subject of extraneous offense evidence. Questions of extraneous offense admissibility often spins on the unique facts and legal circumstances of the

B. Historical Overview

defendant acted in conformity with his criminal nature. Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App. 1992); Tex. R. Evid. 404(b). The admission of extraneous offenses also prejudices the defendant because of jurors’ natural inclination to infer guilt to the charged offense from the extraneous bad acts. See Lockhart, 847 S.W.2d at 570; Templin v. State, 711 S.W.2d 30, 32 (Tex. Crim. App. 1986).

The reason this evidence is called "extraneous" is because it does not appear in the charging instrument of the case, and is not an integral part of the crime charged. In 1943, the Court of Criminal Appeals defined an extraneous offense as being “…extra, beyond, or foreign to the offense for which the party is on trial.” Ridinger v. State, 146 Tex. Crim. 286, 287, 174 S.W.2d 319, 320 (1943). See also, Rankin v. State, 953 S.W. 2d 740 (Tex Crim. App. 1995)(explaining “[a]n extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.").

In Texas, the seminal case on the subject of extraneous offenses is Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972), which was decided fifteen years prior to the 1986 adoption of the Texas Rules of Evidence. In Albrecht, the Court noted it “…has consistently held that an accused is entitled to be tried on the accusation made in the state's pleading and that he should not be tried for some collateral crime or for being a criminal generally.” Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972). Yet, the court explained there were varied circumstances where extraneous evidence would be admissible, and provided examples of such circumstances:

It is a fundamental tenet of our law that an accused must only be tried for the offense for which he is charged and not for being a criminal in general. Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992). A defendant is to be tried only on the crimes alleged in the indictment and not for being a criminal or bad person generally. Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Crim. App. 1987). Admission of extraneous offenses harm the defendant because they requires the defendant to defend against not only the offense charged, but also uncharged actions. See Sattiewhite v. State, 786 S.W.2d 271, 285 (Tex. Crim. App. 1989), cert. denied 489 U.S. 881 (1990); Robinson v. State, 701 S.W.2d 895, 899 (Tex. Crim. App. 1985). Because extraneous offenses pack tremendous power for the State, and serious harm for defense, their admissibility is one of the most litigated issues in Texas criminal jurisprudence. Indeed, the Court of Criminal Appeals has consistently held that the introduction of extraneous offenses is inherently “prejudicial” to the jury. Therefore, evidence of extraneous offenses or bad acts committed by the defendant may not be introduced during the guilt or innocence portion of the trial to show the

“Evidence of extraneous offenses committed by the accused has be e n he ld admissible: (1) To show the context in which the criminal act occurred—what has been termed the ‘res gestae’—under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to a nd subsequent to t he commission of that act so that they may realistically evaluate the evidence. (2) To circumstantially prove identity where the state lacks direct

evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state's case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element of the state's case and cannot be inferred from the criminal act. (5) To show the accused's motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. (6) To refute a defensive theory raised by the accused.” Id. at 100–01.

S.W.2d 663, 665 (Tex.Cr.App.1983). It would not be long before the Court, in Williams v. State, expressly laid out the limitations of Albrecht: it was neither an exhaustive list of exceptions that allowed for the admission of extraneous offenses, nor a test for their admissibility. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983). Further, the Williams Court embraced its earlier analysis in Murphy, Ruiz, Elkins, and their progeny, and labeled it the “true test” for admissibility of extraneous offenses. Under the Court’s "true test" extraneous offense evidence "may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case; and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential." Id. Unsurprisingly, when the Texas Rules of Evidence were adopted, they were crafted as embracing Albrecht’s list of circumstances that justify admission of extraneous offenses, as well as the “true test” put forth in Williams. The list of exceptions in Texas Rule of Evidence 404(b), like the Albrecht list, is only an illustrative list of examples when extraneous offenses may be admissible, but not exhaustive. Johnston v. State, 145 S.W.3d 215, 219 (Tex.Crim.App. 2004).

The Albrecht pre-rules list of circumstances that might warrant admission of extraneous offenses was not exhaustive, and the Court was clear “the circumstances which justify the admission of evidence of extraneous offenses are as varied as the factual contexts of the cases in which the question of the admissibility of such evidence arises.” Id., at 100. For years, courts grappled with applying the Albrecht analysis to challenges regarding admission of extraneous evidence. In a series of opinions, the Court of Criminal Appeals held extraneous offenses committed by the accused may become admissible upon the prosecution’s showing both that the transaction is relevant to a material issue(s) in the case; and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. See Murphy v. State, 587 S.W.2d 718, 722 (Tex. Crim. App. 1979); and Ruiz v. State, 579 S.W.2d 206 (Tex. Crim. App. 1979). See also Elkins v. State, 647

III. Texas Rules of Evidence Related to Extraneous Offenses The Texas evidentiary rules were first promulgated in 1986, and on March 1, 1998, the Rules of Evidence replaced the Rules of Criminal Evidence. See Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015) (acknowledging the distinction between former Rules of Criminal Evidence and unified Rules of Evidence).

Evidentiary rules related to extraneous offense evidence are designed to ensure the defendant is tried for the charged offense only, and not for being a criminal in general. See e.g., Templin v. State, 711 S.W.2d 30 (Tex. Crim. App. 1986). A. Texas Rule of Evidence Preliminary Questions

the evidence and the fact the proponent is trying to prove. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). Circumstantial evidence is as probative of guilt as direct evidence. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018). Pieces of evidence that may seem weak in isolation become stronger when they are consistent with one another. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The relevance of evidence is not always clear cut, and reasonable people may disagree about whether certain evidence leads to a particular inference. Montgomery, 810 S.W.2d at 391. If the relevance of evidence depends on the existence of another fact, then the court may admit the evidence contingent upon the introduction of sufficient evidence to prove that fact. Tex. R. Evid. 104(b).”

104:

The court is charged with the responsibility of deciding preliminary questions regarding the admissibility of evidence, and is not bound by evidence rules, except rules regarding privilege. With regard to extraneous offense evidence, the burden of proof for admissibility of extraneous evidence is high: “a trial court cannot admit extraneous-offense evidence unless a jury could find beyond a reasonable doubt that the defendant committed the extraneous offense.” Fischer v. State, 268 S.W.3d 552, 558 (Tex. Crim. App. 2008) (citing Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994) (op. on rehearing)). See also Inthalangsy v. State, 634 S.W.3d 749, 757 (Tex. Crim. App. 2021). B. Texas Rule of Evidence 401: Test for Relevant Evidence

Id. C. Texas Rule of Evidence 402: General Admissibility of Relevant Evidence

Rule 401 explains what is relevant evidence: it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.

Rule 402 provides irrelevant evidence is inadmissible, and relevant evidence is admissible unless it violates the United States or Texas Constitution, a statute, the Texas Rules of Evidence, or other rules prescribed under statutory authority.

In Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021), the Court of Criminal Appeals reiterated:

The proponent of the extraneous offense evidence in question bears the burden of proof with regard to relevance. Garza v. State, 18

“There must be a “direct or logical connection” between

S.W.3d 813, 822 (Tex. App. – Fort Worth, 2000, pet. ref’d).

sufficient if the evidence merely offers a small nudge toward providing or disproving a fact of consequence. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). See also, Fuller v. State, 829 S.W.2d 191, 198 (Tex. Crim. App. 1992), overruled on other grounds, Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1992)(holding evidence is relevant “…if it has any tendency at all, even potentially, to make a fact of consequence more of less likely than it would be without the evidence.”).

Further, the proponent must be able to show the extraneous conduct evidence has relevance apart from establishing character conformity. Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019)(It is the general rule that a defendant may be tried only for the offense charged and not for any other crimes or for being a criminal generally). In Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016) the Court of Criminal Appeals explained a “fact of consequence” includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred.

“Whether objected-to evidence of ‘other crimes, wrongs or acts’ has relevance apart from character conformity, as required by Rule 404(b)… is a question for the trial court. The trial judge must conclude that the evidence tends in logic and common experience to serve some purpose other than character conformity to make the existence of a fact of consequence more or less probable than it would be without the evidence. An appellate court owes no less deference to the trial judge in making this judgment that it affords him in making any other relevance call.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

In Layton v. State, the Court of Criminal Appeals explained: “[i]t is important, when determining whether evidence is relevant, that courts examine the purpose for which the evidence is being introduced. It is critical that there is a direct or logical connection between the actual evidence and the proposition sought to be proved.” [internal citation omitted].

D. Rule of Evidence 403: Excluding Relevant Evidence for Prejudice, Confusion, or Other Reasons Rule 403, referred to as the “balancing test” rule allows the court to “…exclude relevant evidence, if its probative value is substantially outweighed by a danger of one or more the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403.

Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). See also Ashby v. State, 527 S.W.3d 356, 362 (Tex. App. – Houston [1st Dist.] 2017, pet ref’d). The threshold for a finding of relevance is low: the evidence need not prove or disprove a particular fact to be relevant. Rather, it is

One of the seminal cases on application of the balancing test, Montgomery v. State, 810

S.W.2d 372 (Tex. Crim. App. 1991), sets forth the factors that should be considered in a balancing test analysis. The Court of Criminal Appeals reiterated these factors in Gigliobianco:

prejudice, a presumption exists favoring the former.” McFarland v. State, 845 S.W.2d 824, 837 (Tex. Crim. App. 1992), overruled on other grounds, Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994).

A. The inherent probative force of the proffered item of evidence, along with; B. The proponent’s need for that evidence, against; C. Any tendency of the evidence to suggest decision on an improper basis; D. Any tendency of the evidence to confuse or distract the jury from the main issues; E. Any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and; F. The likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

The burden of proof with regard to a Rule 403 balancing test is on the party objecting to the evidence to show the prejudice substantially outweighs the probative value. Probative Value: The probative value of an item of evidence refers to “…how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation- coupled with the proponent’s need for that item of evidence.” Gerron v. State, 524 S.W.3d 308, 321 (Tex. App. – Waco, 2016, pet ref’d). Unfair Prejudice: “Unfair prejudice refers not the fact that the evidence injures a party’s case or position, as virtually all evidence offered by one party will prejudice the opponent’s case or position. Evidence is unfairly prejudicial when it ends to have some adverse effect upon the defendant beyond tending to prove the fact or issue that justifies its admission into evidence.” Id.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). In Mozon v. State, 991 S.W.2d 841, 846 n.6 (Tex. Crim. App. 1999), the Court explained the trial court is not obligated to engage in a 403 balancing test “…unless the opponent of the evidence further objects under Rule 403.” Id. Upon an objection under Rule 403, thereafter the trial court has no discretion as to whether or not to engage in the balancing process. Id. This is true, even if admissible under article 38.37 or 404(b). See Ryder v. State, 581 S.W.3d 439, 45253 (Tex. App. – Houston [14th Dist.] 2019, no pet.).

Texas Rule of Evidence 404: Character Evidence, Crimes and Other Acts

Rule 404(b) deals the admission of other “crimes, wrongs or acts.” This is the rule of evidence that addresses the issue of extraneous offense evidence head-on. With the exception of some specifically enumerated exemptions, Rule 404(a)(1) sets forth a general prohibition on the admission of “character propensity evidence,” i.e., evidence of a person’s character or character trait “to prove that on a particular occasion the person acted in accordance with the character or

“… When the trial court is called upon by sufficient objection to balance probativeness and

trait.” Tex. R. Evid. 404(a)(1). When the person in question is a defendant, “...there is an additional danger to guard against—the danger that evidence of an unadjudicated crime could be taken as proof of the defendant's character as a criminal generally.” Moreno v. State, 22 S.W.3d 482, 486 (Tex. Crim. App. 1999). Yet, despite the general prohibition of character conformity evidence, Rule 404(b) is widely considered to be a rule of inclusion, rather than exclusion. See Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998)(citations omitted).

offered to prove character or propensity to engage in certain conduct. See Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998)(citations omitted). While 404(b)(1) sets forth exceptions when extraneous evidence might be relevant for a purpose other than character conformity, the Court noted the “other purposes” extraneous conduct evidence could be admissible, listed in Rule 404(b) is neither exclusive nor exhaustive. Banda v. State, 768 S.W.2d 294, 295–96 (Tex. Crim. App. 1989) (holding the “other purposes” listed in Rule 404(b) is not an exhaustive list, and even if it does not fit into a listed category, an extraneous transaction will be admissible so long as it logically tends to make the existence of some fact of consequence more or less probable).

Rule 404 deals directly with the admissibility of extraneous acts. The full content of Rule 404(b) is as follows: Rule 404(b): Crimes, Wrongs and Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case in chief.

Furthermore, it is important to look at cases that explain and define these exceptions, because most of these exceptions are carefully defined in case law, and not nearly as expansive as their names might suggest. The following are Rule 404(b)’s non-exhaustive list of “other purposes,” besides character conformity, for which extraneous transactions may properly be used: F. Exceptions to 404(b): 1. Motive a. Motive is Relevant Texas Rule of Evidence 404(b) allows for the admission of extraneous conduct evidence to prove motive. There is no requirement the State prove motive; yet, they may offer evidence of it. Gosch v. State, 829 S.W.2d 775, 783 (Tex. Crim.App.1991)(evidence of the accused’s motive is admissible if it is relevant as a circumstance tending to prove the commission of the offense, and if the probative value outweighs the danger

Tex. R. Evid. 404(b). Accordingly, evidence of other crimes, wrongs, or acts is allowed provided that it is not

of unfair prejudice). See also Crane v. State, 786 S.W.2d 338, 349-50 (Tex. Crim. App. 1992)(motive for the commission of the offense is relevant as a circumstance tending to prove commission of the offense).

thusly: “The sexual passion or desire of X for Y is relevant to show the probability that X did an act realizing that desire. On the principle set out above, this desire at the time in question may be evidenced by proof of its existence at a prior or subsequent time. Its existence at such other time may, of course, be shown by any conduct which is the natural expression of such desire.”

b. To show victim’s state of mind or motive in the confrontation that led their death In Torres v. State, 71 S.W.3d 78, 761-62 (Tex. Crim. App. 2002), the Court held specific acts of violence of the deceased are admissible to shed light on the deceased's state of mind and demonstrated the intent or motive behind the confrontation. Furthermore, “[a]s long as the proffered violent acts explain the outward aggressive conduct of the deceased at the time of the killing, and in a manner other than demonstrating character conformity only, prior specific acts of violence may be admitted even though those acts were not directed against the defendant.” Id. at 762.

Id. d. Admissibility of extraneous acts which were the motive for the charged offense itself: In a capital murder prosecution for shooting a police officer, the Court held the extraneous evidence of the defendant’s federal parole and knowledge of his arrest warrant was admissible to show his motive in shooting the police officer was to avoid apprehension. Valdez v. State, 776 S.W.2d 162, 168 (Tex. Crim. App. 1989).

c. Extraneous acts committed before or after the charged offense can be admissible to show motive: In Colone v. State, 73 S.W.3d 249, 266-67 (Tex. Crim. App. 2019), the court held that a prior robbery was relevant to show the defendant’s motive for murder, because the deceased had reported his robbery.

In Knox v. State, a capital murder for murder in the course of committing aggravated robbery or robbery at a pharmacy, evidence of defendant’s use of drugs was admissible to prove appellant's motive in robbing the victims at the pharmacy. Knox v. State, 934 S.W.2d 678, 682–83 (Tex. Crim. App. 1996). Central to the Court’s analysis was the fact there was an “affirmative link between the underlying offense of robbery and appellant's use of narcotics. Because appellant had voiced his desire to obtain drugs and money from this particular pharmacy, the complained of evidence establishes the motive

In Blakeney v. State, evidence that the defendant had an erection while talking to police about the child he was alleged to have sexually assaulted was admissible to show he had feelings of sexual attraction and desire toward the child, which was a motive for sexually assaulting the child. Blakeney v. State, 911 S.W.2d 508, 515 (Tex. App.—Austin 1995, no pet.). The court in Blakeney explained how an incident showing the defendant’s sexual attraction for the child after the offense, was admissible to show motive

for the charged offense.” Id. The court explained the presence or absence of a motive for a crime is obviously a factor that is related to the question of the defendant's guilt or innocence, and is generally admissible, especially in cases where the state must rely exclusively on circumstantial evidence. Id. at 682 n.10.

admissible to rebut different defensive theories, including lack of opportunity. For this reason extraneous offenses that show opportunity will most often be in rebuttal, either during the State’s redirect examination of their witness, or as rebuttal following the defense’s case in chief. It is usually presented to rebut a defense claim that defendant lacked the opportunity to commit the offense, or it was impossible for the defendant to have committed the offense. Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002).

e. Extraneous acts that share the same motive as the charged offense, may also be admissible. Jones v. State, 751 S.W.2d 682 (Tex. App – San Antonio 1988, no pet.)(in a prosecution of a nurse for the murder of a child, evidence of an inordinate number of other children dying during the defendant’s hospital shifts was admissible to show the defendant’s motive of wanting the hospital to create a special pediatric care facility where she could work as a skilled nurse). Id. at 685-86.

In Wheeler, the Court of Criminal Appeals held that extraneous offense evidence that Wheeler had sexually assaulted a young girl at the beach in the presence of others was admissible to rebut his defensive theory—i.e., that he lacked an opportunity to sexually assault his daughter's friend because he was never alone with her, others were always present and it was impossible for him to abuse her in a room full of people, and that he was the victim of a frame-up motivated by greed. Id. at 887.

Extraneous evidence of a defendant’s affiliation with the gang is admissible to show a motive for an allegedly gang-related crime. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002).

3. Intent In Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002), the Court held when a defendant puts their intent at issue via their defense theory, they allow the trial court to consider whether extraneous act evidence is relevant and admissible for a non-character conformity purpose. Id. The admission of extraneous act evidence to show intent, is related to the admission of extraneous act evidence to show absence of mistake or accident, or lack of knowledge. These theories of admissibility pertain to the defendant’s state of mind. Defense counsel should be cautious when raising a defense of accident, mistake or lack of knowledge, as it is well settled that extraneous act evidence is admissible to rebut a defense

f. Be careful of character propensity evidence masquerading as evidence showing motive: The Court in Pavlacka v. State, however, cautioned that “motive” as a proffered theory of admission of extraneous offenses can be character conformity evidence in disguise. Pavlacka v. State, 892 S.W.2d 897, 901 (Tex. Crim. App. 1994)(explaining an impeached complainant cannot logically rehabilitate himself with testimony of other “crimes, wrongs, or acts.”). 2. Opportunity: Extraneous

offense

evidence

theories such as these. Extraneous act evidence to show the defendant’s intent is likely to be offered when intent cannot be inferred from the defendant’s act, and/or when the defendant rebuts an inference of intent, either via presentation of evidence or cross-examination.

ref?d)(extraneous offense offered to show lack of consent was admissible even though defendant denied the act of intercourse). Furthermore, it is well settled extraneous-offense evidence may be admissible when a defendant raises an affirmative defense or a defensive issue that negates one of the elements of the crime, such as the mens rea. Id. See Berry v. State, 233 S.W.3d 847, 858 (Tex. Crim. App. 2007).

In the former scenario, when intent cannot be easily inferred from the defendant’s actions, extraneous offenses are “almost always admissible.” Parks v. State, 746 S.W.2d 738, 740 (Tex. Crim. App. 1987)(extraneous act evidence admissible to prove intent to defraud in a forgery prosecution when otherwise difficult to prove). The case of Plante v. State, 692 S.W.2d 487, 49192 (Tex. Crim. App. 1985) is an example of when extraneous conduct is admissible to show intent, when it is not obvious from the conduct. Plante was charged with theft by deception for ordering tiles, with no intention to pay for the them. Because intent could not be inferred from failure to pay, extraneous act evidence of other instances when defendant failed to pay for goods or services was admitted to show Plante’s intent in not paying. Id.

4. Knowledge: Like intent, extraneous act evidence is admissible to show the defendant’s knowledge. In Duntsch v. State, 568 S.W.3d 193, 222 (Tex. App.—Dallas 2018, pet. ref’d), the extraneous offense evidence of the defendant’s prior botched surgeries were admissible because they demonstrated the defendant’s knowledge “...his surgical techniques resulted in extremely rare adverse outcomes with unusual frequency and caused serious injuries to his patients. That knowledge was relevant to the reasonableness of an inference respecting whether appellant was aware that continuing to perform surgery using those techniques was reasonably certain to cause adverse outcomes resulting in additional serious injuries, i.e., the culpable mental state of knowingly.” Id.

Extraneous act evidence is not admissible to prove intent when intent is obvious from the conduct, when the defendant admits his intent but raises some other defense. See Montgomery v. State, 810 S.W.2d 372, 397 (Tex. Crim. App. 1990)(when defendant claimed that he had not committed acts of sexual indecency , he disputed the conduct itself, but not the intent. Therefore, the State could not offer evidence of extraneous lewd conduct to prove his specific intent to arouse or gratify his sexual desire); Hargraves v. State, 738 S.W.2d 743, 747-49 (Tex. App. -- Dallas 1987, pet. ref'd)(intent was obvious from the circumstances surrounding the aggravated sexual assault and thus it was error to admit extraneous offense); but see Wiggins v. State, 778 S.W.2d 877, 881-85 (Tex. App. -- Dallas 1989, pet.

Extraneous act evidence indicating a defendant's "consciousness of guilt" is admissible to prove "knowledge." See Felder v. State, 848 S.W.2d 85, 97 (Tex. Crim. App. 1992)(extraneous act of providing false identification to the police to conceal identity, shows "consciousness of guilt" and may be admitted as proof of the defendant's knowledge). Although such evidence is also "a wrong act," it is not admissible to prove the character of a person to show that he acted in conformity therewith, it is admissible for other purposes such as proof of knowledge. Id at 98

citing Tex. R. Evid. Rule 404(b).

termed “common scheme or plan.” Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005)(the “plan” exception to admission of extraneous offense evidence is “frequently, but misleadingly, termed “common scheme or plan.”

5. Absence of Mistake/ Lack of Accident: Absence of mistake or accident is a subcategory of intent. Defense counsel should be cautious when raising a defense of accident or mistake because it is well settled that extraneous act evidence is admissible to rebut such defensive theories.

To be common scheme or plan evidence, the extraneous acts must be committed in preparation or as part of a plan for the offense charged. In Davis v. State, extraneous act evidence that the accused, an apartment complex maintenance worker, had been seen entering the deceased’s apartment at night without knocking or turning on the lights just days before the murder, was admissible to show the accused planned the offense. Davis v. State, 831 S.W.2d 426, 443 (Tex. App.—Austin 1992, pet. ref’d).

When an accused raises an issue of accident, the State may present extraneous offense evidence to rebut this contention and show the conduct was not an accident, but intentional. It is well-established that extraneous offenses are admissible to negate or rebut the possibility of accident. Booker v. State, 929 S.W.2d 57, 63 (Tex. App.—Beaumont 1996, pet. ref’d) citing Bryson v. State, 820 S.W.2d 197, 199 (Tex.App.—Corpus Christi 1991, no pet.) and; Baldonado v. State, 745 S.W.2d 491, 496 (Tex.App.—Corpus Christi 1988, pet. ref'd). In Booker, the defendant claimed accident and coincidence that a gun was found in the car he was in, and the court allowed the State to introduce an extraneous offense of aggravated robbery and that the gun was used in a robbery by defendant earlier on the day in question, to refute the appellant's defense of accident and to correct the false impression left by appellant's direct testimony that the gun was not his and that he noticed it for the first time in the car. Booker, 929 S.W.2d at 63.

In Daggett v. State, the Court of Criminal Appeals explained the plan exception allows admission of evidence to show steps taken by the defendant in preparation for the charged offense. Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005). The court provided an example of acts in furtherance of a common scheme or plan thusly: “For example, if the defendant steals a car on Monday, buys a machine gun on Tuesday, pastes together a robbery note on Wednesday, parks illegally in front of the Wells Fargo building on Thursday while casing out the bank, and then robs the bank on Friday using the machine gun and driving off in the stolen car, all of the extraneous acts are relevant to prove each step of the defendant's ultimate plan to rob the bank.”

6. Preparation/Common Scheme or Plan: Extraneous acts that show preparation or plan, are admissible as an exception to the Rule404(b) prohibition against character propensity evidence. This theory of admissibility is also commonly referred to as “common scheme or plan.” frequently, but misleadingly,

Id.

However, the Daggett Court explained Texas courts frequently admit evidence of extraneous acts under this exception “…not to show acts the defendant took in preparation for the ultimate charged offense, but to show repeated acts that are similar to the charged offense.” Id. at 451. See also Boutwell v. State, 719 S.W.2d 164, 180 (Tex. Crim. App. 1985) (common scheme/plan evidence is frequently cited as “subterfuge for the admission of propensity-type evidence.”),

App. 2008). If a defendant admits to the offense, identity is not in dispute. Owens v. State, 827 S.W.2d 911, 916 (Tex. Crim. App. 1991). If identity is in dispute, extraneousoffense evidence is relevant to prove the identity of the offender when it turns on a modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a “signature.” Id. at 88. For an extraneous offense to be admissible for identity there must be “…distinguishing characteristics common to both offenses such that the accused's acts are earmarked as his handiwork; his “signature” must be apparent from a comparison of circumstances in both cases.” Beets v. State, 767 S.W.2d 711, 740 (Tex. Crim. App. 1987). In Segundo, the Court of Criminal Appeals explained the common characteristics between the charged offense and the extraneous offense may be proximity in time and place, mode of commission of the crimes, the person's dress, or any other elements which mark both crimes as having been committed by the same person. Segundo, 270 S.W.3d at 88.

Repetition of the same act or crime does not equal a “plan.” Rather, extraneous evidence showing repetition of the same criminal offense is nothing more than bad-character conformity evidence shrouded as evidence of a plan. See Daggett, 719 S.W.2d at 451. “This bad-characterconformity purpose, whether express or not, is precisely what is barred by Rule 404(b).” Id. Make sure the proponent of the preparation/common scheme or plan extraneous act evidence is able to articulate exactly how an extraneous act tends to prove a step toward an ultimate goal or overarching plan. If they are unable to do so, the evidence is not admissible to prove part of a “plan.” Id.

Extraneous offenses admitted for the purpose of showing identity usually require a reasonable proximity of time and place to time with regard to the charged offense. However, in Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996), the time and place of the extraneous offenses were not in close proximity to the charged offense. The offenses occurred a decade apart in different states. But, the Court reasoned that the mode of committing the offenses and the circumstances surrounding the offenses were sufficiently similar for the extraneous offense to be relevant to the issue of identity.

7. Identity: In order for extraneous acts evidence to be admissible to prove identity, the identity of the perpetrator must be a disputed issue. The trial court has has broad latitude in determining whether identity is disputed. Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App. 2008). See also Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App.2004); Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App.1996). Identity may come under dispute by the defendant's opening statement, cross-examination of a State’s witness, or by evidence offered by the defense. Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim.

Cases on this issue illustrate examples of what the courts have deemed sufficient common

characteristics to rise to a “signature” offense:

than puppies and things? I guarantee you, somebody hurt my dog when I was a little kid, I would remember it. That is such a depraved act, anyway. But the whole point is, folks: If he is pealing (sic) wires back and wrapping them to little dogs, and plugging them in—Of course, he don't recall whether he ever said that. He certainly won't ever recall it. But that shows the depravity of this man's mind. You've got an evil, evil man in front of you....” Id. at 34.

In Page v. State, 213 S.W.3d 332, 337–38 (Tex. Crim. App. 2006), the Court held the following similarities between the charged offenses of sexual assault and impersonating a police officer and the extraneous offenses (same) were close enough to constitute a “signature” of defendant for purposes of proving identity: (1) each woman was working as a prostitute in the sea-wall area of Galveston; (2) each woman was approached by a man driving a maroon car; (3) each woman identified appellant as the driver of the maroon car; (4) appellant approached each woman in the sea-wall area of Galveston; (5) appellant identified himself to each woman as a police officer; (6) each woman heard what sounded like a police radio in the back seat of appellant's car; (7) appellant threatened to arrest each woman for prostitution; and (8) appellant solicited each woman for oral sex. Id. at 338.

The court held the State's references tothe evidence at closing show that "…the evidence was not sought nor used solely in accordance with the State's stated purpose in requesting it. Id. at 35. The factors aggravated the "inflammatory effect" of the improper admission of the extraneous act evidence. Id. Other Issues that Make Extraneous Offenses Admissible 8. The "Doctrine of Chances:"

In Templin, the court found that extraneous offenses of having killed animals by electrocution as a child had common characteristics rising to a “signature,” so as to be admissible to prove identity of the perpetrator of the charged offense of murder by electrocution. However, although identity was in dispute and the offenses shared sufficient common characteristics, the Templin Court held it was error to have admitted the extraneous offenses under the Rule 403 balancing test. Templin is a reminder why it is so important to challenge admission of extraneous offenses under Rule 403 at trial (even if you lose at that level), and to be on guard for the State using the extraneous offense for a purpose other than what it was admitted for. As to the latter point, although admitted for identity, at closing argument, the State argued:

The “doctrine of chances” derives from the Common Law and is a theory of admissibility grounded in the objective improbability the same defendant would be repeatedly involved in the same, unusual circumstances by mere chance. Under this theory, similar unusual acts are admissible to rebut a claim that the accused was innocently involved in the charged, similarly unusual act, by of mere chance. The Court of Criminal Appeals recently issued an opinion on the “doctrine of chances” theory of admissibility of extraneous act evidence. In that case, they held “[s]imilarity is crucial to the doctrine of chances. The admissibility of evidence under the doctrine of chances depends on a showing of “highly unusual events [that] are unlikely to repeat themselves inadvertently or by happenstance.” Valadez v. State, No. PD-0574-19, 2022 WL 946268, at *3

“...What is nearer and dearer to boys

(Tex. Crim. App. Mar. 30, 2022) citing De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009). No rigid rules dictate what constitutes sufficient similarities. Duntsch v. State, 568 S.W.3d 193, 222 (Tex. App.—Dallas 2018, pet. ref’d). An extremely high degree of similarity is not required where intent, as opposed to identity, is the material issue. Id. The doctrine of chances can intertwine with any other theory of admissibility to render extraneous conduct evidence admissible to prove the non-character conformity issue, whether it be intent, knowledge, motive or some other purpose.

PD-0574-19, 2022 WL 946268, at *3 (Tex. Crim. App. Mar. 30, 2022). Another Texas doctrine of chances case, is that of “Dr. Death.” Duntsch v. State, 568 S.W.3d 193, 198–99 (Tex. App.—Dallas 2018, pet. ref’d). The neurosurgeon defendant, Dr. Duntsch, was charged with assault with a deadly weapon (i.e., his surgical hands and instruments), and his defense was that he did not act intentionally, knowingly, recklessly or with criminal negligence.” Id. The State contended, that for the jury to make a competent decision regarding the defendant's state of mind, the jury should hear about other surgeries that showed the defendant knew his surgical technique would injure, maim or kill, based on previous outcomes of these techniques.

In De La Paz extraneous drug deals were admissible under the doctrine of chances because the extraneous drug deals and the one underlying the charged offenses shared distinctive details: Officer De La Paz's confidential informant planted fake drugs near innocent people, but De La Paz recorded in his offense reports that he saw the contact or delivery between the CI and the victim, whereas others present did not see the contact or delivery. De La Paz, 297 S.W.3d at 341–42. The Court held “[t]he repetitions of these ‘highly unlikely events’ were an ‘extraordinary coincidence’ rendering De La Paz's claims about what he saw objectively unlikely.” Id. at 348.

As many of the foregoing exceptions illustrate, sometimes the defense strategy in the case makes extraneous acts relevant. In addition to the foregoing, a classic example of this at work is when a defendant places their intent at issue. When a defendant places his intent at issue by claiming his actions were with consent, as in a sexual assault, the doctrine of chances to the admissibility of an extraneous sexual assault offered to rebut the defensive theories of consent and lack of intent. Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005).

In holding Valadez’s prior connections to marijuana and cocaine were inadmissible under the doctrine of chances, the Court distinguished Valadez’s case from that of De La Paz. In De La Paz, the prior drug deals shared distinctive details - i.e., that De La Paz saw an alleged drug deal between the CI and the victim that no one else saw. But, in Valadez, there was no similarity between the prior offenses, and in fact, not all were even the same drug. Because the prior offenses did not share any distinctive facts with the charged offense, the were inadmissable per the doctrine of changes. Valadez v. State, No.

9. Malice Toward Parties of One Class of People: Where the accused has threatened or shown a feeling of ill-will and animosity towards all parties of one class then these threats or offenses may be admitted into evidence even though they show extraneous offenses. In Dillard v. State, 477 S.W.2d 547, 551 (Tex. Crim. App. 1971), a prosecution of a white defendant for murder with malice of an African American prostitute, extraneous evidence that defendant

had ill-will and animosity towards all African Americans and had previously shot at other African Americans was admissible on the issue of malice toward the deceased as a member of the African American race. Id.

introduction of evidence of past criminal history." Hernandez v. State, 351 S.W.3d 156, 160 (Tex. App.—Texarkana 2011, pet. ref'd). 1. Reputation Testimony: Reputation witnesses are generally asked "have you heard" questions. Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002). The reason for this form of question is taht is tests the weight of their testimony. Reynolds v. State, 848 S.W.2d 785, 788 (Tex. App.—Houston [14th Dist.] 1993, pet. ref'd). In Turner v. State, 805 S.W.3d 423, 429 (Tex. Crim. App. 1991),the Court held "[a] reputation witness's testimony must be based on discussion with others concerning the defendant, or on hearing others discuss the defendant's reputation, and not just on personal knowledge." Id. Furthermore, the discussions must be based, at least in part, on matters other than the charged offense. Id.

H. Texas Rule of Evidence 405: Methods of Proving Character Rule 405 provides when character evidence is admissible, it can be proved by either reputation or opinion testimony. In criminal cases, a witness may testify to the defendant's character only if the witness was familiar with the defendant's reputation or had formed their opinion prior to the day of the alleged offense. While reputation witnesses are generally asked "have you heard" questions, opinion witnesses are asked "did you know" questions. Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002). It is a well known tenet of evidentiary law that if a defendant offers evidence of their good character, they have opened the door to the State's introduction of character evidence in rebuttal. This is allowed even in circumstances where a defense witness is non-responsive and blurts out their opinion regarding the defendant's good character. Harrison v. State, 241 S.W.3d 23, 27-28 (Tex. Crim. App. 2007)(holding the trial court was correct in allowing the State to rebut defendant's good character evidence even though the defense witness was non-responsive in offering it).

The reputation witness must have "substantial familiarity" with the reputation of the defendant. "Substantial familiarity with specific acts is not the same as substantial familiarity with reputation...." Hernandez v. State, 800 S.W.2d 523, 524–25 (Tex. Crim. App. 1990). The opponent of the evidence is entitled to voir dire the reputation witness about the qualifications of their reputation testimony outside the presence of the jury. Lopez v. State, 860 S.W.2d 938, 944 (Tex. App.—San Antonio 1993, no pet.)(holding the trial court erred by denying defendant's request to question the State's reputation witness outside the presence of the jury before the witness could testify before the jury).

When a party creates a false impression before the jury by producing evidence of their character for being a law abiding citizen, they open the door to their otherwise inadmissible criminal history and instances of bad-conduct that rebut that false impression. "In order for this exception to apply, however, the defense must unambiguously create a false impression of law-abiding behavior, thereby permitting

2. Opinion Testimony: Opinion witnesses are asked "did you know" questions. Wilson v. State, 71 S.W.3d 346, 350 (Tex. Crim. App. 2002). The rationale for this

form of question is that "do you know" questions are designed to test the basis of their personal opinions. Reynolds v. State, 848 S.W.2d 785, 788(Tex. App.—Houston [14th Dist.] 1993, pet.ref'd).

the credibility issue." Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992). IV. Other Laws and Statutes Pertaining to Extraneous Offenses

I. Texas Rule of Evidence 609: Impeachment by Evidence of a Criminal Conviction

1. Tex Code Crim. Proc. 37.07: Extraneous Offenses at Punishment

Rule 609 allows for the admission of a witness's prior conviction if the following conditions are met:

Notice is to be provided to defense counsel per Art. 37.07 (3)(g), in the same manner as required by Tex. R. Evid. 404(b). However, notice under Art. 37.07 (3)(g) must be specifically requested as such. The defense cannot expect that a request for the State’s notice of intent to introduce extraneous offenses per either 404(b) or 609 extends to Art. 37.07. See Ramirez v. State, 967 S.W.2d 919, 923 (Tex.App.-Beaumont 1998, no pet.)(Rule 404(b) request does not apply to evidence that the State intends to introduce only at the punishment phase of trial).

• Sufficient notice of intent to use the conviction, if properly requested, was provided; • The conviction was a felony, or a misdemeanor involving moral turpitude; • The witness is the person who was convicted of the prior offense in question; • The conviction was a "final conviction;" • The conviction was not a juvenile adjudication;

Some Other Statutes Related to Extraneous Offenses:

• If more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later; and

While this paper will not address the offense specific statutes that deal with admissibility of extraneous offenses in any detail, it is important for the practitioner to know there are specific statutes that deal with extraneous offenses in certain types of cases. Some of these include the following statutes:

• Evidence of the conviction is admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

2. Tex. Code Crim. Proc. Article 38.36: Evidence in Prosecutions for Murder

In assessing whether the probative value of the prior conviction substantially outweighs its prejudicial effect, the court should consider the five Theus factors: "...(1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness' subsequent history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of

Both the State and Defendant shall be permitted to offer “...testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the killing.” Id. See e.g., Garcia v. State,

201 S.W.3d 695, 702 (Tex. Crim. App. 2006)(provided they comport with the rules of evidence, prior acts of violence between the victim and accused may be admissible to show the nature of their relationship); Bisby v. State, 907 S.W.2d 949, 957 (Tex. App. – Fort Worth 1995)(Art. 38.36 does not extend to allow extraneous acts to show the relationship between the defendant and parties, other than the deceased).

V. Other Issues Related to Admission of Extraneous Offenses 1. Either Party Can Seek to Introduce Extraneous Act Evidence Although most frequently used by the State against the defendant, recent case law illustrates one circumstance when extraneous offenses can be good for the defense: when used by the defense "…to offer evidence of other acts of misconduct to establish a person's motive for performing an act – such as making a false statement against the defendant." See Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016).

3. Tex. Code Crim. Proc. Article 38.37: Evidence of Extraneous Offenses or Acts Article 38.37 provides rules for admissibility of extraneous offenses in cases dealing with certain offenses against children, including sexual offenses. This statute is complicated in its interpretation, and presents unique requirements that differ from other general rules pertaining to extraneous offenses. In that it expressly disavows Tex. R. Evid. 404 and 405's prohibition of character conformity evidence, it is widely viewed as making most extraneous offenses admissible against the accused in sexual offenses involving children.

2. Contextual Evidence/ ”Same Transactional”/ “Res Gestae” Evidence: Same transaction evidence, also known as contextual evidence or “res gestae” provides the context in which a criminal act occurred. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The Wesbrook Court explained: “[t]his evidence is considered ‘res gestae,’ under the reasoning that events do not occur in a vacuum, and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that it may realistically evaluate the evidence.”Id.

4. Tex. Code Crim. Proc. Article 38.371: Household/Dating Relationship Offenses Each party may introduce evidence to determine if the defendant committed the charge defense, "including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim period." Provided the extraneous act evidence in question is otherwise admissible per the rules of evidence generally, Art. 38.371 makes relevant the facts and circumstances regarding the "nature of the relationship between the actor and the alleged victim."

In McDonald v. State, 179 S.W.3d 571, 577 (Tex.Crim.App. 2005), the Court explained under Rule 404(b), however, same transaction contextual evidence is admissible in circumstances where the "...the offense would make little or no sense without also bringing in the same transaction evidence." Id. In other words, "...it is admissible when several offenses are "so intermixed or connected as to form a

single, indivisible criminal transaction, such that in narrating the one, it is impracticable to avoid." Id.

counsel must guard against it. It can happen during opening statements, through crossexamination of a prosecution witness, or any time the defense strategy includes a claim the State is entitled to rebut. Examples include the following:

Recently, in Inthalangsy v. State, 634 S.W.3d 749, 756 (Tex. Crim. App. 2021), the Court of Criminal Appeals explained extraneous act evidence that is “contextual evidence” can also be admissible: “as illustrating other aspects of an “indivisible criminal transaction,” also known as same-transaction contextual evidence. Id.; Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). Same-transaction contextual evidence “illuminate[s] the nature of the crime alleged.” Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). A jury is entitled to know all the facts that are “blended or closely interwoven” with a continuous criminal episode. Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986). Yet, such same-transaction contextual evidence must be “necessary to the jury's understanding of the offense” such that the charged offense would make little sense without the same-transaction evidence. Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996).”Id. at 756.

a. Opening Statement: In Bass v. State, the Court of Criminal Appeals held “defense opening statement, like that made in this case, opens the door to the admission of extraneous-offense evidence, like that admitted in this case, to rebut the defensive theory presented in the defense opening statement.” Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). The Bass Court cited the court’s prior case of Powell v. State, 63 S.W.3d 435 (Tex.Cr.App.2001) as an example of an opening statement that opened the door to extraneous offense evidence. In prosecution for indecency with a child, Powell’s opening statement centered on the position he lacked opportunity to molest the complainant under the circumstances of the charged offense. The court held this opened the door to admission of extraneous-offense evidence that defendant molested others under almost identical circumstances to rebut defendant's lack of opportunity defensive theory). Id. at 438-40.

When an extraneous act evidence arises from the same transaction as the charged offense, the State is not required to provide notice. McDonald v. State, 179 S.W.3d 571, 577 (Tex.Crim.App. 2005). Furthermore, when this evidence of extraneous offenses is used to prove a main fact in the case, an instruction limiting the jury's consideration of this evidence is generally not required. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Porter v. State, 709 S.W.2d 213, 215 (Tex.Crim.App.1986).

b. Defenses can Open the Door: Sometimes, the defense has to forego a line of zealous advocacy in order to keep the door closed to extraneous offenses. In Page, defense counsel's challenge to victim's allegedly inaccurate testimony regarding defendant's weight rose to the level of impeachment, for purposes of raising issue of identity. The court held this opened the door to evidence of extraneous offenses, specifically two other “signature” sexual assaults where the defendant impersonated a police officer using the same car

3. Opening the Door: Don’t! Beware of opening the door to extraneous act identity evidence. This can happen in a number of ways, and defense

in the same location, with the same police officer props to prove identity. Page v. State, 137 S.W.3d 75 (Tex. Crim. App. 2004).

strangled them both. Also, the similarities between the two offenses constituted a signature modus operandi: both victims were manually strangled; both had been raped immediately before their deaths; their bodies were nude from the waist down; appellant's DNA was found in the vaginas of both victims. The similarities of these details are sufficient to mark the two rapemurders as the handiwork of a single person, appellant. Segundo v. State, 270 S.W.3d 79, 89 (Tex. Crim. App. 2008).

The defendant's cross-examination of a State's witness, that challenges identity, can render extraneous acts admissible to prove identity. Beets v. State, 767 S.W.2d 711, 739 (Tex. Crim. App. 1987)(when defendant's cross-examination of the State's witnesses put identity in dispute by suggesting another actor committed the murder, the State was permitted to admit evidence regarding how the defendant had killed a prior husband). Id. Central to the Beets Court's analysis was the fact the defendant's unique "signature" was close to identical in each murder. Id. (both involved the use of similar and unique weapon, the initial act of murder was by multiple .38 caliber bullet wounds to the back of the head, both murders were committed while the victim was sleeping at night, and the motive in each murder was for pecuniary gain). Id. at 740.

4. Meet, Rebut and Explain On the other hand, if extraneous misconduct evidence is admitted over defendant's objection, defendant can produce evidence to meet, rebut, or explain the complained of evidence. In Maynard v. State, where the defendant objected to the admission of extraneous offense evidence, the Court held “...the harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy, or explain it by the introduction of rebutting evidence. Such testimony does not act as a waiver of the right to challenge the admissibility of the evidence originally admitted.” Maynard v. State, 685 S.W.2d 60, 65 (Tex. Crim. App. 1985)

Evidence of an alibi can raise the issue of identity. Dickey v. State, 646 S.W.2d 232 (Tex. Crim. App. 1983)(defendant asserted an alibi, and State was permitted to offer extraneous rape in which both victims were A&M students who were close to their residences, and rapist wore dark sunglasses and used a sharp object).

5. Preservation of Error Bear in mind, the standard of review for a trial court's ruling regarding admissibility of evidence is abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). In this regard, "a trial court judge is given a limited right to be wrong…" Id. The pivotal question is whether the trial court abused its discretion by permitting the State to introduce the extraneous offense, over objection by defense counsel.

In Segundo, a capital murder case where defendant’s semen was found in the vagina of the murdered woman, defendant alleged he had sex with the woman but was not responsible for her death. This case is a classic example of the entertwining of the identity theory of admissibility and the doctrine of chances. The State presented an extraneous murder under Wigmore's “doctrine of chances” because “…it is extraordinarily implausible to think that two murder victims would have had sexual intercourse with appellant shortly before their deaths, but that he was not the person who

Furthermore, the Court of Criminal Appeals has held "…when the trial court is called upon by sufficient objection to balance probativeness and prejudice, a presumption exists favoring the former." McFarland v.State,845 S.W.2d 824, 837 (Tex. Crim. App. 1992).

In Roethel v. State, 80 S.W.3d 276, 281 (Tex. Cr. App. 2002) the Court of Criminal Appeals explained: "[b]efore 1993, the State could not offer evidence of unadjudicated extraneous offenses at punishment hearings. In 1993, the Legislature simultaneously removed the bar to the admissibility of such evidence based on its substance and imposed a procedural requirement for its admissibility. The language of section 3(g) is mandatory; it states that the State ‘must’ give notice upon timely request and deems the notice a ‘requirement.’ The logical and proper consequence of violations of section 3(g) is that the evidence is inadmissible." Id. [internal citation omitted].

Failure to give a limiting instruction when an extraneous offense is admitted to impeach credibility is error, but whether the failure is reversible depends upon an application of Almanza. Porter v. State, 709 S.W.2d 213 (Tex. Crim. App.1986). V.

Importantly, a defendant must request notice of such extraneous offenses or bad acts which the State intends to introduce in its punishment case-in-chief, in order to be entitled to receive notice of those extraneous matters, including the date of the alleged incident, the county where it allegedly took place, and the alleged victim's name, before trial. Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Cr. App. 2002). This request should be filed in every case and served upon the State, with a copy filed with the clerk of court in the case. The request should be timely filed, well in advance to accomplish its purpose. See Espinosa v. State, 853 S.W.2d 36 (Tex. Crim. App. 1993)(holding a request made on the day of trial is not timely). Because this is a request of the State, and not a motion, no court action is needed, and the request itself is sufficient to trigger the State's obligation to provide requisite notice. Id.

Trial Strategy to Keep Out Extraneous Offense Evidence and Related Issues The State always wants to introduce extraneous misconduct, and it is always bad for the defense. There are several roadblocks we can set up to try to keep that damaging evidence out. Some of the roadblocks, as referenced below, involve the filing of various requests and motions. An excellent resource for these can be found on attorney Mark Stevens’s website under the “Extraneous Offenses” tab of the “Motions, Etc” d r o p - d o w n m e n u i t e m : https://markstevenslaw.com/motions-etc/. 1. File a Request For Notice of State’s Intent to Introduce Evidence of Extraneous Offenses One of the routine things defense counsel can do to protect their clients from extraneous offense "bad acts" evidence at all stages of the trial, including punishment, is to file a "Request for Notice of the State's Intent to Offer Extraneous Offenses at Trial per Tex. Code Crim. Proc. Art. 37.07, Tex. Code Crim. Proc. Art. 38.37, and Tex. R. Evid 404(b) and 609."

b. Exceptions to Notice Requirement There are exceptions to the requirement of notice. Although notice of extraneous misconduct the State intends to offer in it case-in-chief must be provided, the State is not required to provide notice of rebuttal extraneous office evidence either at guilt-innocence or punishment, Jaubert v. State, 74 S.W.3d 1, 3 (Tex. Crim. App. 2002), or same-transaction contextual

a. Upon Timely Request, The State Must Provide Notice

evidence (evidence which is related to the context of the offense for which defendant was charged, and therefore not conduct that was extraneous to defendant's commission of that offense). Worthy v. State, 312 S.W.3d 34, 37 (Tex. Crim. App. 2010). Similarly, the State need not provide notice of extraneous offenses for which the defense opened the door to, either through testimony or via a defense to which the State is entitled to rebut.

The following analysis regarding the reasonableness of notice shows the courts determine reasonable notice in light of how long the defendant's request had been on file with respect to when, and how close to trial, the state responded with notice: "... the reasonableness of the notice is determined by all of the facts and circumstances of the case. Several cases closely approximate this situation, however, and are enlightening on what has been considered reasonable. The Waco Court of Appeals held that so-called ‘Friday notice’ was unreasonable, but did so in light of the fact that the defendant's request for notice had been on file for over ten months prior to trial. See Hernandez v. State, 914 S.W.2d 226, 234 (Tex.App.-Waco 1996, no pet.).

c. Without Notice, Object to Admission of Extraneous Offenses Upon proper objection by the defense, the State's wholesale failure to respond to a timely request for notice, renders it error for the court to admit evidence of the extraneous misconduct Hernandez v. State, 176 S.W.3d821, 824 (Tex. Crim. App. 2005).

Similarly, the Austin Court of Appeals held the State's notice unreasonable when that notice was provided on the morning of trial, despite the fact that the defendant's request was made six weeks earlier. See Neuman v. State, 951 S.W.2d 538, 540 (Tex.App.-Austin 1997, no pet.). By contrast, the Fort Worth Court of Appeals held the notice was reasonable when it was provided five days prior to trial after a request made two weeks earlier. See Self v. State, 860 S.W.2d 261, 264 (Tex.App.-Fort Worth 1993, pet ref'd)."

d. When is Notice Timely and Sufficient? When the State provides notice of intent to offer extraneous misconduct, the notice also must be sufficient and timely. While there is no clear direction from the courts on what timely notice is, Texas Rule of Evidence 404(b) requires it be "reasonable" notice. Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App. 2001). One court of appeals addressing reasonable notice determined notice of only three days was not reasonable. Webb v. State, 36 S.W.3d 164, 179 (Tex. App.-Houston [14th Dist.] 2000)(holding "[h]aving requested notice of the State's intent to use extraneous offense evidence more than six months before trial, the appellant was entitled to assume that the State did not intend to use such evidence because the State had not provided the requisite notice by the eve of trial.). But see, Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.-Corpus Christi 2000, no pet.)(three days notice was sufficient in that the extraneous misconduct evidence derived from the defendant's statement).

Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.-Corpus Christi 2000, no pet.) Thus, a practice takeaway tip is, make sure to file the Defendant's Request for Notice of Intent early in the representation, as it will give you more footing to challenge a late response from the State. The purpose of Rule 404(b) notice provision is to prevent surprise. Hayden v. State, 66 S.W.3d 269, 272 (Tex.Cr.App.2001). See also, Hernandez v. State, 176 S.W.3d 821, 823 (Tex. Crim. App. 2005). The Court in Hernandez explained the trial court also has “...discretion to utilize its powers (such as granting continuances to reduce surprise) to permit the State to bring itself in compliance with the notice provision of Rule 404(b). But, a trial court must use these

i. Timeliness of the State’s Notice:

powers to ensure compliance and not to excuse noncompliance.” Id. at 824.

the alleged victim. 2. File and Litigate Pretrial Motions in Limine:

ii. Sufficiency of State’s Notice: In addition to being timely, the State's response providing notice of their intent to offer extraneous misconduct must be sufficient.

While a motion in limine is not the way to challenge the admission of extraneous act evidence or preserve error for the trial court's erroneous admission of extraneous offenses, it is an excellent way to protect your client from ambush with inadmissible extraneous act evidence. File and litigate a detailed pretrial motion in limine and obtain, if possible, a ruling in limine that precludes the State and its witnesses from blurting out evidence about alleged extraneous acts, unless it first gets a ruling from the court allowing same.

It is not sufficient for the State to allege it provided requisite notice simply by providing the defense discovery, or making their file available. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995)(holding "we cannot conclude that the mere opening of its file containing an offense report detailing extraneous evidence satisfies the requirement of giving notice "of intent to introduce" such evidence.").

It is "axiomatic" that motions in limine do not preserve error. Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988)(motion in limine to exclude evidence, without a contemporaneous objection at the time of admission and request for a limiting instructions fails to preserve error). See also Maynard v. State, 685 S.W.2d 60, 64 (Tex.Cr.App.1985); Romo v. State, 577 S.W.2d 251, 252 (Tex.Cr.App.1979).

The purpose of requesting notice is not so defense will know about the extraneous offense, but so that the defense knows what the State’s intent is with regard to the extraneous offense. In Hernandez, the Court explained the distinction thusly: “Appellant is correct in asserting that ‘simply because the defendant knew about the extraneous acts does not mean he has been given notice of the state's intent to use the evidence ... [or that] he is properly prepared to defend against them.’ A defendant who has asked for notice of what uncharged misconduct the State intends to use against him, may think, when he State fails to respond, that the prosecutor does not know of those prior peccadilloes. Thus, he need not be prepared to defend against their use because the State is either unaware of their existence or does not think they are relevant.” Hernandez v. State, 176 S.W.3d 821, 825–26 (Tex. Crim. App. 2005).

3. Object When the State Tries to Admit the Extraneous Act Evidence To preserve error, an accused must make a timely and specific objection to the admission of the extraneous offense. This objection must be made at the time of admission, or outside the presence of the jury per Rule 103. Best practices to exclude extraneous offense evidence calls for a series of sequenced objections: a.

For extraneous misconduct evidence at punishment, per Tex. Code Crim. Proc. 37.07 §3, if the extraneous act does not constitute an offense, or did not result in a final conviction, the State's notice must include the date of the alleged extraneous act, the county in which the alleged extraneous act occurred, and the name of

Object to Relevance, Rules 401 and 402

The opponent should object that the evidence is irrelevant and inadmissible per Tex. R. Evid. 401 and 402. b.

Object- Relevant Only to Character Conformity, Rule 404(b)

If the relevancy objection is overruled, defense counsel should then object under Tex. R. Evid. 404(b), that any relevance the extraneous offense evidence has, is for character conformity only. Note: An objection to relevance alone does not preserve 404(b) error. Camacho v. State, 864 S.W.2d 524, 533 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1339, 127 L.Ed.2d 687 (1994)(relevancy objection at trial does not preserve error concerning a Rule 404 extraneous offense claim). See also Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999). c.

pursuant to the Tex. R. Evid. 403 balancing test that the extraneous act evidence’s probative value is substantially outweighed by the danger of unfair prejudice and should be excluded. The trial court is not obligated to engage in a 403 balancing test "…unless the opponent of the evidence further objects under Rule 403." Mozon v. State, 991 S.W.2d 841, 846 n.6 (Tex. Crim. App. 1999). When the trial court is called to engage in a Rule 403 balancing, there is a presumption in favor of the probativeness of the evidence. McFarland v. State, 845 S.W.2d 824, 837 (Tex. Crim. App. 1992). The party objecting to the evidence under Rule 403, usually the defense, has the burden of proof to show the prejudice substantially outweighs the probative value. Defense counsel should cite the factors originally laid out in Montgomery (see above), to illustrate that any probative value of the extraneous misconduct evidence is substantially outweighed by unfair prejudice. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

R equest that the St a t e Articulate the Purpose for Offering the Evidence

Defense counsel must request the trial court to to require the State to put on the record the purpose for which the evidence is offered. The proponent of the extraneous offense evidence in question bears the burden of proof to show the extraneous conduct evidence has relevance apart from establishing character conformity. See Feldman v. State, 71 S.W.3d 728, 754 (Tex. Crim. App. 2002). See also Montgomery v. State, 810 S.W.2d at 387(the trial court should honor any request by the opponent of the evidence for articulation into the record of the purpose for which evidence is either offered by the proponent or ultimately admitted by the trial court.”). "Whether objected-to evidence of ‘other crimes, wrongs or acts' has relevance apart from character conformity, as required by Rule 404(b)… is a question for the trial court." Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991). Thus, when and if a trial court admits extraneous evidence, defense counsel should request the court also state on the record its reason for admitting it. See Id.

e. Request a Limiting Instruction When the Evidence is Admitted: If the Court admits the evidence, the defense must request a limiting instruction at the time the evidence is admitted pursuant to Tex. R. Evid. 105. Defense counsel has the burden of requesting an instruction limiting consideration of those acts. Ex parte Varelas, 45 S.W.3d 627, 631–32 (Tex. Crim. App. 2001). When the limiting instruction is requested, the trial court is required to give the requested instruction. See George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App.1994)(stating that "if the defendant so requests at the guilt/innocence phase of trial, the trial court must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense.").

d. Object-Probative Value is Outweighed by Unfair Prejudice, Rule 403 If the trial court rules against the defendant, defense counsel must then object

f. Request Limiting Instruction and Burden of Proof Instruction in Court’s Written Jury Charge

provides that the improper admission of evidence, such as extraneous offense evidence, over objection is rendered harmless by the admission into evidence of the same facts without objection at another point during the course of the trial. Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1978) (Opinion on State's Motion for Rehearing); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973) (Opinion on State's Motion for Rehearing). Accordingly, if extraneous misconduct evidence is erroneously admitted over defendant's objection, a party must object each time the inadmissible evidence is offered or obtain a running objection. Leday v. State, 983 S.W.2d 713, 729 (Tex. Crim. App. 1998) citing T homas v. S t at e , 572 S.W.2d 507 (Tex.Cr.App.1978).

Defense counsel should request the limiting instruction again be given in the court’s written jury charge. George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994) (if requested at the guilt/innocence phase of trial, the trial court must give a limiting instruction regarding the purpose the evidence can be considered for, as well as an instruction the jury not consider the extraneous offense evidence unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense). If the defendant failed to request a limiting instruction at the time the extraneous evidence was admitted, the court need not instruct the jury as to limit their consideration of that evidence in the written jury charge. Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001)(without a limiting instruction at the time of admission, evidence was admitted for all purposes, and the court was not required to include a limiting instruction in the charge to the jury).

5. Meet, Destroy, Rebut and Explain On the other hand, if extraneous misconduct evidence is admitted over defendant's objection, defendant can produce evidence to meet, destroy, rebut or explain the complained of evidence. In Maynard v. State, where the defendant objected to the admission of extraneous offense evidence, the Court held “...the harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy, or explain it by the introduction of rebutting evidence. Such testimony does not act as a waiver of the right to challenge the admissibility of the evidence originally admitted.” Maynard v. State, 685 S.W.2d 60, 65 (Tex. Crim. App. 1985)

In addition to the limiting instruction, upon request the court at the guilt-innocence phase of trial must instruct the jury it may only consider the extraneous offense evidence if the State has met its burden in proving beyond a reasonable doubt that the defendant committed the extraneous offense. See Ex parte Varelas, 45 S.W.3d 627, 631 (Tex. Crim. App. 2001). But see, Huizar v. State, 12 S.W.3d 479, 483 (Tex. Crim. App. 2000)(explaining the court must sua sponte provide a charge on the beyond reasonable doubt burden of proof for extraneous acts because Tex. Crim. Proc. Art. 37.07 requires extraneous bad acts and offenses be proven beyond a reasonable doubt in order to be considered as punishment evidence).

In Leday v. State, 983 S.W.2d 713, 729 (Tex. Crim. App. 1998), the Court of Criminal Appeals explained “... the harmful effect of improperly admitted evidence is not cured by the introduction of rebuttal evidence designed to meet, destroy, or explain the improper evidence. Id. citing Howard v. State, 599 S.W.2d 597, 605 (Tex.Cr.App.1979) (Opinion on State's Motion for Rehearing).

4. Don’t Otherwise Waive or “Cure” the Error The doctrine of curative admissibility

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: The Family Limits: Ethics Speaker: Mark Snodgrass 1402 Texas Avenue Lubbock, TX 79401 (806) 762-0267 Phone (806) 762-0277 Fax marksnodgrass@sbcglobal.net Email

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Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Ten Commandment: Case Law Update Speaker: Hon. David Newell PO Box 12308 Austin, TX 78711-2308 (713) 204-7292 Phone David.Newell@txcourts.gov Email

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SIGNIFICANT DECISIONS UNITED STATES SUPREME COURT AND THE COURT OF CRIMINAL APPEALS FROM SEPTEMBER 2021 TO MARCH 2022

HON. DAVID C. NEWELL JUDGE, PLACE 9 Court of Criminal Appeals Paper prepared in part by Ryan Katherine Golden Briefing Attorney

Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 (512) 463-1570

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

Acknowledgement So, my law clerk is responsible for this paper. She overcame great adversity to bring this to you. My research attorney came onboard after she was hired and left before Christmas. Still, she persevered. All while also trying to draft opinions and do the work of two attorneys. But what do you expect from someone who graduated at the top of her class at Baylor Law? Anything smart comes from her. Any commentary comes from me. Don’t blame her, she could not stop me.

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

Table of Contents I.

INTRODUCTION ..............................................................................................................................................................1

II.

MOTIONS TO SUPRESS..................................................................................................................................................1 A.

SEARCH WARRANTS - MISREPRESENTATIONS IN A WARRANT AFFIDAVIT THAT REFERENCED A CONFIDENTIAL DEA INFORMANT AS AN “ANONYMOUS TIPSTER” WERE ULTIMATELY NOT MATERIAL SO THERE WAS NO VIOLATION OF FRANKS V. DELAWARE..............................................................................................................................................................................1 CONFESSIONS - DEFENDANT’S SECOND STATEMENT WAS NOT PROPERLY “WARNED AND WAIVED” AS REQUIRED BY ARTICLE 38.22 BECAUSE THAT STATEMENT WAS SURREPTITIOUSLY RECORDED WITHOUT ANY REFERENCE TO EARLIER STATUTORY WARNINGS. ......................................................................................................................................................... 2

III.

TRIAL PROCEDURE .......................................................................................................................................................3

JURISDICTION AND AUTHORITY .............................................................................................................................................3 1. County courts share jurisdiction over official-misconduct misdemeanors with district courts unless a statute applicable to that county excludes such offenses from that county court’s jurisdiction. ..................................................3 2. Attorney General lacks authority to independently prosecute criminal cases in trial courts; Election Code § 273.021, which purported to grant the Attorney General the unilateral power to prosecute election-law violations, violates the separation of powers clause. ............................................................................................................................................3 3. A trial court has 30 days of plenary jurisdiction to dismiss an indictment after discharging a defendant from community supervision pursuant to Article 42A.701(f) of the Code of Criminal Procedure............................................4 B. STATUTE OF LIMITATIONS - STATUTE OF LIMITATIONS IN POSSESSION OF A CONTROLLED SUBSTANCE CASE WAS NOT TOLLED BY THE PENDENCY OF AN INITIAL INDICTMENT WHEN THE SUBSEQUENT INDICTMENT ALLEGED A DIFFERENT DRUG AND CHARGED BOTH POSSESSION AND ATTEMPTED POSSESSION BY ALL OF THE POSSIBLE STATUTORY MANNERS AND MEANS. .................................................................................................................................................................................. 5

WAIVER OF JURY TRIAL - A DEFENDANT MAY WITHDRAW HIS WAIVER OF A JURY TRIAL THAT WAS EXECUTED IN

ANTICIPATION OF A NEGOTIATED PLEA THAT WAS NEVER FINALIZED. .................................................................................... 6

SPEEDY TRIAL - A FOUR-MONTH DELAY DID NOT VIOLATE DEFENDANT’S RIGHT TO A SPEEDY TRIAL IN A MISDEMEANOR CASE AND ANY FURTHER DELAY DUE TO COMPETENCY EVALUATIONS OF THE DEFENDANT COULD NOT BE ASSESSED AGAINST THE STATE............................................................................................................................................................... 7

DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL .................................................................................................................8 1. Convictions and sentences for two counts of driving while intoxicated with a child passenger, which arose from the same driving incident but alleged a different child, violated the Double Jeopardy Clause. ............................................8 2. Defendant’s convictions for continuous sexual abuse of a child and prohibited sexual conduct for acts committed against a single victim in the same time frame did not violate the Double Jeopardy Clause...........................................9 3. Collateral estoppel did not bar a subsequent prosecution for reckless aggravated assault causing bodily injury to a driver of a vehicle after a jury found the defendant not guilty of manslaughter and found that he was not reckless in causing the collision which led to the death of the vehicle’s passenger. ........................................................................ 10 F. DRIVING WHILE INTOXICATED - THE STATE’S FAILURE TO READ A 0.15 ALLEGATION INCLUDED IN A CHARGING INSTRUMENT UNTIL THE PUNISHMENT STAGE OF TRIAL DID NOT CONSTITUTE AN INTENTIONAL ABANDONMENT OF THE ALLEGATION OR A FAILURE TO JOIN ISSUE, NOR WAS ANY ERROR HARMFUL IN LIGHT OF THE DEFENDANT’S DECISION TO

IV.

HAVE THE TRIAL COURT ASSESS PUNISHMENT. ..................................................................................................................... 10

PRESERVATION .................................................................................................................................................................... 12 To preserve a hearsay objection under Texas Rule of Evidence 803(6)(D), a defendant need not specifically object that a witness is neither a proper custodian of the business records nor another qualified witness. ............................. 12 2. To obtain appellate review of the error that occurs when an alternate juror is permitted to retire with the jury while it deliberates, a defendant is not required to move for a mistrial or file a motion for new trial. ...................................... 13 3. To preserve a challenge to a restitution order, defendants must object in the trial court. ............................................. 14 1.

EVIDENCE ....................................................................................................................................................................... 14

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022 A.

RELEVANCE – EXTRANEOUS OFFENSE EVIDENCE THAT A KIDNAPPED VICTIM WAS LATER MURDERED WAS RELEVANT AND ADMISSIBLE IN DEFENDANT’S CAPITAL MURDER TRIAL FOR THE KILLING OF A DIFFERENT VICTIM, IN WHICH THE AGGRAVATING ELEMENT WAS KIDNAPPING. ........................................................................................................................ 14 B. DEMONSTRATIVE EXHIBITS - A TRIAL COURT MAY ADMIT A COMPUTER-GENERATED ANIMATION AS A DEMONSTRATIVE EXHIBIT SHOWING OTHERWISE ADMITTED TESTIMONY OR EVIDENCE SO LONG AS IT: (1) IS AUTHENTICATED, (2) IS RELEVANT, AND (3) HAS PROBATIVE VALUE THAT IS NOT SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE. ........................................................................................................................................................................... 15 C. CONFRONTATION CLAUSE ................................................................................................................................................... 16 1. Admission of expert testimony regarding a DNA-comparison analysis did not violate the Confrontation Clause where the analysis was based on computer-generated data from the expert’s lab and data from another independent lab. ... 16 2. Admission of transcript of other suspect’s plea allocution, which the State used as evidence to rebut the defendant’s theory that the other suspect, who was not available to testify at defendant’s trial, committed the murder, violated the Confrontation Clause. .................................................................................................................................................... 17 E. “RAPE SHIELD” RULE — THE COURT OF APPEALS SHOULD HAVE REMANDED THE CASE TO THE TRIAL COURT TO REMEDY TRIAL COURT’S EXCLUSION OF THE STATE, DEFENSE COUNSEL, AND THE DEFENDANT FROM RULE 412 HEARING. .............. 18 F. CONFIDENTIAL INFORMANTS – DISMISSAL OF CAPITAL MURDER CHARGE ON THE DEFENDANT’S MOTION WAS PROPER UNDER RULE 508 BECAUSE THE STATE REFUSED TO DISCLOSE THE IDENTITY OF A CONFIDENTIAL INFORMANT, AND THERE WAS A REASONABLE PROBABILITY THAT THE INFORMANT COULD GIVE TESTIMONY NECESSARY TO A FAIR DETERMINATION OF GUILT OR INNOCENCE. ..................................................................................................................................................... 19

OFFENSES ....................................................................................................................................................................... 20 A.

CONTINUOUS SEXUAL ABUSE OF A CHILD – EVIDENCE THAT ESTABLISHED A DEFINITE END DATE OF THE ABUSE BUT NOT A DEFINITE START DATE WAS NONETHELESS SUFFICIENT TO SUPPORT THE “30 OR MORE DAYS” ELEMENT OF THE OFFENSE BECAUSE A JURY COULD REASONABLY INFER FROM THE TESTIMONY WHEN THE ABUSE BEGAN. ......................................... 20 POSSESSION OF PENALTY GROUP 4 CONTROLLED SUBSTANCE — DEFENDANT COULD NOT BE CONVICTED OF POSSESSION OF EITHER PENALTY GROUP 1 OR PENALTY GROUP 4 CODEINE WHERE THE EVIDENCE FAILED TO PROVE THE PROPORTION OF THE CODEINE MIXTURE, AS REQUIRED UNDER PENALTY GROUP 4, BUT ALSO DID NOT ESTABLISH THAT THE SUBSTANCE POSSESSED WAS CODEINE NOT LISTED IN PENALTY GROUP 3 OR 4, AS REQUIRED UNDER PENALTY GROUP 1. ..................... 21 AGGRAVATED ASSAULT - DEFENDANT’S STATEMENT, “I NEED TO HIT” CONSTITUTED A VERBAL THREAT AND PROVIDED SUFFICIENT EVIDENCE OF THE THREAT ELEMENT OF THE CHARGED AGGRAVATED ASSAULT. .............................................. 22 FAMILY VIOLENCE - TESTIMONY THAT A VICTIM REFERRED TO THE DEFENDANT AS HER BOYFRIEND WAS SUFFICIENT TO PROVE THE EXISTENCE OF A DATING RELATIONSHIP UNDER TEXAS FAMILY CODE § 71.0021(B) DESPITE THE ABSENCE OF THE STATEMENT ON THE BODY CAMERA FOOTAGE............................................................................................................... 23 UNLAWFUL CARRYING OF A WEAPON - TO OBTAIN A CONVICTION FOR THE UNLAWFUL CARRYING OF A WEAPON BY A MEMBER OF A CRIMINAL STREET GANG, THE STATE MUST PROVE THAT THE DEFENDANT ENGAGED IN CRIMINAL ACTIVITY AS PART OF THE CRIMINAL STREET GANG. ............................................................................................................................ 24 OFFICIAL OPPRESSION AND TAMPERING WITH A GOVERNMENT RECORD – CHIEF OF POLICE WHO ENTERED A MAN’S HOME AND ARRESTED HIM WITHOUT A WARRANT WITHOUT EXIGENT CIRCUMSTANCES ENGAGED IN OFFICIAL OPPORESSION, BUT

C. D.

MERE ABSENCES OF INFORMATION IN THE POLICE REPORT WERE NOT SUFFICIENT TO SUPPORT A CONVICTION FOR TAMPERING WITH A GOVERNMENT RECORD. ........................................................................................................................ 25

CORPUS DELICTI RULE DOES NOT BAR CONVICTION FOR A SEXUAL OFFENSE COMMITTED AGAINST A PRE-VERBAL CHILD THAT SHOWS NO PHYSICAL SIGNS OF HARM SO LONG AS THE CONFESSION TO THE CRIME IS TRUSTWORTHY. ...................... 26

VI. A.

JURY INSTRUCTIONS .................................................................................................................................................. 27 DEFENSIVE INSTRUCTIONS................................................................................................................................................... 27 Defendant who equivocated in his testimony about whether he committed the charged conduct satisfied the confession-and-avoidance doctrine. ............................................................................................................................... 27 2. Defendant was entitled to jury instruction on necessity based on her testimony that, while she was intoxicated, she attempted to move the vehicle off the road, notwithstanding her denial that she was operating the vehicle. ................ 28 3. Defendant who claimed he shot victim in self-defense was not entitled to a threat-of-deadly-force instruction under Texas Penal Code § 9.04. ............................................................................................................................................... 29 1.

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022 B.

LESSER-INCLUDED INSTRUCTIONS ....................................................................................................................................... 30 Defendant was entitled to a jury instruction on the lesser-included offense of deadly conduct in an aggravatedassault-with-a-vehicle case based on his testimony that he “must have” dozed off or passed out prior to accident..... 30 2. A defendant charged with aggravated sexual assault was not entitled to a jury instruction on indecency with a child by contact because it was not a lesser-included offense of the charged crime.................................................................... 31 3. Defendant who was charged with capital murder committed in the course of a robbery was not entitled to a jury instruction on the lesser-included offense of robbery because no evidence negated conspiracy liability. ..................... 31 C. EGREGIOUS HARM – DEFENDANT WAS NOT EGREGIOUSLY HARMED BY ERRONEOUS SELF-DEFENSE INSTRUCTIONS WHEN HE WAS NOT ENTITLED TO A USE-OF-DEADLY-FORCE-IN-SELF-DEFENSE INSTRUCTION IN THE FIRST PLACE. ............................. 33 D. PUNISHMENT-PHASE JURY CHARGE THAT FAILED TO PROPERLY TRACK THE LANGUAGE OF THE HABITUAL-OFFENDER STATUTE AMOUNTED TO JURY-CHARGE ERROR SUBJECT TO A HARM ANALYSIS, NOT AN ILLEGAL SENTENCE. ..................... 33 1.

VII. SENTENCING ...................................................................................................................................................................... 34 A.

DEATH PENALTY ................................................................................................................................................................. 34 Mandatory sentence of life without the possibility of parole after the State waived the death penalty was not unconstitutional as applied to an intellectually-disabled defendant convicted of capital murder. ................................ 34 2. Evidence that a capital defendant would pose a continuing threat to society, whether in or out of prison, was sufficient to support jury’s affirmative finding on the future-dangerousness special issue. .......................................................... 35 3. The United States Supreme Court reinstated the Boston Marathon Bomber’s death sentence. ..................................... 37 B. STACKING – OFFENSES WERE PROSECUTED IN THE SAME CRIMINAL TRANSACTION, SUCH THAT THE SENTENCES COULD NOT BE STACKED, WHERE THE DEFENDANT WAS ADJUDICATED GUILTY OF THREE OFFENSES, PLEAD GUILTY TO TWO ADDITIONAL OFFENSES, AND WAS SENTENCED FOR ALL FIVE SIMULTANEOUSLY. ..................................................................................... 38 C. ENHANCEMENTS – AN AGGRAVATED STATE-JAIL FELONY MAY BE ENHANCED UNDER THE HABITUAL-OFFENDER STATUTE TO A FIRST-DEGREE OFFENSE BASED UPON TWO ADDITIONAL AND SEQUENTIAL PRIOR FELONY CONVICTIONS. ................... 39 1.

VIII.

APPEALS .......................................................................................................................................................................... 39

PRETRIAL WRITS – COURT OF APPEALS SHOULD HAVE ADDRESSED COGNIZABILITY AS A THRESHOLD ISSUE BEFORE REACHING THE MERITS OF CLAIM. ........................................................................................................................................ 39 MOTIONS FOR NEW TRIAL – A TRIAL COURT HAS DISCRETION TO GRANT LEAVE OF COURT AND PERMIT A DEFENDANT TO

FILE AN AMENDED MOTION FOR NEW TRIAL EVEN AFTER THE TRIAL COURT HAS OVERRULED AN INITIAL MOTION FOR NEW

TRIAL. .................................................................................................................................................................................. 40

STATE’S RIGHT TO APPEAL – THE STATE MAY APPEAL A TRIAL COURT’S ORDER THAT GRANTS POST-CONVICTION HABEAS CORPUS RELIEF AND VACATES THE CONVICTION IN A MISDEMEANOR CASE. ........................................................................ 41 D. HARM .................................................................................................................................................................................. 41 1. Any error in admitting police report regarding an extraneous offense over defendant’s objection was harmless. ....... 41 2. When a trial court fails to suppress evidence that was obtained in violation of only Article I, § 9 of the Texas Constitution, Texas Rule of Appellate Procedure 44.2(b) provides the proper harm analysis. ..................................... 42 IX.

INEFFECTIVE ASSISTANCE OF COUNSEL ............................................................................................................ 43

DEFICIENT PERFORMANCE - BY FAILING TO RAISE AN ILLEGAL SENTENCE CLAIM BASED ON THE IMPROPER USE OF ENHANCEMENTS, APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE ON APPEAL. .................................................. 43 B. PREJUDICE ........................................................................................................................................................................... 44 1. Assuming trial counsel rendered ineffective assistance by failing to investigate a mitigation case, no prejudice was shown because the proffered witnesses either had not had contact with the defendant for the decade that he was a fugitive or would have given damaging testimony because they knew of his bad acts during that time. ....................... 44 2. In an ineffective-assistance-of-counsel claim based on counsel erroneously advising a defendant that he is eligible for probation, the correct measure of prejudice focuses on the impact of the bad advice on the defendant’s decision making and does not require a showing of a different outcome. .................................................................................... 45 X.

HABEAS CORPUS .......................................................................................................................................................... 45 A.

FALSE EVIDENCE ................................................................................................................................................................. 45

iii

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022 1.

The requirements for the inference of falsity under Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014) apply to cases involving a police officer with a demonstrated pattern of misconduct in drug-related cases. .............................. 45 2. Court remanded petition for writ of habeas court for the habeas court to fully develop all the applicant’s claims. ..... 46 B. ILLEGAL SENTENCES – APPLICANT WHO HAD BEEN AUTOMATICALLY SENTENCED TO LIFE IMPRISONMENT BASED ON AN ENHANCEMENT WAS ENTITLED TO BE RESENTENCED WHERE THE COURT HAD VACATED THE PREDICATE ENHANCING CONVICTION. ........................................................................................................................................................................ 46 C. ACTUAL INNOCENCE – DEFENDANT WHO PLED GUILTY TO ATTEMPTED FORGERY BASED ON AN ALLEGEDLY-COUNTERFEIT $100 BILL, WHICH WAS LATER DETERMINED TO BE GENUINE, HAD NOT PROVEN HE WAS ACTUALLY INNOCENT OF THE OFFENSE, BUT HE WAS ENTITLED TO RELIEF ON THE GROUND THAT HIS PLEA WAS INVOLUNTARY. ...................................... 47 XI.

FEDERAL LAW .............................................................................................................................................................. 48

§ 1983 CLAIMS .................................................................................................................................................................... 48 A police officer did not violate clearly established law and was not made ineligible for qualified immunity by briefly placing his knee on a defendant’s back. ......................................................................................................................... 48 2. Officers, who shot and killed a defendant after he raised and attempted to throw a hammer at them, did not violate clearly established law on excessive force and were eligible for qualified immunity. ................................................... 48 B. ARMED CAREER CRIMINALS ACT – DEFENDANT’S TEN BURGLARY CONVICTIONS ARISING FROM A SINGLE CRIMINAL EPISODE DID NOT OCCUR ON DIFFERENT “OCCASIONS” AND THUS COUNT AS ONLY ONE PRIOR CONVICTION FOR PURPOSES OF ACCA. ............................................................................................................................................................................ 49 1.

XII. A. B.

IMMUNITY UNDER THE TORT CLAIMS ACT ....................................................................................................... 50 IN TORT CASE STEMMING FROM A FATAL ACCIDENT CAUSED BY A SUSPECT WHO WAS BEING PURSUED BY POLICE, CITY’S

GOVERNMENT IMMUNITY WAS NOT WAIVED UNDER THE TEXAS TORT CLAIMS ACT. .......................................................... 50

CITY WAS NOT REQUIRED TO PROVE THAT POLICE OFFICER BALANCED THE NEED FOR AND RISK OF ACTIVATING HIS EMERGENCY LIGHTS TO PREVAIL IN A CASE CHALLENGING THE OFFICER’S OFFICIAL IMMUNITY UNDER THE TEXAS TORT CLAIMS ACT. ....................................................................................................................................................................... 51

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

SCOTUS/CCA Update

informant told a DEA agent that Jessie had committed the home invasion and gave him Jessie’s phone numbers, an agent ran the numbers on his own initiative and connected them to Diaz, and another agent called police to share the information. The trial court denied Diaz’s motion to suppress, concluding that the misrepresentations were not material. At trial, the State introduced the challenged evidence. The jury found Diaz guilty of burglary of a habitation.

Significant Decisions from September 2021 to December 2021 I.

INTRODUCTION

This paper covers the published opinions issued by the Court of Criminal Appeals between September 1, 2021, and December 31, 2021. It also includes the significant criminal cases from the United States Supreme Court that have broad applicability, issued between September 1, 2021, and March 16, 2022. However, we continue to update the paper as the respective court terms roll on. If you would like a copy of the complete paper at the end of the respective terms, please email me through Nichole Reedy at nichole.reedy@txcourts.gov and we’ll do our best to get you a copy this summer. Because that’s when the respective terms end. Not because we are sitting around or anything. Nichole is very busy you know.

On appeal, Diaz argued that the trial court erred by not suppressing the evidence because the misrepresentations in the search warrant affidavit constituted a violation of Franks v. Delaware, 438 U.S. 154 (1978). The court of appeals affirmed the trial court’s suppression rulings. The court held that Diaz had not shown a Franks violation because the misrepresentation of the confidential informant as an anonymous source was not material, and the crucial information was true and corroborated by the DEA agents.

II. MOTIONS TO SUPRESS A. Search Warrants - Misrepresentations in a warrant affidavit that referenced a confidential DEA informant as an “anonymous tipster” were ultimately not material so there was no violation of Franks v. Delaware. Nelson Garcia Diaz and another individual broke into a Houston police officer’s house and shot the officer in the leg. Four days later, Diaz was arrested on unrelated warrants, and police seized three cell phones that were in Diaz’s possession. Diaz was subsequently charged with burglary of a habitation. Four years after Diaz’s arrest, law enforcement obtained a search warrant for the phones. According to the affidavit for the search warrant, police got an anonymous tip that “Jessie” was involved in the home invasion, the tipster gave two phone numbers for Jessie, police asked a federal agent to run the phone numbers through Drug Enforcement Agency databases, and that check showed that one of the numbers belonged to Diaz. Diaz filed a pretrial motion to suppress the evidence obtained through the search warrant. At the suppression hearing, the trial court heard testimony that, contrary to the representations in the affidavit, the anonymous tipster was actually a confidential informant for the DEA, the confidential 1

The Court of Criminal Appeals affirmed. Diaz v. State, 632 S.W.3d 889 (Tex. Crim. App. Oct. 27, 2021) (9:0:0). Writing for a unanimous Court, Judge Keel explained that the misrepresentations were not material, and one of the disputed statements was not proven to be false, so there was no violation of Franks v. Delaware, 438 U.S. 154 (1978). A criminal defendant may challenge the truthfulness of factual statements made in a search warrant affidavit under Franks by showing that a material misstatement was made intentionally, knowingly, or with reckless disregard for the truth. A false statement is material if it is necessary to the finding of probable cause. The Court has assumed that Franks applies to material omissions, but it has not decided the issue. First, the mischaracterization of the confidential informant as an anonymous tipster was not material because the reliability of an anonymous tipster is evaluated the same way as a confidential informant. Thus, referring to the source as anonymous and failing to label him as a confidential informant did not enhance his credibility, make his information more reliable, or lower the standard for evaluating probable cause. The misrepresentation that the police had asked the DEA to run the phone numbers, when in reality the DEA agent ran the phone numbers on his own, was also not material because specifying who prompted the phone-

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

from a totality of the circumstances and consideration of the factors articulated in Bible v. State, 162 S.W.3d 234, 242 (Tex. Crim. App. 2005). After applying the Bible factors, the court of appeals concluded that the in-car statement was not a continuation of the first. Because there was no Miranda warning before the second interview, the court of appeals held that the trial court was correct to exclude it.

number check was not necessary for the probable cause finding. Finally, Diaz had neither claimed nor proven to be false the representation that police reached out to the DEA initially. Because the disputed statements in the affidavit were not material, and one was not proven false, Diaz had failed to show a Franks violation. B. Confessions - Defendant’s second statement was not properly “warned and waived” as required by Article 38.22 because that statement was surreptitiously recorded without any reference to earlier statutory warnings. El Paso police arrested Erlinda Lujan in connection with their investigation into the murder of Anthony Trejo. While in custody, Lujan gave three recorded statements. The first statement was recorded in an interrogation room at the police station. After being warned of her Miranda rights, Lujan told detectives that two men had killed Trejo. Though she denied participation in the killing, Lujan admitted to going with the men to dispose of Trejo’s body. The second statement was recorded on an iPad during the car ride the detectives and Lujan took for the purpose of locating where Trejo’s body was dumped. The detectives did not warn Lujan of her Miranda rights, nor did they inform Lujan that she was being recorded. Lujan’s third statement was made after Lujan and the detectives returned from the car ride. Like the first, the third statement was recorded at the police station. During the third recording, detectives re-introduced themselves, explained that the interview “was a continuation of our interview that we had taken before,” reminded Lujan that she was still at the police station and under arrest, and once again read Lujan her Miranda rights. Lujan filed a motion to suppress all three statements. The trial court suppressed the second and third statements. With respect to the second statement, the trial court made the following findings: (1) Lujan was misled into believing the in-car statement would not be used against her, and (2) the second, in-car statement was not a continuation of the first statement. The court of appeals upheld the trial court’s suppression of the second, in-car statement, but it reversed the suppression of the third statement. Because Lujan had not been warned before the second statement, the issue was whether the second statement was a continuation of the first. Whether one interview is a continuation of an earlier interview is determined

The Court of Criminal Appeals affirmed. State v. Lujan, --- S.W.3d ---, 2021 WL 4185974 (Tex. Crim. App. Sept. 15, 2021) (5:2:3). Writing for the Court, Judge Keel explained that the trial court’s finding that Lujan was misled into believing the in-car statement would not be used against her was dispositive of the statement’s admissibility because it meant that the incar statement was not “warned and waived” as required by Article 38.22 Section 3 of the Texas Code of Criminal Procedure. After reviewing the record, the Court concluded that the trial court’s finding was supported by a most-favorable view of the evidence. The Court noted four specific circumstances that supported the trial court’s finding: (1) the differences in formality between the in-room statements and the incar statement; (2) the detectives had insisted on taking the car ride, not Lujan; (3) at the end of the first interview, one of the detectives told Lujan, “when we come back, we can continue if you like,” which suggested a difference between the first interrogation and what would follow in the car; and (4) leaving the interrogation room suggested that the official interrogation was suspended in the car, and the goal of the car ride—to look for the body—disguised the confessional aspect of the trip. Because Lujan’s second statement was not properly warned and waived, it was not admissible, and the four Bible factors were therefore irrelevant.

Judge Newell filed a concurring opinion. Judge Newell explained that this case highlighted the problems with Bible v. State, namely that it is unclear whether Bible focuses on the voluntariness of the statement, the issue of whether the second statement was a continuation of the first, or the effectiveness of a reference to warnings in an earlier statement upon a defendant’s decision to make a later statement. If Bible’s focus was voluntariness or the continuation issue, Judge Newell believed Bible’s balancing-offactors test to be unnecessary. Alternately, if the

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

The Court of Criminal Appeals reversed. Roland v. State, 631 S.W.3d 125 (Tex. Crim. App. Sept. 29, 2021) (9:0:0). Writing for a unanimous Court, Presiding Judge Keller concluded that some county courts at law do have concurrent jurisdiction over misdemeanors involving official misconduct. Before 1985, the Texas Constitution contained a specific provision giving district courts jurisdiction over misdemeanors involving official misconduct. Following a constitutional amendment, however, the Texas Constitution no longer has a such a specific provision. Instead, it broadly provides that district courts have exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, and “other laws”, such as statutes, may confer any of these three types of jurisdiction on a court. Based on the current statutory scheme, county courts share concurrent jurisdiction over official-misconduct misdemeanors with district courts, unless a statute applicable to that county excludes official-misconduct misdemeanors from a county court’s jurisdiction. Because the statute applicable to Fort Bend County does not contain such an exclusion, the Fort Bend County Court at Law had jurisdiction over this officialmisconduct misdemeanor.

concern of Bible was whether statutory warnings given in a second statement are a “fully effective equivalent” of statutory warnings given in the first, then this case was easily distinguishable from Bible because there was no reference to the warnings at all in the second interview. Judge Yeary filed a concurring opinion. Judge Yeary read Article 38.22 to contain the plain requirement that a separate warning be given for each discrete recording that is made. Because this case involved multiple recordings, and the second recording did not contain its own separate warnings, it was within the trial court’s discretion to declare the in-car recording inadmissible. Presiding Judge Keller filed a dissenting opinion, joined by Judge McClure. Presiding Judge Keller believed the case should be resolved under Bible. Presiding Judge Keller would conclude that, under a Bible analysis, the in-car questioning was part of the same interrogation as the prior questioning at the police station. [Commentary: To understand this opinion and the side opinions you really need to read the Court’s opinion in Bible v. State, 162 S.W.3d 234, 242 (Tex. Crim. App. 2005). The holding in Bible worked in that case, but a majority of the Court was skeptical that its reasoning could apply to surreptitious recordings of defendants as occurred in this case. See for yourself and make up your own mind.]

2. Attorney General lacks authority to independently prosecute criminal cases in trial courts; Election Code § 273.021, which purported to grant the Attorney General the unilateral power to prosecute election-law violations, violates the separation of powers clause. Zena Collins Stephens was elected Jefferson County Sheriff. During an unrelated investigation, the FBI discovered potential campaign-finance violations concerning Stephens. The FBI turned this information over to the Texas Rangers, who concluded that Stephens received individual cash campaign contributions exceeding $100. The Jefferson County District Attorney declined to prosecute and instead referred the Texas Rangers to the Attorney General. Relying on Texas Election Code § 273.021, the Attorney General’s Office presented the case to a grand jury in a neighboring county, and the grand jury returned an indictment. The indictment charged Stephens with one count of tampering with a government record in violation of Texas Penal Code § 37.10 and two counts of unlawfully making or accepting a contribution in violation of Texas Election

III. TRIAL PROCEDURE A. Jurisdiction and Authority 1. County courts share jurisdiction over official-misconduct misdemeanors with district courts unless a statute applicable to that county excludes such offenses from that county court’s jurisdiction. Jerrod P. Roland pled no contest to official oppression, a Class A misdemeanor, in a county court at law in Fort Bend County. Roland argued on appeal that the county court at law lacked jurisdiction. The court of appeals agreed and held that the county court at law had no jurisdiction over the case because district courts and criminal district courts have exclusive jurisdiction over misdemeanors involving official misconduct. 3

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

enumerations of duties preceding the “other duties” phrase were limited to civil powers that were not of the same character as the power to represent the state in a criminal prosecution, which was already granted to county and district attorneys. Because the “other duties” clause said nothing about the governmental branch from which those duties may derive, the Court concluded that the Attorney General’s “other duties” must be executive branch duties. The Court further noted that Art. IV, § 22 stated that the Attorney General shall perform such other duties “as may be required by law,” and nothing in Texas Election Code § 273.021 required the Attorney General to initiate prosecution for an election code violation. Instead, the statute only used the permissive “may.” While there could be an overlap of constitutional duties between the Attorney General and county and district attorneys, any such concurrent jurisdiction was permissible only if exercised at the request of a district or county attorney and on a case-by-case basis. Absent a request for assistance by a district or county attorney, the Attorney General has no authority to independently prosecute criminal cases in trial courts. Accordingly, the grant of prosecutorial authority in Texas Election Code § 273.021 violated the separation of powers doctrine of the Texas Constitution.

Code § 253.033(a) by accepting cash contributions in excess of $100 from two different individuals. Stephens filed a motion to quash the indictment, arguing the Attorney General did not have authority to prosecute a violation of the Penal Code, and an application for a pretrial writ of habeas corpus, challenging the constitutionality of Texas Election Code § 273.021. The trial court granted the motion to quash Count I of the indictment, but it denied the motion to quash the remaining counts and the pretrial habeas corpus writ. Both Stephens and the Attorney General appealed. The Attorney General argued that the trial court erred to quash Count I because Texas Election Code § 273.021(a) authorizes the Attorney General to prosecute violations of election laws, which was not confined to laws found within the Election Code. Stephens argued that the trial court erred by denying her application for a pretrial habeas corpus writ because Texas Election Code § 273.021(a) violated the separation of powers doctrine in the Texas Constitution. The First Court of Appeals agreed with the Attorney General and held that Texas Election Code § 273.021(a) gave the Attorney General power to prosecute election law violations both inside and outside the Election Code. The Court of Criminal Appeals reversed. State v. Stephens, --- S.W.3d ---, 2021 WL 5917198 (Tex. Crim. App. Dec. 15, 2021) (8:0:1). Writing for the Court, Judge McClure explained that the Texas Legislature could not delegate to the Attorney General, a member of the executive department, the prosecution of election-law violations in district and inferior courts because that was a power more properly assigned to the judicial department. The separation-of-powers provision in the Texas Constitution prohibits one branch of government from exercising any power properly attached to either of the other branches unless that power is expressly grounded in a constitutional provision. Article IV, § 22 of the Texas Constitution enumerates the duties of the office of the Attorney General and ends with the phrase “and perform such other duties as may be required by law.” In the view of the Attorney General and the court of appeals, this phrase provided the requisite express permission for the legislature to confer prosecutorial power on the Attorney General under Texas Election Code § 273.021. The Court disagreed, noting that the specific

Judge Yeary filed a dissenting opinion. In Judge Yeary’s view, the catch-all provision—“and perform such other duties as may be required by law”— constituted express language permitting the Legislature to authorize the Attorney General’s exercise of a judicial power. Because he would find that Texas Election Code § 273.021 was therefore constitutional, Judge Yeary would also hold that the court of appeals correctly held that the Attorney General could exercise its discretion under the statute to prosecute Stephens under its theory of tampering with a governmental record. [Commentary: A motion for rehearing has been filed in this case. Perhaps you have heard of it. Or perhaps you have heard of other people’s representations of the Court’s holding. I urge you to read both the Court’s holding and the dissent to make an informed decision. Other than that, I cannot say much else.] 3. A trial court has 30 days of plenary jurisdiction to dismiss an indictment after 4

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discharging a defendant from community supervision pursuant to Article 42A.701(f) of the Code of Criminal Procedure. Lakesia Keyon Brent was convicted of Class B misdemeanor theft. The trial court assessed her punishment at six months in jail but suspended the sentence and placed her on community supervision for one year. After one year, the trial court entered an order terminating community supervision. On the form order, the trial court selected the reasons for discharge being that the period had expired and that Brent was discharged by operation of law. The form also contained an option for the trial court to order the verdict set aside, charging instrument dismissed, and the defendant discharged. More than two years after she was discharged, Brent moved the trial court to enter an order granting judicial clemency. Over the State’s objection, the trial court concluded it had jurisdiction based on policy considerations and the lack of an express time limit in the statute.

inaction suggested that the Legislature implicitly approved of the majority view. Subsection (f) of Texas Code of Criminal Procedure Article 42A.701 gives trial courts the option to grant judicial clemency when discharging a defendant from community supervision “under this article.” Read in conjunction with the other subsections, the phrase “under this article” means that discharge depends on a defendant’s time and performance under supervision. Contrary to the court of appeals’ conclusion, the Court found that discharge and clemency are not separate forms of relief because clemency could not be granted without discharging the defendant from supervision. The Court further disagreed with the court of appeals’ reliance on Cuellar. Cuellar did not say that the purpose of judicial clemency was to grant a special form of relief to defendants who have been ‘completely rehabilitated, as the court of appeals found. Rather, Cuellar recognized that judicial clemency was conditioned on a trial judge’s belief that a person on community supervision is completely rehabilitated. Even if complete rehabilitation was the purpose of judicial clemency, that purpose still would not give a trial court perpetual jurisdiction.

The court of appeals affirmed, reasoning that discharge from supervision was a precondition for judicial clemency, so discharge marked the beginning of a trial court’s authority to grant clemency. However, the court of appeals agreed that the statute said nothing about when the trial court’s authority expired. Relying on Cuellar v. State, 70 S.W.3d 818 (Tex. Crim. App. 2002), the court explained that the purpose of judicial clemency was “to grant a special form of relief to defendants who have been completely rehabilitated.” Accordingly, the court of appeals held that, based on the text and purpose of the statute, Article 42A.701 of the Texas Code of Criminal Procedure gave trial courts the discretionary power to grant judicial clemency at any time after a defendant is discharged from community supervision under the article. The Court of Criminal Appeals reversed. State v. Brent, 634 S.W.3d 911 (Tex. Crim. App. Oct. 25, 2021) (8:1:0). Writing for the Court, Judge Keel explained that, in the absence of any other source of jurisdiction, a trial court’s power to grant judicial clemency is limited to its 30-day plenary power. The Court noted that every other court of appeals to address this question had reached this conclusion. Since those decisions, the Legislature has not taken any action to correct that interpretation, although it has amended the community supervision statutes in other ways. This

Judge Yeary filed a concurring opinion. In the opinion, Judge Yeary expressed his concern that judicial clemency violated the separation-of-powers mandate of the Texas Constitution. In Judge Yeary’s view, the court of appeals’ interpretation would amplify the risk that the statute would be struck down as unconstitutional, which provided another reason to interpret the statute as the Court did.

B. Statute of Limitations - Statute of limitations in possession of a controlled substance case was not tolled by the pendency of an initial indictment when the subsequent indictment alleged a different drug and charged both possession and attempted possession by all of the possible statutory manners and means. Timothy Mark West was first charged with three counts of knowingly possessing or attempting to obtain the drug Tramadol by misrepresentation, fraud, forgery, deception, or subterfuge on three separate dates. The charged offense had a three-year statute of limitations. Three years to the day after the last alleged offense, the State refiled the indictment against West, containing the same allegations word-for-word except that the alleged

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

indictments in this case did not contain enough specific facts to make it clear that the indictments involved the same act, conduct, or transaction, and the State’s amendments to the indictment could have had an effect on West’s defensive theory. The Court concluded that, under a notice-focused Hernandez inquiry as informed by Marks, the notice provided by the Tramadolalleging prior indictment failed to give West the adequate notice necessary to preserve facts essential to defending against the Oxycodone-alleging subsequent indictment. Therefore, the prior indictment did not toll the statute of limitations, and the trial court did not err by granting West’s motion to quash.

drug was changed from Tramadol to Oxycodone. The trial court granted the State’s motion to dismiss the original indictment. The trial court then granted West’s motion to quash the second indictment because it lacked tolling paragraphs. More than three years after the alleged offenses, the State filed a third indictment containing the same allegations but also including tolling paragraphs as to each count. The trial court granted West’s motion to quash the third indictment. The State appealed, and the court of appeals reversed the trial court’s ruling granting the motion to quash. The court of appeals concluded that, although the drugs alleged were different, both indictments employed the same language mirroring the statute, and therefore the statute of limitations was tolled.

Judge Yeary filed a dissenting opinion. Judge Yeary would find that this case was like Hernandez because the indictments were identical but for the two different controlled substances they alleged. Further, Judge Yeary would apply the language of Article 12.05(b) at face-value and hold that the statute of limitations is tolled during the pendency of any indictment, information, or complaint against the defendant.

The Court of Criminal Appeals reversed. State v. West, 632 S.W.3d 908 (Tex. Crim. App. Oct. 27, 2021) (6:0:3). Writing for the Court, Judge Walker explained that the original indictment could not toll the statute of limitations for the subsequent indictment because the indictments could have alleged different conduct, acts, or transactions. In Hernandez v. State, 127 S.W.3d 768, 772 (Tex. Crim. App. 2004), the Court held that a prior indictment, which charged the defendant with possession of amphetamine, tolled the statute of limitations against a subsequent indictment, which charged the defendant with possession of methamphetamine, because both indictments alleged the same conduct—possession of a controlled substance—and the names methamphetamine and amphetamine both referred to the same controlled substance found on the defendant. However, unlike in Hernandez, the statute involved in this case could be violated in several different ways, and the indictments alleged nearly all those ways a defendant could have committed the offense. Because the allegations involved in this case allowed for separate and discrete conduct, acts, or transactions, it was not clear that the two indictments addressed the same event. Further, the original indictment failed to give West adequate notice necessary to preserve facts essential to defending against the subsequent indictment. Both Hernandez and the Court’s later opinion in Marks v. State, 560 S.W.3d 169, 171 (Tex. Crim. App. 2018) reflect a concern that a defendant receive proper notice in order to prepare a defense. As was the case in Marks, the

Judge Hervey and Judge Slaughter dissented without written opinion. C. Waiver of Jury Trial - A defendant may withdraw his waiver of a jury trial that was executed in anticipation of a negotiated plea that was never finalized. Jose Cesar Sanchez executed a waiver of his right to a jury trial in anticipation of entering a negotiated guilty plea at a hearing later that day. After executing the waiver, however, Sanchez expressed some hesitancy about pleading guilty. At the beginning of the hearing, Sanchez explained that he signed the waiver but did not know that he would lose his right to have a jury. His trial counsel assured the trial court that he had adequately explained the waiver to Sanchez in Spanish but had not translated the waiver verbatim. The State gave Sanchez until 5:00 p.m. to accept the offered plea agreement. At the end of the plea hearing, the trial court clarified that, if Sanchez declined the offer, the parties would proceed to a bench trial based on the waiver. Sanchez ultimately elected not to accept the State’s offer. On the date the case had been previously scheduled for a jury trial, the court granted the State’s motion to amend the date range alleged in the indictment, and Sanchez exercised his 6

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relevant date, the Court concluded that the trial court and court of appeals erred by considering resets that had occurred before that hearing because those resets were unrelated to Sanchez’s withdrawal request. Similarly, any delays following the plea hearing were also not relevant to determining whether the trial court abused its discretion by refusing to allow Sanchez to withdraw his waiver on the date of that hearing. Sanchez had requested to withdraw the waiver mere hours after he executed it. Had the trial court granted his request to withdraw the waiver at the hearing, the withdrawal would have caused no more disruption to court business, delay in the proceedings, or inconvenience to witnesses than there would have been had Sanchez not waived the right in the first place. Turning to the remaining Hobbs factors, the Court concluded that any inconvenience to the complaining witness and consequent prejudice to the State was caused by Sanchez’s decision not to accept the State’s plea offer, not Sanchez’s request to withdraw his jurytrial waiver. The only consequence of allowing Sanchez to withdraw the waiver would have been that the complaining witness would have testified in a jury trial rather than a bench trial. Based on the circumstances, any inconvenience to the witness and prejudice to the State caused by this difference would have been minimal.

statutory right to a ten-day period to respond to the indictment. The trial court subsequently issued an order scheduling the case for a bench trial. Five days before the bench trial setting, Sanchez filed a motion asking the court to return his case to the jury-trial docket. Before the bench trial began, Sanchez formally requested the trial court to allow him to withdraw his waiver of jury trial. The State refused to consent, and the trial court denied Sanchez’s motion. On appeal, Sanchez argued that the trial court abused its discretion by failing to permit him to withdraw his waiver of his right to a jury trial. The court of appeals concluded that Sanchez could not establish that the trial court abused its discretion because he failed to show that (1) the “absence of adverse consequences” to the State from the restoration of his jury-trial right, (2) withdrawal of his waiver would not interfere with the orderly administration of the court’s business, and (3) reinstatement of his right to a jury trial would not result in unnecessary delay or inconvenience to witnesses. The Court of Criminal Appeals reversed. Sanchez v. State, 630 S.W.3d 88 (Tex. Crim. App. Sept. 22, 2021) (7:1:1). Writing for the Court, Judge Yeary explained that the trial court had abused its discretion by refusing to allow Sanchez to withdraw his jury-trial waiver. To withdraw a valid jury-trial waiver, a defendant must show that granting his request will not: (1) interfere with the orderly administration of the business of the trial court; (2) result in unnecessary delay or inconvenience to witnesses; or (3) prejudice the State. Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009). Since the Hobbs standard only applies to valid waivers, the threshold question was whether Sanchez validly waived his right to a jury trial. The Court noted that Sanchez’s waiver was arguably invalid because it was not made in open court as required by Article 1.13(a) of the Texas Code of Criminal Procedure. However, the Court assumed, without deciding, that a jury-trial waiver was valid under the Hobbs standard if it satisfied federal constitutional criteria for validity, meaning that the record shows it was made expressly, knowingly, and intelligently. Assuming that Sanchez’s waiver was valid, the Court concluded that Sanchez had satisfied the Hobbs factors. First, the Court found that Sanchez effectively requested to withdraw his waiver on the date of the original plea hearing. Based on that

Judge Hervey concurred in the result. Presiding Judge Keller dissented without written opinion. D. Speedy Trial - A four-month delay did not violate defendant’s right to a speedy trial in a misdemeanor case and any further delay due to competency evaluations of the defendant could not be assessed against the State. Martin Rivera Lopez was arrested for the felony offense of causing bodily injury to an elderly person. After Lopez had been in custody 75 days, he was notified that he would be entitled to a personal recognizance bond or reduced bail if the State was not ready for trial within 90 days. Five days before the 90-day deadline, the State dismissed the felony charge and instead filed an information for a Class A misdemeanor assault. Lopez thereafter appeared at two hearings, though a complete record exists for neither hearing. At the first hearing, the issue of Lopez’s competency was apparently raised. 7

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against the State. Rather, the State had simply exercised its discretion and filed what it deemed to be the most appropriate charge based on the evidence it had collected. The third factor, which looks at a defendant’s assertion of the right to a speedy trial, likewise weighed in favor of the State. Although Lopez had requested a speedy trial in this case, his counsel at the same time conceded that Lopez was incompetent, which would hinder or possibly even prevent the possibility of a trial. Further, Lopez requested the case be dismissed only after the State announced ready for trial. Typically, filing for dismissal weakens a speedy-trial claim because it suggests a desire to have no trial instead of speedy one.

A visiting judge ordered that he be evaluated but did not stay the proceedings consistent with Article 46B.004(d) of the Texas Code of Criminal Procedure. At a second hearing, Lopez, who was still in custody and whose competency had apparently not yet been evaluated, asserted his right to a speedy trial and requested the charges be dismissed. After the hearing, Lopez filed a motion for speedy trial. The trial court granted Lopez’s speedy trial motion but did not rule on the request for dismissal. Both the State and Lopez’s counsel announced ready for trial but noted their concerns about Lopez’s competency. After asking Lopez if he was competent and receiving an affirmative response, the trial court announced that it was granting the speedy trial motion and dismissing the case. The court of appeals affirmed the trial court’s dismissal on speedy trial grounds based on the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay, (2) the reasons for delay, (3) the assertion of the right, and (4) the prejudice suffered by the defendant.

Judge Yeary and Judge Keel concurred in the result. [Commentary: This case is particularly confusing because it seems more like a competency case. But rather than consider the competency issue, the trial court understandably seems to have tried to sidestep competency for a clean holding regarding a speedy trial. Unfortunately, the road less taken makes all the difference.]

The Court of Criminal Appeals reversed. State v. Lopez, 631 S.W.3d 107 (Tex. Crim. App. Sept. 29, 2021) (7:2:0). Writing for the Court, Judge Richardson explained that the limited record showed that Lopez was incarcerated for 112 days, but otherwise contained no support for the trial court’s implied finding that the delay violated Lopez’s constitutional right to a speedy trial. Based on the Court’s analysis of the first three Barker factors, the Court concluded that the delay did not violate Lopez’s constitutional right to a speedy trial. With respect to the first factor, the length of the delay, the Court reasoned that Lopez’s pretrial incarceration of 112 days was not an extraordinary amount of time under Barker v. Wingo. Further, any potential future delays due to Lopez’s incompetency and the necessity of a competency evaluation would not have been the State’s fault and should not have been considered. Since this length of time was not presumptively prejudicial, it was insufficient to trigger an analysis of the remaining Barker factors. But, even if the Court had found that first Barker factor had been triggered, the Court nonetheless would have concluded that the trial court erred. With respect to the second factor, the reasons for the delay, the Court noted that the 112-day delay was not a bad-faith delay on the part of the State, which meant that it weighed less heavily

Double Jeopardy and Collateral Estoppel

1. Convictions and sentences for two counts of driving while intoxicated with a child passenger, which arose from the same driving incident but alleged a different child, violated the Double Jeopardy Clause. Jason Jermaine Cook pled guilty to two counts of driving while intoxicated with a child passenger under 15 years of age in violation of Texas Penal Code § 49.045. Both counts arose from the same driving incident, with each count alleging a different child. Cook filed a pro se application for a writ of habeas corpus alleging that conviction on both counts violated double jeopardy. The habeas court agreed and recommended the Court of Criminal Appeals vacate the second count. The Court of Criminal Appeals vacated the judgment of conviction for count two. Ex parte Cook, 630 S.W.3d 65 (Tex. Crim. App. Sept. 15, 2021) (9:0:0). Writing for a unanimous Court, Presiding Judge Keller explained that the proper unit of prosecution under the statute was each act of driving, not each child occupant. The offense at issue had both 8

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two acts of sexual abuse, perpetrated over the course of at least thirty days, against a child younger than 14 years of age, while prohibited sexual conduct required proof that the victim was Ramos’s stepchild, which would not have to be a child under 14. Therefore, the presumption was that the two offenses were not the same for multiple-punishment double-jeopardy purposes.

a nature of conduct element (driving while intoxicated) and a circumstance surrounding the conduct element (the presence of a child under age 15). A circumstance element can prescribe the gravamen of the offense if it criminalizes otherwise innocent conduct, but the circumstance element at issue here merely aggravated otherwise criminal conduct. The aggravating element did not affect the unit of prosecution. Because the focus of the offense was the act of driving while intoxicated, each incident of driving described the unit of prosecution for the offense, not the presence of each child.

However, the Blockburger presumption is rebuttable. In deciding whether the presumption has been overcome, courts consider the eight factors enumerated in Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999). The first Ervin factor—whether the offense’s provisions are contained within the same statutory section—supported the Blockburger presumption because the two offenses appeared in separate titles of the Penal Code. The second factor— whether the offenses are phrased in the alternative— was inapplicable because the statutes appeared in separate sections of the Code. Contrary to the court of appeals’ determination, the Court concluded that the third factor—whether the offenses are named similarly—did not weigh against the Blockburger presumption. The court of appeals found that the offenses were similar because both shared the word “sexual” in their names, but the Court reasoned that the fact that the offenses were contained in distinctly named chapters and titles of the Code led to the conclusion that the offenses were not similarly named, even though they shared a common word. Ervin’s fourth factor—whether the offenses have common punishment ranges—further supported the Blockburger presumption because the two offenses carried widely different punishment ranges. Ervin’s fifth and sixth factors—whether the offenses have a common focus and whether that common focus tends to indicate a single instance of conduct—also counseled that the offenses were not the same. Contrary to the court of appeals’ conclusion that both offenses were nature-ofconduct type of offenses, the Court determined that continuous sexual abuse had both nature-of-conduct and circumstance-surrounding-conduct components, but the gravamen of the offense was the commission of at least two of the listed offenses, and the gravamen of prohibited sexual conduct was the circumstance that the actor knows that the person with whom he is having intercourse was his stepchild. Ervin’s seventh factor—

2. Defendant’s convictions for continuous sexual abuse of a child and prohibited sexual conduct for acts committed against a single victim in the same time frame did not violate the Double Jeopardy Clause. Enrique Angel Ramos was charged in a two-count indictment with continuous sexual abuse of a child and prohibited sexual conduct. Count 1 alleged that Ramos sexually abused the victim from August 11, 2011 through August 11, 2016 and specified one of the acts of sexual abuse as aggravated sexual assault. Count 2 alleged that Ramos engaged in sexual intercourse with the same victim, who he knew was his stepdaughter, on or about August 11, 2016. Following a jury trial, Ramos was convicted of both offenses. The Thirteenth Court of Appeals held that Ramos’s punishment for both offenses violated the Double Jeopardy Clause and vacated Ramos’s conviction for prohibited sexual conduct. The Court of Criminal Appeals reversed. Ramos v. State, 636 S.W.3d 646 (Tex. Crim. App. Oct. 20, 2021) (7:2:0). Writing for the Court, Judge Yeary explained that the convictions did not violate double jeopardy because each offense contained distinct elements that the other did not. The Double Jeopardy Clause protects against multiple punishments for the “same” offense. The traditional starting point for determining whether two offenses are the same is the Blockburger test, which provides that two separately defined statutory offenses are presumed not to be the same if each requires proof of an elemental fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304 (1932). The Court concluded that the two offenses, as pled, each contained a distinct element that the other did not. Continuous sexual abuse of a child, as pled in the indictment, required evidence of at least

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

explained that, although both trials involved the issue of whether Rion was reckless, manslaughter and aggravated assault causing bodily injury are “result of conduct” offenses. The results—death and bodily injury—are different, and the culpable mental state of recklessness attaches to those results. By its verdict of “not guilty” in the first trial, the jury necessarily determined that Rion was not reckless and therefore was not aware of a risk of death as a result of his conduct, but the jury did not necessarily determine that Rion lacked awareness of a risk of bodily injury as a result of his conduct. Therefore, collateral estoppel did not prohibit the subsequent prosecution for reckless aggravated assault causing bodily injury.

whether the elements that differ between the offenses can be considered the “same” under an imputed theory of liability which would result in the offenses being considered the same under Blockburger—also supported the Blockburger presumption because the elements that differed between the offenses were not alike. Finally, the eighth factor—whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes—revealed no basis to conclude the two offenses were meant to be treated as the same for double jeopardy purposes. Judge Hervey and Judge Walker concurred in the result.

Judge Slaughter concurred in the result.

3. Collateral estoppel did not bar a subsequent prosecution for reckless aggravated assault causing bodily injury to a driver of a vehicle after a jury found the defendant not guilty of manslaughter and found that he was not reckless in causing the collision which led to the death of the vehicle’s passenger. Christopher Rion crashed his vehicle into another vehicle, leading to injuries to the other vehicle’s driver and the eventual death of its passenger. The State charged Rion in two separate indictments. The first charged Rion with manslaughter for the death of the passenger. The second charged Rion with aggravated assault for intentionally, knowingly, or recklessly causing bodily injury to the driver with a deadly weapon. After Rion’s motion to consolidate the two was denied, the manslaughter case proceeded first to a jury trial. The jury returned a verdict of not guilty for both manslaughter and the lesser-included offense of criminally negligent homicide. Following the acquittal, the State sought to try Rion on the aggravated assault with a deadly weapon offense. Rion filed a pretrial application for a writ of habeas corpus, which the trial court denied. The court of appeals reversed, holding that collateral estoppel applied and barred the subsequent prosecution for reckless aggravated assault because the jury in the manslaughter trial decided that Rion was not reckless in causing the collision, which would be an essential element in the aggravated assault trial.

[Commentary: This is another example of the Court’s reluctance to base relief on a collateral estoppel claim. For more on that topic, check out State v. Waters, 560 S.W.3d 655, 663 (Tex. Crim. App. 2018)(Newell, J., concurring). There the concurrence pointed out that the Seventh Amendment, which deals with suits at common law, specifically and constitutionally prohibits re-litigation of facts tried by a jury.] F. Driving While Intoxicated - The State’s failure to read a 0.15 allegation included in a charging instrument until the punishment stage of trial did not constitute an intentional abandonment of the allegation or a failure to join issue, nor was any error harmful in light of the defendant’s decision to have the trial court assess punishment. Phi Van Do hit another car while driving. After failing two standard field sobriety tests, Do consented to a breath test, which showed alcohol concentration levels of 0.194 and 0.205. Do was charged with driving while intoxicated, and the charging instrument included the allegation that an analysis of Do’s breath showed an alcohol concentration of at least 0.15. At the guilt stage of trial, the prosecutor did not read the 0.15 aggravating allegation when he read the charging instrument to the jury, and Do entered a not guilty plea. The two breath tests were admitted into evidence, and the technician who administered the breath tests and a technical supervisor both testified that the machine was working properly and produced a valid test. The jury charge did not include the 0.15 aggravating allegation, and neither party objected to its absence. The jury

The Court of Criminal Appeals reversed. Ex parte Rion, 632 S.W.3d 895 (Tex. Crim. App. Oct. 27, 2021) (8:1:0). Writing for the Court, Judge Walker 10

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affirmative action to abandon an allegation, and the simple failure to read an allegation was not an affirmative act of abandonment. Additionally, the Court’s review of relevant precedent indicated that there was no such thing as joining issue on only some of the elements of an offense in a charging instrument. And Do’s desired remedy—striking the 0.15 allegation—was not an available remedy for the State’s failure to join issue, especially considering he requested no curative measures when the error became apparent at trial. Because the 0.15 allegation was included in the charging instrument and the State had not affirmatively acted in a way to indicate it had abandoned the allegation, Do was on notice of the allegation. When the allegation was not read at the beginning of the guilt stage, Do accordingly was on notice that the State had failed to read an allegation that Do believed to be an element of the offense. Thus, Do was in a position to object to the incomplete reading of the offense. Because he failed to do so, Do forfeited any error in connection with the State’s failure to read the allegation at the guilt stage of trial. Accordingly, the Court proceeded under the premise that the type of error at issue was jury charge error. Jury charge error, even if not objected to, is subject to a harm analysis. Only structural errors are exempt from a harm analysis, and the purported error at issue was not a structural error under Neder v. United States, 527 U.S. 1, 8–15 (1999). Accordingly, some sort of harm analysis applied. However, the Court found that it was unnecessary to determine the appropriate standard of harm because the error was harmless even under the standard of harm that most favored Do, which was the constitutional standard applied by the court of appeals. Contrary to the court of appeals findings, though, the Court determined that the test results were uncontroverted because Do had not shown at trial that the lab procedures or resulting tests were flawed. Accordingly, the Court concluded that the error was harmless beyond a reasonable doubt.

returned a guilty verdict. Because Do had elected to have the court assess punishment, the jury was released from service. At the beginning of the punishment stage, the State read the 0.15 allegation. Defense counsel objected on the ground that the allegation was not presented to the jury as part of its deliberations. The trial court overruled the objection, found the allegation to be true, and sentenced Do to one year confinement, probated for twelve months. On appeal, Do complained about the trial court’s determination of the 0.15 aggravating allegation at the punishment stage of trial. According to Do, the trial court erred in treating the allegation as a punishment matter when it was in fact an element of the offense and had denied him his federal constitutional right to a jury determination of the allegation under Apprendi v. New Jersey, 530 U.S. 466, 494 (2000). The State conceded, and the court of appeals agreed, that the 0.15 allegation was an element of the offense that should have been submitted to the jury at the guilt phase of trial. The court of appeals then applied the constitutional standard for harm and concluded that the error was not harmless beyond a reasonable doubt. Accordingly, the court of appeals reformed the conviction from Class A misdemeanor DWI to Class B misdemeanor DWI and remanded the case for a new punishment hearing The Court of Criminal Appeals reversed. Do v. State, 634 S.W.3d 883 (Tex. Crim. App. Sept. 29, 2021) (6:4:3). Writing for the Court, Presiding Judge Keller explained that, assuming the parties were correct that the 0.15 aggravating allegation was an element of Class A DWI, the error was the denial of the right to a jury determination of that element. And the omission of an element of an offense from a jury charge constitutes jury charge error, not a conviction on a lesser-included offense. Niles v. State, 555 S.W.3d 562, 564 (Tex. Crim. App. 2018). Do, however, argued that there was no error in the jury charge because the State, by failing to read the 0.15 allegation at the guilt stage of trial, had failed to join issue and had abandoned the allegation, which meant that the jury was properly instructed on Class B DWI. The Court rejected this argument, concluding that the State’s failure to read the 0.15 allegation did not constitute an intentional abandonment of the allegation or a failure to join issue. Generally, the State must take

Judge Richardson filed a concurring opinion, joined by Judge Hervey and Judge Newell. Judge Richardson noted that the Court of Criminal Appeals had not yet definitively decided whether the 0.15 allegation is an element or enhancement and suggested that the Court should have resolved the issue in this case. Judge Richardson explained that resolution of the 11

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lesser-included offense of Class B DWI due to the State’s mistaken belief that the 0.15 blood alcohol concentration was a punishment issue rather than an element of Class A DWI. The harm from this error was the jury’s return of a guilty verdict for Class B DWI, which precluded the State from obtaining a Class A conviction based on the 0.15 allegation. Judge Walker opined that the State—not Do—should have been the party required to object to this error. The second error was the trial court’s judgment of conviction and one year sentence for Class A DWI, when the jury had not made the fact finding on the 0.15 allegation required by Apprendi. The harm from the second error was the conviction and sentence for a Class A misdemeanor even though the jury returned a verdict of guilty for only a Class B. With respect to this second error, Judge Walker believed that the responsibility to object fell on Do. This second error was the one at issue before the Court. And the Court’s determination that the second error was harmless was from the standpoint of the wrong party, the State. Instead, Judge Walker would assess harm from Do’s standpoint. Because Do was sentenced to the maximum for a Class A misdemeanor, which was twice the maximum for a Class B misdemeanor, Judge Walker would find that the error was harmful.

issue would provide clarity to trial judges, defense lawyers, and prosecutors, and it would resolve multiple other dilemmas. Judge Newell filed a concurring opinion, joined by Judge Hervey, Judge Richardson, and Judge McClure. Judge Newell wrote separately to note that the Court would, at some point, have to decide whether the 0.15 allegation was an element or an enhancement, and there were strong arguments in favor of it being an enhancement based on Oliva v. State, 548 S.W.3d 518, 527 (Tex. Crim. App. 2018) and State v. Barbernell, 257 S.W.3d 248, 256 (Tex. Crim. App. 2008). Judge Newell also responded to criticisms of Niles v. State, 555 S.W.3d 562, 569–73 (Tex. Crim. App. 2018) by pointing out that Niles only stood for the proposition, supported by Supreme Court precedent, that the failure to have a jury find a particular fact necessary to a particular punishment range is subject to a harm analysis, as is any other jury charge error. Moreover, the real root of the problems wrongly attributed to Niles was a different case altogether: Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). To the extent that the complaint about Niles was that it would require a defendant to object at trial to secure a particular type of harm analysis on appeal, Niles did not create the problem, Almanza did.

[Commentary: Keep an eye on this case because it will come up again. Only after the Court resolves whether these “if it is shown on the trial” allegations are elements or enhancements, this case will go away. Exit question: Is it time to revisit Almanza?]

Judge Yeary filed a dissenting opinion, joined by Judge Slaughter. Judge Yeary would decide that the 0.15 allegation is an element of Class A DWI under Oliva v. State, 548 S.W.3d 518 (Tex. Crim. App. 2018). Judge Yeary took issue with the Court requiring a defendant to object under these circumstances and treating Do’s claim as jury charge error rather than an illegal sentence. Judge Yeary would also find Niles to be distinguishable based on the failure-to-join issue, but even if the State timely joined issue, he believed the State effectively abandoned the 0.15 allegation by failing to object to its omission from the jury charge at the guilt stage of trial. Ultimately, Judge Yeary believed that the court of appeals resolved the case correctly by modifying the judgment to reflect a conviction for a Class B misdemeanor.

G. Preservation 1. To preserve a hearsay objection under Texas Rule of Evidence 803(6)(D), a defendant need not specifically object that a witness is neither a proper custodian of the business records nor another qualified witness. Raul Bahena was charged with aggravated robbery. At trial, the State sought to admit a disc containing recordings of phone calls from the jail into evidence. To authenticate the recordings, the State called a sergeant with the Harris County Sheriff’s Office to testify. The sergeant testified that he was the supervisor of the Tactical Intelligence Unit, which was responsible for gathering and disseminating phone calls from the jail. The sergeant further testified about the way the calls were accessed and how the calls

Judge Walker filed a dissenting opinion, joined by Judge Yeary. In Judge Walker’s view, the case involved two separate harms from two separate errors. The first error was the inadvertent submission of the 12

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because the sergeant was either a custodian of records or another qualified witness who could sponsor the records. Additionally, the sergeant’s testimony established the predicate for the business-records exception to the hearsay rule found in Texas Rule of Evidence 803(6). Although Bahena complained on appeal that the recordings lacked trustworthiness, he had not objected at the trial court on that ground and had, therefore, failed to preserve error. Further, Bahena had not shown that the source of the information contained in the records, or the circumstances of its preparation, indicated a lack of trustworthiness.

were stored according to an inmate’s assigned number, or System Person Number (SPN), which an inmate must enter before a call can be made. The sergeant acknowledged that he did not personally compile the jail calls at issue. Rather, a deputy under the sergeant’s supervision, who was “also a custodian of records” had stored and transferred the calls to a disc. However, the sergeant explained that the calls saved to the disc had been made using Bahena’s identification numbers, although the name and SPN of a different inmate were on the disc label. He stated that he incorrectly labeled the disc with another inmate’s name, but that he subsequently checked the actual files to ensure they were Bahena’s phone calls. Bahena objected that the sergeant was not the custodian of records for the phone calls. The trial court overruled the objection and admitted the phone calls. The jury found Bahena guilty.

[Commentary: This is a very confusing case because it purports to address preservation but then actually addresses merits. The upshot should be that if you are attempting to introduce business records, you don’t necessarily need a “custodian” if your witness is otherwise qualified. But make sure you lay a predicate that your authenticating witness is qualified and articulate it to the trial court so you avoid this issue entirely. I went back and forth on whether to treat this as an “evidence” case or a “preservation” case, but ultimately decided that the lasting impact of the case is more likely to lie in its preservation holding.]

Bahena appealed, arguing in part that the trial court abused its discretion in overruling his objection that the sergeant was not the custodian of records for the calls. The court of appeals affirmed. The court of appeals reasoned that either a custodian or another qualified witness could testify, and Bahena had not objected that the sergeant was not another qualified witness. Relying on its own precedent, Melendez v. State, 194 S.W.3d 641, 644 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d), the court of appeals held that Bahena had forfeited his argument by failing to object both that the sergeant was not a custodian of records and was not otherwise qualified. The Court of Criminal Appeals affirmed. Bahena v. State, 634 S.W.3d 923 (Tex. Crim. App. Nov. 24, 2021) (9:0:0). Writing for a unanimous Court, Judge McClure explained that a defendant is not required to specifically object to both prongs of Texas Rule of Evidence 803(6)(D) to obtain a merits review of his hearsay objection. A holding to the contrary would improperly place the burden on the objecting party to establish the inadmissibility of the challenged evidence. Instead, after an objection is made, it is the proponent of the evidence that has the burden to establish its admissibility. Accordingly, Bahena had not forfeited his point of error by solely objecting that the sergeant was not a custodian of records. Nonetheless, the Court held that the trial court did not abuse its discretion in overruling Bahena’s objection

2. To obtain appellate review of the error that occurs when an alternate juror is permitted to retire with the jury while it deliberates, a defendant is not required to move for a mistrial or file a motion for new trial. Jace Martin Laws was charged with two counts of assaulting a peace officer. When defense counsel received the proposed jury charge, he learned that the judge intended to require an alternate juror to retire with the jury while it deliberated. Defense counsel objected to the alternate juror’s presence during deliberations, and the trial judge overruled the objection. Laws was subsequently convicted. On appeal, Laws argued that the trial court erred under Article 36.22 of the Texas Code of Criminal Procedure, which states: “No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.” The court of appeals held that Laws’ objection was too general to preserve error. 13

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The Court of Criminal Appeals reversed. Laws v. State, --- S.W.3d ---, 2022 WL 302536 (Feb. 2, 2022) (9:0:0). Writing for a unanimous Court, Judge Hervey explained that Laws had adequately preserved error under Texas Rule of Appellate Procedure 33.1(a). There was no dispute that Laws objected at the earliest opportunity. Moreover, the record showed that the legal ground for Laws’ objection was apparent to the prosecutor and the trial judge. Despite this, the State argued that Laws had to seek a mistrial or file a motion for new trial supported by an affidavit to preserve his complaint because an Article 36.22 claim is a jurormisconduct claim. The Court disagreed. Unlike an allegation of juror misconduct during deliberations, no extrinsic evidence or proof of misconduct is needed to claim that the presence of an alternate juror while the jury deliberates violates Article 36.22. Accordingly, Laws adequately preserved the claim for appellate review simply by objecting and obtaining an adverse ruling.

of a restitution order must be preserved, but a complaint that the order lacked a factual basis may not need to be preserved because it could be construed as an evidentiary sufficiency complaint. However, the Court noted that Idowu offered no guidelines for distinguishing the two types of claims. Ultimately, the Court abandoned the factual basis/sufficiency-vs.propriety distinction in the context of a restitution order and held that a defendant forfeits his right to an appeal by failing to object in the trial court. Accordingly, an objection was required this case, and because none was made, Garcia forfeited his challenge to the restitution order.

3. To preserve a challenge to a restitution order, defendants must object in the trial court. Daniel Garcia was found guilty of aggravated sexual assault. The trial court sentenced him to 12 years imprisonment and ordered him to pay $1,000 in restitution to the Office of the Attorney General, which had reimbursed the Bell County District Attorney’s Office for its payment of the victim’s forensic sexual assault exam. After assessing Garcia’s punishment, the trial court asked, “Is there any legal reason why sentence should not be imposed?” Garcia’s counsel responded, “Not at this time, Your Honor.” Garcia challenged the restitution order for the first time on appeal. Without addressing preservation, the court of appeals held that the trial court abused its discretion in ordering restitution because there was no evidence that the victim paid for or was responsible for paying for any part of the sexual assault exam. Accordingly, the court of appeals modified the trial court’s judgment to delete the restitution requirement and affirmed Appellant’s conviction as modified.

A. Relevance – Extraneous offense evidence that a kidnapped victim was later murdered was relevant and admissible in defendant’s capital murder trial for the killing of a different victim, in which the aggravating element was kidnapping. Santha Inthalangsy and his girlfriend, Lindapone Phanprasa, blamed Sara Cassandra Nelson for the loss of $70,000 in drug profits. After Nelson’s attempt to compensate Inthalangsy and Phanprasa fell through, they went looking for Nelson. They eventually found Nelson and her boyfriend, Kris Maneerut, at a friend’s house. Inthalangsy and another man, Amalinh Phouthavong, entered the house, where they shot and killed Maneerut in front of Nelson. They then escorted Nelson to their car and drove off. The next morning, Nelson’s body was discovered.

The Court of Criminal Appeals reversed. Garcia v. State, --- S.W.3d ---, 2022 WL 610983 (Tex. Crim. App. March 2, 2022) (7:1:1). Writing for the Court, Judge Keel explained that an objection was required. Under Idowu v. State, 73 S.W.3d 918, 921–22 (Tex. Crim. App. 2002), a complaint regarding the propriety

Judge Newell concurred without written opinion. Judge Yeary filed a dissenting opinion. Judge Yeary would have remanded the case for the court of appeals to address the issue in the first instance. IV. EVIDENCE

Inthalangsy was charged with capital murder for shooting Maneerut in the course of kidnapping Nelson. Inthalangsy filed a pretrial motion in limine to prevent the State from introducing evidence relating to Nelson’s death. The trial court denied the motion. At trial, the State presented evidence of Nelson’s death, including a photograph of Nelson’s body where it was discovered. In addition, the State elicited testimony from an assistant medical examiner, who testified that Nelson had eight or nine gunshot wounds to the head, neck, chest, back, and left wrist and had died between 14

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twelve to twenty-four hours before her body was discovered. The jury found Inthalangsy guilty of capital murder and assessed a sentence of life imprisonment without the possibility of parole.

on the logical inferences that could be drawn from the circumstances.

On appeal, Inthalangsy complained, among other things, about the admission of evidence relating to Nelson’s death. The court of appeals held that the trial court abused its discretion by admitting the evidence of Nelson’s murder. After finding the error harmful, the court of appeals reversed the judgment of conviction and remanded for a new trial.

B. Demonstrative Exhibits - A trial court may admit a computer-generated animation as a demonstrative exhibit showing otherwise admitted testimony or evidence so long as it: (1) is authenticated, (2) is relevant, and (3) has probative value that is not substantially outweighed by the danger of unfair prejudice. Allen Bray Pugh was charged with murder after he ran over the victim with his truck outside of a bar. At trial, the State sought to illustrate the testimony of an accident reconstruction expert and testimony regarding other forensic evidence with a series of computer animations. The three computer animations each showed a moving, 3-D diagram of Pugh’s truck from three different angles colliding with a human figure, consistent with the testimony of the State’s sponsoring accident reconstruction expert. Each video can be viewed at the Court’s website at the following link: https://www.txcourts.gov/cca/media/. Following the disclosure of the exhibits, Pugh filed a motion to suppress. At the hearing, the State’s expert testified that he developed the animations based on the forensic evidence found at the scene and the medical examiner’s findings from the autopsy of the victim. The trial court overruled Pugh’s objections, and the State introduced the exhibits at the end of its case-in-chief. Prior to display of the exhibits, the trial court gave a limiting instruction to the jury. The jury ultimately found Pugh guilty of murder.

Judge Hervey did not participate.

The Court of Criminal Appeals reversed. Inthalangsy v. State, 634 S.W.3d 749 (Tex. Crim. App. Nov. 10, 2021) (8:0:0). Writing for the Court, Judge McClure explained that the trial court did not abuse its discretion in admitting the evidence. The Court found that the evidence was relevant, tended to prove an element of the charged offense, and provided necessary context for the charged offense. Contrary to Inthalangsy’s characterization of Nelson’s death as an extraneous offense, the Court found that the evidence instead constituted proof of the kidnapping element, which was the aggravating feature of the capital murder charge. But, even if Nelson’s death was extraneous to the charged offense, the evidence would still have been admissible as same-transaction contextual evidence. The evidence of Nelson’s death provided necessary context to a continuing course of conduct, and, as Judge McClure explained, one could not tell the story of Nelson’s kidnapping without revealing the end of the story. The Court further concluded that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The probative value of the evidence was rooted in its tendency to make it more probable that Inthalangsy kidnapped Nelson. Although there were slight risks that the evidence could emotionally impact the jury or confuse the jury that Inthalangsy was on trial for murdering Nelson instead of Maneerut, it was unlikely that the evidence would have had an irrational effect of the jury or caused the jury to make a decision on an improper basis. Further, the State did not spend an inordinate amount of time on Nelson’s death, and the evidence of Nelson’s death was not cumulative of other evidence presented. Finally, the State had a moderate need for the evidence because proof of the kidnapping depended

On appeal, Pugh argued that the trial court abused its discretion by admitting the three exhibits into evidence. According to Pugh, the exhibits were inherently speculative due to their depictions of human behavior, which is impossible to reproduce in every minute detail, and carried a substantial risk of unfair prejudice as a result. The court of appeals disagreed and held that the trial court did not abuse its discretion. The Court of Criminal Appeals affirmed. Pugh v. State, --- S.W.3d ---, 2022 WL 224275 (Jan. 26, 2022) (9:1:0). Writing for a unanimous Court, Judge Newell explained that a trial court need not suppress a demonstrative computer animation, which illustrates 15

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did not render the exhibits inadmissible and did not otherwise harm Pugh.

otherwise reliable expert testimony, purely because it potentially involves some depiction of human behavior. Computer animations, so long as they are based on scientifically reliable testimony and objective data, should be treated like any other demonstrative exhibit. As with any demonstrative, the exhibit must be authenticated, must be relevant, and must have probative value that is not substantially outweighed by the danger of unfair prejudice. To the extent that a demonstrative exhibit includes a depiction of human behavior, the risk that such depictions will not capture every minute detail of that behavior are addressed by weighing the danger of unfair prejudice against the probative value of the exhibit. There is no per se prohibition against the depiction of human behavior in demonstrative exhibits.

Judge Walker filed a concurring opinion. Judge Walker joined the Court’s opinion but wrote separately to emphasize the persuasiveness of computer animations. In light of that persuasiveness, defense attorneys should be prepared to obtain their own expert assistance. Consequently, trial courts should also be prepared to grant indigent defendants’ requests for funds needed to retain their own experts. If funds are not available, then Rule 403 might provide the necessary balance to help level the playing field. C. Confrontation Clause 1. Admission of expert testimony regarding a DNA-comparison analysis did not violate the Confrontation Clause where the analysis was based on computer-generated data from the expert’s lab and data from another independent lab. Wilber Ulises Molina was convicted of aggravated sexual assault years after the offense took place. After being kidnapped and sexually assaulted by multiple perpetrators, the victim had undergone a SANE exam. The evidence collected from the victim was outsourced to a private laboratory, called Reliagene, for genetic testing, where analysts were able to generate two DNA profiles, one of which was consistent with the victim. The source of the other DNA profile remained unidentified until Molina voluntarily gave a sample of his DNA thirteen years later. Molina’s sample was processed by Lloyd Halsell III, an analyst at the Houston Forensic Science Center. Halsell compared the DNA profile he generated from Molina’s sample to the DNA profile developed by Reliagene and concluded that the profile developed by Reliagene was likely Molina’s. Over Molina’s objection, the trial court allowed Halsell to testify at trial. During his testimony, Halsell explained the protocols and procedures used at his laboratory. Although he did not have personal knowledge of the protocols used by Reliagene, he testified that he was able to independently verify the profile developed by Reliagene by using Reliagene’s computer-generated data. The Reliagene report was not admitted as evidence during the trial. The jury found Molina guilty.

In this case, Pugh had never argued that the expert’s opinion or testimony was scientifically unreliable under Texas Rule of Evidence 702, so the Court was concerned only with whether the exhibits themselves were admissible. They were. The computer animations were properly authenticated, were relevant, and had probative value that was not substantially outweighed by the danger of unfair prejudice. The expert’s testimony established that the exhibits were fair and accurate representations of his expert opinion, which is all that is required to authenticate demonstrative evidence. The exhibits were relevant because they assisted the trier of fact in understanding the testimonial and documentary evidence in a concise and easy-to-understand form. And, though the exhibits depicted a stationary human figure meant to represent the victim, they did not attempt to recreate human behavior, they were not gruesome or overly inflammatory, they accurately reflected the objective evidence, and they were not based on speculation that might have misled or confused the jury. The Court also declined to require the trial court to sua sponte give a contemporaneous limiting instruction. The responsibility for requesting such an instruction instead belongs with the parties under Texas Rule of Evidence 105(a). While the trial court’s instruction in this case could have been improved by clarifying that the demonstrative exhibit was not itself probative evidence, any deficiencies in the instruction 16

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At trial, Hemphill pointed to Morris being the actual shooter. Morris was not available to testify at Hemphill’s trial because he was outside the United States. Relying on People v. Reid, 19 N. Y. 3d 382, 388, 971 N. E. 2d 353, 357 (2012), and over Hemphill’s objection, the trial court allowed the State to introduce parts of the transcript of Morris’s plea allocution to the .357 gun possession charge as evidence to rebut Hemphill’s theory that Morris committed the murder. In Reid, New York’s highest court held that a criminal defendant could “ope[n] the door” to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence was “‘reasonably necessary to correct [a] misleading impression’” made by the defense’s “‘evidence or argument.’” Based on Reid, the trial court reasoned that, although Morris’s out-of-court statements had not been subjected to cross-examination, Hemphill’s arguments and evidence had “opened the door” and admission of the statements was reasonably necessary to correct the misleading impression Hemphill had created. The jury ultimately found Hemphill guilty. Hemphill appealed, and the New York Court of Appeals, the State’s highest court, affirmed.

On appeal, Molina argued that the admission of Halsell’s testimony violated the Confrontation Clause. The court of appeals affirmed Molina’s conviction. Based on Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), the court of appeals concluded that the computer-generated DNA data was nontestimonial. The critical issue was whether Halsell performed the crucial DNA-comparison analysis, and the court of appeals found that he did. The Court of Criminal Appeals affirmed. Molina v. State, 632 S.W.3d 539 (Tex. Crim. App. Oct. 20, 2021) (9:0:0). Writing for a unanimous Court, Judge Hervey explained that the Reliagene report was nontestimonial because none of the data was inherently inculpatory or created for use against Molina. Moreover, Halsell was not merely a surrogate for the non-testifying analysts because he conducted an independent analysis of the two DNA profiles to reach his conclusion that the DNA evidence likely came from Molina. Like the court of appeals, the Court also rejected Molina’s argument that Halsell lacked personal knowledge because his testimony, like the director’s testimony in Paredes, reflected an important control in the process and showed there was likely no error in processing the evidence. 2. Admission of transcript of other suspect’s plea allocution, which the State used as evidence to rebut the defendant’s theory that the other suspect, who was not available to testify at defendant’s trial, committed the murder, violated the Confrontation Clause. During a street fight in the Bronx, a stray 9millimeter bullet struck and killed a child. One of the men involved was Ronald Gilliam, who initially identified Nicholas Morris as the shooter. Police searched Morris’s apartment and found a 9-millimeter cartridge and three .357caliber bullets, as well as a blue sweater, which eyewitnesses had described the shooter to be wearing. Later, however, Gilliam recanted and instead identified Darrell Hemphill as the shooter. New York charged Morris with the murder anyways but later dismissed the murder charge when Morris agreed to plead guilty to a new charge of possession of a .357 revolver, a weapon that had not killed the victim. Years later, forensic testing revealed that Hemphill’s DNA was present on the blue sweater found in Morris’s apartment, and Hemphill was indicted for the child’s murder.

The United States Supreme Court reversed. Hemphill v. New York, 596 U.S. --- (Jan. 20, 2022) (8:2:1). Writing for the Court, Justice Sotomayor explained that the trial court’s admission of the transcript of Morris’s plea allocution over Hemphill’s objection violated Hemphill’s Sixth Amendment right to confront the witnesses against him, and Hemphill did not forfeit his confrontation right merely by making the plea allocution arguably relevant to his defensive theory. As a threshold matter, the Court rejected the State’s argument that Hemphill had failed to adequately preserve his claim in the state courts. Turning to the merits, the Court noted that the State did not dispute that the plea allocution was testimonial, which implicated the Confrontation Clause. The Court rejected New York’s characterization of Reid as setting forth a procedural rule, which states have flexibility to adopt under the Sixth Amendment. Instead, the Court found that Reid set forth a substantive principle of evidence that dictated relevance and admissibility. The Court next rejected New York’s argument that the Reid rule was necessary to safeguard the truth-finding function of the courts on the ground that such 17

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remedy trial court’s exclusion of the State, defense counsel, and the defendant from Rule 412 hearing. Jesse Villafranco, Jr. was charged with aggravated sexual assault, attempted indecency with a child, and indecency with a child by exposure. At trial, Villafranco sought to ask the victim about a previous incident of sexual abuse by someone else to rebut medical evidence offered by the State. The trial court construed Rule 412 as requiring an in-camera hearing without the presence or participation of the defense or State. Defense counsel agreed with the trial court’s interpretation of the rule and responded, “That’s correct, Your Honor.” Defense counsel was allowed to ask the victim several questions to give the trial court guidance before the ex parte, in-camera hearing. The trial court questioned the victim outside the presence of the parties and ruled the evidence of prior sexual abuse inadmissible. The court of appeals held that the trial court should have permitted the parties to be present and the attorneys to question the victim in the Rule 412 proceeding. Assuming without deciding that the Rule 412 hearing was a critical stage of the proceeding, the court of appeals applied a harmless error test and concluded that Villafranco failed to show harm from the trial court’s error.

considerations cannot ordinarily override a criminal defendant’s constitutional rights. Defendants do not “open the door” to violations of their constitutional rights merely by making evidence relevant to contradict their defensive theories. Next, the Court found that the State’s concern that a reversal will leave prosecutors without recourse to protect against abuses of the confrontation right was overstated, since wellestablished rules of evidence already provide such recourse. Finally, the Court found that the rule of completeness did not apply to this case because Morris’s plea allocution was not part of any statement that Hemphill introduced. Justice Alito filed a concurring opinion, joined by Justice Kavanaugh. Justice Alito agreed with the Court’s conclusion but wrote separately on the issue of waiver. In Justice Alito’s view, a defendant can impliedly waive the Sixth Amendment right to confrontation by engaging in a course of conduct that is incompatible with a demand to confront adverse witnesses. The problem with the Reid rule, he reasoned, was that it applied regardless of whether a defendant had waived the right through conduct or acted inconsistently with the assertion of the right. Justice Alito also reasoned that implied waiver and the rule of completeness were compatible concepts. Based on his understanding that the Court’s opinion did not address the rule of completeness or other principles that may support implied waiver of the confrontation right, Justice Alito joined the Court’s opinion in full.

The Court of Criminal Appeals reversed, remanded the case to the court of appeals, and ordered the court of appeals to abate the case for the trial court to hold an adversarial hearing on the admissibility of the evidence of prior sexual abuse. Villafranco v. State, 2021 WL 5355194 (Tex. Crim. App. Oct. 20, 2021) (6:0:3). Writing for the Court, Judge Keel explained that the court of appeals erred by failing to follow LaPointe v. State, 225 S.W.3d 513 (Tex. Crim. App. 2007). In LaPointe, the Court held that a Rule 412 in camera proceeding is an adversarial hearing at which the defendant, defense counsel, and the State are present, and the attorneys are permitted to question the witness and present evidence. If the trial court fails to follow this procedure, and the defendant is prevented from properly litigating the admissibility of this evidence, the appellate court may lack an adequate record to evaluate the trial court’s ruling on admissibility. Accordingly, the appropriate remedy is for the court of appeals to abate the appeal and remand the case to the trial court to conduct a retrospective adversarial hearing in which the defendant has an

Justice Thomas filed a dissenting opinion. In Justice Thomas’s view, Hemphill did not raise a Sixth Amendment claim in the state courts, which meant that the Supreme Court lacked jurisdiction to review the decision of the New York Court of Appeals. Believing that the New York Court of Appeals had been silent on the federal question before the Court, Justice Thomas would have required Hemphill to prove that he afforded the state court a fair opportunity to address his Sixth Amendment claim. Justice Thomas would conclude that Hemphill had failed to meet that burden because Hemphill’s only reference to the Confrontation Clause was his citation to Crawford v. Washington, 541 U.S. 36 (2004). E. “Rape Shield” Rule — The court of appeals should have remanded the case to the trial court to 18

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informant could give testimony necessary to a fair determination of guilt or innocence. Reynaldo Lerma and several others attempted to rob Joel Espino and his roommate Andrew Alejandro. During the attempted robbery, Alejandro shot and killed Espino and wounded two of the other robbers. Lerma was charged with the capital murder of Espino. During pretrial discovery, Lerma’s defense counsel discovered that three months prior to the attempted robbery, the Hays County Narcotics Task Force used a confidential informant to conduct a controlled buy from Espino, who was a drug dealer, as was Alejandro. Defense counsel also learned that Espino had not been charged in connection with the controlled buy and that the drugs from the controlled buy had been destroyed. This information led defense counsel to suspect that Espino could have also been an informant, which could have given Alejandro a motive to intentionally kill Espino. Defense counsel requested additional information concerning the controlled buy, including the identity of the confidential informant. In response, the State asserted that the informant’s identity was privileged under Rule 508 of the Texas Rules of Evidence. The trial court ordered the State to allow defense counsel to review the informant’s file for potentially exculpatory information. The State filed a petition for mandamus, claiming that the trial court was required to first conduct an in-camera hearing under Rule 508. The court of appeals denied relief, but the parties and trial court ultimately agreed to a Rule 508 in-camera hearing. At the in-camera hearing, the task force officers testified that they had failed to document the informant’s identity. They also admitted that it was possible the informant could have potentially exculpatory information. At the end of the hearing, the trial court found that the task force officers were not credible and that there was a reasonable probability that the confidential informant could give information necessary to a fair determination of guilt or innocence.

opportunity to show that the victim’s prior sexual history is admissible. Thus, the court of appeals should not have conducted a harm analysis based on a deficient record in this case. The Court further concluded that Villafranco had adequately preserved the error for appellate review. Because Villafranco had not objected to the trial court’s failure to follow the correct procedures, the Court had to determine whether the complaint was subject to forfeiture. The Court concluded that a Rule 412 adversarial hearing was a critical stage of trial, reasoning that the exclusion of a defendant and his counsel from the Rule 412 hearing may have permanently foreclosed the defendant’s ability to rebut medical evidence and defend on grounds that someone else caused the victim’s injury. And the right to counsel at such a critical stage of trial cannot be forfeited by inaction alone but must be affirmatively waived. Accordingly, Villafranco did not forfeit his right to counsel by failing to object. Nor did Villafranco affirmatively waive his right to counsel by agreeing with the trial court that the hearing was to be held ex parte. Presiding Judge Keller filed a dissenting opinion, joined by Judge Slaughter. Presiding Judge Keller explained that, assuming the Court was correct that Rule 412 hearing is a critical stage of trial and the right to counsel at a critical stage is a waivable-only right, the Court left unresolved whether Villafranco was actually denied counsel at a critical stage. Presiding Judge Keller would conclude that Villafranco had not been denied counsel because the denial of counsel at a critical stage must be a complete denial, and any denial of counsel was not complete in this case because Villafranco’s counsel had some participation in the Rule 412 inquiry. Given this, Presiding Judge Keller would apply the traditional rule that error must be preserved. Because Villafranco did not preserve error, Presiding Judge Keller would reject his claim.

Lerma filed a motion to dismiss pursuant to Rule 508. After the motion was filed, the State disclosed an email, which pre-dated the in-camera hearing, showing that the task force commander, who testified at the incamera hearing that he did not know the identity of the informant, did in fact know the identity of the informant but would not disclose it. Based on the email, the trial court’s earlier finding that the officers

Judge Yeary dissented without written opinion. F. Confidential Informants – Dismissal of capital murder charge on the defendant’s motion was proper under Rule 508 because the State refused to disclose the identity of a confidential informant, and there was a reasonable probability that the 19

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because the State already had an obligation to disclose exculpatory information pursuant to Article 39.14(h) of the Texas Code of Criminal Procedure and Brady v. Maryland, 373 U.S. 83 (1963).

lacked credibility, and the State’s exhaustion of all possible legal remedies, the trial court granted Lerma’s motion to dismiss. The court of appeals reversed, concluding that the trial court abused its discretion because it relied upon speculation that the informant had exculpatory information instead of evidence in the record.

Judge Keel concurred in the result. [Commentary: Note that this case really turns on credibility determinations that are adverse to the State. Moreover, this doesn’t mean that the case is over, it just means that the State must reveal the identity of the confidential informant to proceed.]

The Court of Criminal Appeals reversed. State v. Lerma, --- S.W.3d ---, 2021 WL 5513553 (Tex. Crim. App. Nov. 24, 2021) (5:1:3). Writing for the Court, Judge Walker explained that the trial court had not abused its discretion in granting the motion to dismiss. Because the State did not disclose the informant’s identity, the trial court was required to grant Lerma’s motion to dismiss if it found that there was a reasonable probability that the informant could give testimony necessary to a fair determination of guilt or innocence. See Texas Rule of Evidence 508. A defendant is only required to show that testimony may be necessary to a fair determination of guilt or innocence, which can be accomplished by making a plausible showing, based on evidence and not speculation, of how the informant’s information may be important. Bodin v. State, 807 S.W.2d 313, 317–18 (Tex. Crim. App. 1991). The trial court’s finding that Lerma had met his burden under Bodin was not unreasonable, arbitrary, or without reference to guiding principles. Further, the trial court’s ruling was based on evidence, not speculation. Thus, the trial court did not abuse its discretion in dismissing the case under Rule 508. Presiding Judge Keller filed a dissenting opinion, joined by Judge Yeary and Judge McClure. Presiding Judge Keller pointed to four reasons that the trial court erred in granting the motion to dismiss. First, the Rule 508 exception would not apply if Espino was a confidential informant, as Lerma theorized, because Espino was dead and could not testify. Second, the confidential informant at issue was an informant for a narcotics investigation, not the capital murder investigation, and in Presiding Judge Keller’s view, the Rule 508 exception only applied if the confidential informant could give necessary testimony about the case in which he served as an informant. Third, Presiding Judge Keller believed Lerma’s theory to be too speculative. Finally, Presiding Judge Keller believed that resorting to Rule 508 was unnecessary

V. OFFENSES A. Continuous Sexual Abuse of a Child – Evidence that established a definite end date of the abuse but not a definite start date was nonetheless sufficient to support the “30 or more days” element of the offense because a jury could reasonably infer from the testimony when the abuse began. Cornell Witcher was indicted for continuous sexual abuse of a child. At trial, the evidence showed that the last instance of abuse occurred on July 26, 2018. The victim testified that the abuse began when her brother went to jail, and the victim, the victim’s sister, and an investigator with the Sheriff’s Department agreed that the brother went to jail on or about June 10, 2018. Witcher was found guilty, and he appealed his conviction. The court of appeals reversed, concluding that the evidence was insufficient because the date the abuse began was uncertain and speculative. The Court of Criminal Appeals reversed. Witcher v. State, 638 S.W.3d 707 (Jan. 26, 2022) (5:0:4). Writing for the Court, Presiding Judge Keller explained that the jury could have drawn reasonable inferences from the evidence to conclude that the abuse spanned over a period of 30 or more days. Because the definite end date of the abuse was July 26, 2018, there must have been some evidence from which a rational jury could have inferred that the abuse began on or before June 26, 2018 in order for the evidence to be sufficient to show a period of abuse of 30 days or more. The Court concluded that there was. First, the victim’s testimony was that Appellant started abusing her when her brother “went to” jail, not when he “was in” jail. From this testimony, a rational jury could have concluded that the date the victim’s brother went to jail was the date the abuse began. Second, testimony from 20

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by the codeine alone. When asked whether the promethazine added “something to this mixture medicinally,” the chemist responded, “It appears to, but I can’t say for sure.” The jury found Biggers guilty of possession of a controlled substance.

the victim’s sister and the investigator showed that the brother went to jail on June 10th, “give or take” or “around that time.” This testimony was sufficient for a rational jury to infer that the brother was incarcerated on June 10th or at worst a few days afterwards. Viewed in context, both qualifiers—“give or take” and “around that time”—could not have meant more than a few days, and they certainly did not mean 16 or more days. Consequently, the jury could have rationally inferred, without resorting to speculation, that the abuse began on June 26, 2018 or earlier, which provided sufficient evidence of the “30 or more days” element.

On appeal, Biggers argued that the State failed to prove an element of the offense because it had not proven the level of concentration of codeine in the substances. The court of appeals agreed, holding that the statute requires more than the mere presence of promethazine. According to the court of appeals, the evidence was insufficient to establish that (1) the concentration level of the codeine was not more than 200 milligrams of codeine per 100 milliliters, and (2) the presence of promethazine was in a sufficient proportion to convey on the mixture valuable medicinal qualities other than those possessed by the codeine alone. The court of appeals further concluded that the evidence was insufficient to support a lesser-included offense because the nature of the evidence, as opposed to the amount of evidence, was insufficient. Accordingly, the court of appeals rendered a judgment of acquittal. The State filed a petition for discretionary review questioning whether acquittal was the proper remedy.

Judge Keel filed a dissenting opinion, joined by Judges Richardson, Walker, and McClure. Judge Keel emphasized that the testimony about the beginning of the abuse was equivocal—the abuse began “at some point,” “around,” “about,” “maybe,” “as close as possible,” or “give or take” June 10, 2018. Given these equivocations, Judge Keel believed that the jury had to guess about the meaning of the testimony, which means they had to speculate, and speculation could not not support a finding beyond a reasonable doubt. B. Possession of Penalty Group 4 Controlled Substance — Defendant could not be convicted of possession of either Penalty Group 1 or Penalty Group 4 codeine where the evidence failed to prove the proportion of the codeine mixture, as required under Penalty Group 4, but also did not establish that the substance possessed was codeine not listed in Penalty Group 3 or 4, as required under Penalty Group 1. During a narcotics investigation, police detained Darren Lamont Biggers and found in his car a Sprite bottle and Styrofoam cup filled with a purple substance referred to as “lean,” which is a common term for codeine cough syrup mixed into a beverage. The State charged Biggers with possession of a Penalty Group 4 controlled substance in an amount over 400 grams. At trial, the drug chemist testified that both the Sprite bottle and cup contained “an unspecified amount of codeine and promethazine.” The chemist had not been asked to quantify the amounts of codeine or promethazine, so she could not testify to the concentration of codeine in either sample. The chemist testified that promethazine was a non-narcotic active medicinal ingredient, but she never testified whether the combination of promethazine and codeine had valuable medicinal qualities other than those possessed

The Court of Criminal Appeals affirmed. Biggers v. State, 630 S.W.3d 74 (Tex. Crim. App. Sept. 22, 2021) (5:0:4). Writing for the majority, Judge McClure explained that the evidence was insufficient to prove that Biggers possessed Penalty 4 Group codeine. Contrary to the State’s argument, the State’s failure to prove the “valuable medicinal quality” component did not mean that the State had proven the substance was codeine “not listed in Penalty Group 3 and 4,” which would make it Penalty Group 1 codeine. The Court noted that there was no question that promethazine was present in the mixture at issue in this case. But, while the chemist did testify that promethazine was a nonnarcotic active medicinal ingredient, she failed to testify whether the codeine was combined with the promethazine in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone. Without this evidence, a rational juror could not infer that the promethazine was or was not in recognized therapeutic amounts or in sufficient proportion to

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assault, to wit: a piece of wood.” At trial, the victim testified that Brooks hit her repeatedly with a two-byfour. The victim’s written statement to police was also admitted into evidence. The relevant portion of the statement read as follows:

confer on the compound valuable medicinal qualities other than those possessed by the codeine alone. To support a conviction for Penalty Group 1 codeine, the statutory scheme required the State to negate the possibility that the mixture was a Penalty Group 3 or 4 substance. Because the Court lacked proof that the substance was not a Penalty Group 4 substance, the Court could not say it was then a Penalty Group 1 substance. Accordingly, reformation of the judgment to reflect a conviction for a Penalty Group 1 offense would not be a proper remedy, and the proper remedy was a judgment of acquittal.

He grabbed my neck, started choking me so hard I couldn’t breathe, and then he grabbed a board and started hitting me so hard I told Jessie he was hurting me. So he told me I need to hit -- I believe -- so he kept hitting me with the board. Then after started hitting my fingers until they started bleeding.

Presiding Judge Keller filed a dissenting opinion. Presiding Judge Keller would affirm the conviction for possession of Penalty Group 4 codeine based on Sanchez v. State, 275 S.W.3d 901 (Tex. Crim. App. 2009). Presiding Judge Keller agreed with the majority, however, that the State could not obtain a conviction for Penalty Group 1 codeine because it had not proven the substance lacked the mitigating characteristics of Penalty Group 4 codeine.

The jury found Brooks guilty. On appeal, Brooks challenged the sufficiency of the evidence to prove the “threat” element of the offense, arguing that the State had to prove some verbal threat because the indictment had alleged a verbal threat. The court of appeals agreed that the “telling her that he was going to end her life” language in the indictment required a verbal threat of some sort and further concluded that there was no evidence of a verbal threat. In the court of appeals’ view, no rational juror could discern a threat in the statement “I need to hit.” Accordingly, the court of appeals found a material variance between the allegations in the indictment and the proof at trial, and it reversed the judgment of conviction and rendered a judgment of acquittal. The State filed a petition for discretionary review, initially arguing that a nonverbal threat from the deadly weapon alleged in the indictment sufficiently conformed to the indictment’s allegations. On its own motion, the Court of Criminal Appeals granted review of and ordered the parties to brief the issue of whether “I need to hit,” constituted a verbal threat.

Judge Slaughter filed a dissenting opinion, joined by Presiding Judge Keller, Judge Keel, and Judge Yeary. In Judge Slaughter’s view, the majority’s conclusion that the evidence was in fact insufficient was contrary to Sanchez v. State, 275 S.W.3d 901 (Tex. Crim. App. 2009). Based on the chemist’s testimony in this case, Judge Slaughter would hold that the evidence was sufficient to support the conviction for possession of Penalty Group 4 codeine. Accordingly, Judge Slaughter believed it was unnecessary for the Court to determine which remedy should apply. [Commentary: I apologize for the overly long topic heading. But this is a very weird area of the law that really needs a legislative fix to resolve the confusion.] C. Aggravated Assault - Defendant’s statement, “I need to hit” constituted a verbal threat and provided sufficient evidence of the threat element of the charged aggravated assault. Jessie Lee Brooks, Jr. was indicted for family-violence aggravated assault. The indictment alleged that he “did then and there intentionally or knowingly threaten [the victim] . . . with imminent bodily injury by telling her that he was going to end her life, and the defendant did use or exhibit a deadly weapon during the commission of the

The Court of Criminal Appeals reversed. Brooks v. State, 634 S.W.3d 745 (Tex. Crim. App. Nov. 10, 2021) (9:0:0). Writing for a unanimous Court, Presiding Judge Keller explained that a rational trier of fact could have found that the statement “I need to hit” constituted a verbal threat. A rational jury could have interpreted the statement as Brooks expressing his need to hit the victim. And even if a rational jury could have also interpreted the statement as Brooks telling the 22

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EMT report, which was admitted into evidence, also referred to Edward as the victim’s boyfriend. On voir dire outside the jury’s presence and on crossexamination before the jury, however, the EMT admitted that her partner had written the report and that the victim had not told her directly that Edward was her boyfriend. After the State rested, Edward moved for a directed verdict on the ground that there was insufficient evidence of a dating relationship between him and the victim. The trial court denied the motion, and the jury found Edward guilty.

victim to hit back, as Brooks argued, it was not required to do so. If such an ambiguity existed, viewing the evidence in the light most favorable to the prosecution meant that any ambiguities in the evidence should be resolved in favor of the prosecution. Further, the statement was not made after the assault had ended, as alleged by Brooks. Rather, the statement was made during the assault—Brooks hit the victim, told her “I need to hit,” and then proceeded to hit her some more. Accordingly, a rational jury could have concluded the statement was a threat to continue assaulting the victim.

On appeal, Edward again argued that there was insufficient evidence of a dating relationship between him and the victim. The court of appeals agreed and reversed the conviction, finding the evidence insufficient to meet the statutory requirements under Texas Family Code § 71.0021(b) for establishing a dating relationship. However, the court of appeals held that the evidence was sufficient to support all other elements of assault, so it remanded the case for the trial court to reform the judgment to a conviction for misdemeanor assault and to hold a new punishment hearing.

D. Family Violence - Testimony that a victim referred to the defendant as her boyfriend was sufficient to prove the existence of a dating relationship under Texas Family Code § 71.0021(b) despite the absence of the statement on the body camera footage. Duke Edward assaulted the victim inside her apartment. After the victim called 911, police responded to the apartment and contacted the victim, who was in a state of hysteria and had blood on her face and clothing. The victim told police that Edward had hit her and was still inside the apartment’s bedroom. Police located Edward in the bedroom and arrested him. After being treated by EMS, the victim was interviewed by police and completed and signed a family-violence form. Edward was subsequently charged with felony assault for causing bodily injury to a person with whom he was in a dating relationship. At trial, the State’s evidence consisted of the 911 call, testimony from two first responders, portions of an officer’s body-camera video, and the EMS report. The State had been unable to locate the victim, so she did not testify at trial. The officer who initially made contact with the victim testified that the victim referred to Edward as her boyfriend and identified him as the person who hit her. However, portions of the officer’s body-camera video that were played for the jury did not reflect that the victim called Edward her boyfriend. Instead, the body-camera video excerpts only showed that the victim identified Edward by name. The officer later clarified that the body-camera footage did not capture his entire interaction with the victim, and the body-camera footage ended just before the officer reentered the apartment to interview the victim. An EMT who treated the victim after the assault also testified that the victim “stated her boyfriend beat her up.” The

The Court of Criminal Appeals reversed. Edward v. State, 635 S.W.3d 649 (Tex. Crim. App. Dec. 8, 2021) (8:0:1). Writing for the Court, Judge Slaughter explained that the officer’s testimony that the victim referred to Edward has her boyfriend, coupled with other circumstantial evidence, provided sufficient evidence of a dating relationship between Edward and the victim. At the outset, the jury could have rationally credited the officer’s testimony because, although the body-camera video contradicted his testimony that she referred to Edward as her boyfriend during his initial contact with her, the officer never wavered from his assertion that the victim did, at some point during their interactions, tell him that Edward was her boyfriend. And the excerpt of the body-camera footage played for the jury ended just before the officer re-entered the apartment to interview the victim, so it was possible that the victim referred to Edward as her boyfriend during an omitted portion of the footage. The jury was responsible for resolving any conflicts in the evidence and credibility determinations, and the court of appeals erred by disregarding the officer’s testimony entirely. Moreover, the officer’s testimony supported the existence of a dating relationship because the use of the

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officers, the Cossack vest, and the fact that Martin had previously been entered into the Texas database for gang members as a Cossack by two different agencies. Martin testified in his own defense that he had been a member of the Cossacks for four years but did not believe the Cossacks were a criminal street gang. He also testified that he had never been convicted of a felony or a misdemeanor, other than traffic violations. Martin had been arrested, along with many other Cossacks and members of another motorcycle club, at the Twin Peak’s shooting in Waco and charged with criminal organization, but all charges were later dismissed. According to Martin’s testimony, there were six Cossacks in Lubbock, they were mechanics and city employees, not criminals, and they did not plot or commit crimes together. The jury found Martin guilty and set his punishment at a fine of $400.00 with no term of confinement.

word “boyfriend” implied a continuing relationship of a romantic or intimate nature. Circumstantial evidence also supported the dating relationship element, including the facts that Edward and the victim were alone together inside the apartment and clearly knew each other before the incident, Edward was found sitting on the victim’s bed, and the victim completed and signed a family-violence form. The Court also rejected Edward’s argument that the record had to contain affirmative evidence of each of the three considerations enumerated in Texas Family Code § 71.0021(b). Based on the totality of the record, the jury could have rationally inferred that Edward and the victim had “a continuing relationship of a romantic or intimate nature” based on the officer’s testimony and other circumstantial evidence. Accordingly, there was sufficient evidence that Edward and the victim were in a dating relationship, as that term is defined by Texas Family Code § 71.0021(b).

On appeal, Martin argued that the evidence was insufficient to show that he was a member of a criminal street gang. Relying on Ex parte Flores, 483 S.W.3d 632, 645 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d), which defined a “member” of a gang as one of three or more persons who continuously or regularly associate in crime, Martin argued that the State had failed to prove that he was a criminal. The court of appeals agreed and held that an individual must be one of three or more persons with a common identifying sign, symbol, or identifiable leadership and must also continuously or regularly associate in the commission of criminal activities in order to qualify as a gang member. Because the record lacked any evidence showing that Martin himself regularly or continuously engaged in criminal activity pursuant to his membership in a gang, the evidence was insufficient.

Judge Walker dissented without written opinion. E. Unlawful Carrying of a Weapon - To obtain a conviction for the unlawful carrying of a weapon by a member of a criminal street gang, the State must prove that the defendant engaged in criminal activity as part of the criminal street gang. While riding his motorcycle, Terry Martin was stopped by police for traffic violations. During the traffic stop, police noticed that Martin was wearing a motorcycle vest that read “Cossacks MC, Lubbock County, MidCities, Texas” and had Sergeant’s stripes. In response to questions asked by the officers, Martin disclosed that he had a pistol inside his vest and agreed that he was a Cossack. Believing that the Cossacks were a criminal street gang, the officers arrested Martin. The State charged Martin with unlawfully carrying a weapon (UCW) as a member of a criminal street gang, which is a Class A misdemeanor. At trial, a sheriff’s deputy who was part of the Texas Anti-Gang Center testified about the Cossack Motorcycle Club, which is a nationwide motorcycle gang. The deputy testified that members of the Cossacks continuously and regularly engaged in crime, but he also acknowledged that he knew of no criminal charges filed against any Cossacks in the area. He also told jurors about the ways that a determination of gang membership could be made, opining that Martin was a member of the Cossack Motorcycle Club based on his nonjudicial admission to

The Court of Criminal Appeals affirmed. Martin v. State, 635 S.W.3d 672 (Tex. Crim. App. Dec. 15, 2021) (6:3:0). Writing for the Court, Judge McClure explained the Court’s decision to adopt the holding of Ex parte Flores. The UCW statute expressly incorporates the definition of a “criminal street gang” found in Texas Penal Code § 71.01. Section 71.01(d) defines a criminal street gang as “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.” Neither statute, however, defines “member.” In Ex

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the police report were not sufficient to support a conviction for tampering with a government record. Kevin Ratliff was the Llano chief of police. On the night of May 2, 2017, he responded to the Riverway RV park based on a call from one of his officers, Officer Harden. Earlier in the night, Officer Grant Harden, who lived at the park, left his home in his personal vehicle to respond to an unrelated call. On his way out, Harden had a negative interaction with Cory Nutt, who lived three spaces down from him. Although there is some dispute as to what exactly was said, Nutt yelled out to Harden that he was driving too fast. When Harden confronted Nutt, Nutt refused to identify himself. After Harden left to respond to the original call, Nutt went inside his trailer. About twenty-three minutes later, Harden returned to the RV park and called into dispatch that he had observed a public intoxication offense. Ratliff responded to the call, along with two other officers. The officers knocked on Nutt’s door and told him to come outside, but Nutt refused to come out. The officers told Nutt that he was resisting arrest, and one of the officers threatened to tase Nutt if he did not exit the trailer. Eventually, Ratliff entered Nutt’s trailer and removed Nutt from the trailer. Nutt was then arrested for public intoxication. Harden prepared an offense report detailing the incident, and Ratliff signed off on the report as Harden’s supervisor. The charge against Nutt was ultimately dropped. Afterwards, Nutt filed a report complaining about his arrest, and a Texas Ranger interviewed Ratliff to investigate. When asked what basis he had to enter Nutt’s trailer, Ratliff responded that he did not want to see Nutt get tased.

parte Flores, the Fourteenth Court of Appeals determined that the term “member,” read together with the definition of “criminal street gang,” meant that a person had to be one of the one of the three or more persons who continuously or regularly associate in the commission of criminal activities. The Court concluded that Ex parte Flores’s interpretation was not contrary to the statute’s plain language. And, unlike the interpretation proffered by the SPA that a showing of membership was enough, the Ex parte Flores interpretation avoided both absurd results and possible constitutional implications by requiring direct participation in the organization’s criminal activity. Without that requirement of direct participation, according to the Court, the statute would criminalize mere membership in an organization, which could run afoul of the First Amendment. Therefore, to be a gang member, an individual must be one of three or more persons with a common identifying sign, symbol, or identifiable leadership and must also continuously or regularly associate in the commission of criminal activities. Applying this definition to the facts of this case, the Court further concluded that the evidence was insufficient to prove that Martin associated in the commission of criminal activities by the Cossacks. While the evidence showed that Martin was a member of the Cossack Motorcycle Club, the record lacked any evidence showing that Martin associated in the commission of criminal activities by the Cossacks or was aware of any criminal activity by the Cossacks. Accordingly, the Court rendered a judgment of acquittal. Judge Yeary filed a concurring opinion. Judge Yeary agreed that the Ex parte Flores interpretation was preferable. While he thought that the constitutionality of a particular construction was an important consideration, he gave no opinion on whether the SPA’s proposed construction would create a constitutional problem.

The State subsequently charged Ratliff with two counts of official oppression and one count of tampering with a government record. At trial, the chief investigator for the district attorney’s office testified that there were no exigent circumstances present in this case to justify the warrantless arrest. He also testified that that there were significant omissions in Harden’s offense report and discrepancies between what was in the report and what was captured on the recording from another officer’s body camera. And a retired police officer testified that offense reports should generally be very comprehensive, but the one prepared by Harden and approved by Ratliff was not. The retired officer said that the omissions and misrepresentations were so

Presiding Judge Keller and Judge Keel concurred in the result. F. Official Oppression and Tampering with a Government Record – Chief of police who entered a man’s home and arrested him without a warrant without exigent circumstances engaged in official opporession, but mere absences of information in 25

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warrantless entry or arrest, sufficient evidence existed to support Ratliff’s convictions for official oppression.

great that they qualified as tampering with a governmental record. The jury found Appellant guilty of both counts of official oppression as well as the misdemeanor offense of tampering with a governmental record. On appeal, Ratliff challenged the sufficiency of the evidence supporting his conviction for tampering with a governmental record and two convictions for official oppression. The court of appeals affirmed all three convictions.

Presiding Judge Keller filled a concurring and dissenting opinion, joined by Judge Yeary and Judge Slaughter. Presiding Judge Keller agreed with the Court’s conclusion that the evidence was not sufficient to show tampering with a governmental record. However, Presiding Judge Keller disagreed that sufficient evidence supported the official oppression convictions. In her view, at the time Ratliff entered Nutt’s trailer, the law was unsettled as to whether officers could pursue fleeing misdemeanants into their homes, which meant that Ratliff could not have known that his entry was unlawful. See Lange v. California, 141 S.Ct. 2011 (2021).

The Court of Criminal Appeals affirmed in part, reversed in part, and rendered a judgment of acquittal as to the conviction for tampering with a government record. Ratliff v. State, --- S.W.3d ---, 2022 WL 791673 (Mar. 16, 2022) (5:1:3). Writing for the Court, Judge McClure explained that sufficient evidence supported the official oppression convictions, but the evidence was legally insufficient to support the conviction for tampering with a government record. The Court first addressed the conviction for tampering with a government record. The State’s theory at trial was that Ratliff committed the offense by initialing the report, and thereby indicating his approval of the report, knowing the report was false in light of the omissions. However, the Court found that no testimony established that anything in Harden’s report was false. While some details of the arrest were missing, this fact did not establish that Ratliff knew the report was false. Moreover, no statute prescribed what information had to be included in an offense report, the tampering statute did not make an omission an offense within the meaning of Texas Penal Code § 6.01(c), and the tampering statute did not prescribe a duty to act. Accordingly, the evidence was insufficient to support the conviction for tampering with a government record. However, the Court found that there was sufficient evidence to support the official oppression convictions because no exigent circumstances existed to justify the warrantless arrest inside Nutt’s trailer. Ratliff did not enter the home to provide Nutt aid, nor did he have any reason to believe that Nutt was armed and dangerous or was destroying evidence inside. The Court also concluded that the hot pursuit exception to the warrant requirement did not apply. The evidence indicated that Harden had not been in continuous or immediate pursuit of Nutt, Nutt was already inside the trailer when police arrived, and, at most, the arrest was for a Class C misdemeanor. Because no exigency justified the

G. Corpus delicti rule does not bar conviction for a sexual offense committed against a pre-verbal child that shows no physical signs of harm so long as the confession to the crime is trustworthy. Bradley Jacobs Shumway voluntarily and separately confessed to his bishop and his wife that he pushed aside a preverbal, seventeen-month-old infant’s diaper and touched her genital region with his hands, mouth, and penis. The bishop informed the child’s parents, who in turn contacted law enforcement. At the urging of law enforcement, the child’s parents took her to a child advocacy center, where she was examined by Jamie Ferrell, a forensic medical examiner. At just seventeen months old, the child was considered to be “preverbal,” and she was never able to relay information about the incident to either Ferrell or her mother. The State charged Shumway with aggravated sexual assault of a child and indecency with a child. At trial, Shumway’s bishop and wife testified to Shumway’s double confessions, and Shumway’s wife testified to facts that corroborated details from Shumway’s confession. Ferrell testified that her medical examination revealed no injury to the child, which was unsurprising given the nature of the conduct and the amount of time that had elapsed between the offense and the exam. The jury found Shumway not guilty of aggravated sexual assault but found him guilty on the lesser-included offense of indecency with a child by contact, as well as the separate count of indecency with a child. On appeal, Shumway challenged his convictions by arguing that the State’s evidence was 26

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Because no party to this case requested that the Court abolish the rule, Judge Slaughter joined the Court’s opinion.

not sufficient to satisfy the corpus delicti rule. The court of appeals affirmed and held that there was some evidence outside of the extrajudicial confession which, considered alone or in connection with the confession, showed that the crime actually occurred.

Judge Yeary concurred for reasons stated in one of his prior side opinions.

The Court of Criminal Appeals affirmed. Shumway v. State, --- S.W.3d ---, 2022 WL 301737 (Feb. 2, 2022) (8:1:0). Writing for the majority, Judge Newell explained that a narrow exception to the traditional application of the corpus delicti rule was warranted in cases in which evidence introduced at trial shows the defendant voluntarily confessed to a sexual offense committed against a child who is incapable of outcry and that did not result in any perceptible harm. A strict, traditional application of the corpus delicti rule did not allow a confession alone to be used to establish the corpus delicti, which meant that the corpus delicti rule had not been strictly satisfied in this case. But under the narrow exception adopted by the Court, the corpus delicti rule would not bar a conviction so long as the confession itself was sufficiently corroborated. The “incapable of outcry” exception applies in cases in which the evidence introduced at trial shows that the defendant voluntarily confessed to a sexual offense against an infant who was incapable of outcry and that the confessed conduct did not result in any perceptible harm. In such a case, if the record reflects sufficient corroborating facts and circumstances of the confession itself, then reviewing courts should uphold the conviction so long as there is legally sufficient evidence under the standard set out in Jackson v. Virginia. In this case, the State introduced sufficient evidence to meet both preliminary requirements. The infant child was not able to communicate that a crime occurred against her and the specific criminal conduct to which Shumway confessed was a sexual offense that would not have resulted in any perceptible harm. The State also corroborated key facts of Shumway’s confessions through the testimony of other witnesses. Those facts and circumstances provided sufficient corroboration of Shumway’s confessions. Judge Slaughter filed a concurring opinion. Judge Slaughter agreed with the Court’s adoption of the “incapable of outcry” exception. She wrote separately on her view that the Court should, in the appropriate case, abolish the judicially-created corpus delicti rule.

VI. JURY INSTRUCTIONS A. Defensive Instructions 1. Defendant who equivocated in his testimony about whether he committed the charged conduct satisfied the confession-and-avoidance doctrine. Marvin Rodriguez was tailgating with his brothers, Candido and Javier, in the parking lot of Cowboys Stadium. After the football game, a fight broke out between Candido and two other men, Miguel and Francisco. The fight culminated in Rodriguez shooting and killing Richard Sells. The State charged Rodriguez with murder. At trial, the State’s evidence showed that Sells was trying to break up the fight when Rodriguez shot him. The defense’s evidence showed that Candido was attacked by Miguel and Francisco and that several people were involved in the violent fight. Rodriguez testified that he retrieved the gun from his brother’s vehicle after his attempts to help Candido were unsuccessful. He denied the intent to kill anyone but instead got his gun to scare away the attackers. According to Rodriguez, Sells was kneeling on Candido’s back and punching him. Rodriguez testified that he grabbed Sells in a headlock and put the gun to his neck, at which point he felt Sells jerk away and felt someone pulling at his arm. The gun fired, mortally wounding Sells. Rodriguez testified that he never intended to fire the gun. On cross examination he agreed that “the only way it would have gone off” was if his “finger was on the trigger.” On redirect examination, he explained that when he felt people pulling his arm and grabbing at him, his “instinctual reaction would be to pull back” and that he instinctually “gripped” the gun “tightly.” At the close of evidence, Rodriguez requested jury instructions on the defenses of necessity, self-defense, and defense of a third person. The trial court denied the requests, and the jury convicted Rodriguez of murder. The court of appeals affirmed on the ground that Rodriguez failed to satisfy the confession-and-avoidance doctrine.

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

drive her vehicle home. On the way, Maciel’s brother stopped the vehicle in the middle of the road and began vomiting. Maciel tried to move the car from the middle of the road to a parking lot, but she was unsuccessful in moving the car. Officers arrived on scene and observed Maciel sitting in the driver’s seat with the engine running and attempting to shift gears. After failing standard field sobriety tests, Maciel was arrested and charged with driving while intoxicated. At trial, Maciel testified that she had been intoxicated and admitted that she got into the driver’s seat while the car’s engine was running to try and safely move the car to a parking lot, but she was unable to move the vehicle because the parking brake was on. She testified that “I couldn’t get the car to move, so I wasn’t driving. I don’t think I was operating it.” At the close of evidence, Maciel requested a jury charge on necessity because she was trying to move the vehicle from the roadway. The trial court denied her request. Maciel appealed, arguing that the trial court erred in refusing her requested jury instruction on necessity. The court of appeals held that there was no error. According to the court of appeals, because Maciel testified that she did not operate the vehicle, she had not sufficiently admitted the underlying offense of driving while intoxicated.

The Court of Criminal Appeals reversed. Rodriguez v. State, 629 S.W.3d 229 (Tex. Crim. App. Sept. 15, 2021) (7:2:0). Writing for the Court, Judge Keel concluded that Rodriguez did satisfy the requirements of the confession-and-avoidance doctrine because his testimony equivocated about his commission of the charged conduct. The confessionand-avoidance doctrine requires defendants who assert a justification defense to admit—or, at a minimum, not deny—the charged conduct. However, the evidence need not unequivocally show that the defendant engaged in the conduct. In multiple cases, the Court has held that equivocating defendants were nonetheless entitled to defensive instructions. Refusing the requested defensive instructions in such cases would violate a court’s duty to look at the evidence in the light most favorable to the requested instruction, while granting the instructions properly defers to the jury’s authority to resolve conflicts in the evidence. In deciding whether a defensive issue has been raised, courts should consider all the facts surrounding the charged conduct. In this case, Rodriguez equivocated on both the existence of a culpable mental state and the voluntariness of the act, which created a conflict in the evidence. With respect to the voluntariness, Rodriguez testified that someone else tried to jerk the gun away when it went off, but he also conceded that his finger must have been on the trigger and testified that he instinctually gripped the gun tightly when people started grabbing for the gun. A rational jury could find that by gripping the gun tightly with his finger on the trigger, Rodriguez fired the gun voluntarily. With respect to his mental state, Rodriguez’s admission that he pointed a deadly weapon at the victim supported a finding that he had an intent to kill. Because this equivocation created a conflict in the evidence and competing inferences, the instructions should have been given.

The Court of Criminal Appeals reversed. Maciel v. State, 631 S.W.3d 720 (Tex. Crim. App. Oct. 6, 2021) (9:1:0). Writing for a unanimous Court, Judge McClure explained that Maciel was entitled to a jury instruction on necessity. Based on the totality of the evidence, Maciel had satisfied the confession-andavoidance requirement, even if she was incorrect about whether she had legally “operated” the vehicle. Maciel was charged with driving while intoxicated, which a person commits if she operates a motor vehicle in a public place while intoxicated. Although Maciel had testified that she did not think she was operating the vehicle, Texas jurisprudence regarding the confessionand-avoidance doctrine does not require an explicit admission from the defendant that she committed the crime. In her testimony, Maciel essentially admitted to every element of the offense, and based on her testimony, a jury could reasonably infer that Maciel operated a motor vehicle while intoxicated because she reasonably believed that doing so was immediately necessary to avoid imminent danger. Further, given

Judge Yeary and Judge Walker concurred without written opinion. 2. Defendant was entitled to jury instruction on necessity based on her testimony that, while she was intoxicated, she attempted to move the vehicle off the road, notwithstanding her denial that she was operating the vehicle. Bethany Grace Maciel was too intoxicated to drive after a night of drinking with her brother and his wife, so her brother attempted to

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murder. On appeal, Pham argued the trial court should have instructed the jury on Section 9.04. The court of appeals affirmed, reasoning that Section 9.04 applied only when “deadly force” was not used and did not apply in Pham’s case because he used deadly force rather than merely threatening deadly force.

that the term “operate” is not statutorily defined, the Court found it would be unreasonable to focus solely on Maciel’s statement that she did not think she was operating the vehicle. Maciel’s admission that she was trying to move the vehicle, even if she was not actually successful, satisfied the confession-and-avoidance requirement, regardless of Maciel’s personal definition of whether or not she legally “operated” the vehicle. Accordingly, the Court remanded to the court of appeals for a harm analysis.

The Court of Criminal Appeals affirmed. Pham v. State, --- S.W.3d ---, 2022 WL 391524 (Tex. Crim. App. Feb. 9, 2022) (6:4:0). Writing for the Court, Presiding Judge Keller explained that Pham was not entitled to an instruction under Texas Penal Code § 9.04. Section 9.04 provides: “For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.” In Gamino v. State, 537 S.W.3d 507 (Tex. Crim. App. 2017), the Court explained that this statute does not provide a separate defense but allows a defendant who meets its terms to satisfy the self-defense requirements under Section 9.31, relating to non-deadly force used in self-defense, rather than having to satisfy the onerous self-defense requirements under Section 9.32, relating to deadly force used in self-defense. Section 9.04 also has an express limitation: it applies only when “the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary.” Even if Pham at one point had the limited intent to cause apprehension, he went past that when he intentionally shot Mai, which constituted an actual use of deadly force rather than the creation of a mere apprehension of the use of deadly force. Accordingly, he was not entitled to an instruction on Section 9.04.

Judge Newell filed a concurring opinion. Judge Newell joined the Court’s opinion but wrote separately to explain his belief that the Court should recognize that an evaluation of harm is as much a systemic requirement as the preservation of error. Judge Newell noted that, while he recognized the value of affording a court of appeals the opportunity to address undecided legal issues first, he disagreed that the Court benefitted from having the court of appeals conduct a harm analysis because conducting a harm analysis is based upon an examination of the record under established harm standards. Accordingly, Judge Newell would recognize the Court’s ability to resolve the issue of harm when the opportunity presents itself rather than reflexively remanding to the court of appeals for that analysis. 3. Defendant who claimed he shot victim in self-defense was not entitled to a threat-of-deadlyforce instruction under Texas Penal Code § 9.04. Happy Tran Pham was meeting some family members for dinner when he encountered Pierre Mai, with whom he had a negative history. The video from the restaurant’s security camera showed Pham look in the direction of his family’s table, but then pull a gun from his waistband and walk to Mai’s table, which was offcamera, with the gun at his side. Pham ultimately shot and killed Mai, then fled the scene. Pham was not arrested until ten years later.

Judge Yeary filed a concurring opinion. Judge Yeary agreed that Pham could not rely on a statutory provision that justifies the production of a weapon in a threat of force when the evidence shows without contradiction that he, in fact, used deadly force to cause serious bodily injury or death. Judge Yeary also addressed—and rejected—Pham’s argument that the trial court, by failing to submit his requested Section 9.04 instruction to the jury, prevented him from rebutting the State’s argument at trial that Pham provoked the incident.

At his trial for the murder of Mai, Pham’s defensive theory was that he shot Mai in self-defense because he perceived that Mai was reaching for his waistband toward his own weapon. The trial court instructed the jury on the law of self-defense but refused Pham’s request to include an instruction on the law of threats as justifiable force pursuant to Texas Penal Code § 9.04. The jury found Pham guilty of 29

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Judge Slaughter filed a concurring opinion, joined by Judge Richardson and Judge Walker. Judge Slaughter agreed that Pham’s conviction should be upheld based on harmless error, but she would hold that the trial court should have instructed the jury on Section 9.04 to clarify the issue of provocation. In Judge Slaughter’s view, an instruction under Section 9.04 was needed to inform the jury that Pham’s conduct in pulling out his weapon did not necessarily make him the first aggressor and may be justifiable as self-defense if he reasonably believed that such display was immediately necessary to protect himself. B.

condition that would cause him to pass out, or being suicidal. He acknowledged speeding in the tunnel but maintained that it was his falling asleep that caused his failure to maintain a single lane of traffic and failure to keep a proper lookout, which ultimately caused the crash. After the close of evidence, Simms requested lesser-included-offense instructions on regular assault and deadly conduct. The trial court denied both requests. The jury found Simms guilty of aggravated assault. On appeal, Simms challenged the trial court’s denial of his request for the lesser-included-offense instruction on deadly conduct. The court of appeals rejected Simms’s arguments, reasoning that Simms conceded he was reckless in speeding into the tunnel and the act of recklessness alone supported both deadly conduct and aggravated assault. Because Simms conceded that he had a reckless state of mind and that his conduct resulted in serious bodily injury to Pineda, the court concluded that there was no evidence that would permit a rational jury to find him guilty only of deadly conduct and not guilty of aggravated assault

Lesser-included Instructions

1. Defendant was entitled to a jury instruction on the lesser-included offense of deadly conduct in an aggravated-assault-with-a-vehicle case based on his testimony that he “must have” dozed off or passed out prior to accident. Christopher Simms was involved in a fatal head-on collision in a narrow, two-lane tunnel. The tunnel’s speed limit was 35 miles per hour, but Simms was driving through the tunnel at between 58 and 62 miles per hour. The tunnel’s surveillance video showed that Simms was initially driving in the correct lane but drifted into oncoming traffic, causing a head-on collision with the vehicle driven by Eduardo Gonzales Pineda. As a result of the collision, Pineda was seriously injured and ultimately died about a week later. The State charged Simms with aggravated assault. The indictment alleged that Simms recklessly caused Pineda serious bodily injury by “failing to control speed, failing to maintain a single lane of traffic, and failing to keep a proper lookout.” The evidence at trial included analysis of the crash data from Simms’s vehicle, which indicated that Simms “floored” the accelerator and that his brakes never activated before the impact, despite the surveillance video appearing to show the bright red glow of his brake lights at the moment of impact. The surveillance video also showed Simms swerve at the last second as if to try to return to his lane. Simms testified at trial that he had no memory of the accident, but he believed that he “dozed off” or “passed out” while driving through the tunnel. He denied being under the influence of drugs or alcohol prior to the accident, and there was no evidence showing otherwise. He denied feeling tired while driving, having a known medical 30

The Court of Criminal Appeals reversed. Simms v. State, 629 S.W.3d 218 (Tex. Crim. App. Sept. 15, 2021) (5:0:4). Writing for the Court, Judge Slaughter explained that Simms’s testimony constituted some evidence that would have allowed the jury to rationally conclude that the cause of the accident and the injury to the victim was Simms’s involuntary loss of consciousness, rather than his reckless speeding. The Court began by comparing the elements of the charged aggravated assault to the elements of the lesser offense of deadly conduct. The key difference between the two offenses was the culpable mental state. Deadly conduct required the jury to conclude that Simms engaged in some reckless conduct, while aggravated assault required the jury to conclude that Simms was reckless with respect to the result of his actions in actually causing Pineda’s serious bodily injury. If the jury believed Simms’s testimony that he was speeding through the tunnel and then passed out or dozed off, then the jury could have rationally concluded that Simms’s conduct in speeding was reckless (e.g., that he was aware of but consciously disregarded a substantial and unjustifiable risk regarding the dangerous circumstances), but that he was not reckless with respect to actually causing Pineda’s serious bodily

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

torso with his penis. Based on this testimony, Hernandez requested the jury be instructed on the lesser offenses of indecency with a child by contact. The trial court denied the requests. The court of appeals reversed, finding that Hernandez’s testimony presented a valid, rational alternative to the charged offense.

injury because the conduct leading to that result was committed involuntarily and unconsciously. The important question was what caused Simms to veer into oncoming traffic. It could have been a loss of control based on his speeding, but a jury could also have rationally concluded that his veering into oncoming traffic was caused not by speeding but by his involuntary loss of consciousness. Under this view of the evidence, it would be rational to find Simms guilty of deadly conduct for his reckless speeding, but not guilty of aggravated assault because he would lack the required culpable mental state of recklessness regarding the result of the collision, Pineda’s serious bodily injury. The facts of this case also implicated questions of voluntariness and causation, which were fact questions properly left to the jury. Accordingly, the court of appeals erred by presuming that Simms’s speeding alone necessarily caused Pineda’s serious bodily injury, when the evidence raised the possibility of an intervening circumstance—Simms involuntarily falling asleep or dozing off.

The Court of Criminal Appeals reversed. Hernandez v. State, 629 S.W.3d 218 (Tex. Crim. App. Sept. 29, 2021) (9:0:0). Writing for a unanimous Court, Judge Keel explained that indecency with a child by contact was not a lesser-included offense of aggravated sexual assault. Rather, Hernandez had admitted to committing separate crimes for which he could have been prosecuted in addition to the greater, charged offense of aggravated assault. A defendant is not entitled to an instruction on a lesser offense that is extraneous to—rather than included in—the offense charged. The allowable-unit-of-prosecution analysis, which is used to distinguish separate offenses from included ones for purposes of double jeopardy and jury-unanimity requirements, worked in this context to distinguish extraneous offenses from lesser-included offenses. The allowable unit of prosecution for aggravated sexual assault is penetration, while the allowable unit of prosecution for indecency with a child is sexual contact. Separate acts of contact and penetration constituted separate offenses, and different body parts meant different crimes. In this case, the evidence showed that three different body parts were penetrated or touched. The allegation that Hernandez penetrated a child’s mouth with his penis did not include claims that he touched the child’s torso with his penis or touched her vagina with his hand. Proof of sexual contact with another body part was not required to prove the penis-to-mouth sexual assault with which Hernandez was charged. Accordingly, indecency with a child was not a lesser-included offense. Rather, Hernandez admitted to different, additional crimes perpetrated against different body parts by different acts, and he could have been prosecuted for all of them.

Judge Yeary filed a dissenting opinion, joined by Presiding Judge Keller, Judge Keel, and Judge McClure. The indictment alleged that Simms’s failure to control his speed is what caused serious bodily injury to Pineda, not the collision. When conduct not only puts someone in imminent danger of serious bodily injury, but also actually causes them serious bodily injury, that person is not guilty only of deadly conduct. They are instead guilty of recklessly causing serious bodily injury, which is one of the ways a person commits the offense of aggravated assault. Because the evidence did not exclude Simms’s responsibility for the reckless act of failing to control his speed, the evidence offered no rational basis upon which the jury might have rejected his criminal responsibility for Pineda’s serious bodily injury. 2. A defendant charged with aggravated sexual assault was not entitled to a jury instruction on indecency with a child by contact because it was not a lesser-included offense of the charged crime. Roberto Hernandez was charged with aggravated sexual assault. At trial, the victim, who was Hernandez’s daughter, testified that Hernandez had made her perform oral sex on him. Hernandez testified in his own defense and admitted that he touched the victim’s vagina with his hand and touched her naked

3. Defendant who was charged with capital murder committed in the course of a robbery was not entitled to a jury instruction on the lesserincluded offense of robbery because no evidence negated conspiracy liability. Anthony Rashad George was Rachel Burden’s pimp and Jessica

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

support of his position that the jury could have found him guilty of only robbery because Sample’s death was not anticipated, George pointed to two co-conspirator statements: (1) Ontiveros’s testimony that George was “just standing there” during the altercation between Range and Sample; and (2) Burden’s trial testimony that “[t]he intention was just to go up there and get money. It was never for anybody to get hurt.” The court of appeals affirmed, concluding that there was no evidence that would permit the jury to rationally find that George was guilty only of robbery because there was no evidence that Sample’s death was not or should not have been anticipated. The court of appeals further stated that “when one decides to steal property from another, he should anticipate he or his co-conspirator might be confronted by that individual and that his coconspirator might react violently to that confrontation.”

Ontiveros’s boyfriend. Both women worked as prostitutes, and one of their clients was Brian Sample. On November 27, 2016, Burden and Ontiveros thrice met with Sample, who had recently received a large insurance settlement, in his hotel room. After the second meeting, Sample gave Burden his room key so that she and Ontiveros could return later. George picked the women up from the hotel, and they informed him that Sample had paid them in hundred-dollar bills retrieved from the safe in the hotel room’s closet, which they believed contained about $8,000. Based on this information, George formulated a plan to rob Sample. Later, the women returned to the hotel room for the third time. Meanwhile, George changed into all-black clothes and returned to the hotel with another man named Rodney Range. The two men drove separately and parked away from the hotel. As George and Range entered the hotel, they encountered Burden, who had left the room to make a phone call, and they instructed her to leave the hotel. George and Range entered Sample’s room, where Sample and Ontiveros were alone together, and proceeded to beat and rob Sample. Although they were unable to open the safe, they stole Sample’s watch and phone. George, Range, and Ontiveros eventually exited the hotel room, leaving Sample unconscious and face down on the bed, in a pool of blood, and with his hands zip-tied behind his back. Sample’s body was discovered a few hours later by hotel housekeeping. Through the investigation of Sample’s murder, law enforcement tracked down and arrested George, Burden, and Ontiveros in Las Vegas. They, along with Range, were indicted for capital murder committed in the course of robbery. George’s case proceeded to jury trial, at which both Burden and Ontiveros testified. At the close of evidence, George requested a jury instruction on the lesser-included offense of robbery. The trial court denied the request. The jury was instructed on capital murder and the lesser-included offenses of murder and manslaughter. The jury charge also instructed the jury that it could find George guilty of capital murder as the principal actor, as a party to the offense, or under a conspiracy theory of liability. The jury returned a general guilty verdict for capital murder.

The Court of Criminal Appeals affirmed. George v. State, 634 S.W.3d 929 (Tex. Crim. App. Nov. 24, 2021) (9:0:0). Writing for a unanimous Court, Judge Slaughter explained that the court of appeals was incorrect to suggest that a categorical rule was appropriate in this context. The Court rejected the court of appeals’ bright-line rule, clarifying that the very nature of the inquiry—whether a jury could rationally find the defendant guilty of only robbery— necessitated a case-specific analysis. However, the Court agreed with the court of appeals’ ultimate conclusion that there was no evidence that would permit the jury to rationally find that George was guilty only of robbery. The Court first explained that the only logical possibility for the jury to find George guilty of only robbery would have been based on the conspirator liability theory. Accordingly, for George to have been entitled to an instruction on robbery, there must have been some evidence directly germane to robbery that refuted or negated at least one of the three elements of conspirator liability. Because it was undisputed that Sample was murdered and that the murder was committed in furtherance of a conspiracy to commit robbery, the only possibility was that there was some evidence refuting that George should have anticipated Sample’s murder. Neither Burden’s statement nor Ontiveros’s statement rationally refuted the evidence establishing that George should have, and likely did, anticipate Sample’s murder. Viewed in context, Burden’s testimony provided no evidence as to whether

On appeal, George argued, among other things, that the trial court erred by denying his request for a lesser-included-offense instruction on robbery. In 32

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The Court of Criminal Appeals reversed. Lozano v. State, 636 S.W.3d 25 (Tex. Crim. App. Oct. 6, 2021) (9:0:0). Writing for a unanimous Court, Judge Hervey explained that the applicable standard of harm was egregious harm because Lozano had not objected to the charge. Although the “general duty to retreat” instructions were erroneous, they did not affect the basis of Lozano’s case, deprive him of a valuable right, or vitally affect his defensive theory. Instead, because there was no evidence that Lozano subjectively believed deadly force was immediately necessary to protect himself against another’s use or attempted use of deadly force, he was not entitled to an instruction on self-defense in the first place. Accordingly, although the jury was wrongly charged on self-defense, Lozano was benefitted by the error because it afforded him an additional possible basis for acquittal and increased the State’s burden of proof, requiring it disprove selfdefense beyond a reasonable doubt even though it was not raised by the evidence. Therefore, Lozano was not egregiously harmed by the erroneous “duty to retreat” instructions.

George should have anticipated Sample’s murder because it only related to Burden’s own participation in planning the robbery. And Ontiveros’s testimony describing George’s non-participation in the beating was not directly germane to the critical question: whether George should have anticipated Sample’s murder. The Court ultimately concluded that the totality of the circumstances demonstrated that George should have anticipated Sample’s murder, and no evidence rationally supported the opposite conclusion. Accordingly, the trial court was correct in refusing to include in the jury charge the requested lesserincluded-offense instruction. C. Egregious Harm – Defendant was not egregiously harmed by erroneous self-defense instructions when he was not entitled to a use-ofdeadly-force-in-self-defense instruction in the first place. Carlos Lozano went to a pool hall with his girlfriend, Fernanda Avila. While there, Lozano became intoxicated and eventually got angry with Avila. As the pool hall was closing, Avila went outside to the parking lot. She saw Lozano in his truck, but she did not want to talk to him and instead left in her own car. At around the same time, Jorge Hinojos was also leaving the pool hall with his girlfriend Diana Ruiz and their friend Carolina Rocha, when Rocha was almost hit by the truck driven by Lozano while walking to her car. Lozano rolled the truck’s window down to stare at Rocha and Ruiz. Hinojos became upset that Lozano was staring at his girlfriend and threw a full can of beer through the open passenger-side window of the truck. Lozano retrieved a gun from a backpack in the backseat of the truck and pointed it at the passenger side. Meanwhile, Hinojos ran to the driver’s side window and punched Lozano. Lozano turned and shot Hinojos three times, killing him. The State charged Lozano with murder. At trial, Lozano’s defense was that he shot Hinojos in self-defense. The jury charge instructed the jury on self-defense and the use of deadly force, and it included two instructions involving the general duty to retreat. The jury ultimately found Lozano guilty. On appeal, Lozano argued that he was egregiously harmed by the inclusion of the “duty to retreat” instructions because a defendant no longer has a general duty to retreat in Texas. The court of appeals agreed and reversed the judgment of conviction.

D. Punishment-phase jury charge that failed to properly track the language of the habitual-offender statute amounted to jury-charge error subject to a harm analysis, not an illegal sentence. Orlando Bell was charged with third-degree-felony failure to timely report a change of address in violation of his sexoffender-registration obligations under Code of Criminal Procedure Chapter 62. At trial, the State sought to enhance his punishment under the habitualoffender statute. The State filed a “Notice of Intent to Use Prior Convictions for Enhancement of Punishment” that identified two prior felony convictions: (1) delivery of a controlled substance, for which Bell was adjudicated guilty on September 9, 1994 and filed no notice of appeal; and (2) engaging in organized criminal activity, which was committed on August 21, 1997. A jury found Bell guilty of the failure-to-register offense. At punishment, the jury charge mistakenly instructed the jury to find the enhancement allegations true if it found that Bell’s second prior felony conviction became final after the commission of the first felony offense. The jury charge should have instead instructed the jury to find the enhancement allegations true if it found that the first conviction became final prior to the commission of the 33

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in the jury instructions constituted jury-charge error and was subject to a harm analysis. However, she wrote separately to express her agreement with the court of appeals that Niles was distinguishable and did not control the resolution of this case. The error in Niles implicated federal constitutional protections under Apprendi, but the present case did not. Judge Slaughter noted that the distinction affected the applicable harm standard: whereas constitutional errors under Apprendi may invoke the harmless-beyond-areasonable-doubt standard, the non-constitutional error at issue in this case would only fall under Almanza’s less demanding some-harm or egregious-harm standards.

second felony, which was what the prosecutor argued in closing. Bell did not object to the jury charge. The jury found the enhancements true and assessed a sentence of fifty years’ imprisonment. On appeal, Bell argued that the evidence was insufficient to support his conviction. The court of appeals rejected this argument, but it sua sponte held that Bell’s sentence was illegal and void because the punishment-phase jury instructions did not properly authorize the enhancements, and the fifty-year sentence exceeded the maximum punishment for a third-degree felony. The State filed a motion for rehearing, arguing based on Niles v. State, 555 S.W.3d 562 (Tex. Crim. App. 2018) that the error was a jury-charge error subject to a harm analysis. The court of appeals held that Niles was distinguishable and that the State had waived its right to seek the enhanced punishment by failing to request and obtain a finding essential to the enhancement. Finally, the court of appeals reasoned that, even assuming the error was subject to a harm analysis, the error could never be considered harmless.

VII. SENTENCING A. Death Penalty 1. Mandatory sentence of life without the possibility of parole after the State waived the death penalty was not unconstitutional as applied to an intellectually-disabled defendant convicted of capital murder. Johnny Joe Avalos was charged with capital murder for the serial killing of five women. After the State waived the death penalty, Avalos filed pretrial motions arguing that the Eighth Amendment prohibits the automatic imposition of a life sentence without parole for a defendant who, like Avalos, is intellectually disabled. The trial court denied the motions, and Avalos pleaded guilty to two capital murders. The trial court accepted the plea and sentenced Avalos to two life sentences without the possibility of parole, as required by Texas Penal Code § 12.31(a)(2) when the State waives the death penalty. On appeal, Avalos again argued that the automatic imposition of life sentences without parole amounted to cruel and unusual punishment under the Eighth Amendment to the United States Constitution because he was denied an individualized assessment prior to the imposition of punishment. The Fourth Court of Appeals, sitting en banc, agreed and reversed and remanded for resentencing.

The Court of Criminal Appeals reversed. Bell v. State, 635 S.W.3d 641 (Tex. Crim. App. Dec. 8, 2021) (7:2:0). In a per curiam opinion, the Court explained that the error in the jury instructions was not properly analyzed as an illegal sentence and was instead jury-charge error subject to a harm analysis. The Court agreed that Niles was distinguishable in some respects, but it nevertheless applied Niles’s holding to find that the error in this case did not amount to an illegal sentence. The error involved in Niles was the complete omission of an element of the offense, which the Court found to be more egregious than the erroneously-worded instruction included in the jury charge in this case. The Court reasoned that, if a complete omission of an element did not result in an illegal sentence, then an erroneous instruction that was actually included in the charge also did not result in an illegal sentence. Because the error constituted a failure to correctly set forth the law applicable to the case, it was jury-charge error subject to a harm analysis under Almanza. The court of appeals had not yet conducted a harm analysis, so the Court remanded the case to the court of appeals for a harm analysis.

The Court of Criminal Appeals reversed. Avalos v. State, 635 S.W.3d 660 (Tex. Crim. App. Dec. 15, 2021) (5:3:1). Writing for the Court, Judge Yeary explained that the issue presented was whether to extend the United States Supreme Court’s holding in Miller v. Alabama, 567 U.S. 460 (2012) to cover

Judge Slaughter filed a concurring opinion, joined by Judge Yeary. Judge Slaughter agreed that the defect 34

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out of those aspects of his condition that may have contributed to his commission of his offense in the same way that a juvenile offender will eventually become an adult. Accordingly, the Court concluded that Harmelin—not Miller—controlled and held that Avalos’s mandatory sentences of life without parole did not violate the Eighth Amendment.

intellectually-disabled adults. In Miller, the U.S. Supreme Court held that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violated the Eighth Amendment's prohibition on cruel and unusual punishments. In so holding, the Miller Court drew from two lines of precedent: one strand of cases delineating the constitutionally permissible sentencing procedures for capital cases, including the individualized-sentencingdetermination requirement, and a second strand of cases holding that the Eighth Amendment categorically barred certain punishments for certain offenders who are less morally culpable, such as juveniles and intellectually-disabled adults. Considering the particular characteristics of juveniles that lessen their moral culpability and the severity of the penalty of life without the possibility of parole, the Miller Court extended the individualized-sentencing requirement beyond the context of the death penalty for the first time. Cf. Harmelin v. Michigan, 501 U.S. 957 (1991) (holding that the Eighth Amendment does not require an individualized sentencing determination—as a prerequisite to assessing a sentence of life without parole—for an adult offender, and that the mandatory imposition of such a sentence is constitutionally acceptable.).

Judge Hervey, Judge Richardson, and Judge Newell concurred in the result. Judge Walker dissented without written opinion. 2. Evidence that a capital defendant would pose a continuing threat to society, whether in or out of prison, was sufficient to support jury’s affirmative finding on the future-dangerousness special issue. Gabriel Paul Hall murdered sixty-eightyear-old Edwin Shaar, Jr. and attempted to murder Shaar’s wife, Linda. Mrs. Shaar survived the attack and gave police a physical description of her assailant. Police eventually identified Hall, who was eighteen years old, as matching the description. Hall’s parents, who had adopted Hall from the Philippines when he was young, brought Hall to the police station so he could give a voluntary statement. During the interview, Hall confessed to the murder and attack of the Shaars, who were strangers to him. Hall expressed that he attacked the Shaars because he wanted to kill and that he felt no remorse for what he had done. Hall also told police where he had hidden physical evidence, which police successfully recovered and ultimately connected Hall to the crimes. Hall was charged with capital murder for the killing of Mr. Shaar in the course of committing or attempting to commit burglary. Following a trial, the jury found Hall guilty of capital murder. At the punishment phase of trial, the State introduced evidence relating to the brutality of the offense; items found in Hall’s bedroom, including weapons and a handwritten list of names the State alleged to be a “hit list”; and instances of Hall’s bad behavior in the county jail while he awaited trial, such as possessing weapons and threatening to kill other inmates and guards. Four witnesses who were incarcerated in the Brazos County Detention Center with Hall testified to statements made by Hall while he was awaiting trial. The State also presented video footage from February 2015 showing Hall interacting with Comedy Central comedian Jeff Ross, who was at

Applying the same analysis as the U.S. Supreme Court applied in Miller, the Court of Criminal Appeals declined to extend Miller’s ban on the automatic imposition of life without parole on juvenile offenders to cover adult offenders who are intellectually disabled. While the Court noted that juveniles and intellectuallydisabled adults shared many of the same mitigating characteristics noted in cases like Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 551 (2005), such as diminished impulse control and greater susceptibility to peer pressure, the critical distinction was that these characteristics were transient by nature in juveniles, while being fixed attributes of intellectually-disabled adults. And it was the transient nature of these characteristics that informed Miller’s conclusion that a sentencer must “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at 480. In contrast, the Court was not aware of any evidence that an intellectually-disabled adult offender would grow 35

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phase special issues because Hall, in an informal setting where Hall was likely to be unguarded, made comments arguably evidencing a lack of remorse and disregard for human life. Further, even though many of Ross’s statements on the video were concerning, the trial court’s ruling that the video’s overall probative value was not substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury was within the zone of reasonable disagreement. The Court then rejected Hall’s arguments in point of error three that admission of the video violated the Eighth Amendment and the Due Process Clause, finding that Hall had either inadequately briefed the arguments or failed to preserve them for review.

the detention center filming content for a television show. Hall’s evidence at punishment centered upon his early life in the Philippines, his lack of any other history of violence or criminal behavior, and his mental health. Based on the jury’s answers to the special issues, the trial court sentenced Hall to death. On appeal, Hall raised fifteen points of error. The Court of Criminal Appeals affirmed the conviction and death sentence. Hall v. State, --- S.W.3d ---, 2021 WL 5823345 (Tex. Crim. App. Dec. 8, 2021) (9:0:0). Writing for the Court, Judge Hervey first disposed of Hall’s seventh issue, in which Hall challenged the sufficiency of the evidence to support the jury’s finding on the future-dangerousness special issue. Hall argued that the proper inquiry was whether the evidence proved beyond a reasonable doubt that he would pose a continuing danger in prison. The Court rejected this argument and reiterated that the question was whether a defendant would be dangerous in or out of prison. The Court reviewed the evidence on future dangerousness, including the brutality of the crime, the fact that Hall targeted complete strangers, and Hall’s lack of remorse. Viewing in the light most favorable to the jury’s verdict, the evidence supported the jury’s determination that Hall posed a continuing threat to society. In points of error one, two, and three, Hall argued that the trial court erred to admit in the punishment phase of trial a video recording in which Comedy Central comedian Jeff Ross is shown joking around with several inmates, including Hall, in the Brazos County Detention Center. The video recording was made during filming for Jeff Ross’s comedy special, but the portions of film involving Hall were omitted from the special because Hall had not yet gone to trial. In the video, Ross mocked Hall’s appearance and joked about his race, and Hall made comments arguably evincing a lack of remorse. The State introduced the video at the punishment phase of trial. The Court first rejected Hall’s argument in point of error one that his Sixth Amendment right to counsel had been violated because there was no evidence that Ross was acting as an agent of the State when he spoke with Hall at the jail. In point of error two, Hall argued that video should have been excluded under Texas Rules of Evidence 401, 402, and 403. The Court found that the contents of the video were relevant to the punishment-

The Court found Hall’s remaining points of error to be without merit. In points of error four and five, Hall argued that the trial court erred by refusing to include in its punishment phase charge an instruction requiring the corroboration of jailhouse witness testimony. In point of error six, the Court rejected Halls’s contention that the future-dangerousness special issue violated the Eighth Amendment’s heightened standard for reliability in the determination that death is the appropriate punishment because whether a defendant would pose a continuing threat to society called for speculation. In points of error eight and nine, Hall argued that the trial court erred to overrule his objection to part of the State’s punishment phase closing argument, in which the State argued that sentencing Hall to life imprisonment would be effectively giving him a free pass. Both grounds were subject to procedural default, and the Court concluded that Hall had failed to preserve error. In point of error ten, Hall argued that the trial court denied him an opportunity for “meaningful voir dire” in violation of the Sixth, Eighth, and Fourteenth amendments to the United States Constitution by refusing to allow him to ask each prospective juror whether he or she could consider “youth and mental illness to be evidence in mitigation,” but the Court found that Hall’s proffered questions were improper commitment questions. In points of error eleven and twelve, Hall argued that Texas Code of Criminal Procedure Article 37.071’s definition of mitigating evidence is inconsistent with the Eighth Amendment, both on its face and as applied to Hall’s case. The Court noted that it had repeatedly 36

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bombing and pressured Dzhokhar to participate. In an attempt to show Tamerlan’s domineering nature, Dzhokhar sought to introduce the statements of Ibragim Todashev, who had alleged during an FBI interview that, years earlier, Tamerlan had participated in a triple homicide in Waltham, Massachusetts. The Government asked the trial court to exclude any reference to the Waltham murders, contending that the evidence was irrelevant, or at least so lacking in probative value and so likely to confuse the issues that the court should exclude it. The Government also pointed out that, because FBI agents had killed Todashev in self-defense after he attacked them during the interview, there were no living witnesses to the Waltham murders. The District Court excluded the evidence. The jury concluded that 6 of Dzhokhar’s crimes warranted the death penalty, and the District Court accordingly sentenced Dzhokhar to death.

rejected facial challenges to the statute and declined to revisit those holdings, and it rejected Hall’s as-applied challenge. In point of error thirteen, the Court rejected Hall’s argument that the trial court erred to overrule his Batson objection. In point of error fourteen and fifteen, Hall argued that the Eighth Amendment forbids the execution of offenders who, like Hall, were between the ages of eighteen and twenty-one or who were suffering from “severe mental illness” when they committed capital murder. The Court remained unpersuaded that a national consensus had formed against the execution of either category of offender. Accordingly, it overruled Hall’s points of error. 3. The United States Supreme Court reinstated the Boston Marathon Bomber’s death sentence. Dzhokhar Tsarnaev, along with his brother Tamerlan Tsarnaev, detonated two homemade bombs near the finish line of the 2013 Boston Marathon. The explosions killed three people and wounded hundreds. In the process of fleeing from law enforcement days later, the brothers murdered a Massachusetts Institute of Technology campus police officer, carjacked a graduate student, and fought a street battle with police during which Dzhokhar inadvertently ran over and killed Tamerlan. Dzhokhar was apprehended and arrested the following day.

The Court of Appeals vacated the capital sentences on two grounds. First, the court held that the District Court abused its discretion during jury selection by declining to ask about the kind and degree of each prospective juror’s media exposure, as required by that court’s decision in Patriarca v. United States, 402 F. 2d 314 (1st Cir. 1969). Second, the court held that the District Court abused its discretion during sentencing when it excluded evidence concerning Tamerlan’s possible involvement in the Waltham murders.

A federal grand jury indicted Dzhokhar for 30 crimes, 17 of which were capital offenses. To prepare for jury selection, the parties jointly proposed a 100question screening form, which included several questions regarding whether media coverage may have biased prospective jurors. The District Court adopted almost all of them, but it declined to include a proposed question that asked each prospective juror to list the facts he had learned about the case from the media and other sources. According to the District Court, the question was too “unfocused” and “unguided.” Instead, the District Court permitted counsel to ask appropriate follow up questions about a prospective juror’s media consumption based on the answers to questions in the questionnaire or at voir dire. Following three weeks of in-person questioning, a jury was seated. The jury found Dzhokhar guilty on all counts, and the Government sought the death penalty. At sentencing, Dzhokhar sought mitigation based on the theory that Tamerlan had masterminded the 37

The United States Supreme Court reversed. United States v. Tsarnaev, 595 U.S. --- (Mar. 4, 2022) (6:2:3). Writing for the Court, Justice Thomas explained that the Court of Appeals improperly vacated Dzhokhar’s capital sentences based on the juror questionnaire and the Waltham evidence. First, the District Court did not abuse its broad discretion in managing jury selection by declining to ask about the content and extent of each juror’s media consumption regarding the bombings. By holding otherwise, the Court of Appeals had circumvented the wellestablished abuse-of-discretion standard of review that applied in this context. The Court of Appeals based its decision on Patriarca, in which the court had, pursuant to its “supervisory authority,” required district courts presiding over high-profile cases to ask about the “kind and degree of [the prospective juror’s] exposure to the case or the parties.” 402 F. 2d at 318. The Supreme

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care. And, after reviewing the record, Justice Breyer concluded that the record did not adequately support the District Court’s stated reasons for excluding the evidence. Though he agreed that the District Court was justifiably concerned that the evidence might confuse the issues for the jury, Justice Breyer concluded that the possibility of juror confusion did not tip the balance of factors against admissibility, based on the following two reasons: (1) in the context of capital cases, a trial court’s decision to admit or exclude evidence implicates a defendant’s rights under the 8th Amendment, which explains the broader admissibility standard contained in the FDPA; and (2) given that courts routinely admit evidence of a capital defendant’s prior criminal behavior, unrelated to the crime at issue, to show aggravating circumstances, there was no reason courts should not do the same for past criminal behavior that showed mitigating circumstances. Accordingly, Justice Breyer would hold that the Court of Appeals was correct that the District Court abused its discretion.

Court clarified that any such “supervisory authority” could not conflict with established legal standards. Second, the District Court also did not abuse its discretion in excluding evidence of the Waltham murders from the sentencing proceedings. The Federal Death Penalty Act (FDPA) provides that, at the sentencing phase of a capital trial, “information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor.” 18 U.S.C. § 3593(c). And, although the information “is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials,” district courts may exclude information under the FDPA “if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” The District Court’s conclusion that the evidence lacked probative value and would confuse the jury was reasonable because the evidence did not detail Tamerlan’s involvement in the murders, nor was there any way to verify the relevant facts since all of the involved parties were dead. The Supreme Court rejected Dzhokhar’s argument that the FDPA violated the 8th Amendment by excluding mitigating evidence. In the Court’s view, the balancing test fell well within Congress’s traditional authority to set reasonable limits on and control the presentation of evidence, even in a capital case.

B. Stacking – Offenses were prosecuted in the same criminal transaction, such that the sentences could not be stacked, where the defendant was adjudicated guilty of three offenses, plead guilty to two additional offenses, and was sentenced for all five simultaneously. Brian Ray Middleton pleaded guilty to three theft offenses pursuant to a plea agreement, and the trial court placed him on deferred adjudication community supervision. He later committed two new thefts, and the State filed motions to adjudicate guilt in the three earlier cases. Middleton pleaded guilty to the two new offenses. The trial court held a hearing on all five offenses. At the end of the hearing, the trial court found that Middleton had violated the conditions of his probation for the three deferred-adjudication offenses, found Middleton guilty of those three offenses, and found Middleton guilty of the two new offenses. The trial court then sentenced Middleton to two years in state jail for each offense and stacked all five sentences. On appeal, Middleton argued that the trial court was prohibited from cumulating the sentences pursuant to Section 3.03 of the Penal Code. Relying on Robbins v. State, 914 S.W.2d 582 (Tex. Crim. App. 1996), the court of appeals held that the five theft offenses were all tried in a single criminal action because they were disposed of

Justice Barrett filed a concurring opinion, joined by Justice Gorsuch. Justice Barrett wrote separately to note her skepticism that courts of appeals possess the “supervisory power” discussed by the Court. Though the Court had, in previous cases, suggested that the courts of appeals possess authority to dictate procedural rules for district courts, the Court had never identified the source of that supposed authority, nor had the Court itself ever squarely asserted supervisory power to regulate procedure in lower federal courts. Justice Breyer filed a dissenting opinion, joined by Justice Sotomayor and Justice Kagan except as to Part II-C. In Justice Breyer’s view, the District Court should have allowed Dzhokhar to introduce the evidence of the Waltham murders. Because Dzhokhar conceded his guilt, the focus of the trial was on sentencing and, specifically, whether Dzhokhar should receive the death penalty. Because this case involved capital offenses, Justice Breyer believed the Court should apply the abuse-of-discretion standard with

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quash. The court of appeals held that Kahookele’s punishment for the charged aggravated state-jail felony offenses could be further enhanced under the habitualoffender statute based on his convictions of engaging in organized criminal activity and forgery by possession.

in a consolidated punishment proceeding. Consequently, the court of appeals modified the trial court’s judgment to reflect that all sentences were concurrent. The Court of Criminal Appeals affirmed. Middleton v. State, 634 S.W.3d 46 (Tex. Crim. App. Nov. 3, 2021) (9:0:0). Writing for a unanimous Court, Presiding Judge Keller explained that when a defendant has been placed on deferred adjudication, later charged with a new offense, and the punishment stage for both the deferred-adjudication offense and the new offense occur in the same proceeding, the two cases have been tried in the same criminal action. Because of the unique characteristics of deferred-adjudication—that it is not a conviction for most purposes, lacks finality in significant respects, and retains exposure to the full range of punishment—the Court concluded that a deferred-adjudication plea proceeding is not complete under the concurrent-sentencing statute until sentence is imposed after adjudication. Accordingly, the Court concluded that the disposition of the deferredadjudication offenses and the new offenses in a single sentencing hearing constituted a consolidated punishment hearing. Accordingly, the sentences could not be stacked, and the court of appeals was correct to hold that the sentences in all of the cases must run concurrently. C. Enhancements – An aggravated state-jail felony may be enhanced under the habitualoffender statute to a first-degree offense based upon two additional and sequential prior felony convictions. Edmund Koko Kahookele was charged with two counts of state-jail felony possession of a controlled substance, namely cocaine and methamphetamine. The indictment contained an enhancement paragraph alleging a prior murder conviction, which would make each count an “aggravated state jail felony” punishable as a thirddegree felony under Texas Penal Code § 12.35(c). The indictment also alleged two additional sequential felony convictions for engaging in organized criminal activity and forgery by possession, which would raise the potential punishment to the habitual-offender range of 25 to 99 years or life under Texas Penal Code § 12.42(d). Kahookele filed a motion to quash the indictment, arguing that the enhancement paragraphs were invalid. The trial court granted the motion to

The Court of Criminal Appeals affirmed. State v. Kahookele, --- S.W.3d ---, 2021 WL 5917232 (Tex. Crim. App. Dec. 15, 2021) (9:0:0). Writing for a unanimous Court, Judge Keel explained that sections 12.425(c) and 12.42(d) were neither ambiguous nor in conflict, and their plain language supported the court of appeals’ interpretation that section 12.42(d) applied to aggravated state jail felonies. Section 12.42(d) specifically excepted state jail felonies that were punishable under § 12.35(a) but said nothing about aggravated state jail felonies under § 12.35(c). Had the legislature wanted to except all state jail felonies from § 12.42(d), as Kahookele argued, it would have done so. The fact that the legislature did not suggested that aggravated state jail felonies punishable under § 12.35(c) could be used for enhancement purposes under § 12.42(d). This interpretation gave effect to all the words and phrases in both statutes and did not lead to absurd results. Accordingly, Kahookele’s two counts, which were aggravated state jail felonies, could be further enhanced under § 12.42(d), and the trial court erred in quashing the indictment. VIII.

APPEALS

A. Pretrial Writs – Court of appeals should have addressed cognizability as a threshold issue before reaching the merits of claim. Tonya Couch was charged in four separate cause numbers with money laundering under Texas Penal Code § 34.02(a)(4). Couch filed a pretrial application for writ of habeas corpus seeking dismissal of the indictments on the ground that section 34.02(a)(4) is facially unconstitutional. The trial court denied relief. On appeal, the court of appeals upheld the trial court’s ruling and held that the statute was not facially unconstitutional. Couch filed a petition for discretionary review challenging the court of appeals’ construction of the statute. In a per curiam opinion, the Court of Criminal Appeals granted review of the decision of the court of appeals on its own motion, vacated the judgment of the 39

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The Court of Criminal Appeals reversed. Rubio v. State, 638 S.W.3d 693 (Jan. 26, 2022) (6:0:3). Writing for the Court, Judge Yeary explained that Texas Rule of Appellate Procedure 21.4(b) gives a trial court discretion to grant a defendant leave of court so that he may file an amended motion, even after the overruling of a prior motion, so long as it is done within the 30-day time period. Rule 21.4(b) provides that a defendant may file an amended motion for new trial prior to the overruling of an original motion for new trial “without leave of court.” This left open whether a defendant could, with leave of court, file an amended motion for new trial, even after the trial court overruled an original motion for new trial. Because Rule 21.4(b) does not explicitly preclude a defendant from obtaining leave of court to file an amended motion for new trial after the overruling of an initial motion, the Court concluded it was consistent with the language of the rule to permit a defendant to file an amended motion, even after a prior motion has been overruled, as long as he obtains leave of court to do so, and at least as long as he does so within the original 30day time period.

court of appeals, and remanded the case to the court of appeals to address the cognizability of the issue raised in Simms’s pretrial writ application. Ex parte Couch, 629 S.W.3d 217 (Tex. Crim. App. Sept. 15, 2021) (9:0:0). Generally, a pretrial writ application is not appropriate when resolution of the question presented, even if resolved in favor of the applicant, would not result in immediate release. Couch’s indictments alleged that she did knowingly (1) “finance or invest” or (2) “intend to finance or invest,” but Couch’s writ application challenged only the portion of the statute relating to the latter. Thus, even if the challenged portion of the statute were struck as facially unconstitutional, it may be that only those corresponding portions of her indictments would need to be struck, and the prosecution could at least theoretically proceed on the other allegations. The court of appeals should have addressed cognizability as a threshold issue before reaching the merits of the claim. B. Motions for New Trial – A trial court has discretion to grant leave of court and permit a defendant to file an amended motion for new trial even after the trial court has overruled an initial motion for new trial. Christopher Michael Rubio was convicted of capital murder and sentenced to life imprisonment without the possibility of parole. The same day, Rubio’s trial counsel filed a general form motion for new trial for the purpose of giving the court reporter more time to file the record with the court of appeals. The trial court promptly overruled his motion. Thirty days later, Rubio’s new appellate counsel filed a motion for leave to file an amended motion for new trial along with an amended motion for new trial. The trial court overruled the State’s objection that the motion was untimely and heard evidence on the motion. Following the hearing, the trial court denied the amended motion on the merits. Rubio appealed. To determine what arguments and evidence could be considered as part of the record on appeal to resolve his claims, the court of appeals examined whether Appellant’s amended motion for new trial was timely. It concluded that, because Appellant’s amended motion for new trial was filed after the trial court denied his timely filed initial motion for new trial, and the State objected to the amended motion, the amended motion was untimely.

Presiding Judge Keller filed a dissenting opinion, joined by Judge Hervey and Judge Keel. In Presiding Judge Keller’s view, the Court’s conclusion failed to account for the limited nature of a trial court’s power in the post-judgment context. Given that limited power, it was not enough that Rule 21.4 did not explicitly preclude the filing of an amended motion for new trial. Instead, Presiding Judge Keller believed that Rule 21.4 would have to explicitly authorize the filing of an amended motion under the circumstances presented in this case, which it did not. Presiding Judge Keller would have interpreted Rule 21.4 consistently with Texas Rule of Civil Procedure 329b(b), which governs amended motions for new trial in civil cases. In discussing Rule 329b(b), the Texas Supreme Court has noted that “timely amended motions for new trial have always been limited to those filed before the trial court overruled a preceding motion, regardless of whether leave of court was required.” In re Brookshire Grocery Co., 250 S.W.3d 66, 71 (Tex. 2008). Given this context, Presiding Judge Keller “would hesitate to hold that a rule’s silence on an issue amounts to permission.” 40

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C. State’s Right to Appeal – The State may appeal a trial court’s order that grants post-conviction habeas corpus relief and vacates the conviction in a misdemeanor case. Leonardo Fabio Garcia pleaded guilty to misdemeanor theft. Almost ten years later, he pleaded guilty to a second charge of misdemeanor theft. At the time of both pleas, Garcia was not a United States citizen. Ten years after the second conviction, Garcia was informed that he was subject to deportation based on the two misdemeanor theft convictions. He filed an application for habeas corpus pursuant to Article 11.09 of the Code of Criminal Procedure, alleging that his plea in the second case was involuntary due to ineffective assistance of counsel because he was not advised of the immigration consequences of his plea. After a hearing, the trial court signed an order, which granted relief, vacated the conviction, and ordered Garcia discharged and released. The State appealed. Though neither party raised the issue of the State’s ability to appeal, the court of appeals dismissed the State’s appeal for lack of jurisdiction. According to the court of appeals, the State, as the respondent in a habeas action, could not appeal an order “discharging” Garcia.

vacating the conviction had the effect of granting Garcia a new trial. Consequently, the State was authorized to appeal the trial court’s order under Article 44.01(a)(3), just as it would any order of a trial court granting a new trial. Judge Hervey did not participate. D. Harm 1. Any error in admitting police report regarding an extraneous offense over defendant’s objection was harmless. Juan Macedo was charged with the murder of his wife, Maria Alvarado. The evidence at the guilt stage of trial showed that Macedo brought Alvarado’s dead body to a hospital. She had been shot in the head. Macedo gave conflicting explanations for Alvarado’s death, first claiming that Alvarado had been the victim of a random shooting but later claiming that she had shot herself. Other evidence indicated that Macedo shot her. Alvarado’s father and son testified for the State. Alvarado’s father, Armando, testified that Macedo mistreated Alvarado. Alvarado’s son, Juan Jr., which she shared with Macedo, testified that Macedo always carried a gun, fought with Alvarado all the time, kicked holes in the bedroom wall, and once pulled Alvarado’s head towards his own, pointed his gun at his own head, and said they were both going to die.

The Court of Criminal Appeals reversed. State v. Garcia, 638 S.W.3d 679 (Jan. 26, 2022) (8:0:0). Writing for the Court, Judge Newell explained that the trial court’s order effectively granted Garcia a new trial, which was one of the enumerated situations giving rise to the State’s ability to appeal under Article 44.01 of the Code of Criminal Procedure. Article 44.01(a) of the Code of Criminal Procedure lists several circumstances under which the State may appeal in a criminal case without reference to the nature of the proceedings. These circumstances include an order granting a new trial and an order dismissing a charging instrument. Importantly, the statutory provisions focus upon the effect of the trial court’s order rather than the particular proceeding that leads to the trial court’s order. Moreover, the Court had previously held, both in and outside the context of habeas proceedings, that the State may appeal a trial court’s order that, regardless of its label, functionally creates one of the appealable scenarios that Article 44.01 specifically enumerates. This situation was no different. The orders of the trial court in this case granting post-conviction habeas corpus relief and

At the punishment stage, the State introduced a judgment of Macedo’s guilty plea to a domestic violence offense in California and a police report for that offense. Macedo objected to the admission of the police report on the ground of hearsay, but the trial court overruled the objection. The police report indicated that Macedo kicked the victim in the jaw and bit her on her right eye area. Armando and Juan Jr. again testified at the punishment stage. In response to State questioning about the prior conviction, Armando testified that Macedo “beat her.” Armando also testified to the absence felt by Alvarado’s children. Juan Jr. testified that Macedo was “really aggressive” with both him and Alvarado and that that he was afraid of Macedo because he “was just very mean, and he would hit me for no reason all the time.” Juan Jr. described how Macedo would hit him with a horse whip. He also testified that Macedo hit Alvarado “a lot of times.” Juan Jr. recounted a particular incident 41

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was the detail that Macedo bit and kicked Alvarado. The jury would still have known that Macedo was previously convicted of a domestic violence offense involving Alvarado. Without the details, the jury would have been left to imagine what happened during that offense, and given the horse-whip testimony and the prior threat with the gun, the jury could have imagined the extraneous offense to be even worse than it was. Under these circumstances, the Court had a fair assurance that the details of the offense in the police report did not influence the jury or had but slight effect.

where Macedo threatened to intentionally crash the car the three of them were riding in after Alvarado threatened to leave him. During closing arguments, the State referenced the evidence of biting in the prior extraneous conviction. Prosecutors also talked about Juan Jr.’s testimony about the horse whip, the testimony regarding the effect of Alvarado’s absence on her children, and the prior instances and threats of violence described by Juan Jr. After deliberations, the jury returned a maximum sentence. On appeal, Macedo challenged the admission of the police report. The court of appeals held that the police report was erroneously admitted because it was hearsay, and the error was harmful. Despite the evidence showing Macedo’s prior abuse to Alvarado and his son, the court of appeals could not say with fair assurance that the police report did not influence the jury or influenced the sentence only slightly, given that the State emphasized it in closing and the jury asked to see it before returning a verdict for the maximum sentence. The Court of Criminal Appeals reversed. Macedo v. State, 629 S.W.3d 237 (Tex. Crim. App. Sept. 15, 2021) (6:3:0). Writing for the Court, Presiding Judge Keller explained that, assuming the police report was inadmissible hearsay, its admission was nonconstitutional error, which meant that it must be disregarded if it does not affect substantial rights. An error does not affect substantial rights if the appellate court has “a fair assurance from an examination of the record as a whole that the error did not influence the jury or had but a slight effect.” In light of all the punishment evidence, the evidence that Macedo bit Alvarado one time was relatively insignificant. The evidence at punishment showed that Macedo was violent towards Alvarado and Juan Jr. multiple times. Even without the details of the extraneous offense, the jury would still have learned from the prior judgment that Macedo had a prior family violence conviction against Alvarado. Though the prosecutor did emphasize the biting in closing arguments, the prosecutor also emphasized the use and threat of the horse whip, which was far more probative of Macedo’s anger and viciousness than the fact that he bit his wife once. And, while the jury had asked for the judgment and police report, the only evidence the jury learned from the police report not contained in the judgment

Judges Hervey, Richardson, and Walker concurred without written opinion. 2. When a trial court fails to suppress evidence that was obtained in violation of only Article I, § 9 of the Texas Constitution, Texas Rule of Appellate Procedure 44.2(b) provides the proper harm analysis. Christopher James Holder was charged with capital murder. At trial, the State admitted evidence of his cell-phone site location information (CSLI) to establish his whereabouts during the weekend in which the offense was committed. The jury found Holder guilty. On direct appeal, the Court of Criminal Appeals concluded that the CSLI evidence was obtained in violation of Article I, Section 9, of the Texas Constitution and should have been suppressed. Holder v. State, 595 S.W.3d 691, 704 (Tex. Crim. App. 2020). But the Court remanded the cause to the court of appeals for a harm analysis. On remand, the court of appeals conducted a constitutional harm analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure, as the Court of Criminal Appeals had done in Love v. State, 543 S.W.3d 835, 846 (Tex. Crim. App. 2016). Under that standard of harm, the court of appeals was unable to conclude beyond a reasonable doubt that the CSLI evidence did not contribute to the jury’s verdict. Accordingly, it reversed the conviction and remanded the case for further proceedings. The Court of Criminal Appeals vacated the court of appeals’ judgment. Holder v. State, --- S.W.3d ---, 2022 WL 302538 (Feb. 2, 2022) (9:0:0). Writing for a unanimous Court, Judge Yeary explained that the only basis for the exclusion of evidence obtained in violation of the Texas Constitution is Article 38.23 of the Code of Criminal Procedure. When the only basis for the exclusion of evidence is Texas’s statutory 42

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

The Court of Criminal Appeals granted relief. Ex parte Dotson, --- S.W.3d ---, 2022 WL 791666 (Mar. 16, 2022) (5:0:4). In a per curiam opinion, the Court followed the habeas court’s recommendation and found that Dotson’s appellate counsel rendered constitutionally ineffective assistance by failing to raise the improper enhancement on direct appeal. Accordingly, Dotson was permitted to file an out-oftime appeal of his conviction.

exclusionary rule, the correct standard for determining harm is the one set out in Rule 44.2(b), which applies to statutory errors. By contrast, the basis for excluding evidence obtained in violation of the Fourth Amendment to the U.S. Constitution is of a constitutional dimension, and errors of constitutional dimension are reviewed for harm under Texas Rule of Appellate Procedure 44.2(a). The Court concluded that it had been mistaken in Love to apply Rule 44.2(a) to evidence obtained in violation of only the Texas Constitution and disavowed that opinion to the extent that it deemed Subsection (a), rather than Subsection (b), to be the appropriate harm analysis when only a violation of Article 38.23 is involved. In this case, Holder did not invoke the Fourth Amendment on appeal. The proper harm analysis was therefore the one contained in Texas Rule of Appellate Procedure Rule 44.2(b), not 44.2(a). Because the resolution of the harm question was not plain, the Court remanded the case to the court of appeals.

Presiding Judge Keller filed a dissenting opinion, joined by Judges Yeary, Keel, and Slaughter. Even assuming that Dotson’s conviction would have been reversed on appeal if appellate counsel had raised the improper enhancement claim, Presiding Judge Keller would hold that Dotson had suffered no prejudice because he had suffered no fundamental unfairness and giving him relief would result in a windfall. Presiding Judge Keller relied on the United States Supreme Court’s decision in Lockhart v. Fretwell, 506 U.S. 364 (1993), in which the Supreme Court said that “focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” In this case, Dotson had other prior convictions that would have supported that enhancement, which meant that he could not have shown prejudice in a claim that trial counsel was ineffective or in a freestanding illegalsentence claim under Ex parte Parrott, 396 S.W.3d 531, 536–37 (Tex. Crim. App. 2013). In Presiding Judge Keller’s view, Dotson’s “inability to show prejudice for a freestanding habeas claim or a triallevel ineffective-assistance claim points to the lack of fundamental unfairness with respect to the enhancement issue, however it is presented: because his actual criminal history supports the enhancement, any defect in pleading the enhancement is not prejudicial.” Moreover, had appellate counsel raised the issue on appeal and obtained a reversal, the remedy would have been a new sentencing hearing at which the State could then offer the eligible prior convictions for enhancement, affording the exact same punishment range available at the original trial. In Presiding Judge Keller’s view, this would be a windfall to Dotson.

IX. INEFFECTIVE ASSISTANCE OF COUNSEL A. Deficient Performance - By failing to raise an illegal sentence claim based on the improper use of enhancements, appellate counsel rendered ineffective assistance on appeal. Richard Dotson was convicted of possession of a controlled substance and sentenced to eighteen years’ imprisonment in 2009. For enhancement purposes under former Texas Penal Code § 12.42(a)(2), the indictment alleged two prior felonies: a 1992 conviction for burglary of a building, and a 1998 conviction for delivery of a controlled substance. However, the latter conviction was a statejail felony, which made it unavailable for use as an enhancement under Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001). On direct appeal, Dotson’s appellate counsel did not raise any point of error addressing the improper enhancement. The court of appeals affirmed the conviction. Dotson filed an application for a writ of habeas corpus, alleging that appellate counsel was ineffective for failing to challenge the improper enhancement on appeal. The habeas court found that appellate counsel’s performance was deficient and that Dotson was prejudiced, and it accordingly recommended that relief be granted.

Judge Slaughter filed a dissenting opinion, joined by Judge Yeary. Judge Slaughter disagreed that appellate counsel was unreasonable for failing to raise this issue on direct appeal. In her view, appellate

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

of trial. The trial court denied the motion for new trial, and the court of appeals affirmed, concluding that Pham’s trial counsel had not performed deficiently, and, in any event, Pham had failed to establish prejudice.

counsel may have had a good reason for not raising the claim: given the lack of any trial objection to the improper enhancement, it was possible that an appellate court would have held such claim to be unpreserved and rejected it on that basis. Alternately, even if appellate counsel was ineffective, Judge Slaughter would remand the case for consideration of the doctrine of laches. B.

The Court of Criminal Appeals affirmed. Pham v. State, --- S.W.3d ---, 2022 WL 391524 (Tex. Crim. App. Feb. 9, 2022) (6:4:0). Writing for the Court, Presiding Judge Keller explained that, assuming Pham’s trial counsel had performed deficiently, Pham had nonetheless failed to show prejudice. Even if counsel should have investigated the witnesses, counsel’s evaluation of the problems associated with presenting the witnesses as mitigation was sound. If a witness had not had contact with Pham during the ten years in which he was a fugitive, then that witness’s testimony was likely to be viewed by a jury as stale and uninformed. Almost all of the proffered witnesses fell into this category. Alternately, if a witness did have contact with Pham while he was a fugitive for ten years, the witness would have known about Pham’s bad acts during that time and would likely have given damaging testimony on cross-examination. Because the affidavits did not show that any of the witnesses could have avoided this dilemma, Pham had failed to establish prejudice.

Prejudice

1. Assuming trial counsel rendered ineffective assistance by failing to investigate a mitigation case, no prejudice was shown because the proffered witnesses either had not had contact with the defendant for the decade that he was a fugitive or would have given damaging testimony because they knew of his bad acts during that time. Happy Tran Pham shot and killed Pierre Mai, with whom he had a negative history, then fled the scene. Pham was not arrested until ten years later. In the interim, Pham sold marijuana. After Pham was arrested, the case proceeded to trial, and the jury found Pham guilty of murder. During the punishment stage of trial, defense counsel called only two witnesses—Pham’s older brothers—who testified that they thought Pham would do well with a probated sentence. Pham’s counsel argued that Pham did not pose a danger of future violence and pointed out that Pham had no prior felony convictions. The jury assessed a life sentence.

Judge Yeary filed a concurring opinion. Judge Yeary agreed with the Court’s disposition, but he would not have assumed that trial counsel’s performance was deficient. Instead, Judge Yeary agreed with the court of appeals that trial counsel had made a reasonable and sufficiently well-informed decision not to present testimony from the possible mitigation witnesses given the dilemma they posed. However, Judge Yeary disagreed with the court of appeals’ conclusion that counsel made a reasonable strategic decision in prioritizing the guilt stage of trial over the punishment stage. In Judge Yeary’s view, “[a]ny genuine deficiency in his investigation of, and preparation for, the punishment phase of trial could not be excused merely because he was confident that his guilt-phase strategy, if vigorously pursued, would prove successful—even if that confidence were wellfounded.”

Pham filed a motion for new trial, in which he alleged that his trial attorney was ineffective for failing to prepare his brothers to testify and for failing to present other witnesses at the punishment stage. Pham’s trial attorney filed an affidavit explaining that he believed Pham would be acquitted at the guilt stage and that presenting “positive” witnesses at the punishment stage presented a challenge: either the witnesses had been aware Pham hid from law enforcement and sold marijuana for a decade, or the witnesses weren’t aware of Pham’s activities because they had not been in contact with him during that time. However, counsel also admitted that these challenges were “conclusory assumptions” he made, he did not attempt to investigate further, and he did not prepare Pham’s brothers prior to their testimony. Pham also filed 20 affidavits from individuals who could have been called as witnesses during the punishment phase

Judge Slaughter filed a concurring opinion, joined by Judge Richardson and Judge Walker. Judge 44

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(Tex. Crim. App. March 2, 2022) (9:0:0). Writing for a unanimous Court, Judge Keel explained that, although the court of appeals had referred to the wrong standard, it reached the right result because the record was silent about the effect of the attorney’s advice on Swinney’s decision making. The Court clarified that the correct standard for prejudice in this context focuses on the defendant’s decision making. But in this case, the record was silent on how the bad advice impacted Swinney’s decision making. And the record even suggested a valid alternate reason for going to the court for punishment, since it would avoid putting Swinney’s extraneous offenses before a jury. Because the record did not show a reasonable probability that the attorney’s mistake about probation eligibility caused Swinney to waive the jury for punishment, Swinney’s ineffective-assistance-of-counsel claim failed for lack of prejudice.

Slaughter’s opinion addressed Pham’s other appellate ground that the trial court erred by not instructing the jury under Texas Penal Code § 9.04. [Commentary: Perhaps the more interesting question in this case was whether trial counsel’s representation fell below prevailing professional norms. Here, trial counsel assumed that if he had reached out to Appellant’s family members he would have gotten unhelpful information. And, on the writ, the information uncovered was pretty much exactly what counsel predicted. How much of the case turns on the fact that defense counsel guessed right?] 2. In an ineffective-assistance-of-counsel claim based on counsel erroneously advising a defendant that he is eligible for probation, the correct measure of prejudice focuses on the impact of the bad advice on the defendant’s decision making and does not require a showing of a different outcome. Timothy Aaron Swinney was charged with aggravated assault with a deadly weapon. Swinney filed a pretrial motion for probation and an election to go to the judge for punishment. After the jury convicted Swinney, defense counsel argued that Swinney was eligible to receive probation from the trial court. In fact, the judge could not assess a probated sentence in light of the deadly weapon finding under Tex. Code Crim. Proc. art. 42A.054(b). The judge instead sentenced Swinney to 8 years in prison on one count and 2 years on the other.

X. HABEAS CORPUS A. False Evidence 1. The requirements for the inference of falsity under Ex parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014) apply to cases involving a police officer with a demonstrated pattern of misconduct in drug-related cases. Aaron Mathews pled guilty to state-jail-felony delivery of a controlled substance after allegedly selling cocaine to Houston Police Officer Gerald Goines, who was working undercover. Years later, Mathews was notified that Goines, who was the sole witness against him, had been found to have provided false information in at least one separate drug-related case, was under investigation for falsifying information in another case, and had been relieved from duty. Mathews filed an application for a writ of habeas corpus, arguing that Coty’s inference-offalsity rubric should apply to these facts. The State agreed.

On appeal, Swinney argued that his attorney had misled him about his eligibility for probation from the trial court if he were convicted of aggravated assault. The court of appeals agreed that Swinney’s counsel had performed deficiently but found that Swinney had failed to show prejudice. In evaluating prejudice, the court of appeals said that Swinney had to demonstrate that the results of the proceeding would have been different had his attorney correctly informed him of the law. However, it also noted the lack of evidence to show what Appellant might have done if he had been correctly advised about probation eligibility from the trial court or whether he had other reasons besides his attorney’s advice for electing the court for punishment.

In Coty, a habeas applicant sought to prove that the State had obtained his guilty plea based on false evidence by showing that a forensic chemist working for the State had falsified lab-test results in cases other than his own. The Court of Criminal Appeals held that the applicant could raise an inference that the evidence used in his own case was false by demonstrating that (1) the technician in question was a state actor, (2) the technician committed multiple instances of intentional

The Court of Criminal Appeals affirmed. Swinney v. State, --- S.W.3d ---, 2022 WL 610977 45

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whether Roark is entitled to a new trial under Article 11.073 of the Texas Code of Criminal Procedure based on new scientific evidence, and (2) whether the Due Process Clause was violated because the State’s expert witness partially recanted her trial testimony. However, the habeas court’s findings of fact and conclusions of law did not address all of Roark’s claims. While Roark had alleged that multiple areas of science had evolved since his trial, the habeas court only addressed one of those areas of science and suggested the Court remand if it concluded Roark was not entitled to relief on that one ground. The Court explained that addressing that ground without full presentment of all the issues in the application was an inappropriate use of the writ of habeas corpus. Rather, all of an applicant’s claims should be fully developed and ready to be resolved when the record is transmitted to the Court.

misconduct in another case or cases, (3) the technician was the same technician that worked on the applicant’s case, (4) the misconduct was the type of misconduct that would have affected the evidence in the applicant’s case, and (5) the technician handled and processed the evidence in the applicant’s case within roughly the same period of time as the other misconduct. Once the applicant satisfied this initial burden and established these predicate facts, then the burden shifted to the State to offer evidence showing no such intentional misconduct occurred in the applicant’s case. That said, the Court also held that the applicant had the burden of establishing that the false evidence was material. In the context of an applicant who pled guilty, materiality exists if the applicant would not have decided to plead guilty but for the falsified forensic evidence. In a per curiam opinion, the Court of Criminal Appeals extended Coty to cases involving a police officer with a demonstrated pattern of misconduct in drug-related cases. Ex parte Mathews, 638 S.W.3d 685 (Jan. 26, 2022). The Court found that Coty’s reasoning applied with equal force to cases involving police officers as it did for cases involving laboratory technicians. Applying the Coty factors, the Court found that Mathews pled facts that would, if true, likely satisfy the five Coty factors. However, it remanded the case to the convicting court to determine whether evidence established all five Coty requirements.

B. Illegal Sentences – Applicant who had been automatically sentenced to life imprisonment based on an enhancement was entitled to be resentenced where the Court had vacated the predicate enhancing conviction. Michael Charles Hill was convicted of sexual assault of a child and indecency with a child by contact, which were both second-degree felonies. Based on a previous conviction for aggravated sexual assault in 2000, Hill was automatically sentenced to life imprisonment for the sexual-assault offense, and his punishment range for the indecency offense was enhanced to that of a firstdegree felony. The jury sentenced him to life imprisonment, and the judge stacked the sentences. Hill’s convictions and sentences were affirmed on appeal, and Hill did not file a petition for discretionary review in either case. Approximately six months after the appeal, Hill hired postconviction counsel, who began investigating the enhancing aggravated-sexualassault conviction. Hill filed his initial habeas application in September 2014, but the application was dismissed in April 2015 on request of counsel. In December 2015, Hill filed a second habeas application in which he argued that he was actually innocent because the victim had recanted her allegations. The second application was dismissed on Hill’s request in June 2016 because the Dallas County District Attorney’s Office’s Conviction Integrity Unit had offered to review Hill’s case. In September 2016,

2. Court remanded petition for writ of habeas court for the habeas court to fully develop all the applicant’s claims. A jury convicted Andrew Wayne Roark of injury to a child for causing serious bodily injury by vigorously shaking the 13-month-old victim. Roark filed an application for a writ of habeas corpus alleging multiple grounds for relief based on new or false evidence relating to Shaken Baby Syndrome. The habeas court made findings of fact and conclusions of law and recommended the Court grant Roark a new trial under Article 11.073. The Court of Criminal Appeals remanded the cause to the habeas court to make findings of fact and conclusions of law addressing each of Roark’s claims. Ex parte Roark, --- S.W.3d ---, 2021 WL 4186719 (Tex. Crim. App. Sept. 15, 2021) (7:0:2). Writing for the Court, Judge Hervey explained that the Court filed and set the case to resolve two questions: (1) 46

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sentence for the sexual assault of a child, but not by his illegal sentence for indecency with a child. Because Hill’s actual criminal history could not support the automatic life sentence he received, Hill had shown Parrott harm on his conviction for sexual assault of a child. By contrast, Hill could not show that he was harmed by his illegal sentence for indecency with a child because his actual criminal history supported the first-degree felony punishment range in which he was sentenced. Accordingly, Hill was entitled to a new punishment hearing on his conviction for sexual assault of a child, but not on his conviction for indecency with a child.

Applicant filed a third habeas application, claiming that the State had violated Brady v. Maryland and that he would not have plead guilty to aggravated sexual assault had the State disclosed the material. The Court of Criminal Appeals vacated Hill’s enhancing conviction on involuntary-plea grounds in May 2018. In November 2018, Hill filed writ applications for the more recent convictions, arguing that his enhanced life sentences are illegal and that he received ineffective assistance of counsel because, among other things, trial counsel failed to investigate the validity of the enhancement conviction. The Court agreed that Hill’s life sentences were illegal but remanded the case for a determination of harm.

Presiding Judge Keller filed a concurring and dissenting opinion. Presiding Judge Keller disagreed with the Court’s grant of relief regarding Hill’s sentence for sexual assault of a child. In her view, Hill’s claims were barred by laches.

The Court of Criminal Appeals concluded that Hill was entitled to be resentenced on his conviction for aggravated sexual assault but not his conviction for indecency with a child. Ex parte Hill, 632 S.W.3d 547 (Tex. Crim. App. Oct. 20, 2021) (6:3:3). Writing for the Court, Judge Hervey first explained, as a threshold matter, that the doctrine of laches did not bar Hill’s claim. Any delay in challenging the enhancement conviction was no longer at issue because the Court already overturned the conviction. The appropriate time to apply laches because of Hill’s delay in challenging his enhancement conviction would have been before the Court reached the merits of Hill’s claims in the habeas proceeding for the enhancing conviction, not now that Hill was raising different claims challenging different sentences less than six months after the claims became available. Turning to Hill’s illegal-sentence claims, the Court concluded that Hill had not forfeited his illegal-sentence claims by failing to object at trial, pursuant to Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). The Court further concluded that Hill’s enhanced sentences of life imprisonment were illegal. When dealing with an illegal-sentence claim based on an improper enhancement, the Court determines the legality of the punishment as it stands, not as it stood at some other time. Because both sentences exceeded the maximum term of confinement for a second-degree felony, which was what Hill could have received from the jury without the enhancement, Hill’s sentences were illegal. Turning to the issue of harm, the Court concluded that, under Ex parte Parrott, 396 S.W.3d 531, 537 (Tex. Crim. App. 2013), Hill had been harmed by his illegal

Judge Yeary filed a concurring and dissenting opinion, in which Judge Slaughter joined. Judge Yeary similarly disagreed with the Court’s grant of relief. In his view, the enhanced sentence for sexual assault of a child was not illegal because the enhancement was valid at the time Hill was sentenced. [Commentary: Does the Court’s resolution of the laches argument place more pressure on the State to raise the issue of laches in every case? Put another way, if the State fails to raise laches in writ of habeas corpus challenging a conviction lose the ability to raise the issue when that conviction is later used for enhancement?] C. Actual Innocence – Defendant who pled guilty to attempted forgery based on an allegedlycounterfeit $100 bill, which was later determined to be genuine, had not proven he was actually innocent of the offense, but he was entitled to relief on the ground that his plea was involuntary. Anthony Hicks was charged with forgery after he admitted to attempting to use a $100 bill, which he believed to be fake, at a bonding company. Pursuant to a plea agreement, Hicks pled guilty to attempted forgery of a government instrument. More than five years later, the United States Secret Service notified the State by letter that the $100 bill was genuine. Hicks filed an application for a writ of habeas corpus, arguing that he 47

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the woman’s boyfriend, was going to hurt them. After officers commanded Cortesluna out of the house and onto the ground, officers noticed a knife in Cortesluna’s pocket. While in the process of removing the knife and handcuffing Cortesluna, Rivas-Villegas briefly placed his knee on Cortesluna’s back, near where the knife was located in Cortesluna’s pocket. Rivas-Villegas was in this position for no more than eight seconds.

is actually innocent of the offense. The habeas court agreed that Hicks was actually innocent. The Court of Criminal Appeals granted relief, but not on the ground of actual innocence. Ex parte Hicks, --- S.W.3d ---, 2022 WL 468139 (Tex. Crim. App. Feb. 16, 2022) (6:1:2). Writing for the Court, Judge McClure explained that Hicks had not proven he was actually innocent because the bill’s genuineness only created a factual impossibility, which is not a defense even for an attempted offense, and did not negate his admitted criminal intent. However, the Court concluded that Hicks was nonetheless entitled to relief on the ground that his plea was unknowing and thus involuntary. In so concluding, the Court extended Ex parte Mable, 443 S.W.3d 129, 130–31 (Tex. Crim. App. 2014), in which the Court held that a defendant’s plea was involuntary because the defendant had pled guilty to possession of a controlled substance, which forensic testimony later revealed to not be illicit after all. Like Mable, Hicks did not make an informed choice when he pled guilty because all of the parties mistakenly believed the $100 bill was fake.

Cortesluna later sued under 42 U.S.C. § 1983, alleging that Rivas-Villegas used excessive force. The District Court granted summary judgment to RivasVillegas, but the Court of Appeals for the Ninth Circuit reversed. Relying on LaLonde v. County of Riverside, 204 F. 3d 947 (CA9 2000), the Ninth Circuit held that Rivas-Villegas was not entitled to qualified immunity because existing precedent put him on notice that his conduct constituted excessive force. The United States Supreme Court reversed. Rivas-Villegas v. Cortesluna, 595 U.S. --- (Oct. 18, 2021). In a per curiam opinion, the Supreme Court explained that, even assuming that controlling Circuit precedent clearly establishes law for purposes of §1983, LaLonde did not give fair notice to RivasVillegas because the facts of LaLonde were materially distinguishable. Therefore, Rivas-Villegas was entitled to qualified immunity.

Judge Keel concurred in the result. Judge Yeary filed a dissenting opinion, which Presiding Judge Keller joined as to Part II only. In Part I, Judge Yeary posited that Ex parte Mable was inapplicable to this case because Hicks did not raise it, and the Court should not sua sponte grant relief on a claim, even if meritorious, that an applicant did not raise. Judge Yeary again noted his belief that Mable was wrongly decided. In Part II, Judge Yeary contended that Mable was distinguishable because it did not involve attempted possession of a controlled substance. Thus, in Judge Yeary’s view, relief should be denied even if Hicks had raised Mable.

2. Officers, who shot and killed a defendant after he raised and attempted to throw a hammer at them, did not violate clearly established law on excessive force and were eligible for qualified immunity. Officers Josh Girdner, Chase Reed, and Brandon Vick responded to a 911 call from Dominic Rollice’s ex-wife, in which she reported that Rollice was intoxicated and would not leave her house. After the officers arrived, she led them to the side entrance of the garage, where Rollice was located. Officers began conversating with Rollice. After one of the officers stepped toward Rollice, Rollice moved to the back of the garage, grabbed a hammer from the back wall, and turned to face the officers. Rollice held the hammer as if preparing to swing it, and the officers drew their guns and ordered Rollice to drop the hammer. Instead of dropping the hammer, Rollice took a few steps to his right and raised the hammer higher behind his head as if he was going to throw the hammer or charge at the

XI. FEDERAL LAW A. § 1983 Claims 1. A police officer did not violate clearly established law and was not made ineligible for qualified immunity by briefly placing his knee on a defendant’s back. Daniel Rivas-Villegas, a police officer in Union City, California, responded to a 911 call reporting that a woman and her two children were barricaded in a room for fear that Ramon Cortesluna, 48

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Criminal Act (ACCA), which mandates a 15-year minimum penalty for § 922(g) offenders with at least three prior convictions for specified felonies “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). In accordance with the Government’s view that Wooden had commenced a new “occasion” of criminal activity each time he left one storage unit and entered another, the District Court applied the ACCA’s penalty enhancement and sentenced Wooden to 188 months in prison. The Sixth Circuit affirmed, reasoning that ACCA’s occasions clause is satisfied whenever crimes take place at different moments in time—that is, sequentially rather than simultaneously. Because Wooden’s burglaries were committed as a progression from one unit to the next, the court concluded that Wooden qualified as a career offender under the ACCA.

officers. In response, Officers Girdner and Vick fired their weapons, killing Rollice. Rollice’s estate filed suit against, among others, Officers Girdner and Vick, alleging that the officers were liable under 42 U.S.C. § 1983, for violating Rollice’s Fourth Amendment right to be free from excessive force. The District Court granted summary judgment in favor of the officers, but the Court of Appeals for the Tenth Circuit reversed. The Court of Appeals concluded that several cases, most notably Allen v. Muskogee, 119 F. 3d 837 (CA10 1997), clearly established that the officers’ conduct was unlawful. The United States Supreme Court reversed. City of Tahlequah, Oklahoma v. Bond, 595 U.S. --- (Oct. 18, 2021). In a per curiam opinion, the Supreme Court explained that the officers plainly did not violate any clearly established law based on this record. The Supreme Court noted that it has repeatedly told courts not to define clearly established law at too high a level of generality, and specificity is especially important in the Fourth Amendment context. The Tenth Circuit had contravened these principles, and none of the decisions relied upon by the Court of Appeals came close to establishing that the officers’ conduct was unlawful. The Court of Appeals had relied most heavily on Allen, but the facts of Allen were dramatically different from the facts of this case. The other decisions relied upon by the Court of Appeals were even less relevant. Because the Court of Appeals and the respondent failed to identify precedent finding a Fourth Amendment violation under similar circumstances, the officers were entitled to qualified immunity.

The United States Supreme Court reversed. Wooden v. United States, 595 U.S. --- (Mar. 7, 2022) (7:5:0). Writing for the Court, Justice Kagan explained that convictions arising from a single criminal episode, in the way Wooden’s did, can count only once under ACCA. The Government argued that an “occasion” occurs at the moment when all the elements of an offense are established. The Court disagreed. The ordinary meaning of the word “occasion” was an event, occurrence, happening, or episode. And, under any of these meanings, an occasion could encompass multiple, temporally distinct activities. Moreover, the Government’s interpretation would collapse the ACCA’s two separate statutory conditions—that (1) a § 922(g) offender has previously been convicted of three violent felonies, and (2) those three felonies were committed on “occasions different from one another”—into one. Given what “occasion” ordinarily means, determining whether criminal activities occurred on one occasion or different occasions requires a multi-factored, intuitive inquiry that may include a range of circumstances, such as timing, location, and the character and relationship of the offenses. Here, the crimes took place on a single night, in an uninterrupted course of conduct, and at a single location. The burglaries were all intertwined: they were part and parcel of the same scheme, actuated by the same motive, and accomplished by the same means. The history and purpose of the ACCA also supported the Court’s interpretation. Congress added the

B. Armed Career Criminals Act – Defendant’s ten burglary convictions arising from a single criminal episode did not occur on different “occasions” and thus count as only one prior conviction for purposes of ACCA. William Dale Wooden burglarized ten storage units, all in the same storage facility, on the same night. He subsequently pleaded guilty and received ten convictions for burglary. Nearly two decades later, Wooden was arrested for possessing a firearm as a felon. A jury later convicted him for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The Government asked the District Court to sentence Wooden under the Armed Career 49

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Justice Gorsuch filed an opinion concurring in the judgment, joined by Justice Sotomayor as to Parts II, III, and IV. Justice Gorsuch agreed with the Court that crimes taking place sequentially can sometimes happen on a single occasion, but he thought that the Court’s multi-factored test was too uncertain: the long list of factors was not exhaustive, and the Court did not provide any instructions on how to weigh the relative importance of so many factors or how to resolve cases when those factors point in different directions. Instead, Justice Gorsuch would apply the rule of lenity to resolve close or ambiguous cases. Under that rule, any reasonable doubt about the application of a penal law must be resolved in favor of liberty. Because reasonable minds could differ on the question of whether Wooden’s crimes took place on one occasion or many, the rule of lenity demanded judgment in his favor.

occasions clause only after a court applied ACCA to an offender much like Wooden—a person convicted of multiple counts of robbery arising from a single criminal episode. See Petty v. United States, 481 U. S. 1034 (1987). And the purpose of the ACCA is to specifically target and more harshly punish offenders who have repeatedly committed violent crimes. Accordingly, Wooden’s burglary offenses were committed on a single occasion, not 10 occasions. Justice Sotomayor filed a concurring opinion. Justice Sotomayor agreed that the ACCA enhancement clearly did not apply to Wooden’s convictions on this record. She also agreed with Justice Gorsuch, however, that the rule of lenity provided an independent basis for ruling in favor of a defendant in a closer case than this one. Justice Kavanaugh filed a concurring opinion. Justice Kavanaugh joined the Court’s opinion in full, but he wrote separately in response to Justice Gorsuch’s opinion. Justice Kavanaugh noted that the rule of lenity has a limited role in criminal law and rarely comes into play. And, while he shared Justice Gorsuch’s concern for fair notice, Justice Kavanaugh believed that other doctrines that protect criminal defendants against arbitrary or vague federal criminal statutes—in particular, the presumption of mens rea— better addressed the concern.

XII. IMMUNITY CLAIMS ACT

UNDER

THE

TORT

A. In tort case stemming from a fatal accident caused by a suspect who was being pursued by police, City’s government immunity was not waived under the Texas Tort Claims Act. After receiving intelligence that a large amount of marijuana was being stored at a rural property, a drug task force established by the San Antonio Police Department (SAPD) and Bexar County Sheriff’s Office developed a plan to stop potential suspects coming in and out of the property. The plan did not specify what was to be done in the event that a suspect refused to pull over and fled; however, the SAPD’s “General Manual” contains detailed procedures governing vehicular pursuit of such suspects. During the investigation, David Rodriguez entered the property. When he later left, two detectives followed him and broadcast his description and license plate number. They also subsequently broadcast that Rodriguez committed a traffic violation by failing to signal when changing lanes. SAPD Officer Kimberly Kory received the radio communication and activated her emergency lights and sirens after locating the vehicle. Rodriguez initially slowed and seemed to pull over, but he then rapidly accelerated back into the main traffic lanes. Officer Kory pursued him. The pursuit ended in a head-on collision between Rodriguez and a vehicle driven by the Maspero family. As a result of

Justice Barrett filed an opinion concurring in part and concurring in the judgment, joined by Justice Thomas. Justice Barrett agreed with the Court’s analysis of the ordinary meaning of the word “occasion” and its conclusion that Wooden’s burglaries count only once under the Armed Career Criminal Act. But Justice Barrett did not join the Court’s view that Congress ratified the Solicitor General’s brief confessing error in United States v. Petty when it amended the Act to add the occasions clause. In Justice Barrett’s view, the Court’s discussion of the ACCA’s history in relation to Petty depended on two flawed inferences: first, that Congress specifically intended to reject the Eighth Circuit’s initial decision applying the ACCA enhancement in Petty, and second, that it embraced the former Solicitor General’s reasoning for why that decision was wrong.

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the crash, Jimmy and Regina Maspero were injured and two of their children died.

that no such independent ground for immunity waiver exists.

The Masperos sued the City and several individuals, including the SAPD Chief of Police and Officer Kory. The City filed a plea to the jurisdiction asserting immunity from the suit, which the trial court granted. The court of appeals reversed, holding the City’s immunity was waived.

[Commentary: While this (and the case below) is a civil case, it does involve law enforcement and questions of immunity. I have therefore included this and the case below out of an abundance of caution on the off chance that some intrepid practitioner can use it to better his or her criminal law practice.]

The Texas Supreme Court reversed. City of San Antonio v. Maspero, --- S.W.3d ---, 2022 WL 495190 (Tex. 2022) (9:0:0). Writing for a unanimous Court, Justice Lehrmann explained that the plaintiffs’ claims were barred by sovereign immunity. The Texas Supreme Court first addressed whether the Masperos’ claims fall within the Texas Tort Claims Act’s emergency exception. Under Section 101.055 of the Texas Civil Practice & Remedies Code, the Act does not apply to a claim arising from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others. The Masperos argued that Officer Kory had failed to keep her sirens activated throughout the chase in violation of SAPD’s procedures, but the Texas Supreme Court noted that noncompliance with a police department’s internal policy or procedure does not by itself amount to a violation of laws and ordinances applicable to emergency action. The Texas Supreme Court also found no causal nexus between Officer Kory’s failure to use her siren and the accident. Moreover, Officer Kory’s driving was not reckless: she did not chase Rodriguez into an obviously dangerous area or force him into a crash; although she was speeding at times, that was alone insufficient to bypass the emergency exception, and no evidence suggested the speeding itself caused the crash; and Officer Kory’s conduct during the chase indicated she engaged in risk assessment. Accordingly, the Texas Supreme Court held that pursuant to Section 101.055’s emergency exception, the Tort Claims Act does not apply to the Masperos’ claims. Second, the Texas Supreme Court addressed the court of appeals’ holding that the City’s immunity was waived with respect to the Masperos’ claim for negligent implementation of policy, finding

B. City was not required to prove that police officer balanced the need for and risk of activating his emergency lights to prevail in a case challenging the officer’s official immunity under the Texas Tort Claims Act. Armando Riojas was driving his motorcycle on Interstate 37. San Antonio Police Officer Vincent Tristan was also driving his patrol car on Interstate 37 ahead of Riojas, when he noticed traffic suddenly slow down in front of him. To warn motorists behind him, Officer Tristan activated his emergency lights. Because of the sudden traffic slowdown, the car directly in front of Riojas braked. Riojas swerved to avoid a collision but lost control of his motorcycle and fell to the ground. Officer Tristan moved his patrol car to the site of the accident, where a witness approached and accused Officer Tristan of causing the wreck by activating his emergency lights. Riojas refused medical care at the scene and later denied seeing Officer Tristan’s emergency lights before the accident occurred. Riojas sued the City, alleging that Officer Tristan was negligent in turning on his emergency lights. The City filed a plea to the jurisdiction arguing that its immunity from suit was not waived because Riojas’ injuries were caused by other drivers’ actions, not Officer Tristan’s, and because Officer Tristan is entitled to official immunity and therefore cannot be personally liable to Riojas. The trial court denied the City’s plea. The court of appeals affirmed and held that the City failed to prove that Officer Tristan was entitled to official immunity. The court reasoned that the City was required to show that, before activating his emergency lights, Officer Tristan balanced the need he perceived with the potential risk posed by his chosen course of action. In doing so, the court of appeals applied Texas Supreme Court case law involving high-speed chases and other emergency response-situations. 51

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

The Texas Supreme Court reversed. City of San Antonio v. Riojas, --- S.W.3d ---, 2022 WL 495473 (Tex. 2022) (9:0:0). Writing for a unanimous Court, Chief Justice Hecht explained that, in a case involving routine traffic management, the City need only show that its officer acted in good faith—that is, that a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred. The Texas Supreme Court concluded that the City made such a showing. The court of appeals erred to apply the need-risk balancing analysis from City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994) and Wadewitz v. Montgomery, 951 S.W.2d 464 (Tex. 1997) to these facts. The Texas Supreme Court noted that it had declined to expand the need–risk balancing requirement beyond the pursuit and emergencyresponse contexts, and this case was not in the context of an emergency response. Officer Tristan merely turned on his emergency lights to warn approaching motorists of a traffic slowdown ahead. To demonstrate his good faith, Officer Tristan was only required to show that a reasonably prudent officer faced with the same circumstances could have believed that his conduct was justified. Officer Tristan’s affidavit met this test. [The. End.]

U.S. Supreme Court & Court of Criminal Appeals Update Sept. 2021–Mar. 2022

Judge David Newell was elected to the Court of Criminal Appeals on November 4, 2014. The son of Thomas and Linda Newell, David was born at the Bethesda Naval Hospital in Maryland, though he grew up in Sugar Land, Texas with his much taller, older brother, Robert Newell. David graduated cum laude from William P. Clements High School. He earned his undergraduate degree in English with a concentration in Creative Writing at the University of Houston. He graduated magna cum laude, earning University honors and honors in his major. He received his J.D. from the University of Texas School of Law in 1997 before returning home to work in the Fort Bend County District Attorney's Office. He served as an appellate prosecutor for 16 years, first in Fort Bend County and later in the Harris County District Attorney's Office from 2007 until his election to the Court. Judge Newell has twice served as the Chairman of the Editorial Board for the Texas District and County Attorney's bi-monthly journal, The Texas Prosecutor. He also co-authored a regular byline for the journal, "As the Judges Saw It," a column that analyzed and summarized the significant decisions of the Court of Criminal Appeals and the United States Supreme Court. He served repeatedly on the planning committee for the Advanced Criminal Law Course for the State Bar of Texas. And he has presented the Court of Criminal Appeals Update at the Texas Conference on Criminal Appeals, the TDCAA Criminal and Civil Law Update, and the Texas State Bar's Advanced Criminal Law Course. On the Court, he currently serves as the Chairperson of the Court of Criminal Appeals Rules Advisory Committee. He is also the co-course director, along with Judge Barbara Hervey, for the “Robert O. Dawson Conference on Criminal Appeals,” a biennial criminal appellate seminar for the University of Texas School of Law CLE. Judge Newell is board certified by the Texas Board of Legal Specialization in both criminal law and criminal appellate law. He is also licensed by the State Bar of Texas and admitted to practice before the Fifth Circuit Court of Appeals and the United States Supreme Court. In 2013, David received the C. Chris Marshall Award for Distinguished Faculty from the Texas District and County Attorneys' Association. In 2021 he received the Exemplary Speaker Award from the Texas Center for the Judiciary. That same year he was nominated for and elected to membership in the American Law Institute. David and his beautiful wife, Shayne, currently live in the Houston area with their two sons.

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: The Sit Down: Voir Dire Speaker: Frank Sellers 1701 River Run Ste 801 Fort Worth, TX 76107-6498 (817) 928-4222 Phone (817)385-6715 Fax frank@westfallsellers.com Email www.westfallsellers.com Website

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

Blinks to David Ball on Criminal Defense1 Frank Sellers & Weston Mumme I. INTRODUCTION In David Ball on Criminal Defense, David Ball, Don Keenan, and their team seek to reshape the way criminal defense attorneys approach trial. They begin by addressing some of the common problems with defense attorneys’ methodologies. Next, they outline a better approach: the “Rule Out” principle. Lastly, they suggests ways to implement the Rule Out principle at each phase of trial. The following seeks to summarize David Ball’s principles in hopes that you might incorporate them into your trial strategies.

II. PRINCIPLES TO AVOID The initial pages of Ball’s book diagnose some flaws in the ways we currently approach trial. The book focuses on two main issues: undertaking unnecessary burdens and engaging in tug-of-war battles with the prosecution. A. Avoid the “Fatal Defense Error” of Undertaking a Burden The fatal defense error is appearing to jurors as though you have a burden. Jurors will generally assume you are trying to prove something, and telling them you are not accomplishes nothing. Nevertheless, we confirm their suspicions all the time and lead them to believe we have to prove our theory is more viable than the prosecution’s. We say things like “… however, we’ll show you the defendant was not in New York on the evening in question.” 1

Version 2 forthcoming, and will be available for purchase soon.

Statements like this suggest to the jury you are going to prove something, even though your only job is to create reasonable doubt as to whether the defendant was in New York. Worse, if you fail to prove the defendant was not in New York, you’ve deceived the jury and lost credibility. There’s a better way, however, to avoid this pitfall entirely. Instead of resolving to prove certain facts, say, “The prosecution cannot rule out the possibility the defendant might have been elsewhere.”2 This is the Rule Out principle. B. Avoid Tug-of-War with Prosecutors: You Don’t Have to Prove Anything Another mistake defense attorneys frequently make is engaging in tug-of-war with the prosecution: “Trial is not a tug of war between who’s right and who’s wrong. It’s only about whether the Prosecutor can logically rule out every possible reasonable doubt, even the smallest.” 3 Despite widespread use, statements like, “My client did not do it” quickly create “an indelible tug-of-war, instantly and needlessly plummeting your chances of winning down to the pathetic current national averages.”4 Your chances of success will skyrocket if you avoid statements that encourage tug-ofwar. Consider the following example: [Y]ou say, “Two witnesses will say he was not in New York but Boston.” So jurors think you’re trying (and thus required) to prove he was in Boston—when you only need show that the state can’t logically rule out the possibility he 2

DAVID BALL ET AL, DAVID BALL ON CRIMINAL DEFENSE 3 (2016).

Id. at 8.

Id. at 3.

was somewhere other than New York. So instead say, “Two witnesses say he was in Boston. The Prosecutor cannot rule out that possibility.”5

III.

PRINCIPLES TO ADOPT

Instead of engaging in tug-of-war and taking on unnecessary burdens of proof, Ball suggests defense attorneys stick to their only job: “to show that the Prosecutor cannot rule out reasonable doubt(s).”6 A. First, Explain the History of Reasonable Doubt Like many states, since the turn of the millennium, Texas has prohibited explicit definitions of reasonable doubt. 7 Jurors don’t like it, but by examining the historical origin of reasonable doubt, not having a definition works as much for us as it does against us. Historically, reasonable doubt was a demanding burden: “Reasonable doubt” was instituted in the Middle Ages and firmly established by the 18th century to provide the highest possible barrier to wrongful convictions. It initially arose because any trier-of-fact (all of whom were church clerics) who wrongfully convicted— even inadvertently—was going to hell. So “reasonable doubt” obviously did not mean “moderate”; the clerics needed far greater than 5

Id.

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

moderate protection. Further, the primary meaning of “reasonable” back then was “using reason,” not “moderate.” Today, “using reason” remains the first or second definition in almost all dictionaries.8 Our standard is “the highest standard known to any judicial system in the world,” and a historical analysis helps jurors understand that it was designed that was on purpose.9 B. Next, Put Reasonable Doubt into Practical Terms What does reasonable doubt mean? According to Ball, “A reasonable doubt means: (1) that a juror using reason (logic) (2) could believe (3) the doubt might be true.”10 Therefore, a doubt is a reasonable one as long as it is based on reason or logic, and is not vain or fanciful.11 A usable reasonable doubt, however, must also be case determinative: “If the state can convict whether the crime happened at 1 p.m. or at 2 p.m., reasonable doubt that it was at 1 p.m. is irrelevant.”12 Referring to non-case-determinative reasonable doubts as reasonable doubts has the devastating effect of misleading “jurors into thinking they can have

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

Id. at 54.

Id. at 4.

See Williams v. State, 804 S.W.2d (Tex. Crim. App. 1991); See also Mathis v. State, 576 S.W.2d 835 (Tex. Crim. App. 1979); See also Wappler v. State, 183 S.W.3d 765 (Tex. App. ¾Houston [1st Dist.] 2005, pet. ref’d). 11

DAVID BALL, supra note 2, at 4.

reasonable doubts and still convict.” 13 However, as the Tylenol analogy explains below, the size of the reasonable doubt is irrelevant. From opening to closing, your entire goal should be suggesting reasonable doubts and explaining that the prosecutor cannot rule them out. Never let the jurors focus on anything else. Reasonable doubts can come from the evidence itself, an insufficiency of evidence, or from the minds of the jurors themselves. It’s the Prosecutor’s job to rule out every such doubt. Consider the following example: For all we know, the assailant could have been the bartender or anyone else in the bar, or the valet parking attendant from outside, or a passing pedestrian or motorist, or anyone else you can think of who could possibly have been in that neighborhood that night. The assailant might be who the Prosecutor says, but the Prosecutor does not win by showing just one version—when other possibilities favor the defendant. Folks, whenever you can say, “For all we know it could—maybe—have been different from what the Prosecutor says,” it’s a reasonable doubt. The Prosecutor has to rule out every possible “for all we know.”14 So every time there is a legitimate reasonable doubt either because of an insufficiency of evidence or due to the evidence

Id.

Id. at 5.

itself, say, “’for all we know …’ and plug ‘em all in. And encourage jurors to add more of their own.”15 Practice Tip: When you know of a reasonable doubt the state has not dealt with, consider saying nothing about it until closing, when it’s too late for the state to rule it out.16 C. Tylenol: It’s Not the Size that Matters Even the smallest reasonable doubt can win a trial because “reasonable doubt is about logic, not weight.”17 Regardless of size, jurors must accept all reasonable doubts until the Prosecutor proves there is “no logical way for the reasonable doubt to exist.”18 Consider Ball’s Tylenol analogy: If a bottle of one thousand Tylenol capsules might—just maybe—contain one arsenic capsule, you don’t put that bottle in your family’s medicine cabinet, because the one capsule they take could, logically, be arsenic. No way based on reason to rule it out. Would any odds make the danger small enough? One in 10,000 capsules? Or 25,000? Or does it stay a reasonable doubt no matter how many capsules the bottle holds? The arsenic capsule (the reasonable doubt about whether the next capsule you take is safe) does not disappear just

Id. at 4.

Id. at 8.

Id. at 5.

Id.

because the chance of randomly picking it is tiny.19 The Tylenol analogy illustrates why size does not matter in an approachable way that helps jurors grasp the concept of reasonable doubt. D. Affirmative Defenses The Rule Out principle can be used in place of affirmative defenses as well. The mere mentioning of affirmative defenses can elicit biases from jurors. When they hear “’defense by reason of insanity’ or ‘intoxication’ or even ‘self-defense,’ they mainly hear its negative connotations.”20 Instead of allowing the burden to shift to you to prove self-defense, use the evidence to show reasonable doubt about an element of the offense such as intent. Explain to the jurors, “There’s reasonable doubt in two places: first, that he did it, and second, that whoever did it had any wrongful intent.”21 E. Definitions of Burdens Sometimes you cannot avoid taking the burden. In such cases, “you need an accurate and plain-language definition for the jury of whichever burden you have.”22 If your burden is preponderance, try the following: Explain that it means, “More likely right than wrong,” or whatever similar wording the court allows. “More likely right than wrong” has been thoroughly tested and shown to be the most 19

Id. at 5-6.

Id. at 10.

Id.

Id. at 11.

effective possible description, so don’t mess with it unless you have to. … every time throughout trial you mention “more likely right than wrong” (it will be often), place your hands side by side palms up, one hand just a bit higher than the other.23 In the alternative, if your burden is clear and convincing, “[e]xplain that it means, ‘Probable but with reasonable doubts.’ The court should allow this explanation because it accurately differentiates clear and convincing from beyond reasonable doubt.”24 Having a solid, plain-language definition of your burden, however, is only half the battle. You must also mention your burden frequently “or jurors will default to beyond reasonable doubt.”25 Regardless of your burden, the goal is to keep the defining phrase at the forefront of the jurors’ minds throughout the trial.

IV.

IMPLEMENTING THE RULE OUT PRINCIPLE

Implementing the Rule Out principle may be difficult at various stages of trial as judges often resist new principles and methods. They will likely continue to resist “until enough lawyers generate well-researched motions and other arguments to diminish judge resistance.”26 In addition to the critical parts above, try using the following, additional principles and methods when allowed. 23

Id.

Id. at 12.

Id. at 13.

They have been condensed down into bulleted lists for each stage of trial. A. Voir Dire •

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

•

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

•

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

•

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

•

Never interrupt a juror.

•

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

•

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

•

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

Id. at 16.

Id.

•

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

•

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

•

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

•

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

Id. at 17.

Id. at 51.

Id. at 52.

Id. at 53.

B. Opening Statements •

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

•

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

•

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

•

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

•

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

Id. at 27.

Id.

Id. at 26.

Id. at 27.

Id. at 28.

•

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

•

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

•

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

•

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

Id. at 29.

Id. at 27.

Id. at 30.

to do so. If you apply that simple test, your verdict will be easy.”42 C. Testimony •

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

•

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

•

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

Id.

Id. at 31.

Id.

Otherwise their experts automatically have reasonable doubt.45 •

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

•

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

•

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

•

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

Id. at 32.

Id.

Id. at 33.

Id. at 34.

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

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

D. Closing •

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

•

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

Id. at 35.

Id. at 36-37.

Id. at 37.

Id. at 38.

•

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

•

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

•

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

•

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

•

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

Id.

Id. at 38-39.

•

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

•

Explaining (i.e., massaging) the instructions. Do not rely on the judge’s reading of the instructions. They’re usually unclear and always too many … For each instruction that you need jurors to understand, do the following to “massage” it: 1. Select the crucial part of the instruction. 2. Put each selection on its own slide or board. 3. With each instruction, do all of the following before going on to the next one: a. Read it aloud. b. Explain it in plain English. c. Apply the facts to it. Jurors are told to “apply the facts to the law,” but they’re rarely told what that means. So instead of explaining it, show them how the facts apply to each instruction to reveal reasonable doubt.

•

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

•

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

Id. at 40.

Id.

Id. at 55.

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

•

Id.

Voir Dire Proceedings November 4, 2021

REPORTER'S RECORD VOLUME 3 OF 3 VOLUMES TRIAL COURT CAUSE NO. CR53361

1 2 3

THE STATE OF TEXAS

vs.

) IN THE DISTRICT COURT OF ) ) MIDLAND COUNTY, TEXAS ) ) 142ND JUDICIAL DISTRICT

6 7 8

_____________________________________________

VOIR DIRE PROCEEDINGS

10 11

VOLUME 3 OF 3 VOLUMES _____________________________________________

12 13 14

On the 4th day of November 2021, the following

proceedings came on to be held in the above-titled and

numbered cause before the Honorable George G. Gilles,

Judge Presiding, held in Midland, Midland County, Texas.

Proceedings reported by Ann M. Record, CSR, RMR,

CRR, CMRS, CRI, TMR, TCRR, CCR, Certified Shorthand

Reporter in and for the State of Texas by computerized

stenotype machine.

22 23 24 25

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings November 4, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

APPEARANCES MS. LAURA A. NODOLF SBOT NO. 24042348 E-mail: LNodolf@mcounty.com Mr. Andrew van der Hoeven SBOT NO. 24073119 E-mail: AVanDerHoeven@mcounty.com Mr. Eric Kalenak SBOT NO. 11079985 E-mail: EKalenak@mcounty.com Midland County District Attorney's Office 500 North Loraine, Suite 200 Midland, Texas 79701 Telephone: (432)688-4411 Fax: (432)688-4938 Counsel for The State of Texas MR. FRANK SELLERS SBOT NO. 24080305 Westfall Sellers 1701 River Run, Suite 801 Fort Worth, Texas 76107 Telephone: (817)928-4222 Fax: (817)385-6715 E-mail: frank@westfallsellers.com MR. BRIAN CARNEY SBOT NO. 03832275 Brian Carney Law 1202 W. Texas Avenue Midland, Texas 79701 Telephone: (432)686-8300 Fax: (432)686-1949 E-mail: brian@carneylawfirm.com MR. DANIEL W. HURLEY SBOT NO. 10310200 Hurley & Guinn 1805 13th Street Lubbock, Texas 79401 Telephone: (806)771-0700 Fax: (806)763-8199 E-mail: dwh@hurleyguinn.com Counsel for Defendant,

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings November 4, 2021

VOLUME 3

1 2

Voir Dire Proceedings

3 4 5

November 4, 2021

6 7

PAGE VOL.

Proceedings ....................................... 4

Voir Dire Proceedings (Continued) by Mr. Sellers .. 5

Individual Voir Dire Proceedings ................ 190

Jury Strikes .................................... 224

Reporter's Certificate .......................... 237

13 14 15 16 17 18 19 20 21 22 23 24 25

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings November 4, 2021

P R O C E E D I N G S

1 2 3

(Open court, defendant and venire

present)

THE COURT:

Good morning, everyone.

Thank you.

beside them that was occupied yesterday afternoon when

we left?

we'll give that person a little bit more time and see --

So once again we've got -- oh, okay.

Then

that would be -MR. SELLERS:

11 12

Is there anybody here that has an empty seat

Montoya.

THE COURT: minutes.

sorry.

83, Javier

Ms. Rico is here.

13 14

Ms. Rico.

We'll give him a few more

Oh, it's not even nine o'clock yet.

I'm

Go ahead and visit.

(Laughter)

(Break from 8:52 a.m. to 9:00 a.m.)

(Open court, defendant and venire

present)

THE COURT:

Okay.

I jumped the gun

earlier, but I think everybody is here.

question:

them that wasn't empty yesterday afternoon when we left?

24 25

Again, my last

Is there anybody with an empty seat next to

Okay.

Yesterday afternoon when we

concluded, Mr. Sellers was doing his voir dire.

So the

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

proceeding is turned over to him to continue.

MR. SELLERS:

THE COURT:

Thank you, Your Honor. Yes, sir.

VOIR DIRE PROCEEDINGS (CONTINUED)

4 5

MR. SELLERS:

(Venirepersons:

MR. SELLERS:

Good morning. "Good morning")

All right.

That's much

better than yesterday. So I want to start off, kind of something

9 10

that we talked about yesterday.

either do it intentionally or unintentionally, see the

news and look and see what we've been talking about all

week in this trial.

that they either saw the news or couldn't turn away from

it last night about this case?

I particularly turned the

news off.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Anybody here honest enough to admit

VENIREPERSON:

It's human nature.

Good for you, ma'am. I did too. How about you, ma'am? A headline popped up on my

Facebook page and I just swiped it.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

All right.

Didn't read it.

Didn't read it. All right.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Anybody else?

Okay.

Anybody else?

All right.

Mr. Hillis, yesterday

we were talking just a little bit about the publicity

that you've heard and seen and read. VENIREPERSON:

5 6 7 8 9 10

Do you remember?

Are you talking about

publicity? MR. SELLERS:

Well, things you've seen,

heard, and talked to others about. VENIREPERSON: MR. SELLERS:

Okay. And it seemed to be -- and

I could be wrong -- that you were about to tell us that

you had formed some opinions yesterday; is that true?

VENIREPERSON:

Not really an opinion.

Well, maybe my wording wasn't great.

opinions for both sides and just kind of what -- I mean,

I didn't really follow the story.

just saw initial headlines.

I had strong opinions on both sides, and what I meant by

that is I am a supporter of the police.

think that, you know, they're not perfect.

human just like the rest of us.

know about this and -- and it is from the news, but I

didn't just dig into the news.

be careful because --

MR. SELLERS:

I just said strong

The only thing, I

And so what I said was that

But obviously They're

And the little bit I

But -- and I'm trying to

Yeah, I'm not trying to ask

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

you about the facts. VENIREPERSON:

Yeah.

Just the little bit

I saw, I could see myself in that situation.

obviously I thought about that and was like I could see

how that could happen. MR. SELLERS:

And

Let me ask you this

question a little bit different.

Say you sat on this

jury and you're back in the deliberation room and you're

just not sure what to do, do you think that those

opinions that you have formed may in some way, no matter

how slight, affect your verdict in just the slightest

way? VENIREPERSON:

Well, I'm human.

But, I

mean, I would -- I think I would -- knowing what I'm

there to do, I would consciously try to put those aside

and just look at the facts and what I know is the law

and things of that nature. MR. SELLERS:

When people develop strong

opinions, you'd agree that it's sometimes hard to change

those opinions.

VENIREPERSON:

MR. SELLERS:

Yeah, probably. And since you have such

strong opinions, is there a chance that this could

slightly affect your verdict?

VENIREPERSON:

Of course.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

All right.

And so would

you mind if I asked if the judge excused you in this

case?

VENIREPERSON:

MR. SELLERS:

Mr. Hillis, appreciate it.

No. All right.

Thank you,

I won't pick on you anymore.

Ladies and gentlemen, I'm going to ask

7 8

some individual questions.

Some of you who filled out

your questionnaire or the -- I guess the jury

information card online where we get some of the basics

about your occupation and your marital status, that kind

of thing didn't print out right.

kind of blank, and we don't have answers for those.

if y'all would bear with me before I get back into the

substance of this, I just -- I need to talk to a few

people just to get to know them.

everybody?

It just printed off

Is that okay with

(Venirepersons:

MR. SELLERS:

Ms. Lozoya, can I start with you?

VENIREPERSON:

MR. SELLERS:

little bit about yourself.

VENIREPERSON:

MR. SELLERS:

"Yes")

Okay.

Thank you very much.

Yes. All right.

Just tell me a

What do you do for work? I am a personal banker. All right.

Where?

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

All right.

Do you have

I do. How many? One. One kid? And one on the way. And one on the way? Yes. Congratulations.

Are you

Yes. How long have you been

married?

VENIREPERSON:

MR. SELLERS:

Seven and a half years.

married?

How long have you been

children?

Southwest Bank.

doing that?

Going on two years. Good for you.

What does

your husband do?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

He works in the oil field. Oil field? Uh-huh. For who?

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

He works for de la Rosa. Okay.

And what does he do

there at de la Rosa?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Just roustabout. Roustabout? Uh-huh. Okay.

How long have you

lived here in Midland? VENIREPERSON:

MR. SELLERS:

All right.

My whole life. Your whole life.

Thank you very much.

All

right.

didn't get your basic info so that's just kind of what I

needed to know.

VENIREPERSON:

MR. SELLERS:

That's -- we

Okay. Ms. Zoller, I'm just going

to kind of go in order.

You mentioned that you had an

incident in the family.

Is that something you want to

discuss in public or would you rather --

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

No. -- keep it private? Uh-huh. Would you mind if we called

you up at the end to discuss that privately?

VENIREPERSON:

MR. SELLERS:

Yeah. Okay.

Then I'll skip to

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

the next.

Ms. Miller.

VENIREPERSON:

MR. SELLERS:

Yes. You live out in the

country?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I do. All right. I am No. 7.

No. 7.

Sorry.

Y'all just remind me.

don't say a juror number, I'm going to get something

thrown at me.

pit at your place? VENIREPERSON:

14 15

MR. SELLERS:

And I understand that you

were in the Marine Corps.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Yeah, a makeshift

something that we'll shoot into at times.

16 17

So let's make sure I do that. And you have a gun range or a shooting

12 13

If I

I was. Thank you for your service. You're welcome. How long were you in the

Marines?

VENIREPERSON:

MR. SELLERS:

were you deployed anywhere?

Four years. All right.

And where --

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

1 2

MR. SELLERS:

VENIREPERSON:

(Laughter)

MR. SELLERS:

VENIREPERSON: MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

(Laughter)

MR. SELLERS:

24 25

Yes. Gotcha.

Do you have

I do not have children.

Right.

Are they grown?

No, they're 8 and 9. 8 and 9.

Wow.

Uh-huh. And you're their favorite

stepmom.

Common law.

have two stepchildren I consider mine.

Not technically on paper;

children?

12 13

And you're married;

but, yeah, we consider ourselves married.

Okay.

right?

5 6

Japan and

San Diego.

3 4

I was.

Of course.

Okay.

Anything you think I

need to know about you going forward? VENIREPERSON:

I mean, not that I know

of, I mean, that I can think of.

I'm going to be real

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

honest.

I don't know anything about this case.

might be the only one.

MR. SELLERS:

VENIREPERSON:

So I

That's perfect. I really don't know.

The

only thing that I've ever known is what I've learned in

this courthouse.

MR. SELLERS:

VENIREPERSON:

Uh-huh. It's kind of strange that

I don't because evidently from what I gather it's

everywhere, but I don't watch TV.

cable.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON: SignatureCare.

What do you do for work? I'm a nurse. A nurse.

At Midland

No. Where? Currently I work at

It's an emergency center.

MR. SELLERS:

VENIREPERSON:

So -- and I'm busy at

Memorial?

Good for you.

work, and then I have a small farm.

I actually don't have

Okay. And then previously --

I've been there maybe a year and a half.

Previously I

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

worked at Medical Center. MR. SELLERS:

2 3

Thank you for talking to me.

VENIREPERSON:

MR. SELLERS:

Okay.

All right.

Good.

You're welcome. Let's see.

Ms. Bernal,

No. 20.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON: MR. SELLERS:

10 11

No. 20. How are you? I'm doing good. Good.

You checked on your

questionnaire that you know Rosie Rodriguez.

VENIREPERSON:

MR. SELLERS:

She's my sister. That's what we figured.

Rosie Rodriguez is going to be a witness in this case.

You think that maybe this is just not the right kind of

case for you? VENIREPERSON:

17 18

would be biased.

like everybody else.

I mean, she makes mistakes too just

MR. SELLERS:

Sure.

Does she make a lot

of mistakes?

VENIREPERSON:

(Laughter)

VENIREPERSON:

Well, I don't know that I

No, not that I know.

I don't really see her all

that much.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

or four times a year.

MR. SELLERS:

VENIREPERSON: occasions.

Oh, maybe -- maybe three

Thanksgiving. Just, yeah, special

That's about it. MR. SELLERS:

How often do you see her?

It's not too often.

And do you think it would

be difficult to go to Thanksgiving this year if you were

to vote against Rosie Rodriguez?

VENIREPERSON:

MR. SELLERS:

All right.

So you wouldn't

have any problem. VENIREPERSON:

13 14

I don't think so.

I wouldn't have any

problem. MR. SELLERS:

Let me ask you this:

you were back in the jury deliberation room and you

weren't sure which side to pick and the testimony of

Rosie Rodriguez was something that was critical, do you

think that -- no matter how slight, that that could in

some way affect your verdict? VENIREPERSON:

Well, I would have to look

at everything first and then decide.

possibly.

24 25

MR. SELLERS:

Yeah.

It could,

Remember when Andrew

was talking about going to Vegas with all the

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

good-looking girls in the DA's office?

VENIREPERSON:

MR. SELLERS:

Yeah.

VENIREPERSON:

"It could, possibly"

Isn't.

Okay.

Yeah, I

understand what you're saying. MR. SELLERS:

7 8

I do.

is --

5 6

Do you think that in some

slight way it could affect your verdict? VENIREPERSON:

MR. SELLERS:

It could. All right.

And so for that

reason, would you mind if I asked the judge to excuse

you?

VENIREPERSON:

MR. SELLERS:

I would be fine with it. All right.

Ms. Maney, No. 21.

VENIREPERSON:

MR. SELLERS: about you.

Yes. We don't know anything

Talk to me. VENIREPERSON:

Basically I moved here

about two years ago so before the case.

never heard of it before.

MR. SELLERS:

VENIREPERSON:

Thank you,

Ms. Bernal.

So I like had

Before when? Like before jury duty

basically.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

on the news or anything.

you married?

But I haven't seen it like

Tell me the basics.

Are

Kids? VENIREPERSON:

Yes, ma'am.

I don't watch local news.

MR. SELLERS:

Yeah.

So I'm married.

I'm 27, married.

accountant, an auditor but not with the IRS, just for

public and private companies.

We only have two dogs.

(Laughter)

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I work for this firm in

Where did you move from? From Houston. Okay.

What's the firm

called?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

It's called MFA Companies. Okay. But they're just based in

Boston.

the case.

would be biased or anything like that.

I guess -- I mean, I don't know anything about Like, I don't think there is any reason I

MR. SELLERS:

VENIREPERSON:

I'm an

Boston so I work remotely.

Do you own any guns? My husband has a shotgun,

but I literally never go hunting, never use it.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Okay. I don't really go hunting

with the boys or anything like that.

MR. SELLERS:

VENIREPERSON:

Maybe like one time

before.

Have you ever shot a gun?

Okay. But I don't mind if people

do.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

far about what you've heard?

VENIREPERSON:

Sure. So I don't know. What are your thoughts so

Just -- I don't know.

Because we don't know any facts or anything yet.

just like -- you know, I just, like, always want to see

both sides of the story.

I know like accidents can happen.

to hear both sides.

the case so I don't know really my thoughts, I guess, if

that makes sense.

I think that's important.

So I just would want

If you were in my position,

do you think you would be a good juror in a case like

this?

And

I don't really know any facts about

MR. SELLERS:

So I'm

VENIREPERSON:

I mean, I think so just

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

because like I wasn't here at the time.

it's not like I saw it on the news like three years ago

or anything like that.

about it.

able to not know anything beforehand.

positive thing.

I literally like knew nothing

So I feel like in the sense like I would be

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Thank you,

You're welcome. Ms. Lander, No. 22. Yes. You sat on a jury before. Yes. And that was what we kind

of gather the T & T Doughnuts shop. VENIREPERSON:

16 17

Sure.

That's at least a

Ms. Maney.

So like I --

Assault with a deadly

weapon. MR. SELLERS:

up behind his friends and --

VENIREPERSON:

Where the kid was walking

That was a case where

there were a group of kids that had an established

history of playing with airsoft rifles, pistols, and

shooting wads out of shotguns, wad shots --

MR. SELLERS:

VENIREPERSON:

Right. -- where they had modified

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

the shells, taken it out.

long-established history of doing this.

defendant came up onto the location and kids were

already playing.

shotgun, and put a wad shot in it, and shot at one of

the kids playing.

check was there was already a live round.

shot the kid, and then that's what instigated it all.

They had had a

And what he didn't know and didn't

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

17 18

So a reckless aggravated

Extremely. Right.

The kid meant to

shoot the gun; right?

And so he

assault.

And the

He got out of his truck, got a

MR. SELLERS:

Yes. But he just didn't know

what was going to happen when he did. VENIREPERSON:

Which is why we ruled the

way that we did.

MR. SELLERS:

VENIREPERSON:

Right. We didn't find intent

anywhere to harm or to intentionally shoot a live shot,

but we found it reckless to point a gun at a human

being, pull the trigger without intent to shoot them.

MR. SELLERS:

VENIREPERSON:

Sure. You know, to put yourself

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

in a situation was just reckless and dumb.

MR. SELLERS:

Right.

And you could see

how reckless is different -- in that sense is different

than when you intend to protect your home and your

family.

VENIREPERSON:

MR. SELLERS:

Yes. All right.

Tell me

about -- do you have a prior family incident with an ex,

I believe?

VENIREPERSON:

MR. SELLERS:

My former mother-in-law -We can talk private if you

don't want --

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

It's public record. Okay. My former mother-in-law.

I've been divorced from my husband for about ten years

now.

domestic abuse, and we sat through the murder trial for

that. MR. SELLERS:

20 21

About 24 years ago, she was murdered in a case of

VENIREPERSON:

MR. SELLERS:

Was that a shooting

case?

Okay.

No. Okay.

All right.

Anything

else you think I should know about you before I move on? VENIREPERSON:

Remarried to an

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Englishman.

29 years.

over the place.

I've worked for the same company for Dad was in the military.

MR. SELLERS:

4 5

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS: never been.

Germany? Yes. One of the places I've

How are you this

morning? VENIREPERSON:

MR. SELLERS:

I'm good. I noticed -- am I making

you nervous? VENIREPERSON:

16 17

Germany.

Thank you, Ms. Lander.

Where is the coolest place

Ms. Miller, No. 23.

11 12

We've lived all

you ever lived?

I'm always nervous.

It's

okay.

(Laughter)

MR. SELLERS:

Okay.

I noticed yesterday

you seemed to have a relationship with Ms. Lujan over

there.

VENIREPERSON:

MR. SELLERS:

Yes. If Ms. Lujan participated

in this case and she were to go on to argue the case, do

you think that your relationship with her -- you trust

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

her, I imagine.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Okay. We do not have a personal

relation- -- I don't know anything about her personally. It's strictly about her match. MR. SELLERS:

11 12

I talk to her on the phone

once a month for about five minutes. MR. SELLERS:

And you work closely with

VENIREPERSON:

I do.

her at least once a month?

5 6

Right.

You trust her

judgment.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Yes. You trust what she says. Yes. And if she were to get up

and argue the case on behalf of the State, would that

relationship in some way, no matter how slight, possibly

affect your verdict? VENIREPERSON:

I don't believe so.

don't believe I know her well enough to form a

pre-opinion about whether or not what she's saying -- or

whether or not I can deter- -- you know, use my own mind

and judgment to determine what is being said or

contradicted.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

I don't know her so

Yeah, I don't think there

would be an issue. MR. SELLERS:

9 10

Okay.

I'm just asking.

7 8

I don't think there would

be an issue.

5 6

How about going forward, if

you were to vote against her position in this case?

3 4

ma'am.

All right.

Thank you,

I appreciate that.

Mr. Martin, No. 24, what do you teach?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

28 years. God bless you.

My sister

It is. And you're a teacher at

Greenwood.

How long have

does the same work, and it is tough.

All right.

you been doing that?

I'm a special education

teacher.

14 15

Yes. Been there for 20-plus

years also. VENIREPERSON:

Uh-huh.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

VENIREPERSON:

MR. SELLERS:

(Laughter)

MR. SELLERS:

Sorry.

We don't want to

You know, the Heidelbergs

were from the Greenwood area. VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes.

make her mad.

Is that a

"yes"?

All right.

Yes. Do you know them? I do not.

I know people

who do know them, though.

MR. SELLERS:

VENIREPERSON:

All right. Actually, though, the

woman who teaches in the same cubicle with me knows him.

She talked about him.

MR. SELLERS:

VENIREPERSON:

19 20 21

MR. SELLERS:

Sure.

Do they have a sub

for you while you're out? VENIREPERSON:

MR. SELLERS:

Well, yeah, she has a

little bit -- or when it -- more back when it happened.

Talked about the case?

Yes. All right.

And if you were

to be out for two weeks, that wouldn't be an issue. VENIREPERSON:

It is an issue just

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

because it's special education.

have are not -- they don't deal well with change. MR. SELLERS:

The type of kids that I

Right.

And I know when my

sister is out, it causes her children to be, you know, a

lot different when she gets back --

VENIREPERSON:

MR. SELLERS:

-- and to be disruptive

while she's gone. VENIREPERSON:

MR. SELLERS:

10 11

Very much so.

Yes, sir. Is that something that

would be weighing on your mind while we're sitting here?

VENIREPERSON:

MR. SELLERS:

Very much so. All right.

Is that

something that may cause your attention to be not fully

given to this case?

VENIREPERSON:

MR. SELLERS:

Probably. All right.

And is that

something that if you're not giving full attention that,

you know, could affect your verdict? VENIREPERSON:

20 21

I -- it probably would.

it might.

I wouldn't want it to, but

But I wouldn't want it to, but

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Human nature; right? Yes, sir. All right.

And you also

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

said yesterday that you would like to hear from both

sides before you make a decision.

VENIREPERSON:

MR. SELLERS:

law does not require the defense to put on -VENIREPERSON:

MR. SELLERS:

I do. -- evidence or the

defendant to testify. VENIREPERSON:

9 10

Yes, sir. And you know that's -- the

I understand the law on

that. MR. SELLERS:

All right.

And like I

said, you're allowed to disagree with it.

pretty strongly about needing to hear both sides? VENIREPERSON:

Yes.

You feel

I mean, I understand

the law.

to all the facts, though.

would still bother me because I think I would want to

hear from him.

So if the person, you know -- I want to listen

21 22 23

I mean, either way.

MR. SELLERS:

19 20

But it

Bother you if you didn't

hear from him. VENIREPERSON:

Right.

I don't know why.

I just feel that way. MR. SELLERS:

And so for those two

reasons, being out of school and needing to have the

human nature to hear both sides, would you mind if I

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

asked the judge to excuse you in this case?

VENIREPERSON:

MR. SELLERS:

Ms. Teaney.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

(Laughter)

MR. SELLERS:

20 21 22 23

Thank you, sir.

Yes, sir. I haven't talked to you

I don't think so. Maybe a number; right? 29. 29.

No, I said but maybe I

Oh, maybe. A bad question I asked

yesterday.

All right.

got a number from you.

It wouldn't bother me.

any, have I?

Maybe.

I don't remember.

You have a close

relationship with Midland Police Department, don't you? VENIREPERSON:

I would not say super

close, but I do know Chief Herman. MR. SELLERS:

All right.

And your

husband is on track to be the chaplain --

VENIREPERSON:

MR. SELLERS:

Yes. -- for the Midland Police

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Department.

VENIREPERSON:

MR. SELLERS:

Yes. And the chaplain would be

somebody who in a tragic event like this would get up

and speak at a funeral; right?

VENIREPERSON:

MR. SELLERS:

Yes, sir. And so you know

Chief Herman; right? VENIREPERSON:

9 10

MR. SELLERS:

around some other officers.

VENIREPERSON:

MR. SELLERS:

Yes, sir. You probably have been

Yes, sir. And you will probably

continue to be around more officers in the future.

VENIREPERSON:

MR. SELLERS:

Yes, sir. A lot of Midland police

officers plan to testify in this case.

that because of your relationship with your husband and

the Midland Police Department's relationship with your

family, that maybe this is just not the right case for

you?

VENIREPERSON:

MR. SELLERS:

Do you think

Probably not. All right.

And because of

that relationship that you and your family have, is that

something that could in some way, no matter how slight,

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

affect your verdict?

VENIREPERSON:

MR. SELLERS:

It's possible. All right.

And like we

said about going to Vegas with all the girls in the DA's

office, "it's possible" is not good enough.

VENIREPERSON:

MR. SELLERS:

Yes, sir. So would you mind if I

asked the judge to excuse you in this case?

VENIREPERSON: MR. SELLERS:

10 11

All right.

Thank you,

Ms. Teaney.

THE COURT:

MR. SELLERS:

That would be fine.

Mr. Sellers. Yes, sir.

Mr. Layton,

No. 19, if you'll stand up, please. VENIREPERSON:

Yes, sir.

You mentioned

that multiple Midland Police Department will be

testifying.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Not that I know of. Because I do live next to

a Midland Police Department officer. MR. SELLERS:

24 25

Are there any other that

will be testifying that are not on that list?

Yes, sir.

Oh, you put that on your

questionnaire.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

I did. Who is it? I don't know his name.

We've only lived here a year.

He has twin daughters; I have twin boys.

MR. SELLERS:

(Laughter)

VENIREPERSON:

MR. SELLERS:

(Laughter)

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

that list.

type thing.

Uh-oh.

They're the same age too. Uh-oh.

Unfortunately, I don't

Okay. So he could possibly be on

It's just been more, "Hey, how's it going,"

MR. SELLERS:

VENIREPERSON:

Okay. I just wanted to bring

that out. MR. SELLERS:

20 21

I've met him a few times.

know his name.

Keep your kids away from my

kids.

(Laughter)

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Thank you, Mr. Layton. Yes, sir. Let's see.

Ms. Ward,

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

No. 33.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Hi. Hi. Good morning. Good morning. You have one kid. Yes. Boy or girl? Girl. Girl.

27?

Yes. And your husband -Two grandkids and one on

So two grandkids and one on

the way.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Yes, sir.

the way.

16 17

Yes, sir. Congratulations. Thank you. And your husband, you said

he's retired.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes, from Chevron. From Chevron. Yes.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

(Laughter)

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Excuse me? Is your whole family kind

No, I still have my

Okay.

Do you think you

Well, maybe. Why maybe? Well, I hope. What causes you

Well, I need to know more

because I don't know nothing. MR. SELLERS:

24 25

Is your whole family unit

reservation?

22 23

It's okay.

would be a good juror in this case?

How do you like

parents in Romania.

15 16

Awesome.

of in the area now, your kids and grandkids?

13 14

kind of around this area now?

I was born in Romania.

Midland?

Where are you from?

lived in Italy.

4 5

need.

Thank you, ma'am.

That's exactly what we

I appreciate it.

Oh, one more

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

question.

Do y'all own any guns?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

(Laughter)

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

right.

previously owned guns. VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

A lot.

Okay.

Thank you.

Mr. Dickerson, No. 35. Yes, sir. You're the one with the

Hopefully, yes. "Hopefully, yes."

All

You say you

Yes. Tell us about that. When I was growing up,

But you don't own any

anymore?

Yes, a lot.

raised on a farm and we hunted, shotguns.

Do you own any guns?

I just have one question for you.

Excuse me?

good memory; right?

No, sir. All right.

Any particular

reason for that? VENIREPERSON:

Lost an interest in

hunting, and I just don't have a need for one.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Sold the guns. Yes. Gotcha.

Ms. Trevino, No. 36.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

didn't know much about you.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Hi. Hi. How are you this morning? I'm good. Good.

Thank you.

Good.

We just

Okay. Tell me about yourself. I'm a retail manager.

Okay.

We have another

employee of T.J.Maxx here.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Yes.

a store manager at T.J.Maxx here in Midland.

17 18

Thank

you, sir.

All right.

Yes, you do. Do you know her? I do. All right.

Who's whose

boss?

VENIREPERSON:

She's my boss.

VENIREPERSON:

I'm the boss.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

I'm

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

(Laughter)

MR. SELLERS:

You're the boss.

Okay.

All right.

So if

y'all two are on the jury, you're going to be the

foreperson.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON: MR. SELLERS:

If y'all are both on the

Yes.

Sure.

Why not?

And you trust Ms. Hernandez

here; right?

VENIREPERSON:

MR. SELLERS:

What?

jury, you're going to be the foreperson.

Yes. You trust her with the keys

to the store.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Absolutely I do. And the alarm code. Yes, I do. All right.

Married?

Yes. How long? Seven years. Children? No. Okay. Three dogs.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Awesome.

All mixes,

All mixes.

They're all

mutts really.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I have a Snorkie, a

though.

10 11

What kind of dogs?

Chiweenie, and then a mix.

8 9

Yes, the best kind of

children.

The best kind

of kids.

3 4

Three dogs.

I love it. All rescues. Do you think you would be a

good juror in this case?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes. Why? Because I think I would be

able to -- I don't really know a lot.

news.

already.

sides of the story and make a sound judgment based on

the facts.

24 25

I don't watch the

I don't really have an opinion on the case So I think I would be able to listen to both

MR. SELLERS:

All right.

And you said

yesterday that you had to be a hundred percent sure

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

before you would make a decision on beyond a reasonable

doubt. VENIREPERSON:

Well, I would like to

weigh out the -- you know, each side and be able to make

that decision.

the case or whatever it is to make me feel that way,

then I have to make a sound judgment, because you can't

always be a hundred percent.

You know, if you have enough evidence in

MR. SELLERS:

Sure.

VENIREPERSON:

You just can't because you

weren't there.

You can only know what you -- you've --

what has been presented to you.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Right.

Thank you, ma'am.

You're welcome. Ms. Tamez, No. 40. Yes, sir. How are you? I'm good. Good.

We just had a couple

questions.

You mentioned on your questionnaire that

your husband donated to the Midland Sheriff's Office. VENIREPERSON:

You know, back in the day

when they call you and they call you -- troopers.

troopers.

The

The state troopers. MR. SELLERS:

State troopers.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yeah. All right. But I know he hasn't done

it in -- because if you do that, then you have a whole

list of people that call you after that.

MR. SELLERS:

(Laughter)

VENIREPERSON:

9 10

VENIREPERSON:

he did.

that. MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

That's what

He took care of all

Not you, though. I'm not good at that, no. Not good at answering the

Just I have to deal with

all that and pressure. MR. SELLERS:

That was him.

phone?

Okay.

He answered the call.

So he did that for about

And that's been probably about ten years ago or more. MR. SELLERS:

Right.

three years and then after that, he quit doing that.

Yeah. Yeah.

I'm sweet and I'm

just like, okay. MR. SELLERS:

All right.

Yours was one that we couldn't decipher.

All right. What do you do

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

for work, ma'am?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

(Laughter)

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Trucks and --

Dealerships. Okay.

Gotcha.

What does

He owns Bison Towing. Y'all could have a one-stop

Watch out.

All right.

Thank you,

You're welcome. Is it Tamez or Tamez? Tamez. Tamez.

Put the emphasis on

the wrong syllable.

VENIREPERSON:

MR. SELLERS:

Okay.

Ms. Tamez.

I do title

shop before too long.

Uh-huh.

your husband do?

Like the tax

transfers for fleet companies and --

I work at the tax office.

assessor/collector?

5 6

No. 41.

That's okay. All right.

Ms. Ortiz,

How are you?

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

Well, thank you. You've got lots of family

in law enforcement.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Yes. Brother who is retired DPS. Yes, sir. Was he ever a Ranger? No, sir. Okay.

You have a friend

from San Angelo PD who went to Officer Heidelberg's

funeral?

VENIREPERSON:

MR. SELLERS:

Midland PD who did the same?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

You have friends from

My cousin is married to a

Who is that? I don't know his last

name.

MR. SELLERS:

VENIREPERSON:

Yes, sir.

PD officer.

What's his first name? Jared, Garrett, something

like that. MR. SELLERS:

Okay.

When you go to

Thanksgiving, there is going to be lots of police

officers there.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Sure. But -- and he's -Once a member of the thin

blue line always, though; right? VENIREPERSON:

I don't know.

He retired

at his ranch, and he's kind of anti-social so...

(Laughter)

VENIREPERSON:

Well, my brother is

retired. MR. SELLERS:

No, sir. One or two?

my brother.

I see him.

I mean, I see

He lives in Sonora.

THE REPORTER:

THE COURT:

VENIREPERSON: He's retired.

I'm sorry, he lives where?

Speak up a little bit. Sonora.

My brother lives

in Sonora.

them, but I don't have a relationship with them.

my brother, but he's also a man and we don't always

agree on philosophies as to why I have no guns.

weapon of choice is a baseball bat.

(Laughter)

MR. SELLERS:

24 25

And, I mean, I know some of I love

Not on your brother,

though; right? VENIREPERSON:

Sorry?

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

that on your brother; right?

VENIREPERSON:

(Laughter)

VENIREPERSON:

You're not going to use

You know...

Sometimes.

We are

siblings. MR. SELLERS:

Do you think that the

relationship that your family either has or had with law

enforcement and you've been -- having a cousin married

to a Midland PD officer might cause you in some way to,

you know, if you're not sure who to vote for, and we're

talking about a deceased police officer, then it may in

some way, no matter how slight, affect your verdict?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

No. No? My brother was a police

officer for 30 years -- well, over 35 years.

MR. SELLERS:

VENIREPERSON:

All right. You know, we don't agree

on a lot of things.

And I've worked in the legal

business for over 35 years, and we've had to make

choices.

am -- you have to convince me that -- you know, I don't

see as a dead police officer.

died and they're dead.

And I have to base them on what I hear, what I

I see as a person that

And the people that did it or

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

didn't do, because I don't know what happened, they're

having to live with that one way or the other.

So really, that day, two people died.

3 4

And, you know, I'm -- I wouldn't give anybody the chair.

I'm against capital punishment.

guns.

armory out there.

them.

fearful and I had it, I would probably pull the trigger.

And bottom line, I hate

And when I go to my brother's house, it's like an And it's -- they scare me.

I fear

Because if I had a gun and I was scared and I was

And I would feel bad because at the end of the day, two

different families are suffering for -- because of fear.

So I'm afraid. MR. SELLERS:

It's kind of like Mr. van

der Hoeven said yesterday, fear can make you do things

you never thought you could do. VENIREPERSON:

Absolutely.

You know,

again, I don't have any guns.

my wasp spray.

not hesitate to put that wasp spray, you know, in their

eyes and blind them.

the little Catholic, that I feel guilty about

everything, that I feel guilty the day after or the

moment I did it.

24 25

I have a baseball bat and

You know, if someone came at me, I would

And I would feel bad because I'm

But, you know, as far as my decisions, you know, would I be a good juror?

Yes, because I would

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

listen to both the facts.

But I understand both sides.

And police officers are not above the law and -- because

I see them speeding down my street every day, you know.

So, you know, they're human like me.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

The fear you have of guns, is that something that could affect you in this case. VENIREPERSON:

12 13

No -- well, yeah, I guess

it would, my nature would. MR. SELLERS:

14 15

No, no, there is never too

much.

10 11

Possibly too much

information.

8 9

Sure.

I mean, we're talking about

a shooting with a gun. VENIREPERSON:

Yeah.

I mean, I see all

these police officers.

I worked with the DOJ and I see

all those -- I worked there for three months because --

I quit because I saw those guns and I just -- you know,

I don't know what -- you know, am I going to be an

innocent bystander or, you know.

MR. SELLERS:

VENIREPERSON:

I don't know.

Okay. I don't like criminal law.

I can bury ya and I can marry ya and all this other

stuff.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

VENIREPERSON:

Oil and gas lease.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

What's the firm name? Stubbeman, McRae. Yeah.

Stubbeman, McRae,

ask for Nancy Ortiz. (Laughter)

MR. SELLERS:

All right.

So because this

is a case involving a gun and you told us, yes, it

could, you know, affect you.

asked if the judge excused you?

VENIREPERSON:

MR. SELLERS:

Is -- would you mind if I

Not at all. Because I think you would

be a great juror in an aggravated assault with a bat.

(Laughter)

VENIREPERSON:

MR. SELLERS:

mean, I can do your will.

Can sell my oil and

gas lease.

3 4

Okay.

Or a theft case. Or a theft case or a drug

case.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Good old car wreck. Right. You know, but -Not this. No, this is -- I don't

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

read the news.

as much for Mr.

both their families.

because I know this is very difficult because I wouldn't

want to be in the chair.

about whether they testify, you know, I will probably be

a crappy witness too if I got on there and my life was

on the line.

as I do for Mr. Heidelberg and And y'all are in my prayers

And when they were talking

MR. SELLERS:

9 10

I don't even like the news, but I feel

gentleman yesterday who said he said too much.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

(Laughter)

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

everybody involved.

everybody here.

There he is. I would probably confess

I would do that.

But as

far as all this, I'm exhausted.

Yeah.

every sin I did.

You would be like the

Yeah. And, you know, I feel for

And I will go home and pray for

MR. SELLERS:

We'd appreciate that.

Thanks for talking to us, Ms. Ortiz.

Mr. Franklin.

VENIREPERSON:

Hello.

49.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Did you say 49? Yes. All right. Good. Good.

How are you?

You? Thanks.

You're an

AV tech.

VENIREPERSON:

MR. SELLERS:

Yes. How long have you been

doing that? VENIREPERSON:

Since -- two and a half

years though I technically started in high school.

Professionally, it's only been two and a half years. MR. SELLERS:

13 14

All right.

And tell me

kind of what y'all's outfit does. VENIREPERSON:

So basically we set up

microphones and projectors and screens and lighting

stuff for events at the Odessa Marriott Hotel and

Conference Center.

MR. SELLERS:

VENIREPERSON:

Just there? My specific -- that's what

my specific site is.

MR. SELLERS:

VENIREPERSON:

here.

globally.

Okay. So that's just what I do

The company, which is Encore Global, does it

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

(Laughter)

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

I was going to

Do you think you would be a

Probably. Do you own any guns? I do not. All right.

My father does. And any reason

Primary because I also own

airsoft replicas and I do not want to get them confused. MR. SELLERS:

20 21

Oh, okay.

why you don't personally?

18 19

I received a notice, but

good juror in this case?

Ever been called for jury

say you didn't show.

No, sir.

my number was not called to go to the courthouse.

8 9

Have you

duty?

6 7

Okay.

ever sat on a jury?

Right.

Fair enough.

You don't

want the Alec Baldwin situation.

VENIREPERSON:

MR. SELLERS:

Three more and then we'll get back to the

Yes. All right.

Thank you, sir.

meat of this.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Ms. Zamora, No. 52, how are you?

VENIREPERSON:

MR. SELLERS:

I'm great. I'm great.

How are you? Thanks.

You

mentioned that you had a good experience with a lawyer

and a good experience with law enforcement, but you want

to keep it private.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON: MR. SELLERS:

10 11

Is that still the case? Yes, it is. Do you mind if we ask to

bring you up individually at the end?

VENIREPERSON:

MR. SELLERS:

Yes, I do.

pick on you anymore.

That's fine. All right.

Thank you, Ms. Zamora.

Mr. Dare, No. 53.

Then I won't

Anybody ever told you

you have a name that sounds like you're a comic book

hero?

VENIREPERSON:

MR. SELLERS:

No. Bryan Dare.

You drive a

truck?

VENIREPERSON:

MR. SELLERS:

Yes, in the oil field. In the oil field.

your -- I guess your radius of how far you drive,

describe that for me.

VENIREPERSON:

I could drive anywhere

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

from 350 to 500 miles a day. MR. SELLERS:

2 3

that you don't own any guns.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

All right.

You mentioned

No. Have you ever? No. Okay.

Any reason for it?

No. Are you against guns? No. All right.

Are you for

guns? VENIREPERSON:

13 14

opposed to either one.

Not really, but I'm not

It's kind of a toss-up.

MR. SELLERS:

Yeah, I just know a lot of

guys who drive trucks, a lot of them carry guns.

probably know some of them too. VENIREPERSON:

18 19

You

I know a lot of people

with guns. MR. SELLERS:

Yeah.

Especially that, you

know, driving in the open road where you may have to

spend a night in the truck or something like that. VENIREPERSON:

23 24 25

No, that would never

happen with me. MR. SELLERS:

Not to you?

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

baseball bat in your truck?

(Laughter)

VENIREPERSON:

other weapons in the truck.

MR. SELLERS:

picking on you then.

MR. SELLERS:

10 11

No. All right.

You carry a

No, but I've got plenty of

All right.

I'll quit

Thank you, Mr. Dare.

VENIREPERSON:

Thank you. Ms. Lyle, No. 54, how are

you doing?

VENIREPERSON:

MR. SELLERS:

Pretty well.

Thank you.

I just have a quick

question -- a couple, actually.

thing you do is look at the camera when your alarm goes

off.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Yes. Has there ever been a time

when you didn't have the chance to look at the camera?

You say that the first

No. Okay.

Do you have cameras

just like on the front door or are they inside the home? VENIREPERSON:

I have one at the front

door, one in the backyard facing the door.

MR. SELLERS:

Right.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

1 2

MR. SELLERS:

Okay.

You also mentioned

that you know Lieutenant Rackow. VENIREPERSON:

5 6

And then I have one in my

son's room because he's special needs.

3 4

He did a training for us

on an active -- active shooter training.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

At the hospital? No, the health department. The health department.

Okay.

you to favor one side or the other?

Anything about that relationship that might cause

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

limited experience with him?

VENIREPERSON:

MR. SELLERS:

22 23

All right.

Do you think

I have no idea.

I don't

know him.

No.

Lieutenant Rackow is trustworthy?

15 16

You just had a brief,

Exactly. All right.

Thank you,

Ms. Lyle. The last one, Mr. McCright.

Probably

thought I wouldn't pick on you.

VENIREPERSON:

MR. SELLERS:

59. 59.

Mr. McCright, I just

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

want to confirm with you.

belief that

Yesterday you said your is innocent.

VENIREPERSON:

Maybe I should clarify a

little bit.

MR. SELLERS:

VENIREPERSON:

Sure. I probably lean one way or

another.

MR. SELLERS:

VENIREPERSON:

Right. But to be honest, this is

horrible timing for me.

playing on Midland Legacy's volleyball team in the

playoffs.

five o'clock yesterday.

Abilene tomorrow.

15 16

I have a daughter who is

They play tomorrow.

I didn't find out until

They play at five o'clock in

MR. SELLERS:

Well, what you said

yesterday, that you kind of formed an opinion --

VENIREPERSON:

MR. SELLERS:

Right. -- and you also said that

today that you would start, you know, trial probably

leaning one way or the other.

VENIREPERSON:

Right.

And I have family

and friends -- several friends of the deceased, more,

and I've talked to -- in conversations with them, I've

just heard stories.

MR. SELLERS:

Right.

Would you mind, you

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

know, for those few reasons we ask that the judge excuse

you?

VENIREPERSON:

MR. SELLERS:

And your opinions are

pretty strong?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS: All right.

10 11

to the meat of stuff.

get to that baseball game.

Strong enough to --

All right.

I'm going to try to make sure you

Raise your hand if

Let's see, I didn't get to talk to you two over here. Mr. Hodnett.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Thank you, sir.

Now we're going to get back

Strong enough, yes, sir.

you've served on a criminal jury before.

15 16

Yeah.

Prior jury service.

13 14

No.

Yes, sir. No. 12. Yes, sir. All right.

What kind of

case did you serve on? VENIREPERSON:

It's been several years.

I can't really remember.

It's something about a boy

getting with a girl, and they thought he was a little

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

bit older.

it.

And we proved him innocent, and that's about

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Romeo and Juliet type of

Yes, sir, I guess so. Okay.

VENIREPERSON:

I think he did.

MR. SELLERS:

All right.

I don't

Were you the

foreperson?

VENIREPERSON:

MR. SELLERS:

Who else?

Thank you, sir.

How about you, sir?

much.

Mr. Kitch, 26.

Did the defendant

really remember.

12 13

Yes, sir.

testify in that case?

10 11

Found him not guilty.

thing.

No, I wasn't. All right.

Just curious.

We haven't talked

Mr. Martin, is that right -- no, no, I'm sorry,

VENIREPERSON:

26.

Yeah, it was like

five years ago here.

And I think the boyfriend and

girlfriend after a drinking, the boyfriend pointed a gun

at a girl and she denied it.

that he did, and that's kind of how that went.

And the friend testifies

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

A lover's quarrel. Pretty much.

Well, a

drunken quarrel. MR. SELLERS:

Drunken quarrel.

And then

the aftermath is the lovers part where they come to

court and say, no, it doesn't happen.

VENIREPERSON:

MR. SELLERS:

Honor.

THE COURT:

didn't hear the question. MR. SELLERS:

It's public record. Rephrase that or what -- I

Did you find him guilty of

that, I suppose? MR. VAN DER HOEVEN:

THE COURT:

MR. VAN DER HOEVEN:

Thank you, Your

Honor. MR. SELLERS:

MR. VAN DER HOEVEN:

Improper

I'll sustain.

Objection.

question.

Objection, Your

Improper question. MR. SELLERS:

And found him guilty, I

MR. VAN DER HOEVEN:

It did not, right.

suppose?

10 11

What was your verdict? Objection, Your

Honor. THE COURT:

Sustained.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

This is public record, Your

Honor.

THE COURT:

MR. SELLERS:

Sustained. Okay.

I'm going to make a

request.

We know the State has run everybody's prior

jury service and the way they voted in the case and what

the verdict was.

them to turn that over to us. THE COURT:

9 10

We're going to ask the Court to order

Okay.

We'll take that up

once we're through here. MR. SELLERS:

Who here knows anybody who

works in the Midland County District Attorney's Office?

Anybody? Yes, sir, in the back.

14 15

please.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

24 25

Yes, sir. I know Mr. van der Hoeven

Oh, that's right.

Y'all

have been on a men's retreat together. VENIREPERSON:

22 23

Stephen Parker, 150.

as we discussed yesterday.

20 21

Name and number,

I believe so.

I think he

was there. MR. SELLERS:

All right.

We're never

going to get to you.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

(Laughter)

MR. SELLERS:

So I'm going to go ahead to

somebody on this front area, if that's all right.

VENIREPERSON:

MR. SELLERS:

I understand. All right.

And I'm talking

about clerks, paralegals, administrative assistants,

investigators, anybody who works at the Midland County

District Attorney's Office. MR. CARNEY:

Mr. Saunders.

MR. SELLERS:

10 11

Yes, sir.

Mr. Saunders,

No. --

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

No. 76. -- 76. I didn't notice until

yesterday, I know Evans.

through a lot of PR events around town, Junior League.

I think I've seen a few people over there, but I've just

known her a few times but probably said hello in three

years and not much more than that. MR. SELLERS:

20 21

But I think I know her just

All right.

Thank you,

Mr. Saunders. VENIREPERSON:

I would also just like to

disclose.

department for one of the larger companies in town.

I work for -- I'm over the finance and audit

MR. SELLERS:

Right.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

I don't watch the news at

all.

I don't know anything about it, but I think it

does need to go as a disclosure.

donated, and I just went over and sent an e-mail to ask

if we donated anything.

I know about it -- whoever was shot.

money to his family, I guess, afterwards.

larger company.

that was just one of them.

It was to -- tells you how much

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I saw another hand.

VENIREPERSON:

MR. SELLERS: could stay standing.

But we're a

All right. So that's it. Thank you, Mr. Saunders. Yes, ma'am.

Yes, I know Laura Nodolf. All right.

And if you

Tell me how you know Laura.

VENIREPERSON:

We donated some

We have lots of goodwill checks, and

My company actually

Well, we've worked on some

committees in town together specifically for Priority

Midland.

MR. SELLERS:

For Priority Midland?

VENIREPERSON:

THE COURT:

VENIREPERSON:

Priority Midland.

Okay.

What is that?

Well, that was a group of

appointed citizens to discuss what the best -- a list of

what our priorities in the community, what do we care

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

about most.

MR. SELLERS:

VENIREPERSON:

Right. Do we care more about

parks or medical care or education, how do we rank it

and what should we do about it.

MR. SELLERS:

VENIREPERSON:

Okay. And in that process, I

knew her because we were talking about jail diversion

for young people in the jail with Midland Memorial

Hospital to build a mental health facility.

where I came in contact with her.

12 13 14 15

MR. SELLERS:

And that's

Because mental health

people belong in a facility, not a jail? VENIREPERSON:

Yeah, a lot of people in

jail don't belong there.

MR. SELLERS:

VENIREPERSON:

Right. They are really mentally

ill, but we have no place to put them.

going to build -- I think you may have heard it.

Midland Memorial got a grant from the State for

$40 million to start building a mental health facility.

(Applause)

VENIREPERSON:

And so we're

We worked very hard on

that this spring to get the legislature to do that.

Tom Craddock, your representative, deserves a lot of

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

And

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

credit for that.

He works very hard to get it.

going to do it in conjunction with Odessa.

MR. SELLERS:

Great.

We're

Let me ask you

another thing.

politically.

to the Midland County District Attorney's Office?

You seem to be pretty well-connected Do you make -- have you made any donations

VENIREPERSON:

MR. SELLERS:

VENIREPERSON: MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

it.

No. Or to any campaign?

No. For DA. No. Okay.

All right.

Same question to the group.

Did anybody

make a donation to Laura Nodolf's campaign?

I'm not soliciting donations, I can assure you.

(Laughter)

MR. SELLERS:

That's

Thank you, ma'am.

Okay.

Anybody?

Nobody gave any

money to Ms. Nodolf's campaign. All right.

Anybody have family members

or they themselves had interaction as either crime

victims or witnesses in a case with Midland County

District Attorney's Office?

Yes, ma'am.

VENIREPERSON:

122, Sydney Bryer.

I was

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

a victim in a case involving one of my students.

stabbed with a pencil.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON: they did.

Oh, my gosh. I'm fine. Good. It was just on the wrist. Well, that student didn't

Well, that was -- yeah,

They did.

(Laughter)

MR. SELLERS:

I was

know you did jujitsu, I guess.

9 10

They kind of learned that

day. VENIREPERSON:

No, I at the time I --

this was kind of going -- it was a child with severe

mental illness.

was not cognizant of what he was doing, if that makes

sense.

19 20

So part of what happened was that he

MR. SELLERS:

It does.

Who did

you deal with at the DA's office?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

I don't remember. Okay. Like, probably if I saw

the name, but no one on the list was recognizable to me

except for Bailey Mims.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

Right. And I don't remember who

it was. MR. SELLERS:

4 5

All right.

How do you feel

about how the DA's office handled your case? VENIREPERSON:

I respected all portions

of it.

There were some aspects I felt like I wasn't

heard, but I feel like that has to do more with the

understanding of mental health at the time because I was

very much advocating for the fact that my student did

not do it with --

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Mal intent? -- sane intent. Sure. He was not in his mind

when he did it.

I felt like it took a little bit for

that part of what I was saying to be heard. MR. SELLERS:

18 19

remember who you dealt with.

VENIREPERSON:

MR. SELLERS:

ma'am.

And you don't

No. Fair enough.

Thank you,

Appreciate your honesty. I think we've covered all this that we

23 24

All right.

need to cover. Yes, ma'am.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

This is one of those in

the effort of full disclosure.

situation, but I was subpoenaed and testified in a

family court situation over child custody.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

All right.

And you're 23,

23, yes, Susan Miller. All right. And I just felt like I

should disclose since we were talking about that. MR. SELLERS:

11 12

This was not in a DA

Ms. Miller.

want.

That's exactly what we

Thank you, ma'am. Anybody here been a victim of or had

13 14

somebody close with them or that they cared about who is

a victim of a violent crime?

Yes, ma'am, we'll talk.

VENIREPERSON:

MR. SELLERS:

Yes, ma'am, No. 83, is that --

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes. Anybody else?

93, Glenda Lane. Ms. Lane. My daughter was involved

in some serious crime.

She was a victim of several

crimes so -- from several of her boyfriends over the

years.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

VENIREPERSON:

He never actually got

prosecuted for it.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Did those end up in

prosecutions?

3 4

Okay.

Here in Midland? Yes. Okay.

How did you feel

about how that all played out? VENIREPERSON:

9 10

MR. SELLERS:

VENIREPERSON:

It was very frustrating. Okay.

Tell me more.

Basically she ended up

moving back home with us because she was scared to be by

herself or go anywhere by herself.

12 years ago.

injuries from it.

psychologists call it nowadays.

And to this day, she still has traumatic I mean, she has PTSD, as the

MR. SELLERS:

VENIREPERSON:

Sure. She has a lot of problems

in relationships with anybody.

anybody anymore.

Did y'all report it to the

police?

VENIREPERSON:

MR. SELLERS:

She doesn't trust

So it was really awful.

MR. SELLERS:

That was probably

We did. And just nothing ever

happened about it?

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

1 2

At one point we actually

did get a -- it's not a restraining order but --

MR. SELLERS:

VENIREPERSON:

-- a protective order,

THE REPORTER:

Just a moment, please.

A protective order?

yes.

6 7

Sorry, I forgot to plug in my computer.

Okay.

Go ahead.

VENIREPERSON:

Thank you.

But there was a protective

order in place for three years.

time, he would still be following her.

MR. SELLERS:

VENIREPERSON:

But even during that

Did y'all report that? We did report that.

But

then, of course, by the time the police get there, he's

long gone and you can't prove it. MR. SELLERS:

Okay.

Anything about that

scenario -- I mean, this is technically a violent crime

case.

heartburn in a case like this?

Anything about that that might cause you some

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

No. Okay. We also did have a very

close family friend who, ten, almost 11 years ago, was

convicted of murder for his son.

MR. SELLERS:

I saw that.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

And you felt like it was

not handled -VENIREPERSON:

4 5

MR. SELLERS:

VENIREPERSON:

It was

Tell me more about that. The police investigation

was done horribly. MR. SELLERS:

Here in Midland?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Oh, it was awful.

awful.

So, yes.

Midland County. Okay. So -And then the prosecution,

tell me about that. VENIREPERSON:

I found it very hard.

was -- to make sense of how everything worked.

that there were things that should have been admitted

that weren't admitted.

that other people didn't know.

because we weren't there when it happened.

people lied on the stand.

perjury.

said this and that.

it was really very frustrating.

I knew

We knew things about the case We were not witnesses We know that

It was not considered

Nobody questioned them about it.

"You just

You said the exact opposite."

MR. SELLERS:

Did you feel like his

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

lawyer did a good job for him? VENIREPERSON:

2 3

I think his lawyer did the

best job he could have at the time.

MR. SELLERS:

VENIREPERSON:

What do you mean by that? Because our friend

wouldn't really let him go after who he thought were his

friends at the time.

testifying, he wouldn't really let them -- go get the

truth.

Don't just let them lie about it and go on.

But

he didn't push that. MR. SELLERS:

11 12

So when they were on the stand

Okay.

How did you feel

like the DA's office handled the case? VENIREPERSON:

They were very set in

their mind.

They thought that it was one party but both

had colluded basically so they were taking whoever they

could get.

MR. SELLERS:

experience that might cause you to have --

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Yes. Okay.

Prejudgment of the

DA's office here?

Anything about that

Yes. All right.

Mind if I ask

if the judge excuses you? VENIREPERSON:

No, that will be fine.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

All right.

Thank you for your honesty. Anybody else a victim or know

a victim, somebody they care about a victim?

Yes, ma'am.

VENIREPERSON:

Annabelle Rivera, 129.

first husband was murdered when he was 19.

MR. SELLERS:

And you checked you

couldn't be fair in this case because of it; right? VENIREPERSON:

9 10

Right.

No.

I'm married to a law

enforcement. MR. SELLERS:

11 12

husband being murdered.

you're safe.

Well, yeah, that and

You're far enough back I think

VENIREPERSON:

MR. SELLERS:

Other than on television, has anybody

17 18 19 20

Thank you. Thank you, Ms. Rivera.

here ever witnessed or seen a violent crime occur? Yes, sir.

We have two.

He raised his

hand first in the back. VENIREPERSON:

Eric Curtis, No. 94.

Back

when they had Graham's in Odessa, I witnessed a guy get

stabbed in the neck.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

At like the bar Graham's? Yes. Traumatic experience for

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

you?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I was probably about

Pretty close. Yes. Do you know if the guy

No, he did not. He didn't? No. Okay.

Did the police

interview you?

VENIREPERSON:

MR. SELLERS:

Were you far away or close?

lived?

No, sir.

20 feet away from it.

No, sir. Okay.

All right.

Thank

you, sir, for sharing.

Let me start on the front up here.

Yes, ma'am.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

63, Kayla Iskra. Yes, Ms. Iskra? Iskra. All right. I was a CNA and a nurse in

mental health for many, many -- I'm not that old, but

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

many years for me.

many violent attacks.

Never very hurt but -- so...

And I witnessed and was a part of I was attacked several times.

MR. SELLERS:

Did you ever have to defend

yourself?

VENIREPERSON:

MR. SELLERS:

sharing.

minute.

Yes. All right.

Thank you for

We'll probably come back to you here in a

On the second row, I saw a hand.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes, sir, No. 73. Mr. Geerts. Yeah, I'm retired law

enforcement.

MR. SELLERS:

VENIREPERSON:

Oh, yeah. Louisiana State Parks.

I've arrested people.

son.

to interject a Glock into the situation.

interesting situation.

Yeah.

It was involving a fight.

And he decided That was an

Can't bring a gun to a

fistfight. VENIREPERSON:

23 24

I've pulled my gun on a judge's

MR. SELLERS:

21 22

Not when the cop is right

there. (Laughter)

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

VENIREPERSON:

MR. SELLERS:

VENIREPERSON: one.

MR. SELLERS:

Yeah, that day for that

And the law in Louisiana is

a lot like it is in Texas? VENIREPERSON:

10 11

Ever have to pull it

Well, actually it was to defend somebody else.

8 9

No, fortunate on that.

fearing that you might have to defend yourself?

6 7

Ever have to discharge your

weapon?

It's different in some

instances.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Napoleonic Code. Uh-huh. Right. Yes, it is.

But they're

trying -- it sounds like they're trying to modernize it

a little bit.

MR. SELLERS:

this modern penal code.

you for sharing, sir.

21 22

Everybody wants to go to

I know what they mean.

I saw another hand over here.

Thank

In the

back, same experience for you, ma'am?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

No. A different one? Yes, sir.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

people you want to talk to.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS: here.

But if there's other

Well, y'all are kind of far

That's what I mean. I want to talk to over

Anybody over here? Yes, sir.

9 10

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Okay.

enough back over here you're safe.

Robert Combs. Yes, sir, Mr. Combs. I recently had a friend

that was killed by a hit and run.

MR. SELLERS:

VENIREPERSON:

Car accident? Yes.

Reckless.

You know,

the guy didn't have a license, priors, shouldn't be

driving.

MR. SELLERS:

VENIREPERSON:

DWI type of thing? Well, it was a hit and run

so they couldn't prove that last time.

incarcerated now. MR. SELLERS:

22 23

Okay.

But, yeah, he's

How did that

experience affect you? VENIREPERSON:

24 25

Oh, very much so.

A good

friend of mine.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

What were the injuries, if

you don't mind?

VENIREPERSON:

Brain.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Who else over here?

Yes, ma'am.

VENIREPERSON:

I'm sorry about that. Thank you. Thank you for sharing.

Up front, Ms. Miller, No. 7. Rebecca Miller.

Just the

nature of my job, I've seen countless numbers of victims

or the accused as well as patients.

MR. SELLERS:

VENIREPERSON:

Just the nature of what I

do for a living. MR. SELLERS:

15 16

Sure.

Anything about that that

might cause you some problems here? VENIREPERSON:

No, I think that's

probably why I'm good at my job.

aside. MR. SELLERS:

20 21

24 25

Seeing a lot of it so

it's -VENIREPERSON:

22 23

I'm able to set that

I've seen more than you

can imagine. MR. SELLERS:

Yeah, I understand.

Thank

you so much, ma'am.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Who else over here?

Let's move on.

I want to talk about home security

Anybody else?

systems.

security system.

had a home security system that malfunctioned in some

way?

On the question, we asked if anyone had a home By a show of hands, has anyone ever

We'll start over here.

8 9

front.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes, sir. No. 9. Yes, sir. Tell me about it. It was about a month ago.

It goes off in the middle of the night.

of the sensors malfunctioned. MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Just one of the --

Correct. All right.

Thank you for

sharing, sir.

Who else?

Yes, sir.

VENIREPERSON:

Okay.

It was just one

it was just the equipment in the home?

Yes, sir, up

Mr. Lester.

Mr. Layton, No. 19. 19, sorry.

About

three years ago, I was in one of the bedrooms with my

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

kids.

We were just watching TV.

don't know if you would call that a malfunction or it

didn't work properly, but apparently it was reported

that the sensitivity was turned up too high and the TV

actually had triggered the alarm.

MR. SELLERS:

VENIREPERSON:

(Laughter)

MR. SELLERS:

The alarm sounded.

Like it was too loud? My kids, they're loud.

So it wasn't the TV.

Maybe

it was the kids. VENIREPERSON:

Could have been.

It was

the motion sensor that was mounted above the door -- not

motion sensor, a glass break sensor.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

But equipment in the house. Yes. Okay.

You got it fixed?

A technician came down and

lowered the sensitivity and we never had another issue

with it.

that, we did move to Midland -- or back to -- Odessa.

Then roughly a year and a half later we moved to

Midland.

But I do need to say about three months after

MR. SELLERS:

Okay.

Thank you, sir.

Who else?

Yes, ma'am, haven't heard much from you.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

You're next to Mr. -- 45.

There you are.

VENIREPERSON:

Ms. Johnson.

I was changing the trash

and it was kind of -- you know when you get a new trash

bag, you kind of air it out.

MR. SELLERS:

VENIREPERSON:

Sure. I was standing under the

glass break sensor, and it -- apparently the flash of

air, it set off the sensor.

MR. SELLERS:

bag? VENIREPERSON:

11 12

Like when you popped the

Yeah, when you open the

bag.

MR. SELLERS:

VENIREPERSON:

Gotcha. And it set the alarm off.

I did not know that.

Apparently that rush of air, it

thought the window would be broken or something.

don't know.

turn off the alarm and they called and, Is everything

okay?

So it set the alarm off and I had to go

MR. SELLERS:

VENIREPERSON:

All right. So you learn new things

every day.

MR. SELLERS:

Thank you, Ms. Johnson.

Who else?

I saw another hand over here.

Yes, sir.

Is it Mr. Graham?

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

Mr. Eikenbary.

Tell us more.

43. Oh, go ahead, 43.

I'll come back to you, sir.

VENIREPERSON:

(Laughter)

VENIREPERSON:

-- because it

malfunctioned inside the house enough that it became an annoyance.

So it does not malfunction anymore.

(Laughter)

MR. SELLERS:

Well, mine no longer has a

battery in it --

That's one way to fix it,

isn't it?

Yes, sir, Mr. Graham, No. 48.

VENIREPERSON:

48.

Mine is more on when

it would alarm, the calls never came through.

people said when their alarm would go off, it would call

the -- the monitor would call the police for you.

several times when mine went off and there was no calls,

there was no action.

MR. SELLERS:

VENIREPERSON:

I had

Did the police show up? No.

There was no calls at

all.

So I don't have a lot of faith in the monitoring

aspect of alarm systems.

now that I've installed myself that alert me.

I do have cameras in my home But in my

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

experiences, although dated, these are back from -- I

have not had one for quite some time.

in the Houston area, my home -- when I went through the

three-year period that they lock you in once you put the

equipment into the home --

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

(Laughter) VENIREPERSON:

But when I lived

Was it Vivint? No. Oh.

They did that to me.

But I did not renew the

service and have since -- wherever there has been one

installed, I've never activated it with those companies. MR. SELLERS:

13 14

you would.

They inside, outside?

Got it.

Stay standing, if

Tell me about the cameras in your house.

VENIREPERSON:

Outside.

The cameras are

for really just looking for people that are coming to

the home --

MR. SELLERS:

VENIREPERSON:

Right. -- when you have people

that will steal packages and things.

So I have one on

my front door and up towards my garage, the people

there, and in my backyard.

cameras.

don't trust that they won't be used for some other

So it's all external

I don't like cameras in the home because I

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

purpose.

to see when people are coming onto my property.

So I only have things to look outside my home

MR. SELLERS:

Who else?

Let's start over there.

Got it.

Thank you, sir.

Ma'am, next to

Ms. Ortiz, Ms. Zamora -- I'm sorry -- Ms. Hines, 42. VENIREPERSON:

Same thing.

Just right

after we got it installed about five years ago, it just

malfunctioned and went off in the middle of the night

and scared us to death.

And we got a call immediately.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

From? I guess the Vivint people. You got Vivint? Uh-huh. Don't try to break that

contract.

VENIREPERSON:

(Laughter)

VENIREPERSON:

Okay.

And they just said

something was installed incorrectly so they had to come

back out and fix it.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

So it was a hardware issue? Yes. Okay. Yes.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

And I had a trash bag, the

VENIREPERSON:

Shaking?

VENIREPERSON:

Yeah.

went off.

was fine.

Shaking it and it

But I just went and just turned it off and it

MR. SELLERS:

That's why I don't take the

trash out.

(Laughter)

MR. SELLERS:

Thank you.

same thing.

All right.

I'm just kidding.

Thank

you for sharing.

One more.

I do take the trash out.

(Laughter)

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes, ma'am. 54, Wendi Lyle. Ms. Lyle, No. 54, yes. So I am with Vivint.

But

before that, I was with Brinks.

motion sensor too sensitive, and I have little pugs who

like to see out the window.

couch.

down.

And they had set the

So they get up on the

And so I had to have them turn the sensitivity

And then another incident where living in

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

West Texas, you know, you have the wind.

door is not good and sturdy, it kind of, you know, bump

a little bit.

we got a phone call right away from -- and that time it

was Vivint also.

right away and never called the police because we were

just down the street from it.

Who else?

Okay.

13 14

Okay.

on that question. Anybody here have a home surveillance system where there are cameras inside your home? No. 16, Mr. McDonald.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes, sir. Cameras inside. Cameras inside, yes, sir.

So we have a -- it's called a Furbo.

MR. SELLERS:

VENIREPERSON:

Thank you for

I'm going to stay over here just

But

sharing.

It set it off.

Also, we got a phone call from them

MR. SELLERS:

8 9

And so we had that.

And if your

It's for our dogs.

Right. That way when we're away,

we can just throw them little treats.

MR. SELLERS:

(Laughter)

VENIREPERSON:

Right.

Because they like to bark

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

a lot and one of them is real anxious.

And then Vivint

actually gave us one that we put in our garage, which is

inside, you know.

Furbo system gets the majority of our living room but no

other rooms in the house.

But for the most part, it's just the

MR. SELLERS:

And it shoots treats out.

VENIREPERSON:

MR. SELLERS:

Who else, cameras inside?

It shoots treats out, yes. Thank you, sir.

Yes, sir, Mr. Layton.

VENIREPERSON:

Six cameras; four of them

external, one in garage.

Two systems, Arlo and Vivint.

One, Vivint, is in the living room that captures about

60 percent of the kitchen, 90 percent of the living room

and about 20 percent of the formal living room.

MR. SELLERS:

Yes, ma'am.

VENIREPERSON:

MR. SELLERS:

All right.

Thank you, sir.

I also have a Furbo. Okay.

All right.

And that

was Ms. Trevino, No. 36.

VENIREPERSON:

MR. SELLERS:

Who else?

Yes, Ms. Lyle.

VENIREPERSON:

Yes. Thank you, ma'am.

I saw one more hand.

Yes.

I already said

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

earlier that I do have a camera in my son's room.

MR. SELLERS:

VENIREPERSON:

Oh, right, right. Yes, just because he's

special needs.

And sometimes he stops breathing so we

kind of watch to make sure.

come in during the day so I can work.

you know, it gives you more comfort to know that he's

been taken care of. MR. SELLERS:

9 10

at home.

We have a Nanit.

the crib. VENIREPERSON:

And then he has nurses that

Right.

And sometimes,

We have a newborn

So we can see right above

I have two.

So I have the

big one, and then I do have the smaller one.

front and faces him a little closer where I can zoom in

on him. MR. SELLERS:

Right.

It sits in

It seems weird when

you forget that your mother-in-law can see the camera

any time day or night.

(Laughter)

VENIREPERSON:

see it. MR. SELLERS:

22 23

I'm the only one that can

Good.

Thank you for

sharing.

Anybody else, cameras inside their home?

Yes, ma'am, tell us about that, No. 70.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

Dian Gallero, No. 70, yes.

I have a Nest system and I have an indoor camera inside

the back porch where our dogs stay.

going in and out of the house.

they're primarily in that area.

an eye on them when we leave.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

We have doggy doors

So when we leave town, So that's just to keep

Got it.

Thank you, ma'am.

You're welcome. Those of who you have these

cameras inside your home -- Mr. Layton, let's talk to

you.

how long does it take?

When you pull out the app and open the camera app,

VENIREPERSON:

That's the million dollar

question.

If I am in an area with relatively good

signal, anywhere from 15 to 30 seconds before it catches

the live feed.

there for minutes just constantly waiting.

MR. SELLERS:

VENIREPERSON:

And there have been times where I sat

Refreshing, updating. Yes, sir.

Generally, I'm

not -- I don't have any active alarms set for the inside

of the home, it's just for the exterior ones, as well my

Ring doorbell camera.

access quickly.

That's the one where I try to

MR. SELLERS:

VENIREPERSON:

Right. I've informed my wife not

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

to answer the door if anybody comes unless I have told

her X, Y, and Z company is coming over for repair.

MR. SELLERS:

VENIREPERSON:

Sure. And I tend to get really

frustrated if I'm in a bad area or sometimes even at my

place of employment, I work in a metal building, and it

just won't activate. MR. SELLERS:

8 9

So the metal roof sometimes

cause you a problem.

VENIREPERSON:

MR. SELLERS:

Who else has had an experience like this

Yes, sir. All right.

All right.

with their phone or camera?

Yes, ma'am, Ms. Lyle.

VENIREPERSON:

So where I work, they have

several firewalls, and so we have terrible signal, like

one bar.

camera, I have to get up and walk down the hall because

it will just sit there and spin for five minutes.

let it do it five minutes one time just because I was

curious.

low signal, it can take five minutes to -- I guess more

because I never got the signal at that time so I

couldn't see.

So a lot of times if I want to access my

So I have to get up and go out.

MR. SELLERS:

All right.

I've

So if I get

Thank you,

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Ms. Lyle.

Let's move on.

Who here has ever been in a situation

where you had to make a snap decision, a split-second

decision?

Let's start up here, Ms. Zoller.

VENIREPERSON:

My work with kids, if

they're going to run off or they're like not in the

right mind-set, they may throw something.

You know, you

just have to make a split -- just based on their

actions, you know, if they're in their rage or not

thinking straight. MR. SELLERS:

13 14

Sure.

Thank you for

sharing.

Who else?

Yes, sir.

VENIREPERSON:

Nearly every day when

something goes wrong with technology, it's always during

a show.

you're going to fix that.

21 22

You have to make a split-second decision on how

MR. SELLERS:

Sure.

Thank you,

Mr. Franklin, No. 49.

Yes, sir, Mr. McDonald.

VENIREPERSON:

I'm a pipeline controller.

16.

I work in pipeline.

So I monitor it from, you

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

know, remote.

issues and critical alarms that come through.

pretty split-second we have to make a decision.

And so, you know, every day we have

MR. SELLERS:

Yes, ma'am.

VENIREPERSON:

All right.

So it's

Thanks.

Ms. Miller, No. 7. Same.

Just from my job.

I anticipate certain things and other things it ends up

being a split-second decision that could potentially

save someone's life or if I don't act, they could lose

their life.

so... MR. SELLERS:

12 13

So I worked in ICU and ER for many years

A lot of times it's life or

death.

VENIREPERSON:

MR. SELLERS:

It is life or death. Have you ever -- well, you

would agree with me that in those situations you did

what you thought you had to do at the time.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

22 23 24 25

Absolutely. Every time. Every time, yes. All right.

Thank you,

ma'am. Anyone here ever heard the saying that hindsighting is 20/20? VENIREPERSON:

Yes.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

Yes.

VENIREPERSON:

Yes.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Mr. Chelette.

Chelette. Chelette.

If you would

stand and deliver for us.

VENIREPERSON:

MR. SELLERS:

Okay.

30. No. 30.

What does

hindsighting as 20/20 mean to you? VENIREPERSON:

There's multiple meanings

of that.

know, like my decision versus their decision is

hindsighting 20/20 to me.

I mean, it goes -- it's 50/50 really.

MR. SELLERS:

14 15

VENIREPERSON:

Have you ever had to make a

Yeah, in work, right, but

not in a forced way. MR. SELLERS:

18 19

Not in a life or death

situation.

VENIREPERSON:

Yes, sir.

prepared for that situation?

For sure.

MR. SELLERS:

(Laughter)

MR. SELLERS:

You

split-second decision?

16 17

Would I be

We're clear on that.

Hindsighting, you know,

even at work, would you agree with me that there are --

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

maybe something else you could have done but at the time

that was the best decision you could have made.

VENIREPERSON:

Correct.

MR. SELLERS:

Please raise your hand if you agree with

Thank you, sir.

that, hindsighting is 20/20, but you made the best

decision you could at the time.

disagree with that, you know, things ought to be

circumspect and everybody can sit back and think like

Raise your hand if you

Socrates when they make a decision.

Anybody ever had a

decision that they made that they thought was the best

at the time but later turned out to be the wrong one?

Yes, sir, Mr. Layton.

I'll come to you next, sir.

VENIREPERSON:

I was -- I mean, that's

just kind of an everyday-type thing.

a lot of times we recommend something, and it turned out

it wasn't the right suggestion.

when we go grocery shopping.

items to save some money and it turned out it was rancid

meat and we were like crap.

(Laughter)

MR. SELLERS:

24 25

wanted ranch.

I mean, in my work

So, I mean, we do that

We want to buy the on sale

You thought your wife

You get home and she wanted blue cheese. VENIREPERSON:

Exactly.

So it was more

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

of not a strong as it was just general.

should have raised our hands at that point.

done something that we -- after we later thought about

it should have been different. MR. SELLERS:

We probably all We've all

Can you see when people are

making split-second decisions, that sometimes they don't

have time to be, whatever the synonyms that are -- none

of those words are in the statute, by the way.

the synonyms and antonyms you've given me yesterday are

None of

going to be in the Court's jury instructions.

That's

word play, okay?

The law

says:

An objectively reasonable person standing in shoes at the time he made a split-second

13 14

That's not what the law is.

decision.

Is everybody good with that?

VENIREPERSON:

MR. SELLERS:

Yes. All right.

Let's talk

about self-defense, and speaking of split-second

decisions, I want to ask y'all some of your views and

opinions.

about a situation where a person was acting in defense

of themselves or with self-defense to protect either

themselves or somebody else?

situation like that?

on.

Has anyone on the panel ever heard or read

Anybody ever heard about a

I want to talk about it so come

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

1 2

Can you say that one more

time, please? MR. SELLERS:

Have you ever heard or read

about a situation where someone had to act to defend

themselves or to defend others?

anything about that?

Have you ever heard

Yes, sir, Mr. Wiesenfeld.

VENIREPERSON:

9 10

Wiesenfeld, 50.

a guy called Kyle Rittenhouse right now.

There is

He's on trial

so...

MR. SELLERS:

that's certainly one thing.

Who else?

Yes, ma'am.

VENIREPERSON:

Yep.

Kyle Rittenhouse,

This is kind of going back

to where you were before but --

MR. SELLERS:

VENIREPERSON:

No. 40, Ms. Tamez. Back when I first got

married, I moved to Ranchland Apartments, when they

were -- they were one of the best ones because they had

the little pad on it and everything.

I was home, and I

had a consistent day off every week.

And I had -- I was

23 years old.

in the shower one day.

I looked up.

Always lived with my mom and dad.

I was

I had closed the bathroom door.

You know, I'm tall.

I can look over

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

everything.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

How tall are you? Six foot. Wow. So I can see that that

bathroom door was cracked, and it was not supposed to be

cracked because I don't take showers -- I don't do that.

When I looked up, there was a figure -- a shadow of a

figure.

My split-second decision is I'm totally

defenseless.

No, I grabbed my razor.

That's all I had.

I thought, I'm fixing to get raped.

supposed to be locked, and it was locked.

The door was

My husband that left for work that day

13 14

did not do the panel because he didn't know I was there

and, you know, we figured it was a maintenance guy, knew

how to get in, knew my schedule.

was probably in the shower.

mean, he ran off after I realized, you know, there was

someone there.

had was a razor so -- and there was actually somebody

there, but he left.

about it after you passed on.

But when I got out -- I

But a split-second decision was all I

But that was -- I just thought

MR. SELLERS:

VENIREPERSON:

So he got lucky that I

So I'm sorry. No, that's perfect. It was a split decision,

and that's all I had to do.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

Thank you for sharing that.

Yeah, very scary.

Who else?

VENIREPERSON:

MR. SELLERS:

Who else?

All right.

Let me change up the scenario

a little bit.

Yes, ma'am.

VENIREPERSON:

THE COURT:

MR. SELLERS:

Your Honor, she needs to

VENIREPERSON: restroom.

I need to use the

Sorry. THE COURT:

18 19

else does too.

moving.

I can't hear you.

use the restroom.

16 17

I'm sorry, I desperately

need to use the ladies' room.

Heard or been

involved in a situation.

8 9

It scars you for the rest

of your life.

6 7

Okay.

Then probably somebody

So let's take -- I see lots of heads

Then let's take a 15-minute recess. While we're in recess, do not talk about

the case among yourselves, with third parties, or let

third parties discuss it in your presence.

attention away from media coverage, and do not use any

type of electronic device to access, to send out, or

Divert your

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

receive any information about this case.

Thank you.

(Break from 10:17 a.m. to 10:36 a.m.)

(Open court, defendant and venire

present)

THE COURT:

Okay.

Is there anybody that

has an empty seat next to them now that wasn't that way

15 minutes ago when we took a break?

everybody is back.

Then it looks like

Mr. Sellers.

MR. SELLERS:

When we stopped for the break, I was

Thank you, Your Honor.

asking:

Has anyone here ever been in a situation,

whether it's a schoolyard fight to a bar fight or even

defending our country, that they had to act to defend

themselves or to defend someone else?

Yes, ma'am.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Show of hands.

Ms. Ortiz. 41.

I was at a bar --

I'm listening. -- and there was a fight.

And a girl came in to get into the fight, and I grabbed

her by the hair and pulled her out of the way.

(Laughter)

MR. SELLERS:

24 25

You grabbed her by the

hair? VENIREPERSON:

Yes, I did.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

baseball bat. VENIREPERSON:

3 4

MR. SELLERS:

You had to make a

split-second decision. VENIREPERSON:

7 8

No, sir, I used

(indicating).

5 6

You didn't use your

Yes, sir, because it was

not going to be a fair fight. MR. SELLERS:

VENIREPERSON:

Who won? Well, not the one -- the

third party was not involved because I made sure it was

the fair fight between the two gals who were fighting.

MR. SELLERS:

VENIREPERSON:

Ah. So the third gal was

coming in and I saw her coming in, going to go help her

friend, and then I knew it was going to be unfair.

grabbed her by the hair and pulled her back and said,

"No."

And I'm not a fighter.

(Laughter)

VENIREPERSON:

MR. SELLERS:

Who else?

So I

I'm more of a runner.

So that was it. Thank you, Ms. Ortiz.

Who else in a situation where

they had to defend themselves or somebody else?

Yes, sir, on the very front row.

VENIREPERSON:

61.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

Mr. Smith. I'm not really going to

talk about specific situations, but I was in the Army

for a long time.

spent a long time in Iraq.

self-defense or split-second decisions, life and death.

I spent a long time -- in infantry.

MR. SELLERS:

So there's been a lot of

Any time where you had to

make a split-second decision, you later look back and

say, Maybe I could have done that a little differently?

10 11 12 13

VENIREPERSON:

MR. SELLERS:

I mean, things

Did what you thought you

had to do at the time. VENIREPERSON:

MR. SELLERS:

Uh-huh. All right.

Thank you very

much, Mr. Smith, and thank you for your service.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yeah.

happen when you're tired or just in those situations.

Thank you. Yes, sir. 73.

Same thing when I was

a police officer with Louisiana State Parks.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Who else?

Yes, ma'am.

You told us.

Same deal?

Yes. Thank you, sir.

No. 70.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

I ran as an EMT for

five years.

you're safe, in addition to split decisions, life and

death situations.

So, yes, a lot of self-defense, making sure

MR. SELLERS:

Any times when you look

back and think, I made the best decision I could but

maybe I could have done it differently?

VENIREPERSON:

MR. SELLERS:

Absolutely. All right.

Thank you,

ma'am.

Who else?

Yes, sir, Mr. Kendrick.

VENIREPERSON:

108.

I was a cyber

operations officer in the Air Force, and that's like

every day.

16 17 18

MR. SELLERS:

Every time you look at the

screen it's a split-second decision. VENIREPERSON:

always do something better.

MR. SELLERS:

VENIREPERSON:

Every time it's -- you can

Thank you for your service. After action report, you

can always do something better.

MR. SELLERS:

Who else?

Yes, ma'am.

Right.

Thank you, sir.

You lead quite an

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

100

interesting life. VENIREPERSON:

I do.

122, Sydney Bryer.

Well, so for five years I worked with children with

mental illness and trauma.

that and stepping in to stop a child from attacking

another child or attacking another adult or to protect

myself from a child who was attacking me, one time to

prevent a parent from attacking their child. MR. SELLERS:

9 10

So a lot of it is related to

Prevent a parent from

attacking their child?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes, sir. Wow. And so I had to step in to

de-escalate that situation.

question of:

multiple times when I sit and look back and, yes, I did

exactly what I believe was the best I could at the time.

But, yeah, thinking back on it and realizing, you know,

when I was stabbed, like if I had checked the ground, I

wouldn't have been stabbed or if the person who was with

me hadn't had left, I wouldn't have been stabbed.

did the best I could at the time.

24 25

Could I have done better?

MR. SELLERS:

And for your follow-up There are

But I

Dealt the cards you were

played. VENIREPERSON:

Exactly.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

Played the cards you were

dealt.

VENIREPERSON:

MR. SELLERS:

101

Yes, I did. All right.

Thank you,

ma'am.

VENIREPERSON:

MR. SELLERS:

Thank you. Who else?

Anybody here

ever -- anyone here on the panel think it's just wrong

to defend yourself if you honestly believe you're about

to be hurt?

VENIREPERSON:

No.

VENIREPERSON:

No.

MR. SELLERS:

Okay.

Anybody?

No.

I want to ask, you know, each of

you this.

If you honestly believe that someone is about

to seriously hurt you and you could not get away, would

you defend yourself?

VENIREPERSON:

Absolutely.

VENIREPERSON:

Yes, absolutely.

VENIREPERSON:

Yes.

MR. SELLERS:

22 23

Anybody here who wouldn't?

Anybody? All right.

closer to the end.

agree with this statement:

Now you know we're getting

How strongly do you disagree to A person may use deadly

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

102

force if they reasonably believe their life or the lives

of others are in danger?

if they reasonably believe their life or the lives of

the others are in danger.

strongly agree.

A person may use deadly force

Zero, I disagree, to ten, I

Let's start with No. 1.

VENIREPERSON:

MR. SELLERS:

No. 2. VENIREPERSON:

10 11

Eight. Eight.

Life being on the line,

ten.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

No. 3. Seven. No. 4. Ten. No. 6. Nine. No. 7. Ten. No. 9. Ten. No. 10. Ten. No. 11. Ten.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

8 9

No. 12. Ten. No. 13. Ten. No. 14. Ten. You're not just saying that

because they said it, are you? VENIREPERSON:

MR. SELLERS:

No. 15.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

103

No, I agree. All right.

Ten. No. 16. Nine. No. 17. Ten. No. 18. Ten. No. 19. Ten. No. 20. Ten. No. 21. Ten. No. 22.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

(Laughter)

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. 23. Ten. 24. Eight. 25. Ten. 26. Nine. 27. Nine. 29. Ten. And 11 is not an option. Ten. I figured.

31. Ten. 32. Ten. 33. Nine. 34. Ten.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

104

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

35. Ten. 36. Ten. 37. Ten. 38. Ten. 39. Ten. 40. Ten. 41. Ten. 42. Ten. 43. Ten. 44. Ten. 45. Nine. 46. Ten. 47.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

105

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

48.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

(Laughter)

MR. SELLERS:

Ten. 46 is ten.

47 is ten.

Ten. 49. Seven. 50. Ten. 51. 9.5.

You gotta pick -- well,

whole numbers only.

VENIREPERSON:

MR. SELLERS:

52.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. Ten.

Ten. 53. Six. 54. Nine. 55. Nine. 56. Ten.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

106

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

57.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

10 11

MR. SELLERS:

Thank you, ma'am.

Eight. 58. Nine. 59. Ten. 60. Ten. I'm going to keep going.

want to hear everybody.

No. 61.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

107

Ten. No. 62. Nine. 63. Nine. 64. Ten. 65. Eight. 66. Eight. 67. Nine.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

No. 72.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

76.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

79.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

83.

68. Ten. No. 70. Ten. Thank you, ma'am.

Ten. 73. Nine. Thank you, sir.

Ten. 77. Nine. Thank you, ma'am.

Eight. 80. Ten. 81. Nine. 82. Ten. Thank you, sir.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

108

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

87.

VENIREPERSON:

MR. SELLERS:

Ten. 85. Ten. 86. Ten. Thank you.

Nine. Thank you, ma'am.

89.

VENIREPERSON:

MR. SELLERS:

Ms. Grover.

VENIREPERSON:

MR. SELLERS:

91.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Mr. Curtis, No. 94.

VENIREPERSON:

MR. SELLERS:

Seven. Thank you.

Nine. No. 90.

Ten. 92. Ten. 93. Ten. Thank you, ma'am.

Ten. 95.

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109

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. 96. Ten. 97. Nine. 98. Nine. 99. Ten.

MR. SELLERS:

100.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

THE COURT:

Ms. Lozano, No. 105.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Ten. 101. Ten. 102. Ten. 103. Nine. 104. Ten.

Thank you, Ms. Underwood.

Five. 106. Nine. 108.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

110

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. 109. Ten. 110. Ten. 112. Ten. 113. Ten.

MR. SELLERS:

115.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

117.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Mr. Weeks, No. 118.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. 116, Ms. Ramos. Ten. Thank you.

Ten. I'm sorry? Ten. Thank you.

Ten. 119. Ten. 120. Ten.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

111

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

123, Mr. Rickman.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

131.

VENIREPERSON:

MR. SELLERS:

121. Ten. 122. Seven. Thank you.

Nine. 124. Ten. 125. Nine. 126. Nine. 127. Nine. 128. Ten. 129. Ten. 130. Eight. Thank you, sir.

Nine. 133.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

112

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

134.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

113

Ten. Thank you, Mr. Bennett.

Ten. 135. Eight. 136. Five. 137.

VENIREPERSON:

Ten.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Mr. Villanueva.

VENIREPERSON:

MR. SELLERS:

144.

VENIREPERSON:

MR. SELLERS:

138. Ten. 139. Ten. 141. Ten. 142. Ten. Thank you, Mr. Hammontree.

Ten. 143.

Ten. Thank you, ma'am.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

145.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

114

Ten. 146. Nine. 147. Ten. 148. Ten. 149.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Who here has ever heard of the phrase "a

And 150. Ten. All right.

Thank you all.

man's home is his castle"? Ms. Rosacker, we haven't talked this

16 17

morning, have we?

that before?

Not very much.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten.

Have you ever heard

Oh, yes. What does that mean to you? That means -- or a woman's

castle.

MR. SELLERS:

(Laughter)

VENIREPERSON:

Or a woman's castle.

That I'm in a -- it means

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

115

that I'm going to protect my home no matter what I need

to do.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

One must protect his house. Yes. Okay.

Do you know where it

comes from? VENIREPERSON:

Well, I do not.

I would

say because there is a castle in it, probably medieval

times. MR. SELLERS:

10 11

is?

front of his --

It may be this guy with a lean-to standing out in

VENIREPERSON:

13 14

Does it matter what home it

I guess even if your home

is a box, you could say that was yours. MR. SELLERS:

Right.

The place you lay

your head at night, you ought to feel safe.

VENIREPERSON:

MR. SELLERS:

Who else?

Castle doctrine, what does it

Mr. Chelette, tell us what it means to you.

It's go time.

(Laughter)

VENIREPERSON:

Thank you, ma'am.

mean to you?

21 22

Yes.

That is my house.

Yeah, that's my domain.

Anything that -- you know, that's --

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

116

it's mine.

Like, I'm protecting it 100, no matter -- it

doesn't matter.

like anything else around my, you know, vehicle now is

considered part of that as well.

That's mine.

It's my domain.

Just

MR. SELLERS:

Anybody ever heard that Texas has the

Right.

strongest castle doctrine law in all of the 50 states?

VENIREPERSON:

MR. SELLERS:

Yes. Yeah.

So strong, in fact,

that a person is protecting their house, they are

actually presumed -- presumed to be reasonable in using

deadly force to protect it.

but against an attempted -- an attempted unlawful entry.

Not just against an attack,

So like Ms. Tamez, who told us that she

14 15

actually saw somebody in her house, you don't have to

wait until somebody is in your house to use deadly force

to defend it. Does that bother anybody?

That you think

you ought to identify who is coming in your home,

announce yourself before you use deadly force?

feel that way?

you just shouldn't use deadly force to defend your home?

23 24 25

Anybody

Anybody have a problem with, you know,

How about you, sir?

We haven't talked

today, Mr. McNew. VENIREPERSON:

Yes.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

feelings about this?

What are your thoughts and

No. 4.

VENIREPERSON:

No. 4.

THE REPORTER:

Stand up, please.

MR. SELLERS:

117

I'm sorry.

I won't pick on

him again. VENIREPERSON:

I don't know if it's

appropriate to share this or not; but, yes, I do.

December 16th at 8:30 p.m., I'm fighting the flu and

just getting over it.

I lived at Midland -- corner of

Midland Drive and Nelson.

smoker then and get a pack of cigarettes.

back 15 minutes later and my glass was broken by my

door.

I went to the store.

And my door is open.

I was a

And I came

Somebody has gained entry.

You know, it's -- you have a Christmas

15 16

tree set up and you have presents and you really --

those things happen to other people.

to you.

had an atrium that you had to go through because it's

kind of a horseshoe shaped house.

the front door, if you go out of the kitchen door, then

you're blocked in the garage.

They don't happen

And it's -- the way that my house was set up, I

You either go through

But if you go in that atrium, you can't

get out because I've got locked gate going to the pool

and there is a wisteria coming in.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

118

But I'm walking in the door, and I just

1 2

see Christmas presents just shredded, and my whole

living room is trashed.

know who it was earlier that said I'm not a fighter, but

I remember my last fight was in the fifth grade with a

guy named Mitch Henderson.

And I'm actually -- I don't

(Laughter)

VENIREPERSON:

So I'm standing in the

doorway just inside the little foyer, and there is a

figure that comes at me in the dark.

And I promise you,

y'all, you know, you get cornered, I couldn't get out.

I couldn't get out of the way. And long story short is God gives you

13 14

miraculous strength, you know, and I subdued this kid,

and then I probably did an overkill because he defecated

his pants.

(Laughter)

VENIREPERSON:

And when I called 911, he

was screaming, "He's going to kill me.

kill me.

He wouldn't shut up.

He's crazy."

He's going to

I kept telling him to shut up. I'm on the phone.

(Laughter)

VENIREPERSON:

So I broke this hand on

him (indicating).

It went off the side of his jaw.

had him face down on the foyer on the tile floor.

I He's

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

told me, "I'll give you back all your stuff."

got my stuff.

119

I've done

So anyway, it -- you know, no time to

3 4

react because I promise you, if I had had time to react,

I'd have beat him out the front door, you know.

react and you do what you've got to do to survive or

protect your castle. And I'm going to expand a little further.

8 9

But you

The cops came, and I know Mike Smith at Mid Tex doors

and windows.

He came that night and put my pane back in

the window.

had cops and detectives, and they took the boy downtown.

And the next day a detective called me -- and I couldn't

tell you his name now.

And, of course, we had a crime lab and we

It's a lot of years.

But it turns out this boy is 16 years

15 16

old, and I want to file charges on him.

arrested.

so they did a plea bargain with me.

won't file charges on him, he will go to the boot camp.

Well, the bottom line is, he's 16 years old He says, If you

Y'all remember when the boot camp was a

20 21

I want him

big deal?

VENIREPERSON:

Yes.

VENIREPERSON:

He agreed to go to the

boot camp.

This kid was 16 years old out of Big Spring,

had a three-page rap sheet for burglaries.

So because

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

120

he was 16 years old, he was going to file charges on me

for assault on a minor.

That's one of them deals where it's dark and you

really -- you just see an outline, and it's -- you don't

have time to say, "Wait.

Oh, no, he broke into my home.

Wait.

(Laughter)

MR. SELLERS:

Don't sit down.

down.

Wait.

We're not done.

You looked comfortable once you sat

I don't want you to sit yet.

Ma'am.

VENIREPERSON:

MR. SELLERS:

How old are you?"

You heard.

Yes. What was your name again?

I'm sorry, Ross?

VENIREPERSON:

MR. SELLERS:

Grover. Grover. You heard

Ms. Grover say, If someone comes in my house my alarm

goes off, I'm calling 911.

that?

What do you think about

Did you have time to call 911 there? VENIREPERSON:

I'm sorry, y'all, I've got

to stop the threat.

My family and kids there, my wife.

I mean, you know, I live out in the country and the

Internet is bad where I'm at.

You know, we had four little granddaughters come and

spend a lot of time with us.

don't have an alarm system.

I've got granddaughters.

But, you know, you -- we Because by the time they

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

could get there, everything is already done and over

with.

go.

121

And we don't know if the Internet signal would

So my wife was against guns totally.

And

there was an incident, I believe, it connected where two

guys did a home invasion.

home invasion on a home.

didn't own a gun.

daughter and 11-year-old daughter.

They escaped, and they did a And it was a doctor, and he

Beautiful wife, beautiful 14-year-old Y'all, this may be a

little graphic for you, but this is just -- this is the

world we live in today.

basement, and one of them took his wife to the bank.

And it's like, you know, you're going to give us some

money.

And the husband, they beat him up pretty good, put him

in the basement and tied him up pretty bad.

They tied him up in the

And this guy is back here with your daughters.

And -- but the guy come back with the

17 18

mom, the other guy had raped and sodomized the

11-year-old.

he raped the mom and then they raped the 14-year-old and

then they killed her.

Does anybody remember this story?

And the other guy says, well -- in fact,

And they set the house on fire.

VENIREPERSON:

Yes.

VENIREPERSON:

The husband, he got loose

and he was able to get out.

He was able to identify

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122

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

them.

But I had my wife watch this when the story come

up on the TV and I told her, I said, Okay.

went in and I -- you know, I caught a burglar in my

house one time.

Those guys

So when people break in your house, they

5 6

generally know who is there and who is not.

And if

people are there, it's because they have another agenda,

not just taking your stuff.

He waited until I left, you know.

This kid watched my house.

But you -- I truly believe this.

If that

man would have taught his wife and two daughters how to

shoot a gun and they had just one pistol in that house,

one of them -- because it was two men -- one of them

could have gotten to the gun and saved the family.

think they would have had a chance.

After I showed my wife this and I said,

16 17

Okay.

I work a lot.

I'm gone at night.

What are you

going to do if somebody breaks in out here and we've got

our granddaughters here, they know you're here.

going to let them tie you up and you have to watch what

they do to our granddaughters?

Are you

She said, No, I'm not.

My wife and I are very strong believing

Christians.

We have a strong faith.

to shoot, and she doesn't conceal.

I taught her how She's 68 and I'm 67,

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

even the more reason for us to be able to defend

ourselves now.

123

We have noises from time to time,

3 4

probably two or three times a year.

And she may wake me

up, "I heard something.

my Glock off the nightstand.

shot Smith & Wesson airweight hammerless snubnose, and

she stays a doorway behind me.

take me out, maybe she can get them.

I heard something."

And I get

She gets her little five

And that way if they She's a good shot.

She doesn't have any problem with defending our home or

our grandchildren or our family.

MR. SELLERS:

VENIREPERSON:

And neither do you. I don't.

But I'm going to

tell you I feel sorry for the Heidelberg family, and I

feel sorry for these guys.

gun on anybody.

was.

there is just -- you know, we watch people.

guy was pretty strange in his demeanor.

I both felt it.

have to.

I've never had to pull my

Maybe a couple of times I thought I

We were at the park walking the dog the other day, And this

But my wife and

But it's not -- I pray to God I never

I've rehabbed homes and I've done some

ministry work, volunteer at the Teen Challenge, but I

tell people I'm -- my wife and I are Christians, but

we're probably the worst kind because we're

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Bible-thumping, gun-toting Christians.

(Laughter)

VENIREPERSON:

And if you try to hurt my

family or take something, I will put a bullet in you.

MR. SELLERS:

Who else feels like Mr. McNew?

Thank you, sir.

(Clapping)

MR. SELLERS:

Mr. Fife, I notice you

didn't raise your hand.

VENIREPERSON:

MR. SELLERS:

Who feels the opposite?

I did.

I wasn't quick.

Oh, okay.

All right. You know, like

Ms. Grover says, you have to call 911 first.

to check the cameras.

You have

You have to do --

Yes, ma'am.

16 17

Raise

your hand.

124

I'm going to give you --

come on. VENIREPERSON:

I would just like to say

that I called 911 because I don't own a gun, and I had

my husband, who was handicapped at the time.

to inject a little humor.

to get out of the house.

phone.

of the house.

the front where this horde of policemen were.

And just

When I got him, they told me I had the alarm people on the

They said get out of the house.

So we got out

And I took him around in his walker to And the

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

125

policeman, one of the first things he said to me is, "Do

you have a gun?" And I said, "No.

3 4

you."

(Laughter)

MR. SELLERS:

Thank you for sharing.

Thank you for sharing. How strongly do you agree or disagree

8 9

That's why I called

with this following statement:

A person who has the

legal right to be present at a location, such as their

home, where the person uses deadly force against another

is not required to retreat before using deadly force.

How strongly do you -- from disagree to zero to ten

agree that you're not required to retreat before using

deadly force.

No. 1.

VENIREPERSON:

MR. SELLERS:

No. 2.

VENIREPERSON:

MR. SELLERS:

No. 3.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Seven. Seven?

Eight. Thank you.

Eight. No. 4. Ten.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

No. 6. Nine. No. 7. I'm just -- can you come

back to me?

has a lot of moving parts that I'm reading correctly.

I just want to make sure.

MR. SELLERS:

126

This question

If you're in your home and

you're entitled to use deadly force, you're not required

to retreat.

Agree or disagree?

VENIREPERSON:

Ten.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

No. 11.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Oh, I would agree, ten.

All right.

Thank you, ma'am.

No. 9. Ten. 10. Eight. Thank you, ma'am.

Ten. 12. Ten. 13. Ten. 14. Ten. 15.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. 16. Nine. 17. Ten. 18. Ten. 19. Ten.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten.

THE REPORTER:

I didn't hear that.

MR. SELLERS:

THE REPORTER:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

20. Nine. 21. Nine. 22.

What

was it?

127

She said ten. Ten?

Thank you.

23. Nine. Nine? Nine. All right.

Everybody,

let's take a cough break.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

(Laughter)

MR. SELLERS:

23.

VENIREPERSON:

MR. SELLERS:

24.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

30.

VENIREPERSON:

MR. SELLERS:

No. 31.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

All right.

128

Here we go.

Nine. Nine.

Eight. 25. Ten. 26. Eight. 27. Nine. 28. Ten. I'm sorry, that was No. 29.

Ten. Ten.

Ten. 32. Ten. 33. Ten.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

34. Ten. 35. Ten. 36. Ten. 37. Ten. 38. Ten. 39. Ten. 40. Ten. 41. Ten. 42. Ten. 43. Ten. 44. Ten. 45. Nine. 46.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

129

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. 47. Ten. 48. Nine. 49. Seven. 50. Nine. 51. Ten. 52. Ten. 53. Seven. 54. Nine. 55. Ten. 56. Ten. 57. Seven. 58. Ten.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

130

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

67.

VENIREPERSON:

MR. SELLERS:

69.

VENIREPERSON:

MR. SELLERS:

59. Ten. 60. Ten. 61. Ten. 62. Nine. 63. Nine. Nine? Nine. 64. Ten. 65. Nine. 66. Eight. Eight.

Nine. Nine.

Ten. 70.

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131

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. 72. Nine. 73. Nine. 76. Nine. 77. Nine. 79. Nine. 80. Ten. 81. Ten. 82. Ten. 83. Ten. 85. Ten. 86. Eight. 87. Nine.

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132

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

89. Seven. 90. Nine. 91. Ten. 92. Ten. 93. Ten. 94. Ten. 95. Ten. 96. Ten. 97. Nine. 98. Ten. 99. Ten. 100. Ten. 101.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

133

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

134

Ten. 102. Ten. 103. Nine. 104. Ten. 105. Seven. 106. Ten. 108. Ten. 109. Ten. 110. Ten. Where am I?

There you are.

Here. I couldn't see you behind

that gentleman in front of you.

No. 112, Mr. Webster.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. 113. Ten.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

115. Nine. 116. Ten. 117. Ten. 118. Ten. 119. Ten. 120. Ten. 121. Ten. 122. Seven. 123. Ten. 124. Eight. 125. Nine. 126. Nine. 127.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

135

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Eight. 128. Ten. 129. Ten. 130. Ten. 131. Nine. 133. Ten. 134. Nine. 135. Eight. 136. Five. 137. Ten. 138. Ten. 139. Ten. 141. Ten.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

136

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

20 21

137

142. Ten. 143. Ten. 144. Ten. 145. Ten. 146. Ten. 147. Ten. 148. Ten. 149. Ten. 150. Ten. All right.

Thank you all.

That's the last one we're going to do like that. A person has the right to defend against

apparent danger.

Who knows what I say -- what I mean

when I say the words "apparent danger"?

Yes, ma'am.

VENIREPERSON:

Name and number, please. Amber de Jesus, 147.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Apparent danger is you have the believable -- belief

that there is danger.

not be danger.

yourself if you feel like your life is in danger.

138

And in some cases, there might

But you have the right to defend

MR. SELLERS:

VENIREPERSON:

(Laughter)

VENIREPERSON:

MR. SELLERS:

Are you a lawyer? I thought about it.

English teacher, so words. Ah, okay.

So you

understand yesterday when he's saying the ordinary and

prudent person.

You're a grammar person; right?

VENIREPERSON:

MR. SELLERS:

Yes. An ordinary and prudent

person, ordinary and prudent, does that modify the word

right after it or does it modify everything?

when he said ordinary and prudent person in the same

circumstances as the defendant. VENIREPERSON:

Remember

Honestly, when he was up

there, I was really confused because it just seems like

it was going back and forth. MR. SELLERS:

Right.

Ordinary

and prudent person, what word is "ordinary and prudent"

modifying?

VENIREPERSON:

MR. SELLERS:

Person. Person; right?

Not same

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

139

circumstances as the defendant.

Everybody get that?

mean, even he said himself fear will make people do

things they didn't think they could do; right?

ordinary and prudent person might get scared enough to

do something they didn't think they could do.

cool with that?

VENIREPERSON:

MR. SELLERS:

Thank you, ma'am --

VENIREPERSON:

MR. SELLERS:

Even an

Everybody

Yes. Anybody not cool with that?

Yes, sir. -- Ms. De Jesus.

And I

appreciate you speaking so loud for us there in the

back.

(Laughter)

MR. SELLERS:

And she's exactly right.

To the same extent as if the danger was real, what does

that mean?

the right to defend against an apparent danger to the

same extent as if it were real.

Like the gentleman up here who was defending our country

over in Iraq, you don't have to wait until somebody

rounds that corner and shoots you to figure out whether

they're a threat, all right?

ordinary and prudent people, okay?

you have an apparent danger coming your way, you have

If the danger was not real, right, you have

You don't have to wait.

If you -- you all are And if you fear and

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

140

the right to defend yourself, your home, and your family

to the same extent as if the danger was real.

Anybody have a problem with that?

Yes, ma'am.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes, ma'am. So does this assume that

the apparent danger is reasonable? MR. SELLERS:

9 10

66, Kayleigh Dunn.

Well, you have to act

reasonably under the circumstances. VENIREPERSON:

Okay.

I think that's the

only thing I struggle with with this one is, you know,

if you're nervous if someone is ding dong ditching at

your house, can you take the same actions as in another

circumstance?

wasn't reasonable, does that change that statement?

If you felt the danger was real but it

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I think it would. Okay. I think it would. Thank you. Yeah, you still have to be

reasonable in the way you carry out your actions.

But,

you know, we look at the ordinary and prudent person and

decide if they were in

alone, is it reasonable to think that it's an apparent

's shoes, from his viewpoint

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

141

danger; is that fair?

VENIREPERSON:

Yes.

MR. SELLERS:

Anybody have questions about that before

All right.

I move on?

are tired of being here, I know it. VENIREPERSON:

7 8

I'm trying to get everybody to lunch.

Y'all

You need to plug in your

computer. MR. SELLERS:

9 10

(Laughter)

MR. SELLERS:

Thank you.

This self-defense law in

Texas, the strongest castle doctrine in the country that

we have, does not require a fear that you're going to

die; right?

time.

attempted forceful, unlawful entry.

forceful.

through that door before you start protecting your home.

I just want to kind of rehash this one more

It only requires a fear, an apparent danger of an An attempted

You don't have to wait for them to bust

Right, Mr. Chelette?

VENIREPERSON:

MR. SELLERS:

You're correct, sir. All right.

Anybody have a

problem with that?

Does anybody think that they would

have difficulty following that law when -- not if, when

the judge instructs you that's what the law is.

have a problem presuming --

Anybody

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. CARNEY:

MR. SELLERS:

Oh, yes, Ms. Dunn.

VENIREPERSON:

law.

Frank. Yes.

66.

I disagree with that

I understand it --

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

142

part is about.

Sure. -- but I disagree with it. That's exactly what this

Legislature doesn't get together and all

agree on everything and neither do they expect us to

either.

So thank you for telling us that.

Who feels like Ms. Dunn?

Yes, ma'am.

VENIREPERSON:

Anybody else?

Cuny, No. 55.

I don't

disagree with it, but I'm not sure I could do it.

not sure.

danger, I don't know that I could defend my home.

Unless it was my children or my grandchild in

MR. SELLERS:

I'm

I gotcha.

Could you follow

the law if you were on a case where the judge instructed

that's what the law -VENIREPERSON:

21 22 23

Oh, yes, certainly.

Certainly. MR. SELLERS:

All right.

Well, it's not

like, you know, I've heard of people -- I'm going to ask

you about the punishment here in a minute -- and some

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

143

people in a death penalty case, could you give the death

penalty?

Monday through Thursday but Friday through Sunday I

could be there if you needed.

carry out the sentence or carry out the act.

And some they say, Well, I'm busy, you know,

VENIREPERSON:

THE COURT:

We're not asking you to

Right.

Just can you, you know -- do

you have such a strong feeling against it that you

couldn't follow the law as instructed.

VENIREPERSON:

MR. SELLERS:

Who else?

Yes, ma'am.

VENIREPERSON:

No, no, no. Okay.

Thank you, ma'am.

Anybody else?

I feel the same as -- 89.

I feel the same as both of these ladies.

think there might be something else I could probably

do -- maybe do to prevent an intrusion possibly.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

And I might would be the

And that's No. 89,

Ms. Porter; right?

VENIREPERSON:

MR. SELLERS:

Right.

runner than stand there and fight.

21 22

I don't -- I

Yes. Thank you for sharing,

Ms. Porter.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Who else feels like Ms. Porter and

1 2 3

Ms. Dunn?

Anybody else? These are complete defenses, right,

complete defenses to all accusations.

"complete defenses"?

Stand up and deliver.

are complete defenses?

8 9

What do I mean by

Where is my lawyer, Ms. de Jesus. What do I mean when I say they

VENIREPERSON:

That means you follow

through with it.

MR. SELLERS:

VENIREPERSON:

defenses to all accusations.

the defense to all accusations, I'm assuming.

144

MR. SELLERS:

Right. I'm trying to think of So you follow through with

Sure.

You heard the State

say yesterday that there's three different ways this

could happen and somehow, I don't know how, but the law

is I guess you don't have to agree as a jury on -- you

know, you just have to agree that a murder is a murder.

VENIREPERSON:

MR. SELLERS:

defenses to all accusations.

VENIREPERSON:

MR. SELLERS:

24 25

Yes. All right.

Complete

Does that make sense? Yes and no. So whatever -- you have the

right to defend your home. VENIREPERSON:

Yes.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

145

Use the same facts to

decide whether or not you're acting in self-defense or

being reasonable and acting in self-defense, and so

they're complete defenses to all the charges.

VENIREPERSON:

MR. SELLERS:

Yes. Does everybody -- does that

make sense?

tossing out -- by the way, who heard that this was a

manslaughter case before you came here?

Like the three theories that they're now

And now

we have a three-way murder case? MS. NODOLF:

11 12

object.

responses.

point in time.

Your Honor, I'm going to

That's a sidebar comment, not eliciting any The State is entitled to reindict at any And so it's just a sidebar -MR. SELLERS:

15 16

Yeah.

Just 965 days after the

case has been pending. MS. NODOLF:

And now defense counsel is

making argument during voir dire, and it is

inappropriate.

what Mr. Sellers has been referring to is a

justification versus a defense.

sure that we're separating out justifications and

defense.

24 25

And in addition to that, Your Honor,

THE COURT:

So just want to make

At this point in time, I will

ask Mr. Sellers just to proceed.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

146

MR. SELLERS:

Yes, sir.

Self-defense is a complete justification,

Chapter 9 of the penal code is about defenses.

9.31,

9.32, 9.41, and 9.42 of the penal code are defenses, and

they are defenses that qualify as justifications, which

means they are total justifications to all charges.

Everybody good with that?

that?

Anybody have a question about

If some jurors are to get a -- you know,

9 10

we're talking about defending yourself; right?

of the ways they mention that they charged this

three-way murder, which it now is, is committing the act

of deadly conduct by shooting at or in the direction of

another.

And one

In defending your home, Mr. Chelette,

don't you have to shoot at or in the direction of

another to do that?

VENIREPERSON:

MR. SELLERS:

Yes, sir. So can you see how I'm

having some heartburn, and that's why I wanted to bring

this up, complete defenses to all accusations.

you're defending your home, that's what you're doing.

That even if they somehow get a charge on deadly conduct

for shooting at or in the direction of another, can

everybody follow the law that if you're acting in

That if

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

self-defense, you're acting in self-defense?

everybody follow that law?

VENIREPERSON:

MR. SELLERS:

follow that law?

Don't be shy.

Can anybody not be able to

Complete defenses, what's the verdict?

(Venirepersons:

MR. SELLERS:

Can

Yes.

147

"Not guilty")

All right.

Anybody have a

problem that they're not going to to able to say "not guilty"?

Reservations?

Sir, how about you?

VENIREPERSON:

MR. SELLERS:

I would have no problem. All right.

All right.

The

law in Texas says that when deciding if a person is

acting in self-defense, you decide that question by

looking at the situation from the defendant's standpoint

alone.

us that you will follow the law that says you look at it

from the defendant's standpoint alone?

Not

hindsighting.

Not what woulda,

coulda, or shoulda been done differently.

follow that law?

Can everybody promise -- everybody here promise

Not a 50,000-foot view.

Everybody

Anybody who can't?

All right.

And we just discussed this is

a murder case, and the punishment for murder is between

five and 99 years in prison or a term of life in prison.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

148

Anybody here think that -- and I think

1 2

you told us, is it Mr. Jacobs, that if you're going to

come sit on a jury and convict somebody of murder, they

ain't getting no five years; is that right?

VENIREPERSON:

Do you want me

to stand up? MR. SELLERS:

7 8

Yes, sir.

Yes, sir, if you don't

mind. VENIREPERSON:

MR. SELLERS:

No. 51, Billy Jacob. Yeah, you and your fellow

jurors decide beyond a reasonable doubt, they ruled out

all the defenses, all the possibility of, you know --

and their theory is you and your fellow jurors have

decided is correct, you're guilty of murder, are you

telling us you never would even consider giving him

five years in jail? VENIREPERSON:

Well, I think, you know,

each case is going to be different, you know, murder

cases.

MR. SELLERS:

VENIREPERSON:

Sure. And so I'm specifically

thinking about this case and, you know, some accidental

murders or whatever.

24 25

MS. NODOLF:

Your Honor, I would object

to any question that is trying to commit a juror to the

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

149

facts of this case.

open and persuadable to the full range of punishment as

applied to the offense, not with regards to this

specific case because the jury hasn't heard any

evidence. MR. SELLERS:

6 7

It only has to be that the juror is

case.

THE COURT:

MR. SELLERS:

Let's not talk about this

question.

If you'll rephrase. I thought I asked a proper

He brought up this case.

THE COURT:

VENIREPERSON:

I understand. Maybe I shouldn't.

But,

like I said, yeah, that's how I feel.

MR. SELLERS:

Thank you, sir.

Who else feels like Mr. Jacobs, that if

you and your fellow jurors convict someone of murder,

Mr. Eikenbary, five years just isn't -- you can't -VENIREPERSON:

Yeah, if you convict

somebody of murder, it's proved without a reasonable

doubt that somebody took somebody's life.

would be a joke to give them five years. MR. SELLERS:

22 23

And to me, it

Thank you for your honesty,

sir.

Who else?

And I want y'all to know --

Mr. Eikenbary, you put your seat belt on

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

before you came here today; right?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

at me all the way over here.

(Laughter)

MR. SELLERS:

VENIREPERSON:

Yes, I did. Why did you do that? Because otherwise it beeps

Exactly what we want. When they first came out

with the sensors, I would buckle my seat belt behind me

so it wouldn't beep at me.

got to kind of change your habits.

to put it on.

beep at me, I may or may not put it on.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

22 23

Did you do it for safety?

Okay. Do you have homeowners

insurance?

So it became a habit

Let me ask you another question.

When you have kids, you've

But I'm still saying that if it wouldn't

MR. SELLERS:

14 15

150

Yeah. Anything bad ever happened

to your house? VENIREPERSON:

No.

So I wasted all that

money for all those years.

(Laughter)

MR. SELLERS:

That's right.

And that's

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

151

why we have insurance, right, to not to waste money but

in case something does happen; right?

VENIREPERSON:

MR. SELLERS:

Right. And so I'm not here asking

any of these questions for any other reason but the law

says I have to ask, because this is the only time that

we get to talk to you about this kind of stuff.

did not come here to have a fight that we plan to lose,

okay?

And I

I have to ask you these questions, and I'm not

asking you because I think we're ever going to get there

because I don't, okay?

VENIREPERSON:

MR. SELLERS:

Okay. All right.

And so I just

want to make clear you put your seat belt on for safety.

You don't think you're going to get into an accident

but, you know, that's why you do it.

I'm asking you this question.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

And so that's why

Can I ask a question? Yes, ma'am, you can. What's the difference in

manslaughter and -THE REPORTER:

Stand up, please.

VENIREPERSON:

Oh, sorry.

Manslaughter and murder, what's the

22 23

I can't

hear.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

152

difference? MR. SELLERS:

Remember the example that

the young woman gave back here about sitting on the jury

where the guy was shooting airsoft and wadding -- you

know, they would take out the wadding of the shotgun and

shoot it. VENIREPERSON:

7 8 9 10

intent? MR. SELLERS:

It's, yeah, reckless,

different mental state.

VENIREPERSON:

MR. SELLERS:

So it's pretty much the

Okay. You're reckless about the

circumstances in which you did what you did; right?

VENIREPERSON:

MR. SELLERS:

Okay. But even if it's

manslaughter, y'all understand those are complete

defenses; right?

VENIREPERSON:

MR. SELLERS:

Yes, sir.

VENIREPERSON:

Yes. Right?

Out of full disclosure

here, so I served on a jury where the jury -- for

attempted murder.

MR. SELLERS:

VENIREPERSON:

Okay. And the jury -- it was for

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

The man confessed to it.

153

sentencing only.

And during

sentencing, there was a range of that.

foreman at that time.

deliberations in that part, the jury found to give the

man 99 years and no one died.

I served as the

And through the course of

We got there.

He was found -- he shot his ex-girlfriend

6 7

and someone along with her, grabbed her out of their

car, and proceeded to take her away.

was never determined, but he had a wreck along the way.

Where he was going

And the paramedics and the doctors and the nurses and

everyone responding saved her life and saved another

person's life.

benefit -- not because of any action of the accused, the

convicted person that those things happened.

left just to him, they would have died.

The jury felt that it was at no -- no

MR. SELLERS:

VENIREPERSON:

If it was

Right. And that was the deciding

factor from -- for the jury's standpoint.

very difficult, especially for someone -- at that time I

was in my 20s, to talk about and looking at a person for

many, many days and saying they don't need to be around.

But a lot of things were factored into that was:

they dangerous to the rest of the world at the time we

left?

do that this time, would they do that again?

So several of them factored that.

But it was

Are

Someone would

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

154

All right. And they factored that

into the decision, is that someone like that didn't need

to be in society.

MR. SELLERS:

VENIREPERSON:

Right. But it's a very difficult

decision.

And if you watch a lot of television, you

think that you can do that.

the room and you look at the people and you have to make

But when you're faced in

a decision about someone's 99 years, five years, it's a

very big thing.

MR. SELLERS:

VENIREPERSON:

Right. So I think it's more

factors from the duty standpoint, you take an oath to do

what's right and take the instruction of the Court and

implement it, and that part I think is very important.

But it is a very weighting decision.

18 19

MR. SELLERS:

Yes, it is.

That was down

in Houston, wasn't it?

VENIREPERSON:

MR. SELLERS:

Yes, sir.

VENIREPERSON:

Yes. Thank you for sharing.

16, McDonald.

Just to

kind of piggyback off that and kind of going back a

couple of questions back also.

I hope that's all right.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

155

Yes, absolutely. Just to disclose to

counsel if -- yeah, I think it would be emotionally hard

for me to give out a guilty verdict, just so y'all are

aware.

thinking about it and just wanted to disclose that out

there.

know.

I'm just kind of sitting on it.

And that's just for me, my -- emotionally, you

MR. SELLERS:

9 10

VENIREPERSON:

MR. SELLERS:

Right. So I don't think you're

alone.

VENIREPERSON:

MR. SELLERS:

Well, I hope it would be

hard for anyone emotionally to give a guilty verdict.

I've been

Yeah. Are you telling us you

couldn't follow the law? VENIREPERSON:

No.

I'm just saying it

would be, yeah, just, you know, being honest out there,

that it would be tough.

MR. SELLERS:

It would be emotionally hard; right?

In this case, the State wants and expects

23 24 25

you to find

Thank you for sharing.

guilty of murder. Mr. Lester, how would you feel about

saying no in finding him not guilty?

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

1 2

MR. SELLERS:

Do you have the courage to

do it? VENIREPERSON:

5 6

It would all depend upon

the evidence presented.

3 4

If it's the right thing,

yes, sir.

MR. SELLERS:

How about you, ma'am?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

156

All right.

Same. Same? Yes. No. 10, Ms. Lara.

You

don't have to stand. Deceased was a police officer.

concern in this case is that because the person who died

was a police officer, that the jury might lessen the

burden that the State has to prove, give the State or

the prosecution the benefit of the doubt instead of

holding them to their burden of beyond a reasonable

doubt.

What do you think about that, Mr. Birden?

VENIREPERSON:

Honestly, I mean, I know I

said this earlier.

Yeah, he was a police officer, but,

you know, a person is a person.

all took a line of profession for a reason.

I mean, you know, we I know

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

people that have died in the oil field.

what it is.

Because he was a police officer, he's on a pedestal.

You know, a person is a person.

opinion, I don't view it as it was a police officer.

view it as one person died and one person pulled the

trigger.

that.

whatsoever.

You know, it is

I mean, you can't look at it and go,

So, to me, in my I

You know, look at the facts and base it on

I mean, occupation has no bearing on my decision

MR. SELLERS:

Who feels like Mr. Birden? You know what?

Thank you.

opposite?

and we have to do something about this.

that way?

Who feels the

I support law enforcement, Anybody feel

All right.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

42, Eikenbary.

VENIREPERSON:

You're 43.

VENIREPERSON:

43?

(Laughter)

VENIREPERSON:

(Laughter)

VENIREPERSON:

157

I'll be honest. Yes, sir.

Oh.

It's been four days, okay?

You're going to have to

prove to me that he's innocent.

So to be totally

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

honest, that's where I start.

prove to me that he's innocent. VENIREPERSON:

3 4

You're going to have to

No way.

We're all

innocent until proven guilty.

MR. SELLERS:

VENIREPERSON:

Unless.

VENIREPERSON:

Unless.

MR. SELLERS:

Thank you, Mr. Eikenbary.

No, no.

There you go.

I mean, that is a totally natural way to

10 11

feel; right?

another.

that they didn't, you know, drop that cookie jar when

they had their hand in it; right?

We have disputes.

Our kids fight one

You know, they're going to have to prove to me

Who feels that way, that we're going to

15 16

158

have to prove our innocence?

Yes, sir, Mr. Chelette.

VENIREPERSON:

I have a question.

we be in the same situation if it wasn't a police

officer?

Would

VENIREPERSON:

Yes, I would like to know

VENIREPERSON:

I don't believe that.

MR. SELLERS:

Thank you, Mr. Chelette.

21 22

that too.

Who else feels that way?

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Maybe we wouldn't be here but for it's a

1 2

police officer.

Raise your hand.

Thank you all.

VENIREPERSON:

5 6

I want to see.

Excuse me.

Can you repeat

that, what he said? MR. SELLERS:

Who -- the gentleman said,

I have a feeling that we wouldn't be here if this was

not a police officer.

159

Who asked the question?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

I did. Yes, ma'am. 116, Ramos. What are your thoughts? Well, no, it wouldn't

matter to me if it was a police officer or not.

we're all human here.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I mean,

Sure. So we have a life. All right.

Do you agree

what the gentleman said, that we might not be here if it

wasn't a police officer?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yeah, I heard him. Do you agree or disagree? I just -- I think we would

be here regardless of who it is.

I mean, a life was

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

160

taken and obviously, you know, the other family is

struggling as well because -- until we hear the facts we

don't know. MR. SELLERS:

4 5

Right.

Thank you,

Ms. Ramos.

That's right, Ms. Ramos?

VENIREPERSON:

MR. SELLERS:

9 10

Yes. All right.

Ms. Ramos, we would be here regardless?

Who feels like Raise your

hand.

Okay.

All right.

VENIREPERSON:

I really feel that it

would have been real self-defense if it was a human

being.

because he was a law enforcement officer.

It's not considered self-defense as of right now

VENIREPERSON:

There's another group

here -- 48, Bryan Graham -- is that there is a lot of

groups that don't know enough about this to be raising

their hand one way or the other.

MR. SELLERS:

VENIREPERSON:

MS. NODOLF:

MR. SELLERS:

24 25

Sure. Yeah. I would object, Your Honor. You're objecting to the

juror's answers? MS. NODOLF:

I'm objecting to Mr. Sellers

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

161

trying to commit the jury to whether or not they would

be here based off of the fact an officer or not, because

no facts have been presented to this jury and they don't

have any of the evidence before them.

an improper commitment question.

THE COURT:

MR. SELLERS:

I believe it is

Response, Mr. Sellers. A commitment question is --

I meant to print the law because a commitment question

is when you add a fact -- like if I were to ask:

Can

you consider five years in prison when the deceased was

a police officer in a murder case?

question.

commitment questions.

I haven't asked that.

MS. NODOLF:

That's a commitment I haven't asked any

Respectfully, Your Honor, he

just asked:

Do you believe you will still be here if

it -- but for it being a police officer? MR. SELLERS:

I'm not committing them to

a theory of the law or any fact of consequence in the

case.

That's not what a commitment question is.

THE COURT:

MR. SELLERS:

Who here would like to be a juror in this

I'll overrule the objection. Thank you, Your Honor.

case?

Mr. Chelette, Mr. Birden.

Who else?

Raise your hand.

Who -- not

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

162

only are you willing to make the sacrifice but you want

to.

VENIREPERSON:

THE COURT:

VENIREPERSON:

Let me make a statement.

Yes, sir, Mr. Layton. I would only want to be on

the jury --

Oh, sorry.

I would only want to be on the jury just

to witness the evidence and to see how it's -- as a

first time juror.

my opinion. MR. SELLERS:

12 13

No.

That's just

It's a hard decision

judging somebody else. VENIREPERSON:

14 15

Do I want to do it?

This is a difficult case,

yes.

MR. SELLERS:

Yes, it is.

It is.

Who else here wants to be a juror?

Yes, sir, Mr. Griffith.

VENIREPERSON:

I would like to be a juror

to be part of the process of being an American.

That's

something I've never done.

Midland originally.

community, and I don't have any bias one way or another.

I don't know anything about this case other than what

has been presented in the courtroom.

And personally I'm not from

I don't have any ties to the

And I think I

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163

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

would be a good person for this jury because I don't

come in with any preconceived notions about anything.

would strictly just listen to what the prosecution and

the defense presented and, you know, make my decision

based off of evidence.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I moved here from

Oh, okay.

VENIREPERSON:

wife here.

It's fantastic.

It's great, man.

I met my

Great.

Thank you for

sharing, Mr. Griffith. All right.

16 17

done.

on the jury panel?

Let me move on.

I'm almost

I need to know how many of you know anyone else

Start at the front here.

VENIREPERSON:

How

I have a beautiful family, a great job.

MR. SELLERS:

All right.

do you like Midland?

Where did you move from?

Shreveport, Louisiana.

9 10

Ms. Zoller.

A lot of MISD employees

are here and some acquaintances. MR. SELLERS:

Let's do it this way.

you know Ms. Zoller or you think Ms. Zoller knows you,

raise your hand.

VENIREPERSON:

Please say we're honest.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

I'm sorry, I'm on the third row.

Of course they were.

Mr. Kitch.

VENIREPERSON:

MR. SELLERS:

And then Ms. House.

VENIREPERSON:

ex-parents of the students.

MR. SELLERS:

Ms. House?

Okay.

My wife teaches with her. Okay.

Well, Trinity people and

How many of you know

A few of you.

I think everyone over here is pretty

11 12

safe.

I could be wrong.

Thank you, Ms. House.

Who else knows some people here?

How about you, sir, Mr. Combs?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

I know

You know No. 40? Right here. Oh. Me and his wife work at

the tax office.

MR. SELLERS:

Second row.

Robert Combs.

No. 40, Ginger.

164

Ms. Lujan.

Okay.

All right.

You raised your hand,

Who do you know?

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

1 2

I know Ms. Ortiz, No. 41;

and Dr. Fidel Ogeda.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

He's your doctor? No. Oh. But I was born and raised

in Lamesa, and that's where he went.

MR. SELLERS:

VENIREPERSON: MR. SELLERS:

Yeah.

Oh, y'all are from Lamesa. Yes, sir. All right.

I had my first

trial in Lamesa.

festival and left me there in the trench with

Judge Schildknecht.

Mr. Hurley had to go to a music

Let's see, who else?

Yes, sir.

VENIREPERSON:

know Mr. Eikenbary.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Was he good? Yeah, went to college,

Good for him.

Thank you,

Mr. McDonald.

Who else?

VENIREPERSON:

I do

4.0 GPA, yeah.

21 22

No. 16, McDonald.

I used to coach his son.

165

Mr. Layton. I know Mr. Fife at the

end.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Yes, ma'am.

VENIREPERSON:

over there.

George Webster.

to church together.

We -- two companies kind

Got it. Ms. Miller. Yes, I know Mary Wood, way

She's my former supervisor.

And I know

Our kids grew up together, and we went

MR. SELLERS:

All right.

Where did y'all

go to church?

VENIREPERSON:

MR. SELLERS:

Okay.

of worked together for a number of years, and that's it.

Crestview. Crestview?

All right.

Thank you, ma'am.

Who else?

Yes, ma'am.

VENIREPERSON:

Tanya Teaney, 29.

Don't know each other well.

I know

Glenda Lane.

Line Baptist Church.

hasn't been in a while, but I didn't put it together

until yesterday. (Laughter)

MR. SELLERS:

I go to Home

I'm the secretary there.

166

She

She'll be there Sunday, I

can assure you that. (Laughter)

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

(Sotto voce discussion)

MR. SELLERS:

I need to know numbers.

VENIREPERSON:

MR. SELLERS: we?

So, Ms. Lane,

93. 93.

Ms. Teaney knows No. 93.

Okay.

So where are

29 knows No. 93.

Is that better?

9 10

(Sotto voce discussion)

MR. SELLERS:

Did I get everybody up here?

Yes, sir, Mr. Lester.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I met Mrs. House

Okay. And I also know

Okay.

Ms. McDonald, what's

your number?

VENIREPERSON:

MR. SELLERS:

Third row.

Mrs. McDonald.

19 20

Okay.

yesterday, but I know her son very well.

All

you're No. 90?

All right.

right.

4 5

All right.

167

knows No. 17.

72. Okay.

No. 9 knows 72 and

Right?

VENIREPERSON:

MR. SELLERS:

Yes, sir. All right.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Third row.

VENIREPERSON:

Got you. I don't know his name but

his kids went to school with mine.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Yes, ma'am, Ms. Hinojosa.

VENIREPERSON:

MR. SELLERS:

24 knows 47.

86 and Ms. Grover. 27 knows 86 and Ms. Grover

is 89 or 90? VENIREPERSON:

MR. SELLERS:

90. 26 knows 90.

I got it.

Thank you.

Anybody else?

Okay.

middle, Ms. Trevino.

Yes. All right.

Fourth row.

VENIREPERSON:

Yes, ma'am, in the

Yeah, 36.

We already

established, I'm her boss, No. 4 -- No. 6.

MR. SELLERS:

168

Yes, we got that.

No. 6

knows No. 4 -- or, I'm sorry, No. 36 knows No. 4.

VENIREPERSON:

MR. SELLERS:

No. 6.

36 knows 6.

That would

make sense that you're in the same line.

All right.

Ms. Tamez, we got you, fourth row.

Who else?

Third row.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Mr. Wiesenfeld.

VENIREPERSON:

50, Wiesenfeld.

169

I know

Ms. Underwood and I know Ms. Grove and I went to school

with him over there, that guy. MR. SELLERS:

5 6

VENIREPERSON:

MR. SELLERS: 104.

VENIREPERSON:

MR. SELLERS:

So No. 50 knows 148 and

And 90. And 90.

Everybody knows

90, I think.

(Laughter)

MR. SELLERS:

148.

Is that it?

If you know

Mr. Wiesenfeld, raise your hand, please.

Okay.

How about the next row?

Ms. Ortiz. VENIREPERSON:

I know Ms. Lujan,

Ms. Porter, Ms. Underwood, and then I know Matt back

there. MR. SELLERS:

19 20

cards up.

Raise your

41 knows 14, 104, 89, and Matt back there.

(Laughter)

MR. SELLERS:

41 knows 14.

Oh, Matt back there.

number Matt.

Yes, sir, Mr. Eikenbary.

VENIREPERSON:

43 knows --

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

52.

VENIREPERSON:

-- 52.

MR. SELLERS:

Anybody else?

Yes, sir.

MR. SELLERS:

VENIREPERSON:

(Laughter)

MR. SELLERS:

I don't mean to be rude to

You're ignoring me.

Okay.

Tell me who you

know.

(Laughter)

MR. SELLERS:

VENIREPERSON:

Yes, ma'am, Ms. Lyle, 54. I know Mr. Geerts, who has

worked with my son and my husband.

MR. SELLERS:

VENIREPERSON:

Okay.

you.

You've

already told us. VENIREPERSON:

16, right.

I'm going to skip you.

And then Mike's

already said that he's No. 16.

170

54 knows 73. And his wife taught me and

helped me in school a long time ago.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Mr. Geerts's wife? Yes. Okay. And then I know Mr. Eli

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

Kuhlmann.

MR. SELLERS:

VENIREPERSON:

54 knows 130 also. We were in Scouts together

for a long time, our kids were.

MR. SELLERS:

Who else?

more rows.

room?

Okay.

I'm going to go one or two

Anybody up front know anybody else in this

Yes, ma'am.

Ms. Dunn, you're --

VENIREPERSON:

10 11

171

Ms. Dunn, 66.

I know

Dr. Benton.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I'm going to go one more row.

Anybody on this row you've disclosed that

66 knows 131.

you know some of the folks involved? All right.

VENIREPERSON:

Thank you, ma'am.

Anybody else?

Yes, sir. Just the young lady that's

also from Lamesa. MR. SELLERS:

21 22

And 127, also.

And 127.

131.

Ms. Lujan.

Got it.

Okay.

All right. Almost there.

Can everyone look

the eye -- go ahead and do it -- and tell him, "I can

give you a fair trial."

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

(Venirepersons:

MR. SELLERS:

VENIREPERSON:

172

"Yes")

Everybody do that. I can give you a fair

trial. MR. SELLERS:

All right.

There are three slides left.

I'm almost

done.

"I will a true

verdict render according to the law and the evidence."

That's the oath that jurors take when they get into the

comfy seats in the courtroom. Jurors who visited crime scenes, done

10 11

independent research, it's a lot easier; and the judge

will instruct you that you are not to do any research

independent of this case and what's presented in the

courtroom. Why does the judge give you those

15 16

instructions?

Because some things you see or hear may

or may not be true and not the evidence; right?

what do you do if another juror starts saying, "I was

talking to my friend or I Googled something?"

you do?

VENIREPERSON:

MR. SELLERS:

And so

What do

Report it. All right.

Push the buzzer; right?

Push the

buzzer.

What do you do if

you're in the middle of the trial and the jurors are

back in the jury deliberation room and the judge has

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

173

told you you can't talk about the case until all of the

evidence has been presented, what do you have to do?

You can say it, push the buzzer; right?

VENIREPERSON:

MR. SELLERS:

Push the buzzer. What do you do if a juror

makes a statement like, "Well, I think it was

self-defense for murder but not for deadly conduct, and

the judge has instructed you these are complete

defenses," what do you have to do?

(Venireperson:

MR. SELLERS:

"Push the buzzer") Any violation of the

Court's rules requires you and you are duty bound to

report it to Rudy, the bailiff -- where is Rudy?

still with us? -- to Rudy there in the back or anyone

else who is here with us, any violation of the Court's

rules. Can everybody agree and commit to do that

17 18

Is he

for us?

(Venirepersons:

MR. SELLERS:

"Yes")

All right.

Sometimes in

close cases at the very end of it jurors are back there

fighting, trying to make their point, get their point

across, trying to sway others to their side.

sometimes when jurors can't do that, what happens is the

judge will send back an instruction that says:

And

No jury

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174

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

could do this better than you have.

No jury can hear

the evidence any differently than you have.

deliberating, if you can.

verdict, do so.

conscience.

if we all abide by that rule throughout the case and all

of the rules that we've discussed here today, justice

will be done.

Continue

And if you can reach a

But don't do violence to your

Don't do violence to your conscience.

And

Thank you all for your time and

9 10

attention.

It's more jurors than they have ever called in the

history of the Midland County.

case, but it's a simple case, and we trust you to do the

right thing.

15 16

I know this has been a very tedious process.

This is an important

Thank you all for your time. THE COURT:

If I can see counsel in the

side room, we need to talk about some things.

(Sidebar conference in side room)

(Defendant and venire not present)

THE COURT:

I really want to talk about

logistics first.

It's now a quarter to 12:00.

I can

release the jury, send them to lunch.

time going over challenges for cause, but we won't have

anybody that wanted to come up and talk to us privately.

We can then spend

I can keep everybody, and I don't know

how long y'all might want to look at your information

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

175

pertaining to peremptories and challenges for cause or

anything else, but I figure everybody probably wants at

least 20 minutes to do that.

everybody up and then do the strikes and challenges, I

figure it's going to be another hour at least, hour to

hour and a half. MR. SELLERS:

7 8 9 10 11

And by the time we pull

We're ready to do

challenges now. MR. HURLEY:

Judge, I think the jury is

ready to go to lunch. MR. SELLERS:

Oh, sure.

Sure they are.

But only four people need to talk privately.

we could do that and then release them or release

everybody and have those four stay.

MR. CARNEY:

THE COURT:

From the State.

MS. NODOLF:

So maybe

But those four. Okay.

That's an option.

I have a concern with

regards to Mr. Seller's question with regards to "we

would not be here but for a police officer being

involved," that those individuals have a bias against

the State, and so we're going to have to call those

individuals in on an individual basis to determine the

extent of the bias.

they were down so fast that there wasn't any time to

Because their hands went up and

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

record who those individuals were.

those answers that it's not starting off on a level

playing field. THE COURT:

176

But it's obvious by

Then we're going to

potentially pull in more than four, whether that be six,

eight, ten, whatever it maybe.

lunch and have them come back at 1:30.

got a break.

Everybody here can take a little break and

clear minds.

And then we can, you know, gather again.

Yes, sir.

MR. SELLERS:

Then let's break for

Judge, we've requested

criminal history info on the jurors.

they'd run them.

have it.

State has said

I think we're entitled to that if they

THE COURT:

That way they've

I know the -- I think we

eliminated seven who had felonies, which were

disqualifying.

information.

the information, but they can tell you.

I don't know about any other I know the State can't give you copies of

MR. SELLERS:

20 21

disagree.

them in Lubbock.

them everywhere.

I think they can give us copies.

I've gotten

I've gotten them in Fort Worth.

MS. NODOLF:

Yeah, I respectfully

I get

I think I can give him -- we

had --

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

THE COURT:

1 2

If you can give them copies,

you've got to give them back.

MR. SELLERS:

MR. CARNEY:

THE COURT:

177

Of course. Yeah. I don't know how you have

that. MS. NODOLF:

We have them run, but they

were -- what happened was they all got jumbled and out

of order.

So if I could, because some of them -- they

were all just put back into one stack based off of the

original 202, I'll be happy to go through and tell

Mr. Seller's the -- what was recorded.

just have to rerun them because I don't -- or if he

wants to go through the stack and pull them out.

just seems -THE COURT:

16 17

I'll let you two work that

out.

MS. NODOLF:

THE COURT:

If not, we'll

-- reasonable to tell you. But he needs to have that

information.

MS. NODOLF:

THE COURT:

Happy to tell him. If he wants to look at it, he

can get a copy, pull it out of the stack, run it off

again, however that's easiest.

MR. SELLERS:

Also, we'd request that

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

178

they give us any prior verdicts or jurors who have sat

on juries.

info.

We understand they may or may not have that

MS. NODOLF:

4 5

We don't have that

information.

THE COURT:

MR. SELLERS:

Okay. Okay.

Third, I've been

meaning to ask all week, but we would ask the request

the Court to order the State to provide us all grand

jury testimony from this most recent grand jury that

happened last week.

the first grand jury.

We have grand jury testimony from

MS. NODOLF:

Right.

And this grand jury

was not recorded due to the fact that the last time the

information was used and disseminated during the middle

of a hearing.

Mr. Hurley during a hearing.

secrecy of the grand jury was pierced.

recorded this last time. THE COURT:

20 21

MR. SELLERS:

So it was not

So if it's not recorded, it's

Sure it is.

How

convenient. MR. HURLEY:

24 25

So the province of the

hard to deliver it to you.

22 23

So a decision was made and decided by

I wouldn't record it either

if I was them.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MS. NODOLF:

179

Your Honor, I think we've

been through enough sidebar comments for the fact that

between Mr. Sellers during the course of this, his voir

dire, and that it has tainted the panel as well. THE COURT:

I'll ask counsel to refrain

from future sidebar comments.

already happened but -- if that arises from either side. MR. SELLERS:

8 9

We can't change what has

Okay.

So on break till

1:30? THE COURT:

Yeah, because that gives them

time to go somewhere, get lunch, and come back.

And

then we'll start -- and we'll try to get some more

chairs in here where we can say put, you know, a

prospective juror because I think we're going to have to

do it in here because everybody is sitting right on top

of each other.

where counsel can sit and where all of us can sit,

including a prospective juror.

tell everybody.

And we'll get some more chairs in here

So then I'll go out and

Is there anything else y'all want to do

20 21

during the lunch hour or something that we need to take

up?

half.

going to tell them two.

Otherwise -- because I'll tell them an hour and a Unless we need to take something up, then I'm

MS. NODOLF:

It just depends on if they

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

want the actual criminal history. THE COURT:

2 3

I'm going to let y'all work

that out. MR. SELLERS:

4 5

180

stack?

Can you just give us the

We'll go through it. MS. NODOLF:

Well, I don't think it's

going to be that easy because there's notes on the juror

questionnaires that we have that we're turning back in

so they're all bunched in together.

(Sidebar conference in side room

concluded)

(Open court, defendant and venire

present)

THE COURT:

Does anybody now have an

empty seat next to them that wasn't that way ten minutes

ago?

Okay.

Everybody is back. Ladies and gentlemen, we're going to take

17 18

our luncheon recess at this time.

While we're in

recess, do not discuss the case among yourselves or with

third parties or let third parties discuss it in your

presence. Should you see or hear anything in the

22 23

media which you think might be related to this case,

please divert your attention away from that in some

manner.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

181

Do not use any type of electronic device

1 2

to access the Internet or phone lines or anything else

to attempt to send out or receive any information

pertaining to these proceedings. So it's now about five till 12:00.

you'll be back seated where you are now at 1:30, that

would be greatly appreciated. Have a pleasant lunch.

8 9

then.

We'll see you

Thank you.

(Venire leaves courtroom)

(Luncheon recess from 11:56 a.m. to

(Open court, defendant and venire

present)

THE COURT:

Okay.

Welcome back everyone

to the Midland County Courthouse. What we're going to do at this point in

16 17

time is we've had some individuals who have indicated

they want to speak to the attorneys in private, and so

we're going to afford them that opportunity.

going to do it over in the side room because we're

literally on top of each other in here, and that's

merely respecting their desire for it to be kept

private.

24 25

)

We're

We're also going to pull in some people that the attorneys might want to ask additional

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

182

questions of, and we'll do that.

And then we'll take a

break -- and I don't know how long that may be, how much

time they will ask for -- to allow them to do what we

refer to as striking their lists, and that's the

ultimate determination of the 12 jurors and two

alternates that will serve in this case. So, again, thank you for your patience

7 8

and indulgence but this is to make sure everybody has an

opportunity to ask questions they need or they feel like

they need and get the information that they need to have

them represent their respective clients in this cause. So with that, I don't know who we'll

12 13

start off with.

Thank you.

One of the bailiffs will call you.

(Sidebar room, defendant and venire not

present)

(Individual Voir Dire Proceedings in side

room)

THE COURT:

opposing counsel if Mr. MS. NODOLF:

THE COURT:

24 25

Is that agreeable with

goes upstairs?

Okay.

Oh, sure. Who do we wish to -- well,

who do we want to start off with first? MR. SELLERS: come speak privately.

No. 1 said he wanted to

No. 3.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MS. NODOLF:

183

I would say, Your Honor,

maybe -- I know that there's some that I think we could

probably agree on if we want to just go row by row to

see because they've given answers that we know that are

going to be challengeable and see if we can get rid of

the agreed ones first.

MR. SELLERS:

MS. NODOLF:

THE COURT:

MS. NODOLF:

MR. SELLERS:

THE COURT:

MR. SELLERS:

MS. NODOLF:

THE COURT:

MS. NODOLF:

Okay. If that's okay. Yes. So No. 3, Lisa Zoller. We'll agree to that. No. 3 is who? Zoller, Z-O-L-L-E-R. Zoller.

Sorry.

That will be granted. And that's the only one I

had on Row 1.

Did you have any other on Row 1?

MR. SELLERS:

THE COURT:

MS. NODOLF:

Not until we talk to No. 1. Okay. Going to Row 2, we had

No. 12, Hodnett.

MR. SELLERS:

THE COURT:

MS. NODOLF:

We'll agree to him. Granted. No. 13, Combs.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

MS. NODOLF:

We'll agree to him. Our rationale there was he

said he would want to hear from the defendant.

MR. SELLERS:

THE COURT:

MS. NODOLF:

Right. Okay.

Granted.

No. 18, Jackie Lesley, who

said the defendant was innocent and couldn't consider

otherwise. MR. SELLERS:

THE COURT:

10 11

184

I don't have that. Do you want to call her in

then, put her on that list?

MS. NODOLF:

THE COURT:

MS. NODOLF:

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

That's fine. Okay. Row 3, No. 29. We've got a few on Row 2. Oh, I'm sorry.

Apologize.

Ms. Lujan said she was not

in her right mind.

She was not able to even remember

her purse, and this case has shaken her personally.

would affect not only her intention but also her

verdict.

MS. NODOLF:

THE COURT:

MR. SELLERS:

MS. NODOLF:

Okay. What number is that? 14. It's 14.

I had a challenge

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

for her, and it's that last part that I had missed.

I won't object to that.

THE COURT:

MR. SELLERS:

Granted.

Then I have No. 15,

Mr. Hillis, Jr. MS. NODOLF:

6 7

All right.

185

correct.

You are

I'll agree to that.

MR. SELLERS:

THE COURT: MR. SELLERS:

Oh, I'm sorry.

Okay. Granted. And then No. 20, Ms. Bernal

said that her sister, Rosie Rodriguez, if it was a close

case, that she -- it would affect her verdict.

her sister is a witness. MS. NODOLF:

I thought at the end she

said she could be fair and impartial.

have to call her in. MR. SELLERS:

Yeah,

So I guess we'll

Well, once she says it

could affect her verdict under 35.16.10, she's not able

to be rehabilitated per the code.

THE COURT:

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

24 25

I'll grant Ms. Bernal. All right.

Now Row 3.

29, Teaney. Okay.

Ms. Teaney, Tanya

Teaney. MS. NODOLF:

Teaney, Teaney.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

THE COURT:

MS. NODOLF:

MR. SELLERS:

THE COURT:

MR. SELLERS:

MS. NODOLF:

backwards.

testify. MR. SELLERS:

THE COURT:

MR. SELLERS:

THE COURT:

MS. NODOLF:

No. 30, Mr. Chelette. No objection. Granted. He said plenty. I'm sorry, I'm going

We'll agree to him. Who is 24? Robert Martin. Okay.

That will be granted.

That's all I have right on

its face for Row 3. MR. SELLERS:

15 16

That will be granted.

No. 24 would require the defendant to

186

I don't have anybody else,

I don't think. MS. NODOLF:

I don't have anybody -- I

have some people on Row 4 that I would like to ask some

questions of but nobody right off the bat.

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

MS. NODOLF:

24 25

Good? Yeah, on Row 4. Row 4, okay. On Row 5, No. 41, Nancy

Ortiz. MR. SELLERS:

Yeah, no objection.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

THE COURT:

MS. NODOLF:

MR. SELLERS:

MR. VAN DER HOEVEN:

THE COURT:

MR. SELLERS:

MS. NODOLF:

on some of them.

you have anybody else on 5?

MR. SELLERS:

MS. NODOLF:

12 13

187

Granted. No. 43, Eikenbary. Agreed. For every reason.

That will be granted. He's just a wild card. Number -- I have questions

I'm trying to make sure I can -- do

47, Jimmy Simmons. Okay.

He's one that I have

a notation one. MR. SELLERS:

Yeah, he straight up said

he checked it on his questionnaire and then said this is

not the case for him.

many, and it would influence his verdict.

MS. NODOLF:

THE COURT:

MS. NODOLF:

He knows too much, knows too

Okay.

I'm fine with that.

Granted. I didn't have any others.

think that there was a question, I'm not sure, on 49.

had it highlighted based on something that you had

asked, but I don't remember.

MR. SELLERS:

anything that caused him...

MS. NODOLF:

I don't have him saying

Okay.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

1 2

MS. NODOLF:

Yeah.

Do you have anybody

else on 5?

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

THE COURT:

MR. SELLERS:

MS. NODOLF:

THE COURT:

MS. NODOLF:

MR. SELLERS:

Do you want to keep going,

one more row?

3 4

No, ma'am. Okay.

6, 51.

Yeah, we agree to that. That's who? Billy Jacobs, Jr. Jacobs, Jr. Granted. 52. I think we need to talk to

her.

MS. NODOLF:

(Sotto voce discussion)

MR. SELLERS:

Okay.

Well, we'll agree to her

actually. MS. NODOLF:

I have a notation that she

didn't think the defendant should testify.

MR. SELLERS:

22 23

188

Yeah, we'll agree to 52,

Tracy Zamora. MS. NODOLF:

She did want to -- she did

indicate that she wanted to come back and talk, but she

had said enough I thought that she --

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189

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

THE COURT:

MS. NODOLF:

MR. SELLERS:

MS. NODOLF:

THE COURT:

MS. NODOLF:

I agree. That will be granted. No. 59. Agreed, Jonathan McCright. McCright. Granted. And, again, I have two on

that row I'd like to ask some clarifying questions; but

that's all we have on that row.

(Sotto voce discussion)

MR. SELLERS:

I think that does it.

The

only person we need to call in and talk to would be

No. 1 and No. --

THE COURT:

MR. SELLERS:

(Sotto voce discussion)

MR. SELLERS:

THE COURT:

19 20 21 22 23 24 25

18. -- 18 and --

Oh. No, 18 wasn't agreed.

They

said they wanted to call in. MR. SELLERS:

No. 1, No. 18, and then

we'd like to talk to No. 23. MS. NODOLF: we could go row by row.

Okay.

So 1, 18 -- okay.

On Row 1, I have No. 1.

On Row 2, I would like to speak to No. 16, 17, 18, and 19.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

On Row 3, I don't think I have anybody --

1 2

oh, No. 26.

On Row 4, No. 34, 37, and 40.

On Row 5, No. 48 and 49.

And Row 6, 58 and 60.

THE COURT:

MR. SELLERS:

Christopher Hernandez.

THE BAILIFF:

Are you ready for him?

THE COURT:

What's No. 1's name?

Not yet.

We're making a list

and checking it twice.

Anybody else that we need to bring in?

MR. SELLERS:

MS. NODOLF:

THE COURT:

MR. SELLERS:

Not on that first page, Your

Okay. I think the first page is

going to get it for us. THE COURT:

18 19

None from us, Your Honor.

Honor.

Okay.

Rudy, if you'll call

No. 1, Christopher Hernandez. INDIVIDUAL VOIR DIRE PROCEEDINGS

20 21

(Venireperson enters)

THE COURT:

Hello.

questions of you.

190

Thank you, Mr. Hernandez.

I believe the attorneys have some additional

VENIREPERSON:

Okay.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

THE COURT:

MR. SELLERS:

Who wants to start off? I think we have to call

him.

THE COURT:

MR. SELLERS:

Okay. Mr. Hernandez, you

indicated to us that you wanted to talk about some

things privately. VENIREPERSON:

8 9

191

Kind of.

Not really.

mean, I was -- I think you were asking if what I thought

of the guy -- or thought of -- he's not in here.

his name,

What's

MR. SELLERS:

Right.

VENIREPERSON:

And I kind of was like

thinking -- I don't know.

like just preconceived stuff about him, like I was going

too much on a gut feeling.

was like, well, maybe everybody is like that.

was it.

But I thought about it and I

MR. SELLERS:

19 20

I was going to say that I had

Okay.

So that

What was your gut

feeling or your preconceived notion? VENIREPERSON:

I don't know.

I was just

watching him and I was just like, I don't know.

I don't know.

And --

Do I have to answer that?

THE COURT:

MR. SELLERS:

Please. I would like for you to.

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192

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

THE COURT:

He's not in here, and we're

not going to tell him. VENIREPERSON:

4 5

don't know.

faking a little bit.

initially.

Well, I was just like, I

I was watching him and I thought he was But I don't know.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

He's not in here?

Okay.

That was just

Faking what?

Huh? Faking what. Just his expressions and

stuff. MR. SELLERS:

Okay.

Would it be fair to

say that you maybe are starting out with just a strike,

a little bit, even a slight one against

VENIREPERSON:

MR. SELLERS:

Maybe slightly, yeah. Okay.

And in the end, if

you -- I mean, you already think he's faking it, or

could be, is that something that could, no matter how

slightly, just even tip the scales against

affect your verdict?

VENIREPERSON:

MR. SELLERS:

24 25

Maybe. Okay.

I'll pass the

witness. MS. NODOLF:

So I hate to be the one to

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193

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

kind of nail you down, but it's important at least for

us to determine whether it would, in fact -- whether or

not you -- if you -- even though looking at Mr.

in the courtroom, have you developed such an opinion

about him that you could not listen to the evidence -VENIREPERSON:

No, I could do that

definitely.

thought he was saying like the slight possibility.

like maybe, I don't know.

But, I mean, he was saying like -- I It's

But, no, I should be able to

listen to the evidence. MS. NODOLF:

Well, I -- but let me take

it a little step further because I want to make sure

that you don't -- if he were to take the stand, that

he's judged based off of the testimony that he gives,

not any faces he may have made down here, that he gets a

level playing field.

VENIREPERSON:

MS. NODOLF:

Is that something you can

do? VENIREPERSON:

20 21

Uh-huh.

I mean, yeah, I can do my

best.

MS. NODOLF:

VENIREPERSON:

MS. NODOLF:

VENIREPERSON:

Okay.

And --

That's the honest answer. And I understand. Like, because -- I mean,

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

194

if you need me to do it, I could do it.

But like, I

mean, I'm going to -- I dropped out of school and like

I -- like, I don't have like logic.

isn't like superior.

think that was something maybe that you would need in

this case.

You know what I mean?

I mean, my logic

You know what I mean?

And so I

I just work at a lumber store overnights.

MS. NODOLF:

I don't have any further questions. MR. SELLERS:

10 11

I don't either.

MS. NODOLF:

THE COURT:

Thank you, Mr. Hernandez. Yes, sir, just have a seat

out front.

(Venireperson exits)

MR. SELLERS:

We move to challenge Daniel

Hernandez for cause.

MS. NODOLF:

THE COURT:

No. 18, Ms. Lesley.

(Venireperson enters)

THE BAILIFF:

Thank you,

Mr. Hernandez.

Very good.

No objection. Granted.

Go ahead and have a seat,

ma'am.

VENIREPERSON:

THE COURT:

Thanks.

Thank you, Ms. Lesley.

You

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

indicated you wanted to talk to counsel outside the

presence of everyone or they have some additional

questions for you. Oh, okay.

195

VENIREPERSON:

Yeah.

MS. NODOLF:

You had made a statement about -- let me

I had made the challenge.

rephrase that.

Sitting here now, can you afford

Mr.

burden of proof of proving my case beyond a reasonable

the presumption of innocence, hold me to my

doubt or have you already made or formed an opinion

about the guilt or innocence of Mr. VENIREPERSON:

I don't think I've formed

an opinion.

I feel for both parties, if that makes any

sense.

exactly what went on or which way to lean.

sense or am I just blurting it?

And I would have to hear everything to know

MS. NODOLF:

No.

Am I making

You had just -- we had

made a notation that you had said that you believed he

was innocent. VENIREPERSON:

I do somewhat.

I do

believe he's innocent, but I should believe he's

innocent. MS. NODOLF:

Okay.

make sure.

heard in the news or the media --

That's what I want to

Are you basing that off of something you've

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MS. NODOLF:

196

Oh, no. -- or are you -- he's --

you're holding it to the presumption of innocence and

holding -- making me prove my case beyond a reasonable

doubt?

VENIREPERSON:

MS. NODOLF:

Okay.

That's a

clarification. MR. SELLERS:

I don't have any questions.

VENIREPERSON:

THE COURT:

Yes, that's correct.

Okay.

Thank you very much, ma'am.

Just have a seat back out front.

VENIREPERSON:

(Venireperson exits)

MS. NODOLF:

With that clarification,

we'll withdraw our objection.

THE COURT:

MR. SELLERS:

THE COURT:

Okay.

Comment, Mr. Sellers? No, Your Honor. Okay.

Then No. 18 is

withdrawn.

No. 16, and I don't know who that is.

MR. VAN DER HOEVEN:

It's Michael

McDonald.

THE COURT:

McDonald.

THE CLERK:

Your Honor, he was also the

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

gentleman that had the issue on the questionnaire

yesterday.

(Venireperson enters)

THE BAILIFF:

THE COURT:

VENIREPERSON:

THE COURT:

Have a seat. Have a seat, Mr. McDonald. Yes, sir.

Yesterday you indicated that

you believed that you needed to change one of the

answers on your questionnaire. VENIREPERSON:

197

Yes, I cannot recall the

number, but it was about if I had any family members

that were former or part of law enforcement.

I do -- my

father-in-law has been retired for 15 years.

It just

didn't occur to me whenever we were doing the

questionnaire.

don't know him automatically as a police officer, but

that was the only thing that I need to change, was that

I do have a father-in-law, former, retired police

officer from Galveston.

I've only known him two years.

So I

THE COURT:

VENIREPERSON:

THE COURT:

MS. NODOLF:

When Mr. Sellers was asking questions and

he asked the question:

Okay. Yes, sir.

Any questions from the State? Yes.

For those people who believe

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

that we're here only because it's an officer or we

wouldn't be here if it wasn't an officer, you raised

your hand.

VENIREPERSON:

MS. NODOLF:

198

Yes, ma'am. So what I need to know is,

is are you starting with giving the defense a leg up or

are you going to allow for the State to be on a level

playing field with the defense? VENIREPERSON:

No, no, absolutely.

Yeah,

absolute level playing field.

asked and my personal opinion.

give a fair trial and everyone a level playing field,

absolutely.

MS. NODOLF:

VENIREPERSON:

MS. NODOLF:

THE COURT:

MR. SELLERS:

THE COURT:

I mean, that was just But, no, if -- I will

Okay. Yes. Okay.

Thank you.

Mr. Sellers? No questions. Thank you.

Have a seat out

front.

VENIREPERSON:

Yes, sir.

(Venireperson exits)

THE COURT:

MS. NODOLF:

THE COURT:

Comments? (Shaking head.) Withdraw the challenge?

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

1 2

MS. NODOLF:

I never challenged him.

THE COURT:

Mr. Sellers?

MR. SELLERS:

THE COURT:

No. 17, Ms. House.

(Venireperson enters)

THE BAILIFF:

just wanted to --

199

THE COURT:

Well, I realize.

Okay.

Nothing, sir. Okay.

Have a seat. Ms. House, I believe the

attorneys have some additional questions for you.

VENIREPERSON:

MS. NODOLF:

Okay. Yes.

Ms. House, whenever

Mr. Sellers was asking questions and he was talking

about if you thought that the only reason why we were

here was because the victim was an officer --

VENIREPERSON:

MS. NODOLF:

Right. -- is that to mean that

you're not going to allow for the State to start off on

a level playing field or that you have some bias how to

view the case because you don't think we would bring the

same type of case if it was somebody else?

VENIREPERSON:

I agreed that I think if

it were just an ordinary Joe breaking into the house and

that it happened, I don't think charges -- these charges

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

that have been brought would have been brought. MS. NODOLF:

2 3

So we can't get into any

facts.

VENIREPERSON:

MS. NODOLF:

Right. So you're assuming, though,

that there was a burglary that occurred or attempting

to. VENIREPERSON:

8 9

No, but that somebody

entered the house, is -- I'm assuming that's what

happened.

case.

I don't know.

I don't know the facts of the

MS. NODOLF:

12 13

So if you were to set aside

all assumptions --

VENIREPERSON:

MS. NODOLF:

Right.

-- put all assumptions aside

and listen only to the evidence that was presented in

the courtroom --

VENIREPERSON:

MS. NODOLF:

200

Right. -- officer or not, take the

uniform off --

VENIREPERSON:

MS. NODOLF:

Yes. -- could you listen to the

case and start as -- and be fair and impartial and start

us off on a level playing field?

VENIREPERSON:

I believe I could.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MS. NODOLF:

VENIREPERSON:

And it's that "I believe." I know.

Well, I think

anybody -- it's hard to know until you're in the

situation, until you're there and listening. MS. NODOLF:

And I think that that's one

thing that Mr. Sellers had talked about a little bit

was, you know, hindsighting is 20/20.

VENIREPERSON:

MS. NODOLF:

201

Right.

And it's okay if your

opinion is -- whether it's holding it against me because

you don't think we would do it if it was somebody else

or if it was because he was an -- it involved an

officer.

whoever is sitting in the box --

Either way, we just want to make sure that

VENIREPERSON:

MS. NODOLF:

Right. -- isn't going, well, I

believe I can but now that I'm sitting here I can't,

because we can't go and unring that bell.

VENIREPERSON:

MS. NODOLF:

VENIREPERSON:

MS. NODOLF:

Right.

You know, we can't go back

and do a redo.

Right.

Right. So that's really the

question at this point in time. VENIREPERSON:

Like I -- you know, until

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

I hear the evidence, and I would -- I would listen to

all of the evidence before I made a decision. MS. NODOLF:

3 4

Okay.

VENIREPERSON:

MS. NODOLF:

Yes. Very good.

MS. NODOLF:

Uh-huh. Did you have any,

Mr. Sellers?

THE COURT:

MR. SELLERS:

THE COURT:

Mr. Sellers? No questions. Thank you, ma'am.

Just have

a seat out front.

VENIREPERSON:

(Venireperson exits)

THE COURT:

MS. NODOLF:

THE COURT:

(Venireperson enters)

THE BAILIFF:

THE COURT:

Thank

you. VENIREPERSON:

Yes. Okay.

Across from all

witnesses?

202

Okay.

Anything, Ms. Nodolf? (Shaking head.) No. 19.

Go ahead and have a seat. Mr. Layton, I believe the

attorneys have some additional questions for you.

VENIREPERSON:

MS. NODOLF:

Yes, sir. Just very briefly.

During

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

203

Mr. Sellers' voir dire, I thought I saw you raise your

hand whenever he asked the question:

would be here if it wasn't for the fact that the victim

was an officer?, did I accurately see you raise your

hand?

VENIREPERSON:

MS. NODOLF:

VENIREPERSON:

Do you believe we

Yes, ma'am, you did. What did you mean by that? I believe if the person

that was in the home and was shot was not a police

officer, I would say the -- it was an actual home

invasion, this would be a civil matter more than -- I

don't believe the State would be at this hearing.

believe at that point in time the Midland Police

Department would be like, Congratulations, you stopped

an activity.

I do

Unlikely -- or, excuse me, not unlikely.

16 17

The fact that it is a police officer, a tragedy event,

mistaken identity, who knows, but I don't think we would

be at this level of court case had it not been just --

or had it been just a regular civilian. MS. NODOLF:

So you've said some things

that you're -- that you haven't heard any of the facts

in the case.

VENIREPERSON:

MS. NODOLF:

Correct. So you said -- made some

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

statements about him being inside the home.

point in time you don't know if he was or was not. VENIREPERSON:

204

At this

Correct, for the fact I do

not -- and maybe I may have misworded it.

The only

article and information I have heard on this was the

Odessa American.

I cannot recall if it stated he was inside and/or

outside the home.

not have a filter most of the time.

I read the article several times, and

Maybe I misspoke or just -- I tend to

But all I know is that from information

10 11

from the Odessa American is a police officer was shot by

a homeowner.

the gentleman that -- behind me, No. 30, when he said, I

don't believe we would be at this level had it been, you

know, an actual home invasion, I don't think we would be

here.

A tragedy, yes, actually, but I agree with

MS. NODOLF:

So can you set side, though,

anything that you may have previously read and listen

only to the evidence as it's presented in the courtroom

or have you already formed such an opinion that you

cannot listen to the evidence? VENIREPERSON:

I've never been put in

this situation before.

Many of the people outside have

not as well.

with a hundred percent certainty that I can, if I'm

So it is a situation that I cannot say

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

205

being honest with you.

every round out of my firearm, I am held responsible

for, whether it be the -- an innocent bystander or the

intended target.

All I can say as an LTC holder,

So do I feel that the gentleman is

responsible for his firearm?

A hundred percent.

Am I

able to set aside the preconceived notion of what I

believe I think I know, I should be able to once the

facts start coming out.

But, again, with all due

respect, I've never been put into a situation where I

had to set aside beliefs to listen to facts.

MS. NODOLF:

So let's -- let me -- you

have a presumption that the officer was inside the

house; is that fair?

VENIREPERSON:

MS. NODOLF:

the officer threw an ax --

MR. SELLERS:

MS. NODOLF:

Yes. Okay.

What if we said that

I'm going to -- never mind. -- an ax at the homeowner

first, that would be something you don't know; correct?

VENIREPERSON:

MS. NODOLF:

Correct. So can you see why we're

saying and what we're trying to get out is that you have

the presumptions, cause you to form such an opinion or

can you set aside any preconceived notions whereas I

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

think one person said, The media didn't always get it

right. VENIREPERSON:

Right.

206

The media doesn't

always get it right.

And now that I'm sitting here

thinking about it, the only reason I believe that he was

inside the home is in the article.

witnesses in an affidavit said they were announcing,

"We're Midland PD."

I believe one of the

So had they crossed the threshold at that

9 10

time?

I don't know.

But, I mean, I'm not going to

announce myself out in someone's front yard.

going to announce myself at your home and your front

door is open, I'm going to knock and pass that threshold

and tell you, "Hey, I'm here."

believe he was already in the home when this happened.

Again, I heard it from the article, though, so... MS. NODOLF:

17 18

question.

evidence as it's presented?

So that's why I do

Right.

And that's the

Can you set that aside and listen to the

VENIREPERSON:

If I'm

To be frank, I want to

say, yes, I can, and I should be able to but, again, I'm

only human.

formulated that I already believe he was there.

I mean, my opinion's already been

MS. NODOLF:

VENIREPERSON:

Okay. So that's kind of just

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207

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

where I stand.

MS. NODOLF:

VENIREPERSON: I believe so.

Okay. I mean, do I think I would

do okay?

But, again, I've never been put

underneath this kind of pressure.

MS. NODOLF:

THE COURT:

MR. SELLERS:

All right. Mr. Sellers? As we sit here today, you

have not heard any evidence; correct?

VENIREPERSON:

MR. SELLERS:

Correct. And fair to say you've not

formed an opinion about whether or not

guilty or not guilty. VENIREPERSON:

14 15

He's definitely

responsible for the round fired.

MR. SELLERS:

VENIREPERSON:

Sure. Whether he's guilty of

murder, I cannot say.

He definitely needs to be held

responsible the round that was projected from his

firearm. MR. SELLERS:

So have you formed an

opinion about whether he should be held criminally

responsible?

VENIREPERSON:

MR. SELLERS:

Yes. Okay.

That's all we need.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MS. NODOLF:

THE COURT:

MR. SELLERS:

MS. NODOLF:

208

Okay. I have a follow up to that.

Sure. That's all I have. It's okay.

So just -- and I

know you're -- look, I do get it because we bring -- we

deal in this realm all the time.

use all the time, and they're not common phrases,

that -- as both Mr. van der Hoeven and Mr. Sellers were

talking about, that you know somebody may commit an act

but they may be justified for that act which would

negate the original act, them being guilty of the first

act, could you listen to any justifications?

VENIREPERSON:

These are phrases we

I believe so.

I mean, I'm

a fair individual.

I do -- in any situation, I would

like to hear both sides of the story before I can

formulate the absolute opinion in my head.

wife, we argue all the time, but she's quiet.

talker, and it doesn't go very well.

(Laughter)

MR. SELLERS:

VENIREPERSON:

23 24 25

very strong woman.

Like my I'm the

I feel your pain. She's Filipino.

She's a

She does not speak.

MS. NODOLF:

Okay.

I don't have any

further questions.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

THE COURT:

sir.

We're good?

Okay.

Thank you very much,

Just have a seat where you were.

VENIREPERSON:

(Venireperson exits)

THE COURT:

MR. SELLERS:

MS. NODOLF:

THE COURT:

209

Yes, sir.

Thank you.

Anything on him? Nothing from us. (Nodding head.) Okay.

I think that then

brings us to No. 23. MR. SELLERS:

I don't know that we need

to call her.

We would just move to challenge her

because of her relationship with the parties and the

DA's office.

challenge her.

She works with Paola Lujan.

THE COURT:

MR. SELLERS:

We move to

What's the last name? Susan Miller, who is the

one that works with Big Brothers and Big Sisters and has

monthly contact with I think it's Paola Lujan, "We trust

what she says."

and move to challenge.

So we just want to make a record on her

MS. NODOLF:

And we would object to that

challenge.

She said that she has a five-minute phone

conversation with her every month, and that it's

strictly professional, that she -- would have no effect

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

on her ability to listen to the evidence. MR. SELLERS:

Just her response would be

that that's still a contact that's pretty regular and

that other jurors don't have with the DA's office or

particular members of the DA's office who are on the

trial team in this case. MS. NODOLF:

Ms. Lujan was an observer

just to help us take notes for the purposes of voir

dire.

She's not going to be participating any further. THE COURT:

10 11

Anybody else that we need to bring in? We were wanting to bring in 59, 26, 34. MR. SELLERS:

14 15

The Court will deny the

challenge.

12 13

I think you need to -- if

she wants to talk to 26.

MS. NODOLF:

THE COURT:

No. 26, what's the name?

MR. CARNEY:

THE COURT:

MR. VAN DER HOEVEN:

(Venireperson enters)

THE BAILIFF:

24 25

210

Uh-huh. 59 was granted, I'm sorry.

Kitch. Mr. Kitch. David Kitch.

Go ahead and have a seat

there. VENIREPERSON:

Hello.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

THE COURT:

1 2

211

Mr. Kitch, the parties have

some additional questions for you, sir.

VENIREPERSON:

MS. NODOLF:

Okey doke. Yes, sir.

Whenever

Mr. Sellers was doing his voir dire examination and the

question -- or the proposition was raised:

here but for the fact that the victim was a peace

officer, I believe I saw you raise your hand; is that

correct?

VENIREPERSON:

MS. NODOLF:

VENIREPERSON:

MS. NODOLF:

THE COURT:

MR. SELLERS:

THE COURT:

Would we be

No. I did not? No. All right.

Very good.

Any questions? No questions. Thank you, sir.

Thank you. Just have a

seat where you were.

(Venireperson exits)

THE COURT:

MR. SELLERS:

THE COURT:

(Venireperson enters)

THE BAILIFF:

THE COURT:

VENIREPERSON:

34 is who? Adrian Hughes. Adrian Hughes, No. 34.

Have a seat. Mr. Hughes, thank you. Yes, sir.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

THE COURT:

1 2

212

I believe the attorneys have

some additional questions for you.

VENIREPERSON:

MS. NODOLF:

Okay. Mr. Hughes, whenever

Mr. Sellers was asking the question:

believed we would be here but for the fact that the

victim was a peace officer, hands went up and down kind

of fast.

I thought I saw your hand go up; is that -VENIREPERSON:

9 10

MS. NODOLF:

Okay.

VENIREPERSON:

MS. NODOLF:

THE COURT:

MR. SELLERS:

Okay.

Very good.

Thank

Mr. Sellers. Nothing from us.

Thank

you, Mr. Hughes. THE COURT:

19 20

No, ma'am.

you.

You didn't respond

either way?

No, I didn't respond

either way.

11 12

If anybody

Just have a seat out front,

sir.

VENIREPERSON:

Thank you.

(Venireperson exits)

THE COURT:

THE BAILIFF:

THE CLERK:

37, Mr. Henley. 37? Yes, 37.

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213

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

(Venireperson enters)

THE COURT:

seat, sir.

for you.

Come on in.

The attorneys have some additional questions

MS. NODOLF:

Just have a

Yes, sir, just briefly.

When Mr. Sellers was doing his voir dire examination,

asking the questions, he asked a question about if

people -- if they thought that they were here only

because it was a peace officer who was the victim.

hands went up and down kind of fast.

your hand go up.

I thought I saw

Was I correct or not or --

VENIREPERSON:

Well, to be honest, I was

just trying to -- I was trying to decide.

really have a lot of information to go off of.

what I mean?

question they asked?

I didn't You know

Like -- what was the question again, the

MS. NODOLF:

And

So the question -- I don't

want to put words in your mouth, but essentially was:

Do you believe we would be here today if the victim was

somebody else other than a police officer? VENIREPERSON:

Oh, no, I just -- I

couldn't decipher the -- like how the question was

stated.

MS. NODOLF:

VENIREPERSON:

Okay. Like -- yeah.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MS. NODOLF:

214

So if the victim wasn't a

police officer, if it was somebody else, what we really

need to know is:

presented whenever we get up into the courtroom or are

you giving any side a favor over the other because it

involves a police officer or because it doesn't involve?

Can you listen to the evidence that's

VENIREPERSON:

MS. NODOLF:

Oh, no.

The answer is no.

The answer is you're not

going to give --

VENIREPERSON:

MS. NODOLF:

VENIREPERSON:

MS. NODOLF:

VENIREPERSON:

No, no bias. Okay. Sorry. It's okay. Well, it was a confusing

question.

gave some responses, she did say there just wasn't

enough information given to give a proper response to

that so... MS. NODOLF:

19 20

VENIREPERSON:

Some lady across the

aisle. MS. NODOLF:

23 24

Was that somebody that was

around you or --

21 22

There was a lady that did say after -- people

enough.

Okay.

That's fair

Thank you very much. VENIREPERSON:

Okay.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

THE COURT:

MR. SELLERS:

THE COURT:

Any questions? No, sir. Okay.

Thank you, sir.

Just

have a seat out where you were.

VENIREPERSON:

(Venireperson exits)

THE COURT:

MR. SELLERS:

THE COURT:

Thank you.

Who is No. 40? Ginger Tamez. Okay.

Ms. Tamez.

(Venireperson enters)

THE BAILIFF:

THE COURT:

215

Go ahead and have a seat. Thank you, ma'am.

I believe

the attorneys have some additional questions for you.

VENIREPERSON:

MS. NODOLF:

Okay. Just very quickly.

believe that when Mr. Sellers was asking the question of

if anybody here believed we would be here but for the

fact that the victim in the case was an officer, I

thought I saw your hand go up.

VENIREPERSON:

MS. NODOLF:

VENIREPERSON:

I may be incorrect. Say it one more time.

Would we be here -Oh, yes.

And then once

the lady talked over here, I really was more leaning to

what she said, the one -- when I said we wouldn't be

here, then after I thought about it, we would be here

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

regardless of who it would be.

wasn't partial just because it was a police officer.

MS. NODOLF:

VENIREPERSON:

216

You know what I mean?

Okay. Once the other lady said

that and I thought, no, I more agree with her; but I

couldn't -- you know, I had already raised my hand but

then she made more sense.

MS. NODOLF:

VENIREPERSON:

Okay.

MS. NODOLF:

And that's why we wanted to

make sure that we were clear on --

VENIREPERSON:

MS. NODOLF:

Oh, yeah. So -- okay.

THE COURT:

MR. SELLERS:

THE COURT:

Mr. Sellers? No. Thank you.

Just have a seat

where you were.

(Venireperson exits)

THE COURT:

MR. SELLERS:

(Venireperson enters)

THE COURT:

Thank you.

That's it.

That's more what I was

leaning to.

11 12

Who is 48? Bryan Graham, No. 48.

Just have a seat, Mr. Graham.

The attorneys have some additional questions for you.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MS. NODOLF:

217

Okay. Hi, Mr. Graham.

Just

briefly.

When Mr. Sellers was asking the question about

whether or not anybody believed that we would be here if

it was anybody other than an officer as a victim, I

believe I saw you raise your hand; is that correct? VENIREPERSON:

I got up to speak up after

that because he asked two different ways, who thought

one way and who thought the other way.

And I just made

it clear that it felt there was another group there that

doesn't have enough information to say anything about

it.

that.

So there is a group in that.

MS. NODOLF:

Okay.

Just wanted to say

So I guess my

question then is:

Is the fact that the victim, a police

officer, is -- does -- is that going to play any role in

your ability to make -- be a fair and impartial juror in

this case?

VENIREPERSON:

MS. NODOLF:

No. Okay.

And so would you look

at it the same way if it -- take a uniform off, just as

a regular person and be able to view the evidence as

it's presented solely in the courtroom?

24 25

VENIREPERSON: sense of the oath.

I firmly believe in the

You know, I was an officer in the

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

218

Navy.

All through my whole life, I believe in doing

what's right.

be on a jury as a juror and execute the instructions

that have been given to you with the evidence that's

been presented.

that and the hypotheticals don't sit with me because it

doesn't matter.

sense is what I'm presented and the job is which I've

taken an oath to do.

In other words, if -- once you accept to

So very much it's about who this or

It doesn't matter what I think in the

So --

MS. NODOLF:

VENIREPERSON:

Okay. Okay.

The hypotheticals

don't always work with me because it -- and it does

matter what I think in that sense.

that sense, it's the view of what I've been given. MS. NODOLF:

Right.

that.

about the facts in the case --

And I can appreciate

And one of our only ways, since we can't talk

VENIREPERSON:

MS. NODOLF:

In my opinion, in

I understand. -- with the jury, we have to

use hypotheticals.

VENIREPERSON:

MS. NODOLF:

VENIREPERSON:

I understand. Thank you very much. Just that when we give the

hypotheticals in the sense -- just in the sense what

some of the questions that are multiple choice, you

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

219

know, people struggle with those, as I do, is because

it's not always just:

disagree.

Those don't always -- that's not really how

we think.

There is a gradient.

ten, you know, do I believe that or so, I don't know.

understand.

someone that's an engineering degree, technical, that

those things can kind of almost be irritating sometimes.

Okay.

Do you strongly agree, agree,

It's difficult.

MS. NODOLF:

THE COURT:

MR. SELLERS:

Thank you.

THE COURT:

Even one through one to

As you can imagine,

Absolutely. Any questions? No, sir.

Thank you, sir.

(Venireperson exits)

THE COURT:

MR. SELLERS: Franklin.

wouldn't it?

21 22

Thank you.

Just have a

seat out front.

Who is 49? Ryan Franklin.

49, Ryan

And I think that would be the last one,

MS. NODOLF:

I count that as No. 32 so

then we would include 50 and 53.

(Venireperson enters)

THE COURT:

Mr. Franklin, I believe the attorneys

Have a seat, sir.

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220

Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

have some questions for you. MS. NODOLF:

Hi, Mr. Franklin.

I just

wanted to clarify with you real quick.

asked the question about did you -- does anybody here

think that we would be here if the victim was anybody

else but a police officer, and I thought I saw your hand

go up.

I may have been wrong. VENIREPERSON:

8 9

When Mr. Sellers

It was more -- my reaction

to that was more that I think less people would have

been there but people would have still been there.

was more my response to that kind of thing. MS. NODOLF:

12 13 14

What do you mean by

"people"? VENIREPERSON:

So it wouldn't have been

120 of us in that room.

smaller number than that, I thought.

That

It would have been what -- a

MS. NODOLF: Okay.

Okay.

I see how you

interpreted that.

What I wanted to make sure is

that you weren't starting off with a knock against the

State saying, Ah, they're only doing this because it's a

police officer --

VENIREPERSON:

MS. NODOLF:

No. -- or, you know, against the

defense because it is a police officer.

We want to take

that uniform off and start on a level playing field.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

VENIREPERSON:

MS. NODOLF:

That totally makes sense. Okay.

Very good.

Thank

you.

THE COURT:

MR. SELLERS:

Thank you.

THE COURT:

Any questions, Mr. Sellers? No, sir.

Thank you.

Please have a

seat out front, Mr. Franklin. (Venireperson exits)

9 10

THE COURT:

MS. NODOLF:

Do we need to go on -Well, that's a new

interpretation of that question.

that one.

I didn't anticipate

MR. CARNEY:

So 48 and 49 are the end.

MS. NODOLF:

Right.

So then as I

counted, we would then have -- so it would be No. 49

would include our first 12 with each of us having ten

strikes.

would include No. 50, 53, 54, and 55 with each of us

getting an additional strike apiece.

And then if we're doing two alternates, we

Is that correct, Your Honor?

THE COURT:

23 24 25

221

If we're sitting two, then I

believe we have two strikes. MS. NODOLF:

Then we have two -- include

the two after that.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. CARNEY:

There's one for each side.

MS. NODOLF:

MR. SELLERS:

THE COURT:

I think it is two total.

Yeah. So of the four -Don't you then go to four

people? MR. SELLERS:

7 8

222

If we go four people, each

side gets one strike. MR. VAN DER HOEVEN:

So there's two.

MS. NODOLF:

Yeah.

MR. CARNEY:

So 16 are out for cause, 16

MS. NODOLF:

Judge, would you call -- do

people.

13 14

you have the numbers so that we can make sure we have

the same thing you do? THE COURT:

The cause are No. 1, No. 3,

No. 12, No. 13, No. 14, No. 15, No. 20, 29, 30, 24, 41,

43, 47, 51, 52, and 59.

MR. SELLERS:

MR. VAN DER HOEVEN:

21 22 23

That's what I have. We do through

No. 48. MR. SELLERS:

To 48.

We have 16 -- yeah,

that's right, through 48, between 48 and 49.

MR. VAN DER HOEVEN:

THE COURT:

Right.

Go strike your 12.

Then

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

we'll look at where we are.

MR. SELLERS:

THE COURT:

11.

MR. SELLERS:

MR. CARNEY:

Ten.

MS. NODOLF:

Yes.

MR. SELLERS:

Right. Right.

We're just all talking at

each other.

THE COURT:

MS. NODOLF:

THE COURT:

Yeah. Same thing. You get ten peremptory

strikes and then we look at alternates. MR. SELLERS:

15 16

So 20 minutes, is that

enough?

MS. LAPINSKI:

MR. VAN DER HOEVEN:

I count that we get to 48.

MS. LAPINSKI:

And so that brings us to

54.

MR. VAN DER HOEVEN:

MS. LAPINSKI:

24 25

48 is just for the

base 12.

20 21

No, we

don't -- you do the alternates after you do your 12. MS. NODOLF:

Ten plus each one.

Well, 12 jurors.

223

Yes.

54 is the alternates.

Okay. MS. NODOLF:

But we don't select -- if I

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

remember correctly, we come back and we submit our

first.

THE COURT:

MS. NODOLF:

THE COURT:

MR. CARNEY:

THE COURT:

No?

Go ahead and --

Find out who the 12 are and

You look at what's left. Yeah, you look at what's

left. MR. SELLERS:

10 11

No.

then you look at --

224

Alternate strikes in

alternate zone. THE COURT:

And if y'all have multiple or

multiple double strikes, then we're looking at different

people.

MS. NODOLF:

(Individual Voir Dire Proceedings in side

room concluded)

(Jury strikes)

(Sidebar conference in side room)

(Defendant and venire not present)

THE COURT:

Correct.

The ones in the pencil out to

the side are the jurors. MR. SELLERS:

23 24

Correct.

Do you want me to read them

out? MS. NODOLF:

I was going to say if you

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

can just read them out.

MR. SELLERS:

Rebecca Dawn Miller, No. 7.

Michael Dale McDonald, No. 16.

Maggie Maney, No. 21.

Brenda Hernandez, No. 6. Andrew Jason Lester, No. 9.

MS. LAPINSKI:

6 7

MR. SELLERS:

MS. LAPINSKI:

MR. SELLERS:

THE COURT:

MR. SELLERS:

THE COURT:

MR. SELLERS:

No, we did not?

Did we? Do you have our list? Did I miss one? Yes, we struck Mr. Layton,

No. 19.

THE COURT:

Yeah, we sure did.

Oh, I'm sorry.

I struck

somebody else then. MS. NODOLF:

Was that a defense strike on

No. 2?

MR. SELLERS:

MS. NODOLF:

Did we

I don't think so.

MS. LAPINSKI:

Wait, wait, wait.

No.

Raymond Layton, No. 19.

not strike him?

225

Lozoya, yes. And defense strike then on

10?

MR. SELLERS:

MS. NODOLF:

I think so.

Yes.

I just --

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MR. SELLERS:

MR. CARNEY:

Yes.

MS. NODOLF:

I'm just double checking.

226

Yeah.

Then moving on then it would be -- because the State had

No. 4, No. 11, No. 17, and defense strike No. 19.

MS. LAPINSKI:

MR. SELLERS:

MS. NODOLF:

18.

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

No. 21.

Kelby Schrader, No. 32.

Rosacker, No. 38.

Sanchez, No. 46.

23, 34, 35, 36. Okay. No. 5 is Maggie Maney is Geneva Hinojosa, No. 27.

Cristina Ward, No. 33.

Ginger Tamez, No. 40.

MR. SELLERS:

And Clarissa

I don't see her as being

Yeah, I don't either,

Judge.

THE COURT:

MR. SELLERS:

MS. NODOLF:

We did 17 and

struck by anybody.

And 18, yes.

Cody Birden, No. 25.

MS. CLAYTON:

Uh-huh.

So what were your --

And y'all also struck 18?

Let me see. Ms. Hines. That's why I like to go back

through this several times. Okay.

Judge, how about you read it out

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

227

to us.

MR. SELLERS:

THE COURT:

That would be great. Okay.

This is who I have:

No. 1, Brenda Hernandez.

She's No. 6 on your list.

No. 2 is Rebecca Miller.

She's No. 7 on your list.

No. 3 is Andrew Lester, No. 9 on your list.

Michael McDonald II, No. 16 on the list.

Maggie Maney, No. 21 on your list.

Birden, No. 25 on your list.

And

No. 4 is

No. 5 is

No. 6 is Cody

No. 7 is Geneva Hinojosa,

No. 27 on your list.

your list.

No. 10 is Jessica Rosacker, No. 38 on your list.

No. 40 -- I'm sorry.

Juror No. 11, Ginger Tamez is

No. 40 on your list.

And Juror No. 12, Angela Hines is

No. 42 on your list.

No. 9 is Cristina Ward, No. 33 on your list.

MR. VAN DER HOEVEN:

16 17

No. 8 is Kelby Schrader, No. 32 on

are 45, 46, 48, and 49.

MS. NODOLF:

MR. VAN DER HOEVEN:

MS. NODOLF:

21 22 23

The alternates then

Say that again. 45, 46, 48, and 49.

I think that it's only

fair -MR. SELLERS:

Yeah, because we struck

people in that zone already.

MS. NODOLF:

And so did --

MR. VAN DER HOEVEN:

However y'all want

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

to do it.

We struck 44.

MS. NODOLF:

THE COURT:

MS. NODOLF:

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

So that's why I'm saying. So between 49, 50, 53, and

We know who're ours is. Okay.

We've already put

ours -MS. NODOLF:

11 12

Yeah, the last peremptory

54.

So we -- we did too.

strike was No. 45.

228

I just need to write mine on

my -THE COURT:

The next open people are

Clarissa Sanchez, No. 46; Bryan Graham, No. 48; and Ryan

Franklin, No. 49. MR. SELLERS:

Judge, just because we --

we used our strikes within the 48 zone, I think both

parties are agreeing that the alternate zone should be

49, 50, 53, and 54. MS. NODOLF:

20 21

Because that's what we had

anticipated.

THE COURT:

MR. VAN DER HOEVEN:

24 25

What about No. 51? Was struck for

cause. MS. NODOLF:

Was challenged for cause.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

THE COURT:

1 2

So you're looking at 48, 49,

and 50?

MR. SELLERS:

MS. NODOLF:

THE COURT:

MR. SELLERS:

the regular strike zone...

MS. NODOLF:

THE COURT:

49, 50, 53, and 54. Correct. 48 wasn't struck by anybody. But because he was inside

He was within the 32. I mean, if y'all are wanting

to agree to that --

MR. SELLERS:

THE COURT:

We are. -- I don't think that's how

the statute reads.

50, Stephen Wiesenfeld; No. 53, Bryan Dare.

So it would be 49, Ryan Franklin;

MR. SELLERS:

MR. HURLEY:

Because we're starting at

MS. NODOLF:

Right.

MR. SELLERS:

strike each leaves us with two alternates.

MS. NODOLF:

Four in the zone, one

Correct.

Because, in

essence, if you don't -THE COURT:

23 24

And 54, Wendi Lyle.

49.

21 22

229

zone.

Wendi Lyle is outside the

If we're starting at 49, that's Ryan Franklin. MR. SELLERS:

Yes, sir.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

230

THE COURT:

MR. CARNEY:

THE COURT:

MR. CARNEY:

54 was the fourth one.

MS. NODOLF:

Because it's two alternates.

MR. SELLERS:

THE COURT:

MR. SELLERS:

Two, that's right. Okay.

Ours is already on

I just need to write ours on

our list. THE COURT:

MS. NODOLF:

THE COURT:

And 53.

That's what you want,

MS. NODOLF:

Gone.

our list.

11 12

51 and 52 are gone.

right, two?

50 is Stephen Wiesenfeld.

You each get one strike -Correct. -- is the first person not

struck. Okay.

So then the two that are our

alternates are No. 49, Ryan Franklin; and Wendi Lyle is

the second alternate, No. 54.

Okay.

Then -- let's see here.

(Brief pause)

THE COURT:

Okay.

Y'all look at that and

make sure it is right before I call them off.

(Brief pause)

THE COURT:

Okay.

Do you want me to go

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

231

ahead and -- how do y'all want to handle it?

can take those 14 and put them in Rudy's custody and let

him take them up to the tenth floor.

juror instructions to them, do opening if you really

want to, and -- but I don't know how long opening is

going to be and -- or I can call these names and let

everybody else go except these 14 and then take them up. MR. SELLERS:

8 9

MS. NODOLF:

THE COURT:

MR. SELLERS:

It's probably cleaner to

Yeah. Okay. No, maybe not.

Maybe it's

cleaner for us all to go up and then let the rest go.

MR. CARNEY:

MR. SELLERS:

MS. NODOLF:

THE COURT:

We can read the

let everybody else go and then we all go up.

Because we

Take the jurors up. Yeah. I -Because Rudy can take them up

the jail elevator.

MR. SELLERS:

MS. NODOLF:

Right. That's true.

Normally, I

like being able to stand up and thank everybody, you

know, just as an appreciation while everybody else

leaves, just thanks for paying it up for us for the last

couple of days.

THE COURT:

Oh, I understand.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

MS. NODOLF:

1 2

232

But in this situation with

this many people -THE COURT:

We can send out the 14, and

then I'll give you an opportunity to -- everybody to

stand up, thank everybody for being here, tell them a

little bit about the open courts concept of if they want

to come back and watch, they're more than welcome to.

And somebody needs to tell me what we're going to do

regarding any live feed. MR. SELLERS:

10 11

I don't foresee this being

an issue.

MS. NODOLF:

I don't think so.

THE COURT:

MR. HURLEY:

No.

MS. NODOLF:

No.

MR. SELLERS:

THE COURT:

Call it, yes or no.

No. Okay.

No live feed.

And so

we'll call off IT and reserve the first couple rows on

each side for families and then the rest is open

seating, first come, first serve.

MR. SELLERS:

Sure.

MR. VAN DER HOEVEN:

Perfect. One other small

thing.

Not that you would ever do this, Your Honor, and

not that any other judge in this courthouse has ever

done this, but can we make sure not to tell the

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

alternates that they're alternates before they start

paying attention in the trial?

THE COURT:

MR. VAN DER HOEVEN:

Yeah. They don't need to

know that they're alternates who won't be used.

need to be paying attention.

7 8 9

MS. NODOLF:

They

Yeah, they quit -- I've seen

them nod off and sleep. MR. CARNEY:

No one wants to be a spare.

MR. VAN DER HOEVEN:

THE COURT:

233

Okay.

No. So you don't want me

to tell them they're an alternate at all?

Just --

MR. VAN DER HOEVEN:

No, just call 14.

MR. SELLERS:

MR. VAN DER HOEVEN:

THE COURT:

MR. CARNEY:

THE COURT:

(Sidebar ended at 3:33 p.m.)

(Sidebar conference in side room

concluded)

(Open court, defendant and venire

present)

THE COURT:

Judge, we have about 12 empty seats back

Yep. Just call 14.

Okay. Here's our jury. Okay.

Fine.

Thank you.

We can do that.

Please be seated.

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

234

there or 14 empty seats, kind of where you're standing?

JUDGE LINDEMOOD:

THE COURT:

Okay.

Yes.

We do, yes.

What I'm going to do

is call all 14 people.

And if you will get up and go

back to where Judge Lindemood is standing -- he'll have

his hand raised so you know where to go -- there will be

seats back there for everyone, and then I need to talk

to everybody that's remaining. So we're going to start off with Brenda

9 10

Hernandez.

Rebecca Miller.

McDonald, II.

Hinojosa.

Kelby Schrader.

Rosacker.

Ginger Tamez.

And Wendi Lyle.

Maggie Maney.

Cody Birden. Cristina Ward.

Angela Hines.

Michael Geneva Jessica

Ryan Franklin.

For those that are left, do you want one

15 16

Andrew Lester.

more chance tomorrow?

(Venirepersons:

(Laughter)

THE COURT:

Then, Ms. Nodolf, if you wish to say

"No")

Okay.

something. MS. NODOLF:

On behalf of the State of

Texas, thank you, everyone, for being here and through

this process.

without y'all showing up for jury duty.

You know that none of us can do our jobs Seriously, the

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Voir Dire Proceedings (Continued) by Mr. Sellers November 4, 2021

235

criminal justice system has been in a screeching,

grinding, very slow process through this COVID.

all of y'all to be here and be able to participate and

allow for us to do our jobs, both for the State and for

the defense, we would just like to say thank you very

much.

THE COURT:

MR. SELLERS:

9 10

So for

Mr. Sellers. Thank you all for your

time, patience, and attention.

And if you didn't make

this jury, there's plenty more for you.

(Laughter)

THE COURT:

And I'll echo what counsel

said.

diligent group, and you're now free -- and I would ask

you not to talk about the case because that's just more

publicity, more of your friends asking about the case,

what it's about, who's involved, things of that nature.

I can't stop you from doing that, but I would ask that

as -- on behalf of everyone concerned as part of your

civic duty.

Thank you very, very much.

You've been a very

With that, if your name was not one of

the 14 called I -- oh, one other thing.

The open court

concept allows people to come in, watch proceedings, and

come and go, if they so desire.

behind closed doors.

We do not try cases

And so if you wish to come and

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Voir Dire Proceedings November 4, 2021

watch, we're going to be up on the tenth floor in the

Auxiliary District Courtroom.

wish to come and watch.

first serve seating so feel free to come and go.

And so feel free if you

It's basically first come,

And, again, thank you very much for your

5 6

236

service.

You're free to go.

Thank you.

(Proceedings adjourned at 3:42 p.m.)

(End of requested voir dire excerpt)

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings November 4, 2021

STATE OF TEXAS

COUNTY OF MIDLAND

237

I, Ann M. Record, Deputy Official Court Reporter in

and for the Midland County District Courts of Midland

County, State of Texas, do hereby certify that the above

and foregoing contains a true and correct transcription

of all portions of evidence and other proceedings

requested in writing by counsel for the parties to be

included in this volume of the Reporter's Record in the

above-styled and numbered cause, all of which occurred

in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of

the proceedings truly and correctly reflects the

exhibits, if any, offered by the respective parties.

15 16 17 18 19 20 21 22

WITNESS MY OFFICIAL HAND this 1st day of April 2022. /s/Ann M. Record Ann M. Record CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR (NM) TX CSR #4747/NM CCR #89 Expiration Date: 10/31/2022 Deputy Official Court Reporter Midland County District Courts 500 N. Loraine, Suite 1001 Midland, Texas 79701 (432)688-4371 / ARecord@mcounty.com

23 24 25

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112 Voir Dire Proceedings (Continued) by Mr. van der Hoeven November 3, 2021

Please divert your attention away from

1 2

any media coverage, what you think might be related to

this case regardless of where you might see or hear

that. And do not use any type of electronic

5 6

device to send out or receive any information which you

believe might be helpful to you in this case on any

issue or matter. We'll be in recess for 15 minutes.

that point in time I'll need you back seated in the spot

you are now.

Thank you.

(Break from 3:30 p.m. to 3:54 p.m.)

(Sidebar conference in side room)

(Defendant and venire not present)

THE COURT:

First of all, No. 16 has approached

Okay.

A couple of questions.

Mr. Archuleta and has indicated he wants to change his

answer on one of the questions on the questionnaire.

have no idea what that means, but it would be No. 16.

And I don't know who that is.

MR. SELLERS:

THE COURT:

Michael McDonald. Okay.

He wants to change an

answer on a questionnaire.

If you want, we can pull him

in here and ask him what he wants to say.

really cares, that's fine.

If nobody

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113 Voir Dire Proceedings (Continued) by Mr. van der Hoeven November 3, 2021

MR. VAN DER HOEVEN:

1 2

Just call him up at

the end when we do everything else. THE COURT:

Well, when we do everything

else, we're going to come back in here, because

otherwise everybody hears us.

MR. SELLERS:

THE COURT:

Right. Okay.

Next is the jury has

been here a minimum of five hours today, some of them

probably six.

Mr. van der Hoeven spent three hours and

30 minutes doing his voir dire.

three hours and 30 minutes, we're here till about 7:15,

7:30.

etc., we're here till 8:00 or so.

that to the jury because they will start holding that

against y'all, not me.

If I give the defense

By the time we go through challenges for cause, I prefer not to do

So as to not interrupt the defense on

this voir dire, if you tell me whether you want to start

today and take a break say around 5:00, because I asked

everybody to take care of their child care matters when

we broke for lunch.

kids at 3:30, 4:00, 5:00, 6:00, they needed to make

arrangements for that.

want to keep them past 6:00 unless it's 6:05.

If they needed to pick up their

But I don't really -- I don't

MR. SELLERS:

THE COURT:

What time is it now? Ten till 4:00.

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114 Voir Dire Proceedings (Continued) by Mr. van der Hoeven November 3, 2021

MR. SELLERS:

1 2

stop.

THE COURT:

MR. HURLEY:

MR. SELLERS:

Let's go till 5:00 and then

interruption.

That's what I'd prefer. I'm fine with an

I mean, we want this trial to start. THE COURT:

Okay.

Oh, I understand.

I was just

going to give you the option if you wanted to start,

take a break, because I think we're going to have to.

I've got 75 people out there on pins and needles

wondering whether we're going to call them back or not. At this point in time -- I'm saying it,

12 13

y'all aren't -- if we go till, say five o'clock today

and take a break for tomorrow, we need to cut those 75

loose because y'all aren't going to want to turn around

and start the reconstituted panel.

MR. CARNEY:

THE COURT:

MS. NODOLF:

I strongly agree. Okay. But 75 are just calling in

though; right? THE COURT:

They're calling in.

But so

far, I've had them call in between 1:00 and 1:30, 3:00

and 3:30, and now after 6:00 because I didn't know where

this --

MS. NODOLF:

How long -- I don't mean to

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115 Voir Dire Proceedings (Continued) by Mr. van der Hoeven November 3, 2021

try and get you to commit to a time.

reasonably do you think you may -- do you think it will

be three hours?

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

MS. NODOLF:

Okay. Maybe five. All right. I'm kidding.

Probably two.

I was going to say if you

Two is what I'm shooting

Okay. Just reasonably.

Because if

you think two o'clock and --

MR. SELLERS:

MS. NODOLF:

hours.

six o'clock?

Probably.

for at most. THE COURT:

Four?

MR. SELLERS:

Four.

say six...

13 14

How long

Two hours? -- then I'm -- yeah, two

Then if we can -- what time was your cut off,

MR. HURLEY:

Judge, we need to stop at

5:00 if there is any way we can.

MS. NODOLF:

THE COURT:

At 5:00? I mean, I'm happy to stop at

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116

Voir Dire Proceedings by Mr. Sellers November 3, 2021

5:00, if y'all don't mind whoever is doing. MR. CARNEY:

2 3

THE COURT:

Then we'll break it up and

call them back in the morning. MR. SELLERS:

6 7

We'll

break it up.

4 5

No, that's fine.

I've got a good stopping

point kind of right in the middle that I can --

THE COURT:

Good enough.

What about releasing the 75, good to go?

MS. NODOLF:

MR. SELLERS:

THE COURT:

(Sidebar conference in side room

concluded)

(Open court, defendant and venire

present)

THE COURT:

Yes, release them. Yes. Mr. Archuleta, release them.

Mr. Sellers.

VOIR DIRE PROCEEDINGS

MR. SELLERS:

Good afternoon.

(Venirepersons:

MR. SELLERS:

than that.

Thank you, Your Honor.

"Good afternoon")

Come on.

We can do better

Good afternoon.

(Venirepersons:

THE COURT:

"Good afternoon")

All right.

As the Judge told

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117

Voir Dire Proceedings by Mr. Sellers November 3, 2021

you, my name is Frank Sellers.

Mr. Carney and Mr. Hurley and our team to come here to

help

privilege to represent him.

And along with

and his family, it is our honor and

I don't know much, but I do know this.

This is the most important part of the process, and it

is important for three reasons.

important to us.

what we do, and we want to do a good job for

The first is that it is

All three of us care very much about and

his family like we want to do for anybody.

is important for us to hear through the questions I plan

to ask you and the answers that you plan to give us what

we need to know about you to determine whether or not

you will be a good juror in this case.

And so, it

If we don't get those answers now, it

will be too late.

case, and so do Mr. Hurley and Mr. Carney.

to be the types of lawyers that if you or someone you

cared about ever had to call on a lawyer, that you would

trust us to give you proper advice in a case or for

someone you care about.

And I want to do a good job in this And we want

The second -- and that's the least

important of the three, but the second and more

important than the first is that it is important to

and

They have been waiting

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118

Voir Dire Proceedings by Mr. Sellers November 3, 2021

975 days for their day in court.

So it is important to

them to find out through your answers to the questions

we plan to ask you how you feel about certain issues

that are going to come up in a case like this. And I want to say right now before I go

5 6

any further:

We are not here in defiance of the law.

We have laws against homicides and murder for a good

reason, and we are not here to claim that any police

need to be defunded or anything crazy like that.

But we

are here in defense of the law and the accusation that

we violated the law, and we plan to use every tool at

our disposal and command to do the best job we can for

13 14

and

. The third and the most important of the

three is that it is important to you because this is the

only time that you will have an opportunity to speak.

And after that, it will be too late.

late, you know what we have to do if you go over there

in the jury box and you realize, "Hey, Judge, I should

have said something about this issue, but I just wasn't

sure whether or not I could speak up or speak out," it

will be too late.

And if it is too

So can I get everybody's commitment that

if we have what my grandma calls a gut feel, that you

will raise your hand and you let us know about it.

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Get

119

Voir Dire Proceedings by Mr. Sellers November 3, 2021

everybody's commitment?

(Venirepersons:

"Yes")

MR. SELLERS:

There are no right or wrong answers.

Thank you very much. You

can say anything you want to in this courtroom.

are not made by a hundred percent of everybody agreeing

down at the legislature.

hundred percent unanimous -- a law pass with a hundred

percent unanimous approval?

Laws

Anybody ever heard of a

No.

Right?

51 percent is

all it takes for a law to pass. And so the Judge knows this, and we know

11 12

this.

So you are allowed to disagree with the law.

You

are allowed to have an opinion that that is just not a

good law.

limit sign, 40 miles an hour, but you go 45 miles an

hour; right?

For example, anybody here ever seen a speed

(Laughter)

MR. SELLERS:

That's a law.

You don't

necessarily disagree with it, but you -- you know, you

understand you're not a bad person if you don't follow

that law.

Honor is looking for is if you have an opinion, a

feeling about the law involved in this case or some of

the facts involved in this case, that you let us know

that.

And so what we're looking for and all His

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

We'll start talking.

Ms. Lara, I haven't

heard much from you.

duty when you got your jury summons to come down here

and serve on a jury, if asked?

Do you feel that you had a civic

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

THE COURT:

Because it's our --

Okay.

You need to speak up,

ma'am. VENIREPERSON:

THE COURT:

Yes.

Stand up and speak up.

Nobody can hear you. VENIREPERSON:

13 14

Yes. Why?

It's our public duty to

come serve. MR. SELLERS:

All right.

happen if everybody said, "I'm too busy.

it.

VENIREPERSON:

to come and help the courts. MR. SELLERS:

I can't make

We wouldn't have anybody

That's right.

Thank you,

Ms. Lara. And, Mr. Lester, we haven't heard from

22 23

And what would

I don't want to be there"?

120

you either.

And let me tell you how this works.

You can sit down for just a second.

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121

Voir Dire Proceedings by Mr. Sellers November 3, 2021

Let me tell you how this works.

This is

not like a fantasy draft pick where we say, "You know

what?

we're going to pick her for the jury."

it works, okay?

they say you're in the "strike zone" or the "danger

zone," you know, you start with ten strikes for the

State, ten strikes for the defense, and then we have

12 jurors.

I like Ms. Lara, but we don't like Mr. Lester so That's not how

Each side has ten strikes.

So when

So the first 32 of you are in the danger

zone.

Does that make sense to everybody?

It's not like

we get to pick and choose who we want and don't want.

We just get to say who we really don't want, okay? And so, I've heard this forever, but, you

13 14

know, those of you who sit there and don't say a whole

lot to us are probably going to end up on this jury.

that's why I'm picking on the two of you because I'm

thinking you two might want on this jury.

Fair enough?

So all I'm asking and all the Court is

18 19

asking you to do is talk to us, all right?

going to move through this as fast as humanly possible,

I promise you that. Let me go through the flip side.

22 23

And I'm

Mr. Lester.

VENIREPERSON:

MR. SELLERS:

Yes, sir. Do you feel like there may

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

122

be a case or a circumstance where you might have a duty

not to serve?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

example.

all right?

MR. SELLERS:

Yes, sir. I don't believe so. Okay.

Let me give you an

Let's say that you had your car burglarized,

VENIREPERSON:

A duty not to serve?

Yes, sir. You go down -- you've been

called for jury duty.

You're about to go outside and

get in your car and you go outside and you open the car

door and you realize, holy smokes, somebody has bashed

the window in and stolen all my -- you know, my CDs, my

iPod, whatever they steal out of cars these days, do you

think that you would make a good juror in a car burglary

case?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Well, you're going to be

THE REPORTER:

Excuse me.

23 24 25

No, sir. That day. Not on that, sir. All right.

And why not?

upset -Could you

stand up, please, so we can hear you.

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VENIREPERSON:

You're going to be upset,

and you're probably not going to be very partial, and

emotions are a bad thing for a jury. MR. SELLERS:

4 5

would you want you on that jury?

VENIREPERSON:

MR. SELLERS:

If roles were reversed,

Of course not. Okay.

Just keep going.

Why not? VENIREPERSON:

Same thing.

I don't want

somebody who is there.

a very negative situation potentially and their emotions

are going to drive any decision they make.

case, I would think they may very well look to punish

someone, whether it be the right person or not. MR. SELLERS:

15 16

It's -- they've just dealt with

Right.

And in that

Thank you,

Mr. Lester. And so that's what we're talking about

17 18

when we talk about a duty not to serve.

And this really

happens in two ways.

example, in a DWI case.

religious, philosophical, the way that they were raised,

they don't drink, they don't understand why people

drink, and they just -- they're not -- that's not the

type of person they are, the type of case may be a

reason, okay?

First, the type of case.

So, for

Some people just have

The other may be a life experience that

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124

you had.

Is it Ms. Rosacker?

VENIREPERSON:

MR. SELLERS:

Rosacker. Rosacker.

Ms. Rosacker,

you ever had an allergic reaction or some sort of food

poisoning? VENIREPERSON:

7 8

I've had an allergic

reaction to medicine. MR. SELLERS:

To medicine.

All right.

And what if I said to you, you know, you have to put

that aside, but you have to take this medicine again,

would that be something you could do?

VENIREPERSON:

MR. SELLERS:

I wouldn't want to. But would it be something,

you know, you can just set it aside and, you know,

disregard that allergic reaction, that life experience

that you had.

18 19 20 21 22 23 24 25

Is that something you could do? VENIREPERSON:

Well, I guess it depends

on how severe my reaction was to it. MR. SELLERS:

Well, only you know that,

and I'm not trying to get into your medical business. All right.

Let me find somebody else,

another example. Anybody had an allergic reaction or food poisoning of some -- to some type of food and now they

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just can't eat it?

Yes, sir.

THE COURT:

MR. SELLERS:

VENIREPERSON:

Please stand up. Mr. Martin. Yes.

I had some bad tacos

one time, and I've never eaten them since, but I was

young. MR. SELLERS:

8 9

is having a taco party at his house, everybody is

invited.

about it.

You just need to put that aside and not worry

VENIREPERSON:

MR. SELLERS:

So what if I said the Judge

I couldn't do that. All right.

Everybody see

what I'm saying?

Thank you, Mr. Martin.

Everybody see what I'm saying?

The life

experience or the way you've been brought up, that's how

it can happen.

your questionnaire. Mr. Simmons, No. 47.

20 21

And many of you have been very honest on

I haven't heard

much from you.

VENIREPERSON:

MR. SELLERS:

Yes, sir. For example, I appreciate

your honesty on your questionnaire.

You've checked that

you just could not be fair and impartial in this case.

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You still feel that way?

VENIREPERSON:

MR. SELLERS:

Yeah. You think that

might start out not necessarily at the same starting

line as -VENIREPERSON:

6 7

MR. SELLERS:

VENIREPERSON:

Right. So I don't -- I just

couldn't do it.

MR. SELLERS:

VENIREPERSON:

Yeah, I mean, I've heard a

lot and read a lot about this when it happened.

126

Would it be okay -I hate feeling that way,

but that's just how I feel, you know. MR. SELLERS:

Sure.

And that's exactly

what this process is about, and your honesty is exactly

what we need.

juror in maybe another case, even another murder case.

Fair enough?

Because I take it you would be a perfect

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

But this one probably just

isn't the one for you.

Probably so.

Right. Would it bother you if I

asked the judge to excuse you? VENIREPERSON:

Do what?

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MR. SELLERS:

1 2

Would it bother you if I

asked the judge to excuse you?

VENIREPERSON:

MR. SELLERS:

127

Not really. Okay.

Well, I thank you,

sir. And that's what we're talking about.

6 7

There are just a few of you who indicated that maybe

this is just a little bit too close for comfort and might not start from even and from the same

9 10

starting point or start out with a strike against him.

And here's what we're trying to avoid is I can set my

feelings aside and be fair, the goblins and ghouls of

Gotham City judging Batman.

that we're trying to avoid, okay?

And so that's the situation

And so when you look around there are --

15 16

the Judge -- I think we had 440 show up?

THE COURT:

MR. SELLERS:

490?

420. 420.

And there's going to

be 14 jurors in this case, and that is because this --

the Judge knows is going to be too close to home for

some people.

that.

And so that's why we're talking about

And so I want you to tell me anything

that you want in response to my questions, questions the

judge has asked you, and even questions that the

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prosecution has asked you in their presentation this

morning and this afternoon.

want to us.

You can say whatever you

We all view life through a lens, and many

4 5

times that lens can be colored by our upbringing or our

life experience, and what we're looking for in this case

are people who can look through a clear lens when

judging the facts of this case.

for is the right jury for this case and nothing else,

okay? All right.

11 12

Let's move on.

Initial

impressions. Ms. Lujan, you and I have been making

13 14

And what we're looking

faces at each other, haven't we?

VENIREPERSON:

MR. SELLERS:

Please stand up.

Yes. What did you think when you

heard you were going to be on a jury panel for this

case? VENIREPERSON:

I was in shock.

I was

like -- I mean, I've heard in media, you know, when it

first happened, and I don't know anybody that --

involved.

picked because it's emotionally, and I'm like -- like

this morning, I'm like drained already.

I was just like hoping that I didn't get

MR. SELLERS:

Right.

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VENIREPERSON:

Like, I went for lunch,

and I was like not in my right mind.

purse where I went.

something -- and I know something that, personally me, I

would not want to be here right now.

want to get picked.

And I was just like this is

MR. SELLERS:

Like, I forgot my

I mean, I don't

You don't want to be on

this jury. VENIREPERSON:

Right.

Because I know

it's -- emotionally, it's -- somebody lost their life

and somebody is on trial for it.

to take that into my hands, you know, to try to convict

somebody or say I made the right choice, the right or

the wrong choice because I know, you know.

MR. SELLERS:

going to go on for two weeks.

Street; right?

VENIREPERSON:

MR. SELLERS:

Sure.

Now, this trial is

You work at Market

At United, yes. At United.

Okay.

And you

would be away from work; right?

VENIREPERSON:

MR. SELLERS:

And I would not want

Uh-huh. That's going to be weighing

on you as well, won't it?

VENIREPERSON:

MR. SELLERS:

Right. I'm just sensing that maybe

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

this is just not the right case for you either. VENIREPERSON:

It's not.

I served on a

jury a few years ago, and it was a totally different

case, and we were there for like two days.

DWI case, and it was nothing like this.

And it was a

MR. SELLERS:

VENIREPERSON:

just taking, like I said, the better of me.

morning, when I left here for lunch, I was not in my

right mind.

what I wanted to order.

forgot my purse there.

couldn't think clearly.

130

Right. So I know emotionally it's Like this

I mean, I couldn't even order and clearly Like I said, I went off and And I was like, oh, my gosh.

MR. SELLERS:

As the case goes on and

things get more intense, do you think that might cause

you some issues --

17 18 19 20 21 22

THE REPORTER:

Mr. Sellers,

could I get you on a microphone, please. VENIREPERSON:

Yes, I think it will.

think -- you know, I am just speaking for myself. MR. SELLERS:

Right.

Affect your ability

to pay attention.

VENIREPERSON:

MR. SELLERS:

I'm sorry.

Yes. And do you think in the end

that that could possibly -- if your intentions affected

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

how the -- effect on your verdict?

VENIREPERSON:

MR. SELLERS:

Yes. All right.

And so would

you mind if I ask that the judge excuse you?

VENIREPERSON:

MR. SELLERS:

131

No, I would not mind. All right.

Thank you,

Ms. Lujan.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

meant to talk to Ms. Leslie.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

You're welcome. Ms. House. Yes. Oh, no, no, I'm sorry.

Yes. How are you? Good. Ms. Lesley, when you walked

into the courtroom, the judge told you what the charges

were.

mind?

What was the first thing that went through your

THE REPORTER:

Could you stand up,

VENIREPERSON:

Yes.

I was thinking I was -- I really didn't

20 21

24 25

please.

have any big thought.

I just -- it's a murder case.

MR. SELLERS:

All right.

You ever sat on

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a jury before?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON: part.

MR. SELLERS:

VENIREPERSON:

I've been on the defense

Okay.

Who is that?

Verne Martin.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Long gone? Yeah. All right.

Thank you for

your honesty, ma'am.

Mr. Hillis -- is it Hillis?

VENIREPERSON:

MR. SELLERS:

He's long

gone.

What is that?

I worked for an attorney for quite some time.

No, but I've been on the

other side.

So definitely not a jury on

a murder case.

5 6

No.

Hillis. Mr. Hillis, you attended

the funeral of this matter, didn't you? VENIREPERSON:

Well, the graveside.

taking my daughters out.

wanted to do when the procession come by for the

funeral.

Just

That was something that they

MR. SELLERS:

Right.

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

VENIREPERSON:

And so we went out for

that and was really just around the corner from the

cemetery so we just walked over and watched that

portion. MR. SELLERS:

All right.

Kind of unusual

for a juror to have attended the funeral of a person.

You know what I mean?

VENIREPERSON:

MR. SELLERS:

133

Yeah, probably so. You sense kind of my

heartburn about that?

VENIREPERSON:

MR. SELLERS:

Yeah. You think you might be a

little too close to this case to judge it through a

clear lens?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

I don't think so. Okay.

All right.

I think I have strong

feelings on both sides.

not having any feelings.

but I've heard it and kind of -- I mean, I'm a very

strong supporter of America and the police and military

and -- but I'm also a homeowner.

I'm not real familiar with it,

MR. SELLERS:

23 24

I might be kind of opposite of

And so, I mean, I --

You have daughters, you

said? VENIREPERSON:

I have four daughters,

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yes. MR. SELLERS:

Four daughters.

As you sit

there -- or stand there right now, what are your

feelings or opinions about VENIREPERSON:

5 6

I have none.

I don't know

him. MR. SELLERS:

7 8

You have strong feelings

about the case on both sides you just told us; right? VENIREPERSON:

Well, yeah, I mean --

well, I just -- I just -- the little bit I know I saw on

the news that, you know, an alarm went off and -MS. NODOLF:

12 13

We're getting in the facts of the case.

THE COURT:

MS. NODOLF:

MR. SELLERS:

what they've heard.

to know.

19 20

Objection, Your Honor.

Sustained. Thank you. Judge, I will be asking

I mean, that's kind of what we need

THE COURT:

The -- I would prefer not to

go into any facts or perceived facts of the case.

MR. SELLERS:

MS. NODOLF:

All right. And, Your Honor, I believe

that our Motion in Limine that was filed prior to trial

would address this issue as well.

THE COURT:

Okay.

I'll let you proceed,

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

Mr. Sellers. MR. SELLERS:

I'm just trying to square

how you have strong feelings on both sides.

VENIREPERSON:

Well, I just -- I'll just

say that I'm a Christian; and if I need to be on the

jury, I'll be on the jury.

if I can.

VENIREPERSON:

MR. SELLERS:

I don't know what

You can say whatever you

want to. VENIREPERSON:

14 15

Okay.

to say without saying something that -- I mean --

12 13

I don't think I can let

you.

10 11

I'll just leave it at that,

MR. SELLERS:

8 9

135

Okay.

I just feel that

what I've seen, I can see both sides. MS. NODOLF:

Your Honor, I would ask that

we -- I would object at this time.

facts specific of this case and then we allow for Mr. --

further examination of Mr. Hillis during a bench

conference.

21 22

Not necessarily at this time. MR. SELLERS:

sides, Your Honor.

All he said was, I see both

I mean --

THE COURT:

MR. SELLERS:

We're getting into

I understand. -- we have a constitutional

right to be able to be heard.

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THE COURT:

136

I stated that I don't want to

go into any actual facts or perceived facts or heard

facts pertaining to the case, and he has not responded

in that manner at this point.

Mr. Sellers.

MR. SELLERS:

Mr. Hillis.

Go ahead.

Thank you,

I appreciate it.

VENIREPERSON:

MR. SELLERS:

Thank you. Ms. Zoller, as you sit

there right now, what are your thoughts and feelings

about

? VENIREPERSON:

Honestly, when we came the

other day, I didn't remember but then it came up on the

news --

THE REPORTER:

I can't hear you.

VENIREPERSON:

Well, I didn't know when

we came the other day what the case was with the names,

but then the news reports started coming out again, and

that's when I made the connection to what the case was

about.

MR. SELLERS:

VENIREPERSON:

going to lie.

you know.

him?

Sure. And it was -- I'm not

It was concerning when it first came out,

A murder is concerning to me.

I have no feelings.

But as far as

I don't know the family or

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anything like that. MR. SELLERS:

2 3

Thank you.

Appreciate it,

Ms. Zoller. How about you, Mr. Hernandez?

You've

been sitting there right in front of us all day.

are your thoughts and feelings as you sit there right

now about

MR. SELLERS:

THE REPORTER:

a microphone, please.

hear you.

I'm sorry.

Could you use

Your back is to me and I can't

VENIREPERSON:

I said I do have thoughts

and feelings about it. MR. SELLERS:

17 18

You want to be called out

and talk in private?

I would rather not say,

but I do have thoughts and feelings about it.

10 11

? VENIREPERSON:

What

But you maybe rather speak

in private?

VENIREPERSON:

Yeah, sure.

MR. SELLERS:

And for anybody who wants to do that, we

Okay.

Appreciate it.

can do that.

If you have thoughts and opinions you

would rather share in private, that's perfectly

permissible.

this.

We'll call people up at the very end of

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How many of you have heard, read, or seen

1 2

something about this on the news?

Show of hands.

How many of you -- and let's just level

3 4

with each other.

read about this on the news since Tuesday when you came

in the first day? Okay.

7 8

How many of you have heard, seen, or

Y'all can just leave your hands

raised. All right.

9 10

Yes, sir.

VENIREPERSON:

You said leave your hands

raised.

MR. SELLERS:

(Laughter)

MR. SELLERS:

thought you wanted to talk.

Oh, I did say that.

Sorry about that.

Of those on the third row, let's see,

17 18

Mr. Birden.

have you formed any opinions about this case?

Based on what you've heard, read, or saw,

VENIREPERSON:

No, I'll be a hundred

percent honest with you.

I don't watch the news, don't

follow the news, don't really care for it because it's

just one person's opinion.

any media outlet is only going to give you what they

want you to hear.

My opinion is the news or

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MR. SELLERS:

VENIREPERSON:

(Laughter)

VENIREPERSON:

Other than that, I have --

I have no idea.

MR. SELLERS:

VENIREPERSON:

So I watch the weather,

plan my golf day accordingly.

Right.

this was about.

All right. Yeah, I have no idea what

I haven't even looked into it because I

feel like I would rather go into it with an open heart

and open eyes and decide for myself at that time.

MR. SELLERS:

How about you, Ms. Hernandez?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

really don't.

you guys explained it to us.

case.

feelings towards it.

23 24 25

Thank you, sir.

How I feel about it? Yeah.

What opinions have

you formed about this?

All right.

I don't have any.

I mean, I heard about it, you know, when But I didn't remember the

And I did see it on the news.

MR. SELLERS:

But I have no

Did you believe what you

read on the news? VENIREPERSON: believe half of what it says.

The news, you can only Like he said, they're

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only going to give you what they want to give you, and

that's it.

MR. SELLERS:

How about you, Mr. McDonald?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Mr. Birden.

does.

Uh-huh.

Yes, sir. You've seen the coverage? No, sir. Okay. Me personally, same with

I don't watch any news.

MR. SELLERS:

VENIREPERSON:

sir.

day when we came here.

Usually my wife

No Facebook, no -No Facebook, nothing, no,

Yeah, the first I heard about this was the other

MR. SELLERS:

How many of y'all have had discussions

with others about this case? Yes, sir.

19 20 21

All right.

Let's start with you,

Mr. Combs. VENIREPERSON:

Yes, Robert Combs.

We had

just moved to Midland about four months, five months

before the news started coming out on that.

followed it pretty closely, my wife and I, just kind of

any news on TV or -- you know, in the Midland news.

So we

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MR. SELLERS:

1 2

So you discussed it with

your wife?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Absolutely, yes. Anybody else? Not really.

It was --

really was just us two when that happened, you know.

came here -- we came for work.

MR. SELLERS:

VENIREPERSON: MR. SELLERS:

10 11

Thank you.

And then most recently. All right.

And I'm sure

when you got called for jury duty.

VENIREPERSON:

MR. SELLERS:

Who else?

All right.

Well, yes. All right.

Thank you, sir.

I saw a couple more hands.

Who else has discussed this case?

Yes, Ms. House.

VENIREPERSON:

When it first happened, I

was with friends for supper, and we were talking about

it.

accident.

that's...

22 23

And my first reaction was that it was a terrible And others had different opinions.

MR. SELLERS:

Others had opinions like

is guilty.

VENIREPERSON:

MR. SELLERS:

Yes. All right.

Thank you,

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

Ms. House. How many of you have heard others express

2 3

opinions to you that they think

in discussions? Yes, sir.

5 6

is guilty

I'm going to -- I need some

help.

VENIREPERSON:

MR. SELLERS:

142

Reggie Weeks. No. 118.

Mr. Weeks, yes,

sir. VENIREPERSON:

Yeah I just heard when it

happened, that some of the people I was talking to

thought he was guilty and -- but it's been such a long

time.

ring a bell until I found out exactly what it was and

thoughts came back to me.

16 17

When we filled out our questionnaire, it didn't

MR. SELLERS: discussions with?

VENIREPERSON:

MR. SELLERS:

MS. NODOLF:

21 22 23 24 25

Who did you have those

Some friends. Do you agree with them? Object.

That's an improper

commitment question. MR. SELLERS:

Whether he thinks he's

formed an opinion? MS. NODOLF:

I think if he's already

formed an opinion, then that's a proper question, but

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

143

whether or not he agrees with his friends or not having

had no evidence presented is an improper commitment

question.

THE COURT:

MR. SELLERS:

THE COURT: bait you, Counsel.

I'm not going to sit here and

If you'll rephrase, he can answer.

MR. SELLERS:

Sure.

As you sit there today, sir, do you have

10 11

What would I be committing

them to?

7 8

If you'll rephrase.

the opinion that

is guilty, Mr. Weeks?

VENIREPERSON:

THE COURT:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

You do? Yeah, I do. All right.

Thank you,

Who agrees with Mr. Weeks?

Raise your

hand. MR. CARNEY:

20 21

If you'll stand up.

Mr. Weeks.

18 19

Yeah.

Frank, Ms. Dunn had her hand

up.

MR. SELLERS:

VENIREPERSON:

Ms. Dunn.

Yes, ma'am.

Well, I've heard multiple

conversations when this first happened, that people that

either felt he was guilty or that it was a mistake.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

1 2

All right.

formed an opinion about that?

VENIREPERSON:

MR. SELLERS:

I have not. All right.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Dunn. Dunn, Ms. Kayleigh Dunn? Uh-huh. All right.

opinion that they think

perfectly natural thing to do.

coverage.

None of it -- none of it was correct.

the reporter to talk to us.

it out.

19 20

is guilty.

Wrong facts, wrong law. I even invited

Maybe she could straighten

VENIREPERSON:

How about an opinion, who

thinks he's innocent? MR. SELLERS:

Yeah, let's hear it.

got an opinion that he's innocent? VENIREPERSON:

THE COURT:

VENIREPERSON:

It's a

And I've seen the news

I saw it last night.

Who else?

Somebody else has to have formed an

Thank you,

Ms. --

And have you

Who's

Raise your hand.

I do, No. 51.

No. 51. I think he's innocent

until proven guilty. VENIREPERSON:

Absolutely.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

VENIREPERSON:

MR. SELLERS:

Yes. All right.

just innocent, period, full stop?

hand.

Yes, ma'am -- sir.

Who thinks he's

Anybody?

I see a

Is that Mr. Rodriguez?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

145

McCright. McCright. Yes.

I have plenty of

family, friends who -MR. SELLERS:

VENIREPERSON:

Yes, you do. -- I have talked to them

about this and I've just heard stories amongst family,

coworkers. MR. SELLERS:

13 14

is innocent.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Not just until or unless

Right. All right.

You have a

brother who works for Midland PD, don't you?

Uh-huh.

proven guilty.

And you think

I did. Did. Actually, go figure.

There's two Eric McCrights that work for Midland PD. MR. SELLERS:

Wow.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

VENIREPERSON:

(Laughter)

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

True story. All right.

Thank you,

Mr. McCright. Who else feels that way?

8 9

Eric McCright, do you know

why I, Eric McCright, am stopping you this evening?

He got pulled over by him.

innocent. Okay.

All right.

I'm going to do three

of these and three of these only and I'm going to space

them out so you'll know kind of how far along we are in

our presentation, okay?

In a case where someone has died, I would

automatically start out favoring the prosecution.

strongly disagree to ten, strongly agree.

Zero,

I'm going to do exactly like Andrew did.

I'm going to say your number and want to hear from you,

what your answer is, okay?

20 21

In a case where someone has died, I would automatically start out favoring the prosecution.

Juror No. 1.

VENIREPERSON:

MR. SELLERS:

I don't really understand. In a case where someone has

died, I would start out favoring the prosecution as

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

opposed to the accused.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS: would be not guilty.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

I wouldn't -- I

Okay.

Zero is strongly

It depends. I just need a number. I don't know.

I wouldn't

Okay.

Let's start with

No. 2. VENIREPERSON:

18 19

him.

go to answering this.

I'm kind of the same with

Until I hear everything, then that's where I would

MR. SELLERS:

21 22

Zero.

favor either one.

16 17

Well, so strongly agree

disagree that you would favor the prosecution.

He's straight out guilty

wouldn't favor either one.

10 11

Right.

Strongly disagree would be guilty.

VENIREPERSON:

8 9

Guilty or innocent.

or innocent.

6 7

147

Okay.

I just need a

number.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Okay.

Five.

Five. Maybe today.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Ms. Zoller.

VENIREPERSON:

Mr. Hernandez, same? Yeah. All right.

The way I'm reading that

it says:

I would automatically start out favoring the

prosecution, I strongly disagree with that so mine would

be zero. MR. SELLERS:

9 10

Mr. McNew.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

There needs to be an

Right. Is this an investigation? No, this is a trial. It's already been done.

Zero.

MR. SELLERS:

Ma'am.

VENIREPERSON:

It's your personal opinion.

investigation.

Is a five what we're doing

This is not the time to be politically correct.

15 16

All right.

right now?

13 14

Zero.

I agree with her.

I would

pick zero.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

1 2

Zero.

Okay.

You disagree

you would favor the prosecution. VENIREPERSON:

3 4

both sides.

I hear the whole case.

No, I would have to hear

I can't be on one side or the other before

MR. SELLERS:

How about you, Ms. Miller?

VENIREPERSON:

MR. SELLERS:

All right.

I would go strongly zero. Okay.

How about you, Mr. Lester?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Juror No. 11.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

149

Zero. Ms. Lara. A one. A one.

Zero. 12. Five.

Stuck in the

middle.

MR. SELLERS:

Five?

And, Mr. Combs, 13.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Zero. 14. Zero. 15.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

27.

Zero. 16. Zero. 17. Five. 18. Zero. 19. Zero. 20. Zero. 21. Zero. 22. Zero. 23. Zero. 24. Zero. 25. Zero. 26. Two. All right.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Zero. 29. Zero. 30. Zero. 31. Zero. 32. Zero. 33. Five. 34. Zero. 35. Zero. 36. Zero. 37. Zero. 38. One. 39. Zero. 40. One.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

THE REPORTER:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON: MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

(Laughter)

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

42.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Ten. Ten? What was the answer? Ten. Right?

What's this one on

Strongly agree, ten. Strongly agree. Start out favoring the

prosecution.

41.

this other again?

152

Oh, no.

Then zero.

Zero.

That was -- you're No. 41? 41, yes, zero. All right.

Zero.

Zero. 43. Two. 44. I still believe that we're

all innocent until proven guilty so I'm saying zero. MR. SELLERS:

Yes, sir.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

45.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Zero. 46. Zero. 47. Zero. 48. Zero. 49. Zero. 50. Zero. 51. Zero. 52. Zero. 53. Zero. 54. Zero. 55. Zero. 56. Zero. 57.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

VENIREPERSON:

MR. SELLERS:

Zero. You're not just saying that

because they all said it, are you?

VENIREPERSON:

MR. SELLERS:

58.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

MS. NODOLF:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

154

No?

No. Not you.

All right.

Zero. 59. Zero. 60. Zero. 61. Zero. 62. Zero. Am I going too fast? No. 63. Zero. 64. Zero. 65. Zero. 66. Zero.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

67.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Zero. 68. Zero. 70. Zero. 72. Zero. 73.

VENIREPERSON:

THE COURT:

76.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Five.

Thank you, sir.

Zero. 77. Zero. 78. No. 79. Zero. 80. Zero. 81. Zero. 82. Zero.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

94.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

83. Zero. 85. One. 86. Two. 87. Zero. 89. Zero. 90. Zero. 91. Zero. 92. Zero. 93. Zero. Thank you, ma'am.

Five. 95. Zero. 96. Zero.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

102.

VENIREPERSON:

MR. SELLERS:

103.

VENIREPERSON:

MR. SELLERS:

104.

VENIREPERSON:

MR. SELLERS:

105.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

97. Zero. 98. Zero. 99. Zero. 100. Zero. 101. Five. Thank you, Ms. Campos.

Five. Thank you, sir.

Five. Thank you.

One. Thank you.

Zero. 106. One. Thank you.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

108.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Zero. 109. Zero. 110. One. 112. Five. Five, Mr. Webster?

VENIREPERSON:

Five, yes.

MR. SELLERS:

113.

VENIREPERSON:

MR. SELLERS:

115, Ms. Towery.

VENIREPERSON:

MR. SELLERS:

116.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

119.

Thank you, sir.

Zero. Zero?

Zero. Zero.

Zero. 117. Zero. 118. Five. Thank you, sir.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

123.

VENIREPERSON:

MR. SELLERS:

Zero. 120. Zero. 121. Zero. 122. Zero. Thank you.

Zero. Where are we at?

Mr. Rickman, there we go.

124.

VENIREPERSON:

MR. SELLERS:

125.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

127.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Zero. Thank you, Ms.

Zero. 126. Five. Five.

Zero. 128. Zero. 129.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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VENIREPERSON:

MR. SELLERS:

130.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

134.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

137.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

139.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Five. Thank you, ma'am.

Five. 131. Zero. 133. Zero. Thank you.

Zero. 135. Zero. 136. Zero. Thank you, Ms. Tatum.

Zero. 138. One. One?

Thank you, ma'am.

Zero. 141. Zero.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

146.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

148.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

150.

VENIREPERSON:

MR. SELLERS:

23 24 25

161

142. Zero. 143. Zero. 144. Zero. 145. Five. Thank you, sir.

Zero. 147. Zero. Thank you, ma'am.

Zero. 149. Zero. Thank you.

Zero. All right.

One of three

down. So I want to talk to you now about some of the law involved in this case.

The fact that a

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

person has been arrested, charged, and is now standing

trial is no evidence of his guilt.

you are probably wondering:

Why are we here?

Very important.

You know, so some of Right?

I'm going to spend quite

a bit of time on this.

There are different levels of

proof that get you over here into a -- the hot seat at a

trial.

Anybody ever seen this?

VENIREPERSON:

MR. SELLERS:

No.

Who said "no"?

Ms. Lujan.

(Laughter)

MR. SELLERS:

VENIREPERSON:

No.

over.

Your nose is growing. I've never gotten pulled

Knock on wood.

MR. SELLERS:

Mr. McNew, though, he's turning around

Good for you.

All right.

like he gets pulled over all the time, don't you?

VENIREPERSON:

MR. SELLERS:

(Laughter)

MR. SELLERS:

No. No.

Who knows what level of

proof is required before police can stop you and pull

you over and interrupt your day?

VENIREPERSON:

MR. SELLERS:

Anybody?

Probable cause. Almost.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

Yes, sir.

VENIREPERSON:

same thing, probable cause.

MR. SELLERS:

163

I was going to say the

Yeah.

Almost.

One level

lower.

suspicion, all right?

that might lead somebody to conclude you are about to or

have just or in the process of committing a crime, all

right?

Burdens of proof start with reasonable So specific explainable facts

Specific explainable facts, more than just mere

speculation.

Everybody good with that? Next level up is the level that gets you

11 12

charged with murder but is also the same level that gets

you a speeding ticket written to you.

I know you haven't had one, Ms. Lujan.

But has anybody had a speeding ticket?

Any kind of moving violation ticket; right? Has anybody here fought a speeding

17 18

ticket?

Yes, sir.

Tell me about it, Mr. Birden.

VENIREPERSON:

I got pulled over 36 in a

35 when I was 17, and I argued the fact that there was

no calibration date on his radar.

with me and the judge dismissed it.

MR. SELLERS:

(Laughter)

And the cop agreed

Wow.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

1 2

Yeah, good for you.

So you

went to court and had a trial. VENIREPERSON:

Well, it was just a

speeding ticket trial; but, yes, sir, the officer showed

up.

not show up.

I took a gamble that he would be busy that day and

(Laughter)

MR. SELLERS:

VENIREPERSON:

And he did. And he did.

My parents

told me if I got a ticket I would lose my car.

a 35, you know, I asked to see the calibration, the last

time the radar had been calibrated to prove that it was

accurate.

judge dismissed it.

And he couldn't provide the evidence so the

MR. SELLERS:

Good job.

true definition of speeding?

then existing conditions.

speeding.

reasonable?

A reasonable speed under

You think 36 in a 35 might have been

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

You know the

That's the definition of

So 36 in

No. No?

For me to get pulled over? Well, to get pulled over,

one thing, but to be convicted. VENIREPERSON:

36 in a 35?

You see the difference?

Yes.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

So the difference in what

will get you a ticket versus what it takes to convict

you.

arrested and put on trial is much different than what it

takes to convict you and label you a murderer in this

case is what they want to do.

Same thing here.

What it takes to get you

Preponderance of the evidence.

A few of

you indicated that you sat on a civil jury before.

Preponderance of the evidence, these are used in civil

cases.

More likely than not.

the scales of justice.

But just whichever side tips the scale ever so slightly

more than the other, that's the greater weight or a

preponderance of the evidence.

I don't see any around here.

That's -- in civil cases, does anybody

15 16

You probably have seen

know what they fight about?

VENIREPERSON:

Money.

VENIREPERSON:

Money.

MR. SELLERS:

Money.

So that's

what we're talking about there. Next one up is clear and convincing

21 22

evidence.

termination of parental rights jury?

parental rights.

Right?

Anybody ever -- here ever sat on a Termination of

You shook your head yes, ma'am.

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VENIREPERSON:

I've never been on a jury

THE REPORTER:

I'm sorry, could you stand

VENIREPERSON:

Sorry.

THE REPORTER:

And what's your number?

VENIREPERSON:

I haven't been on a jury,

1 2

but I --

3 4

up.

but I'm a case worker.

to terminate rights.

So I've terminated.

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

For like CPS? Yes, sir. Okay.

So you work for CPS?

Yes, sir. All right.

And so this is

the standard y'all deal with in child abuse cases.

VENIREPERSON:

MR. SELLERS:

I testified

Yes, sir. All right.

Thank you,

ma'am.

THE REPORTER:

What's your number?

VENIREPERSON:

101.

THE REPORTER:

Thank you.

MR. SELLERS:

And so in cases like that,

we're talking about where you not just take a child from

their parents, you know, for the weekend or a couple

weeks, summer camp, something like that, we're talking

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about when you terminate a parent's rights.

Take that

child out of that family tree because this parent is so

unfit that they cannot be a parent anymore, any longer

of this child ever again. The definition and the standard used in

5 6

that case is clear and convincing evidence.

A firm

belief or conviction as to the truth of the allegations

sought to be established. Now, who here thinks that -- which

9 10

standard is higher, clear and convincing or beyond a

reasonable doubt?

VENIREPERSON:

MR. SELLERS:

Beyond a reasonable doubt. Raise your hand if you say

clear and convincing.

A few hands.

you say beyond a reasonable doubt.

side has it, I'm sorry, ma'am.

Raise your hand if All right.

The B

The standard between clear and convincing

17 18

and beyond a reasonable doubt is that presumption of

innocence that we talked about, all right?

you think somebody is possibly, you know, maybe guilty,

you're 51 percent sure of it or you have a firm belief

or conviction about the truth of the allegations, that

is still not enough to convict somebody and label them a

murderer.

So even if

A citizen standing trial is not required

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to produce evidence or testify in their defense.

heard many of you say that you would like to hear both

sides.

Who wants to hear both sides?

Yeah.

And, Ms. Zoller, if for some reason we

4 5

weren't to -- we didn't put on a case, the State put on

their case and Mr.

call any witnesses on our side.

telling us we would have to do a little bit more before

we find him not guilty?

didn't testify and we didn't

VENIREPERSON:

Would -- are you

No, it would be nice to

get his side of the story, not necessarily him

testifying.

MR. SELLERS:

VENIREPERSON:

Sure. But to have some say-so on

his part, it would be nice, but it wouldn't be a deal

breaker.

MR. SELLERS:

Who would it be a deal breaker for? .

Sure.

have to hear from

from his side before you could find him not guilty.

You have to hear some evidence

You?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

You

Yes, sir. Tell me about it. Well, if someone is being

put on trial for murder -- sorry.

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MR. SELLERS:

VENIREPERSON:

No. 19, Mr. Layton. Sorry.

I mean, if the

prosecuting side is giving me all the evidence and I

hear nothing from the defendant's side, I'm being swayed

to this side.

of the perspective.

this side, that scale is being tipped this way, in my

opinion.

at least on my opinion, I need evidence on both sides.

I need to hear the case from both sides So if there is strong evidence on

So if you want a fair and just trial from --

MR. SELLERS:

Who else feels like Mr. Layton?

No. 70.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

believe that everyone has a right to voice.

our constitution gives us. MR. SELLERS:

20 21

All right.

Thank you, sir.

Dian Gallero. Ms. Gallero. Yes. Yes. I feel the same way.

All right.

That's what

Thank you,

ma'am.

Who else?

Let me start here at the front.

24 25

my first page.

Back to

Mr. Combs -- Mr. Martin. VENIREPERSON:

Martin.

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MR. SELLERS:

1 2

Yes, sir.

If you would

stand up for us before I get yelled at.

(Laughter)

VENIREPERSON:

It just seems like it

would be a voice on both sides a little bit just so you

would be -- a little bit of voice on both sides.

kind of how I feel. MR. SELLERS:

8 9 10

All right.

And do you feel

strongly enough about that that if we didn't do that, you couldn't find

not guilty?

VENIREPERSON:

MR. SELLERS:

Who else feels like Mr. Martin?

Yes, sir.

That's

It would be probably hard. Thank you, sir.

In the back, is that

Mr. Haney? VENIREPERSON:

Yes.

Without you

presenting a case for Mr.

just going to eat him up.

defense.

has to testify himself, but it's up to you to discredit

the prosecution's case.

the prosecution is He's got to have some

I don't believe that Mr.

MR. SELLERS:

Sure.

necessarily

And we would do

that, you know, but they call witnesses.

cross-examine them.

And we might say we rest our case too.

We would

Then they would rest their case. But we would

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still cross-examine them.

that would be enough for you?

So are you telling me that

VENIREPERSON:

MR. SELLERS:

Yes, sir.

171

Yes. Okay.

In the back, is that

Mr. Jacobs? VENIREPERSON:

Yes.

same way too.

up and tell my side of the story.

Yeah, I feel the

You know, if I'm innocent, I want to get So if a man doesn't

get up and tell his side of the story, then I think he's

hiding something. MR. SELLERS:

12 13

something.

All right.

Hiding

Thank you, sir.

Who else feels that way?

Anybody?

We talked earlier, Mr. Martin.

Who else?

Next row.

Anybody on this side that I missed?

All right.

Anybody else?

The presumption of innocence

alone is sufficient to acquit.

the Code of Criminal Procedure.

this concept of beyond a reasonable doubt.

have some librarians in here.

a librarian.

This is directly from So let's talk about I know I

Raise your hand if you're

I think there are two here. VENIREPERSON:

Well, sort of.

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MR. SELLERS:

I thought you were like a

hospital administrator, local celebrity.

(Laughter)

VENIREPERSON:

No.

I was once a way long

time ago a high school librarian.

MR. SELLERS:

Who else?

Yes, sir.

There is one more, though, isn't there? MR. CARNEY:

MR. SELLERS: raised his hand.

Mr. Webster. Mr. Webster.

Yeah, he just

Maybe I was wrong then.

All right.

Thank you, ma'am.

One more.

Okay.

I'm going to pick on you,

Mr. Webster.

Do you know where this concept of beyond a

reasonable doubt comes from?

VENIREPERSON:

MR. SELLERS:

like every lawyer.

right?

letting me pick on you.

Um. That's all right.

You're

Nobody knows where it comes from;

So I'm going to explain it to you.

Thanks for

Beyond a reasonable doubt is first found

21 22

in the literature around the 18th century firmly

established as the standard of proof in cases in old

England.

anyone who convicted an innocent person would have --

The prevailing belief at the time was that

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you've probably heard this quote -- innocent blood on

their hands, all right?

soldiers who would carry out verdicts.

felony cases, there was only one sentence and the

sentence was death.

It was first the judges and And back then in

But they didn't want that on their

consciences so they decided to pass the responsibility

on to juries, to citizens.

were members of the church clergy.

At that point, all juries Whether it was them,

the judges, or the king, anyone who wrongfully convicted

someone, even well-meaning and well-intentioned, risked

eternal damnation.

actually not a safeguard for the accused but a safeguard

for the souls of the jury from the mortal sin of

convicting an innocent person.

Proof beyond a reasonable doubt was

So reasonable doubt obviously does not

mean a moderate amount of proof.

It does not mean just

a little bit of proof.

of doubt, juries would take, quote, the safer path for

their souls, refusing to enter a verdict which would be

today's equivalent of a not guilty verdict.

As the literature says, in cases

Everybody still with me?

All right.

And so King George didn't like that, as

you can imagine and, you know, you have the

foreshadowing here of sitting in this courtroom.

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would bring people to trial for various things.

when jurors did not convict as the king wanted, instead

of what happens now, is the king's men would jail the

jurors and ship them to be imprisoned in colonies.

probably heard of a penal colony.

Georgia was a prison for the king's men and the jurors

who would not do what the king wanted.

You

The entire state of

The founding fathers were tired of this.

8 9

And

Housing the king's prisoners, seeing citizens who

disagreed with the king being imprisoned, seeing jurors

who were imprisoned for also disagreeing.

happened?

Who knows what this is a picture of? VENIREPERSON:

13 14

So what

Declaration of

Independence.

MR. SELLERS:

Close.

VENIREPERSON:

Constitution.

VENIREPERSON:

Articles of Confederation.

VENIREPERSON:

Constitution.

MR. SELLERS:

Somebody said Constitution.

This is the signing of the Constitution at the

Constitutional Convention in September -- on

September 17, 1787, in Independence Hall.

kind of right.

You're all

They were actually committing treason

every time they got together to discuss the American

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Revolution.

They didn't have Twitter.

They didn't have

Facebook.

They didn't have the Midland Reporter

Telegram.

They had books.

experiences.

scholars, well-read.

to handle criminal justice issues, including the rise

and the fall of the Roman and Greek Empires, other

empires where they would -- they called the ordeals.

Hot iron.

They had their own

They had lifelong studies.

They're all

They had studied and debated how

You would grab a hot iron to determine

whether or not after three days if it would heal, you

were innocent.

That's how they used to handle criminal justice issues.

And if not, then you were guilty.

Who thinks this is a little better system

13 14

than that?

They would throw the accused in a puddle --

or, you know, a lake full of water to see whether they

would sink or swim.

guilty.

What kind of system is that?

If you sank, you died and you were

If you could swim and float, then you were not.

So that's why we have this and our system

19 20

of government, the Constitution and the Bill of Rights

were born.

will deal with a lot of these rights.

trial by a jury of your peers, not those selected by the

king's men and not by judges selected by the king.

right to be free from being twice put in jeopardy for

In this trial, like every criminal trial, The right to a

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The

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the same accusation.

The right to confront your

accusers in open court.

not to be forced to answer any questions while the king

and his men go on fishing expeditions to see if they

could find malfeasance that you've committed.

right to have every accusation by the government proven

beyond a reasonable doubt.

in place since the very first trials in our country's

history.

And the right to remain silent,

And the

And this standard has been

Who can fill in the blank?

Ma'am.

VENIREPERSON:

MR. SELLERS:

Who else?

Yes, ma'am.

You can't make a motion like that if you

No. 93 says "until."

don't want to talk.

(Laughter)

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Until.

Sorry. Who else? Unless. Unless. Until. The law says "unless."

What is the difference between "unless" and "until"?

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Yes, ma'am.

VENIREPERSON:

I was looking for my

number.

MR. SELLERS:

VENIREPERSON:

Yes, 122. 122, Sydney Bryer.

"until" means that you're expecting for it to eventually

happen.

that it couldn't happen.

"Unless" means that there's a very high chance

MR. SELLERS:

VENIREPERSON:

10 11

Right. And so the innocent

stands. MR. SELLERS:

Right.

And you folks are

the "unless."

Unless they bring evidence that proves to

you beyond a reasonable doubt that

acting in self-defense of his home, his family, and his

property.

think about finding him guilty.

was not

Only unless they can do that can you even

So what does beyond a reasonable doubt

18 19

mean?

I mean, that's kind of -- you know, I use the

word "esoteric."

It's kind of lofty and philosophical.

What is a reasonable doubt?

You as

jurors, this is your task, to search for reasonable

doubts.

to start calling on people.

What does a doubt look like?

I'm going to have

Ms. House, you look like you want to

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talk.

(Laughter)

MR. SELLERS:

VENIREPERSON:

How about the possibility?

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

-- that would create a

doubt. MR. SELLERS:

Sure.

Two different

theories --

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

If you have contradicting

Right.

VENIREPERSON:

Sure.

stories --

Well, can I go back to

doubt?

178

Right. -- about the way -Things happened. -- the facts -Yes. -- you know, what happened

given the facts you have.

VENIREPERSON:

MR. SELLERS:

Right. All right.

And so your job

as jurors will be to rule out all other logical,

reasonable possibilities.

government can do that,

All right.

And unless the remains not guilty.

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The prosecution does not just get to give

1 2

you one, two, or now three versions or theories of what

they think the facts in this case mean when there are

other logical, reasonable explanations.

me on that? All right.

6 7

Who is one to fall asleep?

Who is asleep?

(Laughter)

MR. SELLERS:

Everybody with

Nobody?

All right.

Because what happens when we do this?

VENIREPERSON:

MR. SELLERS:

Good.

What is this?

Jumping to conclusions. "umping to conclusions."

This is what happens when we start jumping to

conclusions and filling in the holes and the blanks for

the prosecution.

They have all these investigators.

and weight of the government.

jumping to conclusions.

See and they have all these lawyers.

All right.

They have the power

They don't need help

Let's talk briefly -- we

talked a little bit about it.

Some believe that

somebody who is charged with murder has to testify.

I've had potential jurors tell me:

charged with murder, they would start the trial

believing the person was guilty.

with this belief?

When a person is

Does anybody disagree

We kind of covered it already.

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Ma'am.

MS. NODOLF:

THE COURT:

(Bench conference)

MS. NODOLF:

180

Come on. Your Honor, may we approach? Sure.

Come back here.

This is probably the fourth

time that defense counsel has gone into asking the

jurors about their thoughts or beliefs without

explaining what the law was, which the Court granted in

regards to the motion and explaining what they're

proving and not going down -- so -- and explaining what

that law actually is and talking these hypotheticals.

So we're ending up calling these people back up to ask

questions after we explain to them and them if they can

follow the law.

That's the valid challenge for cause. MR. SELLERS:

That's not the only reason

to ask jurors questions.

to intelligently exercise our peremptory challenges,

which has nothing to do with challenges for cause. MS. NODOLF:

We have every right to be able

Then it's -- I believe, it

is imperative that the Court explain the law to the

jury.

then after the fact, but you can't go around creating

false impressions of what the law is or could be, and it

creates and starts to affect other jurors with the

misconception of what the law is, if this kind of

They could ask all the questions they want to

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181

questioning is allowed to go on.

THE COURT:

MR. SELLERS:

Response, Mr. Sellers. We are allowed to question

the jurors about their beliefs and feelings in cases

that are going to come up that has nothing to do with

the law, and we are allowed to use those to exercise

intelligently our peremptory strikes.

that all we can do is ask questions that lead to valid

challenges for cause is absurd and ludicrous, and he got

to ask questions about security systems, which leaves no

valid challenge for cause.

about witness credibility, doesn't lead to a valid

challenge for cause.

leeway that they got.

He got to ask questions

We're just asking for the same

MS. NODOLF:

And her theory

And all we're saying is that

he's going down this road with regards to -- he's

already gone down it once.

proper question to ask if you would like to hear from

the defense; however, the law -- we're going to end up

calling all of these people, to explain to them what the

law is.

testify.

can you then follow the law as it is presented or can

you not?

I believe that it is a

That the defendant in this case doesn't have to And no evidence -- knowing that instruction,

Can you not set that aside? MR. SELLERS:

So that's the only question

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182

we're allowed to ask about -- I mean, that's crazy, Your

Honor. MS. NODOLF:

That's not going into

these -- what these areas that you -- you know, have

certain instructions are going to be in the jury

instructions.

MR. CARNEY:

It doesn't mean --

MS. NODOLF:

So we want to see if they're

9 10 11 12 13

going to follow the law. MR. SELLERS:

We want to find out more if

they will just follow the law. MS. NODOLF:

You can ask their opinions

if they would like to hear from them.

MR. SELLERS:

MS. NODOLF:

THE COURT:

That's valid.

That's what we're doing. Tell the law. Okay.

Come on.

I'm going to

overrule the objection -- I believe the only objection

to this line of questions.

(Bench conference concluded)

MR. SELLERS:

Some people feel that if --

if a defendant does testify, that he would say anything

to save himself.

How many of you feel that way?

VENIREPERSON:

Can you say that again?

VENIREPERSON:

What was the question?

MR. SELLERS:

If a person accused of a

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crime does take the witness stand in their defense, that

they would say anything they have to to help themselves?

Yes, Mr. Eikenbary.

VENIREPERSON:

5 6 7 8 9

sense -- No. 43.

Well, it only makes

I was getting my number.

MR. SELLERS:

Okay.

I just don't want

you to get yelled at. VENIREPERSON: self-preservation.

It's human nature.

It's

You're going to say what you feel

you need to say to save yourself.

How many of us not -- have not said things that we felt

it was in our best interest to say to get out of things?

13 14

MR. SELLERS: something specific.

It's human nature.

You must be thinking of

Go on.

(Laughter)

VENIREPERSON:

Plead the Fifth.

VENIREPERSON:

I have.

about anybody else.

(Laughter)

VENIREPERSON:

I don't know

But you're going to say

what you need to say.

MR. SELLERS:

VENIREPERSON:

Right. And, yeah, I know that if

you're sitting up there answering questions, you're

going to perjure yourself if you're lying.

Perjury or

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90 years in jail?

I could say something that would get me set free, I

would say it.

I'm sorry, but if I was on trial and

MR. SELLERS:

Who else feels like Mr. Eikenbary?

VENIREPERSON:

All right.

Come on.

Everybody in

here does.

(Laughter)

MR. SELLERS:

All right.

Ms. Zamora is

going to bail you out.

Ms. Zamora, tell us a little bit more.

VENIREPERSON:

MR. SELLERS:

184

jury too.

52. You must want to be on this

You really don't want to talk to me. VENIREPERSON:

I agree with him because I

would think that if he's on -- if he testifies for

himself, you're going to wonder if he's actually telling

you the truth.

tendency to protect yourself and to say what you can to

make other people believe that you're innocent.

Because, like you said, you have a

So if I was a juror on this case, I would

21 22

not want to see him on -- as a witness for himself

because you wouldn't know if he's telling you the truth

or not.

him and be able to explain his intentions and why he did

I would want the people around him to defend

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what he did and -- instead of him.

MR. SELLERS:

Who else feels like Ms. Zamora and

Mr. Eikenbary?

Yes, sir.

MR. CARNEY:

MR. SELLERS:

Mr. Talley, No. 67. Mr. Talley, Joshua Talley,

No. 67. VENIREPERSON:

MR. SELLERS:

10 11

All right.

Yes, sir. Can he sit down or does he

need to stand? THE REPORTER:

He can stand so everybody

VENIREPERSON:

Sure.

THE REPORTER:

Thank you.

VENIREPERSON:

No, I just agree.

12 13

can hear him.

I mean,

I feel like if you're accused of something, you don't

necessarily have to get up on the stand in front of

everybody and try and explain your innocence.

I mean,

you're presumed innocent until proven guilty.

So I

don't see why you would have to get up there and explain

your side of the story. MR. SELLERS:

23 24 25

So you agree with what

they're saying? VENIREPERSON:

Yeah.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

Who else?

Thank you, sir.

Yes, sir.

VENIREPERSON:

186

Okay.

I believe when you

testify, you have to tell your own story.

charged with oil field theft and I talked way too much,

but the lawyers had to shut me up.

it's your case, then you have to talk, tell your side of

Because I was

And I feel like if

the story.

MR. SELLERS:

Who else?

Yes, sir.

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

All right.

Thank you, sir.

Mr. Geerts. Geerts. Geerts. 73.

I think it works both

ways.

I think they can lie about it, I think they can

tell the truth about it, but I think with better -- lack

of a better way to say it, the adversarial system of

prosecution and defense that you can come up with what

the truth will eventually be. MR. SELLERS:

22 23

All right.

Thank you,

Mr. Geerts.

VENIREPERSON:

MR. SELLERS:

Geerts. Geerts.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

Who else?

Yes, Ms. -- No. 110, Ms. Wise.

VENIREPERSON:

I saw one more hand.

Yes.

I think if you don't

tell the truth, you're going to get caught up in your

own story and you're going to look worse than if you

hadn't taken the stand. MR. SELLERS:

7 8

So you think the prosecutor

might twist up your words. VENIREPERSON:

9 10

187

I think -- no, if you're

not telling the truth.

MR. SELLERS:

VENIREPERSON:

Right. So you should tell the

truth about how -- and, of course, your viewpoint too.

But you should tell the truth so you can get your word

out.

change it a little bit, there is a really good chance

you're going to get caught.

worse.

And if you're worried about it or you add or

MR. SELLERS:

19 20

say:

in a lie.

Then it's going to be

It's like my dad used to

If you always tell the truth, you never get caught

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

Exactly. Right? Exactly. Yes, sir.

Is it

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

188

Mr. Kendrick?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Yes, sir. Yes, sir. I think there's times too

when you come up, you can still be telling the truth.

And if you're nervous or anything else, that can come

off as a lie or it could come off as the truth even

though it is the truth.

certain way where it can seem as though it's not the

I can be asked questions in a

truth when it is the truth.

MR. SELLERS:

All right.

So if you were

on trial and afraid that the prosecutors might twist

your words or make you look like you're lying, would you

still testify? VENIREPERSON:

I can't answer that

question, but I think you have the right to not testify.

That's why we live here in this country.

right to not say anything that's going to incriminate

yourself.

We have the

MR. SELLERS:

Who else feels like Mr. Kendrick?

VENIREPERSON:

MR. SELLERS:

24 25

Sure.

He makes a good point. He does make a good point.

All right. VENIREPERSON:

Can I -- I'm sorry.

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

Mr. McNew. No. 4. No. 4. To have -- I don't know

anything except what y'all have said on this.

own opinion is if I was on the jury, what he has to say

has no bearing on the evidence and the case presented by

both sides.

what you have and what he has.

That's what I want to see.

But my

I want to see

And, yeah, I have

questions.

change what I see but what's happened on the evidence

and what's presented.

our decision on, is it not?

MR. SELLERS:

15 16

But what he has to say is not going to

That's what we're going to make

Well, I mean, he's an

eyewitness, you know. VENIREPERSON:

Well, he's an eyewitness.

But I'm sitting here across the table from this man, and

I don't know him, never laid eyes on him.

tell by his demeanor that he is mentally -- probably

mentally fatigued and shook and exhausted.

seeing this lady.

promise you, if I was him, I would not want to go on the

stand and have to go against her.

But I can

And I'm

She's sharp and she's jumping.

(Laughter)

(Venirepersons clapping)

And I

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

MR. SELLERS:

1 2

(Laughter)

MR. SELLERS:

VENIREPERSON:

10 11

No, I strongly agree with

that. MR. SELLERS:

8 9

You want to say something,

sir, or you just --

6 7

Who else would not want to

be cross-examined by Ms. Nodolf?

You're waving the white

flag. VENIREPERSON:

You said it's been -- the

incident happened a thousand days ago almost?

MR. SELLERS:

VENIREPERSON:

975. After having to take

somebody's life?

thing to get up on the stand with -- to have

professional lawyers examine you like that.

already semantics being played about and things like

that, and it just gets so twisted.

chance in front of her.

190

Yeah, it would be a pretty stressful

MS. NODOLF:

There is

I wouldn't have a

Well, Your Honor,

respectfully, we would ask the Court to give the

instruction with regards to why we have not had trials

and not been able to have trials and that this is not a

delay of the State.

Just so everybody is clear.

MR. SELLERS:

We're going to object to

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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that. MR. CARNEY:

2 3

don't want to talk to Ms. Nodolf alone.

MR. SELLERS:

THE COURT:

If you'll add into it why we

Yeah. I think everybody here is

aware of COVID.

(Laughter)

THE COURT:

And while the courts were

open in Midland County as opposed to some places, there

were judges or at least -- yeah, there were judges here

every day conducting the business of the courts.

that time based upon what was being said by the State

Department of Health, other, you know, health officials

throughout the nations, to avoid the spread of COVID, we

ceased having jury trials because at that point in

time -- and that has continued a long time.

the courts have opened up very gradually in Midland

County.

people already know that, for the reason of COVID.

And so there has been delay, yes.

In fact,

But I think

Go ahead, sir.

MR. SELLERS:

I'll be first to tell you that

is going to take the stand, and he is going to

It's more than just COVID.

testify.

And you will get to hear his testimony, and

you will get to see him cross-examined by whichever one

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

they choose to cross-examine him. If

is not a good witness,

Mr. McNew, would you be inclined not to believe his

testimony?

VENIREPERSON:

MR. SELLERS:

VENIREPERSON:

MR. SELLERS:

So you would believe him. I haven't heard it. Right.

But if he's not a

good witness -- this is our hypothetical. VENIREPERSON:

10 11

No.

him to be?

Well, how would I expect

I wouldn't be if I was in his shoes.

MR. SELLERS:

VENIREPERSON:

Right. I ran an oil company for a

while and I could stand my ground with them.

is a -- it would totally put me out of my element. MR. SELLERS:

16 17

But this

Who else would be out of

their element --

Thank you, Mr. McNew.

-- out of their element having to defend

their life?

VENIREPERSON:

MR. SELLERS:

Everybody. Everybody.

Who wouldn't?

Who would be just fine, cool as a cucumber?

VENIREPERSON:

MR. SELLERS:

You. Who?

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

VENIREPERSON:

MR. SELLERS:

193

You. I can promise you if

Ms. Nodolf was cross-examining me, I would be anything

but cool.

(Laughter)

MR. SELLERS:

Everybody see what I'm

saying here?

There's a lot of things to think about

when you talk about a person testifying. I told the Judge that I would -- I think

9 10

I got to a good stopping point.

pick up in the morning.

5:05.

We're going to have to

It's about five o'clock --

THE COURT:

MR. SELLERS:

Okay. If it's okay with the

Court, I'll just go ahead and leave the rest for

tomorrow. THE COURT:

Ladies and gentlemen of the

jury panel, we did talk about that earlier.

I know I

asked you to take care of child care matters, but we

tried to maintain some sort of a workday schedule that

most people are used to, 8:00 to 5:00, something like

that.

this time.

And so we are going to take our evening recess at

While we're in recess, do not discuss the

case among yourselves or with third parties or let third

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Voir Dire Proceedings by Mr. Sellers November 3, 2021

194

parties discuss it in your presence.

Should you see or

hear anything in the media, regardless of what type of

media it is, that you think might be related to this

case, divert your attention away from that.

another article in the newspaper, turn down the sound,

or switch the channel on the TV or radio.

article on the Internet.

if you think there is something there talking about this

case or the issues involved, divert your attention away

Go to

Go to another

However you receive your news,

from that.

Because, again, like I said earlier, your

decisions need to be based upon what you see and hear in

the courtroom, not what you may gather from some

external source.

And that's why we say that.

And so I'll also say do not use any type

14 15

of electronic device -- smart, dumb, or in between -- to

send out information or try to gather information about

what you think this case may be or what you have heard

today.

what's people's natural reaction?

questions.

in some form or fashion that we want to tell all 5,000

of our newest and best friends what's going on in our

lives.

24 25

Because, again, when you send out something, They want to ask

And we have all basically trained ourselves

And all that does, even though you may try your very best to put something that somebody says

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

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Voir Dire Proceedings by Mr. Sellers November 3, 2021

out of your mind, there is always the chance that

something creeps back in.

The Court doesn't know it.

know it and neither do the parties involved.

The attorneys don't know it. Your fellow jurors don't

And so that's why we begin to harp on the

fact that you can't use any type of electronic device to

go on the Internet or make direct contact with somebody

else and begin to discuss the case or let somebody

discuss it in your presence or with you.

Any questions about that?

Yes, sir.

VENIREPERSON:

THE COURT:

What time back tomorrow?

If you'll be back at 8:45,

that would be greatly appreciated, again, seated where

you are now.

sheets on your seat.

Have a pleasant evening.

you.

Leave your little flash cards or number They will be there in the morning. We'll see you tomorrow.

(Venire leaves courtroom)

(Open court, defendant present, no

venire)

THE COURT:

Thank

If I may have counsel,

please.

Your name, sir.

VENIREPERSON:

Daniel Fife.

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THE COURT:

1 2

And what juror number are

you?

VENIREPERSON:

THE COURT:

11.

Mr. Fife has some information

to share with counsel and if you'll tell us, please,

sir. VENIREPERSON:

Like I said, I don't know

if it's an issue.

My wife works for West Texas Radio

Group and Media, and she knows better than to ask me any

questions, but her coworkers are starting to get real

curious, and it's been kind of -- everyone knows what's

going on.

it would be an issue with y'all, her being in media.

I haven't said anything, but I didn't know if

MS. NODOLF:

MR. VAN DER HOEVEN:

MS. NODOLF:

No. No.

So long as you adhere to the

Court's instructions. THE COURT:

Yeah, just so -- and I said

it earlier.

Don't talk about the case with anyone,

including your spouse.

importance to you and to her.

That may be of particular

VENIREPERSON:

THE COURT:

So -Okay.

-- she can say, you know,

we're not talking about the case.

it puts pressure.

I don't know.

I know

But if y'all don't talk about it,

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Voir Dire Proceedings - Afternoon Session November 3, 2021

then that's the best thing.

VENIREPERSON:

THE COURT:

MR. SELLERS:

MS. NODOLF:

THE COURT:

All right.

Good.

Thank you. Thank you, Mr. Fife. Thank you. Okay.

Is there anything we

need to take up this evening, Counsel?

MS. NODOLF:

THE COURT:

197

I don't believe so. Okay.

Good enough.

(Proceedings adjourned at 5:13 p.m.)

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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Voir Dire Proceedings - Afternoon Session November 3, 2021

STATE OF TEXAS

COUNTY OF MIDLAND

198

I, Ann M. Record, Deputy Official Court Reporter in

and for the Midland County District Courts of Midland

County, State of Texas, do hereby certify that the above

and foregoing contains a true and correct transcription

of all portions of evidence and other proceedings

requested in writing by counsel for the parties to be

included in this volume of the Reporter's Record in the

above-styled and numbered cause, all of which occurred

in open court or in chambers and were reported by me.

I further certify that this Reporter's Record of

the proceedings truly and correctly reflects the

exhibits, if any, offered by the respective parties.

15 16 17 18 19 20 21 22

23 24 25

Ann M. Record, CSR, RMR, CRR, CMRS, CRI, TCRR, TMR, CCR(NM) Deputy Official Court Reporter - Midland County (432) 688-4371 ****** ARecord@mcounty.com

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Going Against the Family: Search & Seizure Speaker: David Guinn Jr. 1805 13th St Lubbock, TX 79401-3823 (806) 771-0700 Phone (806) 763-8199 Fax david@hurleyguinn.com Email

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

FOURTH AMENDMENT A. Introduction Any lecture outline like this will necessarily be incomplete. If you want a handy version

of most all the law you can really use, buy Jim Skelton’s book on Search and Seizure. It’s over 200 pages long and comes with a handy CD you can use. He didn’t pay or ask me to write that, by the way. Instead, a command of the basics and knowledge of a few new applications will help some of your client’s. The extensive nature of searches, combined with interesting ideological splits at the Supreme Court along with overwhelming public response to government data gathering programs like those conducted by the NSA, are resulting in some favorable law coming from the Supreme Court for a while. These cases are highlighting that traditional “conservative-liberal” ideological analysis doesn’t always hold true, with the majorities in cases like Arizona v. Gant and Florida v. Jardines formed by part of the liberal bloc along with libertarian-leaning conservatives, and with Breyer often joining the rest of the conservative bloc in the minority. If the libertarian streaks of Thomas, Gorsuch, and occasionally Kavanaugh hold true, this may continue to be a fertile area. The addition of Justice Barrett is still new, but her limited track record on the 7th Circuit and the SCOTUS suggests that she is fairly close to Justice Scalia on Fourth Amendment issues. It is worth particularly noting that while the CCA has held (so far) that the Texas Constitution’s provisions on warrants are mostly coextensive with the Fourth Amendment, a separate objection on that basis should still be made.1 Additionally, while Tex. Code Crim. Proc. Art. 38.23 covers some of the same ground, it is also a separate basis for objection, and though many of the constitutional objections are subsumed into an Art. 38.23 analysis, the scope of the statute is much more extensive in scope than the Federal and state constitutional provisions. 1

The realities of Texas law in the search and seizure arena are much more nuanced than this simple statement, further highlighting the need for a separate objection under Art. I, § 9 of the Texas Constitution. For a lengthy discussion of how Art. I, § 9 is applied, see Holder v. State, 595 S.W.3d 691 (Tex. Crim. App. 2020); in that case, the CCA asserted that the Texas Constitution’s provision does not include an implicit warrant requirement, but rather requires an inquiry of general reasonableness of any particular search after considering the relevant public and private interests at stake. In practice, this analysis is similar to how Fourth Amendment law has evolved, but it allows a broader analysis to be conducted, with the CCA looking to see, in view of the similarities between the Fourth Amendment and Art. I, § 9 and the interests to be protected by both, “whether the Supreme Court’s reasoning makes more sense than the alternatives.” In fact, Holder notes that this analysis once led the CCA to give greater protection under the Texas Constitution in pen register cases, in Richardson v. State, 865 S.W.2d 944 (Tex. Crim. App. 1993).

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B. Framework for Analysis 1. Was the 4th Amendment implicated? (Is there Government conduct constituting a search or a seizure?) Katz v. U.S. 389 U.S. 347, 348 (1967) (concurrence). 2. Was the 4th Amendment violated? (Is the Government search or seizure unreasonable?) If the search or seizure was conducted with a warrant, it is presumed (rebuttably) reasonable. Warrantless searches are said to be “per se unreasonable,” i.e. constitutionally invalid, unless some well defined exception to the warrant requirement justifies the intrusion. 3. If the Government search or seizure is unreasonable and therefore unconstitutional, does the exclusionary rule apply?

Weeks v. United States, 232 U.S. 383 (1914);

Mapp v. Ohio, 367 U.S. 643 (1961). 1. Standing In order for the accused to successfully invoke the federal or Texas exclusionary rule, he must first have standing, a right to complain. In order to show standing, the defendant must demonstrate that he had a reasonable (sometimes termed “legitimate”) expectation of privacy in the thing or the area searched at the time of the search. See Rawlings v. Kentucky, 448 U.S. 98, 100 (1980). This requirement has been applied in Texas by the Court of Criminal Appeals. See, e.g., Chapa v. State, 729 S.W.2d 723, 725 (Tex. Crim. App. 1987). Either ownership rights of some form OR a reasonable expectation of privacy inuring to the complaining person can be sufficient to establish standing. Take a look at United States v. Brown, 6 F.3d 1390 (5th Cir. 1993), which recognized a passenger in a car that was not his nevertheless had standing to challenge the legality of the initial stop of the vehicle in a motion to suppress because the stop was a restraint upon the passenger’s freedom of movement and therefore constituted a seizure of his person; see also the recent SCOTUS decision in Byrd v. U.S., which held that the driver of a rental car has standing even when the driver is not listed anywhere in the rental agreement. 584 U.S. ___, 138 S.Ct. 1518 (2018). See also Untied States v. Buchner, 7 F.3d 1149 (5th Cir. 1993), holding that a passenger has standing to challenge the search of his belongings, such as a suitcase located in someone else’s car. Likewise, print and brief United States v. Wilson, 36 F.3d 1298, 1301 (5th Cir. 1994). Wilson granted standing and reversed a search and seizure of a checkbook

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from defendant’s friend’s hotel room (fact intensive, but illustrative of the principles involved and their application).

Florida v. Jardines, 569 U.S. 1 (2013) is already having major

implications in this area; Scalia’s focus on the ownership interest of the home and its publicly visible curtilage, rather than focusing only on whether there is a reasonable expectation of privacy, raises an alternative pathway through which warrantless searches, especially those around a home, may be challenged. a. Texas The following are some Texas cases where the appellate court recognized standing: Chapa v. State, 729 S.W.2d 723, 725 (Tex. Crim. App. 1987) (holding that defendant, who was a paying passenger in a taxicab, had a reasonable expectation of privacy and thus had standing under the Fourth Amendment to object to a search which revealed heroin under the front seat of the cab). Lewis v. State, 664 S.W.2d 345, 346 (Tex. Crim. App. 1984) (holding that appellant, who was a passenger in the car, did have standing to challenge the search based on her continued detention). Castro v. State, 202 S.AW.3d 348 (Tex. App. – Ft. Worth 2006, rev’d on other grounds) (affirming that a passenger in a stopped vehicle has been seized and therefore has standing to challenge the legality of the stop). Dominguez v. State, 924 S.W.2d 950, 952 (Tex.App.—El Paso 1996, no pet.) (holding that where a criminal investigator appointed in one county and assigned to a multi-county drug task force lacked the authority to stop defendant in a second county). A spouse had standing in State v. Crisp, 74 S.W.3d 474, 477 (Tex.App.—Waco 2002, no pet.) (holding that the wife had permission to borrow her mother’s car and therefore had standing to challenge an illegal arrest; the husband had the wife’s permission to drive the car and therefore also had standing). It is important to note in all of these situations that there is no general standing for passengers to object to automobile searches; each case has to be examined for the precise search or seizure being objected to, and whether the passenger had standing to object to that particular action based on some infringement of the passenger’s rights, ownership interests, or reasonable expectations of privacy. Minassian v. State, 490 S.W.3d 629 (Tex. Ct. App – Houston [1st Dist.] 2016) provides a good example of this, along with potential dangers from failing to pinpoint each

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step of the analysis. In that case, a vehicle was initially stopped; the passenger was arrested on suspicion of having committed a felony; a subsequent search of the vehicle incident to that arrest revealed two laptops; and finally, police perusal of the laptops resulted in gathering further evidence. The defendant passenger moved to suppress the evidence, principally challenging his arrest, and secondarily challenging the search incident to the arrest and seizure of the laptops; however, the defendant only asserted ownership of the laptops in a footnote in the suppression motion, and offered no evidence on the point. After holding the arrest (and the search incident thereto) to be lawful, the court of appeals dismissed the defendant’s challenge to the search of the contents of the laptop on the basis that the defendant’s ownership (and thus standing) had not been established by competent evidence. b. Supreme Court Some basic Supreme Court cases involving issues of standing are: Katz v. U.S. 389 U.S. 347, 361 (1967) (Harlan, J., concurring). (To receive the protection of the Fourth Amendment, the defendant must have a subjective expectation of privacy, and that expectation of privacy must be one that society is “prepared to recognize as reasonable.”) U.S. v. Salvucci, 448 U.S. 83, 84 (1980) (an illegal search only violates the rights of those who have a reasonable expectation of privacy in the place being searched); and Minnesota v. Olson, 495 U.S. 91, 93 (1990) (a defendant who is an overnight guest in another’s home has a reasonable expectation of privacy and thus has standing to challenge Fourth Amendment violations). United States v. Jones, 565 US 400, 132 S.Ct. 945 (2012) (attachment of a GPS transponder to a vehicle violates the 4th Amendment because the installation constituted a common law trespass against the owner’s property rights in the car; Scalia’s majority opinion held that Katz’s expectation of privacy formulation is in addition to, not instead of, the 4th Amendment rights deriving from property interests) Florida v. Jardines, 569 U.S. 1 (2013) (continuing from Jones above, a drug dog search of the accessible curtilage of a home was per se unreasonable because of the simple fact of ownership of the property along with the search being conducted in excess of the scope of the implicit invitation for people to approach the front door to knock and speak with the inhabitants). Byrd v. U.S., 584 U.S. ___, 138 S.Ct. 1518 (2018) (making explicit that the Jones and Jardines property rights analysis is in addition to Katz’s reasonable expectation of privacy

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analysis, ultimately holding that a driver in lawful possession of a rental car has a reasonable expectation of privacy in it even if not listed as an authorized driver on the rental agreement; of additional note, the Court pointed out that 4th Amendment standing and Article III standing are unrelated concepts). 2. Was the Fourth Amendment Implicated? The foregoing issue of standing under which the individual must have either (1) (a) an actual, subjective expectation of privacy and (b) which is one that society is prepared to recognize as reasonable, or (2) an ownership interest in the property searched rendering the government intrusion unreasonable is a necessary predicate to implicating the Fourth Amendment. The factors involved in determining reasonableness are: (1) the nature of the individual interest in the abstract and (2) the instrusiveness of the government investigative activity. It’s basically a value judgment here: given the nature of the individual’s privacy interest, would it be inconsistent with the goals of a free society to permit this form of police activity to go unregulated? Usually, only government conduct will trigger the 4th Amendment. However, Spring v. State, 626 S.W.2d 37, 38 (Tex. Crim. App. 1982) shows how a private citizen, used by the police, can violate the Fourth Amendment (the apartment manager used a pass key to inspect Spring’s apartment). See also Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007) (explaining that by its plain terms, the Texas exclusionary rule, Tex. Code Crim. Proc. Art. 38.23, applies not only to law enforcement officers, but to other persons as well).

The following is a running list of recognized Searches and Seizures: 



Home o Florida v. Jardines, 569 U.S. 1 (2013) (a drug dog sweep of the cartilage of a home is a search for 4th Amendment purposes). o Collins v. Virginia, 584 U.S. ____, 138 S.Ct. 1663 (2018) (extending Jardines; automobile exception does not apply to search of vehicle parked on curtilage of home) (see also State v. Serna, ___ S.W.3d ____ (Tex. App. – Austin 2021, no pet.). o Tilghman v. State, 624 S.W.3d 801 (Tex. Crim. App. 2021) (expectation of privacy in hotel room ends with either the end of scheduled occupancy or when hotel staff affirmatively move to evict a guest for violation of hotel policies). Personal Papers

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

Person o Maryland v. King, 569 U.S. 435 (2013) (DNA sampling of arrestees for “serious crimes” – and perhaps more – is not a search, but a “legitimate booking technique”). o Torres v. Madrid, U.S. , 141 S.Ct. 989 (2021) (§1983 case, holding that officers seized a suspect when bullets struck her body, despite the fact that she temporarily eluded capture; application of force with intent to restrain is a seizure, even if the person is not subdued and escapes custody). “Frisk” o Terry v. Ohio, 392 U.S. 1, 4 (1968) (holding that if an officer reasonably believes the person may be armed and presently dangerous, the officer may conduct a protective frisk, generally limited to a pat down of the outer clothing). o Michigan v. Long, 463 U.S. 1032 (1983) (extending Terry to the automobile context and holding that a protective sweep may be extended to the entire passenger compartment “to uncover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous,” and even if the suspect has been removed from the vehicle, up until the suspect is placed under arrest). Automobile o Chambers v. Maroney, 399 U.S. 42, 43 (1970) (holding that if the police are justified in making a warrantless search at the time they stop the vehicle, they may tow the vehicle to the police station and search it at a later time). o U.S. v. Ross, 456 U.S. 798, 799 (1982) (holding that if the police have probable cause to search a vehicle, they may search the entire vehicle, including the trunk and containers). o California v. Acevedo, 500 U.S. 565 (1991)2 (holding that if the police only have probable cause to search a container within a vehicle, they may search only the container). Checkpoints and Administrative Searches o Schenekl v. State, 30 S.W.3d 412, 413 (2000) (holding that a statute allowing an enforcement officer to stop and board a boat without probable cause or reasonable suspicion in order to perform a water safety check was a valid search as the heightened expectation of privacy which exists for cars does not exist for boats; random water safety checks are okay in order to facilitate recreational safety). o Holt v. State, 887 S.W.2d 16 (Tex. Crim. App. 1994) (because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional unless and until a politically

Ross, 456 U.S. 798, 799 (1982), and Acevedo, 500 U.S. 565 (1991), deal with scope questions.

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accountable governing body sees fit to enact nondiscriminatory constitutional guidelines regarding such roadblocks). o School Searches Telephone Issues o Katz v. U.S., 389 U.S. 347, 348 (1967)3 (holding that a person who makes a phone call from an enclosed phone booth may reasonably expect that the phone call will not be broadcast to the world). o Riley v. California, 573 U.S. 373 (2014) (holding that warrantless search of the contents of a cell phone incident to an arrest violates the Fourth Amendment). o Carpenter v. U.S., 585 U.S. ___, 138 S.Ct. 2206 (2018) (holding that cell phone subscribers have an expectation of privacy in cell site location information (CSLI) held by their cell phone companies, and that police must obtain a warrant to access such records, rather than a mere subpoena). o Holder v. State, 595 S.W.3d 691 (Tex. Crim. App. 2020) (holding that obtaining CSLI without warrant is Tex. Const. Art. I, § 9 violation) & Holder v. State, 639 S.W.3d 704 (Tex. Crim. App. 2022), (finding, after Judge Hervey’s concurrence in Dixon v. State, 595 S.W.3d 216 (Tex. Crim. App. 2020), that the sole remedy for Art. I, § 9 violation is statutory under Art. 38.23, and erroneous admission is therefore judged under the non-constitutional error standard of TRAP 44.2(b)). Luggage o U.S. v. Garcia, 849 F.2d 917 (5th Cir. 1988) (holding that a border patrol agents’ squeeze and sniff of defendant’s suitcase after removing it from the airport baggage area was not a search). o U.S. v. Lovell, 849 F.2d 910 (5th Cir. 1988) (holding that a border patrol agent’s removal of a defendant’s bag from an airport baggage area conveyor belt, his squeeze of the bag to procure a scent, and his subsequent sniff of that bag was not a search or seizure). o U.S. v. Bond, 167, F.3d 225, 226 (1999) (holding that a border patrol agent’s squeeze and manipulation of defendant’s bag, which was in the compartment above defendant’s seat on a bus, to detect drugs, was not a search). Containers o Riley v. California, 573 U.S. 373 (2014) (holding that warrantless search of the contents of a cell phone incident to an arrest violates the Fourth Amendment). o United States v. Morton, 984 F.3d 421 (5th Cir. 2021) (op. vacated by grant of reh’g en banc) (holding that search of a cell

But see U.S. v. White, 401 U.S. 745 (1971).

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phone containing data requires a warrant supported by PC for each type of data to be searched for; initial arrest of defendant was for personal use of controlled substances, and no reasonable officer would think photos would contain relevant evidence, making their perusal and later use in a child pornography prosecution illegal) (note that en banc rehearing in this case is still pending). Curtilage if physical intrusion o Florida v. Jardines, 569 U.S. 1 (2013). o U.S. v. Dunn, 480 U.S. 294, 296 (1987). o Collins v. Virginia, 584 U.S. ____ (2018). Office o O’Connor v. Ortega, 480 U.S. 709, 711 (1987) (holding a warrantless search of a government employee’s desk and files may be conducted based on work-related need or suspicion of work-related misconduct). Blood Test o Schmerber v. California, 384 U.S. 757, 758 (1966) (holding that taking a blood sample by use of common medical techniques is a reasonable intrusion). o Missouri v. McNeely, 569 U.S. 141 (2013) (involuntary blood draws constitute searches and do not per se fall within the exigent circumstances exception). o Mitchell v. Wisconsin, 588 U.S. ____ (2019) (exigent circumstances exception allowed a blood draw from an unconscious driver without a warrant; note that this is a plurality holding, with Thomas concurring in the judgment only on the facts of this case, making this a fertile area for litigation) Elimination of Waste (urinanalysis) o National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) (holding that the government can require persons applying for Customs positions involving drug interdiction to submit to drug testing). o Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) (holding that the government can require railway employees who have been involved in an accident to submit to drug testing). Breathalyzer o Skinner supra. o Birchfield v. North Dakota, 579 U.S. 438 (2016) (upholding warrantless breath tests).

3. Was the Fourth Amendment Violated?

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Now we get to the really sticky part. The guts of the query here is how much protection does the 4th Amendment provide? Another way of thinking about, practically, is can the Government justify its intrusion as reasonable? The general protections that the Government should respect in order to make a search or seizure reasonable are the requirements of 1) a warrant, 2) probable cause, and 3) execution in a reasonable manner. By and large, unless you find a huge gaffe in the affidavit of the search warrant, your client is going to be out of luck. So long as there is a neutral and detached magistrate, the warrant describes with particularity the items to be seized and the place to be searched, and states probable cause with sufficiency, veracity and particularity, it will pass appellate scrutiny. If the defendant makes a state constitutional argument, then the proper inquiry is the reasonableness of the search or seizure under the totality of the circumstances; whereas if the defendant makes a statutory argument, the proper inquiry is whether there was probable cause with respect to that individual and whether the arrest fell within one of the statutory exceptions.

C. Terry Stops One of the most important exceptions to the probable cause requirement, articulated in Terry v. Ohio, 392 U.S. 1, 4 (1968), with which facts you should be intimately familiar, is found in the stop and frisk situation. A valid Terry stop permits a limited frisk or pat-down of the outer clothing of a suspect for whom reasonable suspicion exists. The frisk may accompany the stop or temporary investigative detention when police have a reason to believe that the suspect is armed and dangerous. This belief, of course, is in addition to the requisite reasonable suspicion that criminal activity is afoot which must precede the initial stop. An investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500 (1983). Also, unlike “on view” arrests under CCP 14.01(a) which authorizes a private person to make an arrest, in Garner v. State, 779 S.W.2d 498, 500 (Tex.App.—Fort Worth 1989, pet. ref’d) the court found no authority for a private person to make an investigative Terry stop.

Remember: do not automatically assume that suspicion

necessarily justifies a detention! 1. Person

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The scope of a proper frisk remains tied to the purpose the frisk was intended to serve, and because the Terry stop is initially limited to the discovery of weapons, items that do not feel like weapons cannot be recovered unless the officer can determine by “plain feel” that the object is contraband of another sort. See Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 2133 (1993) (holding that if an officer lawfully conducting a frisk feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; but the court held the search unlawful because the officer had to squeeze, slide, and manipulate the object in the suspect’s pocket to determine it was crack cocaine). U.S. v. McKinney, 980 F.3d 485 (5th Cir. 2020) gives an excellent step-by-step discussion of analyzing Terry stops. Remember that while reasonable suspicion is not a high bar, it still has to be there before officers can engage in such a detention, and if suspicion is lacking on a totality of the circumstances, then the ancillary questions going along with it – such as whether a frisk subsequent to the detention is lawful – are automatically subsumed in the initial illegality. In McKinney, a defendant convicted for being a felon in possession of a firearm successfully challenged an initial Terry stop of himself and others which officers had attempted to justify principally on the basis that shootings had taken place in the locale in the recent past. The court rejected the Government’s arguments regarding the defendant’s presence in a “high-crime area” and wearing clothing that happened to be colored the same as a color associated with a particular gang as coincidental and of low persuasive value. On the other hand, United States v. Thomas, 997 F.3d 603 (5th Cir. 2021) gives the limits of McKinney; in that case, police who had located a car involved in an armed robbery found a couple of individuals – the defendant being one of them – standing around the car and conversing with its occupants. The Fifth Circuit held that these circumstances justified a Terry stop and frisk of both the car’s occupants as well as the people immediately around it, and denied Thomas’s motion to suppress evidence found in the frisk. Davis v. State, 61 S.W.3d 94, 96 (Tex.App.—Amarillo 2001) (holding that defendant’s actions in walking to and from a group of people gathered in a yard, at midnight, in a high crime area, while appearing nervous, did not provide reasonable suspicion to justify police officer’s stop and frisk of defendant).

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Salcido v. State, 758 S.W.2d 261, 262 (Tex. Crim. App. 1988) (en banc). Based on a call from an informant, police learned that appellant was selling heroin at a car wash facility. When the police arrived, appellant did not appear to be using the car wash, but was sitting in an area with other dry cars talking to two other people with his car door open. The officer did not see anything that appeared to be a sale and did not see appellant’s hands or arms outside of the vehicle. When the police approached appellant, he tried to run and threw down heroin. In holding that appellant’s motion to suppress should have been granted the court found that appellant was illegally detained without specific and articulable facts to justify the stop, and he did not voluntarily abandon the contraband in question but rather was discarded as a spontaneous reaction to police conduct. In Hawkins v. State, 758 S.W.2d 255 (Tex. Crim. App.1988), which the court relied on in Salcido v. State, 758 S.W.2d 261 (Tex. Crim. App. 1988), an officer saw defendant standing in front of a nightclub in a high crime area and near a parking lot where drugs were frequently found by the police. The officer knew the defendant had a reputation for dealing drugs, but he did not have a warrant, a tip, information, and had seen no criminal activity. As the defendant started walking the officer called him, but the defendant continued to walk. The officer called for assistance, and a second officer closed in on defendant as the first officer approached from the opposite direction. The defendant then threw a paper bag in the ditch and began to run. The court found that Hawkins had been illegally stopped due to a lack of specific and articulable facts to justify the detention and found that the abandonment of the contraband was a direct result of the police misconduct. As such, the taint of the officers’ illegal conduct was not removed, and the evidence should have been suppressed. The viability of these cases appears questionable, however, in light of California v. Hodari D., 499 U.S. 621 (1991) and State v. Rose, 844 S.W.2d 911 (Tex. App. – Tyler 1992, no pet.). Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992) (en banc) (holding that although the officer’s investigatory stop of the defendant to determine whether he was selling drugs was legal, but the officers’ subsequent Terry frisk of defendant, revealing no weapons but only a matchbox which the officer opened discovering cocaine, was illegal). Massey v. State, ___ S.W.3d ___, 2022 WL 623491 (Tex. App. – Fort Worth 2022) (protective frisk per se illegal because even though the suspect was nervous and in an area where drug arrests had happened, officer had no reasonable suspicion that suspect was armed when

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there was no sign of a weapon, the suspect was a safe distance from the officer, the suspect had no vehicle, and was respectful and cooperative). 2. Automobile Whren v. U.S., 517 U.S. 806, 808 (1996) (holding that temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of ‘persons’ within the meaning of the Fourth Amendment). Rodriguez v. U.S., 575 U.S. 348 (2015) (holding that extraneous investigation during an otherwise lawful traffic stop becomes illegal if it “measurably extends” the original reason for the stop, unless independent probable cause is developed in the interim). Byrd v. U.S., ___ U.S. ___, 138 S.Ct. 1518 (2018) (driver in lawful possession of rental car has reasonable expectation of privacy in it even if not listed as an authorized driver on the rental agreement). Kansas v. Glover, ___ U.S. ___, 140 S.Ct. 1183 (2020) (officers had reasonable suspicion to stop vehicle and investigate driver solely on the basis that the registered owner of vehicle was shown by computer records to have a revoked driver’s license). Klare v. State, 76 S.W.3d 68, 70 (Tex.App.-Houston [14th Dist.] 2002, pet. ref’d). Klare was convicted of DWI. Officer noticed defendant’s car parked off the highway behind a strip shopping center, facing a 24-hour convenience store at about 2:30 a.m., so he went to investigate. The officer lost sight of defendant, whereupon he proceeded onto the adjoining road, and within about 15 seconds, came upon a car he believed to be the one previously parked at the store and arrested the defendant. The officer believed he was entitled to stop the defendant because of the time of day, the closed businesses, previous burglaries in the shopping center in the past, he needed to identify the truck, and was concerned that someone inside the truck might have needed help under the community care-taking exception to lack of probable cause. The court found these reasons insufficient to believe that the defendant was or was about to be engaged in criminal activity, he was not justified in conducting an investigatory stop of the defendant. Wolf v. State, 137 S.W.3d 797, 799 (Tex.App.—Waco 2004, no pet.) (pre-Rodriguez, holding that because the initial detention was longer than reasonably necessary to effectuate the purpose of the stop, that is, to warn Wolf about the defective tag lamp, and because the prolonged detention was not supported by reasonable suspicion, the prolonged detention violated

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the Fourth Amendment; Wolf’s subsequent consent to a search of the truck did not attenuate the taint of the unlawful detention). Koethe v. State, 152 S.W.3d 54, 57 (Tex. Crim. App. 2004) (pre-Rodriguez, holding that although it is reasonable to perform a warrant and license check, a warrant check cannot be used solely as a means to extend a detention once the reasonable suspicion forming the basis for the stop has been dispelled; but in this case, officer’s continued detention of defendant after determining defendant was not intoxicated, to await results of a computer warrant check and then to await results of whether defendant was in possession of stolen property, was reasonable). Thomas v. State, 420 S.W.3d 195 (Tex. App. – Amarillo 2013). On remand from the CCA after it reversed the Ct. App.’s initial affirmance. Held that prolonged detention after the officer (DPS trooper) had issued a warning citation for the original traffic violation violated the Fourth Amendment and the evidence seized as a result of a subsequent dog sniff should have been suppressed. Specifically distinguished Brigham, 382 F.3d 500 (5th Cir. 2004), discussed separately. Reyes v. State, 603 S.W.3d 543 (Tex.App. – El Paso 2020) (holding that failure to drive in a single lane of traffic is an offense when practical to do so is an offense, and that affirmatively demonstrating that a driver’s failure to maintain a single lane is unsafe is not a prerequisite, but rather constitutes defining a separate prohibited act, and that officers’ observation of the appellant straddling the stripe between two lanes for a substantial period constituted reasonable suspicion supporting the subsequent stop). State v. Colby, 604 S.W.3d 232 (Tex. App. – Austin 2020, no pet.) (court affirms trial court’s suppression of intoxication evidence obtained after stop of appellant for stopping in an intersection while yielding to an officer who had entered the intersection from a cross street, finding that statutory exception to prohibition on stopping in an intersection to avoid “conflict with other traffic” was clearly implicated, and that officer should have considered this exception in determining whether appellant had actually committed a traffic infraction).

D. Exceptions to the Warrant Requirement 1. Arrest Without a Warrant Although the federal constitution has been interpreted to permit a warrantless arrest in a public place even if the officer could have easily obtained a warrant, United States v. Wilson, 423

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U.S. 411 (1976), in Texas an arrest without a warrant must be justified by the existence of explicit statutory authority per Dejarnette v. State, 732 S.W.2d 346, 349 (Tex. Crim. App. 1987). The main provisions permitting warrantless arrests are found in Code of Criminal Procedure Chapter 14 and Article 18.16. In Torres v. State, 182 S.W.3d 899, 900 (Tex. Crim. App. 2005) (en banc) (overruling Castillo v. State, 818 S.W.2d 803 (Tex. Crim. App. 1991)), appellant drove his car into the front porch of a house whereupon a DPS officer was called in to investigate the accident despite the fact that two local officers were already on the scene when the DPS officer arrived.

The two

local officers told the DPS officer that they believed appellant was intoxicated. DPS officer did not perform any FST’s nor did he ask appellant if he had been drinking, but rather only generally questioned appellant who simply explained that he was unfamiliar with the road. DPS officer arrested appellant and took him to the hospital, where he was treated, after he noticed he was favoring one arm. DPS officer then took appellant to the station where he refused a breath test and was subsequently arrested for DWI. In noting that probable cause must be based on facts rather than opinions, the court noted that “opinions, even those of police officers, cannot be transformed into facts without supporting evidence” which was absent in this case. “It is true that law enforcement training or experience may factor into a reasonable-suspicion analysis…But reliance on this special training is insufficient to establish reasonable suspicion absent objective factual support.” 2. Search Without a Warrant a. Search Incident to Arrest Keep in mind that in order for a search without a warrant to be valid under the search incident to arrest exception to the warrant requirement, there must first be a lawful arrest. Williams v. State, 726 S.W.2d 99 (Tex. Crim. App. 1986) (holding the fact that the search incident to arrest preceded the formal custodial arrest by a few moments is of no consequence under Rawlings v. Kentucky, 448 U.S. 98, 100 (1980)). Also, the only traffic offenses for which a citation must be issued in lieu of custodial arrest are speeding and violation of the open container law, and even then an arrest may be made if the violator refuses to sign the citation. Arizona v. Gant, 556 U.S. 332 (2009), also modifies the extensive “searches incident to arrest” commonly executed by officers to restrict the search to one justifiable by a need for officers to protect themselves against an actual and continuing threat by the arrestee or in order

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to preserve evidence directly related to the offense of arrest or some other offense that officers have probable cause to believe has been committed against tampering. For vehicles, this means that officers may search a vehicle only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense of arrest. b. Exigent Circumstances and the Protective Sweep Even if the warrant is valid, it does not mean the police can stop and search everyone on the premises, which is a common Task Force tactic for “routine officer safety.” The Texas Court of Criminal Appeals has recognized the protective sweep of premises incident to an arrest in order to discover persons present who may endanger the safety of the officers on the scene. Reasor v. State, 12 S.W.3d 813, 814 (Tex. Crim. App. 2000) (holding that when conducting an in-home arrest, an officer may sweep the house only if he possesses an objectively reasonable belief, based on specific and articulable facts, that a person in that area poses a danger to that cop or to other people in the area, but the protective sweep must stay within the appropriate scope and may only last long enough to dispel the reasonable suspicion of danger). Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 2589 (1981) (holding a valid search warrant implicitly carries with it the limited authority to detain the occupants at the premises while a proper search is conducted). For the exigent circumstances exception to the warrant requirement to apply, reasonable suspicion must exist to believe that knocking an announcing is dangerous or futile, or that effective investigation would be inhibited, for example, by destruction of the evidence. Lange v. California, ___ U.S. ___, 141 S.Ct. 2011 (2021) (warrantless entry into home after pursuit on suspicion of commission of a misdemeanor is not automatically justified; some exigent circumstance must exist justifying the law enforcement entry into the home, or a warrant must be obtained). Mitchell v. Wisconsin, 588 U.S. ___, 139 S.Ct. 2525 (2019) (exigent circumstances almost always exist permitting warrantless blood draw when a driver suspected of drunk driving is found unconscious, regardless of length or shortness of time required to obtain warrant). In Grimaldo v. State, 223 S.W.3d 429 (Tex. App.—Amarillo 2006, no pet.), the police arranged to purchase cocaine through a confidential informant. During the buy-bust, the officer signaled for the sellers to be arrested. At the same time another arrest was taking place at a nearby house which officers were watching. One officer watching the house saw appellant exit

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the house, approach the street, look up and down it, cross to the other side, walk towards another house, and return several minutes later. The other officer watching the house did not see the aforementioned activity because he had gone around the corner to put on a bulletproof vest because he was near the “target location” and already knew that he would be entering the house before he learned of appellant’s activity. Another officer confirmed that the police decided to enter the house when they learned the drugs in question were sold from it. Thus, the police approached the house, knocked twice without response, forcibly entered, and then conducted a protective sweep but found no drugs. The officers placed all occupants in handcuffs and then took appellant to a back bedroom where he subsequently inculpated himself and gave consent to search. In determining that the taint of appellant’s consent had not sufficiently dissipated, the court considered whether 1) the temporal proximity between the unlawful seizure and consent given was close; 2) the unlawful seizure brought about police observation of the particular object for which they sought consent to search; 3) the illegal seizure was flagrant police misconduct; 4) the consent was volunteered rather than requested by the officers; 5) the detainee was made fully aware of the fact that he could decline to consent to the search; and 6) the purpose underlying the seizure was to obtain consent. Remembering McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991) (en banc) and Barocio v. State, 158 S.W.3d 498, 500 (Tex. Crim. App. 2005), the court noted that “exigent circumstances justifying a warrantless entry into a home include 1) rendering aid or assistance to persons whom the officers reasonably believe are in need of assistance, 2) preventing the destruction of evidence or contraband, 3) protecting the officers from persons whom they reasonably believe to be present, armed, and dangerous, Estrada v. State, 154 S.W.3d 604, 608 n.12 (Tex. Crim. App. 2005), and 4) an increased likelihood of apprehending a suspect.” In McNairy v. State, 835 S.W.2d 101, 102 (Tex. Crim. App. 1991) (en banc), the Organized Crime Unit responded to a call from other officers that they had been called to a disturbance involving burning vehicles and found a quantity of drugs and paraphernalia. Upon arrival, officers secured consent of the owner of the premises to search whereupon they discovered a methamphetamine lab. The officers then searched the land behind the residence and came upon a mobile home from which they determined the smell of methamphetamine was emanating. As the officers came upon the mobile home, they heard the back door of the trailer swing open and people running into the nearby brush. Thus, one officer went to the front door

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and another went to the back, and subsequently entered the trailer whereupon they saw chemicals associated with the manufacture of methamphetamine.

The officers secured the trailer,

questioned the owner of the first house, and learned for the first time that the trailer had been rented to defendant.

In affirming defendant’s conviction for aggravated possession of

methamphetamine, the court held that probable cause existed at the time of the initial entry into defendant’s house, and exigent circumstances existed to obviate the need for a search warrant and justify the initial warrantless entry into defendant’s home. The court went on to note that “situations creating exigent circumstances usually include factors pointing to some danger to the officer or victims, an increased likelihood of apprehending a suspect, or the possible destruction of evidence.” The following are factors relevant to a determination by the searching officers that evidence might be destroyed or removed before a search warrant can be obtained: 1) the degree of urgency involved and the amount of time necessary to obtain a warrant; 2) reasonable belief that the contraband is about to be removed; 3) the possibility of danger to the police guarding the site of the contraband while a search warrant is sought; 4) information indicating the possessors of the contraband are aware that the police are on their trail; and 5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in drug trafficking. Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006) (holding that the totality of the circumstances, including the fact that officers could smell the odor of marijuana at the door to a residence, justified the warrantless entry into that home because they had probable cause to believe that someone there was in possession of marijuana). Martin v. State, 620 S.W.3d 749 (Tex. Crim. App. 2021) (entry for safety check at firefighter request justified by exigency of fire, and observation of contraband in plain view was admissible and gave rise to PC to support a subsequent warrant, though opening containers without a warrant was improper). Pool v. State, 157 S.W.3d 36, 39 (Tex.App.—Waco 2004, no pet.) (memorandum opinion). An unknown confidential informant told the police that he had seen several people walking around appellant’s house along with several propane tanks in the yard and that he believed appellant was probable cooking methamphetamine. Officers initiated a “knock and talk” with appellant, and while at the front door, the officers smelled a chemical odor. After appellant answered the door, other policemen walked around a partial fence to appellant’s

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backyard where the officers smelled chemicals, saw propane tanks, hoses hooked to the tanks, coffee filters, a cooler with duct tape, and a container with an unknown liquid next to a beige travel trailer. At this point the cops went and obtained a search warrant. Because the court found no probable cause for the issuance of a warrant to search appellant’s house, any exigent circumstances would not justify the warrantless entry. Johnson v. State, 47 S.W.3d 701, 704 (Tex.App.—Houston [14th Dist.] 2001, pet. granted) (overruled on other grounds), is similar to Pool, 157 S.W.3d 36, 39 (2004). In Johnson, an unknown informant told the police that he had looked through a hole in appellant’s fence and saw him manufacturing crack cocaine, so the officers went to investigate. The officers first went to the back of the house and looked through the slats in appellant’s fence, and from this vantage point they could see into appellant’s window whereupon they saw a box of baking soda and a triple beam balance scale. One officer then went to conduct a “knock and talk” while the other stayed out back and saw appellant appear in the window, look surprised, and then dart away. The officer, stating he was afraid for his safety, entered the backyard, looked through the glass patio door, and saw crack cocaine. The court found that the officer had no probable cause to justify the entrance into appellant’s yard because the scale and the baking soda were both legal items, neither of which corroborated the informant’s information. Further, the fact that appellant darted away from the window after looking surprised was not illegal and not unusual given the late hour according to the court. Bedford v. State, 131 S.W.3d 514, 515 (Tex.App.—Waco 2004, pet. dism’d) (noting that the burden of showing a justification for a no-knock entry is not high and affirming the trial court’s decision to deny defendant’s motion to suppress, the appellate court held that the officer’s no knock-entry was justified by the officers’ reasonable belief that evidence would have been destroyed if they had knocked and announced their presence). Ramirez v. State, 105 S.W.3d 730, 735 (Tex.App.—Austin 2003, no pet.) (acknowledging that although the protective sweep was legal, it did not allow the officer to search the cooler inside the garage, where the only items of contraband were found, because the officer could not reasonably believe that a person might be found in the cooler). In Kaupp v. Texas, 538 U.S. 626, 123 S.Ct. 1843, 1844 (2003) (per curium), after a 14year-old girl disappeared the police learned that she had been in a sexual relationship with her half brother, who confessed to the killing and had been in the company of Kaupp on the day of

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the girl’s disappearance. Id. The police were not able to get an arrest warrant for Kaupp, but the detectives nevertheless decided to bring him in for questioning. Id. at 1845. Thus, at 3:00 a.m. the officer arrived in plainclothes at Kaupp’s house, were let in by Kaupp’s father, went into Kaupp’s bedroom, awakened him with a flashlight, identified himself, and told Kaupp it was time to talk, whereupon Kaupp said “okay.” Id. The other officers then handcuffed and led Kaupp, dressed in boxer shorts and a shirt with no shoes, to the patrol car. Id. On the way to the station, the officers stopped for 5 or 10 minutes at the place where the girl’s body had been found and then took Kaupp to an interview room where he eventually confessed. Id. In finding Kaupp’s confession had to be suppressed, the court noted that “although certain seizures may be justified on something less than probable cause, see e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), we have never sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purpose absent probable cause or judicial authorization.” Id. at 1846. Igboji v. State, 607 S.W.3d 157 (Tex. App. – Houston [14th Dist.] 2020, pet. granted) After defendant posted a Snapchat video of officers at the scene of and in the process of investigating a robbery, officers call the defendant in three days later for a formal statement, at which point a detective requested consent to go through defendant’s cell phone; when defendant refused, the detective seized defendant’s cell phone without a warrant “to preserve whatever was on the device.” Two days later, the detective applied for a warrant to search the phone. Court found that the seizure was nonconsensual (defendant merely complied with law enforcement instruction, and did not affirmatively consent) and that the exigent circumstances exception was not applicable, given the delay in calling the defendant in and lack of evidence that the defendant was affirmatively trying to destroy evidence. State v. Ruiz, 622 S.W.3d 549 (Tex. App. – Corpus Christi 2021) (on 2nd remand from CCA, holding that when drunk driving suspect was found unconscious, and where there was shortage of law enforcement officers, exigent circumstances existed for warrantless collection of blood). c. Plain View Joseph v. State, 807 S.W.2d 303, 305 (1991) (en banc) (holding that for the plain view exception to the warrant requirement to attach, the following two requirements must be met: 1)

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the officer must be in a proper position to view the item or lawfully be on the premises; and 2) the fact that the officer has discovered evidence must be immediately apparent). Chapman v. State, 2005 WL 1994294, at *1 (Tex.App.—Fort Worth) (holding the plain view exception to the warrant requirement did not apply to all of the evidence seized from appellant’s residence including dry ice and two small containers, the presence of which cannot be said to be illegal, because the officer deviated from appellant’s front door when serving the arrest warrant and did not have a right to be where he was when he viewed the particular items). Kyllo v. U.S., 533 U.S. 27, 121 S.Ct. 2038, 2040 (2001) (holding that where the government uses a device such as an infrared camera that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, without regard to whether the details were directed solely to unlawful activity or which captured lawful activity as well, the surveillance is a “search” and presumptively unreasonable without a warrant). Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 838 (2005) (holding that where a lawful traffic stop was not extended beyond the time necessary to issue a warning ticket, another officer’s arrival at the scene while the stop was in progress and use of a well-trained narcotics dog around the exterior of appellant’s car was not a search for Fourth Amendment purposes). United States v. Dellas, 355 F. Supp. 2d 1095, 1096 (2005) (memorandum opinion) (noting the significant technological differences between the thermal imaging device used in Kyllo and the night vision goggles used to search appellant’s property, the court held that the use of night vision goggles was not violative of the Fourth Amendment). Nicholas v. State, 502 S.W.2d 169 (Tex. Crim. App. 1973) (holding that where officer’s original entry into appellant’s apartment was to arrest him for being a fugitive from another state, the officers’ examination of film negatives that were beyond the appellant’s immediate control by holding them up to the light, examination and seizure of such negatives exceeded the limits of search incident to arrest, and the seizure could not be justified under the “plain view” doctrine). Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 1151 (1987) (holding that probable cause is required in order to invoke the “plain view” doctrine, and where officers moved stereo equipment in order to locate and subsequently record the serial numbers to determine if such equipment was stolen, the officer’s actions in moving the equipment were not supported by

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probable cause even though the officer was lawfully present in the apartment where the equipment was located). State v. Steelman 125 SW3d 447, (Tex.Crim.App. 2002)(holding that the plain odor of marijuana standing alone, does not authorize a warrantless search and seizure in a home, and an arresting officer must have specific knowledge to believe that the person to be arrested committed the offense; since the officers had no idea who was smoking or possession the pot, they lacked probable cause to believe that the defendant (or any other specific person) was committing the offense in their presence); but see Parker v. State, 206 S.W.3d 593 (Tex.Crim.App. 2006), holding that similar facts give rise to probable cause to believe someone in a home was in possession of marijuana, and that totality of the circumstances must be examined). d. Inventory Searches South Dakota v. Opperman, 428 U.S. 364, 365 (1976) (holding that once the officer was lawfully inside the vehicle to secure the personal property in plain view it was not unreasonable to open the unlocked glove compartment, to which vandals would have had ready and unobstructed access once inside the vehicle and in which the subject marijuana was discovered). e. “Open Fields” Doctrine State v. Hobbs, 824 S.W.2d 317, 318 (Tex.App.—San Antonio 1992, pet. ref’d) (reading the Texas exclusionary rule – Art. 38.23 – literally to require that “no evidence obtained…in violation of any provisions of the Constitution or laws of the State of Texas is admissible,” the court, without discussion of the open fields doctrine, found no exception to the trespass statute for law enforcement officers and affirmed the trial court’s suppression of the evidence; note that this requires specifically invoking Art. 38.23 and the law of trespass, and contrast with Nowlin v. State, 2022 WL 790901 (Tex. App. – Dallas 2021), holding that warrantless search of a possibly stolen vehicle seen in an open field rather than on a home curtilage was not a constitutional violation). f. Checkpoints and Administrative Searches Schenekl v. State, 30 S.W.3d 412, 413 (2000) (holding that a statute allowing an enforcement officer to stop and board a boat without probable cause or reasonable suspicion in order to perform a water safety check was a valid search as the heightened expectation of privacy

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which exists for cars does not exist for boats; random water safety checks are okay in order to facilitate recreational safety). Holt v. State, 887 S.W.2d 16, 17 (Tex. Crim. App. 1994) (en banc) (holding that because a governing body in Texas has not authorized a statewide procedure for DWI roadblocks, such roadblocks are unreasonable and unconstitutional unless and until a politically accountable governing body sees fit to enact nondiscriminatory constitutional guidelines regarding such roadblocks). g. Private Search Doctrine Salinas v. State, 625 S.W.3d 203 (Tex. App. – Corpus Christi 2021) (private search doctrine allows law enforcement to look at anything already seen by private individuals, and Art. 38.23 allows admission if the private individuals’ view was lawful; in this case, truck mechanics found a thumb drive in the truck, and on examination, found child pornography that was reported to law enforcement). h. Community Caretaking Camiglia v. Strom, ___ U.S. ___, 141 S.Ct. 1596 (2021) (§1983 case; officers made warrantless entry into home claiming “community caretaking” exception based on need for psychiatric examination of homeowner, and involuntarily seized homeowner and firearm collection; SCOTUS holds that community caretaking, associated with helping motorists and other individuals in public places, does not ordinarily extend to allow warrantless entry into home). E. Consent: Legal Stop + Consent but Involuntary We don’t usually miss the issue of Fourth Amendment application. However would you skip researching a motion to suppress if both the client and the Assistant. D.A. handling the case tells you that the defendant was stopped for a traffic offense and soon thereafter gave consent search that turned up some drugs? A lot of people would and do, and it’s understandable. After all, When v. U.S., 517 U.S. 806, 808 (1996) tells us that regardless of the officer’s subjective intentions he can stop any vehicle for any offense he can think of as means for making another investigation. Moreover, most judges believe that consent washes away all the taint of any prior illegality (USUALLY, but not always). 1. Fifth Circuit

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Evolving Fifth Circuit decisions held, similarly to Rodriguez v. U.S., 575 U.S. 348 (2015), that even if the initial basis for a stop is lawful, once that basis dissipates, continued detention is unlawful and can make the otherwise seemingly ‘voluntary’ (not beaten out of) consent the fruit of the poisonous tree. The unreasonable delay is usually due to continued questioning by the officer unrelated to the initial basis for the stop (see Fishing with Bill Dance). The situations encountered in this line of cases dealt with something of a Catch-22 situation for officers: if an officer requested consent to search while the detention was ongoing, in most cases, that consent would be tainted by temporal proximity to the original stop, so officers began completing their traffic stop before asking for consent, attempting to convert the encounter from a detention to a voluntary encounter. Initial cases in this situation, such as U.S. v. Dortch, 199 F.3d 193, 195 (5th Cir. 1999) and U.S. v. Jones, 234 F.3d 234, 236 (5th Cir. 2000), focused on unrelated questioning/consent to search made after the officer’s computer check came back in, with the Fifth Circuit holding the respective searches unlawful on the basis that there was no PC for continued detention at that point. After these initial cases, the en banc Fifth Circuit decided U.S. v. Brigham, 382 F.3d 500 (2004). Brigham involved legitimate stop for following too closely; prior to conducted his computer checks and issuing a citation, the DPS trooper asked about eight minutes worth of “where are you going”-type questions unrelated to the basis of the stop. After the panel reversed, the en banc Fifth Circuit vacated the panel opinion and affirmed the conviction, holding that the questions about travel plans and itinerary were within the scope of detention for following too closely when neither the driver nor passenger were owner or lessee of the vehicle, and where the officer got inconsistent answers. U.S. v. Hernandez, 279 F.3d 302, 304 (5th Cir. 2002) (holding that where the first search (by manipulation) of the defendant’s suitcase was illegal, the second search to which defendant consented did not remove the taint of the illegal first search because of the close temporal proximity of the two searches). U.S. v. Valadez, 267 F.3d 395, 396 (5th Cir. 2001) (holding that continued detention of defendant was illegal after officer realized that defendant had not committed a traffic violation and that the window tint was legal).

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U.S. v. Hunt, 253 F.3d 227, 229 (5th Cir. 2001) (holding that the officer’s standard practice of searching a stopped car if the occupant leaves the vehicle is violative of the Fourth Amendment). U.S. v. Portillo-Aguirre, 311 647, 650 (5th Cir. 2002) (holding that when officers detain travelers after the legitimate justification for a stop has ended, the continued detention is unreasonable, and any further questioning beyond requesting documentation evidencing a right to be in the United States must either be based on consent or probable cause). U.S. v. Dortch, 199 F.3d 193, 195 (5th Cir. 1999). Defendant was detained and his rental car papers and driver’s license were confiscated by the officer in order to do a computer search. The officer did not return the documents after the search was completed, so the defendant was not free to go. The officer informed defendant that he would have to wait for the arrival of a drug dog. The court determined that the purpose of the computer check was to screen for warrants or determine if the car was stolen; once the computer check came back negative, defendant should have been released. U.S. v. Jones, 234 F.3d 234, 236 (5th Cir. 2000) (holding that officers should have ended the detention when the dispatcher notified them that defendants’ records were clean, which was three minutes before the officers sought consent to search). 2. Supreme Court Ohio v. Robinette, 519 U.S. 33, 34, 117 S.Ct. 417, 419 (1996). Officer stopped appellant for speeding, ran a warrant and license check that came back clean, turned on his car camera, asked appellant to get out of the car, issued a verbal warning, and returned appellant’s license. At this point, the officer inquired as to whether appellant was carrying any illegal contraband in his car, to which appellant replied in the negative. The officer asked if he could search the car, appellant consented, and a search revealed drugs. In affirming appellant’s conviction, the court held that for purposes of the Fourth Amendment, it would be “unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.” Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (rejecting appellant’s argument that consent could not be valid unless the defendant knew that he had a right to refuse the request).

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But see Rodriguez v. United States, 575 U.S. 348 (2015); in that case, an officer stopped appellant for a traffic violation, and subsequently kept him detained on the side of the road while waiting for a canine unit to show up to conduct a dog sniff. The Court held that a traffic stop is more like a Terry stop than an arrest, and that the length of such a temporary detention is determined by the amount of time needed to address the original reason for the stop. Extraneous investigation can take place simultaneously with this detention so long as it does not extend the stop, and authority to continue the detention dissipates when the ordinary tasks tied to the traffic stop are or should reasonably have been completed, and continued detention is unlawful unless independent reasonable suspicion is developed. 3. Texas Court of Criminal Appeals Davis v. State, 947 S.W.2d 240, 241 (Tex. Crim. App. 1997) (en banc) (concluding that the purpose of the investigative detention was effectuated when the officers determined that Davis was not intoxicated; and as to the continued detention, when viewed in an objective fashion, no known fact or rational inferences from those facts, would support the conclusion that Davis was engaged in or soon would engage in criminal activity) (noting that the articulable facts used by the officer must create reasonable suspicion of 1) some activity out of the ordinary that is occurring or has occurred, 2) some suggestion to connect the detainee with the unusual activity, and 3) some indication the unusual activity it related to crime). When the basis for the stop is over either because it washes out (window tint WAS legal, after all) or because they are kind enough to just give the motorist a warning, the detention becomes illegal. This is especially so when the officer still has the person out of the car surrounded on all sides by the trooper’s car, the trooper, the person’s own car and another officer. Often the officer will still have the person’s driver’s license and insurance card on his clipboard as he seeks the consent. The clock on the in-car video can be valuable as can the video itself. F. Search Warrant Reversals Franks v. Delaware, 438 U.S. 154, 155 (1978) (holding that there must be a truthful showing in the affidavit). A defendant has the right to challenge the veracity of an affidavit upon which a warrant has been issued, but the attack must be more than conclusory and must point out specifically and with support that portion of the affidavit which defendant claims is false. If when these requirements are met and that portion of the warrant is set aside, the

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remaining content is sufficient to support probable cause, the warrant stands. If the remaining portion of the warrant does not support probable cause, then defendant is entitled to a hearing. If in the hearing it is determined that a false statement was included in the warrant, then the fruits of the search are tainted and must be suppressed. Ybarra v. Illinois, 444 U.S. 85, 87 (1979) (holding that probable cause must be particularized with respect to the individual whose privacy is invaded). This is the case with the great and often quoted language “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Kann v. State, 694 S.W.2d 156, 158 (Tex.App.—Dallas 1985, pet. ref’d) (holding the warrant invalid because the officer obtained his view of the marihuana in Kann’s backyard by tresspassing onto her carport (curtilage) to look through a hole in her fence). U.S. v. Cole, 628 F.2d 897, 898 (1980) (holding that a pat down search of Cole, who drove up to the place the police were already running a warrant, could not be justified merely because he was present). State v. Lippert, 664 S.W.2d 172 (Tex. Crim. App. 1984) (reversing a POCS conviction where police found drugs on Lippert when they stopped and frisked him as he walked into a house where the officers were executing a search warrant). State v. Bell, 845 S.W.2d 454, 456 (Tex.App.—Austin 1993, no pet.) (holding that a pat down that turned up dope on appellant who was sitting on the front porch of a house and hollered “police, police” when officers approached the house was unlawful). The officer’s knowledge that it was common for persons dealing in narcotics to carry weapons did not justify the stop and frisk of the defendant. Morris v. State, 62 S.W.3d 817, 819 (Tex.App.—Waco 2001, no pet.) (search warrant affidavit was stale); see also Rowell v. State, 14 S.W.3d 806, 808 (Tex.App. –Houston [1st Dist.] 2000, pet. granted) (evidence was suppressed for lack of probable cause because the warrant was issued six months after the transaction upon which affidavit was based occurred); and Sherlock v. State, 632 S.W.2d 604, 605 (Tex. Crim. App. 1982) (evidence should have been suppressed because the search warrant and affidavit were defective because the facts upon which they were based were not sufficiently closely related to the time of issuance to satisfy probable cause). State v. Baldwin, 614 S.W.3d 411 (Tex. App. – Houston [14th Dist.] 2020, pet. granted) (en banc). (affirming trial court’s orders suppressing cell phone evidence discovered as a result

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of affidavit showing only that two individuals were involved in a murder, along with boilerplate language about the various uses of cell phones; en banc court rejected the idea that any time an offense is committed by more than one person, cell phones must necessarily have been used). (Late-breaking: On May 11, 2022, the Court of Criminal Appeals affirmed in a 5-4 decision. See State v. Baldwin, __ S.W.3d ___, 2022 WL 1499508 (Tex. Crim. App. 2022).) 1. Conclusory Statement in Affidavit Lowery v. State, 843 S.W.2d 136, 138 (Tex.App.—Dallas 1992, pet. ref’d). The search of appellant’s house violated the Fourth Amendment because nothing in the affidavit supported the reliability, credibility, or basis of knowledge of the “persons on the street” who provided the officers with information concerning criminal activity (that drugs were present or being dealt in appellant’s house). The court found no basis for crediting each level of hearsay in the tip, thus the hearsay-upon-hearsay in the affidavit does not support a finding of probable cause. Barraza v. State, 900 S.W. 2d 840, 841 (Tex.App.—Corpus Christi 1995, no pet.). Appellant’s conviction for misdemeanor possession of marihuana was reversed because the search warrant lacked probable cause. The search warrant contained only a mere conclusory statement regarding the reliability of the informant, nothing in the affidavit demonstrated how the informant obtained her knowledge, or whether the informant had previously given information which had turned out to be reliable. 2. Warrant Description of the Property Insufficient Cannady v. State, 582 S.W.2d 467, 468 (Tex. Crim. App. 1979). “Where premises sought to be searched are described in search warrant by certain street number, such a description will not authorize a search of some other street number.” However, in this case the search of the adjoining office was reasonable, even though the addresses were different, because officers observed appellant and others moving from one office to the other. State v. Chavarria, 992 S.W.2d 22, 23 (Tex.App.—Houston [1st Dist.] 1997, pet. ref’d). The State appeals defendant’s motion to suppress. The court found the motion to suppress was properly granted because the warrant contained an address that differed slightly from appellee’s address, and the description of the home differed from appellee’s home. The officers relied solely on the language of the warrant, and failed to make any further inquiry prior to the search. State v. Wood, 828 S.W.2d 471, 472 (Tex.App.—El Paso 1992, no pet.) (recognizing that defendant met the burden of establishing that the official conduct was not proper by establishing

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that “fiber evidence” taken from defendant’s vehicle was not mentioned in the search warrant and that the State failed to prove that the search was permissible under an exception to the warrant requirement or was reasonable under the circumstances). Lamb v. State, 603 S.W.3d 152 (Tex. App. – Texarkana 2020, no pet.) Okay, this isn’t exactly an insufficient description of “the property,” but it is an insufficient description of the things and places to be searched. Warrant authorized search of defendant’s real property, residence, and vehicles. Officers searched the defendant’s real property, residence, vehicles, and person. Court holds that since the warrant did not authorize a search of the defendant, this portion of the search was unlawful, and since admission of the cell phone found on the defendant’s person (and its contents) was not demonstrated to be harmless beyond a reasonable doubt, the court reversed and remanded for new trial. 3.

Technical Requirements of Warrants

State v. Arellano, 600 S.W.3d 53 (Tex. Crim. App. 2020) (By statute, warrants have to be legibly signed by the magistrate who issues it, so what happens when no one can read the signature and figure out or remember which judge issued the warrant? Under the statutory good faith exception, nothing; the CCA held that officers can rely on such a warrant under the good faith exception.) Most cases involving search warrants are very difficult to overcome. You will usually have better luck in a case where no warrant was obtained. The exceptions to the search warrant requirement of search incident to valid arrest, inventory search, and consent are frequently used. G. Other Reversals 1. Invalid Consent Mitchell v. State, 831 S.W.2d 829, 830 (Tex.App.—Houston [1st Dist.] 1992, pet. ref’d). Undercover narcotics officers approached appellant on a bus and asked for permission to search his bag. Appellant asked the officers whether he had a right to privacy. The officers responded that he did, but then asked whether appellant would prefer that a narcotics dog sniff his bag instead. The court found that appellant’s consent was involuntary, and that appellant did not reasonably believe he was free to terminate the encounter. 2. Invalid Third Party Consent Georgia v. Randolph, 126 S.Ct. 1515, 1518 (2006). Appellant’s wife and child had moved out of the house, but several months later she and her child came back to the house,

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although the record does not reveal whether her motivation for return was reconciliation or retrieval of her possessions. One morning, after being at the house, appellant’s wife called the police and said that after a domestic dispute appellant had taken their son away. When officers arrived, appellant’s wife told them he was a cocaine user whose habit had created financial problems and had caused her to go stay with her parents for a while. Shortly after the police arrived, appellant returned, and said that he took the child to a neighbor’s because he was afraid his wife would take the child out of the country again. Appellant denied cocaine use and claimed it was his wife who used cocaine and alcohol. Appellant’s wife went with an officer to get the child, and when they returned to the house she renewed her complaints about the drug use and offered that there were “items of drug evidence in the house.” The officer asked for appellant’s consent to search the house, but was denied permission, whereupon he asked for and was granted consent to search from appellant’s wife. The Court held that the case invited the straightforward application of “the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” Dawson v. State, 868 S.W.2d 363, 365 (Tex.App.—Dallas 1993, pet. ref’d). Appellant was a dancer at a topless club. Officers, operating on a tip, requested the manager of the club to conduct a search of appellant’s locker, to which appellant consented. The manager found drugs in appellant’s purse. The trial court denied appellant’s motion to suppress. The appellate court reversed, holding that the search violated the Fourth Amendment. The search was not a valid private search because the club manager conducted the search at the request of the officers, thereby acting as their agent. The manager had no personal knowledge as to whether appellant had been informed at that particular club that the lockers used by the dancers were subject to search without notice. Therefore, the court found that appellant had a reasonable expectation of privacy regarding her locker because she had a lock on it and no one had joint access to the locker. Reynolds v. State, 781 S.W.2d 351, 352 (Tex.App.—Houston [1st Dist.] 1989, pet. ref’d). Appellant went out to dinner and left her children (ages 9 and 12) at home, instructing them not to admit anyone to the home and not to enter her bedroom or bathroom. Despite her mother’s instructions, the daughter entered the bathroom and found drugs in a box. She informed her brother, who called their father. The boy and his father “agreed” that they would call the police, which the father did at the son’s request. When the officer arrived, the children invited him in

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and showed him the drugs. The officer took the children to the police station and released them to their father. When appellant returned home and found her children missing, she called the police, at which time she was arrested. The court of appeals held that a 12 year old child does not have the authority to consent to the officer’s entry into and search of his mother’s private bedroom and bathroom, and that appellant had a reasonable expectation of privacy in her private bedroom and bathroom. Becknell v. State, 720 S.W.2d 526, 527 (Tex. Crim. App. 1986).

Appellant was

convicted of murder for the shooting of a college professor in whose class he was enrolled. A search of appellant’s padlocked bedroom in his parents house was an illegal search, because the father “did not exercise equal control over and equal use of the premises being searched.” Therefore, the seizure of a gun dealer’s business cards and records of appellant’s purchase of .25 and .38 caliber hand guns and ammunition was improper and the evidence inadmissible.4 Moberg v. State, 810 S.W.2d 190, 191 (Tex. Crim. App. 1991). Appellant was convicted of sexual assault of a child after officers conducted as an inventory search a warrantless search of appellant’s hotel room after they had arrested appellant on an unrelated charge and transported him to the police station. The officers conducted an inventory search to secure appellant’s belongings and discovered 94 photographs of young girls. The inventory search was invalid because appellant had paid in advance for the motel room, and the period for which he had paid had not yet expired when the police conducted the search. Therefore, appellant had a reasonable expectation of privacy regarding the hotel room. The evidence also showed that the hotel would have taken custody of appellant’s abandoned belongings and retained them for six months, so it cannot be said that appellant’s belongings were safer in police custody. The record shows that the officers obtained a search warrant, but chose to rely on the doctrine of “inventory search.” The Court of Criminal Appeals held that the officers did not act “under any type of standardized criteria nor within the realm of a proper inventory search.” Therefore, the inventory search was improper, and the evidence thereby obtained inadmissible. May v. State, 780 S.W.2d 866, 867 (Tex.App.—Dallas 1989, pet. ref’d). Appellant was convicted of unlawful possession of a controlled substance, which was based on evidence obtained during an unlawful warrantless search of appellant’s residence, consented to by 4

However, the court found the error to be harmless because the evidence “did not contribute to appellant’s conviction and the jury would have reached the same verdict of life imprisonment had not such evidence been admitted,” Becknell at 531, because the murder weapon was not admitted into evidence.

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appellant’s estranged wife and stepdaughter. The court found that appellant’s estranged wife and stepdaughter no longer possessed the requisite control of appellant’s residence to properly consent to the warrantless search. 3. Unlawful Arrest Based on Informant Smith v. State, 58 S.W.3d 784, 787 (Tex.App.—Houston [14th Dist.] 2001, pet. ref’d). Narcotics officers arrested appellant based on information provided by an uncorroborated informant. At the time of appellant’s arrest, appellant was not engaged in any suspicious activity which would have lead officers to believe appellant was engaged in criminal activity. Appellant was pulled over, and he eventually consented to a search of his vehicle which led to the discovery of heroin. The officer’s decision to stop appellant was based solely on a conversation with another officer, who provided information from an uncorroborated informant. Appellant’s detention was illegal because the officer lacked reasonable suspicion to stop appellant. 4. Unlawful Arrest Based Upon Anonymous Tip Florida v. J.L., 529 U.S. 266, 268 (2000). Police searched respondent after receiving an anonymous tip that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Upon arriving at the bus stop, the officers observed three black males, one of whom (respondent) was wearing a plaid shirt. Aside from the anonymous tip, the officers had know reason to suspect any of the three black males of criminal behavior. The officers performed a Terry “stop and frisk” on appellant and discovered a gun in his pocket. The court held that an anonymous tip that a person is carrying a gun, without more, is insufficient to justify a stop and frisk of that person. Because the officers’ suspicion was based not on their own observations, but rather, on the anonymous tip, their search of respondent violated the Fourth Amendment. 5. Not an “Offense Within View” State v. Steelman, 16 S.W.3d 483, 485 (Tex.App.—Eastland 2000, pet. granted). Police arrested defendant without a warrant based on an uncorroborated anonymous tip that he was dealing drugs at home. The officers entered the Steelmans’ house without a warrant, and noticed the smell of burnt marihuana (doesn’t say freshly burnt or not).

The officers placed the

occupants under arrest, and sought consent from Leo Steelman to search the house.

Id.

Steelman refused to consent to the search. The officers remained in the house with defendant until a search warrant was obtained. Before the search warrant was obtained, the officers did not

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observe any marihuana in the house. The court held that the arrest was unlawful because the defendant did not possess marihuana in the officers’ presence and there was no smell of marihuana on the clothing. The search warrant obtained by the officers does not attenuate the illegal search, because the officers remained inside the residence while waiting for the warrant, and thus the illegal search never ended. Stull v. State, 772 S.W.2d 449, 450 (Tex. Crim. App. 1989).

An officer received

information from a known informant that a group of youngsters was meeting to exchange or use drugs. The officer set up surveillance at one of two areas indicated by the informant because he did not have first hand knowledge of the activities, and observed the kids passing around what he believed to be marihuana cigarettes. The next day, the officer did not find the kids at the first location and so proceeded to the second location, where he observed a group of kids and their cars. The officer did not observe any illegal activity. The officer called for backup, but felt compelled to move in on the kids when they noticed him and began to leave. When backup arrived, the officers searched the vehicles and discovered hashish. The court found that the warrantless arrest of appellant was unlawful because there was no corroboration between the officer’s observations at the first location on the first day and his personal observations (appellant did not commit an offense in view of the officer) at the second location on the second day. Green v. State, 594 S.W.2d 72 (Tex. Crim. App. 1980). Appellants were convicted of possession of heroin.

An officer stopped appellants for a traffic violation and noticed

ammunition in the glove compartment. He asked if appellants were carrying a gun. They produced the gun to the officer, who returned it to appellants after copying the serial number. The officer later learned the gun was stolen. The officer later noticed appellants car at a motel and checked the registration information to verify appellants identity, at which time he learned that appellants had provided false information.5 The officer confirmed that the gun was an “active stolen” and returned to the motel accompanied by other officers. The officers gained entrance to appellants’ room with a pass key. The officers did not have a warrant. D. The officer observed plastic bags of heroin floating in the toilet. The officer testified he had entered the room to recover the stolen pistol, and that he arrested appellants for violating the

By giving false information when registering at the hotel, appellants allegedly violated an “Innkeeper’s Ordinance.”

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“Innkeeper’s Ordinance,” which was not entered into evidence at trial. Because the ordinance was not properly proved, appellants did not commit an offense in the presence of the officers so as to justify a warrantless arrest. Villalobos v. State, 999 S.W.2d 132, 133 (Tex.App. – El Paso 1999, no pet.). Officers observed appellant park in a metered parking space, leave the car quickly without putting coins in the meter, speak to an unknown person at a known drug trafficking location, and return to his car. The officers then blocked appellant’s car in the parking space and ordered him out of the car. The officers seized a balloon containing heroin from the car. Because appellant was blocked in by the officers, he was placed under custodial arrest. However, the officers did not have probable cause to arrest appellant because he did not commit an offense in the officers’ presence. Failure to feed the parking meter is not a criminal offense.

Furthermore, no one

noticed whether the time on the meter had expired. Finally, the officers did not have probable cause to arrest appellant for possession of heroin because they did not observe a transaction between appellant and the unknown person. State v. Brown, 929 S.W.2d 588, 589 (Tex.App.—Corpus Christi 1996, pet. ref’d). Officers were summoned to a Sears store after receiving complaints regarding homosexual activity in the restroom; specifically, a customer complained about someone peering underneath his toilet stall partition. A small hole had been bored into the partition dividing two of the stalls. The officers were standing in the linen department when they noticed appellee leave the restroom.

One officer remarked that he was “going to the restroom” and proceeded to a stall

where the hole had been bored.

Appellee soon entered the adjacent stall and began to

masturbate. The officer exited the stall, identified himself as a police officer, and informed appellee that he was under arrest. The court found that appellee had the same expectation of privacy as an “innocent user” because there was no evidence that appellee had drilled the hole in the partition. The evidence had to be suppressed because the officer did not have probable cause or reasonable suspicion to search appellee’s stall. 6. Unreasonable/Illegal Detentions Gamble v. State, 8 S.W.3d 452 (Tex.App.—Houston [1st Dist.] 1999, no pet.). Appellant was convicted of possession of cocaine. Officers’ only basis for detaining appellant was that appellant was in an area with a reputation for drug sales, that the police had received frequent calls to the area for disturbances, that appellant was in the area at an early morning hour, and that

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appellant watched the police car pass by and then walked in a direction away form the police car. These facts do not give rise to reasonable suspicion to detain appellant, and therefore appellant was illegally detained. Gordon v. State, 4 S.W.3d 32, 34 (Tex.App.—El Paso 1999, no pet.). Officers received information that Gonzales, who had an outstanding warrant for his arrest, was located at an address in Midland. The officers obtained consent to enter the residence from the owner. Appellant was in the residence at the time officers entered. The officers found Gonzales in a bedroom and arrested him. After placing Gonzales in the patrol car, the officers discovered drugs and paraphernalia in the bedroom in which Gonzales had been located, and therefore decided to detain all the occupants and conduct a K-9 search. Because removal of the occupants is standard in such a search, an officer conducted a weapons pat-down of appellant, handcuffed him, and escorted him outside. Before placing appellant in the backseat of the patrol car, the officer lifted the seat to show appellant that nothing was present under the seat. After the search was completed and no narcotics were found, the officers decided to release appellant. They removed him from the car in order to remove the handcuffs, lifted the seat, and found one rock of crack cocaine. The court found that the detention of appellant became an illegal arrest without probable cause, and that appellant’s abandonment of the cocaine was involuntary due to the illegal arrest. Therefore the evidence should have been suppressed. Davis v. State, 61 S.W.3d 94, 96 (Tex.App.—Amarillo 2001, no pet.).

Officers

approached a group of people gathered in a backyard in a high crime neighborhood around midnight. As they approached, they observed appellant acting nervous. The officer had dealt with appellant before on domestic calls and asked appellant for his identification. The officer conducted a weapons pat down of appellant because appellant’s nervousness caused the officer to fear for his safety. The officer discovered a crack pipe which the officer considered probable cause to arrest appellant. The officer conducted a search incident to arrest and discovered cocaine. The arrest was unlawful because the officer did not observe any illegal activity, and merely being in a high crime neighborhood and acting nervous does not constitute reasonable suspicion to justify a search. Because the arrest was unlawful, the cocaine discovered during the search incident to arrest should have been suppressed. Gurrola v. State, 877 S.W.2d 300, 301 (Tex. Crim. App. 1994). An officer approached appellant and three others who appeared to be engaged in an argument in a parking lot. As the

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officer approached, appellant and the others began to leave. The officer instructed appellant and the others to return and place their hands on a parked car. The officer conducted a pat down of appellant, which revealed a hand gun. A further search revealed cocaine. The officer did not have reasonable suspicion to detain and search appellant. Merely engaging in an argument in a parking lot in the late afternoon and walking away from an officer does not amount to reasonable suspicion. Shelby v. State, 888 S.W.2d 231, 232 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d). Officers observed appellant and a juvenile known to the officers walking together down a road in the early morning. The officers stopped the patrol car and waited for appellant and the juvenile to come around the corner of a building. Only appellant walked around the corner of the building. The officers assumed that appellant and the juvenile split up upon seeing the patrol car, and the officers drove around the building to intercept the juvenile. The officers stopped the juvenile and conducted a pat down, discovering cocaine. The officers had observed appellant enter a convenience store and drove to the store to question appellant. The officers conducted a pat down of appellant because they feared for their safety and discovered three candy bars which appellant had stolen from the store. The officers arrested appellant, and a further search yielded crack cocaine. The fact that appellant and the juvenile were seen walking together in a high crime area in the early morning, that they separated upon sighting the patrol car, and that crack cocaine was found on the juvenile as a result of a valid search does not constitute reasonable suspicion to link appellant with the cocaine possessed by the juvenile. United States v. Rivas, 157 F.3d 364, 366 (5th Cir. 1998). Appellant was driving his tractor-trailer rig through the port of entry in Brownsville. He claimed he was going to San Antonio to buy used cars. At the border, customs agents drilled into the wall of the trailer and discovered cocaine. Customs agents set up surveillance on appellant, who drove to Dallas and met another person. Appellant parked his rig at a commercial building and left in a rental car. His companion left in another car. Customs agents arrested both men, obtained a search warrant, and discovered cocaine in the wall of the trailer. The court found that because the act of drilling into the wall of the trailer at the border was not a routine search, the Customs agents were required to have reasonable suspicion that criminal activity was taking place to validate the search.

The drug-detecting dog’s weak alert was not sufficient to constitute reasonable

suspicion. Therefore, under the fruit of the poisonous tree doctrine, all evidence resulting from

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the unlawful search at the border (including the consequential search in Dallas) must be suppressed. 7. Illegal Car Stops Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1986). Appellant Comer was subjected to an illegal stop by police. As a result of this illegal stop, appellant, who was a passenger in the vehicle, dropped a heroin-filled syringe onto the pavement and attempted to kick it under the vehicle as he exited the car. The court held that because appellant’s decision to abandon the contraband was a direct result of the illegal stop, the abandonment was involuntary and therefore did not remove the taint of the illegal stop. Ebarb v. State, 598 S.W.2d 842, 843 (Tex. Crim. App. 1980). Police officer stopped appellant based on information from an informant that appellant was carrying a handgun in her car. Appellant had a handgun on her front seat. At trial the officer could not remember the name of the informant, could not remember how many times he had received information from the informant, and could not remember whether any of the information from the informant had led to arrests. The court concluded that because the officer relied on an uncorroborated informant, the stop was illegal and the evidence should have been suppressed. State v. Simmang, 945 S.W.2d 219, 220 (Tex.App.—San Antonio 1997, no pet.). An officer received a call from dispatch about an anonymous tip that a white male was masturbating in a gold-colored four-door sedan in a parking lot. The officer arrived at the parking lot, followed by another officer. The officers proceeded to block Simmang’s car. The officer approached the car and saw Simmang sitting inside the car dressed with his clothing intact. The car window was rolled down and the officer could smell burnt marihuana. The officer ordered Simmang out of the car and frisked him for weapons. The officer found no weapons, but looking through an open car door, noticed a handgun on the floorboard. The officers arrested appellant and searched him, but found no weapons or drugs on his person. The officers found the handgun, ammunition, and marihuana in the vehicle. Because Simmang was detained based on the unsubstantiated suspicions of an anonymous caller, whose reliability was uncorroborated, and without articulable facts and circumstances to justify the stop, the evidence was the tainted fruit of an illegal stop and should have been suppressed. Richardson v. State, 39 S.W.3d 634, 636 (Tex.App.—Amarillo 2000, no pet.). Appellant was stopped for driving under the speed limit, and cocaine was found in his vehicle. The officer

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did not have reasonable suspicion to stop appellant because appellant was not impeding traffic (no cars were behind appellant waiting to pass), and appellant’s increase in speed was not indicative of an offense. United States v. Miller, 146 F.3d 274, 276 (5th Cir. 1998). Miller was stopped for driving his motor home through an intersection with the turn signal on but not turning or changing lanes. Miller consented to a search of his motor home that yielded marihuana (A LOT). The court held that because driving with a turn signal on without turning or changing lanes is not a violation of Texas law, therefore, the officer did not have probable cause to stop Miller. The evidence should have been suppressed because it was the tainted fruit of an illegal stop. Trahan v. State, 16 S.W.3d 146, 147 (Tex.App.—Beaumont 2000, no pet.). Trahan was stopped for failure to use his turn signal when exiting the freeway and was subsequently arrested and convicted of possession of a controlled substance. Evidence was not presented that Trahan had to change lanes in order to exit the freeway. Because signaling is mandatory only when changing lanes, turning, or starting from a parked position, the State failed to establish that Trahan had committed a traffic violation. Therefore, the stop was illegal and the evidence obtained was tainted fruit. Morrison v. State, 71 S.W.3d 821, 824 (Tex.App.—Corpus Christi 2002, no pet.). A police officer observed a car in which Morrison was a passenger stopped in the road. The officer observed the driver was not wearing her seatbelt. When the car drove off the officer stopped the car because it had blocked the road and because the driver was not wearing the seatbelt. As the officer approached the passenger side of the vehicle he observed Morrison drop something on the ground. The officer noticed an object on the ground which appeared to be a rock of crack cocaine. The officer requested that Morrison exit the vehicle, and the officer searched him, finding a crack pipe. The officer placed Morrison under arrest. The object field-tested positive for cocaine. The court found that the vehicle had not illegally blocked the road; therefore, basing the stop on blocking of the road was illegal. However, the officer’s alternative theory for the stop – that the driver was not wearing her seatbelt – was legally sound and gave the officer probable cause for the stop and subsequent arrest. Therefore, the motion to suppress was properly denied.

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State v. Exiga, 71 S.W.3d 429, 431 (Tex.App.—Corpus Christ 2002, no pet.). Exiga was stopped for his window tint and subsequently convicted of possession of marihuana. The court found that the statute pertaining to window tint did not apply to pre-1988 vehicles (Exiga’s was a 1985) and that the DPS did not have the authority to issue regulations regarding window tint on pre-1988 cars. Therefore, Exiga was subjected to an illegal stop, and the tainted evidence was properly suppressed. Bass v. State, 64 S.W.3d 646, 647 (Tex.App.—Texarkana 2002, pet. ref’d). Bass was convicted for possession of marihuana. An officer stopped Bass on the following two bases: 1) that Bass failed to drive in a single lane and 2) to determine whether Bass was driving while intoxicated. An officer must observe specific, objective, articulable facts that provide a basis that a driver is intoxicated or has committed a traffic violation. Because the officer did not present such articulable facts he did not have reasonable suspicion to stop Bass, and thus, the tainted evidence should have been suppressed. Ehrhart v. State, 9 S.W.3d 929, 930 (Tex.App.—Beaumont 2000, no pet.). Ehrhart was convicted of third degree felony possession of a controlled substance. The court found that the stop was not justified under the “community caretaking” exception because there was no evidence that Ehrhart required assistance. The evidence should have been suppressed because appellant consented to a search resulting from and illegal stop. See also, Villalobos v. State, 999 S.W.2d 132, 133 (Tex.App. – El Paso 1999, no pet.) supra. 8.

Fundamental warrant rules

King v. State, ___ S.W.3d ___, 2021 WL 4995217 (Tex. App. – Houston [1st Dist.] 2021) (only one search per warrant; Oklahoma warrant for search of truck had already been executed, and inventory prepared, and sent back to the Oklahoma court when an officer made a second search of the truck and seized the defendant’s cell phone. Cell phone and its contents (a number of child porn photographs) were deemed inadmissible).

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Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Trusting Outsiders: Crimmigration Speaker: Krista Harvey 209 Teserti Rd Leander, TX 78641 (254) 913-9248 Phone (806) 763-8199 Fax krista@capds.org Email

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

5/20/2022

Presented by: Krista Harvey, myPadilla Immigration Attorney

BETTER TOGETHER: CRIMINAL AND IMMIGRATION DEFENSE

Importance • Padilla v. Kentucky • Constitutional Rights • Quality of Service Does it make a Difference

AGENDA

• • • •

Deportability Relief Options Mandatory Detention Travel

Putting it all together myPadilla

WHY IS THIS IMPORTANT?

5/20/2022

Facts:

PADILLA V. KENTUCKY

• Mr. Padilla had been a Legal Permanent Resident for 40 years and served in the US military • Then he was charged with drug trafficking • His defense attorney told him to take the plea without getting an immigration consult • Ordered deported and appealed his case

Holdings: • Padilla advice is not the same as a judicial admonishment • Defense counsel has an obligation to warn their clients of immigration consequences. If they fail to do so, they can face an Ineffective Assistance of Counsel claim • The warning must be specific and detailed when the consequences are clear

PROTECTS CONSTITUTIONAL RIGHTS A failure to provide a warning is a violation of the person's 6th amendment right to counsel A failure to ensure competent representation on behalf of the judge is a violation of the person's 5th amendment right to due process

QUALITY OF SERVICE What if you're wrong? What if it was you or your loved one? Who else will help? How much will the client appreciate it?

5/20/2022

DOES IT MAKE A DIFFERENCE

Deportation

REDEFINING AN IMMIGRATION "WIN"

Relief Bond Eligibility Travel

DEPORTABILITY

5/20/2022

INADMISSIBLE VS. DEPORTABLE

Deportable = kicked out

Inadmissible = no entry

Deportable Crimes

Inadmissible Crimes

Firearms Offenses

Prostitution Offenses Controlled Substance Offenses

Crimes Involving Moral Turpitude (1) Graffiti

Can be both, can be neither

Crimes of Domestic Violence

2+ CIMTs Aggregate confinement to 5+ years

Trespass

Aggravated Felonies

Criminal Mischief

DWI Traffic Tickets

AVOIDING DEPORTABILITY Arnold Schwarzenegger has been a Legal Permanent Resident ("LPR") for 2 years He is charged with Unlawful Possession of a Firearm Any firearms offense is a deportable offense If the charges are amended to Unlawful Possession of Body Armor he will not be deportable at all.

5/20/2022

A. Burglary of a Vehicle

WHICH IS THE DEPORTABLE OFFENSE?

B. Criminally Negligent Homicide C. DWI with Child Passenger

RELIEF OPTIONS

TYPES OF RELIEF Cancellation of Removal

Adjustment of Status

• Nonpermanent Residents win status • Permanent Residents keep their status

• Gaining status through a petitioner/exisiting application

Asylum • 3 forms

Visas • U visa • Work Visa

5/20/2022

PRESERVING RELIEF OPTIONS Pablo Escobar has been an LPR for 10 years He is charged with Manufacturing and Delivery of a Controlled Substance Any crime involving a controlled substance is a deportable offense. Drug Trafficking is an aggravated felony An aggravated felony bars him from cancellation relief Amending to Unlawful Delivery or Manufacture with Intent to Deliver Simulated Controlled Substance saves Pablo (kind of). Man/Del of a Simulated Controlled Substance is a deportable offense, but not an aggravated felony so he will still be eligible for 42A Cancellation of Removal

PRESERVING RELIEF OPTIONS OJ Simpson has been in the US for 25 years without documentation and has 5 US citizen children (not including Khloe Kardashian) He has a pending Evading Arrest charge Evading Arrest is a CIMT based on which subsection it is charged under Generally, evading on foot is not a CIMT. Evading in a vehicle is a CIMT. He will not be eligible for Cancellation of Removal if he is convicted of an inadmissible offense (a CIMT) Specifying the plea to TPC 38.04(a) will keep him eligible for relief in immigration court.

MANDATORY DETENTION

5/20/2022

MANDATORY DETENTION A person is completely ineligible for an immigration bond if convicted of:  A CIMT with a sentence of one year or more  An offense involving a controlled substance  Multiple CIMTs  Any offense involving a firearm  An aggravated felony

AVOIDING MANDATORY DETENTION Ghislaine Maxwell overstayed her visa and is now in the US without status She is charged with Promotion of Prostitution An offense involving prostitution is a CIMT If she is convicted of a potential sentence of a year or more, she will be subject to mandatory detention If she is sentenced to 364 days or less, she can be granted an immigration bond

BOND ELIGIBLE?

Robbin Hood is charged with State Jail Felony Burglary of a Building and is sentenced to 2 years confinement probated for 4 years. Is he bond eligible?

What if he was sentenced to 90 days time to serve?

5/20/2022

TRAVEL

RE-ENTRY Even a permanent resident must be "admissible" to come back into the US after traveling abroad A person can be inadmissible, but not deportable If convicted of an inadmissible offense, a person will be denied entry and can be placed in removal proceedings at a port or entry

PRESERVING ABILITY TO TRAVEL Batman has been an LPR since 2008 He is charged with TPC 38.02 Failure to ID Failure to ID becomes a CIMT aka an inadmissible offense when there is fraud involved If he is convicted of TPC 38.02(b) or (d)(2) he will be inadmissible If he travels abroad, he will not be allowed to return to Gotham If he is convicted of TPC 38.02(a) or (d)(1), he will not be inadmissible and will be able to travel freely

5/20/2022

A. Amber Heard- Assault (simple)

WHICH PERSON CAN RE-ENTER?

B. Snoop Dogg- POM (multiple) C. Anna Delvey- Credit Card Abuse D. Jussie Smollett- Perjury

PUTTING IT ALL TOGETHER

ASSAULT! Gordon Ramsay has been an LPR for 23 years He is charged with intentional and knowing Aggravated Assault with a Deadly Weapon; to wit, a butcher knife If he is charged as-is with a potential sentence to confinement for one year or more:  Inadmissible for a CIMT (because it involves a deadly weapon)  Crime of Violence (because intentional/knowing)  Aggravated Felony (because sentencing)  He is deportable and ineligible for bond and ineligible for relief in removal proceedings.

5/20/2022

ASSAULT CONT. If we amend the conviction to Reckless Assault:  No CIMT so he can travel internationally  Not a crime of violence so not deportable at all  Not an aggravated felony because not a crime of violence so he's eligible for relief in removal proceedings if he's charged with a deportable offense in the future

ASSAULT CONT. What if the victim was his wife? A crime of domestic violence is a deportable offense. If there is a sentence to a year or more, it becomes an aggravated felony. BUT, a crime of domestic violence must first be a crime of violence Reckless assault cannot be a crime of domestic violence even if there is a family violence finding in state court.

TPC 22.01 Sec. 22.01. ASSAULT. ◦

(a) A person commits an offense if the person: ◦ (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; ◦ (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or ◦ (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

◦ (b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: ◦ (1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; ◦ (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if: ◦ (A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or ◦ (B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth;

5/20/2022

MYPADILLA

WHAT’S IN THE MEMO? Inadmissible or deportable

Naturalization

Travel

Bond

Relief Options

Plea Recommendations

5/20/2022

QUESTIONS AND CONTACT INFO

Krista@myPadilla.com 254-913-9248

PD-0552-18 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/7/2018 5:35 PM Accepted 12/11/2018 10:49 AM DEANA WILLIAMSON CLERK

No. PD-0552-18

RECEIVED COURT OF CRIMINAL APPEALS 12/11/2018 DEANA WILLIAMSON, CLERK

In the Court of Criminal Appeals of the State of Texas ____________________ Ex parte Jordan Bartlett Jones, Respondent-Appellant _____________________________

On Appeal from the Twelfth Court of Appeals, Cause No. 12-17-00346-CR, Reversing Cause No. 67295 from the County Court at Law Number Two of Smith County, Texas BRIEF OF AMICI CURIAE MEDIA COALITION FOUNDATION, INC., AMERICAN BOOKSELLERS ASSOCIATION, ASSOCIATION OF ALTERNATIVE NEWSMEDIA, ASSOCIATION OF AMERICAN PUBLISHERS, INC., FREEDOM TO READ FOUNDATION AND NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION Michael A. Bamberger Richard M. Zuckerman DENTONS US LLP 1221 Avenue of the Americas New York, NY 10020 (212) 768-6700 michael.bamberger@dentons.com richard.zuckerman@dentons.com

Glenn A. Ballard, Jr., Counsel of Record Texas Bar No. 01650200 Mukul S. Kelkar Texas Bar No. 24063682 DENTONS US LLP 1221 McKinney Street, Suite 1900 Houston, TX 77010 (713) 658-4633 glenn.ballard@dentons.com mukul.kelkar@dentons.com

Attorneys for Amici Curiae

TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................... II INTEREST OF THE AMICI ......................................................................................... 1 INTRODUCTION....................................................................................................... 4 THE RELATIONSHIP PRIVACY ACT ......................................................................... 7 ARGUMENT — THE RELATIONSHIP PRIVACY ACT IS UNCONSTITUTIONAL ............ 8 I. The Act is a Content-Based Regulation of Speech That is Not Narrowly Tailored to the State’s Interest in Protecting Relationship Privacy by Combatting “Revenge Porn” .................................................. 8 A. The Act Criminalizes Speech That Is Protected by the First Amendment ........................................................................................ 8 B. “Strict Scrutiny” Applies To Content-Based Restrictions on Free Speech—and Is Not Limited to Matters of Public Concern ............ 17 C. The Act Cannot Survive Strict Scrutiny........................................... 22 II. The Legislature Can Protect Relationship Privacy Without Directly Burdening Protected Speech................................................................... 26 A. By Failing To Make Knowledge and Ill Intent Elements of the Offense, the Legislature Did Not Use the Least Restrictive Means to Serve the Act’s Purpose ................................................... 26 B. The Texas Senate and Texas House Are Considering Bills That Would Add Knowledge and Ill Intent as Elements of the Offense.. 28 CONCLUSION ........................................................................................................ 30 APPENDIX — TEXAS PENAL CODE § 21.16 .......................................................... 32 CERTIFICATE OF COMPLIANCE ............................................................................. 35 CERTIFICATE OF SERVICE ..................................................................................... 36

TABLE OF AUTHORITIES Page(s) Cases Ashcroft v. ACLU, 542 U.S. 656 (2004)..............................................................................8, 13, 26 Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786 (2011)....................................................................................6, 20 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)........................................................................................18 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).................................................................................... 20-22 Consolidated Edison Co. of N.Y. v. Publ. Serv. Comm'n of N. Y., 447 U.S. 530, 537 (1980)................................................................................19 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)..................................................................................13, 16 Hill v. Colorado, 530 U.S. 703 (2000)........................................................................................22 Illinois ex rel. Madigan v. Telemarketing Assocs., Inc. 538 U.S. 600 (2003)........................................................................................14 Jenkins v. Georgia, 418 U.S. 153 (1974)........................................................................................13 Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) ...................................................13, 20 People of the State of N.Y. v. Marquan M., 19 N.E.3d 480 (2014) .....................................................................................15 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ................................................................................6, 19

Regan v. Time, Inc., 468 U.S. 641 (1984)........................................................................................13 Reno v. ACLU, 521 U.S. 844 (1997)........................................................................7, 14, 24, 26 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995)........................................................................................19 Sable Communications of Cal., Inc. v. FCC., 492 U.S. 115 (1989).................................................................................. 13-14 State of North Carolina v. Bishop, 787 S.E.2d 814 (N.C. 2016) ...........................................................................15 State of Vermont v. VanBuren, No. 2016-253, 2018 WL 4177776 (Vt. Aug. 31, 2018) .................................27 Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) ............................................... passim Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994).................................................................................. 26-27 United States v. Alvarez, 567 U.S. 709 (2012)........................................................................................19 United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000)................................................................................ passim United States v. Stevens, 559 U.S. 460 (2010)................................................................................ passim Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982).................................................................................. 14-15

United States Constitution U.S. Constitution, First Amendment ........................................................... passim

iii

Statutes Acts 2015, 84th R.S., ch. 852 (S.B. 1135) ..................................................5, 7, 23 Acts 2017, 85th R.S., ch. 858 (H.B. 2552) ........................................................ 7-8 TEX. CIV. PRAC. & REM. CODE ANN. § 98B...........................................................5 TEX. PENAL CODE ANN.§ 21.16 ................................................................... passim TEX. PENAL CODE ANN..§ 43.22 .........................................................................10 TEX. PENAL CODE ANN..§ 43.23 ..........................................................................10 VT. STAT. ANN. tit. 13, § 2606 ....................................................................... 27-28

Other Authorities H.B. 98, 86th Leg. (Tex. 2018) ............................................................................29 S.B. 97, 86th Leg. (Tex. 2018) ............................................................................29 TEX. COMM. REP., 84th R.S., ch. 852 (S.B. 1135) (May 27, 2015) .....................23

INTEREST OF THE AMICI 1 Media Coalition Foundation, Inc.; American Booksellers Association; Association of Alternative Newsmedia; Association of American Publishers, Inc., Freedom to Read Foundation and National Press Photographers Association respectfully submit this Brief as amici curiae in support of Respondent-Appellant Jordan Bartlett Jones. Amici’s members (also referred to herein as “Amici”) create, publish, produce, distribute, sell, advertise in, and manufacture books, magazines, videos, sound recordings, motion pictures, interactive games, photographs, and printed materials of all types, including materials that are scholarly, literary, artistic, scientific, and entertaining.

Libraries and librarians whose interests are

represented by Amicus Freedom to Read Foundation (“FTRF”) provide such materials to readers and viewers, whose First Amendment rights FTRF also defends. Amici have a significant interest in preventing the imposition of unconstitutional governmental limitations on the content of their First Amendment-protected communicative materials, whether textual or visual. Amici

Pursuant to Rule 11, TEX. R. APP. PROC., counsel of record for Amici certifies that no person or entity other than Amici and their counsel made or will make a monetary contribution for the preparation or submission of this brief.

are particularly concerned with the chilling effect of any test that reverses the rule that content-based restrictions are presumptively unconstitutional. Media Coalition Foundation, Inc. (the “Foundation”) is a not-for-profit corporation, established in 2015 by The Media Coalition, an association representing individuals and organizations engaged in communication through both traditional and electronic media. The Foundation monitors potential threats to freedom of speech and engages in litigation and education to protect First Amendment rights. The Foundation strives to educate policymakers and the public about ever-evolving free speech and censorship issues, and aims to fulfill the vision of an informed American public engaged in free speech causes. American Booksellers Association (“ABA”)

is a trade association

dedicated to meeting the needs of its core members—independently-owned bookstores with storefront locations nationwide—through education, information dissemination, business products and services, and advocacy. ABA exists to protect and promote the interests of independent book retail businesses, as well as to protect the First Amendment rights of every American. Association of Alternative Newsmedia (“AAN”) is a not-for-profit trade association for approximately 110 alternative newspapers in North America including the Austin Chronicle, the Dallas Observer, the Fort Worth Weekly, the Houston Press and the San Antonio Current. AAN newspapers and their websites

provide an editorial alternative to the mainstream press. AAN members have a total weekly circulation of seven million and a reach of over 25 million readers. Association of American Publishers, Inc., (“AAP”), a not-for-profit organization, represents the leading book, journal, and education publishers in the United States on matters of law and policy, advocating for outcomes that incentivize the publication of creative expression, professional content, and learning solutions. AAP’s members range from major commercial book and journal publishers to small, non-profit, university, and scholarly presses, as well as leading publishers of educational materials and digital learning platforms. AAP’s members publish a substantial portion of the general, educational, and religious books produced in the United States, some of which include images of nudity or sexual conduct. Its members are active in all facets of print and electronic media, including publishing a wide range of electronic products and services. Additionally, members of AAP maintain websites featuring and offering for sale their publications, some of which include images of persons engaged in specific sexual activities or in a state of nudity, as defined by the Act. AAP represents an industry whose very existence depends on the free exercise of rights guaranteed by the First Amendment. Freedom to Read Foundation is a not-for-profit organization established in 1969 by the American Library Association to promote and defend First

Amendment rights, to foster libraries as institutions that fulfill the promise of the First Amendment for every citizen, to support the right of libraries to include in their collections and make available to the public any work they may legally acquire, and to establish legal precedent for the freedom to read of all citizens. National Press Photographers Association (“NPPA”) is a 501(c)(6) nonprofit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA’s approximately 7,000 members include television and still photographers, editors, students and representatives of businesses that serve the visual journalism industry. Since its founding in 1946, the NPPA has vigorously promoted the constitutional rights of journalists as well as freedom of the press in all its forms, especially as it relates to visual journalism. INTRODUCTION Texas Penal Code § 21.16(b) is a criminal statute of “alarming breadth.” United States v. Stevens, 559 U.S. 460, 474 (2010) (holding 18 U.S.C. § 48 unconstitutional). In an effort to criminalize the publication of “revenge porn”— the malicious posting by an ex-partner of a nude or sexual image, taken during an intimate relationship and posted after the break-up to harass, intimidate, or harm the former partner—the Texas Legislature enacted what it named the

“Relationship Privacy Act.”2 The Act is an overbroad statute that makes it a state jail felony to publish non-obscene images fully protected by the First Amendment.3 Under Section 21.16(b), a defendant can be convicted even if there was no ill intent, and even though the image is non-obscene. In other words, this “revenge porn” statute criminalizes conduct that is neither “revenge” nor “porn.” Under Section 21.16(b), a defendant can be convicted even though there was no past or present relationship between the defendant and the depicted person, and even though the defendant did not know the circumstances in which the image was made and thus did not know whether the depicted person consented to the disclosure or whether the depicted person had a reasonable expectation of privacy. In other words, this “Relationship Privacy Act” is neither limited to conduct based on a relationship between the defendant and a depicted person, nor limited to images that the defendant knew to be private. The Act contains no exception for publications made in the public interest, or on matters of public concern, including artistic, historical, and newsworthy images. With an impact far beyond its

“This Act shall be known as the Relationship Privacy Act.” Acts 2015, 84th R.S., ch. 852 (S.B. 1135), §1, effective September 1, 2015. 3

The Relationship Privacy Act has separate civil and criminal provisions. The civil provisions are codified at Section 98B of the Texas Civil Practice and Remedies Code. The criminal provisions are codified at Section 21.16 of the Texas Penal Code. Only Section 21.16(b), which is part of the criminal provisions, is at issue in this case. References to the “Act” are to Section 21.16, which is reproduced in the Appendix to this brief.

intended purpose, Section 21.16(b) poses a broad threat to free speech—both online and through traditional means—by photographers, publishers, booksellers, newspapers, magazines, and members of the general public. In an attempt to sustain Section 21.16(b), the State asks this Court to ignore controlling precedents of both this Court and the United States Supreme Court that make clear that content-based restrictions on speech are “presumptively unconstitutional,” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015); Stevens, 559 U.S. at 468, and must be subject to “strict scrutiny.” Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011); Ex parte Thompson, 442 S.W.3d 325, 345-48 (Tex. Crim. App. 2014). Under strict scrutiny, a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest. In this context, a regulation is “narrowly drawn” if it uses the least restrictive means of achieving the government interest. Thompson, 442 S.W.3d at 344 (first citing Entm’t Merchs. Ass’n, 564 U.S. at 798; then citing United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000)). The State casts aside these settled principles of First Amendment law and argues that content-based restrictions on free speech should be subject to a “lower level of scrutiny,” with “[s]trict scrutiny … reserved for when the government uses a statute to suppress one side of a debate on a matter of public concern.”4 The

State’s Brief on the Merits [hereinafter “State Br.”] 1.

principle that content-based restrictions on speech must be subject to strict scrutiny has never been so limited by the United States Supreme Court or by this Court. This Court should decline the State’s request that this Court overrule its own precedents, ignore controlling precedents of the U.S. Supreme Court, and adopt a watered-down test for evaluating content-based restrictions on free speech—a test that would pose a grave threat to free speech that goes far beyond the threat posed by this unconstitutional statute. Section 21.16(b) cannot survive strict scrutiny, properly applied, because, among other reasons, neither ill intent nor knowledge are elements of the offense, and the statute thus is not “narrowly drawn to serve a compelling government interest,” Thompson, 442 S.W.3d at 344, that cannot be served through a “less restrictive alternative.” Playboy, 529 U.S. at 813 (citing Reno v. ACLU, 521 U.S. 844, 874 (1997)). THE RELATIONSHIP PRIVACY ACT The statute at issue, Texas Penal Code § 21.16(b), is part of the Relationship Privacy Act, which was enacted as Acts 2015, 84th R.S., ch. 852 (S.B. 1135), § 3, effective September 1, 2015. The statute was amended by Acts 2017, 85th

R.S., ch. 858 (H.B. 2552), § 16(b), effective September 1, 2017, to change the offense from a Class A misdemeanor to a state jail felony.5 Section 21.16 appears as an Appendix hereto. ARGUMENT — THE RELATIONSHIP PRIVACY ACT IS UNCONSTITUTIONAL I.

The Act is a Content-Based Regulation of Speech That is Not Narrowly Tailored to the State’s Interest in Protecting Relationship Privacy by Combatting “Revenge Porn” The Relationship Privacy Act is unconstitutional as a content-based

regulation of protected non-obscene speech that is not narrowly tailored to its central purpose—redressing malicious, harmful invasions of privacy. Ashcroft v. ACLU, 542 U.S. 656, 660-66 (2004); Playboy, 529 U.S. at 813-16 (2000). A.

The Act Criminalizes Speech That Is Protected by the First Amendment

Under Section 21.16(b), it is a state jail felony for a person to intentionally disclose a nude image (or an image showing sexual activity), without the

Citing the Legislature’s Bill Analysis, the State argues that the amendment from a misdemeanor to a felony was made because, “[t]he need to use criminal sanction to prevent . . . harm was so acute.” State Br. 9. The Bill Analysis does not so state; it merely describes the amendment. The information against Jordan Bartlett Jones, Respondent-Appellant, was based on conduct that allegedly took place on February 5, 2017, when violation of the Act was a misdemeanor. Information, State v. Jordan Jones (67295-A); State Br. 9 n. 19.

“effective consent” of the depicted person, if the image was created under circumstances in which the depicted person had a reasonable expectation of privacy (or obtained by the defendant under such circumstances), if the disclosure causes harm (not defined in the Act), and if the depicted person is identifiable. Thus:  Ill intent is not an element of the offense. The only “intent” required by the Act is an intention to make the disclosure; thus, a defendant cannot be convicted if a disclosure was accidental.

However, a

defendant can be convicted even if he or she did not intend to harm the depicted person, did not act with malice, and had no ill intent.  Knowledge of lack of consent, and knowledge that the depicted person had a reasonable expectation of privacy, are not elements of the offense. A defendant can be convicted even if he or she did not know that the depicted person did not “effectively” consent to the disclosure, or did not know the circumstances under which the image was created (and thus did not know that the image had been created under circumstances in which the depicted person had a reasonable expectation of privacy). Thus, a person considering making a disclosure of an image restricted by the Act risks criminal liability unless he or she is in a position to assess, accurately and definitively, whether the 9

depicted person gave consent, whether such consent was legally effective, and the circumstances in which the image was created.  A good faith belief that the depicted person gave effective consent does not negate criminal liability. A defendant can be convicted even if he or she had a good faith belief that the depicted person had effectively consented to the disclosure, and even if he or she believed (albeit mistakenly) that the image was not created under circumstances in which the depicted person had a reasonable expectation of privacy.  It is irrelevant whether the disclosure or publication was of artistic, historical, or newsworthy value, or was otherwise in the public interest. The Act provides that it is an affirmative defense if the disclosure was made in connection with lawful and common practices of law enforcement and medical treatment, reporting unlawful activity, or as part of a legal proceeding—but there is no affirmative defense for other disclosures made in the public interest.  Obscenity is not an element of the offense. The Act criminalizes the disclosure of all images that meet the Act’s expansive description of nudity and sexual conduct, whether or not the images are obscene.6 6

Texas has separate statutes that criminalize the disclosure of obscene images. TEX. PENAL CODE ANN.§§43.22, 43.23 (2018). Those statutes are not at issue in this case.

 “Harm” to the depicted person is an element of the offense, but the Act does not define “harm.” The absence of a definition of “harm” not only renders the Act vague, but also raises the prospect that a defendant could be convicted of a felony if the disclosure caused merely annoyance or embarrassment, and did not cause any physical harm, financial harm, or emotional distress. This is, indeed, a statute of “alarming breadth.” Stevens, 559 U.S. at 474. The curator of an art gallery that held an exhibition of nude photographs could be convicted of a felony if she mistakenly believed, in good faith, that persons depicted in the photographs had consented to the disclosure, and also believed that the photographs were not created under circumstances where there was a reasonable expectation of privacy. The editor, or writer, of a newspaper or magazine (in print or online) that published a review of the art exhibition, and included a photograph of one of the images, could similarly be subject to felony conviction.7 A news photographer who took a photograph of a partially-clothed person in a conflict zone, or fleeing a natural disaster, and could not possibly

If effective consent to the disclosure means effective consent to the specific disclosure, the editor, or writer, of a newspaper or magazine (in print or online) that published a review of such an art exhibition, and included a photograph of one of the images, could be subject to felony conviction if the depicted person had consented to the exhibition, but did not consent to the inclusion of a photograph in a review of the exhibition.

obtain the consent of the person depicted, could be subject to a felony prosecution unless he or she self-censored, and did not publish the photograph. Publishers could not publish, nor booksellers sell, books containing photographs of nude persons, because they would have no certain way of ascertaining the circumstances under which the photographs were taken or whether the persons depicted had given effective consent. A person browsing the web who found a non-obscene image of a nude person but knew nothing about the image (such as who was depicted, when the image was taken, or under what circumstances the image was taken), and who forwarded the image to a friend, could find herself (or himself) convicted of a felony if it turned out that the image was restricted under the Act. Given the broad sweep of the Act, it is dead wrong for the State to argue that “from a constitutional perspective, [revenge porn] is the least objectionable material covered by the statute.” State Br. 10. Photographic images are inherently expressive, and protected by the First Amendment, just as the spoken word and written word are protected. The inherently expressive nature of pictures is reflected by the fact that phrases like “a picture is worth a thousand words” and “every picture tells a story” are considered clichés. We conclude that photographs and visual recordings are inherently expressive, so there is no need to conduct a case-specific inquiry into whether these forms of expression convey a particularized message.

Thompson, 442 S.W.3d at 336. It cannot be disputed that the speech at issue— non-obscene images of nudity and sexual activity—is fully protected by the First Amendment. Playboy, 529 U.S. at 811; Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-14 (1975); Jenkins v. Georgia, 418 U.S. 153, 161 (1974) (“[N]udity alone is not enough to make material legally obscene.”); Ex parte Lo, 424 S.W.3d 10, 20 (Tex. Crim. App. 2013) (“Sexual expression which is indecent but not obscene is protected by the First Amendment.”) (quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)). Nor can it be disputed that the Act seeks to regulate this non-obscene speech solely based on its content—images of nudity or specified sexual activity, under the expansive definitions in the Act. Stevens, 559 U.S. at 468 (statute restricting images and audio “depending on whether they depict [specified] conduct” is content-based) (citing Playboy, 529 U.S. at 817); Playboy, 529 U.S. at 811 (“The speech in question is defined by its content; and the statute which seeks to restrict it is content based.”). “Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people.” Ashcroft, 542 U.S. at 660. Such prohibitions and regulations “cannot be tolerated under the First Amendment.” Regan v. Time, Inc., 468 U.S. 641, 648-49 (1984) (citations omitted). As a content-based prohibition of protected, nonobscene speech, the Act is “‘presumptively invalid,’ and the Government bears

the burden to rebut that presumption.” Stevens, 559 U.S. at 468 (quoting Playboy, 529 U.S. at 817). The Act “can stand only if it satisfies strict scrutiny.” Playboy, 529 U.S. at 813 (citing Sable Communications., 492 U.S. at 126). Under strict scrutiny, the prohibition or regulation “must be narrowly tailored to promote a compelling Government interest” which cannot be served through a “less restrictive alternative.” Playboy, 529 U.S. at 813 (first citing Sable Communications, 492 U.S. at 126; then citing Reno, 521 U.S. at 874). “To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit.” Id. Here, the State cannot rebut the presumption of unconstitutionality because the Act makes no attempt to safeguard constitutionally-protected speech and is not tailored to redressing malicious, harmful invasions of privacy. The Act reaches far more than the bad actor. As the State acknowledges, the Act “applies when the discloser has no reason or intent to harm the depicted person.” State Br. 9. Cf. Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 620 (2003) (complainant in a fraud action must show that the defendant made a knowingly false representation of material fact “with the intent to mislead the listener, and [that he] succeeded in doing so.”). While the Act includes “causes harm” as an element of the offense, the Act does not define “harm,” and is thus unconstitutionally vague. Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (“[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply.”). Absent a definition of harm, a defendant could be convicted of a felony if the disclosure caused merely annoyance or embarrassment, and did not cause any physical harm, financial harm, or serious emotional distress. “[T]he First Amendment protects annoying and embarrassing speech.” People of the State of New York v. Marquan M., 19 N.E.3d 480, 486-88 (2014) (cyber-bullying statute held unconstitutional because, among other reasons, the statute criminalized not only conduct intended to “inflict significant emotional harm,” but also conduct intended merely to “annoy”).8 Nor does the Act limit liability to defendants who knew that the depicted person did not consent to the disclosure or publication; instead, a defendant who had no knowledge as to whether or not there was consent, a defendant who had a good faith belief that there was effective consent, and a defendant who knew that

See also State of North Carolina v. Bishop, 787 S.E.2d 814, 820-21 (N.C. 2016) (“The protection of minors’ mental well-being may be a compelling governmental interest, but it is hardly clear that teenagers require protection via the criminal law from online annoyance.”).

there was consent but was not in a position to evaluate whether or not the consent was effective, may all be guilty of a felony if it turns out that there was no effective consent. Nor does the Act make any distinction based on whether the person making the publication knew whether or not the depicted person had a reasonable expectation of privacy. The Act defines nudity so expansively that it includes a baby’s bare buttocks, and defines sexual activities so expansively that it includes horseplay if a woman is wearing a low-cut blouse that reveals “cleavage,” or if a man is bare-chested, but the depicted persons are otherwise fully-clothed. The Act has no exception for images related to matters of public concern, including images of historical, artistic, and newsworthy content. Erznoznik, 422 U.S. at 213 (ordinance prohibiting outdoor drive-in movie theaters from showing certain films was unconstitutional because it “sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of a baby’s buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach.”). Furthermore, the sharing and display of non-obscene adult photographs on the Internet is a popular activity, to put it mildly. The Relationship Privacy Act equally criminalizes a malicious, initial invader of privacy (such as a person who

publishes a nude image to harass a former intimate partner) as well as subsequent Internet users who share nude images with no ill intent, no knowledge as to whether the persons depicted had a reasonable expectation of privacy, and no present or prior relationship with the persons depicted. B.

“Strict Scrutiny” Applies To Content-Based Restrictions on Free Speech—and Is Not Limited to Matters of Public Concern

Unable to show that the Act meets strict scrutiny, the State asks this Court to limit the application of the “strict scrutiny” test, arguing that “[t]he level of scrutiny depends on the value of the speech” (State Br. 10), and particularly that, for strict scrutiny to apply, the restricted speech must be related to a matter of public concern (e.g. State Br. 17, 19, 44-45). Simply put, that is neither what the law is nor what the precedents of the U.S. Supreme Court and this Court hold. Except for “historic and traditional categories,” such as obscenity and defamation, in which the First Amendment has long permitted restrictions,9 and except for special provisions applied to the analysis of commercial speech,10

“From 1791 to the present, however, the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never include[d] a freedom to disregard these traditional limitations. These historic and traditional categories long familiar to the bar— including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct— are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Stevens, 559 U.S. at 46869 (citations and internal quotation marks omitted). 10

“[O]ur decisions have recognized the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government

determining whether a restriction on speech is permissible under the First Amendment does not entail placing a value on the speech. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803). Stevens, 559 U.S. at 470. In Stevens, rejecting the government’s argument that depictions of illegal acts of animal cruelty should be subject to a categorical ban by adding it to the “historic” categories of unprotected speech such as defamation and fraud, the Court stated, The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12. As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.

regulation, and other varieties of speech. . . . The Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. . . . The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562-63 (1980) (citations and internal quotation marks omitted).

559 U.S. at 470. The Court went on to apply strict scrutiny and invalidate the statute, without any reference to whether or not the statute relates to a matter of public concern.11 Neither the U.S. Supreme Court nor this Court has ever limited the application of strict scrutiny to matters of public concern. Thus, for example, in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), referred to extensively by the State (State Br. 14-19), the U.S. Supreme Court reviewed a town ordinance regulating the size and placement of signs based on the nature of the event, and held that “a speech regulation targeted at a specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.” 135 S. Ct. at 2230 (citing Consolidated Edison Co. of N.Y. v. Publ. Serv. Comm'n of N. Y., 447 U.S. 530, 537 (1980)). The Court went on to apply strict scrutiny and hold the sign ordinance in question unconstitutional without any reference to whether or not it relates to a matter of public concern. See also United States v. Alvarez, 567 U.S. 709, 724 (2012) (federal “Stolen Valor Act” which criminalized

When the government endeavors to “suppress one side of a debate on a matter of public concern,” State Br. 1, the government engages in “viewpoint discrimination,” which is “an egregious form of content discrimination.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829-31 (1995). Viewpoint discrimination is subject to even more exacting scrutiny than other forms of content-based discrimination, because the government may not “favor one speaker over another,” “discriminat[e] against speech because of its message,” or target “particular views taken by speakers on a subject.” 515 U.S. at 828–29.

false claims about the receipt of military medals held subject to “exacting scrutiny” and held unconstitutional); Entm’t Merchs. Ass’n, 564 U.S. at 799, 804 (California statute regulating violent video games held subject to strict scrutiny, and held unconstitutional); Playboy, 529 U.S. at 812-13 (federal statute regulating cable operators that provide channels “primarily dedicated to sexually-oriented programming” held subject to strict scrutiny and held unconstitutional); Thompson, 442 S.W.3d at 343-44 (Texas statute that criminalized photographing persons, not in bathroom or private dressing room, if done without consent and done with intent to arouse or gratify sexual desire of any person, held subject to strict scrutiny and held unconstitutional); Lo, 424 S.W.3d at 19 (Texas statute that created third degree felony offense of communicating in a sexually explicit manner with a person believed to be a minor with an intent to arouse or gratify sexual desire, held subject to strict scrutiny and held unconstitutional when not narrowly drawn to achieve the State's compelling interest in protecting children from sexual predators). As part of its argument that “strict scrutiny” of content-based regulations should be limited to matters of public concern, the State engages in an extended discussion of the secondary effects doctrine to argue that “a statute is not subject to strict scrutiny merely because it regulates based on content.” State Br. 23-32. The State’s argument distorts the secondary effects doctrine. In City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986), in which the U.S. Supreme Court articulated the secondary effects doctrine, the Court held that a zoning ordinance that restricted the location of “adult” motion picture theaters was not subject to “strict scrutiny” because: [T]he Renton ordinance is aimed not at the content of the films shown at “adult motion picture theatres,” but rather at the secondary effects of such theaters on the surrounding community. . . . The ordinance by its terms is designed to prevent crime, protect the city's retail trade, maintain property values, and generally “protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,” not to suppress the expression of unpopular views. 475 U.S. at 47-48 (emphasis in original) (alteration in original). Thus, Renton did not create an exception to the rule that strict scrutiny applies to content-based regulations of speech; Renton, instead, held that strict scrutiny did not apply because the zoning ordinance was not content-based. Here, there can be no dispute that the Act is a content-based regulation. The State’s argument that the Act can be justified as a regulation of “secondary effect of harm” (State Br. 49) also fails, for at least two reasons. First, any argument that the reaction of the depicted person to the disclosure could be deemed a “secondary effect” is negated by the U.S. Supreme Court’s decision in Boos v. Barry: Listeners’ reactions to speech are not the type of “secondary effects” we referred to in Renton. To take an example factually close to

Renton, if the ordinance there was justified by the city’s desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would have been appropriate. 485 U.S. 312, 321 (1988) (plurality opinion). See also Boos, 485 at 334 (Brennan, J. & Marshall, J., concurring in part) (“Whatever ‘secondary effects’ means, I agree that it cannot include listeners’ reactions to speech.”). Second, critical to the Court’s decision in Renton was that the zoning ordinance “does not ban adult theaters altogether,” but merely restricted permissible locations for such theaters, and permitted it as a “time, place, and manner regulation.” 475 U.S. at 46. Here, the Act bans—and does not merely regulate—disclosure absent effective consent. A criminal statute that states, in effect, ‘at no time, in no place, in no matter,’ cannot be sustained as a “time, place, and manner” regulation. Hill v. Colorado, 530 U.S. 703, 726 (2000) (“time, place, and manner” regulation sustained where it “leaves open ample alternative channels for communication.”). C.

The Act Cannot Survive Strict Scrutiny

The Relationship Privacy Act is thus subject to strict scrutiny, and cannot survive strict scrutiny, or even the lower level of scrutiny argued by the State:  The Act imposes criminal liability absent an intent to harm.  The Act imposes criminal liability even if the person who published the image did not know that the depicted person did not give “effective”

consent, did not know the circumstances under which the image was made, and did not know whether the depicted person had an expectation of privacy.  The Act contains no exceptions for images that have artistic, historical, or newsworthy value, or are otherwise in the public interest.  The Act fails to define “harm.” Absent a definition, a prosecution could be brought if the depicted person was merely annoyed or embarrassed by the disclosure. The Legislature’s central intent in enacting the “Relationship Privacy Act”12 was to protect “relationship privacy” by combatting “revenge porn.”13 The harms of revenge porn are undoubtedly real, and a strong argument can be made that the government has a compelling interest in protecting individuals from disclosures of intimate images, made with malicious intent, where the person

Acts 2015, 84th R.S., ch. 852 (S.B. 1135), §1, effective September 1, 2015.

The Texas Committee Report for S.B.1135 stated, “In recent years, there has been a disturbing Internet trend of sexually explicit images disclosed without the consent of the depicted person, resulting in immediate and in many cases, irreversible harm to the victim. Victims’ images are often posted with identifying information such as name, contact information, and links to their social media profiles. The victims are frequently threatened with sexual assault, harassed, stalked, fired from jobs, and forced to change schools. Some victims have even committed suicide. In many instances, the images are disclosed by a former spouse or partner who is seeking revenge. This practice has been commonly referred to as ‘revenge pornography’ by the media. To add insult to injury, ‘revenge porn websites’ are further preying on victims by charging fees to remove the sexually explicit images from the internet.” TEX. COMM. REP., 84th R.S., ch. 852 (S.B. 1135) (May 27, 2015).

making the disclosure knew that the depicted person did not consent to the disclosure, and knew that the depicted person had a reasonable expectation of privacy. But Section 21.16(b), as enacted, is neither a “relationship privacy” law nor a “revenge porn” law. And while the Texas Committee Report grounds the Act on grave harm suffered by the depicted victim—“[t]he victims are frequently threatened with sexual assault, harassed, stalked, fired from jobs, and forced to change schools”14—the Act fails to limit liability to cases in which the victim sustained physical, financial, or serious emotional harm. The Information in this case merely charges that “the disclosure of the visual material caused harm to the complainant, namely, embarrassment.”15 When legislatures criminalize speech, loaded phrases such as “revenge porn” cannot justify a law whose text does not narrowly address the intentionally harmful conduct claimed as motivation for the restriction. Stevens, 559 U.S. at 474 (“We read § 48 to create a criminal prohibition of alarming breadth. To begin with, the text of the statute’s ban on a ‘depiction of animal cruelty’ nowhere requires that the depicted conduct be cruel.”). In short, criminalizing speech is an area of legislation that demands precision. Reno, 521 U.S. at 874.

Id.

Information, State v. Jordan Jones (67295-A).

In analyzing whether Section 21.16(b) has been narrowly drawn with precision, the State tells this Court: The State’s argument will focus on “classic” revenge porn because, from a constitutional perspective, it is the least objectionable material covered by the statute. . . . If typical “revenge porn” can be lawfully regulated, everything covered by the statute can. State Br. 10. The State has it backwards. First, it cannot seriously be maintained that “revenge porn” is less objectionable than a broad range of publications that Section 21.16(b) makes a felony. Does the State argue that “revenge porn” is less objectionable than a newspaper publishing an image from an art gallery exhibition, when both the curator and the editor believed that the persons depicted consented to the exhibition and the publication? Second, the question is not whether “revenge porn” can be regulated; the question is whether “revenge porn” can be regulated in this manner by this Act, which does not narrowly focus on revenge porn, but instead sweeps within its prohibitions a broad range of constitutionally-protected speech.16 Nor can the Act be defended based on a supposition that the State would not bring prosecutions for conduct that did not bear the hallmarks of revenge porn,

Even if the Act were not content-based, and thus were subject to a lower level of scrutiny, the Act could not sustain such scrutiny because the sweep of the Act is “substantially broader than necessary to achieve the government’s interest.” Thompson, 442 S.W.3d at 345 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989)).

or a hope that the State would not bring prosecutions for newsworthy, artistic, and historic images. “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Stevens, 559 U.S. at 480. II.

The Legislature Can Protect Relationship Privacy Without Directly Burdening Protected Speech A.

By Failing To Make Knowledge and Ill Intent Elements of the Offense, the Legislature Did Not Use the Least Restrictive Means to Serve the Act’s Purpose

If the Legislature’s intent was to protect “relationship privacy” and combat “revenge porn,” it utterly failed to do so in a manner calculated to minimize the harms to lawful speech protected by the First Amendment. Because less restrictive, alternative means are available to address revenge porn, the Act cannot survive strict scrutiny. Playboy, 529 U.S. at 813 (“If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.”) (citing Reno, 521 U.S. at 874); Ashcroft, 542 U.S. at 665 (affirming preliminary injunction against Child Online Protection Act because, among other reasons, the government had not carried the burden of showing that the proposed alternatives would be less effective). The Act also fails strict scrutiny because the State cannot show—as it must—that the Act “will in fact alleviate these harms in a direct and

material way.” Turner Broad. Sys., Inc. v. FCC., 512 U.S. 622, 664 (1994) (plurality opinion). The Legislature made no attempt to tailor the criminal statute to combatting revenge porn to protect relationship privacy by, e.g., including, as elements of the offense, malicious intent and knowledge that the depicted person had a reasonable expectation of privacy. Including these as elements of the offense would not only line the crime up closer to its stated legislative purpose, but in so doing would dramatically reduce the risk that the Act would chill protected speech. The State of Vermont’s “revenge porn” statute recently withstood a facial challenge of unconstitutionality because it was narrowly drawn to serve the legislative purpose. State of Vermont v. VanBuren, No. 2016-253, 2018 WL 4177776 (Vt. Aug. 31, 2018). There were at least four critical differences between Vermont’s statute and the Texas Relationship Privacy Act. First, the Vermont statute only criminalizes disclosures that were made with an intent to harm.17 Second, the Vermont statute only criminalizes disclosures that would cause a reasonable person to suffer harm. The Vermont statute thus provides: A person violates this section if he or she knowingly discloses a visual image of an identifiable person who is nude or who is engaged 17

The Vermont Supreme Court stated that the statute requires “specific intent to harm, harass, intimidate, threaten, or coerce the person depicted or to profit financially,” noting that therefore it was “express[ing] no opinion as to whether this narrowing element is essential to the constitutionality of the statute.” 2018 WL 4177776, at *16 & n.10.

in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm. VT. STAT. ANN. tit. 13, §2606(b)(1) (2018) (emphasis added). Third, while both the Texas statute and the Vermont statute provide that there is no liability unless the person depicted sustained “harm,” the Texas statute does not define “harm,” while the Vermont statute defines harm as “physical injury, financial injury, or serious emotional distress.” VT. STAT. ANN. tit. 13, §2606(a)(2) (2018). Fourth, the Vermont statute, by its terms, does not apply to “[d]isclosures made in the public interest” or to “[d]isclosures of materials that constitute a matter of public concern,” VT. STAT. ANN. tit. 13, § 2606(d)(2)-(3) (2018). B.

The Texas Senate and Texas House Are Considering Bills That Would Add Knowledge and Ill Intent as Elements of the Offense

The Texas Legislature is now considering amendments to Section 21.16(b) to address these issues. On November 12, 2018, bills were introduced in the Texas Senate and the Texas House to amend Section 21.16(b) to add knowledge and ill intent as elements of the offense.  Intent to harm. Senate Bill 97 would amend Section 21.16(b)(1) to read: “(b) A person commits an offense if: (1) without the effective consent of the depicted person and with the intent to harm that person, the person discloses visual material depicting another person with the

person's intimate parts exposed or engaged in sexual conduct; . . . .” S.B. 97, 86th Leg. (Tex. 2018) (emphasis added). House Bill 98 would amend Section 21.16(b)(1) to read: “(b) A person commits an offense if: (1) without the effective consent of the depicted person and with the intent to harass, annoy, alarm, abuse, torment, or embarrass that person, the person discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct; . . . .” H.B. 98, 86th Leg. (Tex. 2018) (emphasis added).18  Knowledge that the depicted person had a reasonable expectation of privacy. Senate Bill 97 and House Bill 98 would each amend Section 21.16(b)(2) to read: “(b) A person commits an offense if: … (2) the person knows or has reason to believe that the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material

Both Senate Bill 97 and House Bill 98 would retain, among other elements of the offense, that “the disclosure of the visual material causes harm to the depicted person.” In considering Senate Bill. 97 and House Bill 98, the Legislature can and should consider including a definition of “harm,” as used in the proposed element “intent to harm” and in the existing element “causes harm.” In defining “harm,” the Legislature can and should consider whether, applying strict scrutiny, “intent to annoy” or “intent to embarrass” is sufficient to constitute “intent to harm,” and whether “annoyance” or “embarrassment” is sufficient to constitute “harm.”

would remain private; . . . .” Tex. S.B. 97 , Tex. H.B. 98 (emphasis added).19 The bills offer the opportunity for the Texas Legislature to do what is required for this content-based restriction on free speech to survive strict scrutiny—to make sure that the statute is “narrowly drawn to serve a compelling government interest,” by using the “least restrictive means of achieving the government interest.” Thompson, 442 S.W.3d at 344. CONCLUSION Amici respectfully request that that this Court affirm the judgment of the Twelfth Court of Appeals holding Texas Penal Code § 21.16(b) unconstitutional on its face, because it violates the First Amendment to the United States Constitution. Dated: December 7, 2018

In considering this language, the Legislature can and should consider whether “has reason to believe that” is too low a standard, and whether this element of the offense should be that “the person knows that the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private. . . .” (emphasis added). The Legislature can and should also consider adding knowledge of the lack of effective consent as an element of the offense.

Michael A. Bamberger Richard M. Zuckerman DENTONS US LLP 1221 Avenue of the Americas New York, NY 10020 (212) 768-6700 michael.bamberger@dentons.com richard.zuckerman@dentons.com

/s/ Glenn A. Ballard, Jr Glenn A. Ballard, Jr., Counsel of Record Texas Bar No. 01650200 Mukul S. Kelkar Texas Bar No, 24063682 DENTONS US LLP 1221 McKinney Street, Suite 1900 Houston, TX 77010 (713) 658-4633 glenn.ballard@dentons.com mukul.kelkar@dentons.com

Attorneys for Amici Curiae

APPENDIX — TEXAS PENAL CODE § 21.16 (a) In this section: (1) “Intimate parts” means the naked genitals, pubic area, anus, buttocks, or female nipple of a person. (2) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above. (3) “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse. (4) “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks. (5) “Visual material” means: (A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or (B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method. (b) A person commits an offense if: (1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct; (2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private; (3) the disclosure of the visual material causes harm to the depicted person; and (4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:

(A) any accompanying or subsequent information or material related to the visual material; or (B) information or material provided by a third party in response to the disclosure of the visual material. (c) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct and the actor makes the threat to obtain a benefit: (1) in return for not making the disclosure; or (2) in connection with the threatened disclosure. (d) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for publication that is owned or operated by the person. (e) It is not a defense to prosecution under this section that the depicted person: (1) created or consented to the creation of the visual material; or (2) voluntarily transmitted the visual material to the actor. (f) It is an affirmative defense to prosecution under Subsection (b) or (d) that: (1) the disclosure or promotion is made in the course of: (A) lawful and common practices of law enforcement or medical treatment; (B) reporting unlawful activity; or (C) a legal proceeding, if the disclosure or promotion is permitted or required by law; (2) the disclosure or promotion consists of visual material depicting in a public or commercial setting only a person's voluntary exposure of: (A) the person's intimate parts; or (B) the person engaging in sexual conduct; or

(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person. (g) An offense under this section is a state jail felony . (h) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.

CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4, TEX. R. APP. PROC., I hereby certify that: 1.

This brief complies with the word-volume limitations of Rule

9.4(i)(2), TEX. R. APP. PROC., because this brief contains 7,286 words, excluding the parts of this brief exempted by Rule 9.4(i)(1), TEX. R. APP. PROC. 2. This brief complies with the typeface requirements of Rule 9.4(e), TEX. R. APP. PROC., because this brief has been prepared in a conventional typeface using Microsoft Word in Times New Roman 14-point font (with footnotes in Times New Roman 12-point font). Dated: December 7. 2018

/s/ Glenn A. Ballard, Jr Glenn A. Ballard, Jr., Counsel of Record Texas Bar No. 01650200 DENTONS US LLP 1221 McKinney Street, Suite 1900 Houston, TX 77010 (713) 658-4633 glenn.ballard@dentons.com Attorneys for Amici

CERTIFICATE OF SERVICE Pursuant to Rule 11, TEX. R. APP. PROC., I hereby certify that on December 6, 2018, a true and correct copy of the foregoing Brief of Amici Curiae Media Coalition Foundation, Inc. et al., has been served by email and by First Class United States Mail, postage prepaid, to counsel for all parties: Mark W. Bennett Bennett & Bennett 917 Franklin Street, Fourth Floor Houston, Texas 77002 MB@ivi3.com Michael J. West Smith County Assistant District Attorney 4th Floor, Courthouse 100 North Broadway Tyler, Texas 75702 mwest@smith-county.com Stacey M. Soule State Prosecuting Attorney John R. Messinger Assistant State Prosecuting Attorney P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov Courtesy copy provided to: Scott A. Keller Texas Solicitor General Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711 scott.keller@oag.texas.gov

Dated: December 7, 2018 /s/ Glenn A. Ballard, Jr. Glenn A. Ballard, Jr., Counsel of Record Texas Bar No. 01650200 DENTONS US LLP 1221 McKinney Street, Suite 1900 Houston, TX 77010 (713) 658-4633 glenn.ballard@dentons.com Attorneys for Amici

109654538\V-24

PD-0552-18 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 2/27/2019 1:19 PM Accepted 2/27/2019 1:30 PM DEANA WILLIAMSON CLERK

No. ________________________________

RECEIVED In the Court of Criminal Appeals of the State COURT of Texas OF CRIMINAL APPEALS 2/27/2019 DEANA WILLIAMSON, CLERK

EX PARTE JORDAN BARTLETT JONES, APPELLANT

On Appeal from the Twelfth Court of Appeals Cause No. 12-17-00346-CR

Brief of Amicus Curiae by Benjamin Barber In Support of the Jones

BENJAMIN BARBER 10043 SE 32ND Ave Milwaukie, Oregon 97222 (971) 270-0855 starworks5@gmail.com

PAGE 1

TABLE OF AUTHORITIES CITED Amer. Libraries Assoc. v. Pataki, 969 F.Supp. 160, 173 (S.D.N.Y.1997)------------------Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)----------------------------------------Backpage.com, LLC v. McKenna 881 F. Supp. 2d 1262 (W.D. Wash. 2012) -------------Baltimore Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663, 67677 (7th Cir. 1986)-------------------------------------------------------------------------------------------Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009)-------------------------------------------Barrett v. Rosenthal 40 Cal. 4th 33, 146 P.3d 510, 51 Cal. Rptr. 3d 55 (2006)----------Batzel v. Smith, 333 F.3d 1018, 1033 (9th Cir. 2003) ------------------------------------------Bond v. Blum,. 317 F.3d 385 (4th Cir. 2003)-------------------------------------------------------Boos v. Barry, 485 U.S. 312 (1988)--------------------------------------------------------------------Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992)------------Broadrick v. Oklahoma, 413 U.S. 601 (1973)------------------------------------------------------Brown v. Entertainment Merchants Association 564 U.S. 786 (2015)---------------------City of Ladue v. Gilleo, 512 U. S. 43, 51 (1994)---------------------------------------------------City of Renton v. Playtime Theatres Inc. 475 U.S. 41 (1986)---------------------------------Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir.2008)-----------Cohen v. California 403 U.S. 15 (1971)--------------------------------------------------------------Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008)----------------------------------------------Florida Star v. B. J. F., 491 U. S. 524, 540 (1989)------------------------------------------------Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002)-----------------------------------------------Fox Film Corp. v. Doyal, 286 U. S. 123, 286 U. S. 127 (1932)---------------------------------Garcia v. Google, Inc. 786 F.3d 733 (9th Cir. 2015)----------------------------------------------Jules Jordan Video Inc V. 144942 Canada Inc 617 F.3d 1146 (9th Cir. 2010)-----------Kois v. Wisconsin, 408 U.S. 229, 231, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972)-------------Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006)-----------------Maloney v. T3Media, Inc. ,688 F.3d 1164 (9th Cir. 2017)--------------------------------------Miller v. California, 413 U.S. 15 (1973)--------------------------------------------------------------Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012)-----------------------------Montz v. Pilgrim Films & Television, 649 F.3d 975, 979 (9th Cir. 2011)------------------New York v. Ferber, 458 U.S. 747 (1982)-----------------------------------------------------------Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970)- - R.A.V. v. St. Paul 505 U.S. 377 (1992)---------------------------------------------------------------Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)--------------------------------Sarver v. Chartier, 813 F. 3d 891 (9th Cir 2016)-------------------------------------------------Schnapper v. E Foley 667 F.2d 102, 115 (D.C. Cir 1981)--------------------------------------Smith v. Maryland 442 U.S. 735 (1979)-------------------------------------------------------------Stewart v. Abend, 495 U.S. 207, 229 (1990)--------------------------------------------------------United States v. Miller, 425 US 435 (1976)--------------------------------------------------------United States v. Playboy Entertainment Group, 529 U.S. 803 (2000)---------------------United States v. Stevens, 559 U.S. 460 (2010)----------------------------------------------------Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791, 803 (5th Cir. 2002)---------------Voltage Pictures, LLC v. Doe, Civ. No. 6:14-cv-812-MC 2-3 (D. Or. Jun. 20, 2014)----Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557, 7 S.Ct. 4, 30 L.Ed. 244 (1886)--Winters v. New York, 333 U.S. 507, 528, 68 S.Ct. 665, 92 L.Ed. 840 (1948)-------------Zacchini v. Scripps-Howard Broadcasting Co., 433 US 562 (1977)--------------------------PAGE 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Texas Penal Code Section § 21.16----------------------------------------------------17 U.S.C. § 201(e)-------------------------------------------------------------------------17 U.S.C. § 301(a) ------------------------------------------------------------------------47 U.S.C. § 230(e)(3)---------------------------------------------------------------------Amendment 1 United States Constitution-----------------------------------------Amendment 5 United States Constitution-----------------------------------------Amendment 14 United States Constitution---------------------------------------Article 1 Section 8 U.S. Constitution------------------------------------------------Article 1 Section 10 U.S. Constitution----------------------------------------------Article VI, Clause 2 United States Constitution---------------------------------Introduction and Statement of Amicus Curiae Benjamin Barber submits this brief as amicus curiae in support of Jones, and in opposition of section 21.16 of the Texas Penal Code, entitled “Unlawful Disclosure or Promotion of Intimate Visual Material.” Barber files the brief because he is currently litigating a similar bill in Oregon ORS 163.472 entitled “Unlawful Dissemination of an Intimate Image”, and provides a rebuttal to the theories posited by Amicus Curiae submitted by Cyber Civil Rights Initiative “CCRI. Specifically petitioner intends on contrasting the different theories, including privacy, publicity, copyright, emotional distress, cyberspace law, and the First Amendment.

The central thesis is that the statute is preempted by the first amendment, and that even if the statute could avoid strict scrutiny, the statute is expressly and completely preempted by the Copyright Act 17 USC 201(e), 301(a) and the Communications Decency Act 47 USC 230. However the position of the state or of CCRI, that non defamatory reputational or emotional injury, can be a legal basis to avoid first amendment strictures is flawed, and is colloquially known as a “heckler’s veto”. Moreover the fact that the state PAGE 3

does not punish all “non disclosure” of “private” facts, means that it cannot avoid strict scrutiny and must be struck down.

The state can no more punish “unlawful dissemination of intimate visual material”, than it can punish “unlawful dissemination of intimate biographical material”, or than it can punish the #metoo movement based on its reputational harm, and ironically because of this statute a person can’t rebut such a libelous statement made. Rebuttal of States Arguments. The state claims that “The level of scrutiny depends on the value of the speech”, however this was refuted by the courts decision in U.S. V Stevens 130 S. Ct. 1577, 1591, which held that animal crush videos were an invalid content based restriction of speech. “In Miller we held that "serious" value shields depictions of sex from regulation as obscenity. 413 U.S., at 24-25, 93 S.Ct. 2607. Limiting Miller's exception to "serious" value ensured that "`[a] quotation from Voltaire in the flyleaf of a book [would] not constitutionally redeem an otherwise obscene publication.'" Id., at 25, n. 7, 93 S.Ct. 2607 (quoting Kois v. Wisconsin, 408 U.S. 229, 231, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972) (per curiam)). We did not, however, determine that serious value could be used as a general precondition to protecting other types of speech in the first place. Most of what we say to one another lacks "religious, political, scientific, educational, journalistic, historical, or artistic value" (let alone serious value), but it is still sheltered from government regulation. Even "`[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons.'" Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (quoting Winters v. New York, 333 U.S. 507, 528, 68 S.Ct. 665, 92 L.Ed. 840 (1948) (Frankfurter, J., dissenting); alteration in original).”

Likewise the contention that “Focusing on content for the same reasons the content is less protected is not a viewpoint restriction” is not subject to strict scrutiny, fails because the fact that depictions of sex are not obscenity and therefore are not proscribable and is not “less protected”. Indeed the government is supposed to leave those judgments about what is or is not serious value to the listener, as noted in United States V Playboy Entertainment Group 529 U.S. 803, 813 PAGE 4

“The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.”

The State’s contention that the revenge porn contains no inherent ideas worthy of public discussion is flawed, because as Senator Anthony Wiener scandal suggests that such a disclosure tied inexorably of his scandalous affair would be in fact unlawful. Moreover the disclosure could contain exculpatory evidence, for example when Missori Gov. Eric Greitens was allegedly publically defamed with an sexual assault allegation, and then was accused of invading the accusers privacy and “revenge porn” when he threatened to disclose the intimate images that depicted the events tied to the same allegation.

Since “the disclosure of the visual material causes harm to the depicted person”, yet disclosures of other of visual materials is not unlawful means that it is an unlawful content based restriction of speech, due to the fact that the statute is underinclusinve to stop the “secondary effects” which the states purports to be trying to prevent. Brown v. Entertainment Merchants Association 564 US 786, 802 (“Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. See City of Ladue v. Gilleo, 512 U. S. 43, 51 (1994); Florida Star v. B. J. F., 491 U. S. 524, 540 (1989).”)

PAGE 5

Moreover the non defamatory reputational harm is not a type of compelling government interest which is a “secondary effect” which is thought to be “legitimate”, as the court explained in Boos v. Barry, 485 U.S. 312, 321 “Regulations that focus on the direct impact of speech on its audience present a different situation. Listeners' reactions to speech are not the type of "secondary effects" we referred to in Renton. To take an example factually close to Renton, if the ordinance there was justified by the city's desire to prevent the psychological damage it felt was associated with viewing adult movies, then analysis of the measure as a content-based statute would have been appropriate. The hypothetical regulation targets the direct impact of a particular category of speech, not a secondary feature that happens to be associated with that type of speech.”

Before the ratification of the US constitution, one of the most popular tracts on civil liberties was called “Cato Letters”1, these letters were published by Benjamin Franklin himself in his newspaper The New England Courant, which defended his brother’s freedom of speech and attacked the governor’s strict and unjust policies “Without freedom of thought, there can be no such thing as wisdom; and no such thing as publick liberty, without freedom of speech: Which is the right of every man, as far as by it he does not hurt and control the right of another; and this is the only check which it ought to suffer, the only bounds which it ought to know.”

This is similar to the work by Thomas Paine’s work Rights of Man he contrasts the dichotomy between civil and natural rights, which was a work that was developed after consulting with Thomas Jefferson. This restates the notion that insofar that a person can exercise their freedom of speech without invading the rights of others, and a right to be able to judge requires the ability to receive the information from which they can judge. “The natural rights which he retains are all those in which the Power to execute is as perfect in the individual as the right itself. Among this class, as is before mentioned, are all the intellectual rights, or rights of the mind; consequently religion is one of those rights. The natural rights which are not retained, are all those in which, though the right is perfect in the individual, the power to execute them is defective. They answer not his purpose. A man, by natural right, has a right to 1

Renowned historian Clinton Rossiter stated "no one can spend any time on the newspapers, library inventories, and pamphlets of colonial America without realizing that Cato's Letters rather than John Locke's Civil Government was the most popular, quotable, esteemed source for political ideas in the colonial period."Rossiter, Clinton (1953). Seedtime of the Republic: the origin of the American tradition of political liberty. New York: Harcourt, Brace. p. 141. PAGE 6

judge in his own cause; and so far as the right of the mind is concerned, he never surrenders it. But what availeth it him to judge, if he has not power to redress? He therefore deposits this right in the common stock of society, and takes the ann of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.”

It is from this reasoning that the court, that the legislature cannot simply weigh the cost benefit analysis of a category of speech, and then punish the speaker if the value of the speech is lower than the costs. US v. Stevens, 559 US 460, 130 S. Ct. 1577, 1585 “As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803).”

Moreover, the restriction has is limited to the exceptions which were traditionally unprotected, meaning speech that does not inflict injury on the rights of another persons rights, and since the speech being regulated is not in these categories for example integral to criminal conduct or obscene, the state cannot conclude that “revenge porn” is excepted from the strict scrutiny. see US v. Stevens 559 US 460, 130 S. Ct. 1577, 1584 "From 1791 to the present, however, the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never included a freedom to disregard these traditional limitations. These historic and traditional categories long familiar to the bar, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” (citations and quotes ommitted)

Privacy Rights Preemption The state claims that it is protecting the privacy rights of individuals, “under circumstances in which the depicted person had a reasonable expectation of privacy in its contents”, however the state does not state which of the notions of privacy they are PAGE 7

referring to. There are already laws against Invasions of Privacy through surreptitious recordings, and against the computer trespass which render this law unnecessary. The law tries to cover the torts of publicity and disclosure of private facts, rather than the actual intrusion upon seclusion, or false light given that the disclosures are factual. Moreover stating without stating what “invasions” of privacy are reasonable, and relying on a constructive knowledge standard, the requirement is unconstitutionally vague. While the petition for the state did cite Snyder v. Phelps, 562 U.S. 443, 453 (2011) claiming there might be a two levels of protection, to support that there is a lower level of protection for matters of private concern. However the court in that case said that “Other signs would most naturally have been understood as suggesting – falsely — that Matthew was gay.”, as such the invasion of privacy is one of a “false light” which could not be punished because it was a hyperbolic opinion on a matter of public concern. In contrast all of the types of core protected speech "rest[s] on the highest rung of the hierarchy of First Amendment values." Carey v. Brown, 447 U.S. 455, 467 (1980)

The supreme court has never held that a disclosure of facts of lawfully obtained true facts could be punishable under the first amendment, because it addresses matters of public concern, rather that distinction would be a content based restriction of speech and need to be the least restrictive means of accomplishing the the purported interest, and unlawful because the government was not punishing only certain types of true facts. “Our recent decisions demonstrate that state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 102 (1979)

PAGE 8

“This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”Smith v. Maryland, 442 US 735, 743-44 (1979) “[E]ven if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 US 435, 443(1976)

Rather the notion that a private person has the right to consent to a disclosure absent of any affirmative duty or invasion of right, is considered a “heckler’s veto”. A hecklers veto is when the government allows an individual who dislikes a certain other persons speech, to deny the other person their right to speech due to their emotional reaction to that speech, just like in the case of Boos v. Barry, 485 U.S. 312, 321 (1988) see Nativity Scenes Comm. V. City Of Santa Monica 784 F.3D 1292-93. “[T]he “heckler’s-veto” doctrine, which holds that a regulation of speech is to be deemed content based when “listeners react to speech based on its content and the government then ratifies that reaction by restricting the speech in response to listeners’ objections.” Ctr. for Bio-ethical Reform, Inc. v. L.A. Cnty. Sheriff Dep’t, 533 F.3d 780, 789 (9th Cir. 2008) (emphasis omitted). The doctrine prohibits the government from pointing to the “reaction of listeners” to speech as a “secondary effect” justifying that speech’s regulation; in other words, the government may not regulate speech on the grounds that it will cause its hearers anger or discomfort. Id. (citing Boos v. Barry, 485 U.S. 312, 321 (1988)). If speech provokes wrongful acts on the part of hecklers, the government must deal with those wrongful acts directly; it may not avoid doing so by suppressing the speech.”

Moreover the privacy interests known as “Appropriation of name and likeness” (publicity), are preempted by the first amendment and the Copyright Act, specifically because as the court In Sarver v. Chartier, 813 F. 3d 891 (9th Cir 2016) the right to publicity has been held to be applied narrowly to the exploitation of a persona, commercial advertising, rather than the expressive use of information about a person. More precisely a person cannot use the right of publicity to be able to censor a publication that bears their name or image, in the guise that they have a right to control their name and likeness. see Sarver at 905-906

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“that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life — including the stories of real individuals, ordinary or extraordinary and transform them into art, be it articles, books, movies, or plays. If California's right of publicity law applies in this case,it is simply a content based speech restriction. As such, it is presumptively unconstitutional and cannot stand unless Sarver can show a compelling state interest in preventing the defendants' speech”

Moreover the many circuits have held that the right to publicity is preempted by the copyright act 17 U.S.C. 301, because congress expressely preempted state laws which protect rights equivalent to copyright, and that the laws would stand as an obstacle or would cause inevitable conflict with copyright exceptions such as fair use of images.

The issue therefore, is whether section 21.16 is preempted by 17 U.S.C. § 301(a). See, e.g., Laws, 448 F.3d at 1137. 17 U.S.C. § 301(a) preempts plaintiff's claims if (1) "plaintiff's work come[s] within the subject matter of copyright" and (2) the legal or equitable rights granted under state law "are equivalent to any of the exclusive rights within the general scope of copyright." Montz v. Pilgrim Films & Television, 649 F.3d 975, 979 (9th Cir. 2011). “a right is equivalent to one of the rights comprised by a copyright if it is infringed by the mere act of reproduction, performance, distribution or display.” Baltimore Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663, 676-77 (7th Cir. 1986)

The gravamen of the right protected by section 21.16 is the right to consent to disclosure of images, which is equivalent to the rights in 17 U.S.C. § 106 because "In fact, this Court has held that a copyright owner has the capacity arbitrarily to refuse to license one who seeks to exploit the work. See Fox Film Corp. v. Doyal, 286 U. S. 123, 286 U. S. PAGE 10

127 (1932)" Stewart v. Abend, 495 U.S. 207, 229 (1990). Likewise the extra elements do not save the law from preemption from copyright, Grosso v. Miramax Film Corp.,383 F.3d 965, 968 (9th Cir. 2004). “By contrast, we have found a state law claim preempted when the extra element changes the scope but not the fundamental nature of the right.”

In Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012): “We pointedly note that we address the unpublished status of the photos only under copyright principles, not privacy law. See Bond v. Blum, 317 F.3d 385, 395 (4th Cir.2003) (“the protection of privacy is not a function of the copyright law.”). “It may seem paradoxical to allow copyright to be obtained in secret documents, but it is not․ [F]ederal copyright is now available for unpublished [F]ederal copyright is now available for unpublished works that the author intends to never see the light of day.”

In Garcia v. Google, Inc. 786 F.3d 733, 745 (9th Cir. 2015): “This relief is not easily achieved under copyright law. Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from — and incompatible with — copyright and copyright's function as the engine of expression.” ... “Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a "right to be forgotten," although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States.”

In Maloney v. T3Media, Inc. ,688 F.3d 1164 (9th Cir. 2017): “Plaintiffs' ... challenge “control of the artistic work itself.” Laws, 448 F.3d at 1142. Pursuant to Laws, the subject matter of the state law claims therefore falls within the subject matter of copyright. We believe that our holding strikes the right balance ... permitting photographers, the visual content licensing industry, art print services, the media, and the public, to use these culturally important images for expressive purposes. Plaintiffs' position, by contrast, would give the subject of every photograph a de facto veto over the artist's rights under the Copyright Act, and destroy the exclusivity of rights that Congress sought to protect by enacting the Copyright Act.”

The argument that a person can move the dispute from one sounding in copyright to one in contract, because of an constructive, implied in fact, or even oral promise not to disclose the material, 17 USC § 204 requires that in order to transfer such a right the transfer would have to be done in writing. See Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F. 3d 1146, 1157 “Section 204(a) is designed to resolve disputes between owners

PAGE 11

and transferees and to protect copyright holders from persons mistakenly or fraudulently claiming oral licenses or copyright ownership.”

Likewise a breach of implied contract claim was preempted by the copyright, because the promise not to disclose, would logically interfere with the rights of the copyright owner. See e.g. Montz v. Pilgrim Films & Television, Inc., 606 F. 3d 1153 , 1159 “The complaint contends that "the Plaintiffs' disclosure of their ideas and concepts [was] strictly confidential," and that "[b]y taking the Plaintiffs' novel ideas and concepts, exploiting those ideas and concepts, and profiting therefrom to the Plaintiffs' exclusion, the Defendants breached their confidential relationship with the Plaintiffs." Such claim simply echoes the allegations of the breach-of-implied-contract claim, which we have already deemed preempted. Indeed, the alleged breach of confidence stems from an alleged violation of the very rights contained in § 106 — the exclusive rights of copyright owners to use and to authorize use of their work. Given

that the plaintiffs' breach-of-confidence claim is not qualitatively different from a copyright claim, we conclude that it was also properly dismissed.” Moreover Congress explicitly stated that they did not want government agencies expropriating their copyrights when it enacted 17 U.S.C. 201(e) See HR Rep. No 94-1476 94th Cong. Sess. 2d (1976) at 123-124. “Subsection (e) provides that when an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, have not previously been voluntarily transferred, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title. The purpose of this subsection is to reaffirm the basic principle that the United States copyright of an individual author shall be secured to that author, and cannot be taken away by any involuntary transfer. It is the intent of the subsection that the author be entitled, despite any purported expropriation or involuntary transfer, to continue exercising all rights under the United States statute, and that the governmental body or organization may not enforce or exercise any rights under this title in that situation.”

See also Veeck v. S. Bldg. Code Cong. Int'l, Inc., 293 F.3d 791, 803 (5th Cir. 2002) ("Section 201(e) of the Act reflects Congress's intention to protect copyrights from involuntary appropriation by government entities."); Schnapper v. E Foley 667 F.2d 102, 115 (D.C. Cir 1981). PAGE 12

"We are aware that there is at least a theoretical possibility that some copyright laws may be used by some nations as instruments of censorship. Fears had been expressed, for example, that the Soviet Union would, through use of a compulsory-assignment provision in its domestic copyright laws, attempt to prevent foreign publication"

Cyberspace Law Congress created the Communications Decency Act 47 U.S.C. § 230, “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation” § 230(b)(2), by providing that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” § 230(c)(1), and “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” § 230(e)(3) Though the statute ORS 163.472 provides immunity for “providers” of interactive computer service, but not the users of those services by its terms, despite the fact that the statue clearly exempts a “provider or user” see e.g. Batzel v. Smith, 333 F.3d 1018, 1030 (“[T]he language of § 230(c)(1) confers immunity not just on "providers" of such services, but also on "users" of such services.”); Barrett v. Rosenthal 40 Cal. 4th 33, 63 “We conclude there is no basis for deriving a special meaning for the term "user" in section 230(c) (1), or any operative distinction between "active" and "passive" Internet use. By declaring that no "user" may be treated as a "publisher" of third party content, Congress has comprehensively immunized republication by individual Internet users.

As long as someone else provided the information, the user cannot be treated as a speaker or publisher, regardless of whether it is for defamation, or negligence, or criminal conduct. Backpage. Com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1275 (W.D.Wa. 2012) (“If Congress did not want the CDA to apply in state criminal actions, it would have said so”); Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th cir 2009) PAGE 13

“But "a law's scope often differs from its genesis," Craigslist, 519 F.3d at 671, and the language of the statute does not limit its application to defamation cases. Indeed, many causes of action might be premised on the publication or speaking of what one might call "information content." A provider of information services might get sued for violating anti-discrimination laws, see, e.g., Roommates.Com, 521 F.3d 1157; for fraud, negligent misrepresentation, and ordinary negligence, see, e.g., Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 600, 172 L.Ed.2d 456; for false light, see, e.g., Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002); or even for negligent publication of advertisements that cause harm to third parties, see Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992). Thus, what matters is not the name of the cause of action — defamation versus negligence versus intentional infliction of emotional distress — what matters is whether the cause of action inherently requires the court to treat the defendant as the "publisher or speaker" of content provided by another. To put it another way, courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant's status or conduct as a "publisher or speaker." If it does, section 230(c)(1) precludes liability.”

Congress clearly had the ability to enact and preempt the state throught the commerce clause of Article 1 section 8 of the constitution, moreover congresses commerce powers “encompasses an implicit or “dormant” limitation on the authority of the States to enact legislation affecting interstate commerce.” Backpage. Com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1285 (W.D.Wa. 2012). “Where a state statute only has incidental effects on interstate commerce, the statute will be upheld "[w]here the statute regulates even-handedly to effectuate a legitimate local public interest," where "its effects on interstate commerce are only incidental," and where the burden imposed on interstate commerce is not "clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). "[T]he practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation." Healy, 491 U.S. at 336, 109 S.Ct. 2491. Finally, there exist unique aspects of commerce that demand national treatment. See, e.g., Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557, 7 S.Ct. 4, 30 L.Ed. 244 (1886) (holding railroad rate exempt from state regulation).” ... “The Internet is likely a unique aspect of commerce that demands national treatment. "The Internet is wholly insensitive to geographic distinctions" and itself "represents an instrument of interstate commerce." Amer. Libraries Assoc. v. Pataki, 969 F.Supp. 160, 173 (S.D.N.Y.1997). See also Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir.2008) ("Online services are in some respects like the classified pages of newspapers, but in others they operate like common carriers such as telephone services."). Thus, "[t]he Internet, like ... rail and highway traffic ..., requires a cohesive national scheme of regulation so that users are reasonably able to determine their obligations." Pataki, 969 F.Supp. at 182; cf. Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557, 7 S.Ct. 4, 30 L.Ed. 244 (1886) (holding railroad rate exempt from state regulation).”

Dated: 02/27/19

Respectfully submitted, By: /s/ Benjamin Barber Benjamin Barber PAGE 14

CERTIFICATE OF SERVICE I certify that, on 02/27/19, I served electronically a copy of this brief on counsel of record, as listed below: Mark Bennett mb@ivi3.com BENNETT & BENNETT 917 Franklin Street, Fourth Floor Houston, Texas 77002

Attorney for Respondent Michael J. West Smith County Asst. Dist. Attorney mwest@smith-county.com Courthouse, Fourth Floor 100 North Broadway Tyler, Texas 75702

Attorney for Smith County Glenn A. Ballard, Jr. glenn.ballard@dentons.com Mukul S. Kelkar mukul.kelkar@dentons.com DENTONS US LLP 1221 McKinney Street, Suite 1900 Houston, TX 77010 (713) 658-4633

Attorneys for Media Coalition

Stacey M. Soule, State Prosecuting Attorney John R. Messinger, Asst. State Prosecuting Attorney information@spa.texas.gov P.O. Box 13046 Austin, Texas 78711

Attorneys for State Michael A. Bamberger michael.bamberger@dentons.com Richard M. Zuckerman richard.zuckerman@dentons.com DENTONS US LLP 1221 Avenue of the Americas New York, NY 10020 (212) 768-6700

Attorneys for Media Coalition Lisa Bowlin Hobbs Lisa@KuhnHobbs.com KUHN HOBBS, PLLC 3307 Northland, Suite 310 Austin, Texas 78731 (512) 476-6003

Attorneys for Cyber Civil Rights Initiative

Dated: 02/27/19

Respectfully submitted, By: /s/ Benjamin Barber Benjamin Barber PAGE 15

PAGE 16

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Going too Far: Child/Revenge Porn Speaker: Eric Davis 1201 Franklin St Rm 13 Houston, TX 77002-1929 (713) 274-6730 Phone (713) 437-8563 Fax eric.davis@pdo.hctx.net Email

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

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: The State’s Goomba: Experts Speaker: Sarah Roland 903 N Elm St Ste 101 Denton, TX 76201-6926 (940) 323-9305 Phone (940) 312-6830 Fax sarah@sarahroland.com Email www.sarahroland.com Website

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

Taking on the State’s Forensic Expert Sarah Roland #tcdlarusty2022 #tcdlastrong

#tcdlarusty2022 #tcdlastrong

Let’s call it (Bad Science)

CCP 38.35 Forensic Analysis of Evidence; Admissibility “Forensic analysis” means a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action. The term includes an examination or test requested by a law enforcement, prosecutor, criminal suspect or defendant, or court.

BUT… #tcdlarusty2022 #tcdlastrong

The term does not include: (A) Latent print examination (B) A test for a specimen for breath under Chapter 724, Trans. Code (C) Digital evidence (D) Examination or test excluded by rule under Article 38.01 (TFSC) (E) Presumptive test for purpose of determining compliance with probation (F) An expert exam or test conducted principally for some other purpose than criminal #tcdlarusty2022 #tcdlastrong

#tcdlarusty2022 #tcdlastrong

General Considerations • Study Up & Come Prepared • Prepare for “CSI Effect” • Daubert/Nenno Hearings Every Time • Be an Advocate for the Science • Meet the Expert • Listen…Really Listen • Simple Direct Questions • Make them Answer the Question • Keep them in their Lane

#tcdlarusty2022 #tcdlastrong

1. 2. 3. 4. 5. 6.

Scientific testing has demonstrated that everyone has a unique set of fingerprints. It is scientifically possible to date a fingerprint. It take 8 points to declare a match in fingerprints. A false DNA match is impossible. Wood burns at a fixed rate so the deepest char has been burning the longest. By establishing the temperature of a fire, a fire investigator can determine whether the fire was accelerated or advanced at a normal rate. 7. A fire investigator can identify a flammable liquid pour pattern by visual observation alone. 8. Hair comparison can be used to make a positive identification of an individual. #tcdlarusty2022 #tcdlastrong

AAAS, p. 13 “Even if the ridge detail of every finger were unique and unchangeable, it does not follow that every impression made by every finger will always be distinguishable from every impression made by any other finger, particularly if the impressions are of poor quality (e.g., limited detail, smudged, distorted, overlaid on another impression). By analogy, it may be that every human face is unique, but we can still mistake one person for another, particularly when comparing poor‐quality photos.”

WHAT PRINTS DON’T REVEAL… When they were left on the surface That the person was ever at the scene Under what circumstances they were left

FIREARMS & TOOLMARKS Feature Comparison Technique Individualization NIBIN Minimum Requirements Accreditation

#tcdlarusty2022 #tcdlastrong

CRIME SCENE RECONSTRUCTION No Accreditation Requirement No Education Requirement More of a Discipline Susceptible to Bias #tcdlarusty2022 #tcdlastrong

Best Explanation Ever

#tcdlarusty2022 #tcdlastrong

Key Points How & Why is DNA in a Particular Place? Accreditation & Education Requirements CODIS Mixtures Degradation Spurious Peaks aka “Technical Defects” False Peaks

DNA Mixtures Just because a person’s alleles appear in a mixture does not mean that person contributed to it. The alleles may have come from some combination of other people who, between them, have all the allele types in the suspect’s profile.

#tcdlarusty2022 #tcdlastrong

• No Accreditation Requirement

Fire Science

• Minimum Educational Requirements • National Fire Protection Agency – NFPA 921 2021 Edition

#tcdlarusty2022 #tcdlastrong

DIGITAL FORENSICS • What’s in the Cloud? • Biometric Recognition v. Passcode • Remotely Wiped Phone = Tampering?

IT’S HERE AND IT’S COMING • DNA Phenotyping • Immunochromatography • Forensic Palynology • Digital Vehicle Forensics • Alternative Light Photography • Facial Recognition/Reconstruction #tcdlarusty2022 #tcdlastrong

Never Stop Looking for Zebras

903 N. Elm St., Denton, TX 76201 (940) 323‐9305 sarah@sarahroland.com sarahroland.com #tcdlarusty2022 #tcdlastrong

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Misery Loves Company: Online Solicitation Speaker: Shane Phelps 400 N Washington Ave Bryan, TX 77803-5310 (979) 775-4100 Phone (979) 775-4300 Fax shane@shanephelpslaw.com Email www.shanephelpslaw.com Website

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

Online Solicitation of a Minor Section 33.021, Texas Penal Code

2022 Rusty Duncan Advanced Criminal Law Seminar Texas Criminal Defense Lawyers Association

Shane Phelps Shane Phelps Law Bryan/College Station, Texas 979-775-4100 (O) 979-220-5450 (C) Shane@shanephelpslaw.com 1

Table of Contents 1. Introduction 2. Basics of the Present Online Solicitation statute • • • •

3 4

Three Different Ways to Commit Online Solicitation Communicating and Distributing (§§9b) Soliciting (a meeting for sex; §§(c) What is a “minor”

3. Offense Levels 4. Sex Offender Registration 5. Defenses

8 9 10

• Mistake of Fact (§8.02) • Entrapment (§8.06) • Fantasy

6. Miscellaneous suggestions/Issues

1. Introduction The Online Solicitation of a Minor statute was enacted and added to Title 71 of the Penal Code as §33.021 in the chapter on Computer Crimes in 2005. It was a response to the inadequacy of the Penal Code at the time to address the burgeoning abuse of the internet by child predators. I formerly served as First Assistant District Attorney in Brazos County from 2001 to 2011. Around 2004, I was contacted by one of our local law enforcement agencies with a difficult dilemma. A perpetrator from outside of the state had been talking to a 13-year-old girl for several weeks on the internet. The conversations turned explicit and, eventually, the perpetrator set up an appointment to meet the young girl at a skating rink in Bryan, Texas. The dilemma was whether to allow the girl to actually meet with the perpetrator at the skate rink to strengthen the state’s case against hm. I ultimately could not countenance an actual meeting as we agreed that we did not know who we were dealing with and did not want to put the young girl at any risk. The perpetrator was nevertheless arrested when he showed up at the skating rink and charged with attempted aggravated sexual assault of a child. In the end, the case was plead to eight years in prison. That case highlighted for me the shortcomings of the Penal Code in addressing these types of cases in light of the explosion of instances of the internet being used to groom and, ultimately, meet young children for the purposes of sexual exploitation.2 After raising this issue with the legislative branch of TDCAA, I was contacted and asked to draft a statute to address the use of the internet to sexually exploit young children. The bill was filed, and I testified before the House Committee on Criminal Justice and relayed the specifics of the case I had handled that raised this issue. After some revisions and additions,3 the bill passed both houses and was signed into law by Governor Rick Perry and became Texas law on September 1, 2005. It was not a perfect statute, but it was a step forward in getting the Texas Penal Code in line with the technological advances of the internet.

Offenses Against Property? The Legislature probably put Online Solicitation here because the gravamen of the offense is preying on minors using the internet, computers, emails, texts, etc. The Legislature apparently thought that it fit best in the chapter addressing computer crime. 2 At around this time, I recall attending a seminar in which an FBI agent logged into a child-oriented internet (something called “Neo-Pets” as I recall). The FBI assumed the persona of a young girl, and within minutes scores of obviously older internet users started messaging him. It was startling. 3 The legislative process is not pretty.

The stated legislative purpose of the Online Solicitation of a Minor bill was to create an offense that addressed the actual online solicitation of minors by sexual predators without the necessity of letting it get to the point of actual physical contact with a potential victim. At the time of the filing of the bill,4 at least 34 other states had some form of legislation that criminalized luring or soliciting minors online for sex. As will be discussed later in this paper, there were concerns expressed by me and others about one part of the law (§§(b)) that criminalized just talking in sexually explicit terms with a minor online with the intent to arouse or gratify, a subsection added during the legislative process. The concern was fairly obvious, whether this subsection of the statute ran afoul of the First Amendment. This turned out to be somewhat prescient as this part of the statute was ultimately unanimously held to be unconstitutional by the Court of Criminal Appeals in Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2015), thanks to the extraordinary appellate work of Mark Bennett of Houston.5 The statute has undergone significant changes since it was passed in 2005, most notably in the wake of the Ex Part Lo case in 2015. 2. Basics of the Present Online Solicitation of a Minor Statute. Three different ways to commit Online Solicitation of a Minor. Effectively, there are three separate offenses created by the Online Solicitation of a Minor statute. Two are contained in §§33.021(b) of the statute, communicating with a minor in a sexually explicit manner and distributing sexually explicit material to a minor. The third offense is contained in §§33.021(c), soliciting a minor to meet with the intent to sexually exploit the minor. For simplicity’s sake while discussing each of these separate “offenses,” I will refer to them as “communicating,” “distributing,” and “soliciting.” Subsection (b) of §33.021 states: A Person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A),(B), or (K), Code of Criminal Procedure,6 the person, over the internet, by 4

House Bill 2228, 79th Legislature. I mean, come on, who gets the entire Court of Criminal Appeals to agree on anything. Way to go, Mark. 6 Chapter 62 of the Code of Criminal Procedure addresses Sex Offender Registration. 5

electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally: (1) communicates in a sexually explicit manner with a minor; or (2) distributes sexually explicit material to a minor. Subsection (c) of §33.021 states: A person commits an offense if the person, over the internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.” Communicating and Distributing (§§ 33.021(b)) The offenses involving communicating and distributing share the same elements with the exception that one addresses communicating with a minor in a sexually explicit manner and the other addresses distributing sexually explicit material to a minor. Both require the intent to commit an offense under Article 62.001(5)(A), (B), or (K), provisions of the Sex Offender Registration statute in the Code of Criminal Procedure. It is important to be familiar with the offenses listed in Article 62.001 that are referenced in §§33.021(b). Not all the offenses that are subject to sex offender registration and listed in Chapter 62 of the Code of Criminal Procedure as reportable convictions or adjudications are implicated in §§33.021(b). Specifically, the offenses referred to in §§33.021(b) are: • • • • • • • •

Continuous sexual abuse of a young child/disabled individual (TPC 21.02) Bestiality (TPC 21.09) Indecency with a Child (TPC 21.11) Sexual Assault (TPC 22.011) Aggravated Sexual Assault (TPC 22.021) Prohibited Sexual Conduct (TPC 25.02) Aggravated Promotion of Prostitution (TPC 43.04) Compelling Prostitution (TPC 43.05) 5

• Sexual Performance of a Child (TPC 43.25) • Possession or Promotion of Child Pornography (TPC 43.26) • Trafficking of Persons under TPC 20A.02(a)(3), (4), (7), or (8) The original language of §§33.021(b) was problematic in that it only required an intent to “arouse or gratify the sexual desire of any person” when either communicating with a minor in a sexually explicit manner or distributing sexually explicit material to a minor. When the bill creating Online Solicitation of a Minor was originally filed and debated in the Legislature, concerns were raised as to whether §§(b) might be vulnerable to a Constitutional challenge based on First Amendment grounds. The bill, including this subsection, passed anyway, and was signed into law. The concerns voiced about its constitutionality proved valid when the Court of Criminal Appeals, in Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), held the subsection did, in fact, violate the First Amendment. The Court of Criminal Appeals held that the subsection criminalized content (of speech), not conduct, and therefore implicated the First Amendment. Applying the strict scrutiny standard of review applicable to constitutionality challenges based on the First Amendment, the Court held that the subsection went too far in criminalizing a wide swath of protected speech. The Court struck down the subsection. The legislature, in 2015, responded by amending the statute to include the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K) rather than the intent to “arouse or gratify.” Since Lo, there has not been a successful challenge to the constitutionality of §§(b) as amended by the Legislature in 2015. I think that reasonable minds can differ on whether the legislative fix in 2015 cured the constitutionality problem, so keep trying. It is important to not overlook the definition of “sexually explicit” in evaluating an indictment and set of facts alleging a violation of §§(b). “Sexually explicit” is defined at §33.021(a)(3): “Sexually explicit” means any communication, language, or material, including a photographic or video image that relates to or describes sexual conduct, as defined by Section 43.25. The definition of “sexual conduct in Section 43.25, addressing Sexual Performance of a Child, is quite broad: “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the 6

genitals, the anus, or any portion of the female breast below the top of the areola. Reading both of these definitions together, it is theoretically possible to be charged and convicted under §§(b) with sending a single “sexually explicit” photograph or video to a minor if the act is done with the intent to commit one of the offenses listed in §§62.01(5)(A), (B), or (K). By the same reasoning, it is also theoretically possible to be charged and convicted under §§(b) for a single brief internet chat or text message that a jury could consider sexually explicit if they also believe that the communication was done with the intent to commit an offense listed in §§62.001(5)(A), (B), or (K). I emphasize this only to illustrate the breadth of the reach of this subsection. Being able to recognize a marginal set of facts within this wide range of potential conduct can be the key to resolving a case under favorable circumstances.7 Soliciting §§33.021(c) Subsection (c) of the Online Solicitation of a Minor statute addresses the online conduct that was the reason the statute was drafted and passed in the first place. This subsection criminalizes the act of soliciting a minor to meet for sex. The elements of the offense are: • A person • Over the Internet,8 by electronic mail or text message or other electronic message service or system, or through a commercial online service • Knowingly • Solicits a minor to meet with another person, including the actor • With the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person The elements of the §§(c) offense of Soliciting contain a couple of things worth noting. First, for some reason, this subsection applies to everyone regardless of age. Subsection (b) applies only to persons who are 17 years of age or older. Second, the elements include two culpable mental states, or more precisely, a culpable mental state and a specific intent. While §§(b) contains a culpable mental state of “intentionally,” §§(c) requires only a “knowing” mental state. With regard to the 7

And by “favorable” I mean a resolution that does not put your client in prison, jail, or subject him or her to sex offender registration. 8 I don’t know why the word “Internet” is capitalized but that’s the way it appears in the statute.

specific intent in each subsection, §§(b) requires the State to prove the specific intent to commit an enumerated offense, while §§(c) requires the State to prove the specific intent that the minor will engage in sexual acts. Because it is the act of soliciting a minor online with the intent to engage in sex with the minor that is the gravamen of this §§(c), §§(d) forecloses any defense that the meeting did not actually occur. An offense under §§(c) is complete at the time of the solicitation and what occurs thereafter is of no consequence, including whether the meeting occurred at all. Mahmoud v. State, 2019 Tex. App. LEXIS 2649 (Beaumont, 2019). If an actor does show up for the meeting, it certainly helps the State’s case, however, especially if he or she shows up with condoms, lubricant, and X-rated videos. The constitutionality of §§33.021(c) has been challenged a number of times on various constitutional grounds but no court, including Ex Parte Lo, has ever held this subsection unconstitutional. What is a “minor”? The definition of what constitutes a minor under the Online Solicitation of a Minor statute has evolved significantly. In its original form, effective until September 1, 2015, a minor was defined at §§ 33.021(a)(1) as: (A) An individual who represents himself or herself to be younger than 17; or (B) An individual whom the actor believes to be younger than 17 years of age. After the statute was amended in 2015, the definition of “minor” changed as follows: (A) An individual who is younger than 17 years of age; or (B) An individual whom the actor believes to be younger than 17 years of age. This was a meaningful and important change. Prior to September 1, 2015, a person could be convicted, all other elements being present, just because an officer on the other end of the online communication “represented” him or herself to be younger than 17. Thus, even if the actor truly believed that he was talking to someone 17 or older (perhaps because the actor was engaging in fantasy; more on that later) and wasn’t, in fact, soliciting a minor, he or she could still be convicted of the offense. 8

Scary. The definition as it is codified now either requires the person on the other end to actually be younger than 17 or that the actor actually believes he is talking to a person younger than 17. A sensible and fair revision of the definition. Imagine that. 3. Offense Levels A violation of §§33.021(b), either by communicating or distributing, is a third-degree felony. It is a second-degree felony if the minor is younger than 14 or the actor believes he or she is dealing with a minor younger than 14. A violation of §§33.021(c) is second-degree felony. Oddly, there is no increase in offense level if the actor solicits a minor younger than 14 or believes he or she is soliciting a minor younger than 14. This may be because of what I call the “School Zone Penalty.” In the last legislative session, the Legislature provided for an enhancement for offenses committed during school hours when the actor knew or reasonably should have known the minor was enrolled in a school as follows: (f-1) The punishment for an offense under this section is increased to the next higher category of offense if it is shown on the trial of the offense that: (1) The actor committed the offense during regular public or private primary or secondary school hours; and (2) The actor knew or reasonably should have known that the minor was enrolled in a public or private primary or secondary school at the time of the offense. This provision increases the offense level of a violation of §§33.021(b) to either a second- or first-degree felony depending on the age or believed age of the minor. Because a violation of §§33.021(c) is a second-degree felony regardless of age, a punishment structure similar to §§(b) would have meant a possible 15-year minimum if age had been a factor in §§(c). I think that the Legislature was unwilling to create such a minimum sentence in this offense.

4. Sex Offender Registration Online Solicitation of a Minor, regardless of whether it is committed under §§33.021(b) or (c), is a registration offense under Chapter 62 of the Texas Code of Criminal Procedure.9 While it is a “reportable conviction or adjudication” for purposes of Chapter 62, it is not a “sexually violent offense.” 10 The duty to register expires ten (10) years after release from a penal institution or discharge from probation, including deferred adjudication.11 5. Defenses The only defense specific to Online Solicitation of a Minor is found in §§33.021(e) which reads: It is a defense to prosecution under this section that at the time the conduct described by subsection (c) was committed: (1) The actor was married to the minor; or (2) The actor was not more than three years older than the minor and the minor consented to the conduct. Curiously, this defense appears to apply only to §§(c). The defense uses the language “it is a defense to prosecution under this section” which, presumably means the entirety of §33.021, but then qualifies the defense by limiting it to “conduct described by subsection (c).” I think any enterprising prosecutor could figure out a way to charge the conduct under §§(b) and avoid the defense altogether, depending on the facts. However, I would hope that a prosecutor’s sense of justice would lead him or her to not charge an offense under §§(b) if the facts were that the actor was not more than three years older than the minor and the minor consented.12

Article 62.001(5)(j), Texas Code of Criminal Procedure. See Article 62.001(6), Texas Code of Criminal Procedure. 11 If your client is more concerned about sex offender registration than a conviction and prison time, you may want to consider pleading a deferred adjudication offer to a two-year prison term instead. For example, if your client is offered a ten-year deferred adjudication and does not early terminate, he will be required to register as a sex offender for 20 years (10 years from discharge from probation). If your client serves a two-year prison sentence, he will only have to register for 12 years (10 years after release from a penal institution). It’s a trade-off. If getting off the registry sooner is more important than not being a convinced felon, your client might prefer this route. 12 Imagine a scenario in which the actor was 17, the minor was 15, and both consented to the conduct under §§b, or that the actor and the minor were married. The defense in §§(e) does not appear to apply too either scenario, but it would under §§(c), arguably the more serious conduct. 10

Mistake of Fact, §8.02. The mistake of fact defense is found at §8.02 of the Texas Penal Code. It provides: It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the crime. This defense would allow a jury to acquit a defendant if the defendant reasonably believed that the person with whom he or she was communicating or soliciting was, in fact, not a minor. However, it is a bit redundant to the elements of the offenses contained in §33.021 in that a reasonable doubt as to whether a defendant believed he or she was talking to an actual minor would compel an acquittal. The prosecution could certainly argue that the defense does not apply because if the State failed to prove beyond a reasonable doubt that the defendant knew or believed that he was talking to an actual minor, it is just a failure of the State’s burden and not an actual defense. However, I would always ask for the defense in the Court’s charge to the jury anyway to give the jury as many chances as possible to acquit the defendant. In asking for the charge, make sure to be able to point to specific evidence that your client could have reasonably relied on in believing that he or she was dealing with someone over the age of 17.13 When considering whether and how to request a mistake of fact charge, it would be helpful to be familiar with the opinions in Ex Parte Victorick, 2014 Tex. App. LEXIS 5429 (Beaumont, 2014) and State v. Paquette, 487 S.W.3d 286 (Tex. App. – Beaumont; 2016. Entrapment §8.06. If your client was arrested as the result of a law enforcement “sting” operation, examine the facts and the communications between your client and the “minor” to determine whether the entrapment defense applies. Section 8.06 of the Texas Penal Code outlines the entrapment defense: It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent

For example, the “minor” sends a photograph and the person depicted in the photo, despite the assertion that the person is underage in the chat colloquy, obviously looks older than 17. Also, if a photo is sent of the “minor” and there are objects in the background that contradict the assertion that the person in the photo is a minor, such as college-related posters, pennants, etc.

using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment. The entrapment defense includes both a subjective and an objective component. A defendant must show that he or she was actually induced to engage in the conduct as a result of police persuasion. Further, a defendant must show that the persuasion used by law enforcement was of “such a compelling nature that it would cause an ordinarily law-abiding citizen of average resistance to engage in the conduct.” Garand v. State, Tex. App. LEXIS 10446 (11th Dist.; 2020); England v. State, 887 S.W.2d 902 Tex. Crim. App. 1994). At trial, a defendant must elicit evidence that raises the defense of entrapment. The burden then shifts to the State to disprove the defense beyond a reasonable doubt. Hernandez v. State, 161 S.W.3d 491 Tex. Crim. App. 2005). Every case of Online Solicitation of a Minor should be carefully examined for a potential entrapment defense. Parsing the exact chat or text exchange between the client and the “minor” is critically important. Important considerations are who initiated the conversation at its inception, who first raised any suggestion of sexual activity, who first suggested meeting, the client’s lack of criminal history, whether the client has any other such chats or texts on his phone or device, and whether law enforcement engaged in any persuasion and, if so, to what extent. If you believe that you have a strong argument that entrapment occurred and can demonstrate it to the Court, you may want to consider a pre-trial hearing to try to persuade the judge that entrapment occurred as a matter of law. Generally, entrapment is a question of fact for the jury, but a defendant can present the issue in a pretrial hearing to determine whether entrapment occurred as a matter of law. Hernandez, 161 S.W.3d at 498. Fantasy. Prior to September 1, 2015, the Online Solicitation of a Minor statute included an express provision that it was not a defense “that the actor was engaged in fantasy at the time of the offense.” That provision, thankfully, was abandoned in the 2015 revision of the statute.

There are people on the internet who engage in what is called “ageplay.” There is an entire community of people on the internet who derive sexual gratification from pretending that they are underage or “littles.” This can even take the form of pretending to be infants with grown adults wearing diapers and sucking on pacifiers.14 It may be a difficult conversation to have with your client but ask about whether they were engaged in “ageplay.” If they are, the difficult part is in proving it as it is an easy, knee-jerk defense that most juries will dismiss out of hand. Explore with your client whether there is any way to demonstrate this fetish through other chats, membership in any of the websites catering to this activity, or actual testimony. Unfortunately, forwarding this defense can be perilous because it is effectively an admission that your client has some interest in underage minors. Your challenge is to introduce doubt into the minds of the jury that your client believed that the person he was communicating with, distributing sexually explicit material to, or trying to meet was 17 or older and engaged in age-play. Ironically, if the “minor” on the other end of the conversation is a law enforcement officer, that is exactly what they are doing. 6. Miscellaneous suggestions/Issues • How does the State prove it was your client on the other end? If your client does not show for a meeting, the State must show that it was actually your client on the other end of the chat/texting. • If the prosecution is under §§(c), did the client actually show up? While not showing up is not a defense and doesn’t defeat the State’s case, it is some evidence (or lack thereof) that your client, at the time of the alleged solicitation, did not actually intend to solicit the minor for sex. • How extensive was the online conversation? Did it go on over days, weeks, or even months? Was it a single chat session? • What exactly was said and by whom? Read and re-read the exchange between your client and the “minor.” There truly is a spectrum of what may or may not constitute “sexually explicit” or whether a solicitation to meet actually occurred. Law enforcement will try to be specific in sting operations but depending on how hard they try to get specific details, the entrapment defense may come into play. • Was there grooming? 14

I can’t believe that I am typing this. Fair warning: do not google this.

• How explicit was the conversation or material? Ultimately, that will be a question of fact for a jury to decide. Tactfully raise the issue in voir dire to gauge the prudishness of your panel. • What cues, overt or otherwise, were given as to age? o Was age stated overtly? Probably a cop. o Were there contradictory clues about age? o How did the “minor” get on the website? (Most dating websites require some explicit assertion that the person is over the age of 18.)

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: The Score: Cell Towers Speaker: EX Martin E. X. Martin, III 8828 Greenville Ave Dallas, TX 75243-7143 (214) 343-7400 Phone (214) 343-7455 Fax exmartin@airmail.net Email

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

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION 35th ANNUAL SEMINAR June 16, 2022 Austin, Texas

Cell Towers Data And Other Computer Forensics For Criminal Defense Attorneys By E. X. Martin, III Attorney at Law 8828 Greenville Avenue Dallas, Texas 75243 214-343-7400 – Voice 214-912-1305 - Cell exmartin@airmail.net

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I. Cellphone & Cell Tower Forensics I have had one (1) federal criminal case in which a historical cell site analysis was a major part of the prosecution’s evidence at trial. My client was indicted for the offense of interference with commerce by robbery, in violation of 18 U.S.C. § 1951(a), a crime of violence. My client and one other person entered a plea of not guilty to the offense charged in the indictment. A large part of the government’s case was predicated on cell tower evidence which unfortunately successfully tracked the defendants from their homes in Houston, Texas to jewelry store in Dallas, Texas. Immediately after the robbery the defendants traveled back to Houston and celebrated the successful robbery at a topless club. The trial evidence in this case started with listing the culprits as shown in the following graphic. This graphic shows how agents organized the cell phone data for the trial. Each defendant was listed by name, cellphone number, and cellphone service provider. This was very helpful to understand the crime. Historical Cell Site Analysis

The FBI was able to use cell tower evidence along with the testimony of some of the defendants who agreed to testify on behalf of the FBI. The government’s cell tower evidence Page - 2

was both accurate and believable and the trial defendant were found guilty and were sentenced to federal prison time. The call detail records documented the network interaction to and from the defendant’s cell phones at the beginning at 1:35 am which was the start of the trip from the Houston area to the Dallas area. The cellphone data also documented the trip back to the Houston.

The following graphic documents the arrival in Irving, TX around 6:30 am prior to the robbery.

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This graphic shows the return of the defendants to Houston and the Ice Cream Castle Strip Club. All of the defendants who participated in this offense entered a plea of guilty or was found guilty of the offense.

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Cell Data Records Analysis

1. Location data is never exact. It can have uncertainty from 30 meters to a mile. 2. Using cell towers to detect location is not as accurate as GPS. 3. However, GPS accuracy can be affected by available satellites, atmospheric effects, sky blockage, and receiver quality. 4. Delayed signals can cause measurement errors. 5. Best-case scenario: A cell phone’s signal may be picked up by three or more cell towers, enabling the “triangulation” to work. 6. Cell phones attempt to connect with the tower emitting the strongest and highest quality signal at a given moment, not the closest. 7. Many factors come into play regarding the in the selection of a tower to handle a cell phone call. (1) The health of thetowers in the area at the moment in time. Are all towers functioning at the time of the call. (2) Line of sight to the tower from the cell phone. (3) Radio signal interference from other cell towers in the area. (4) Make and model and condition of the particular cell phone being used. (5) Whether the phone is inside a building or outside at the time the call was recorded, where structural materials may block the signal from on tower, forcing the cell phone to select a different tower than one it would be able to connect if it were outdoors. Cell Phone Jurisprudence and Carpenter Supreme Court Cell Phone case make it clear that cell phone privacy is very important to the Supreme Court and rightfully so! The Supreme Court has begun to understand the profound power that this technology yields and just how intimate of a picture of someone’s life it reveals.

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Riley v. California, 573 U.S. 373, 385 (2014) – Justice Roberts described cell phones as “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Comparing a cell phone to a backpack, Roberts writes at length about lhow much information can be stored in a cell phone. The previous caselaw from the 70’s is completely out dated. If law enforcement want to get deep into the cuts of the phone, there has to be a warrant to search it. This case firmly establishes a line of case law protecting the contents and data found in and associate with cell phones. Cellphones have immense storage today. A cell phone collects in one place many distinct types of information – 1. An address 2, A note 3. A prescription 4. A bank statement 5. A video The sum of an individual’s private life can be reconstructed through a thousand photographs with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Carpenter v. United States, 138 S.Ct. 2206 (2018) This is the case in which the Court affirmed that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through cell-site location information (CSLI). A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. The Government can now travel back in time to retrace a person’s whereabouts, and police need not even know in advance whether they want to follow a particular individual, or when. Where to start for your client’s case: Make a discovery request to get all raw data and method of seizure that law enforcement received from Google in order to provide this information to your own expert. Page - 6

*** Hire an expert!!! Look out for U.S. v Leon, 922-23(1984) “good faith exception.” Theories of Defense: 1. That wasn’t my phone 2. That was my phone but not me 3. I may have been nearby but not at the scene. 4, The Evidence is Unreliable (Reasonable Doubt) FRE 403: Motion to Exclude Cell Site Location Information (CSLI) evidence. Any probative value is substantially outweighed by a danger of confusion, misleading the jury, and unfair prejudice.Because the nature of the evidence is unreliable, its introduction to the jury risks manifest injustice. Federal Rule of Evidence 403. FRE 702: Motion to Prohibit law enforcement officers from testifying as experts as to any/all Geofence or reverse-location historical cell site information for lack of qualification. Federal Rule of Evidence 702. Detective/Agent Johnson does not have the requisite knowledge, skill, training, experience, or education to testify as to the foundation or reliability of the evidence he intends to introduce, nor do any of his law enforcement colleagues at the FBI. Motion to Prohibit law enforcement from testifying as experts as to an/all Geofence or reverse - location historical sell site information for lack of reliability. The evidence to be introduced, specifically regarding the existence of the Defendant at a certain location at a certain date and time, is the product of unreliable methods of analysis and production, and those unreliable principals and methods were unreliably applied. Federal Rule of Evidence 702(c)(d). FRE 901 Motion to Prohibit introduction of CSLI or geofence reverse location data/information. The evidence to be introduced cannot be sufficiently authenticated because its analysis cannot be shown to have an accurate result n/or an accurate conclusion. Because the Government cannot produce evidence sufficient to support a finding that the location data is reliable, it should not be admissible. Federal Rule of Evidence 901(a). Page - 7

Voir Dire The main focus points to think about when examining potential jurors: A. how much do they know about this technology B. planting a seed of doubt about the technology (or at least the way it was used) Always remember this:

And

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Motions that are written and filed for our clients in criminal cases can be very effective in helping obtain a both a fair trial and justice. I have always prepared my own motions, briefs, appellate briefs, and various other documents regarding my clients’ cases. When appropriate I have used legal services such as Westlaw or FindLaw. Today Google scholar can be helpful and it is free. I have had some success with this approach. I have also used software programs such as PowerPoint, Photoshop, Timeline Maker Pro, Adobe Premier and Camtasia for videos, and Snagit for screen clips and graphics. I use these programs or apps to create or to capture various graphics to enhance motions, PowerPoint Slides, timelines, and sometimes videos related to a case. I strongly believe the common phrase “a picture is worth a thousand words” is accurate. Screenshots, pictures, videos, and graphic images are like jet fuel for communication. They can get your point across instantly without having to provide additional, written context. There are studies that indicate that 67% if people say that they understand information better when presented visually and that the human brain processes visuals 60,000 times faster than text. Criminal defense attorneys and trial lawyers are communicators. Accurate and simplified graphics can help us get our message across in defending clients. Several years ago I began using a simple and inexpensive software program named Snagit by TechSmith. This program allows you to capture screen images, edit the captured image, and deliver results for $ 49.95. NO. 416-81338 IN THE MATTER OF

JOHN DOE

IN 416th JUDICIAL DISTRICT

COURT OF

COLLIN COUNTY, TEXAS

MOTION FOR CONTINUANCE TO THE HONORABLE JUDGE OF SAID COURT: Now comes the Defendant, John Doe, in the above entitled and numbered cause by and through his attorney of record, E. X. Martin, and files this his Motion for Continuance and in support thereof would respectfully show unto the Court as follows: I. Defendant’s attorney injured his back on November 29, 2009, and had surgery on November 30, 2009. As a result of both the injury and surgery he of the opinion that he is not physically able to participate effectively in a jury trial at this time. See Motion Exhibit A set forth below.

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II. (Not sought for delay) Defendant’s attorney is currently in a physical therapy program with Stajduhar Physical Therapy located in Bedford, Texas, and making progress. Defendant’s attorney respectfully requests that this case be reset to a later date in June or July of 2010, to provide him a little extra time to recover from back surgery. This motion is made not for the purpose of delay but only that justice may be done. WHEREFORE, premises considered, the Respondent prays that his motion for continuance be granted and that this cause be continued on the docket of this Court. Respectfully submitted,

E. X. Martin, III Attorney for Defendant State Bar # 13114500 8828 Greenville Avenue Dallas, Texas 75243 (214) 343-7400

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STATE OF TEXAS

COUNTY OF DALLAS

§ § § §

BEFORE ME, the undersigned authority, on this day personally appeared E. X. Martin, III, who, being by me duly sworn, says upon his oath as follows: "My name is E. X. Martin, III. I am the attorney for the Defendant John Doe in the above entitled Motion for Continuance. I have read and examined the motion to be used in said cause and hereby state that all of the allegations and facts contained therein are true and correct."

/s/ E. X. Martin, III E. X. Martin, III Attorney for Defendant

ORDER On this the day of February, 2010, the foregoing Motion For Continuance was presented in open court and the request for the same is (GRANTED) X (DENIED) .

____________________ Judge Presiding

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II. Screen Capture Software Enhance Your Motions With Pictures & Graphics

TechSmith I was retained recently to represent a person who had been indicted in a federal health care criminal case. The AUSA had agreed that he would give me the relevant documents, photographs, etc. regarding the case. He asked me to mail him a thumb drive and he would transfer discovery documents and other evidence to the thumb drive and mail it back to me. I mailed him the thumb drive and thought all was well until I received the following email from the AUSA.

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I purchased a thumb drive and I mailed it to the AUSA from the U. S. Post Office a short distance from my office. I thought all was well. Wrong! Within a few days after I received the AUSA’s email asking me to send it to him I was contacted by a detective from the Dallas Police Department regarding a person they arrested trying to cash altered and forged duplicate of one of my law office bank checks that I had mailed on the same date drive.

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After I figured out what had delayed the mailed thumb drive I emailed the AUSA and explained the situation as best I could. I have inserted a copy of the email explaining the delay and he responded “No worries”.

I prepared a new Motion To Continue predicated on the lost time due to the stolen and forged check.

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I use Snagit to capture various graphic images and photographs to insert in motions, letters, documents, email and txt messages, and PowerPoint slides. See the following examples:

I am currently working with Ft. Worth criminal defense attorney Bruce Ashworth. I inserted a graphic image of a map to Bruce’s office in an email to help our client find his office.

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I frequently insert relevant graphic in motions, letters, email and text messages. The following graphic was emailed to a client to show him that his case was not filed.

In another case I sent the following graphic to a client to help them better understand how we were trying to get his case dismissed for the State’s failure to afford the client a speedy trial.

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Timeline Graphics Included In The Motion

Arrest was in December, 2014 and client was released on bond shortly after her arrest. I included the following graphic to support our argument that this case based on the right to a speedy trial concept.

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I obtained the following timeline graphic by using TimeLine maker software. I used Snagit to copy an image of the timeline graphic by using the Snagit screen clip program.

Macy Jaggers and I filed a Motion To Dismiss November 10, 2019, alleging right to speedy trial had been violated by the length of the delay citing Barker v. Wingo, 407 US 514, 92 S. Ct. 2182 (1972), Shaw v. State, 117 SW 3d 883 (Tex.Crim.App. 2003), and Harris v. State, 827 S.W.2d 949 (Tex.Crim.App. 1992). Also argued that because the delay in this case is nearly 5 years, this factor weighs heavily in favor of the Defendant. The second Barker-Wingo factor is the reason for the delay. Infra. “The State bears the burden of justify the delay.” Guerrero v. State, 110 S.W. 3d 155 (Tex.App. – SanAntonio, 2003, reh’g overruled). In this case, the delay appears to be negligence, in that, the case was not filed until 17 months after the Defendant’s arrest and still has not received a court setting some 43 months later. “Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.”

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I make the timeline by entering the relevant dates in the Timeline Maker Pro software. I then use the screen clip software, Snagit, to capture the time line, save the graphic in a file, and then insert the graphic / screen clip into the motion.

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Jewelry Store Robbery

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Motion For Instructed Verdict Movie Clip From DWI Video

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DWI Video Clip Capture

Perfect!! Grand Jury Packet

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No Billed!

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Final Grand Jury Graphic !!

NO BILLED!

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Part III General Background Regarding Cellphone Forensics

I read a marketing article recently which stated that there are more than 7 billion people on the planet. 5.1 billion of them own a cell phone, but only 4.2 billion own a toothbrush. Cellphone and internet connected smartphone use has increased tremendously over the last decade. Additionally, the utility and capabilities of cellphones and / or smart phones has increased beyond almost anyone’s expectations. I frequently refer to my cellphone as “a computer with a phone in it.” It is an electronic device that has much more ability than just making phone calls. I also tell young attorneys that all they need to start their law practice is a law degree and a smart phone. Today a smart phone can assist attorneys with calendar and contact management, marketing, legal research, credit card payment processing, document access and scanning, internet access, email and texting, power point or key note presentations, remote access to another computer, internet document backup,

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file access and transferring through “cloud computing”, and photographic, video, and audio recording capability. Various types of digital evidence (text messages, photographs, geo-locational data, etc.) extracted from cell phones is being used in the prosecution of criminal cases. For this reason it is important for criminal defense attorneys to be familiar with what can be obtained from a forensic examination of a cell phone by a Cellebrite or similar device. Law enforcement recognizes that cell phones hold enormous amounts of data and thus they have become attractive targets for their evidentiary value. Just as cell phones and smart phones have increased their processing power and utility, devices that are capable of forensically examining these devices have also become much more sophisticated. One such device is the Cellebrite UFED Touch. This device is made specifically to extract, decode, and analyze data from mobile devices. It performs physical, logical, file system and password extraction of all data (even if deleted) from smartphones, portable GPS devices, tablets and phones manufactured with Chinese chipsets. The Cellebrite allows law enforcement officials to crack suspects’ mobile phones in what is now called a “cell phone dump” and mine them for incriminating information. The Cellebrite also allows private forensic examiners to examine the data to find information that is helpful to the citizen accused. While cellphones are both useful and helpful to ordinary people, unfortunately they are also used directly or indirectly in the commission of criminal offenses. They are becoming a crucial source of evidence for law enforcement and for criminal defense attorneys. The widespread use of cell phones has resulted in the development of forensic extraction devices and their software that law enforcement and forensic computer examiners can use to examine a defendant’s mobile phone for incriminating evidence. This technology can also uncover exculpatory evidence for the defense. Cell phones today hold immense amounts of personal information in which arrestees conceivably have significant privacy interests. Cell phones equipped with GPS navigation generate geo-locational information (GEO tags) that can be located and extracted to determine the location of the cellphone or even produce a location tracking map of specific cell phones. This information or evidence may also determine the types of activities a person engages in at a particular location. Most people do not realize that, when they move about or travel with a cell phone, they may well be creating a detailed record of their whereabouts. Law enforcement is well aware of value of geo-locational data with respect to criminal cases. Law enforcement can subpoena tracking records from cell phone companies when investigating a particular individual or criminal offense.

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An article in The New York Times on July 12, 2012, stated that “cell phone carriers reported that they responded to a startling 1.3 million demands last year from law enforcement agencies for cell phone subscriber information seeking text messages, caller locations, and other information in the course of investigations.” Furthermore, law enforcement officers are now routinely conducting forensic examinations or “cell phone dumps” on cell phones seized subsequent to an arrest or search. The evidence obtained from a person’s cell phone can be used to corroborate evidence obtained from cell phone carriers or vice versa. Generally the examinations are conducted using the popular and powerful Cellebrite device shown below.

www.cellebrite.com The Cellebrite is a very advanced smart phone forensic analysis tool. It allows the user to extract call activity, contact lists, calendar information, voice mails, text messages, photographs, videos, software applications (apps), passwords, geo-locational data gained from cellphone towers, Wi-Fi hotspots, and more. The device can also download copies of a smart phone’s existing, hidden, and deleted phone data, including call history, text messages, contacts, images, and geotags in a short time span. The Cellebrite device allows the user to conduct quick, easy phone searches and this device is wide acceptance with all law enforcement agencies. The Cellebrite’s makes it easy for law enforcement officers to conduct these intrusive cell phone searches is a hot button issue with the ACLU and other individual privacy watchdogs.

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Part IV. Forensic Examinations Of Cellphones – Cellebrite

Cellebrite UFED Touch Device Cellphone forensics is a branch of digital forensics relating to recovery of digital evidence or data extraction from a mobile device under forensically sound conditions. It can also relate to any digital device that has both internal memory and communication ability, including PDA devices, GPS devices, thumb drive, and tablet computers. The use of phones in crime was widely recognized for some years, but the forensic study of mobile devices is a relatively new field, dating from the early 2000s. The widespread use of cellphones (particularly smartphones) on the consumer market caused a demand for forensic examination of the devices, which could not be met by existing computer forensics techniques. Today, smart phones can be used to save several types of personal information such as contacts, photos, calendars and notes, SMS and MMS messages. Smartphones may additionally contain video, email, web browsing information, location information, and social networking messages and contacts. As mobile device technology advances, the amount and types of data that can be found on a mobile device is constantly increasing. Evidence that can be potentially recovered from a mobile phone may come from several different sources, including handset memory, SIM card, and attached memory cards such as SD cards. This data or information can have evidentiary value in a criminal case. Traditionally mobile phone forensics has been associated with recovering SMS and MMS messaging, as well as call logs, contact lists and phone IMEI/ESN information. However, newer generations of smartphones also include wider varieties of information; from web browsing, Wireless network settings, geolocation information (including geotags contained within image metadata), e-mail and other forms of rich internet media, including important data – such as social networking service posts and contacts – now retained on smartphone ‘apps’.

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Data Acquisition Types Cellphone data extraction is commonly classified according to which extraction methods are more technical and “forensically sound.” The completeness of the cellphone data extraction can depend on the sophistication of the software used for the examination. A thoroughly sound forensic examination of a cellphone can be timely. Manual Analysis Of Cellphone Data The forensic examiner utilizes the cellphone’s user interface to investigate the content of the phone’s memory. Therefore the device is used as normal, with the examiner taking pictures of each screen’s contents. This method has an advantage in that the operating system makes it unnecessary to use specialized tools or equipment to transform raw data into human interpretable information. In practice this method is applied to cell phones, PDAs and navigation systems. Disadvantages are that only data visible to the operating system can be recovered; that all data are only available in form of pictures; and the process itself is time-consuming. Logical Analysis Logical acquisition implies a bit-by-bit copy of logical storage objects (e.g., directories and files) that reside on a logical store (e.g., a file system partition). Logical acquisition has the advantage that system data structures are easier for a tool to extract and organize. Logical extraction acquires information from the device using the original equipment manufacturer application programming interface for synchronizing the phone’s contents with a personal computer. A logical extraction is generally easier to work with as it does not produce a Page - 35

large binary blob. However, a skilled forensic examiner will be able to extract far more information from a physical extraction. Physical Analysis Physical acquisition implies a bit-for-bit copy of an entire physical store (e.g. flash memory); therefore, it is the method most similar to the examination of a personal computer. A physical acquisition has the advantage of allowing deleted files and data remnants to be examined. Physical extraction acquires information from the device by direct access to the flash memories. Generally this is harder to achieve because the device original equipment manufacturer needs to secure against arbitrary reading of memory; therefore, a device may be locked to a certain operator. To get around this security, mobile forensics tool vendors often develop their own boot loaders, enabling the forensic tool to access the memory (and often, also to bypass user passcodes or pattern locks). Generally the physical extraction is split into two steps, the dumping phase and the decoding phase. A physical analysis may well allow the recovery of additional evidence. I recently participated in a case where the law enforcement agency did a logical analysis of the seized smartphone. I had my forensic expert conduct a Physical Analysis and we recovered additional evidence including: 1. 2. 3. 4. 5.

15, 000 additional images 40+ additional videos 720 audio files 12,000+ locations 40+ MMS messages and 28000+ text files

I have worked with friend and computer expert, Lance Sloves, on several cases involving electronically stored information that has been obtained from a defendant’s smart phone. Recently I had Lance do a cell phone dump of my iPhone 5 for this paper and I was able to make some computer screen snap shots which I believe demonstrate the Cellebrite’s extraction and analyzing capabilities. I am reproducing the screen snap Page - 36

shots that I made because I believe they will be helpful to the defense bar in understanding what can be obtained by the Cellebrite device. The photographs below show the Cellebrite kit containing various cables and connectors than can be used to extract data and information from a variety of mobile devices including older legacy phones and smartphones such as the iPhone, Android, BlackBerry®, Nokia, Windows Mobile, and Palm.

The next photograph shows the iPhone 5 connected to the Cellebrite UFED Touch at the start of the cell phone dump of this device.

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The following photograph is of the desktop computer that was used in conjunction with the Cellebrite device during the examination of the iPhone 5 in this particular example. The Cellebrite is connected to a desktop or laptop computer using a USB cable to transfer the extracted data. The Cellebrite Physical Analyzer software runs on the desktop computer and will expose every segment of a device’s memory data and export this data into an easy to use software program that helps one organize, analyze, and understand the extracted data and information. The following screen snapshots were taken from the monitor of this computer and are reproduced here to help one understand the extraction process and also how the extracted data is organized in a manner that helps you drill down to, organize, and understand the information that is important to your client in a particular case.

The following graphic image is the Cellebrite Physical Analyzer & Extraction Summary window.

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Well Formatted Report This graphic should give you a pretty good idea of the type of information that you can extract from a smart phone. The column on the left side of the graphic under the Analyzed Data tab lists Bluetooth Devices, Calendar, Call Log, Chats, Emails, Installed Applications, IP Connections, Locations (10,344), Maps, Passwords, Searched Items, SMS Messages, User Accounts, Wireless Networks (44). Under Data files you have images (47,8007), Videos (48), Audio (911), Text (713), Databases, Configurations, and Applications. At the bottom of the previous graphic and the cut out graphic below you can see the icon buttons that can be used to access specific data by touching the icon.

At the end of the data analysis process, the Extraction Summary appears in the data display area of the Physical Analyzer software as depicted in the following graphic. This graphic should give you a good idea of what type of data can be extracted from a smartphone.

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I find this next graphic image particularly interesting. It is an extraction summary of calls made from the iPhone and received in both spreadsheet format and graphically. The spreadsheet highlights calls to and from and missed from my friend Justice Jim Moseley. Seven calls are listed and bar graph shows one incoming call, four outgoing, and two missed calls. You can also see the list of phone numbers, related name, total for each individual both incoming, outgoing, and missed. It is easy to see how helpful this information could be in a particular case.

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The following graphic displays various text messages received on the iPhone. I consider this image particularly important because text messages are being used is some manner in trial in almost every criminal case. This graphic should give you some idea of how a forensic exam of a cell phone could help you find the text message you need and pinpoint it as to time and place.

Text messages and video calls exchanged between a defendant and a complainant have recently been held to constitute telephone communications within the meaning of Tex. Penal Code § 42.07(a)(4) and an Page - 41

electronic communication under section §42.07(7). The appellate court held that the text messages and video calls exchanged between the appellant and the complainant were telephone communications as contemplated in the Texas Penal Code and tha the evidence was legally sufficient to support the appellant’s conviction for harassment. See Perone v. State, 2014 Tex.App. LEXIS 4078 (Tex.App.-Houston[14 Dist] April 15, 2014. “Text messages and video calls exchanged between appellant and the complainant were telephone communications within the meaning of Tex. Penal Code § 42.07(a)(4), and the evidence was legally sufficient to support appellant's conviction for harassment under this provision of the Penal Code.” A forensic analysis of the cellphone and / or computer in such a case could be helpful to determine the authenticity of the prosecution’s electronically stored information (text messages). This next graphic image pertains to location information gathered from various sources such as cell towers, media locations which can be photographs with embedded geo-locational information, and Wifi networks. When I was reviewing some of the data pertaining to the iPhone 5 accessing wireless networks, I notice that one wireless connection was from the Westin Beach Resort in Fort Lauderdale, Florida. On February 17, 2012, I spoke at an NACDL seminar in Fort Lauderdale and stayed at the Westin Beach Resort and had in fact accessed the hotel’s wireless network with the iPhone. The extracted data confirmed my presence or at least the presence of my specific phone at the Westin Beach Resort in Fort Lauderdale. It is easy to say how such information could be used to prove a point in a trial. It is possible to export this data into a KML file that can then be opened in Google maps. It is easy to see how helpful this type of evidence could be if you are trying to show the tracking of an individual or a mobile device.

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Part IV. Current Search Issues Regarding Cellphones

Cell Phone Search In Texas Now Requires A Warrant

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TEXAS COURT OF CRIMINAL APPEALS

Texas Court Of Criminal Appeals rejected the argument that a modern day cell phone is like a pair of pants or bag of groceries, for which a person loses all privacy protection once it is checked into a jail property room. Court held that a citizen has reasonable expectation of privacy in contents of cell phone. Hence: Search Warrant Required !!!!!

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Supreme Court Of The United States

Part V. iPad & iPhone For The Defense

I purchased an iPhone four years ago. I had never owned or used an Apple computer prior to getting an iPhone. The iPhone was also the first smart phone that I had owned or used. I immediately liked the device and I particularly liked having both contact information and calendar information for my law practice on the iPhone. I know that there are other smart cell phones that are on the market, but the iPhone is the one that got my attention. As a real baby boomer, the big and well lit screen and the ability to select type size helps me see and read the information without reading glasses.1 My first iPhone really helped with me in my law practice. The iPhone contact data base essentially allows me to have my entire practice in the palm of my hand. If I need to call a client, I always have all of their contact information with me. I can call clients, text message them, or send an email to them regarding their case using the iPhone. I have also used the iPhone camera to photograph

My father was a pilot in W.W.II. He came home from the war in December, 1945 and I was born on September 9, 1946.

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a courthouse and text the image to a client who is unfamiliar with the building and its location. Additionally I can access the iPhone’s calendar should I need to inform a client the date of their next court appearance.

I began using the iPhone and its software apps to help me with clients and cases in ways that I never imagined. So when the original iPad hit the market, it was a no brainer. I purchased an iPad and later an iPad 2. The iPad has proven to be a great tool for use in my practice. I have been on the CLE lecture circuit for 30 years and wanted to put together a presentation for criminal defense lawyers demonstrating how to use the iPad and iPhone in their respective law practices. I began calling my presentation for CLE seminars iPad & iPhone For The Defense because these two devices and related software applications are particularly helpful to criminal defense attorneys. Today I keep all of my client information on my iPhone, iPad, and office desktop computer. My desktop is a Windows computer. It is easy to transfer contact and calendar information from the desktop to the iPad and iPhone. I can also prepare PowerPoint presentations that I intend to use in a trial on the desktop and then easily transfer the PowerPoint to my iPad using the iTunes interface. I backup my data and files using a cloud computing service such as Dropbox™ along with an external hard drive.

Trial Presentation Apps For The iPad The following information pertains to my favorite iPad software applications that have really helped me in my practice. I hope others find these apps as useful and helpful as I have.

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The iPad was released in April, 2010. I purchased my iPad on May 17, 2010. I now use the iPad instead of my Palm Pilot to track and manage court settings, appointments, and contact information when I go to court. When I return to the office, I sync the calendar and contact information with my desktop computer using the iTunes interface. However, my favorite use of the iPad and that which I feel would be most helpful to other criminal defense attorneys is using the iPad for PowerPoint presentations at trial. The Keynote app is Apple’s version of PowerPoint. PowerPoint files are can be used in Keynote. You can also prepare presentations using just the iPad’s Keynote applications. I no longer use a laptop for courtroom PowerPoint presentations but instead use the iPad. The iPad is light, easy to carry, and turns on instantly. You can view the current PowerPoint slide on both the iPad screen and on the courtroom equipment. The iPad is compatible with all of the courtroom projection systems that I have encountered in both State and Federal court. You can prepare a PowerPoint using Windows software and easily transfer it to the iPad. If necessary, you can edit the transferred PowerPoint using the iPad’s Keynote software.

PowerPoint Presentations & The iPad

You can use your iPad to show your PowerPoint presentations in court. I recently picked a jury in a DWI case and used my iPad connected to the courtroom projection system to show my voir dire PowerPoint presentation to the jury. The following picture shows how I connected the iPad to the court projection interface. You need the Apple iPad VGA adapter and a male to male VGA cable as shown below. You can buy the VGA video cable on line at www.vpi.us/cable-vga.html. A 6 foot cable should be fine. Page - 48

VGA Video Cable – Male-Male

iPad Screen During PowerPoint /Keynote Presentation You will need to load the Keynote application on to your iPad. Keynote is Apple’s version of PowerPoint. The KeyNote application will convert, read, and display PowerPoint presentations on the iPad. The following graphic shows how you use the iTunes interface to get your PowerPoint file into the Keynote application on your iPad. Open iTunes and then click on the Apps tab. Scroll down to the File Sharing section of the iTunes interface. This section lists the applications which can transfer documents of files between the iPad and your computer.

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Next click on Keynote under the Apps column. This will bring up the Keynote Documents window as shown above. Click on the Add… button a window will open from which you can locate the PowerPoint presentation you wish to import into your iPad as shown below.

Highlight the PowerPoint file that you wish to add and click the Open button. This will transfer the file to the Keynote Documents column. Connect your iPad to your computer and open the Keynote application. Touch the download icon as depicted in this image and then press the Copy from iTunes button.

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Select the PowerPoint presentation you want to import from iTunes from the popup window as shown below. In this example I am copying the SouthTexas PowerPoint file.

The selected PowerPoint presentation will be imported into your iPad.

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Equipment For The Courtroom Most courtrooms today are equipped for computer and video projection and have projectors and screens installed for use in trial. For presentations in courtrooms that do not have A/V equipment installed I suggest purchasing a projector. The Epson MegaPlex MG-850HD iDevice projector for around $700.00 is a new product that is compatible with both the iPhone and iPad. The big improvement for this projector is the iDevice dock and it has built-in 10 watt stereo speakers that deliver quality audio.

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The following graphic shows a PDF file exhibit of a motion and how you can use the rotate button to position the document as you desire.

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I have just begun to use the interesting and powerful trial presentation. I will modify this paper as a learn more about Exhibit A.

Getting Paid !

The Square iPhone or iPad application by Square, Inc. is probably the most important software app because it can help your clients pay for your legal services and thus keep the office doors open. This application is also works on the Android operating system.I had thought about getting a credit card merchan account but was put off by the process. My wife and I were at an art fair in Dallas and bought a blown glass piece for our collection. We paid using my credit card and the artist simply swiped my card using what I now know to be the Square card reader that was attached to his iPhone. The purchase amount was entered and I signed on the iPhone screen with my finger. I instantly received an emailed receipt for the purchase on my Page - 54

iPhone. I was quite impressed and signed up for a Square account that night from my home computer. I received the Square card reader within a few days and recorded my first payment shortly thereafter. I know that attorneys will find this application helpful.

Square is the simplest way to accept credit cards. The Square application allows you to accept credit card payments quickly and easily using the iPhone or iPad or Android OS. Square charges a 2.75% fee for their service. The card reader is free and there are no monthly fees or other hidden costs. Square currently accepts US-issued Visa, MasterCard, American Express and Discover cards, all with the same flat rates.You begin by creating a Square account using the company’s web page. After you create your Square account, it is a simple process to link your account with Square so that your charged funds can be deposited following the transaction with your client. The first fee that I charged using Square was deposited in my law firm account within a day and I was notified of the direct depoist by an email from Square. I received the following messages from Square when the funds were deposited. Square also has a new and improved Square Reader which performs better, is twice as thin, a slightly longer track for running cards, and thus is more reliable. The magnetic stripe on your credit card stores data in two separate bands. The old Reader grabbed from just one. With their new custom read head, Square can grab both, which makes every swipe more accurate, and more likely to work on one try.

New Square Reader

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Old Square Reader (left) vs. The New Square Reader

The following web screen snapshot from the Square web page shows how simple it is to begin using Square to have clients pay your fee with a credit card.

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The following graphic explains how you link your bank account with Square so that funds are deposited directly into the account.

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To have your fee charged to the clients credit card you enter the fee amount on the initial Square application screen using the iPad’s virtual keyboard. The client signs on the screen using their finger as shown in this graphic.

The next step is to send the client a receipt for the payment as shown on the following graphic.

This application has been very helpful for me in my practice and has been an added convenience for clients. I think you will find this use if either the iPhone or iPad and the Square app helpful.

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Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: A Dirty Business: Drugs Speaker: Carmen Roe 440 Louisiana St Ste 1115 Houston, TX 77002 (713) 236-7755 Phone carmen@carmenroe.com Email www.carmenroe.com Website

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

A Dirty Business: Drugs

CARMEN ROE CARMEN ROE LAW FIRM PLLC 440 LOUISIANA ST, SUITE 1115 HOUSTON, TEXAS 77002 713.236.7755 WWW.CARMENROE.COM CARMEN@CARMENROE.COM

SUPPLEMENTAL MATERIAL: Defeating DRE with Scientific Studies & Common Sense WRITTEN BY DOUG MURPHY, DOUG MURPHY LAW PC

RUSTY DUNCAN ADVANCED CRIMINAL LAW COURSE JUNE 16 – 18 2022 SAN ANTONIO, TEXAS

Carmen Roe is an appellate and trial attorney with her own law firm in downtown Houston. She received her undergraduate degree from the University of Houston and later, her Juris Doctorate from St. Mary’s University School of Law with a specialization in criminal law. Immediately after graduation, Ms. Roe began working exclusively in criminal defense. Before opening her own law practice, Ms. Roe interned at the Texas Court of Criminal Appeals and clerked for Schneider and McKinney where she concentrated on appellate and post-conviction relief. For the last 17 years of practice, Ms. Roe has owned her own firm where she specializes in criminal defense, including criminal trials, appeals, and postconviction writs, in both state and federal court. Ms. Roe is board certified in criminal appeals by the Texas Board of Legal Specifications. Among her numerous honors and areas of service, Ms. Roe was recently named a 2022 Texas Super Lawyer, 2022 Best Lawyers in America and Best Law Firms in America. She serves on the Board of Directors for the Texas Criminal Defense Lawyers Association (TCDLA) and National Association of Criminal Defense Attorneys (NACDL).

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DRUGS IN TEXAS Texas law enforcement arrested 82,597 people for driving while intoxicated (DWI) in 2020, many of these arrests were based on drugs rather than alcohol, some were a combination of drugs and alcohol. Only 1,434 were dismissed while 9,323 pleaded guilty and 6,909 were convicted for the offense charged.1 Many of these arrests are based on intoxication associated with drugs and other forms of lawful and unlawful substances (other than alcohol). Unlawful drug intoxication is evaluated by law enforcement by using the drug recognition evaluation (DRE). In addition, law enforcement draws blood to prove intoxication. Law enforcement officers are trained to identify drugs as an intoxicant and are sometimes referred to as “drug recognition experts”. Most defense lawyers are aware that these basic classes do not equate to the necessary qualifications for an expert who can testify to medical conclusions involving drug impairment. In every drug case, objections should be raised at every stage of trial when the State attempts to introduce evidence to show intoxication including your client statements, observations or testing by law enforcement as well as any blood test results. The caselaw in this area can be helpful. Below are some of the cases you should add to your trial notebook. SIGNIFICANT DRUG CASES As an initial matter, not enough cases are out there on drug recognition experts and other evidence that comes into show intoxication. This means lawyers are not raising these issues pretrial or at trial on DWI cases. To assist the busy practitioner, I have provided a summary of the cases and the citation to include in a motion to suppress, trial objection or jury charge. Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) The best and first case to challenge the State’s evidence based on intoxication where it’s a combination of drugs and alcohol is Layton v. State. Layton was charged with DWI based on the introduction of alcohol. The defendant made statements at the scene that he had taken Xanax and Valium earlier that day. The State attempted to bring the statements into evidence to show he was intoxicated. There were no breath or blood samples. At trial, Layton’s lawyer objected that his statements about prior drug use were 1

Texas Department of Public Safety 2021 Crime Records Service.

irrelevant under Rule 401 because it did not make a fact of consequence more or less likely. Further, it was argued that the statements were not relevant without a reliable and competent scientific evidence. After the case was affirmed on appeal, the Court of Criminal Appeals granted review and held the trial court erred in allowing the statements that he used Xanax and Valium because it was not relevant. The Court reasoned that Layton’s contention that evidence of prior drug use was not irrelevant per se but that relevant is conditional upon proof that it is sound and reliable. Further, the Court stated that evidence derived from a scientific theory must meet the three Kelly2 requirements before it is admissible. Here, there was no evidence of the dosage, the exact time of ingestion or the half-life of the drug in the body. There was also no testimony that the officer had any medical knowledge regarding use of Xanax and Valium or its combined effect with alcohol. For the practitioner, Layton says that a non-expert with no knowledge of timing, dosage, or metabolic effect of a drug cannot testimony at trial. It also holds that the presence of drugs is not relevant in a DWI where intoxication is alleged to be alcohol only.

DeLarue v. State, 102 S.W.3d 388 (Tex. App-Houston [14th Dist.] 2003, pet denied). The next case to know is DeLarue which deals with the admissibility of evidence under Kelly, Daubert and a Rule 403 analysis. In this DWI accident case DeLarue was alleged to have marijuana in his system at the time of driving. The State introduced evidence that there was marijuana in DeLaure’s blood. The trial court denied a request for a hearing to determine the reliability fo the evidence. The court of appeals held that where no expert testified and the State could not extrapolate the life of the drug testimony it was inadmissible. The court reasoned that the testimony was more prejudicial than probative under Rule 403. Further, the Court held that a qualified expert must testify regarding any scientific or specialized evidence offered at trial and a hearing is required under Rule 702 to determine if the evidence is reliable.

Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App 1992).

Here, the trial court’s failure to hold a hearing prior to the admission of evidence about the reliability of the State’s marijuana evidence to show evidence of DeLarue’s intoxication and behavior was error. Further, the court held that the State failed to “quantify the presence” to show that at the time the marijuana entered his bloodstream he was under the influence of the drug at the time the accident occurred. No attempt was made to show causation between the accident and the presence of marijuana in his body. Delane v. State, 369 S.W.3d 412 (Tex. App – Houston [1st Dist.] 2012). In Delane, the arresting officer’s testimony did not reveal that he had expert knowledge about the medications that defendant had taken or their effects. The officer conceded that he was not certified as a drug-recognition expert, he did not conduct the standard 12-step examination that would have been conducted by a drug-recognition expert, and he did not contact such an expert after defendant refused a breath test. The Court held it was reversible error for the arresting officer to testify regarding his opinion on defendant’s prescription medications in conjunction with his ultimate opinion on defendant’s intoxication. The officer’s testimony was neither relevant nor reliable and the officer was not qualified to offer such detailed testimony. Tullos v. State, 2011 WL 3925586 (Tex. App. Beaumont, Aug. 24, 2011). The Court of Appeals of Beaumont reached a similar but distinguishable conclusion in Tullos v. State. There, the arresting officer opined based on his “expertise and training as a DRE” that the defendant was “intoxicated due to the introduction of a drug from the dissociative anesthetic group.” While the arresting officer was a certified DRE at the time of trial, he was not at the time of the defendant’s arrest. In addition, like the court in Delane, the Court here determined that the trial court abused its discretion by admitting testimony of the officer’s identification the presence of a certain type of drug. However, in its harm analysis, the court stated: Here, the State was not required to prove the specific drug or the specific drug group that caused [defendant’s] intoxication. Considering the unobjected to testimony expressing the view that [defendant] was intoxicated due to the ingestion of drugs, [defendant’s] statement that he was not being treated for a mental condition, the testimony concerning [defendant’s] erratic behavior immediately before and after the stop, [defendant’s] 5

refusal of blood testing, and [defendant’s] treatment for detoxification after he was taken to jail, we conclude that the trial court's error in allowing [the officer’s] testimony that [defendant] was intoxicated due to the introduction of a drug from the dissociative anesthetic group would have had only a slight effect on the jury’s verdict. Although the Court found the officer’s testimony of the type of drug was inadmissible, the error was harmless because the officer’s testimony regarding the defendant’s other signs of intoxication were properly admitted. DRE’s simply do not possess the scientific or technical training and knowledge required to demonstrate that the DRE program is relevant and reliable to be admissible as an “expert” opinion under rule of evidence 702. Few states, like Texas, have case law or statutes that concerning the admissibility of DRE evidence. DRUG PENALTIES AND CATEGORIES Under Texas drug laws, offenses and punishments for drug possession fall into four groups according to drug classification. The groups are called Penalty Group 1, 2, 3 and 4. Marijuana is in its own group. The charges for drug possession in each penalty group varies. At a minimum, the charge for drug possession in Texas is either a “Class B” or “Class A” misdemeanor. This carries a penalty of up to one year in jail and a fine of up to $4,000, depending on the type of drug. For example, if you’re in possession of a drug that falls into Penalty Group 1, the charge may be considered a misdemeanor with one to two years in jail and a fine to be determined in court. However, this charge may increase from two years to a maximum of life imprisonment plus fines of up to $250,000 for possession of a larger amount of the same substance, say 400 grams or more. With larger amounts of certain substances, the charge may be a first-degree felony for “drug possession with intent to distribute.” In addition to the quantity of drugs you have, other factors will determine the severity of the charge. This includes whether it’s considered “intent to deliver.” These factors may also include: • • • •

How you store or conceal the drug If you possess any drug paraphernalia (i.e., scales) Having large amounts of cash Having past convictions and/or prior offenses.

Texas categorizes types of drugs as follows: Narcotics (drugs made or derived from the opium poppy): opium, morphine, codeine, hydrocodone (commonly known as Vicodin, Lorcet, Lortab), oxycodone (commonly known as Percodan, Percocet), fentanyl and carfentanil, among others. Depressants (drugs that slow body functions and are used as sedatives or tranquilizers to calm the nerves or help someone sleep): opiates (heroin), opioids (painkillers), barbiturates, benzodiazepines (commonly known as Alprazolam/Xanax, Lorazepam/Ativan, Diazepam/Valium and Temazepam/Restoril), chloral hydrate (commonly known as Somnote), a range of inhalants, and alcohol. Stimulants (drugs that speed up the nerves and make you more alert): cocaine, amphetamines (speed), and some inhalants, among others. Hallucinogens (drugs that alter perception, mood or emotion and thought): LSD (acid), PCP, marijuana (cannabis), mushrooms (psilocybin), ketamine and peyote or mescaline, among others. Drug Penalty Groups Drug categories fall into different penalty groups in Texas. Penalties can vary by whether you’re making the drug, selling it or possessing it. Penalty groups are as follows: Penalty Group 1: Opioids (including painkillers like codeine, (hydrocodone and oxycodone), opium derivatives and/or opiates (heroin and others), cocaine, methamphetamine, ketamine, LSD, mescaline, psilocybin, and similar hallucinogens. The penalties in this group start at 180 days to two years in jail and a $10,000 fine. They can go up to a maximum of life imprisonment (for possession of 400 grams or more) with fines up to $300,000. Penalty Group 2: LSD, Ecstasy (MDMA), PCP, psychedelic mushrooms and amphetamines The penalties in this group begin at 180 days to two years in jail for possessing less than one gram. You can get a maximum sentence of life imprisonment for possession of 400 grams or more, with fines up to $50,000. Penalty Group 3: Opioids and opiates not listed in Penalty Group 1, benzodiazepines and sedatives like Valium and others, anabolic steroids, methylphenidate (commonly known as Ritalin), and other prescription drugs that have either a stimulant or depressant effect and potential for abuse. The penalties in this group are a minimum of 180 days to two years in jail and fines up to $10,000. The maximum sentence is life in jail (for possession of 400 grams or more) with fines up to $50,000. Penalty Group 4: Opioids and opiates not listed in Penalty Group 1, and a range of prescription medications and various chemical compounds that have a potential for abuse. Penalties are similar to those for Penalty Group 3. Marijuana Group: Marijuana (cannabis) and synthetic marijuana or 7

synthetic cannabinoids (commonly known as K2 and Spice, among others). The minimum penalties in this group can be probation and mandatory drug treatment. Sometimes the charge is dismissed after successfully completing a treatment program. You could also get penalties ranging from 180 days in jail and fines of $2,000 for possession of two ounces or less. Even if you only have a small amount of marijuana, they’ll likely suspend your driver’s license for six months. Possession of more than two ounces of marijuana puts you at risk of penalties of one to 10 years in jail, and fines from $4,000 to $50,000. It is important to remember that in Texas the severity of a drug charge is highly variable depending on the circumstances of each case. TEXAS DRUG STATUTES

DRUG RECOGNITION EVALUATION (DRE): DEFEATING THE DRE WITH SCIENCE AND COMMON SENSE I.

Introduction

Every day a large percentage of our population lawfully ingests prescription or over-the-counter medication. These citizens are in danger of being wrongly arrested and convicted for DUI/DWI even though they are not drug impaired. Their danger of being wrongly arrested for DUI/DWI is because of so called “drug recognition experts” (“DRE”). DRE are ordinary police officers who simply received some limited amount of training on drugs and their effects and are being sold to the public as drug “experts”. DREs are not real drug experts and they, in reality, do not have the training or qualifications to make the medical conclusions on drug impairment that they do. Just because someone ingested medication does not automatically equate to being under the influence of that drug, or worse, impaired by that drug. Throughout history there have been drug experts, some have been based in science, while others have not. False experts with catchy names also made their mark on history, e.g. wizards and the medicine man. The historical lessen to be learned is that having a catchy title or flashy costume does not really mean the person is an expert—even if they or a government bureaucracy says so. It is within this framework of looking at things as they really are, instead of what they say they are, that we turn our focus on the police “drug recognition expert,” the “DRE”. Mere contemplation of the phrase “drug recognition expert” brings to mind the following questions that must be studied to determine the truth. Why was the DRE created? What is a DRE? For what purpose or need? By whom? Is DRE really an expert or is the name to market, sell or mask a non-expert witness with a false cloak of credibility? II.

Why was the DRE Created?

The DRE program was created to help overcome a credibility problem officers have with juries to obtain convictions in cases where suspects do not perform well on standardized balance and coordination exercises, but their breath alcohol test concentrations are below the legal per se limit. In the mindset of most police officers is the following question: If it wasn’t alcohol that caused the loss of normal mental and/or physical faculties, then what drug is causing it? The possibility of poor balance and coordination are excluded. 10

It’s absolute blind faith in field sobriety testing. The focus becomes medication/drugs consumed. In this regard, it is must be acknowledged in the DRE student manual that, like other police tools (SFSTs), “[t]he drug influence evaluation isn’t an exact science,”1 and that “DREs are not infallible, and neither are laboratories.”2 It is this credibility problem that caused the program creators to include the word “expert” in the officer’s title “drug recognition expert” even though they are only evaluators. Despite this self-proclamation, the DRE student manual correctly acknowledges that it is the court—and the court alone—who will decide whether the witness is actually an expert under evidence rule 702.3 Regrettably, some courts have abdicated their qualification role and have simply acquiesced to NHTSA’s expert self-proclamation. Defense practitioners need to be prepared to file a motion precluding the state and their witnesses from calling DREs experts, but rather calling them evaluators, or examiners.4 III.

The Genesis of the DRE

The Drug Recognition Evaluation (DRE) program was created by two Los Angeles Police Department Sergeants after concluding that medical doctors “typically receive little or no training in the recognition of specific signs of drug impairment, particularly at street level doses; therefore, they often were unable or reluctant to offer a judgment about a suspect’s condition.”5 Further, DRE program was created to overcome the limitations of blood and urine testing “because it isn’t possible to relate concentration to ‘impairment’ with any degree of reliability.”6 Blood and urine testing can only prove the presence of a drug, but neither can provide a quantified level that proves actual drug influence and impairment. Further, there is no standardized quantified level of any drug, except for alcohol, that has been scientifically determined to cause impairment in all individuals. To the police, the DRE program bridges the gap when they could not provide a reasonable and articulate suspicion that a person was under the influence of drugs where the subject passed a breath test. In a way, the DRE program is a cover up for the lack of reliability of the standardized field sobriety tests (SFSTS). On one hand, the officer relied on the SFSTS and believed impairment was observed, but then the breath test eliminated alcohol as the cause. Accordingly, two equally probable possibilities arise: SFSTS are not scientifically reliable or valid as an indicator of intoxication, versus

the person is impaired on something other than alcohol. The DRE program focuses solely on the second possibility and ignores the commonsense realities and shortcomings of SFSTS. In doing so, the DRE program blinds itself to the unreliability and unfairness associated with the SFSTS. Many defense lawyers, prosecutors, judges and jurors, erroneously accept the purported observations and the canned impaired statements of a DRE. Defense lawyers who represent allegedly drug impaired defendants must be prepared to challenge these purported “expert” witnesses so that prosecutors, judges—and most importantly, jurors—understand both the limitations and falsities of DRE evidence. This article cites, evaluates and analyzes the DRE manual by giving a brief overview directly out of the manual of the 12 step drug influence evaluation process; the seven categories of drugs involved, how these drugs affect and react with the human body; teaching notes to assist those in assessing whether the drug influence evaluation was conducted properly; and, what evidential weight, if any, the DRE evaluation should be given. IV.

What it takes to become a DRE

Before an officer can be a DRE, the officer must be certified to administer SFST and attend a 2 day DRE preliminary training course. At this course, officers are instructed how to administer a vital signs examination, i.e. checking blood pressure, pulse rate and temperature. The course also covers SFST administration, provides an overview of DRE procedures, and the effects of the drugs. Having completed the preliminary course, the officer is eligible to take the actual 7 day DRE course. The course covers the seven categories of drugs and the 12 step DRE procedures contained in the student manual. At the conclusion of the DRE School and 12 completed DRE evaluations, a written examination is given, where a minimum passing score of 80% required to receive a DRE certificate. Interestingly, the program allows the certified officer to apply his new training with an accepted 20% margin of error, yet suspects must perform at a level that allows almost no margin of error. Any error by a suspect will be accepted as impairment caused by drugs/alcohol. DREs are required to maintain a rolling log of every evaluation conducted, which also includes the toxicology results.7 The log is critical to both establishing the DRE's being recognized as an expert in court, and for

documenting DRE experience required for recertification. DRE are further required to maintain an updated resume which lists all training, readings which the DRE relies upon to base an opinion, formal education, any publications, and other relevant experiences. Of course, the main purpose of the resume is to enhance the credibility and consistency of DREs when testifying in court.8 Lastly, all DREs must biannually attend a minimum of eight hours of continuing education training in order to maintain certification. They must also conduct at least four drug influence evaluations within the two year period, with at least one evaluation directly supervised by a DRE instructor. V.

Overview of Drug Recognition Expert Procedures

In order for a DRE to reach an opinion that the individual is under the influence of a specific category of drugs, a 12 step chronological systematic and standardized process must be performed. The program instructs the DRE to never voice a conclusion based on any one element until the entire evaluation is completed. The 12 steps are: 1. 2. 3.

4. 5.

6. 7. 8. 9. 10. 11. 12.

the breath alcohol test interview of the arresting officer preliminary examination and first pulse eye examinations divided attention tests: a. Romberg balance b. walk and turn c. one leg stand – once on each leg d. finger to nose vital signs, and second pulse darkroom examinations of pupil size, and nasal and oral cavities examination muscle tone examination of injection sites, and third pulse statements, interrogation and other observations opinion of evaluator toxicology examination

A more detailed description of each step is discussed below: 1.

The Breath Alcohol Test 13

A breath test is conducted to determine whether alcohol is a contributing factor to the observed impairment. If alcohol is a contributing factor, the breath test determines whether the concentration of alcohol is sufficient enough to be the sole cause of the impairment. If the BAC score is above the legal limit, generally speaking, a DRE is not required because there is enough intoxication evidence to prosecute. If the BAC score is below the legal limit, a DRE is requested to conduct an evaluation to see if drugs are the cause of the impairment. Practice Pointer: From a defense perspective, your client’s cooperation should be noted that he/she cooperated fully because he/she had nothing to hide, i.e. no guilty mind. It is not uncommon for an inexperienced DRE officer to provide the breath test passing suspect with a Notice of Suspension/Temporary Driving Permit (DIC-25) despite the fact that there is no administrative license suspension for passing a breath test, even if the second specimen results are positive for the presence of drugs and/or alcohol. From a jury argument perspective, if an officer really had a belief that a person is impaired on drugs, only a blood specimen should have been requested. A blood test result has the greatest potential of producing some evidence to determine at the same time the blood alcohol concentration amount and whether a drug is present in a person’s blood stream, although a blood sample still cannot answer the question of drug impairment. A major problem with DWI/DUI enforcement is that poor balance is wrongly perceived as evidence of alcohol/drug impairment. The biggest fallacy among persons suspected of being impaired is that if the pass the breath test, they will be free to be on their way. That belief quickly dissipates when officers continue to investigate and use the DRE process as an excuse for their previous miscues. As the DRE manual readily acknowledges, “It is always possible that a person suspected of being under the influence of drugs other than alcohol may actually have consumed only alcohol.”9 2.

Interview of Arresting Officer

If the arresting officer is not a DRE, then the arresting officer is to request a DRE officer. The arresting officer is to share his observations of the suspect, any admissions or statements by the suspect, the circumstances of the arrest, and any drugs found in suspect’s possession, etc. “A few minutes spent in a careful discussion with the arresting officer can alert the drug recognition

expert to the most promising areas of investigation to be explored with the suspect.”10 3.

Preliminary Examination and First Pulse

The purpose of this step is to determine that it is in fact a drug—not an injury or medical condition—that is causing the observed impairment. This is the most crucial step in order to distinguish between drug induced impairment versus medical problems mimicking drug impairment. Determining whether medical conditions are the cause of impairment is critical, because there are many medical conditions, such as stroke, head trauma, shock, conjunctivitis, epilepsy, multiple sclerosis, diabetes, and others that produce effects that mimic drug impairment.11 “Some other medical conditions that may cause signs and symptoms similar to drug impairment include: carbon monoxide poisoning, seizures, endocrine disorders, neurological conditions, psychiatric conditions, and infections. There are also normal conditions which can affect vital signs, e.g., exercise, excitement, fear, anxiety and depression.”12 DREs are to make general observations and note the suspect’s face appearing flush, pale or perspiring, and breathing patterns. DRE also looks for ptosis, which medically means droopy eyelids. The manner in which the suspect speaks could also provide some evidence of the possible presence of certain types of drugs. If a medical or injury problem is determined, the DRE should not proceed with the DRE evaluation, but obtain medical attention for the suspect. Once medical and injury problems are ruled out, the DRE then assesses the suspect’s appearance and behavior for possible drug influence and takes the first pulse measurement. “The pulse rate can also be affected by anxiety, and it is common for an arrestee to experience anxiety while being examined by a police officer.” The pulse rate is measured three times, at the beginning, the middle and the end of the investigation to allow the suspect’s anxiety to “settle down” before the last measurement.13 Practice Pointer: Medical doctors agree that no DRE, without formal medical or pharmaceutical training, is actually qualified enough to make this type of determination. Further, not all suspects in an intimidating police environment will settle down. The stress and anxiety of an arrest can, and

most likely will, cause a suspect’s pulse rate, blood pressure, and temperature to rise or fall outside their normal levels. Keep in mind, there is generally a valid documented medical condition as the reason for taking the prescription medication, or over-the-counter medication. Officers usually gloss over the medical questions and fail to ask the appropriate in-depth questions that would provide the answers demonstrating the subject is not a candidate for proceeding forward with SFSTs or the DRE examination. The laundry list of medical conditions that mimic drug impairment is wide and should be thoroughly examined by the defense practitioner to determine if your client is even a candidate for DRE. Lastly, only 1 ½ pages of the DRE manual cover normal medical conditions that can mimic drug impairment. How in the world can that be sufficient training to allow a DRE to distinguish between medical and drug impairment? 4.

Eye examinations: HGV, VGN, Lack of Convergence

The DRE performs three separate eye movement examinations: (1) horizontal gaze nystagmus (HGN); (2) vertical gaze nystagmus (VGN); and, (3) to look for lack of eye convergence. The HGN and VGN are performed in the same manner as set forth in the National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Testing Student Manual (SFSTS). To check for lack of convergence, the DRE holds the stimulus out 1215 inches from the suspect’s face. The stimulus is then moved in a circle in front of the suspect’s eyes, to verify that the suspect is tracking the stimulus. The tip of the stimulus is then slowly pushed on the bridge of the suspect’s nose for approximately one second to observe the eyes. The stimulus is then removed from the suspect’s face. If one eye drifts away to the side instead of converging (or crossing) toward the bridge of the nose, lack of convergence is considered to be present. DREs are taught that the inability to converge (or cross) the eyes can be an indicator of possible presence of certain categories of drugs such as CNS Depressants, Inhalants, PCP, and Cannabis, however, “[i]t should be noted that there are many individuals whose eyes are unable to converge normally.”14 16

Practice Pointer: “Keep in mind that neither nystagmus nor any other elements of the drug recognition examination are intended to substitute for chemical testing.”15 Here, file a pre-trial motion to suppress the state and their witnesses from correlating any HGN/VGN, or angle of onset, results to a blood alcohol concentration or a high dosage of drugs.16 5.

Divided Attention Testing

This step repeats the roadside balance and coordination exercises performed before the arrest. These exercises are now repeated in a controlled environment as a part of the DRE evaluation. The DRE administers tests in the following order: Rhomberg Balance, Walk and Turn, One-Leg Stand (once on the left leg, and once on the right leg), and Finger-to-Nose. Practice Pointer: It is interesting that these “field tests” are now performed in a “controlled environment” to prevent outside sources from causing something less than normal on these balance and coordination exercises. 6.

Vital Signs Examination

The DRE checks the suspect’s blood pressure; temperature and pulse rate. This is the second time pulse rate is checked. Certain categories of drugs will elevate, depress or have no effect on vital signs. Pulse rate is checked for 30 seconds, with the number of pulse surges felt multiplied by two, which equals the pulse rate for one minute. Blood pressure is checked with a sphygmomanometer and a stethoscope. Practice Pointer: There are also normal conditions which can affect vital signs such as: exercise, excitement, fear, anxiety and depression.17 Just about everyone arrested will experience excitement, fear and anxiety going through the process. Some people who exercise regularly have normally lower pulse rates, whereas people who do not exercise much at all have normally higher pulse rates. Vitals signs, like cholesterol, can also be dictated by genetics. 7.

Darkroom Examination

The dark room examination is to check the pupils, nasal and mouth cavities. Pupils are checked to see any dilation or constriction of the pupil. The DRE uses a pupillometer card with different size dots measured in millimeters, which is placed next to the suspect’s eyes to estimate size of pupil. A. Estimation of pupil size in room light: The DRE has the suspect stare at an object other than a light source. The DRE then places the pupillometer up to each eye to get an estimation of each pupil size. After checking both eyes, the lights are turned off and the DRE is to wait 90 seconds to allow the DRE and suspects eyes to adapt to the dark. Then the DRE proceeds to the next phase. DREs are trained that average is approximately 4.0 mm with an average range from 2.5 mm to 5.0 mm. B. Estimation of pupil size under near total-darkness: The DRE is to cover the tip of a pen light completely so that only the red glow emerges through the skin of the finger and no white light shines out. The pen light is moved up to the face so that the pupillometer is used to estimate the size of the pupils. The left eye is always to be checked first, then the right eye. DREs are trained that average is approximately 6.5 mm with an average of normal pupil sizes ranging from 5.0 mm to 8.5 mm C. Estimation of pupil size under direct light: The pen light is the uncovered and shined directly in the suspect’s eyes for 15 seconds where the beam of light fills up the entire eye socket. The pupillomter is to be held alongside each eye to estimate the size. DREs are trained that average is approximately 3.0 mm with an average range of normal pupil sizes ranging from 2.0 mm to 4.5 mm D. Reaction to light: The DRE manual states that if a person is not under the influence of any drug, his or her pupils should constrict within one second when the pen lights beam strikes the eye directly. After the pupils are examined, the suspect’s nostrils are examined by shining a light directly into the nostrils looking for traces of drugs, redness, scarring or abrasions that might indicate repeated “snorting” of certain drugs. The mouth is then examined to look for unusual coloring such as green or reddish coloring; residual quantities of drugs; and any evidence of ingestion. Practice Pointer: The old DRE student manual states the normal range of pupil size was 3.0 to 6.5 mm, however, “there are various studies that

have used normal subjects which suggest that the DEC program range of pupil sizes of 3.0 to 6.5 mm maybe too narrow. Loewenfeld and Lowenstein found many subjects had pupil sizes in near-total darkness significantly greater than 6.5 mm. Birren et al. also reported mean pupil sizes greater than 6.5 mm in dark room conditions following 90 seconds of dark adaptation. Using infrared pupillometry, Borgmann measured the pupil diameter in darkness and found mean values for the pupil size to be greater than 6.5 mm. Loewenfeld, in a study of more than 1,200 subjects, replicated earlier work, and further reported a mean pupil size value larger than 6.5-mm in darkness.”18 This study, and many others, caused the DEC to amend their pupil size range in 2006. This is a study that is of great importance to show that how unreliable the information that DREs are relying on to render an “expert” opinion. This study undermines this step, and can be used to undermine the whole DRE 12 step process. “BEAR IN MIND that there is a great deal of difference among individual human beings and their individual reactions to drugs. The chart lists what we can expect to find when we examine suspects. But no one can guarantee that we will always find precisely these responses.”19 Other than drugs, there are other reasons that pupils will enlarge such as in response to darkness, fear and excitement. Pupils also constrict in response to bright light. 8.

Muscle Tone

A DRE checks the muscle tone by firmly grasping the left upper arm and slowly moving down. The muscle will either appear flaccid, normal or rigid. The right arm is checked in the same manner. Practice Pointer: Muscle appearing either flaccid, normal or rigid describes 100% of the non-impaired population. None of these descriptions are indicative of impairment. Rigidity can be caused by the stress, excitement and anxiety of being arrested, examined and prodded by a police officer. 9.

Injection Sites Examinations

A DRE will look for injection sites by running their fingers along the neck, forearms, wrists, etc. The suspect’s pulse is checked for the third time.

Practice Pointer: It is important to note that the injection site is only an indication of recent drug use, not drug influence. This statement is also universally true of admissions of recent drug consumption. 10.

Suspects Statements, Interview

The DRE should have at least an articulable reasonable suspicion about the category, or categories, of drugs that may be present. The DRE then proceeds “in full conformance with the suspect’s Constitutional rights, to attempt to interview the suspect concerning the drug or drugs involved.”20 The DRE manual also notes that “[t]he DRE should be aware that often times during the evaluation process, suspects may make numerous spontaneous incriminating statements. These statements should be documented. DREs should check to make sure that the suspect has been appropriately advised of their rights.”21 Practice Pointer: The tenth step is the most rampant area of abuse requiring suppression of evidence obtained through the drug influence evaluation process – post arrest questioning of a suspect without being provided Miranda22 warnings. In Texas, a suspect is under arrest the majority of the time when a DRE is being conducted. In fact, the suspect had to be legally under arrest for DWI/DUI before he/she could be lawfully requested to submit a breath specimen. Because passing the breath test is the first step in the DRE evaluation, any post-arrest questioning of the suspect requires Miranda warnings prior to and are to be audio and video recorded per TEX.CODE CRIM.PROC. 38.22. Any and all evidence obtained in violation is to be excluded as evidence under TEX.CODE CRIM.PROC. 38.23. 11.

Opinion

The DRE then forms an opinion as to drug influence, and the category(s) of drug(s) causing the impairment based upon the totality of the evaluation. Practice Pointer: Keep in mind that the Drug Recognition Expert PreSchool Student Manual reminds officers: “It is also very important that your opinions refer to drug categories, and not to specific drugs.” …. “Do not go beyond the bounds of your expertise.”23 Look for officers that state the specific drug causing impairment in their report based upon a suspect’s admission. This is a clear sign that the officer is relying almost solely on the

suspect’s statement—rather than their purported observations—as the basis for their conclusion. 12.

Toxicology: Specimen and Subsequent Analysis

During this step, the DRE obtains a urine and/or blood specimen from the suspect, which is then analyzed for the presence of certain drugs by a toxicological laboratory. In a drug influence case, the laboratory's role is usually not to determine if the individual was impaired, but is to determine use of a specific substance. “Fundamentally, then, toxicology’s role in this [DRE] program is corroborative.”24 Practice Pointer: In Texas, a suspect is not required, nor are there any administrative license revocation consequences to refuse to provide a second specimen if the suspect already provided one specimen that an officer requested. This is a ripe area for suppression of the chemical test (or chemical test “refusal”) due to lack of warnings provided to the suspect who did not know he/she was not obligated to provide a second specimen because he/she is still operating under the previously provided implied consent consequences of refusing to provide a specimen with no instruction that implied consent is no longer applicable. Another area in suppressing the chemical test is due to lack of relevance and scientific reliability. First, there is no per se level of drugs that has been determined to be illegal. Thus, the presence of drugs in blood or urine is not illegal, nor does presence provide proof of impairment. “When a drug is metabolized in a non-linear fashion, it is generally not possible to extrapolate backwards from some known drug concentration to some earlier time and concentration. This is true for the majority of drugs, including cocaine, methamphetamine or THC.”25 VI.

The 7 Drug Categories

The DRE program divided the “primary drugs of abuse” into seven categories. Each drug category is based on a pattern of known signs and symptoms that each drug in a category will produce. A "sign" is observable. Signs can include bloodshot glassy eyes, body tremors, horizontal gaze nystagmus, high or low pulse rate, poor coordination, poor mental retention, etc. A "symptom" is what is experienced by the suspect, but it may not always be observed. Examples of unseen symptoms include high or low pulse, body

temperature, high or low blood pressure, etc. Subjective symptoms can be observed such as hallucinations. The idea behind the seven categories is that the “overall pattern of effects” within each drug category is the same. The effects vary from drug to drug, but the overall pattern of effects is similar within the drug category. The seven DRE drug categories are: (1) (2) (3) (4) (5) (6) (7)

Central Nervous System (CNS) Depressants (includes alcohol); Inhalants; Dissociative anesthetics (formerly PCP); Cannabis; CNS Stimulants; Hallucinogens; and Narcotic Analgesics.

This Drug Symptom Matrix chart out of the DRE Student Manual includes a summary of the signs and symptoms expected to be seen for each drug classification. VII. Drug Combinations are referred to as Poly Drug Use: Concepts

Four

The DRE training teaches that poly-drug use means that the drug user is using more than one category of drugs. When this happens, what typically occurs is that a mixture of signs and symptoms is displayed, such as dilated pupils with depressed vitals is an example poly-drug use. This is the fall back position for DREs for explaining why they may not be seeing the signs and symptoms they would expect to see based upon one certain drug category. DREs use four concepts to interpret poly-drug signs and symptoms: additive, antagonistic, overlapping, and null. Additive effects occur when a combination of drugs produce a total effect that is equal to the sum of the individual effects. For example, CNS stimulants and cannabis independently elevate pulse rate. Taken together, the person’s pulse will be elevated, greater than either drug would separately. Each drug is reinforcing the effect of the other. Antagonistic effects occur when the effect of one drug is lessened due to the presence of another drug. Cocaine dilates the pupils, while heroin 22

constricts them. When taken together, the user's pupils may be dilated, may be constricted, or may be within the purported normal range (3.0 mm to 6.5 mm diameter). The effects displayed are dependent on the dose of each of the drugs, the user's tolerance to each of the drugs, and the point in time that the user is evaluated by the DRE. An overlapping effect refers to the case in which one of the drugs produces the effect, but the other drug is neither additive, nor antagonistic to it. As an example, alcohol produces horizontal gaze nystagmus. If alcohol is taken with cocaine, a drug that does not cause horizontal gaze nystagmus, the user will display nystagmus due to the alcohol. Null effect refers to a combination of drugs in which neither of the drugs used produces the effect. Practice Pointer: The DRE manual does not specifically refer to a “synergistic effect.” A synergistic effect occurs when a combination of drugs produce a total effect that is greater than the sum of the individual effects. This synergistic effect is one that DREs commonly try to opine when there is multiple drug use, or alcohol combined with medication. Use the DRE Student Manual to impeach the DRE when such an opinion is expressed because it is not specifically referred to in the manual. VIII. Scientific Challenges to the Admissibility of DRE Evidence DREs simply do not possess the scientific or technical training and knowledge required to demonstrate that the DRE program is relevant and reliable in order to be admissible as an “expert” opinion under rule of evidence 702. Few states, like Texas, have case law or statutes that concerning the admissibility of DRE evidence. Case Law from Other States On March 5, 2012, a circuit court judge in the State of Maryland v. Brightman, et al., held an extensive hearing into the admissibility of DRE under the Frye standard. The court heard from 6 witnesses for the state, and 3 experts from the defense, Dr. Francis Gengo, Dr. Neal Adams, and Dr. Jeffrey Janofsky. After hearing the testimony of these witnesses over the course of 10 days, the court made the following findings of fact:

The DRE Protocol fails to produce an accurate and reliable determination of whether a suspect is impaired by drugs and by what specific drug he is impaired. The DRE training police officers receive does not enable DRE’s to accurately observe the signs and symptoms of drug impairment, therefore, police officers are not able to reach accurate and reliable conclusions regarding what drug may be causing impairment. Dr. Janofsky testified in the hearing that the Heishman, Shinar and Shectman studies conclusively show that the DRE, when tested and looked at appropriately, is not an accurate predictor of the presence of drugs and the four studies conclusively show that police officer’s prediction are either no better than chance or may be slightly better than chance or worse than chance. The court’s order is attached and it is a must read for further educating yourself on the unreliability and inaccuracy of the DRE Protocol and Program. Other states have also come to similar legal conclusions. In State v. Klawitter, 518 N.W.2d 577 (Minn. 1994) a Minnesota court found that DRE is not scientific and DREs should not be called experts. A Florida court, in Williams v. State, 710 So. 2d 24 (Fla. Dist. Ct. App. 3d Dist. 1998), also found that DRE evidence was not scientific. An Oregon court of appeals, in State v. Sampson, 167 Or App 489 (2000), barred the state from referring to the DRE officer as an expert, reasoning that to do so "would be a comment on the evidence and would lend undue weight to one person's testimony and credibility.” DRE was admissible, but state must make a foundational showing "that the officer who administered the test was properly qualified, the test was administered properly, and the test results were recorded accurately." Later, that same court in Oregon v. Aman, 194 Or. App. 463 (2004) noted that while it previously ruled the 12- step DRE protocol is “valid scientific evidence” the court cautioned that “without the corroborating evidence of the urinalysis called for in the twelfth step, the DRE protocol cannot be considered complete.” Id. at 247. The Court ruled that “an incompletely administered DRE protocol is not, itself, admissible as scientific evidence.” Id. at 249. Lastly, In State v. Baity, 140 Wash.2d 1, 991 P.2d 1151, a DRE opinion of category of drug believed to be impaired under is admissible only in situations where all 12-steps of the DRE protocol have been undertaken.

Texas Case Law In Texas, there is no present case that specifically allows the admissibility of the DRE protocol or a DRE opinion. There are several Texas cases, however, that deal specifically with admission of drug opinion testimony. The leading case is Layton v. State, 280 S.W.3d 235 (Tex.Crim.App., 2009). In the Layton case, there was no evidence as to the dosage taken by defendant, the exact times of ingestion, or the half-life of the drug in the human body. Considering the length of time between the ingestion of the medication and the time of arrest, a lay juror was not in a position to determine whether Xanax and Valium, taken more than 12 hours before arrest, would have any effect on defendant's intoxication. There was no testimony indicating that the officer had any medical knowledge regarding the uses of Xanax and Valium, or about the effect of combining the medications with alcohol. The Court of Criminal Appeals held that the trial court erred in allowing the evidence of defendant's use of Xanax and Valium to be introduced to the jury without the State first showing that the evidence was relevant to defendant's intoxication. The Court further went on to hold that “without expert testimony to provide the foundation required to admit scientific evidence, the testimony regarding defendant's use of prescription medications was not relevant under Tex. R. Evid. 401.” The Layton case was recently followed in Delane v. State, 2012 Tex. App. LEXIS 905 (Tex. App. Houston 1st Dist. Feb. 2, 2012). In the Delane case it was reversible error to the arresting officer to testify regarding his opinion on defendant's prescription medications in conjunction with his ultimate opinion on defendant's intoxication because the officer's testimony was neither relevant nor reliable and the officer was not qualified to offer such detailed testimony as required by Tex. R. Evid. 702. The officer conceded that he was not certified by the police department as a drug-recognition expert, he did not conduct the standard 12-step examination that would have been conducted by a drug-recognition expert, he did not contact such an expert after defendant refused a breath test, and the officer's testimony did not reveal that he had expert knowledge about the medications that defendant had taken or their effects. DeLarue v. State, 102 S.W.3d 388 (Tex. App.—Houston [14th Dist.] 2003)(pet.denied.), specifically discussed the admissibility of expert testimony in the wake of Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kelly v. State, 824 S.W.2d 569 (Tex. Crim. App.

1992). The DeLarue Court also considered an attack on the admissibility of scientific evidence under a Rule 403 theory that with a lack of evidence of reliability of scientific testing, admission of such evidence is more prejudicial than probative because the state could not extrapolate the life of the drug, and under a 403 analysis without such cannot be relevant, and would be more prejudicial than probative. Thus, there was no expert testimony extrapolating or connecting the drugs to intoxication. Detection of intoxication caused by controlled substances differs from detection of intoxication caused by alcohol. See Smithhart v. State, 503 S.W.2d 283, 286 (Tex. Crim. App. 1973) (citing Inness v. State, 106 S.W.2d. 821 (1926)). Jurors are not commonly acquainted with the “consequences and effects” of controlled substances. Manning v. State, 84 S.W.3d 15, 22 (Tex. App.--Texarkana 2002), overruled on other grounds, 114 S.W.3d 922 (Tex. Crim. App. 2003). Consequently, “failure to extrapolate the presence of a controlled substance back to the time of an accident--because such failure can render the evidence insufficient under a Rule 403 analysis [can render such evidence inadmissible].” DeLarue, 102 S.W.3d at 401. A qualified expert witness must testify regarding any scientific or specialized evidence being offered to assist the trier of fact’s understanding of the evidence. TEX. R. EVID. 702. A court’s decision not to “hold a `gatekeeper’ hearing under Rule 702 to determine if the evidence has been properly obtained and is reliable, however, can render such evidence inadmissible.” DeLarue, 102 S.W.3d at 401 (citing Beard v. State, 2002 Tex.Crim.App. LEXIS 183, No. 0282-00 at*6 (opinion later withdrawn and appeal abated)). In DeLarue, the court held the failure to hold a Daubert-Kelly hearing resulted in error when the trial court admitted the evidence regarding the “reliability of the State’s marijuana evidence as it related to [the] appellant’s intoxication and resultant behavior.” Id. In DeLarue, the State elicited testimony that showed the presence of marijuana in the appellant’s bloodstream. The State failed to “quantify the presence,” show the time the marijuana entered the defendant’s system, show he was “under the influence” of the drug at the time the accident occurred, and “no attempt was made to show causation between the appellant’s behavior and the presence of marijuana in his system.” Id. IX.

Summary

DREs simply do not possess the scientific or technical training and knowledge required to demonstrate that the DRE program is relevant and reliable in order to be admissible as an “expert” opinion under rule of evidence 702. Most states, like Texas, do not have any case law or statutes that specifically allow DRE evidence to be admitted. The states that have accepted DRE have done so with limitations, and the government is required to show that all required 12 steps were properly performed in order to be admitted. If not all 12 steps are performed, then DRE is not admissible.26 Drug Evaluation and Classification Training. “The Drug Recognition Expert School,” Student Manual, 2002 Edition, P. IV-22. 2 P. IV-25. 3 P. XXIII-1. 4 See State v. Sampson, 167 Or App 489 (2000). The court barred the state from referring to the DRE officer as an expert, reasoning that to do so "would be a comment on the evidence and would lend undue weight to one person's testimony and credibility.” DRE was admissible, but state must make a foundational showing "that the officer who administered the test was properly qualified, the test was administered properly, and the test results were recorded accurately." 5 P. III-1. 6 P. IV-22. 7 P. XXX-15. 8 P. XXIII-1. 9 P. IV-3. 10 P. IV-3. 11 P. VI-13. 12 P. VI-13. 13 P. IV-11. 14 P. IV-13. 15 P. III-7. 16 Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994). 17 P. VI-13. 18 Richman JE, McAndrew KG, Decker D, et al. An evaluation of pupil size standards used by police officers for detecting drug impairment. Optometry, Vol. 75, No. 3, March 2004. 19 P. V-1. 20 P. IV-5. 21 P. IV-19. 22 Miranda v. Arizona, 384 U.S. 436 (1966). 23 Drug Evaluation and Classification Training. “The Drug Recognition Expert Pre-School,” Student Manual, 2002 Edition, P. II-9. 24 P. IV-23. 25 Kerrigan, Sarah, Ph.D., Drug Toxicology for Prosecutors: Targeting Hardcore Impaired Drivers, American Prosecutors Research Institute, Special Topics Series, October, 2004, P.16. 26 See Baity, Id. 1

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Modern Prohibition Speaker: Doug Murphy 902 Heights Blvd Houston, TX 77008-6912 (713) 229-8333 Phone (713) 583-0205 Fax doug@dougmurphylaw.com Email www.dougmurphylaw.com Website

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

Defending DWI Cases in Modern Prohibition

William Kirk

Doug Murphy

Cowan Kirk Kattenhorn

Doug Murphy Law Firm, PC

4040 Lake Washington Blvd., Ste 300

902 Heights Blvd.

Kirkland, WA 98034

Houston, TX 77008

425-822-1220

713-229-8333

www.cowanlawfirm.com

doug@dougmurphylaw.com

A. INTRODUCTION Speaking, lecturing or teaching on cross examination is a tricky task. The reason for this is what works for one attorney may not necessarily work for another. What works in one jurisdiction may fail miserably in another. Cross examination is based upon style and no lawyer should change their style to conform to what another attorney has suggested. During the course of this material and the oral presentation, please keep in mind that the author(s) do not claim to be the “know all” authority on how cross examination should be conducted. Instead of focusing on style, you should focus on what is asked and what words are used to ask those questions. If you find something you like, take it, use it, but make it your own. Do it according to your style. Cross examine a witness in a manner that makes you comfortable. Cross examine a witness based upon what you know will be effective. But don’t hesitate to try new things. Don’t hesitate to take your old approach and tinker with it. Try a new line of questions, try a new style of cross. You might be amazed at what a few minor adjustments might do for you. Motions hearings provide the greatest opportunity for experiment. It also provides the young or new lawyer the practice necessary to improve their skills. For that reason, pre-trial motions should be filed in every case that is headed towards trial. Not only may you succeed in suppressing evidence and thus destroying the prosecution’s case, but will develop a greater comfort level with your cross examination. You will see what works and what doesn’t. You will teach yourself some painful, but valuable lessons. You will make mistakes, you will get buried at times. Don’t worry, everyone that has been defending those accused of DUI has made the same mistakes and been trounced numerous times. The trick is to learn from your mistakes and not repeat them. Don’t be afraid to talk to judges, other attorneys, or even prosecutors after a hearing. See what they thought worked for you. See what they though didn’t work. The author quit talking to juries years ago about why they had reached certain verdicts. It left me with lack of hope in the jury system when it comes to proof beyond a reasonable doubt and the presumption of innocence. However, I do still talk to juries about how they felt a cross examination went. As important to “how many points we had scored,” I really find it helpful to find what impressions I left with the jury as to how the witness was treated. This will be discussed further in this paper. By far, the finest training that anyone can receive that is DUI specific is offered at seminars such as these, but also through the National College for DUI.1 Specifically, NCDD’s Summer Session, held every July at Harvard Law School in Cambridge, Massachusetts, specifically focuses on DUI trial skills. Attendees will not only receive demonstrations by some of the country’s finest DUI lawyers, they too will participate in actual cross examination with the opportunity for critique and experiment.

www.ncdd.com.

B. TO CROSS OR NOT TO CROSS, THAT IS THE QUESTION The first decision to make is whether you should even cross-examine a witness. This may sound odd because we expect to cross examine every witness that testifies against us. But sometimes, that is actually not necessary. Sometimes the witness has done so little for the other side that you may decide not to cross at all. You can imagine what impression this leaves with a jury when the other side doesn’t even both to get up and ask a single question. In order to make that decision, you must know what you want to accomplish by cross examining a witness. Authorities on trial practice suggest that the following factors should be considered in making that decision: 1. Did the witness hurt your case by their testimony on direct? If so, can you minimize or repair the damage on cross examination? 2. Can you obtain testimony on cross examination to help your case? 3. Can you obtain testimony on cross examination that will hurt your adversary’s case? 4. Do you need the witness to establish an evidentiary foundation to admit a document or other exhibit in evidence? 5. Can you discredit the testimony given on direct examination? In other words, can you demonstrate inconsistencies in the testimony given on direct examination? Can you demonstrate that the testimony given on direct conflicts with the testimony of other witnesses? 6. Can you discredit the witness? For example, can you show that the witness is biased? Prejudiced in favor of your adversary and/or against your client? Has a motive to lie? Is personally, financially or otherwise interested in the outcome of the litigation? Was not in a position to see or hear the even that they just testified about on direct? 7. Can the cross examination be used to enhance or destroy the credibility of other witnesses? 8. Is the witness so important that you should undertake some sort of cross examination to fulfill the expectations of the jury? Unless the answer to one or more of these questions is “yes,” you would be well-advised not to cross-examine the witness. Indeed, the jury may well be impressed when you state “No questions.” The jury may even understand that you have no questions for the witness because the testimony given on direct examination was not important. As defense attorneys, we far too often want to hear ourselves talk. We think that we need to get up and cross examine for hours to fulfill our client’s expectations. Proper management of those expectations coupled with educating the client as to the goals of cross examination will preclude the need to unnecessary cross examination. Dealing with experts is especially susceptible to this sort of problem. We want to get up there and take a “kitchen sink” approach and explore all angles. Sometimes this is a good method, but often times it merely muddies the waters. The previously articulated checklist is essential to properly preparing for cross examining an expert witness.

C. PREPARATION FOR CROSS EXAMINATION The title of this topic is “the lawyers’ opportunity to testify.” To that end, the purpose of this presentation is to explore new ways of thinking about how we prepare for cross and how we execute effective cross examination. Preparation is critical for proper and effective cross examination. Like what will be discussed below, there are competing schools of thoughts about how this should be done. The Closing Argument Method of Trial Preparation There is one school of thought that suggests that all trial preparation should begin at the end by preparing a closing argument. This helps identify and perfect the theme of the case. Once the theme is established, across examination can be prepared to further the theory of the case. This will assist the attorney in streamlining their approach and when formulating questions. I have used this theory, and it can be helpful in certain types of cases. This method is likely used by many that may read this material. The author is not suggesting that this method is wrong. However, if a case is going to be constructed through cross examination, this approach may be too rigid to allow the attorney to adjust. What’s wrong with planning your trial by starting with the closing argument? The closing has driven our trial preparation for generations and has served as the starting point for countless trials. Consider the following: Time is short. Lack of time is the trial attorney’s universal constant. Planning the close and then developing the trial backwards poses the risk that the opponent’s case may introduce facts inconsistent with your theory of case. There is no rigorous method to test your imagined closing against the facts. An experienced attorney may apply his or her instincts to uncover flaws, but the existence of a few “good” facts tends to cloud an honest evaluation of the “bad” facts. If you later discover indisputable facts that are antagonistic or inconsistent with your chosen theory, then your closing must be modified, restructured, or abandoned. Often this discovery is made well into your trial preparation. What little time you had was spent hoeing the wrong row. Trial preparation which has ignored an indisputable negative fact is valueless. (Ignoring indisputable positive facts is another unnecessary loss). The lawyer scrambles from one imagined closing to the next, adopting theory after theory until the indisputable facts contradict an essential premise. Trial preparation becomes a process of theory elimination. Using the closing argument to drive the trial preparation could be a waste of time. Worse yet, you could be lulled into hoping that a fact inconsistent with your close will be ignored, forgotten, or somehow neutralized before the jury retires. Finally, we could be so short of time there is no possibility of reformulating our theory: we are forced to merely hope the indisputable fact won’t matter. Prayer is not preparation.

The Cross-Examination Method of Trial Preparation What does cross-examination-centered preparation do for you? It reverses the tendency to guess and pray. A key to this phenomenon is in learning to recognize and deal with Facts Beyond Change (FBC). Learning to Identify the Facts Beyond Change The preparation of a major cross exposes those facts that are indisputable and furthermore will suggest the theory of the case, themes, and theme lines. Such indisputable facts are referred to as “Facts Beyond Change” (FBC). An FBC is a fact that will be accepted by the jury as truthful and accurate regardless of any party’s attempt to attack it. An FBC may be favorable, neutral or antagonistic toward your theory. The favorable and neutral FBCs we will want to weave into our case. The antagonistic FBC, the truly inconsistent fact that betrays our theory of the case, circumscribes for us the forbidden territory into which our theory must not stray. Only a theory that can survive a thoroughly prepared cross, that is, a theory for which every FBC is either favorable or neutral, will have any value by the time the case is called for trial. FBCs are the walls that confine and channel the theory. If the theory is contradicted by an FBC one or the other must give way, for they cannot co-exist. Competing for the jury’s belief, the FBC will prevail, the theory will fail. To hope otherwise is false preparation. Preparing for cross is the only means of determining which facts are still subject to argument and which facts are beyond change. This is also the means to learn whether there are inferences flowing from the facts that, like their predicates, are beyond change. A theory that withstands thorough preparation for cross will be a ready instrument when you begin your preparation of the closing argument. Remember this: unless you have prepared your cross thoroughly, you cannot evaluate your theory or plan your close. Cross, however, will provide you the facts, and from your grasp of general legal principles, you may draw upon the law in sufficient measure. Also, understand the precise definitions to “theory of the case”, “theme”, “theme lines” and various techniques of cross itself. A thorough description of these terms would take pages. In its most general state, a theory of the case is a concise and cogent statement of the advocate’s position that justifies the verdict he or she seeks. Examples will appear in the second part of this article, reviewing certain techniques for preparation and delivery of the cross.to design the closing argument. Once the cross and close are outlined, the attorney may plan the opening statement and voir dire. This is also the time to polish the trial themes and theme lines. Cross-driven planning allows you to consider an often-neglected species of fact: the “emotional feel” of the case. You must remember the importance of this neglected “fact”. The jury must have some concept of your case’s dominant emotional theme. It will adopt one, whether invited to or not. The attorney who presents this emotional theme as a fact will have a far stronger basis for the jury to synthesize that party’s theory of the case by verdict time. A few emotional stances

and their natural settings: fear (self-defense), anger or betrayal (malpractice plaintiff), fairness by authorities (entrapment or wrongful termination), justice, sorrow (wrongful death), righteousness (civil rights housing), skepticism (tort defendant), vindication (defamation), forbearance, outrage, etc. The reason that cross-driven preparation is better than close-driven preparation is simple: throughout the entire process of planning cross-examination, the attorney is guided by facts — in particular those FBCs that must either support the theory of the case or be neutral towards the theory. The attorney is not wasting time with fantasy closings. The attorney is exploiting the natural structure of trial to hone those theories that have the best chance of succeeding. Because the closing argument, by definition, may use logic, illogic, speculation and any other oratorical device, its preparation allows too wide a latitude. It is a poor vehicle in which to haul an untested theory of the case. The cross-examination, by definition, deals with facts, unadorned and subjected to withering scrutiny. Its preparation is the preeminent vehicle to test the theory of the case. There are a few rules to consider in considering your case’s FBCs. The best source for FBCs are documents, photographs, tests, and the laws of nature. Remember, too, that even an attractive theory will fail before a material FBC: a good fact cannot overcome an unfavorable FBC. Or, as Thomas Huxley once wrote: “The greatest tragedy of science -- the slaying of a beautiful hypothesis by an ugly fact.” Thorough fact investigation is required in order to determine whether a fact is beyond change. Never forget that FBCs that favor your theory are the advocate’s dream. Anytime that an element of your theory is matched by an FBC, develop the point by exploiting the indisputable fact. The theory can only benefit from its association with a fact beyond change. In practice, using a theme line in conjunction with a favorable FBC increases the acceptability of the line, and promotes a greater feeling of credibility for your overall theory. For instance, in an assault case, the lack of fingerprinting on the alleged weapon is a potentially favorable FBC. Your theory of the case is that the police did not thoroughly investigate but precipitously arrested your client because he was the only person nearby whose description matched the alleged assailant’s. One theme line you have chosen is that your client was the “convenient” suspect. A method of exploiting the indisputable lack of fingerprints on the recovered weapon would be to marry the theme line to the FBC. If in the same example, another FBC is your client’s arrest mere minutes after the 911 call, the theme lines about “hasty” decisions in the street, snap decisions, gut instincts, etc. will merge factual picture most readily acceptable to the fact finder. The acceptance of the FBC lends itself to the acceptance of your theme lines, and hence, to your theory and overall defense.

D. GREAT CROSS EXAMINATION RESOURCES There are several wonderful cross examination instructors that speak on national levels. The author has had the pleasure to be trained by three “Gurus” of cross examination. Larry Pozner and Roger Dodd are perhaps the most recognized lecturers, authors and teachers of cross

examination. They speak nationally throughout the entire year. The following is per their website:2 Larry Pozner and Roger Dodd are the bestselling authors of Cross-Examination: Science and Techniques, the bestselling LexisNexis book of all time. With a combined 58 years of trial experience between them, both attorneys have successfully given seminars on trial techniques in all 50 states and several foreign countries. Between them, they have given over 300 seminars since they started working together in 1986. In conjunction with LexisNexis, the authors publish their seminar material on DVD, on CD-ROM and Audio cassette. They also continue to give live seminars across the country and outside the United States with an average of 30 live seminars per year. Another fine instructor on cross examination is Terrance MacCarthy who many of you have already heard during this seminar. Mr. MacCarthy has created a very unique yet amazingly easy and successful formula for cross examination based primarily on the form of the question. His approach to cross examination is a radical departure from what we were taught in law school and for that reason, seems odd and foreign when first practiced. However, having utilized this system on a few occasions, it not only works, but as promised, makes you look good. The differences from Pozner and Dodd’s method and that of Mr. MacCarthy are significant. For that reason, many trial attorneys entrench themselves squarely in one camp. You will find very successful trial attorneys nationwide that swear by Pozner and Dodd’s method. Likewise, you will find many, extremely successful trial attorneys, that believe that the MacCarthy method is the gospel. We will examine both methods, as the author truly believes that both methods are effective, and easy to employ. Furthermore, each of these styles can be utilized in any situation with any kind of witness. Again, this is a style issue and therefore, one that you and you alone must dictate based upon what you are comfortable with.

E. THE POZNER AND DODD CHAPTER AND LOOPING METHOD: The Pozner and Dodd method is based upon two principles: (1) established “chapters” of cross examination, and; (2) looping answers back into questions to build credibility and assist in controlling the witness. Pozner and Dodd’s “Science” of Cross-Examination: A Learnable Method The goal of trial planning is to create factual support for the theory of case. But a theory which has not taken into account incontrovertible facts antagonistic to our defense will fail. The best planning will come to nothing when the “well-tried” case ends in a disastrous verdict. There are some who suggest that the lawyer’s “art” will overcome these factual pitfalls. If the lawyer is sufficiently gifted or experienced enough, the factual holes can be smoothed over.

www.pozneranddodd.com

Perhaps. But Pozner and Dodd chose the title of their book with a specific purpose: it is the “science” of cross-examination, a system of rules and ideas that can be taught and demonstrated, which ought to guide our preparation and trial of a criminal case. The artful wizards of trial may rely on their innate gifts: for the rest of us, a learnable methodology would do nicely. Pozner And Dodd’s Three Essential Rules & Some Elementary Rhetoric (Plus The Occasional Acrobatics) The trial lawyer needs to have a method of cross where preparation reveals the fatal un-favorable FBCs (keeping the attorney from using a dead-end theory). The method must also effectively exploit any favorable FBCs while neutralizing the questionable ones. The task requires control, clarity, and momentum. The techniques for this method of cross follow: Rule 1: Ask No Questions, Make Declarative Statements Tell the witness the answer, do not just suggest it. How do you feel about drinking? (Open ended, great for voir dire) How often do you drink? (Direct; no leading) You do like to drink, isn’t that correct? (Traditional cross; somewhat leading) Compare these commonplace methods with the new science of cross: You drink. followed by, You drink after work. followed by, You drink at lunch. followed by, You drink to forget. (Declarative; pure lead) Note that the declarative begins with a non-verb and never with the deadly leads: “how, why, when did, where did, explain to the jury, did [you, he, she or it], could [you, he, she, or it], have/has [you, he, she], etc.” Also note that the declarative method is a process of small questions building toward a goal. More on the direction of cross below. The best declaratives get a single “yes”. When “no” is the answer you want, “no” is okay, but the best form requires a “yes” response. As a matter of form, do not use the tired old tag–lines: “isn’t that true,” etc. On occasion, the tag may be needed to nudge a witness early in a cross examination when the witness does not yet understand that your declarative sentences require a response. Your voice inflection should generally do the trick, however. And beware when a tag may even add to the ambiguity that arises from negative questions. For example: Q: You did not take the time to look for fingerprints, correct? Framed in the negative, you likely get... A: No.

No what? No, I didn’t take fingerprints, or, No, you’re wrong, I did... Rule 2: Add One New Fact Per Statement Learn from the primers: See Spot? See Spot run? See Spot run home? This sing–song method becomes: Q: You hit him. Q: You hit him with your fists. Q: You hit him in the face. Q: You kicked him. Q: You kicked him in the stomach. Q: You kicked him in the stomach when he was on his knees. Q: You kicked him in the stomach even after he was lying on the ground. Notice that the good facts are LOOPED into the next questions. Looping essential points, when not overdone, can make an indelible mark on the jury. In the above example, seven questions were developed from what another examiner might have condensed to: Q: You beat him up, didn’t you? Is the declarative method true cross? Will it provoke an objection? More importantly, will the objection be sustained? The method can be so devastating to opposing counsel that an objection is likely. Nevertheless, cross properly employs the declarative method. For support, see, Ohio v. Roberts, 448 U.S. 56, 70-71, 100 S.Ct. 2531 (1980), which specifically noted that the declarative excerpts in that case “clearly partook of cross-examination as a matter of form...” Besides, done with preparation, the court will love this method. It’s lean and fast and eliminates the bickering. Rule 3: Build From General To Specific This rule governs the overall organization of the cross. For example, before questioning an officer on the items missing from her report, you begin by establishing the general principles of report writing. Establish that the officer was trained to make reports so that significant details would be recorded, so that superiors could review the case, so that further investigation would benefit from previous work, and overall as a means to assist in helping courts and juries find the truth. As general principles, these points are easily obtained. Now, focus the exam: bring up each point missing from the report. The witness is far less able to escape if the door was closed during the questioning on general points. Examples of general-to-specific are found in the section, below. Pozner And Dodd’ Special Techniques Use TRANSITIONS to get the witness focused, to get a quick “yes” and to cut down on exits. For example, to begin a cross on the expert’s qualifications, in w1hich you do not want the witness running for cover into another topic begin with a transition question:

Q: Doctor, I’d like to ask you some questions regarding your training at Podunk U, you understand? A: All right. [now you can do your declaratives] Q: You attended night classes. Q: For three years. [learned from interviewing his teacher at Podunk U...] Q: The program was a two-year program. Q: The program required two labs. Q: You transferred one lab credit from Fipple State Voc-School. Q: You had to retake your Podunk U lab a second time. The transition statement helps to narrow the discussion, secures the witnesses agreement, and gets a free “yes”. Without the transition, the witness has an easier time wiggling away. The tighter the topic used in the transition, the cleaner the declarative statements will flow. Note, however, that the declaratives must properly fit under the scope of the transition. So long as they do, you have a powerful means to control the witness’s attempts to run away. Use TRILOGIES. Pozner & Dodd make use of a time-honored rhetorical device: the trilogy. In one example, Pozner & Dodd show how an examiner wove his cross into two trilogies and pounds home a new theme: the facts have changed. Q: Immediately after the collision, you told the investigating officer that the light was red for the plaintiff. A: Yes. Q: But now that fact has changed. A: Yes. Q: You told my investigator three months after your collision that the light was red for the plaintiff. A: Yes. Q: But now that fact has changed. A: That’s right. Q: You told me three days before trial that the light was red for the plaintiff. A: Yes. Q: But now that fact has changed. A: Yes. Dealing with the anticipated unfavorable answer. Create a CONTEXT and a favorable CONTRAST. This next example, from Pozner & Dodd, this cross of the snitch, structured with parallel questions to undermine the anticipated unfavorable answer: Q: You have been smuggling loads of marijuana for four years. Q: You have gotten away with it dozens of times. Q: In January, 1991, you smuggled a load of marijuana from El Paso to Denver. Q: It was your load. Q: You were the driver. Q: In September of 1991, you smuggled a load from Los Angeles to Denver. Q: It was your load.

Q: You were the driver. Q: In January of 1992, you smuggled a load of marijuana from Salt Lake City to Denver. Q: It was your load. Q: You were the driver. [these declaratives all get “yes” answers] [now, focusing on the key area where you know you’re going to get an unfavorable “no”] Q: In March, 1992, you were caught smuggling a load of marijuana from Tucson to Denver. A: Yes. Q: You were the driver. A: No. Q: It was your load. [time for a little emphasis, as in, you’re not trying to deny this fact too?] A: Yes. The “no” answer is there (you couldn’t get rid of it) but in the context you set up it is less credible. The contrast between the previous questions (deliberately put into trilogy form) creates a tension with the anticipated unfavorable answer. In an example from an inventory search, the witness was given general declaratives about the purpose of inventory reports and the overriding need for accuracy. Then, the examiner focused on the specific report in her case: Q: The form you complete has three sections. Q: Section one asks for the time of the inventory. Q: So that the report can be verified. Q: But you left that section empty. Q: Section two asks for your supervisor’s signature. Q: So that the report’s accuracy can be verified. Q: But you didn’t get his signature... Etc. (Note the developing trilogy... If you don’t have three items to “trilogize” rethink the categories until you do. Trilogies are powerful: they focus attention, they are dramatic, they persuade. Especially when building a CONTEXT and CONTRAST scheme, as above, the TRILOGY works magic.) Pozner and Dodd on Controlling the Witness. The best feature of this method of cross is its power to put the witness under counsel’s control. Used carefully, racking up “yes” after “yes” with simple short declaratives that build toward a goal, the witness is hard=pressed to venture out on his or her own. Pozner and Dodd offer a dozen techniques for handling witnesses who attempt to run from the corral: the favorite technique, the simplest and most direct, merely re-asks the question slowly and verbatim. If the question was proper when asked the first time, it is irresistible on the verbatim re-asking. You may add the witness’s name to the question, if that seems appropriate. Otherwise, do not rephrase when you are trying to keep control. Rephrasing give the witness more permission, it invites more disobedience. Most disobedience is the fault of the examiner. The fundamental technique of control is not to ask a question that invites disobedience. Frame the general topic with a transition question, build a series of declaratives, do not ask the witness

to think but merely to respond, and most witnesses will be forced to comply. There are more control techniques, but reference should be made to Pozner and Dodd’s book for the complete series. Example of Pozner and Dodd’s Method Considering the “Facts Beyond Change” (FBC). The following transcript is taken from a prosecution for possession of a soft-ball sized baggie of crack. The baggie was discovered during booking 20 minutes after the defendant had been patted down and stripped searched, without results, by a SWAT commander. The FBCs included 59 grams of crack, a baggie, the defendant’s jacket with a sizeable hole in the pocket, and a booking officer who would testify to finding the crack in the lining. The favorable FBCs included the defendant’s strip search and his jacket’s proximity to an uncharged suspect following the clothing pat-down and strip search. The theory of the defense had to harmonize with or neutralize the unfavorable FBCs, exploit the favorable ones, and avoid direct conflict with any incontrovertible FBCs. In this excerpt, the SWAT officer is asked preliminary questions about his concerns during strip searches. The FBCs include: pre-raid surveillance never noted client’s presence at arrest scene; pat search of client at the arrest scene found no drugs; reports stated that 56gms of crack were found in client’s jacket pocket at booking; baggie of crack had no fingerprint matches with client; transported alongside chief suspect; fingerprints comparisons were not ordered for major suspect or transporting officer. Goal of this cross was to establish that the SWAT search did not inadvertently miss the baggie of crack. Theory: The major suspect attempted to hide the crack during his transport alongside client; cops found in backseat and “gave” it back to client by putting it into his pocket. Themes: “Staying one step ahead of the bad guys” “thorough, accurate, honest reports” Transition sentence. Q: Officer I want to ask you questions about how you conduct safety searches for the SWAT team, you understand? A: Yes. Value judgment question but the search had been described on direct with this term. Q: Searches like the one done on April 30th are “high risk.” A: Yes. Safety is the overriding point of this portion of the cross. A search for contraband does not convey the image the defendant needs to prove that the officer did not find the tennis-ball sized crack baggie because there was no tennis ball sized crack baggie...

Q: Not just because of the chance of finding crack but because you had past experiences with the homeowner, a guy once charged with murder plus the factors we just covered having to do with the safety of your team. A: Yes, they are factors. So, we go general to specific. The general is projectile weaponry, starting with the big stuff... Q: Now, when you’ve done strip searches you have also come up with little sawed-off numbers, maybe 18 to 20 inches long? A: Yes. to the smaller Q: And something smaller, a long–barreled pistol. A: Yes. smaller still Q: Something smaller, like a revolver. A: Yes. down to the tinnie-tiny Q: You’re familiar with little four-round derringers. A: Yes. Q: Looking for those, too. A: Yes. Changing to edged weaponry, because the fact finder has to hear the horrors of safety control to understand that the officer would NEVER have performed these duties in a shoddy manner Q: Now, you’re also worried about edged weapons, correct? A: Yes. big to little, just like before Q: Knives — bowey knives — 18 inches long? The witness tries a short cut, but it just helps the defense, the witness’s urge to assert control is forcing him toward the theory of the defense A: Yes, down to smaller ones. [ignoring the short cut, but condensing somewhat...] Q: Down to a razor blade. A: Yes. Value-laden question... “well known” is not precise terminology. So, the questioner adds “is that fair.” When a witness is already cooperative, a value question may be ok, but use the “is that fair” tag for safety. Q: Stories of officers being cut by small objects, even a razor blade, are well-known to your team; is that fair? A: Yes. general Q: Each one of you on that team relies on the other to make a thorough search for officers’ safety. A: Yes. still general Q: Because you can’t all search everybody. A: Correct.

Q: You divide up the work. A: Yes. Bingo! from the general to the specific... Q: Your guy was Mr. Smith. A: Yes. Transition sentence merged with the question. Too wordy and too truncated. Better to get the commitment to the transition and build the questions paralleling the safety message from above. Q: Let’s discuss Mr. Smith, shall we? When you searched him, you weren’t thinking exactly “shotguns, razor blades”; you were thinking of any kind of weapon. A: Yes, sir. Q: Because you wanted to go home that night? A: Correct. Q: You don’t want to be in a hospital, correct? A: Correct. Q: And you don’t want anyone on your team in a hospital? A: Correct. Q: And you didn’t find any weapons on Mr. Smith. A: That’s true. Q: And you didn’t find any drugs on Mr. Smith. A: Correct. Risky to use the word “clean” because it hadn’t come up before, it’s something of a value judgment question and we know Smith was later searched and found to be dirty. Probably better to have phrased it: “When YOU searched Mr. Smith, he was clean.” Q: Mr. Smith was -- [pause] -- “clean.” A: I thought so. The witness gave a weak answer, “I thought so” because the question was poorly phrased. But his fudging gave an opening to change the question and drive the point in again. The witness might have done better to have just said, “Yes” the first time... Q: You thought so because when you were done searching him you found no weapons, no drugs, nothing whatsoever. A: Correct. Summary. Pozner and Dodd’s new science of cross examination changes not only our delivery technique but changes how we prepare the trial. Cross-driven preparation asks us to construct a theory of the case that can co-exist with every FBC—especially the negative FBCs. Next, using three fundamental rules, and waging low-risk rhetorical skirmishes on the state’s witnesses, the defense attorney can cross with control, clarity, and momentum.

Using short, declarative sentences, and staying within the boundaries of tight transitional sections, the attorney maintains topic control. The addition of only one new fact per declarative sentence lends further control, and helps maintain clarity. Finally, structuring the cross from the general to the specific, and using the tightly crafted declarative sentence technique, the attorney can build momentum. This methodology will not fit every witness or circumstance. There are times that the attorney benefits more by having the witness reveal too much of him or herself. There are cross examinations of neutral or favorable witnesses that do not require steely control. But the general situation facing most defense attorneys requires bedrock technique. Know the Sequence of Impeachment: Take the Witness Fishing Pozner and Dodd also recommend a particular way to impeach a witness. Once again, this is stylistic approach, however this approach does conform with Rules of Evidence which certainly streamlines the approach. Here is their theory on impeachment. Fishing Rule #1: No small fish This means do not impeach small points. There is an exception. 1. If there are no large fish 2. If there are lots of small fish, and 3. If you are very very hungry In other words, impeachment should focus on the points that matter. If you do not have any big points, however, and if the witness cannot be allowed to leave the stand un-impeached, you may go after the small stuff. There had better be lots of small stuff. Fishing Rule #2: Hook the fish Before you impeach you must solidify and target the witness’s testimony that is subject to attack. Why? Because the jury will not appreciate the impeachment without its being counter-posed against the suspect testimony. In the case of a prior inconsistent statement, you will confirm that the witness gave certain testimony on direct. In the case of a bias impeachment, you can select any of the witness’s direct testimony that you wish to place alongside the bias evidence; the stronger the bias, the more damage its revelation will do to the targeted testimony. In any event, get the witness to confirm the target testimony. Don’t waste time, just make sure the witness’s escape route is cut off. Exception? If the fish has outright swallowed the hook, you can skip this part. Some witnesses are called for one purpose only or the focus of their testimony is so singularly evident that you can dispense with the need to confirm it before impeachment. Fishing Rule #3: Play the fish out Now switch to the prior inconsistent statement. Enshrine the circumstances under which it was uttered. Extol, in general terms, the witness’s effort to be accurate, thorough, or truthful when the first statement was given. This type of extolling is easy. If you’re preparing a bias impeachment, however, then extol in general terms the abstract relationship. Ex: if the witness is employed by the party that called her, ask the witness whether she has ever heard of employees letting their

employer’s interests get ahead of their own. Depending on the answer, you can next enquire into whether, in general terms, employees may feel it necessary, wise, or fair to help their employer out of a jam. The purpose of this phase is to reduce the witness’s options to discount the impeachment. Don’t rush this. Fishing Rule #4: Land the fish Confront the witness with the impeaching fact, whether it’s a prior statement or bias. Ex: from the same employee situation above, ask the witness who has just candidly admitted that employees might bend a rule to help an employer (or who incredibly denied that any employee would ever do such a thing) whether it’s a fact that she is the opposing party’s employee. “You’re on Mr. Owner’s payroll, too, aren’t you?” has a ring to it. Fishing Rule #5: Kill the fish If you have an admissible exhibit, move it into evidence and publish it to the jury. If not, don’t. You’re done. Don’t play with the fish. Move on to the next impeachment or sit down.

F. THE MacCARTHY “LOOK GOOD” CROSS EXAMINATION METHOD Cross-examination is often thought to be one of the most difficult tasks for the trial lawyer. The federal defender in the U.S. District Court for the Northern District of Illinois, Terrence F. MacCarthy has developed a system that will calm your fears and steady your nerves. It is called the “look good” cross, and it is being taught by the National Criminal Defense College and the U.S. Department of Justice as a preferred method of cross-examination. It is high time civil lawyers adopted this system as well. MacCarthy’s look good system is the first system of which I am aware that goes beyond commandments about what to do and what not to do. The system provides a framework around which to design a cross-examination. It is a system based on a theory of how to most effectively conduct cross-examination. Any confident lawyer can use it with tremendous effect. To further understand it, and to use it most effectively, we must remember the context in which we are using it: cross-examining a witness. Cross-examination is used to persuade the jury of particular points important to the client in any particular trial. Almost all trials are disputes over particular sets of facts. And we all know from our experiences as trial lawyers that the best way to convince a jury to adopt our particular set of facts over another particular set of facts is to frame the dispute around a story. MacCarthy’s look good cross embraces the concept of storytelling and incorporates it within the system of cross-examination. What is the goal of cross-examination? It usually depends on the witness to be cross-examined. A few goals, however, are present in almost every case. The cross-examiner wants to develop points or facts favorable to his or her case. The cross-examiner also wants to undercut facts unfavorable to him or her. Credibility is always an issue. The witness’s credibility is usually at

stake, but so too is the questioner’s credibility. The lawyer’s credibility is always at stake because the lawyer is the storyteller and, in MacCarthy’s look good system, he or she is telling a story through cross-examination. MacCarthy’s Basics of Cross Examination The basics can be summed up in three simple points: (1) use plain English; (2) direct the witness to the subject matter, and draw information from the witness using short declaratory statements; and (3) tell the story of your case, or a portion of it, through the cross-examination. 1. Use Plain English Keep in mind that we are trying to communicate with and persuade jurors. That means that we have to return to the real world. You know, the one where people speak plain English. MacCarthy suggests we talk to the witness like we would talk to someone at a bar. (Not the place where you look up at the judge but rather the place where you stop by to drink and talk with everyday people, otherwise known as potential jurors.) I was confused until MacCarthy explained to me that this did not mean the type of bar that I frequent, the kind with peanuts and sawdust on the floor, but rather a nice bar, with carpeting. Plain English means putting away “calling your attention to the date on which the occurrence in question took place” and references to “exiting vehicles.” Real people get out of cars, they do not exit vehicles. So instead of calling the witness’s attention to the date in question in which the occurrence took place, instead simply state “I am going to ask you some questions about what you did on May 12, 2003, before you were hit by the car driven by the defendant, Mr. Jones.” It really is that simple. 2. Use Short, Declarative Statements It is important to use transitions like the example above, to tell the witness where you are going. This helps the witness establish the proper frame of mind in which to answer the question. It also advances your control over him or her. The same is also true of the short, declarative statements you use to present information. While much of cross-examination requires control of the witness, it is not necessary to use the classic prefixes and suffixes of leading question format-the prefixes “Is it a fact that . . . ?” “Isn’t it true that . . . ?” or the suffixes “ . . . , correct?” or “ . . . , isn’t that true?” or “... , am I correct?”—that terminally lengthen most cross-examinations. The cross-examiner certainly has the right and power to use such leading question techniques, but the more skilled cross-examiner can obtain the information without using them. For example, “You are Alison Timmons.” You do not need to say “Isn’t it a fact that you are Alison Timmons?” or “You’re Alison Timmons, correct?” Just state the fact and have the witness affirm it or deny it. Of course, the only answer that you want to hear is “Yes.” That is because

you are using the cross-examination to tell your story and the effect of the cross-examination is to enhance your credibility. This is the fastest, most efficient way to provide the jury with information. It also allows the cross-examiner to tell a story and to state the facts. The only role the witness plays is to affirm the trial lawyer’s statements. Since the witness affirms everything you have said as being true, the jury is impressed with your credibility as well as your knowledge. Short, declarative statements will provide you with the control you need. This is true for several reasons. Short statements, by their very nature, provide control over the witness because they break the testimony down into very small parts. The smaller the part, the less ability the witness has to avoid the question. And by breaking the story line down into small parts, you can control the witness without appearing to be controlling. The use of short questions takes advantage of our social customs. Short statements lead to short answers. A witness who tries to give long-winded answers to very short questions provides a strong signal to the jury that he or she is not being cooperative. Sooner or later, social pressure and embarrassment will catch up to even the most pompous witness. The witness has a choice: cooperate or look silly. Almost always, the witness eventually chooses to cooperate with the questioner and get it over with. This is what you want. 3. Tell Your Story Use these short declarative statements to set your transitions and develop your points. Now remember that your primary purpose is to tell a story. Tell a memorable AND persuasive story. So loop the favorable information from previous questions into the next question to build bit by bit as you go along. MacCarthy’s system will seem foreign at first. For one reason, it’s not as confrontational as what we expect cross examination to be. Moreover, there really is no questions asked of the witness. Instead, the attorney tells a story through short statements that the witness agrees with. As Mr. MacCarthy once said to me, “good cross examination doesn’t even require a witness to be on the stand for anything other than a nod of the head.” This method, along with that developed by Pozner and Dodd assist the attorney in “making a mountain out of a molehill.” This is a very important theory that will be discussed later. The summary of Mr. MacCarthy’s “look good” cross has been intentionally abbreviated for this material as Mr. MacCarthy will be presenting at this seminar. The authors highly recommend this approach as its effectiveness is unquestioned.

F. BUILDING A MOUNTAIN OUT OF A MOLEHILL Regardless of what approach you decide to take, both of these methods are incredibly effective in producing excellent cross with just a few good facts. So often, especially in DUI cases, we are given so few good facts to deal with. Let’s face it, if we have a ton of good facts, those cases get resolved. We are then left to try many of the more difficult cases that we handle. When you have so few good facts to work with, cross examination could be short and unproductive. However, if you can “Build a Mountain Out of a Molehill,” you not only create more effective questions, you build credibility with the jury. Whether you use Pozner and Dodd’s looping method, or MacCarthy’s look good cross, you can take one or two good facts and inflate their importance and weight with the jury. This building method is perhaps better demonstrated. Take for example a car that is driving down the freeway, and is followed by a Trooper. The Trooper then paces your client at 70 in a 60 mph zone. He then turns on his lights, and your client pulls over. It’s a legitimate traffic stop for sure, but here is how I have seen attorney’s deal with these set of facts: You stopped my client for speeding? I did. You did not notice anything else that caused you to pull him over? Nope. His driving was otherwise perfect? I guess, except he was speeding. You stopped him for speeding only? Yep. Now the lawyer has established that the only driving aberration was excessive speed. But that is the only fact that has been elicited. Should the attorney want to explore the driving further, you probably are going to get an “asked and answered” objection. This is likely going to be sustained. Instead, build a Mountain out of a Molehill here. Think about all the questions you can ask, each of them unique to preclude objections. You’re still using the same fact (speed only stop) but it’s what you do with it that matters. Consider what the jury thinks after the above line of questioning and what they think after this: Trooper, I want to talk to you about why you pulled my client over, OK? Sure. You were driving on I-90?

Yes. Eastbound? Yes. Near the 405 Interchange? Yes. You saw my client at about milepost 38? Around there, yes. He appeared to be going a little fast? Yes. You followed him? Yes. You followed him for a while? For a bit, yes. You followed him for a while because you wanted to pace him? Yes. And when you pace someone, you keep your eye on him? Yes. That and my speedometer. You certainly keep looking to ensure he still is going the same speed? Yes, I do. You followed him until you got to milepost 36? Around there, yes. Nearly two miles? Approximately, yes. Before you turned your light on, you never saw him drift? No. You never saw him drift out of his lane? No.

You never saw him drift to the right of his lane? No. You never saw him drift to the left of the lane? No. You never saw him weave? No. You never saw him weave that entire two miles? No. You never saw him weave within the lane? No. To either side? No. He never swerved? No. The entire two miles, never saw it? No. Not even in the lane? No. And this all occurred while he was doing 70 miles per hour? Correct. With other cars around him? Yes. Now, you’re trained to look carefully at how someone pulls over, right, that’s part of your training? True. You watched how my client pulled over once you turned on your light? I did. He reacted immediately.

Yes. He signaled his move to the right shoulder? He did. He made two lane changes to get to the shoulder? Yes. He did the first one safely? Yes. Did not endanger anyone else? No. He made the second one safely? Yes. No danger to any other motorist? Correct. He pulled the car off the roadway? Yes. Completely off the roadway? Yes. In a safe place? Yes. He came to a complete stop? He did. There was no delay in the way he pulled the car over? No. There was no problem about the way he pulled the car over? No. There was nothing unusual about the way he pulled the car over? In actuality, you could add more questions. Perhaps that stretch of road had several curves to it. Perhaps the weather was terrible and visibility poor and was still able to navigate the road.

What has occurred here is taking one good fact – defendant was pulled over for speeding only – and building this into a long line of cross that might fit well into a theory that attacks either the breath test or field tests. This approach can be taken with many aspects of a DUI investigation. Consider when there is no mention that the driver had no problems with getting his license, registration and insurance. Consider what you can do with the fact that there is no mention that your client had any problem getting out the car. Consider what you can do with field tests in which there are only a couple of clues noted. This process is “Building a Mountain out of a Molehill.” This should be used whenever possible. Not only does this inflate the good facts for you, it helps establish credibility with the jury as the witness has just agreed with 35 consecutive questions. This process alone will elevate the effectiveness of any cross examination you undertake.

G. THE 10 COMMANDMENTS OF CROSS EXAMINATION In addition to the material previously presented, I have had the opportunity to discuss cross examination with many successful and effective trial lawyers from around the country. I have been blessed to learn from many of them. Over time, the author has learned many important tips and techniques. Like all this material, this is not exhaustive of all other important dos and don’ts, but they do provide a nice little guideline when preparing cross examination 1. Cross examination is the lawyer’s opportunity to testify. 2. It is far easier to stroke something out of a witness than it is to beat it out of them. 3. Never ask open-ended questions. 4. Never ask a question you don’t already know the answer to. 5. Always have a roadmap for your cross examination. Remember, sometimes less is best. 6. Always anchor the witness to something. 7. Never attack a witness as a liar (usually). 8. Never quibble over small points. 9. Always use short questions. 10. Obey the rule of “so.”

I: CROSS EXAMINATION IS THE LAWYER’S OPPORTUNITY TO TESTIFY. This is perhaps the single most important distinction in how you should look at cross examination and how you actually prepare cross examination. Often times, the attorney will prepare an entire cross to discredit a witness or make someone look bad. But even if successful what have you accomplished? You may have made an officer look bad, and probably upset the jury, but you have not told your side of the story. Anyone who tries criminal cases can probably count on one hand how many times they’ve had their client take the stand. In DUI cases, it rarely is effective and often times disastrous. Passengers do not typically make good witnesses as often times they are more intoxicated than

the driver. Often times they are friends, spouses or family and enter the courtroom with an inherent bias that cannot be overcome. Expert witnesses sometimes work and sometimes are deemed “hired guns” by jurors. Their effectiveness is debatable at times. Who then will testify on behalf of your client? YOU WILL. You will tell your client’s story through cross examination. For that reason, before you even write your first question, write your story. Write your theme of the case and remember to be flexible enough to alter your theme if the evidence, as it comes in, requires you to do so. But once a theme, or themes, has been developed, your questions will have more clarity and purpose. This is your opportunity to testify, don’t blow it. In keeping with that, one should remember that we are not really “questioning” the witness. Instead we are preparing a series of short statements that the witness will affirm for us. The story is one that is based upon the facts beyond change, and other common sense issues. The goal is to tell the story through short, declarative statements, with witness agreeing with what you have said.

II: IT IS FAR EASIER TO STROKE SOMETHING OUT OF A WITNESS THAN IT IS TO BEAT IT OUT OF THEM. Simply put, you want to look good when you cross examine. Not only do you want to look like a competent lawyer, you also want the judge, prosecutor and jury to like you. Trying to bash evidence out of a witness will not accomplish these goals. Instead, you must stroke evidence out of a juror. This approach is hard for us to grasp at times because we are so pre-disposed to what we believe the purpose of cross examination is. We believe that this is our chance to get up there, light the witness up with Shock and Awe, and then sit down and admire the smoldering pile of debris that used to be the witness chair. We are control freaks by nature. This is one of the reasons that we have chosen this profession. We stand up for cross, our adrenaline is running, and we go straight for the jugular. Again, this looks really cool on TV, but in reality, it rarely happens and even less frequently, happens with positive outcomes. There is an old saying that you get more flies with honey, and this is never truer than in cross examination. I see this all the time. The prosecutor has just finished 30 minutes of asking “what happened next?” when the defense attorney gets up and starts off like this: “Isn’t it true that you lied at the Department of Licensing Hearing?!?” “No, I did not.” “So is it your testimony today that you did not lie before the Department of Licensing?”

OBJECTION: Argumentative. SUSTAINED. Even if you can prove there were some inconsistencies in the previous testimony, you have now alerted the witness to this, alerted the prosecutor to this, and looked like a jerk doing it. The witness will now clamp up and getting information from him/her will be like pulling teeth. The Prosecutor is going to object to any question that even remotely sounds confrontational and will break the rhythm of your cross. There may be times when attacking a witness in this style is necessary, but if this is the way that you always cross a witness, what do you do when you actually have the chance or need to do this? You’ve been doing that same old song and dance for years now. Try killing them with kindness. Often times prior to a motion hearing, you might be sitting in the courtroom for an hour or more before your case is called. What’s wrong with striking up a conversation with the Trooper about anything not related to your case? What’s wrong with building a report with the Trooper and thus gaining some trust with him/her? You might be surprised how friendly they can be when they realize that you are just shooting the bull with them. By the time they take the witness stand, they already like you. They already trust you. Now, don’t violate that trust. Treat them like an adult. Be polite and professional but direct. Let them know that if they answer the questions that you ask them, there is no need for you and him/her to get into it. Let the witness know that this is not about beating their head in, it’s about getting the information that you need to make your arguments. You will find that this approach not only makes this cross examination more productive, it makes future cross examinations equally productive. You will also enjoy your job more when you don’t have to run from court to court trying to beat up witnesses all day.

III: NEVER ASK AN OPEN ENDED QUESTION. While this seems obvious, next time you’re in court, watch someone else do cross examination. Count how many times an open-ended question is used. It will surprise you. No one ever scripts an open-ended question, instead they arise from one of two areas: (1) lack of preparation for your cross examination, or; (2) lack of flexibility in your cross examination. The first arises from when you have not taken the time to prepare a theory of your case, and then prepare a story that supports your theory and then developed statements (leading questions) to tell that story. Instead you go up there, taking a stab at stuff and the natural way to ask questions when we don’t know what we want to get is to let the witness tell the story again. Remember, direct examination is the witnesses’’ chance to tell their story. Cross examination is your chance to tell your story.

The second reason that open ended questions unexpectedly show up in our cross is because we have not anticipated possible “bad answers.” We get so stuck in our line of cross that once a bad answer arrives; our instinct is to challenge the witness with how that can be possible. The problem lies in the first word of the question that you are about to ask – “how.” So the simple rule to learn from this Commandment is this: avoid any question that starts with the following: How

What

Who

When

Was

Where

Why

IV: NEVER ASK A QUESTION YOU DON’T ALREADY KNOW THE ANSWER TO. This material is about cross examination and therefore the lengthy discussion on the use of an investigator will be left for another time. That being said, the only true way to ask a question that you always know the answer to is to ensure that you have already asked those questions of the witness in some other setting. I know many attorneys that routinely subpoena an officer to a DOL hearing for just that purpose. Frankly, the likelihood of winning a DOL hearing in today’s day in age makes this approach quite appropriate. Since the likelihood of obtaining a favorable outcome is less than 15%, any chance of getting some information that can be used later criminal litigation may be well worth it. You can also interview the officer yourself, but again, the possible pitfalls of this approach have been discussed in previous lectures and require serious consideration. Another way in keeping with the previous commandment is to take a few minutes before your case is called is to ask the officer a few questions before you take their testimony. But the best way to never ask a question that you don’t already know the answer to is to ask questions that don’t call for an answer at all. When your cross is properly prepared and you focus your cross on what you’re trying to do, what the witness wants to do or even what the witness wants to say – is irrelevant. Any question which starts with the 7 naughty words (above) is to ask a question that you don’t already know the answer to. If you knew the answer, why would you ask any of the above-mentioned questions?

V: ALWAYS HAVE A ROADMAP TO YOUR CROSS EXAMINE AND REMEMBER, OFTEN TIMES, LESS IS BEST This is style approach. Some attorneys like to write out every question that they’re going to ask. Some only write an outline and wing it from there. F. Lee Bailey, one of the finest trial attorneys

ever, insists that no attorney should ever use any notes. The author is not suggesting any particular approach, so long as you are comfortable with it. But the moral of the story is you have to know where you wanna go and you have to know how you wanna get there. You cannot start out on some odyssey and hope for the best. In regards to the use of notes, the author still uses them. I don’t rely on them as much as I used to, but I definitely write out my cross examination. The key, if you use this approach, is to not have to refer to them over and over again. It not only makes you look unprepared, it also breaks up the rhythm of your cross. Moreover, in the heat of battle, it can be so easy to forget to ask something of great value. But you need to remain flexible. Relying heavily on notes does not provide you with flexibility necessary to “roll with the punches.” Further, if you write out your entire cross, and aren’t willing to deviate from it, you may end up doing some the prosecution’s work. I have seen multiple occasions where a young prosecutor forgets to ask about a certain topic on direct. The defense attorney, so married to their notes, then gets up and begins to cross examine them on a topic that was not even brought out on direct. The prosecutor won’t object. Either because you are now doing their job for them, or their so oblivious to what’s occurring that they don’t realize that this is “outside the scope of direct.” At the very least, you must have your three key points. You must have your theory and a series of questions that will either explore or support it. You cannot just get up there and wing it. It is also important to keep in mind that sometimes less is best. If you can only get three good facts out of a witness, why would you want to ask them about all the other bad facts again? All this does is give the witness two direct examinations so that they can further bury your client. Get up there, get your three good points, and sit down. This approach can especially be effective with breath test experts. We so often want to get up there and cross examine them on every aspect of breath testing, often times getting nowhere. If you have a theory that there was mouth alcohol, or that the machine has been under constant repair, get up there, and ask the questions that furthers that theory. Then sit down. In conversations I’ve had with jurors, this short approach has had another unexpected effect. Several jurors have told me that they began to disregard much of the direct testimony that they were having a hard time understanding anyways, because we “didn’t even bother to challenge it.”

VI: ALWAYS ANCHOR THE WITNESS TO SOMETHING Both Pozner and Dodd as well as Terry MacCarthy talk about cross examination using fishing analogies. One concept they talk about is “setting the hook.” This means tying the witness to something, such as a previous statement or the written report, and then leveraging that against the. This approach works well in the DUI field because we deal with officers that make hundreds of arrests per year, and often times are not testifying about a case until 6-12 months

after the incident. Their report is the sole way that they can remember what occurred. Once you have established that the report is that important to them, you now can focus on the most important stuff in that report. The most important stuff in a police report, from a defense perspective, is all the stuff that ISN’T in the report. Perhaps the best way to understand this Commandment is to look at an example. Let’s assume that this is a garden-variety DUI arrest in which the client has been pulled over to going 45 in a 35. There is no other reason for the stop. We first tie the witness to something. In this case, it is his report. Trooper, you prepared a report of this incident? I did. You wrote it when the events were fresh in your mind? Correct. You wrote it around the time you arrested my client? I did. You were trained at the Academy in report writing? I was. You were trained to include everything that is important to this investigation? I was. You were trained to be complete? I was. And honest? Definitely. You have that report with you today, correct? I do. You had to review it during your direct testimony today? I did a few times, yes. You had an opportunity to review it before you testified today?

Yes, I did. You did not notice any inaccuracies? No, I did not. You did not make any corrections to it today when you reviewed it, right? Correct. Your memory was certainly better of this incident when you wrote the report than it is today? I agree with that. OK, now the hook is set and it’s time to start reeling the fish in. Let’s say that your theory is that speeding, alone, is not indicative of impaired driving. You need to establish this with your questions. You got a radar reading from my client at 45 mph? I did. Speed limit is 35? It is. You stopped him for speeding? I did. You saw him coming towards you? Yes. That’s when you got the radar reading? True. You saw him drive by you? Yes. You pulled out behind him? I did. You followed him and pulled him over? Yes.

You stopped him three blocks later? About that, yes. You kept your eyes on him the entire time? Yes. Since you report is silent, you never saw him drift out of the lane? No. You never saw him weave out of the lane? Nope. You never saw him swerve out of the lane? No. And since your report is silent, you never saw him drift within the lane? No, I did not. Now, even if the witness wants to get cute with you here and not agree with these statements, he has already stated that he wrote an honest and complete report. If he disagrees with you now, he is impeaching himself. That is the beauty of anchoring the witness to something. It can be his report it can be previous testimony, it can be a summary from the interview that your investigator conducted. Whatever it is, this anchor confines the witness. It essentially cages the elephant for you. There is one school of thought that suggests that you then begin each question with “since your report is silent, we can assume……..” I used to employ this approach. And while I am not totally discrediting it, it does conflict with both of the approaches that this paper deals with. That is namely we need to do away with some of the common catchphrases that we use in cross examination such as: “Isn’t it true that……..” “………correct?” “You would agree with me that………” In keeping with the last Commandment herein, it is the author’s belief that when you attach these little catchphrases in your line of questioning, you are saying to the witness “Aha, I got you here.” In the DUI context, we so often deal with professional witnesses that they are trained to sense this and will immediately begin the fight with you. Don’t invite them to clam up with

these catchphrases. Rather, tell a story that is not designed to embarrass them, and have them agree with what you are saying. When a witness does decide to try to run from you that is when you can pull out the “you report is silent” statement. Don’t do it right from the start.

VII: NEVER ATTACK A WITNESS AS A LIAR – USUALLY We have all dreamt of catching a witness in a bold faced lie, and then clubbing the hell out of them. But how many times does that actually happen? The reality of things is that other than on TV, cross examination doesn’t really happen like that. Rather, you will be lucky to slowly and meticulously erode away the witnesses’ credibility. This is done by showing bias, or lack of judgment, or rush to judgment. This is done by showing simple human mistakes and commons assumptions that everyone makes. It is rarely done by showing that a witness is an outright liar The only exception to this rule is that you can detonate a witness this way so long as: (1) it is truly necessary to do so, and; (2) you can actually prove that they’re lying. You cannot do this by suggesting that they’re lying. You cannot do this by hinting that they might be lying. And you sure in hell cannot argue that they lied unless you have proven that they lied. It is very important to remember not to stampede towards the kill shot when you catch a witness in a lie. Instead, you must be slow, thoughtful and not change your tone until it is too late for the witness to do anything about it. You must also anchor that witness to their previous statement before you can impeach them. This is the most important aspect of impeachment as you have nothing to impeach until you get the previous statement into evidence. You must also do this in a manner that does not alert the witness as to what’s about to occur. Let’s look at one way to do this. Assume that the witness has just testified that your client’s speech was slurred when he pulled him over. Let’s also assume that there was contradictory testimony at the DOL hearing. You and I have spoken about his case before? Yes. At the DOL hearing? Yes. You were under oath then? I was. As you are now? I am.

We talked about the entire case? We did. It was recorded? I believe it was. I’m showing you what’s been marked as Defense Exhibit 1, do you recognize that? It appears to be a transcript. A transcript of the DOL hearing we had on this matter? Yes. It is signed by the transcriptionist? Yes. Under penalty of perjury? It reflects what occurred that day? I assume it does. Would you like a minute to review it? Sure. Go ahead……Now, this is the transcript from what you testified to that day? Yes. You have no reason to believe its false? No, I don’t. You have no reason to believe it’s been altered? I don’t. This is a true and correct copy of what was said that day? Yes, it appears to be so. Drawing your attention to page 23, do you see that? Yes.

I have tabbed that for you there? Yes, it’s right here. I have highlighted a few lines, you see that? Yes. Please read the first highlighted question. “You never heard my client slur a single word that night?” Who asked that? You did. What was your answer? I said “no.” Now the witness has been anchored to the previous testimony. He has authenticated it and bolstered its credibility with the line of questions that emphasizes how this was done under oath. We now have him impeach himself by reading the previous testimony.

VIII: NEVER QUIBBLE OVER THE SMALL POINTS Terry MacCarthy refers to cross examination by fishing for big fish and fishing for small fish. Essentially, leave the small fish alone and hook yourself a couple of big ones. There is one exception to this rule and that is when you have no big fish to hook. Then you might need to accumulate several small fish. The moral of this story is that jurors do not like petulance. Quibbling over small points that does not support your theory of the case is an absolute waste of time. And even though it might make the witness look bad, you will look bad with them. If your case is about a disconnect between the FSTs and the BAC, does it really matter if it was rainy and windy or just windy that night? Let the witness look like a jerk, move one and don’t stoop to his/her level. This is very hard for trial lawyers. We want to make the witness look bad when they play games with us. We want to dig in and show the world that they are full of it. The problem is that when we do this, all we do is detract from our story. Our story is not about what a jerk the officer is, it’s about something much greater than that. Don’t fall into this trap. To quote Ken Fornabai, “you don’t jump down into the sewer to pick a fight with a turd.” The time for letting the world know about how this witness acted is not during your cross examination. The time for that is in closing arguments when you can point out how evasive the witness was. How difficult it was to even get simple answers from him/her. How these jurors sat here for three days trying to learn

facts and all they got was opinion testimony based upon one’s agenda. Trust me, the witness wants to derail you with this approach. If you let him do it to you, he has already won. Don’t allow this. Be better than this. Be smarter than this and make them pay for it later.

IX: ALWAYS USE SHORT QUESTIONS. Both Pozner and Dodd and Terry MacCarthy agree on one thing: you must use short questions. If it has more than 4 or 5 words, it’s too long. Actually, since we are not even asking questions, we are actually making short statements. Using this approach seems simple, but it requires you to focus on not getting head of yourself. It requires that you not try to impress yourself with your questions. This approach not only streamlines your cross examination, it give the witness less chances to stray from you. There is less to disagree with when your questions (statements) are very short. Here’s an example on how to use this approach. Take a look at this using the same driving example from above where the defendant is stopped only for speed: You followed him? Yes. For three blocks? About that. Right behind him? Yes. Could see him? Yes. The entire time you were behind him? Yes. He never drifted? No, I don’t think he did? He never drifted out of his lane? No. The entire time you saw him?

No. He never swerved? No. Not one time the entire three blocks? No, don’t think he did. He never once swerved out of the lane? No. He never weaved? No. He never weaved out of his lane? No. He never weaved in his lane? No, I said that. Not only has the witness had to agree with everything, but this has also helped you build a “mountain out of a molehill.” This is extremely important to effective cross examination. There is rarely a time when we will have tons of good facts to deal with. Those cases get plea bargained. We get to try the cases where there may only be one or two things that are you your client’s favor. You must build these little molehills into mountains. This give you more effective cross examination and helps inflate the credibility in your theory of the case.

X: OBEY THE RULE OF “SO..” In the same line of commandment #3, the rule of SO is critical to follow. NEVER ask a question that begins with the word “so…….” Often times it is followed with one of the seven dirty words from Commandment #3. But the real problem with the word “so” is that it means that you have already made your point. In order to actually begin a question with “so…” it means that you have now elicited enough facts to make an argument. By asking the next question, you are giving the witness a chance to explain away all your hard work. Anyone that can remember the “one question too many” moments that we’ve all had in court, would be shocked if they could see an instant replay of what occurred. 90% of those “one question too many” moments started out like this: “So, what you are saying is……….” Which is then answered like this:

“No counsel, what I’ve been saying all along is this. Your client was driving all over the roadway, he smelled like booze. He slurred his speech and could not do the FSTs. I felt he was clearly impaired regardless of what the PBT read.” DO NOT EVER start a question with the word “so.” You have made your point and only two things could now happen: (1) nothing, or; (2) you let the witness off the hook. Moreover, professional witnesses, such as what we commonly deal with in DUI cases (Police Officer, BAC Technician, State Toxicologist) are trained to testify. Even if they haven’t been trained, they’ve testified enough times to know what is happening. They become alarmed by questions that begin with “so……..” Their bias towards the State’s case creates performance anxiety for them as witnesses. They simply cannot come into court and be fact based witnesses no matter how much they claim they are. They are there to assist the prosecution. Each state witness will take it as personally as the prosecutor. They do not want to lose. The minute they hear you begin a question with “so………” they are programed to go into denial mode. They will fight you tooth and nail. And on occasions, they will win in the eyes of a jury. Don’t un-cage the elephant.

H. THE ESSENTIAL ISSUES TO BE DISCUSSED ON CROSS EXAMINATION OF BREATH TEST TECHNICIAN The following list includes all issues that the authors have found to be valuable when cross examining a breath test technician. Understand that all of these issues can be used in nearly every breath test case. These are essentially the dirty little secrets of breath testing. But also understand that a “shotgun” approach to cross examination of a breath tech is not necessarily the most effective method. Rather the lawyer should determine what issues are most likely to gain traction. For example, if the instrument has consistently had problems with its temperature, that should be the main theme to your cross. If this is a classic disconnect case, one where the machine says your client is a lot drunker than what they appear on video, then all fallacies, assumptions and generalizations that go into breath testing should become the theme. However, these are areas that the authors have found to be very productive in cross examination: I.

Varying Partition Ratios. No matter what machine your jurisdiction uses, all results will be based upon certain assumption and presumptions about your client. And while everyone can agree that no two people are alike, breath testing has never acknowledged this to any degree. Consequently, faulty results are often times not the function of a defective machine, but rather an incorrect assumption built into the machine. The most basis assumption of breath testing is the reliance on “Henry’s Law.” That theory states that at below 20%, the amount of alcohol in water can be correlated to the amount of alcohol in the air above the water in a fixed environment with fixed temperature. Consequently, all breath machines assume that there is a constant ratio between the amount of alcohol in your blood and what is found on your breath. The accepted ratio, amongst breath test manufacturers and law enforcement is 2100:1. In other words, the machine assumes that there will be the same amount of alcohol in 1 cubic centimeter of blood as there will be in 2.1 liters of deep lung air.

The problem with this “assumption” is that it is based upon an average and does not take any one individual into account. Most studies suggest that a person’s partition ratio may vary from 1500:1 to 3000:1. What does this mean to you and your client? Well, if for example a person had a true blood alcohol content of .05 and had a partition ration of 1500:1, the machine would tell us their breath alcohol level is .08. That is an over-estimation of .03 or in this hypothetical, the difference perhaps between guilt and innocence. Further complicating this problem is that an individual’s partition ratio may fluctuate on a daily basis. Studies have suggested that a person partition ratio will be higher during the absorption phase when compared to blood alcohol. It also suggest that it will be lower during the elimination phase.3 To put simply, it may go up and then go down, and that makes the implementation of a constant and presumed ratio, flawed in several ways. Important to remember, the larger the number in the ratio, the lower the breath test will be. So in other terms; Your client has a 1700:1 partition ratio, but blows into a machine that assumes he/she is 2100:1; the test results will be falsely high. Contrary, if your client has a true partition ratio of 2300:1, and blows into the same machine, the machine will underestimate the alcohol content. Also important to note, even should your State have adopted a “per se breath standard” and thus attempted to legislate away any partition ratio attacks, they have not done away with it as it relates to the machine. No human being, no matter how large, can carry 210 liters of breath in them. Yet the machines report the results per 210 liters of breath. How can this be? Simple, the 210 liters of breath is supposed to correlate to the 100 ml of blood your statute also states is “per se” illegal. Even your legislature “assumed” that everyone in your State has a 2100:1 partition ratio. II.

Mouth Alcohol This shouldn’t be a problem right? After all your State’s machine has a “mouth alcohol detector” built right in. The fallacy of this argument is that they are far from reliable and there is studies to back that claim up. Moreover, some of the foremost experts in this field have expressed concerns over “mouth alcohol detectors.” One of the foremost experts in blood alcohol issues and breathing patterns, Dr. Michael Hlastala, from the University of Washington School of Medicine has made several disturbing findings as to the functionality of this supposed safeguard.4 Primarily with the assumption of the machine’s slope detector. Most instruments will measure a breath sample every ¼ second. If a person is truly exhaling lung alcohol, the “slope” of those measurement points will gradually rise as the lungs

S. Tsukamoto, et al., An Experimental Study of the Ethanol Ratio of Breath to Blood, 37 Japan J. Legal Med. 823 (1983). 44 Michael P. Hlastala, Wayne J.E. Lamm and James Nesci, The Slope Detector Does Not always Detect the Presence of Mouth Alcohol, the Champion, March 2006.

empty. This is done because as one exhales, they supposedly will empty deep lung or alveolar air. If a person has only mouth alcohol (that is they just used some mouthwash) then the measurement slope will initially rise, but after the mouth empties its contents, the slope will begin to decline. When the machine senses this “negative” slope, a mouth alcohol detector will abort the test. That is why it is often tested by having a technician use mouth wash and then blow into the machine immediately thereafter. The problem arises however when a subject introduces both mouth alcohol and lung alcohol. Which, shockingly, is the most likely scenario for one of our clients, because of the existence of both a positive and negative slope. The machine is likely to view this is a level or slightly increasing slope, measure all alcohol, even that which is not impairing the ability to drive, and report the entire value. Should the State’s expert dismiss this notion, ask them, “if this machine can detect mouth alcohol, why do you conduct a 15 minute observation period every time you conduct a breath test?” III.

Radio Frequency Interference. Outside radio waves and other electronic transmission can skew the results of a breath test. Should your State’s expert claim otherwise, then ask why every device has a RFI detector installed to it. While manufacturers ridiculed this notion for many years, by the mid 1980’s they begin to build machines that included detectors to “prevent” this problem. Today, most RFI detectors operate on roughly the same technology as when they were designed nearly 30 years ago. All of this prior to the existence of the following items found at your local police station: (1) modems; (2) wireless modems; (3) radios; (4) hand held radios; (5) cell phones; (6) pagers, and; (7) wireless security cameras to just name a few. Most RFI detectors are “calibrated” by the technician just turning on his radio right in front of the machine and testing it with one frequency. Additionally, this testing is usually conducted while the machine sits in a lab, and not in the field collecting a person’s sample simultaneously.

IV.

Testing During the Absorptive Phase Absorption can continue anywhere from 45 to 2 hours following the last ingestion of alcohol. Consuming food simultaneously, can delay this for an additional 2 hours in some cases. During peak times of absorption, arterial blood can be up to 60% greater in alcohol concentration than venous blood. The alveolar air sacks are concentrated in arterial blood. The original partition ration of 2100:1 was developed using venous blood, not arterial blood. If a test is conducted during the absorption phase, the lack of equilibrium between arterial blood and venous blood will be significant. The machine, supposedly reading deep alveolar air, will be bathed in arterial blood and not venous blood. Consequently, the machine will greatly over estimate one’s true blood alcohol concentration. At least one study has suggested that a test administered

during the absorption phase may overestimate the true blood alcohol level by as much as 100%.5 Of equal concern is that venous blood probably more accurately reflects a person’s true level of consumption than does arterial blood. Couple this with the fact that a person’s’ partition ratio is likely to be much lower during absorption (and thus the machine will read higher) and you can see the tremendous dangers in relying on a test taken during the absorption phase. Even Widmark acknowledged that since alcohol is likely to be forced out of the stomach when testing during this period, testing during this period is wrought with issues. V.

Varying Hematocrit The differences between a person’s blood composition is yet another fallacy of breath testing. Blood is made up of a mixture of solid particles (red cells, white cells and platelets) and liquid, also known as plasma. The percentage of the blood that is solid particles is known as the hematocrit. For example, if a person has a hematocrit of .48, that means that 48% of the total volume of their blood consists of solid particles. Conversely, under the same scenario, that person would have a plasma concentration of 52%. Alcohol has an affinity for water and plasma contains plenty of it. Consequently, plasma will carry far greater portions of alcohol than will the solid matter. So a person with a high hematocrit, say 56%, will have a lower amount of water in their blood. In turn the alcohol will be greater concentrated in their blood when compared to someone with a lower hematocrit, say 42%. Consider this: Two subject, same gender, age, weight and have consumed the same amount of alcohol. Their true blood alcohol concentration is identical. However, one subject has a hematocrit of 55%, the other 45%. The subject with the higher hematocrit will also have a higher concentration in the plasma of their blood; roughly 10% higher. So how does this correlate to breath testing? Remember that Henry’s Law applies to liquids, not solids. Therefore, the amount of alcohol in the liquid substance (plasma) will be in direct correlation to that contained in the gas above that liquid (breath). Since breath contains significant water vapor (just blow on a window), a person with a higher hematocrit (lower water content) will have more alcohol concentrated in the vapor and naturally contain more alcohol their breath. In the previous scenario, it could mean the difference between a .084 and a .076 reading. Here’s another fallacy of breath testing concerning hematocrit. Normal hematocrit has a range and it varies beyond that based upon gender as well. For example: Gender Male Female

Range of Hematocrit 42-52% 37-47%

Average Hematocrit 45% 42%

Simpson, Accuracy and Precision of Breath Alcohol Measurements for Subject in the Absorptive State, 33(6) Clinical Chem. 753 (1987).

The entire principle of Henry’s Law and the 2100:1 partition ratio, and thus breath testing as a whole, is that it is based upon using an average hematocrit of 45%. More troubling is that a person’s hematocrit is easily tested with simple blood work. Anemics are particularly susceptible to this problem due to the unhealthy low hematocrit and thus significantly increased plasma content. VI.

Elevated Body Temperature. The principle of Henry’s Law is also based upon constant temperature. Therefore breath testing assumes that everyone has the same body temperature. However, the effects of changes in body temperature from that of 98.6 is fairly well documented.6 Illness or other biological conditions may raise or even lower that. For every 1 degree centigrade a person’s body temperature changes breath readings may be effected by 7%.7 More troubling is that, as most of us can attest to, whether ill or not, our body temperature fluctuates throughout the day. For pre-menopausal women, the fluctuation can be significant. Compounding this issue is that if a person’s body temperature is elevated, say due to fever, it will increase the amount of water vapor in their breath, and thus elevate the readings in addition to that caused solely by the increased temperature.

VII.

Breathing Pattern For a more thorough discussion of the following, please see: Drunk Driving Defense, 7th Ed., Larry Taylor and Steve Oberman (2010) Aspen Publishing. Physiological Errors Associated with Alcohol Breath Testing, 9(6) The Champion 18 (1985). At least two experts in the field of breath testing, Dr. A.W. Jones and Dr. Michael Hlastala, have concluded that the manner in which a person inhales and exhales can influence breath readings. Dr. Hlastala claims that a person can influence readings anywhere from 50% to 150% of its true value. This is so because a person will inhale prior to providing a sample. This cools their airways. As the subject exhales, some of the alcohol in the exhaled breath will condense on the cooled airway. However as more and more warm air is exhaled, the airways warm up and the condensed alcohol will evaporate and be exhaled in the breath. In turn, the last portion of that breath sample will contain elevated levels of alcohol resulting in a higher breath reading. In simple terms, the longer you blow, the higher you go.

6 7

Drunk Driving Defense, 7th Ed., Lawrence Taylor and Steve Oberman, Wolters Luwer (2010). “Body Temperature and the Breathalyzer Boobytrap.” 721 Mich. B.J. (Sept. 1982).

VIII. Stress As if being arrested and taken to a police station isn’t stressful enough, come to find out, it can significantly effect a breath reading as well. We all know the symptoms of stress, increased heart rate, increased blood pressure, shortness of breath. Adrenaline, one the most common byproducts of stress, will rapidly burn fat for fuel and dilate blood vessels, including those in the lungs. This will force more blood, more rapidly through the lungs and increase the alcohol concentration of the breath sample. IX.

Contaminated Ambient Air Following analysis of a subject’s sample, the machine theoretically purges itself so as to expel all of the subject’s first sample. But as we are all aware, it does not purge itself with self-contained air canister, rather it purges itself using room air. That air, may be sitting in the “drunk tank” where several intoxicated individuals may sit. There are several known occasions of the breath tube being stored by the exhaust port thus creating a circular airflow throughout the machine during the purging cycle. Breath test technicians will say that this concern has been alleviated with the blank air test. That is that in between subject samples the machine will test “ambient” air and get results that read .000. However, at least two widely used machines, the Intoxilyzer 5000 and the Datamaster and Datamaster CDM have a function which permits the “re-setting” of the value of zero. That is correct. The machine has an acceptable tolerance to a number that is not zero that it will record as a .000. In the case of the Datamaster, counsel has had technicians admit that it us up to a .003 for each blank that it will re-set or “ambient zero out.” In Washington, the Datamaster will take four separate blank air tests. Each of them could actually read .003 and the machine would just keep re-setting the value of zero for each reading. It would not subtract those results from the subject’s reading. Thus, as much as a .012 may be added to a subject’s reading.

Used Mouthpieces. It is essential that the mouthpiece be changed after each and every sample, regardless if it’s coming from the same subject. Used mouthpieces will contain water vapor, which presumably will contain alcohol. It will be expelled with the air from the subject and read by the machine. Moreover, there is likely a protocol or procedure in place in your jurisdiction that requires the changing of the mouthpiece. It may also dictate how that change is to occur including that it should not be touched by human hands. It is critical that this be explored on cross examination.

XI.

Inaccurate Simulator Solutions

The accuracy of the machine is only as good as the accuracy of its calibration. Simulator solutions are critical to that calibration. Solutions are prepared mixing ethanol alcohol and water so that when they’re heated to 34 degrees centigrade, the headspace gas will read a certain breath alcohol concentration (.08, .10, .15, etc.). Problems with inaccurate calibration typically occur when the calibration solutions contain less alcohol than what is purported to be in them. This will cause the machine to overestimate all readings. There are several ways in which a simulator solution can incorrectly calibrate an instrument. First, the solutions can be improperly mixed at the lab. They may contain too much or too little alcohol. Solutions may be mixed on formulas involving 200 proof ethanol, but the highest grade usually available is 190 proof. Secondly, the ethanol in a solution will dissipate over time. An older solution is likely to have less alcohol than when it was first mixed. This will lower the true value from that what is reported and improperly calibrate the machine. Third, some solutions will replace the vapor with ambient air. Essentially slowly reducing the amount of alcohol contained in the vapor of that solution. Fourth, temperature is critical to the solutions’ accuracy. Solutions used at too low or too high temperatures will either inflate or deflate their value and thus improperly calibrate the machine. Finally, falsely sealed simulators will permit evaporation and consequently lower their value. This too will create a solution that cannot accurately calibrate a machine. Linearity is crucial to calibration as well. Does your jurisdiction check each machine at certain levels once or multiple times? Is there any linearity in the calibration points? For example, if your client supposedly has a reading of .23, but the highest calibration point is only .10, accuracy has never been checked at the level. Furthermore, while the machine may be accurate, is it precise as well? That is if we run four calibration test (.04, .08, .15 and .20) each one time, we know the accuracy of that machine, at that current time on one occasion. That deals with its accuracy. But if we took 10 readings of each, for a total of 40, then we can start to determine its precision as well. Taking the example above, when we run the 10 tests at .04 and get reading of: .041, .045, .041, .038, .040, .037, .044, .042, .038 and .040, we cannot necessarily say that this machine is precise. Most industry experts believe that simulator solutions should be changed every 60 days. XII.

Gender Based Differences in Metabolism of Alcohol For years, the belief was that women are more easily affected by alcohol because they tend to have a higher fat content and less water than men. However, while that may be true, another reason appears to be that men possess significantly higher quantities of the enzymes that will break alcohol down in the stomach before it enters the blood stream. Combined with the effects of chronic use on zinc levels in the body, alcoholic women tend to have rapid increases in blood alcohol levels and achieve much higher blood

alcohol levels when compared to non-alcoholic women. One study has suggested that the use of oral contraception for women assists in the elimination of blood alcohol.8 XIII. Effects of Zinc in the Body There is a growing school of thought that high blood alcohol levels may be caused by a zinc deficiency. Studies have shown that individuals with low zinc diets had blood alcohol levels which increased rapidly compared to those on normal zinc diets. Low zinc subjects had nearly twice the measured blood alcohol at the same time as those with normal diets. So it appears that zinc plays a significant role in the Metabolization of alcohol. Other studies suggest that heavy drinkers deprive themselves of zinc, and therefore had more rapidly increasing blood alcohol levels than those with normal zinc diets. Consequently, chemically dependent drinkers are more likely to have this problem. XIV. Other Interferants. Many industrial compounds, some quite commonly used, are part of the methyl group. That is the molecular structure that all breath machines are looking for. Any molecule in this group is likely to be interpreted by a breath machine as being ethanol alcohol that your client intentionally ingested. Compounds such oil based paint, lacquer, and other solvent that may contain toluene, xylene and heptane, all of which can be read by a breath machine as ethanol alcohol. More troubling is that while alcohol enjoys a 2100:1 partition ratio, many of these substances possess a much lower partition ratio. Essentially, very small amounts of these substances will significantly influence a breath test. Toluene is perhaps the biggest culprit in this area. It is commonly found in many substances. When inhaled, it can remain in the membrane of the throat and lungs for weeks. And its partition ratio is a mere 7:1. This is critical when the BAC tech states that the only way toluene could affect the breath test would be if it were at deadly levels in the body. Many breath test technicians will state this “lethal dose” opinion under the assumption that these compounds possess the same 2100:1 partition ratio. All of these substances possess significantly lower partition ratios, meaning that again, another assumption of breath testing is completely wrong.

I. CONCLUSION The lawyer must remember that Cross Examination is your opportunity to testify. You cannot tell a story with a series of questions. You cannot paint a picture with a scalpel. You must use short, declarative statements to tell your story. When dealing with a breath test expert, your cross must tell the story of how this machine makes assumptions and generalizations and never takes your individual client into account. You must tell a story 8

Papple, The Effect of Oral contraceptive Steroids on the Rate of Post Absorptive Phase Decline of Blood Alcohol Concentration in Adult Women. 15:1 Canadian Society of Forensic Sci. J. 17 (1982).

that this is an indirect form of measurement where we attempt to estimate the content of something by measuring something entirely different. When you employ these methods of cross, you will find that you appear more authoritative and far more polite. The jury will like both and ultimately, you client is far more likely to enjoy the fruits of your labor.

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: New Business: Marijuana Speaker: Don Flanary 100 NE Loop 410, Ste 1385 San Antonio, TX 78216 (210) 738-8383 Phone (210) 728-3438 Fax donflanary@hotmail.com Email www.flanarylawfirm.com Website

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

NEW BUSINESS: MARIJUANA What you need to know about Weed, Delta 8, Delta 9, & Hemp TCDLA’S 35th Annual Rusty Duncan Advanced Criminal Law Seminar June 16-18, 2022 | San Antonio, Texas Presented by: Donald H. Flanary, III. Authored by: Donald H. Flanary, III., and Amanda I. Hernandez Flanary Law Firm, PLLC INTRODUCTION It is easy to see that marijuana (a.k.a. weed, Mary Jane, MJ, bud, grass, dope, herb, reefer, chronic, pot… you get the picture) is becoming integrated into today’s society, whether you’re a fan of it or not. Still considered a psychoactive drug, cannabis continues to grow in popularity among recreational and medical users in the United States. As of 2021, eighteen states, two U.S. territories, and the District of Columbia have legalized recreational use of cannabis. There are four main methods of ingesting marijuana: (1) inhalation (smoking or vaping); (2) oral (in the form of edibles, capsules, or oils); (3) sublingual (when placed under the tongue and held in the mouth); and (4) topical (lotions, salves, bath salts and oils that are applied to the skin). In order to best serve our clients, it is important for defense lawyers to understand the different forms marijuana can come in, what it means for our clients, and how recent changes in the law impact marijuana cases. WHERE DOES MARIJUANA COME FROM? Marijuana is derived from the cannabis plant, which is one of mankind’s earliest crops 1, and has been around for thousands of years. In fact, for a significant portion of modern human history, marijuana had medicinal, spiritual, and recreational uses that date back at least 5,000 years2. Still, its legality has been a topic of controversy in America and even the world for longer than most of us have been alive. THE MANY FORMS OF MARIJUANA Marijuana today comes in a variety of different forms and as noted above, can now be ingested in various ways. The two most popular forms of marijuana seem to be the actual plant (called flower) and oil that is derived from flower. Inhalation seems to be the most popular method of consumption and is the fastest method of delivery to a consumer. When marijuana is inhaled, the majority of cannabinoids enter the body through the lungs where they are passed 1

Newton, D. (2013). Marijuana: A Reference Handbook. ABC-CLIO: Inc. Santa Barbara, CA. Tackett, Brittany. History of Marijuana. American Addiction Recovery Centers. 31 Oct. 2019. Available at: https://law.uakron.libguides.com/c.php?g=627783&p=6800463. 2

along directly into the consumer’s blood stream. Smoking marijuana involves burning the substance and inhaling the active components of the plant that are released. Similarly, vaporization acts in the same way, but instead of being burnt, the substance is heated to a temperature at which the active ingredients in the plant are released as vapor that is inhaled by the consumer. Edibles are also growing in popularity, and the onset for oral ingestion is slower and the effects are stronger and last longer than with inhalation. Still, there are various forms of the plant and various ways it can be ingested. Below are some of the many examples of substances containing Tetrahydrocannabinol, or “THC,” the main psychoactive compound in cannabis that produces the high sensation. Traditional Leaves: Dried cannabis flower is the traditional and most common form of marijuana. Marijuana leaves, stems, and buds can all contain THC and can be rolled into cigarettes or smoked with a pipe or bong. Hashish (a.k.a. “hash”): Hash is made when resin is extracted from the cannabis plant and then dried and compressed. It can be compressed into a variety of forms, including blocks, balls and sheets. It is considered to be stronger than traditional marijuana and can be smoked or mixed with food and swallowed. Marijuana/Solvent Concentrates: The most popular marijuana concentrates, or extracts, include hash oil, wax, and shatter. Consumers can smoke or vape concentrates from bongs, pipes, vape pens, or other electronic devices. THC extracts are growing in popularity and can be among the most potent of marijuana products. They are made by extracting THC from the cannabis plant with butane, carbon dioxide or other solvents. Marijuana “wax” is sometimes called “budder” or “badder” because it looks like yellow, sticky earwax or melted, pasty butter. Shatter is a hard, solid form of marijuana that resembles amber — fossilized tree resin. Concentrates can also take the form of other products such as Kief or sift, Rosin, Live Resin, Shatter Wax, Crumble Wax, Honeycomb Wax, Pull and Snap, Tinctures, THC Oil, BHOI & CO2 Extract Oil, Rick Simpson Oil, Distillates, Isolates and Crystalline. The term “solvent concentrates” refer to products made using chemicals such as butane, propane, ethanol, etc., which are added to a closed-loop system to extract cannabinoids and terpenes from cannabis plant material. Dabs/Dabbing: Dabs or dabbing are the names for the use of concentrated butane hash oil and may include products such as Shatter, Wax, Resin, and various types of Hash Oil. Balms/Creams/Lotions: As noted above, marijuana can also be used through topical applications. Topicals are one of the only forms of marijuana containing THC that aren’t commonly used to get high. They’re also a common form of medicinal marijuana. Topicals are used to treat skin conditions, spasms, arthritis, muscle aches and other ailments.

THE LEGAL DEFINITIONS OF MARIJUANA/THC Old Legal Definition of Marihuana: The “old” legal definition of marijuana comes from Texas Health and Safety Code Section 481.002 and was defined as follows: “Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: (A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; (B) the mature stalks of the plant or fiber produced from the stalks; (C) oil or cake made from the seeds of the plant; (D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or I the sterilized seeds of the plant that are incapable of beginning germination. New Definition of Marijuana: The new definition of marijuana comes from the same section of the Health and Safety Code and adds to the list of what is not included in the definition of marijuana. Specifically, it adds part (F) as follows: “hemp”, as that term is defined by Section 121.001, Agricultural Code. Old definition of “THC”: The old definition of THC, pursuant to Texas Health and Safety Code Section 481.002, was defined as follows: “Controlled substance” means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1-A, 2, 2-A, 3, or 4. HSC 481.103, Penalty Group 2, includes THC: Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity. New Definition of “THC,”: The new definition of THC is still found in that section of the Texas Health and Safety Code, but now specifies that THC does not include “hemp,” as defined by Section 121.001 of the Texas Agricultural code or the tetrahydrocannabinols in hemp. Note that the definition of “THC” leads to a rational conclusion that there is ALWAYS some THC found in Hemp. SO, WHAT IS “HEMP” AND WHAT IS “CBD”? So, what is Hemp? According to Texas Agriculture Code Section 121.001, “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis. Cannabidiol (often referred to as “CBD”), according to Texas Health and Safety Code Section 443.201, is defined as a “Consumable hemp product” meaning food, a drug, a device, or a cosmetic, as those terms are defined by Section 431.002, that contains hemp or one or more hemp-derived cannabinoids, including cannabidiol.

What about Delta-8? Delta-8 THC (or Delta-8-tetrahydrocannabinol) is a naturally occurring chemical compound called a cannabinoid that’s found in small traces in hemp and cannabis plants3. Its chemical structure is similar to that of its well-known cousin, Delta-9tetrahydrocannabinol. Its legality is discussed further later in this paper. WHAT DOES ALL THIS MEAN? What does all this mean? It means that the landscape of marijuana cases and the ways we can defend those cases are changing. It means that the “green, leafy substance” and the “odor of marijuana” that officers and/or canines are trained to identify may no longer be enough for probable cause to search or arrest. On plain view or smell, the substance could be illegal marijuana, but it could also be legal hemp. The difference is in the amount of THC found in the substance. Now, illegal marijuana is Cannabis sativa L. with a concentration of THC over 0.3 percent while legal hemp is Cannabis sativa L. with a concentration of THC under 0.3 percent. These are not “scientific” definitions, but rather are legislative ones. THE (MOSTLY) RECENT CHANGES IN ATTITUDES CONCERNING MARIJUANA In the past decade or so, there has been a dramatic shift in the attitude toward marijuana consumption and that shift is starting to be shown in our legal system today. A study by the PEW Research Center in 2019 concluded that two-thirds (roughly 67%) of Americans say the use of marijuana should be legal, reflecting a steady increase over the past decade. The survey revealed that the share of U.S. adults who oppose legalization has fallen from 52% in 2010 to 32% in 2019. 4 While marijuana remains federally illegal (but the definition also now excludes hemp), marijuana laws are changing at a rapid pace across all 50 states. On November 6, 2012, Colorado and Washington became the first two states (and first two places in the world) to legalize marijuana for adult use. As of April 2022, 18 states have legalized the adult use of marijuana for recreational (and medical) purposes: Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Massachusetts, Michigan, Montana, New Jersey, New Mexico, New York, Nevada, Oregon, Vermont, Virginia and Washington. In addition, recreational cannabis is legal in Washington, DC, Guam, and the Northern Mariana Islands. Additionally, 37 states have legalized the medical use of cannabis: Alaska, Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Virginia, Washington and West Virginia.

Sreenivas, Shishira. What is Delta 8? WebMd. Medically Reviewed by Pathak, Neha MD. (Jul. 8, 2021). Available at: https://www.webmd.com/mental-health/addiction/what-is-delta-8. 4 Daniller, A. Two-thirds of Americans support marijuana legalization. Pew Research Center. 14 Nov. 2019. Available at: https://www.pewresearch.org/fact-tank/2019/11/14/americans-support-marijuana-legalization/.

Some states are even going further than just legalizing marijuana. In Illinois, Governor JB Pritzker signed a legal marijuana bill into law which legalized recreational marijuana use but that also contained a sweeping criminal justice component, namely, expunging the records of potentially hundreds of thousands of Illinois residents who have previously been convicted for possessing marijuana under previous laws. As of April of 2022, only 4 states remain with a “fully illegal” approach to Marijuana: Idaho, Wyoming, Kansas, and South Carolina. Still, Under the Controlled Substances Act of 1970, the Drug Enforcement Agency still classifies marijuana as a Schedule I drug, “with no currently accepted medical use and a high potential for abuse.” (Other Schedule I drugs include heroin and LSD, while cocaine is listed as a Schedule II drug.)

WHAT RECENTLY CHANGED IN THE LAW Federal Law. Marijuana is federally illegal under the Controlled Substances Act (“CSA”), which was enacted in part to implement the United States’ obligations under the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances. See 21 U.S.C. § 801. Under the CSA, substances are categorized into five schedules, depending on their therapeutic benefit and their potential to result in abuse, diversion, dependency, and addiction. Schedule I is the most restrictive and the substances listed as same are said to have no currently accepted medical use in the United States and a high potential for abuse. Schedule II substances similarly have a high potential for abuse, but they do have a currently accepted medical use. Schedules III–V substances have an accepted medical use and less (relative to each preceding schedule) abuse potential. See 21 U.S.C. 812(b). Marijuana is still listed as a Schedule I substance. In December of 2018, however, the federal landscape for marijuana changed with the passing of House Bill 1325, known commonly as the “Farm Bill.” The Farm Bill was designed to create a legal hemp market and defined “hemp” as the cannabis plant, or any part thereof, including its extracts and cannabinoids, having a THC concentration of not more than 0.3% on a dry weight basis. See 7 U.S.C. § 1639o (emphasis added). Because of this definition, “hemp” is removed from the legal definition of marijuana and is can no longer be considered a controlled substance under the CSA. While not explicitly authorizing interstate commerce of hemp, the Farm Bill likewise does not authorize the interference with same. The 2018 Farm Bill requires hemp cultivation to be licensed and regulated pursuant to “state plans” promulgated by a state, which must contain, among other things, provisions for THC testing. It further directed the United States Department of Agriculture (“USDA”) to establish a national regulatory framework for hemp production in the United States. In response, the USDA 5

established the U.S. Domestic Hemp Production Program through an interim final rule. This rule outlines provisions for the USDA to approve plans submitted by States and Indian Tribes for the domestic production of hemp. It also establishes a Federal plan for producers in States or territories of Indian tribes that do not have their own USDA-approved plan. The USDA has authority to issue regulations and guidance, but the law explicitly preserves the existing jurisdiction of the FDA. Cannabidiol (“CBD”) is a non-psychoactive compound of cannabis. CBD was classified in Schedule I of the CSA because it is considered a compound or derivative of cannabis/marijuana. See 21 U.S.C. § 802. However, as indicated above, the 2018 Farm Bill has de-scheduled hemp as it is defined under that law. Therefore, commercial activity with hemp (including its extracts and cannabinoids) is now lawful. A DEA registration is no longer required to cultivate hemp or to conduct research with hemp. However, if clinical research, i.e., involving human subjects, is involved, an investigational new drug exemption (IND) must still be opened with FDA, and the investigational product must be manufactured in a facility that complies with good manufacturing practice requirements.5 Currently, CBD is approved by the Food and Drug Administration (FDA) as a prescription drug. Per federal law, prescription drugs cannot be added to foods, cosmetics or dietary supplements. Texas Law. It is still illegal to use or possess marijuana under Texas law, and has been since 1931. What changed last year, however, is how the code defines what marijuana is. The Texas Health and Safety Code now defines “marihuana” as follows: “Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: (A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; (B) the mature stalks of the plant or fiber produced from the stalks; (C) oil or cake made from the seeds of the plant; (D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; (E) the sterilized seeds of the plant that are incapable of beginning germination; or (F) hemp, as that term is defined by Section 121.001, Agriculture Code. See Tex. Health & Safety Code Ann. § 481.002. As you can see, the 2019 definition of marijuana changed to explicitly remove “hemp” from the definition of marijuana. Like the federal definition, the Texas Agriculture Code defines 5

Mead, A. Legal and Regulatory Issues Governing Cannabis and Cannabis-Derived Products in the United States. Frontiers in plant science, 10, 697. 2019. Available at: https://doi.org/10.3389/fpls.2019.00697.

hemp as the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, with a THC concentration of not more than 0.3 percent on a dry weight basis. See Tex. Agric. Code Ann. § 121.001. This definition was changed when, in an attempt to bring the state in line with the 2018 Farm Bill, on June 10, 2019, House Bill 1325 was signed into law by Governor Greg Abbott. HB 1325 legalized the production, manufacture, retail sale, and inspection of industrial hemp crops and products in Texas. This also includes products for consumable hemp products which contain CBD as well as other edible parts of the hemp plant. The Texas Department of Agriculture (“TDA”) submitted the state hemp plan to USDA on December 2, 2019, and it was approved by the USDA on January 27, 2020. Administrative rules were published in January 2020 and became effective March 11, 2020. Now that the TDA plan is approved by USDA and the administrative rules are adopted, industrial hemp can be grown and cultivated legally in the State of Texas. Furthermore, per this plan, the regulation of CBD consumables, including CBD oil, will be handled in accordance with Food and Drug Administration (FDA) guidelines. The state agency with oversight of CBD consumables is the Texas Department of State Health Services (DSHS) and not the TDA. At its heart, this new law means Texans should no longer face criminal penalties for hemp or any of its derivatives, including CBD. It is also important to note that medical cannabis is said to be legal in Texas in very limited circumstances. Governor Abbott signed the Texas Compassionate Use Act into law in 2015, allowing people with epilepsy to access cannabis oil with “low THC”. "Low-THC cannabis" means the plant Cannabis sativa L., and any part of that plant or any compound, manufacture, salt, derivative, mixture, preparation, resin, or oil of that plant that contains not more than one percent by weight of tetrahydrocannabinols. See Tex. Occ. Code Ann. § 169.001. In 2019, House Bill 3703 was also signed by the Governor, which expanded the list of qualifying conditions to include diseases such as multiple sclerosis, Parkinson's disease and Lou Gehrig's disease, or ALS. THE LEGALITY OF DELTA-8 So, we know that hemp and CBD, which have a THC concentration of not more than 0.3 percent on a dry weight basis, are legal federally and in Texas. But what about Delta 8 products? Delta-8 THC is one of over 100 cannabinoids produced naturally by the cannabis plant but is not found in significant amounts in the cannabis plant. As a result, concentrated amounts of delta-8 THC are typically manufactured from hemp-derived cannabidiol (CBD). Some argue that delta-8 THC is in a “legal gray area.” It is legal to use in most states, largely because it’s extracted mostly from hemp-derived CBD, which is legal to farm across the U.S.6 The 2018 Farm Bill, which removed hemp and its byproducts from the list of controlled 6

See Fn 3.

substances, doesn’t specifically mention delta-8. Nor does House Bill 1325 in Texas, but hemp advocates and others who sell it have used this loophole to legally market Delta-8 products. On Oct. 15, 2021, the Texas health agency updated its website to clarify for the public that delta-8 was a Schedule I substance and therefore illegal. It maintains that delta-8, while it was being sold in stores, was never legal in Texas because the 2019 law never mentioned it. CBD and hemp retailers challenged it in court, saying this contradicted what they thought was now legal under federal and state hemp laws. Lawsuits were filed attempting to block DSHS from criminalizing delta-8, and retailers got a temporary injunction on the state’s ban, which so far has been upheld by an appeals court. DSHS asked the Texas Supreme Court to step in and reinstate a ban on the products, but the high court refused the request to hear the case. A final hearing was set for January 2022, but it was cancelled and never took place. Interestingly, the Texas Tribune reported in November 2021 that DPS had not made a single delta-8 arrest7. What do the experts say? Recently, TCDLA’s cannabis committee was asked to respond to the Montgomery County District Attorney’s request for opinion on the following questions: Are products containing concentrated or synthesized delta-8 THC still unlawful to possess or sell under sections 481.103, 481.113, and 481.116 of the Texas health and Safety Code? Or are delta-8 THC products no longer subject to prosecution under 481.002(5) of the Health and Safety Code— which excludes “tetrahydrocannabinols in hemp” from the statutory definition of “controlled substance”—if delta-8 THC is extracted or synthesized from lawfully-grown hemp products? Their answer was summarized as follows: Concentrated or synthesized Delta-8 THC is currently illegal under sections 481.103, 481.113, 481.116 as well as section 481.106 (c) of the Texas Health and Safety Code. The exclusion set out in section 481.002(5) for “tetrahydrocannabinols in hemp” is limited to the minute quantities of delta-8 THC which are naturally occurring in hemp plants. A full text of the response is attached as Exhibit 1.

MARIJUANA PROSECUTIONS IN TEXAS HAVE DECLINED While counties in Texas all treat low-level marijuana cases differently, one thing has become clear across the board: marijuana prosecutions in the State have drastically plummeted since Texas legalized hemp. In January of 2020, the Texas Tribune noted that district and county prosecutors across the state began dropping hundreds of lower-level marijuana cases since the

Reynolds, Kevin. Texas said delta-8 is illegal. But state troopers haven’t made a single arrest. The Texas Tribune. (Nov. 11, 2021). Available at: https://www.texastribune.org/2021/11/11/texas-delta-8-dps-arrests/.

legalization of hemp, which resulted in marijuana prosecutions dropping by more than half8. The article also noted that some district attorneys began requiring agencies to submit lab results proving the suspected drugs had more than .3% THC before the case was accepted for prosecution.9 In fact, even the good folks at the Texas District and County Attorneys Association issued a press release suggesting to its members that such testing is likely needed to prove in court that the seized marijuana substance is illegal.10 In 2019, before the passage of the hemp law, there were about 5,600 misdemeanor marijuana possession cases a month. After the law’s passage, that number got slashed in half, with only around 2,000 cases filed in November 11. Since the passing of the hemp law, more and more policies across the state started popping up in favor marijuana legalization, or at least de-criminalization for minor amounts of marijuana possession. In July of 2019, Bexar County District Attorney Joe Gonzales joined three other Texas District Attorneys (Fort Bend County, Harris County, and Nueces County) in adopting a policy of not accepting criminal charges for misdemeanor possession of marijuana for amounts of four ounces or less 12. Later that month, even Texas DPS issued a memo instructing its officers to cite and release suspects in misdemeanor marijuana cases (less than 4 ounces in possession cases) “as appropriate.”13 In January of 2020, Austin’s City Council voted unanimously to end most arrests and fines, as well as ban spending city funds on testing, for small-amount marijuana possession cases.14 The police chief was obviously not on board with this decision, however, as evidenced by his response a day later that he would still instruct his officers to issue tickets or arrest people for these offenses.15

McCullough, Jolie. Marijuana prosecutions in Texas have dropped by more than half since lawmakers legalized hemp. The Texas Tribune. 03 Jan. 2020. Available at: https://www.texastribune.org/2020/01/03/texas-marijuanaprosecution-drop-testing-hemp/. 9 See id. 10 Interim Update: Hemp. Texas District & County Attorneys Association. 24 June 2019. Available at: https://www.tdcaa.com/legislative/interm-update-hemp/. 11 See fn. 5. 12 Statement on hemp/marijuana case filing policy. Bexar County District Attorney’s Office. 03 July 2019. Available at: https://www.bexar.org/CivicAlerts.aspx?AID=513. 13 Prince, Randall. Department of Public Safety Interoffice Memorandum regarding HB 1325 Enforcement Guidance. Texas Department of Public Safety. 10 June 2019. Available at: https://static.texastribune.org/media/files/6bb887232ae43ab238d88d50d18b196f/DPSciterelease2019.pdf?_ga=2.102158146.252285754.1602180849-554138637.1602180849. 14 Menchaca, M. CBD, hemp, medical marijuana? Here’s what you need to know about Texas’ changing pot laws. KBTX-TV. 28 Jan. 2020. Available at: https://www.kbtx.com/content/news/CBD-hemp-medical-marijuana-Hereswhat-you-need-to-know-about-Texas-changing-pot-laws-567357991.html. 15 See id.

THE TESTING It seems clear that part of the reason marijuana prosecutions are declining is because labs are struggling to keep up with the THC testing. In February of 2020, Texas DPS announced that “the new THC testing methodology for plant material is expected to be finalized by Sam Houston State University (SHSU) near the end of March.”16 DPS clarified, however, that they will not be accepting misdemeanor cases, likely due to the high volume of arrests. Likewise, the letter clarified that they will not be testing felony concentrate materials at this time.17 A downside to DPS not testing, though, is that it leaves agencies in many areas to use costly private labs if they are not inclined to forego pursing marijuana cases. With new kinds of testing, however, it’s also important for us to remember problems that could also arise with its validity, including the ability of the sponsoring expert to meet Daubert factors in trials. WHAT THE NEW LAWS MEAN FOR DEFENDING YOUR MARIJUANA CASES The passage of the 2018 Farm Bill and Texas’s HB 1325 give defense attorneys new ways to challenge Marijuana cases and develop issues that have not yet been decided by the courts. A few tools to use in defending marijuana cases today are outlined below. Challenging PC. The new laws surrounding hemp have a drastic effect on law enforcement’s ability to assert probable cause to search or continuing detaining a suspect. While the Fifth Circuit has previously held that the odor of marijuana may be enough to support probable cause to search a vehicle18, no court, including the Fifth Circuit, has meaningfully addressed the issue of whether the sight or odor of alleged marijuana, alone, can be sufficient for probable cause to search after the passage of the 2018 Farm Bill and the 2019 Texas Hemp Bill. Since the passage of HB 1325, whether something is legal cannabis (hemp), or illegal cannabis (marijuana) is a legal conclusion. The only way to distinguish between legal or illegal cannabis is to have a lab test done to determine the THC concentration. The primary difference from a scientific perspective is that marijuana has a higher concentration of the psychoactive compound cannabinoid delta 9 tetrahydrocannabinol, more commonly known as THC19. Because of this, 16

McCraw, Steven. Letter to DPS Laboratory Clients. Texas Dept. of Public Safety. 18 Feb. 2020. Available at: https://www.texasnorml.org/wp-content/uploads/2020/02/thcMethodologyUpdate.pdf. 17 See id. 18 See, e.g., United States v. Lork, 132 Fed. Appx. 34 (5th Cir. 2005) (detectable odor of marijuana emanating from a vehicle provides probable cause for the search of the vehicle); United States v. McSween, 53 F.3d 684, 686-687 (5th Cir. 1995) (the smell of marijuana alone may be enough for a finding of probable cause); United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989) (the officer’s detection of marijuana “in itself ... justified the subsequent search of [the defendant’s] vehicle”); United States v. Henke, 775 F.2d 641, 645 (5th Cir. 1985) (“Once the officer smelled the marijuana, he had probable cause to search the vehicle.”); United States v. Gordon, 722 F.2d 112, 114 (5th Cir. 1983) (same); and United States v. McLaughlin, 578 F.2d 1180, 1183 (5th Cir. 1978). 19 See Leson, Gero et al. “Evaluating the Impact of Hemp Food Consumption on Workplace Drug Tests.” 25 J. of Analytical Toxicology 691, 692 (Nov. /Dec. 2001), attached as Exhibit 2; see also Agricultural Improvement Act of 2018, Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018 (“The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant.... with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”); see also Exhibit 1.

they look and smell the same; they are indistinguishable from each other to the human eye or nose. While the Fifth Circuit and other case law has consistently held that the odor of marijuana may be probable cause to search a vehicle, these cases were decided before the 2018 Farm Bill and the 2019 Texas Hemp Bill. Before these bills, all cannabis was a schedule I substance, and hemp was not acknowledged as a substance distinguished by the Controlled Substances Act. If law enforcement detected the odor of marijuana prior to 2018, there would likely be probable cause to believe the odor was coming from an illegal substance, marijuana. After the bill, law enforcement cannot distinguish between legal hemp and illegal marijuana based on its sight or odor alone. There is therefore no immediately apparent illegality by the sight or odor of alleged cannabis alone and no probable cause to believe that the substance would not be legal hemp. The fact that law enforcement cannot distinguish between the two substances without a scientific test should be a factor to consider when viewing the “totality of circumstances” in cases involving law enforcement using the sight or odor of alleged marijuana for probable cause. In fact, at least one District Court in the Second Circuit has held: [T]he court takes judicial notice of the indisputable fact that marijuana and hemp are varieties of the same species, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n. 11 (1993) (noting that a court may take notice of well-established scientific facts); accord Moyer v. IBM Corp., No. 02-CIV-8894 (GEL), 2003 WL 256931, at *2 (S.D.N.Y. Feb. 3, 2003), and infers from that fact that one could reasonably mistake the odor of one burning for the odor of the other burning. United States v. Bignon, No. 18-CR-783 (JMF), 2019 WL 643177, at fn. 2 (S.D.N.Y. Feb. 15, 2019), aff'd, 813 Fed. Appx. 34 (2d Cir. 2020) (emphasis added). All cannabis, regardless of whether it is hemp or marijuana, contains a mixture of chemicals called terpenes. It is important to note that the human nose dos not “smell” marijuana, it smells the terpenes of the cannabis plant. Approximately 150 terpenes have been scientifically identified20. It is these compounds that give cannabis its smell21. Simply put, all cannabis has the same smell which is caused by the presence of the same molecules, terpenes. This means that all an officer can detect is the odor of Cannabis sativa L., which is legal unless the THC concentration is over 0.3 percent. The officer or canine cannot detect the level of THC concentration. Therefore, while the odor of marijuana or burnt marijuana previously could establish probable cause to search in Texas, a detention or search based solely on the smell of cannabis or burning cannabis 20

Booth, J. K., & Bohlmann, J. (2019). Terpenes in Cannabis sativa - From plant genome to humans. Plant science: an international journal of experimental plant biology, 284, 67–72. https://doi.org/10.1016/j.plantsci.2019.03.022, attached as Exhibit 4. 21 Breitmaicr, Eberhard. Terpenes: Flavors, Fragrances, Pharmaca, Pheromones. Weinheim: WILEY-VCH; 2008; pp. 176-177 (“A compound smells if it is sufficiently volatile. This applies predominantly to monoterpenes, but also to various sesqui- and diterpenes, as fragrances reach the appropriate receptors of the epithelium of the olfactory organ in the upper part of the nose. A molecule induces a specific sense of smell in the nose provided that its shape exactly matches a complementary cavity of the receptor, much as a key fits into a lock.”).

alone is arguably illegal. For these reasons, detentions based upon smell alone lack reasonable suspicion and searches based on the smell alone lack probable cause. It should now be argued that no probable cause exists if law enforcement has no reason to believe that the odor they claim they smell is not, in fact, hemp. Given the similarities of marijuana and hemp, not only does law enforcement lose its ability to form probable cause to search vehicles incident to the vehicle exception or use odor as the basis for probable case in a search warrant, but arrests of persons and seizures of green leafy substances are also devoid of probable cause absent other articulable facts indicating that the substance is in fact illegal marijuana. It should also be noted that smokable hemp containing CBD is widely used as a method of ingesting CBD for its medicinal effects. Many people prefer smoking hemp rather than using a “vape” cartridge given the unknown and often negative effects of “vaping” oils. Vape cartridges containing CBD are indistinguishable from vape cartridges containing an illegal amount of THC. It is impossible deduce the concentration levels of either CBD or THC within a cartridge just by looking at them. For this reason, as with the indistinguishability problems of marijuana and hemp, so too are substances containing CBD and THC likewise indistinguishable. For these reasons, the same arguments apply concerning the probable cause to search arrest and seize. Officers aren’t the alone in their inability to distinguish illegal marijuana from legal hemp or illegal THC from legal CBD. Narcotics detection dogs are likewise unable to make any meaningful distinctions. Cases involving indications that a “K-9 alerted to presence of narcotics” which form the basis of probable cause to search, are also ripe for suppression. No K-9s have ever be trained to distinguish between Hemp and Marijuana, assuming that there is any scientific basis to even do so. And these issues can create even worse problems for cases relying on K-9 sniffs. Because of this, an “alert” from a K-9 can now be a false positive. In Colorado, where small amounts of marijuana were legalized in 2012, drug dog searches became problematic because the animals would alert officers to a legal amount of marijuana. See People v. McKnight, 2019 CO 36, 446 P.3d 397, reh’g denied (July 1, 2019). There, the Colorado Supreme Court ultimately held that police had to establish probable cause before using a drug-sniffing dog, a move that led authorities to roll back the role of dogs in drug cases. The McKnight Court noted: [T]he drug-detection dog used to find the pipe, Kilo, was trained to alert on multiple drugs, including marijuana. Even a hint of marijuana can trigger the same response from Kilo as any quantity of methamphetamine. ¶3 And that’s where things get tricky. After all, the possession of an ounce or less of marijuana by someone twenty-one or older is legal in Colorado, following the passage of Amendment 64, Colo. Const. art. XVIII, § 16(3), even though such possession remains illegal under federal law. Thus, no matter how reliable his nose, Kilo can now render a kind of false positive for marijuana. He has been trained to alert to marijuana based on the notion that marijuana is always contraband, when that is no longer true under state law. And historically, whether a drug-detection dog might alert on 12

noncontraband drives whether the dog’s sniff constitutes a search implicating constitutional protections. The dog’s sniff arguably intrudes on a person’s reasonable expectation of privacy in lawful activity. If so, that intrusion must be justified by some degree of particularized suspicion of criminal activity. See id. at 399. Likewise, in Texas, although marijuana has not been legalized, hemp has been. Therefore, “where things get tricky in Texas” is that a “sniff” performed by a canine or person here can now “render a kind of false positive for marijuana” based on the notion that the substance alleged to have the odor of marijuana is always marijuana. In Texas, a “sniff” can also detect lawful activity, namely the legal possession of hemp. While the McKnight case law is not binding, its language is persuasive. There are currently no field tests which can differentiate between hemp and marijuana. Law enforcement agencies are now recognizing this fact. For example, in the State of Florida, the State’s Attorney for the Eleventh Judicial Circuit sent a memo to Law Enforcement Agencies within the Eleventh Judicial Circuit of Florida indicating: Because hemp and cannabis both come from the same plant, they look, smell, and feel the same. There is no way to visually or microscopically distinguish one from the other. Similarly, since hemp can be – and is - also smoked, there is no olfactory way to distinguish hemp from marijuana. In either their raw vegetative state, or while burning, both hemp and cannabis smell the same. Accordingly, the only way to distinguish legal hemp from illegal cannabis is through quantitative testing. … Since there is no visual or olfactory way to distinguish hemp from cannabis, the mere visual observation of suspected cannabis – or its odor alone – will no longer be sufficient to establish probable cause to believe that the substance is cannabis. Some agencies have established what they have referred to as an “odor plus” standard for establishing probable cause. See Office of the State Attorney for the Eleventh Judicial Circuit, Interoffice Memo “Re: Marijuana Cases in the Wake of the ‘HEMP’ Bill (Senate Bill 1020), Dated August 5, 2019, attached as Exhibit 2. Similarly, the Miami-Dade Police Department issued a statement indicating: Hemp and cannabis look, feel and smell the same, and both can be smoked. Currently, there is no way to distinguish between hemp and cannabis based on plain view or odor alone. Accordingly, officers can no longer search a vehicle based solely on the odor of cannabis. Now you must articulate

additional factors that lead you to believe that the substance is illegal cannabis, based on the totality of circumstances. You need “odor plus.” 22 Likewise, the North Carolina Bureau of Investigation recently recognized that no law enforcement officer can visually tell the difference between the illegal hemp and illegal marijuana, nor can its officers or its K-9s detect the difference in odor23. Moreover, the U.S. Drug Enforcement Administration put out a request for information on private companies that might have the technology for field tests sensitive enough to distinguish between hemp and marijuana24. If there is no probable cause, the arrest should obviously be suppressed. Don’t forget, however, the seizure should be suppressed, too. Without the requisite probable cause, it is likely that any incriminating post-arrest statements should also suppressed, as well as any testing to confirm the substance is THC. If argued correctly, this can be a huge tool to use to get your case dismissed. For example, in a possession case involving alleged THC oil, if there is no pre-arrest admission that the substance in question is THC oil, and not CBD oil, it is virtually impossible for the officer to distinguish between the two. It is also very important to note that field tests cannot give probable cause to arrest in this situation because a substance containing less than 0.3 percent of THC can produce a positive result while remaining a legal substance. What the state has to prove. As noted by DA Joe Gonzales, “[t]he immediate effect of the hemp law is that it requires the state to prove a THC concentration on marijuana cases that cannot be accomplished without lab testing.”25 It can now be argued in marijuana cases that the State has to prove beyond a reasonable doubt that the substance in question is not legal hemp, but rather a substance containing more than .3% THC. This has proven to be a difficult task for prosecutors, as THC-level testing is still developing and uncommon. The lack of testing resources to distinguish between Marijuana and Hemp casts too much reasonable doubt over criminal proceedings, which is why, as mentioned above, many counties are either tossing low-level marijuana cases or holding off on pursuing 22

See Iannelli, Jerry. “Miami-Dade Cops Won't Stop People for ‘Weed Smell’ Alone Thanks to New Law”. Miami New Times. (Jul. 19, 2019). Available at: https://www.miaminewtimes.com/marijuana/miami-dade-police-sayscops-cant-pull-you-over-for-weed-smell-11222985. 23 North Carolina State Bureau of Investigation, Industrial Hemp/CBD Issues. Available at: https://www.sog.unc.edu/sites/www.sog.unc.edu/files/doc_warehouse/NC%20SBI%20%20Issues%20with%20Hemp%20and%20CBD%20Full.pdf (last accessed Jan. 1, 2022). Attached as Exhibit 6. 24 See “Legal hemp, pot’s look-alike, creates confusion for police”. CNBC. (Mar. 28, 2019). Available at: https://www.cnbc.com/2019/03/28/legal-hemp-pots-look-alike-creates-confusion-for-police.html; see also McGivern, Kylie. “K9 retirement, backlog in test kits under Florida'’ new hemp law.” ABC Action News WFTS Tampa Bay. Available at: https://www.abcactionnews.com/news/local-news/i-team-investigates/k9-retirement-backlogin-test-kits-under-floridas-new-hemp-law (“Hemp has a lower THC concentration than marijuana. But to drug sniffing dogs, it smells the same.”). 25

Statement on hemp/marijuana case filing policy. Bexar County District Attorney’s Office. 03 July 2019. Available at: https://www.bexar.org/CivicAlerts.aspx?AID=513.

criminal charges in larger cases. If you have a case where a private lab has determined the level of THC-concentration in a material, remember to challenge its validity and remember the Daubert Factors required for expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). There currently exist no peer reviewed scientific procedures to test THC concentration levels in Cannabis sativa L. While arguably, High Performance Liquid Chromatography (HPLC) could produce concentration levels, no studies have been produced or peer reviewed. Even with the limited use of HPLC to obtain concentration levels for commercial marketing reasons in recreational jurisdictions, the experimental nature of those procedures does not meet the necessary Daubert standards and have technical problems of their own. How we instruct the jury. Because of the new hemp laws, changes are required in how juries are instructed when it comes to alleged marijuana cases. Because the definition of marijuana has changed to exclude material with 0.3 percent THC concentration or less, juries should be instructed accordingly. Juries should also be instructed that it is the government’s burden to prove beyond a reasonable doubt that the alleged marijuana does in fact have a concentration above 0.3 percent THC. Obviously, since no expert can testify to this fact, your chances of winning greatly improve. Hemp is just back door jury nullification. We already know that the public’s appetite for prosecuting marijuana is virtually gone. Assuming the state could even empanel a jury that could convict or punish someone charged with possession cannabis in 2020, why would they ever want to. Obviously, in most possession cases of any type of contraband the only way to when is through suppression. If they caught you red handed, what’s your defense? You can’t just argue to the jury, “C’mon, it’s just weed” can’t you? Maybe now you can? If you lose that suppression issue, remember you can always put it to a jury with at 38.23 instruction. But more importantly, think about this argument. If you have sufficiently Voir Dired on how many states and how many millions of Americans are making billions of dollars in legal cannabis markets, and how important it is to hold the state accountable to the proper standards of testing and reasonable doubt they should be ready for virtual cannabis nullification. “Sure, we know that its weed” but the state never proved beyond a reasonable doubt that the weed had more than 0.3 THC in it. They set the bar at 0.3 percent, they should have to reach that bar, that’s what the legislature wanted. Malum prohibitum laws are technical ones to begin with. There is nothing inherently evil with that green leafy substance. Its technically illegal, not actually evil. So, it stands to reason, they must technically prove it’s got more than .03 percent THC. The same is true in federal court. Obviously, the issues are a lot heavier to contend with when we are in federal court, but these same concepts hold true. Because these concentration distinctions come directly from the federal “Farm Bill,” all of the arguments apply equally. And in reality, a marijuana case in federal court obviously will have more serious consequences than in state court, so all the more reason to fight.

How we negotiate with Prosecutors. The new hemp laws give us more leverage when negotiating plea agreements with the government. Remember all the arguments discussed in this article and highlight some of them when discussing your marijuana case with prosecuting attorneys. Convince them that if pushed to trial, you will hold them to their burden and will make them prove every element of their case, which may prove difficult concerning the current inability to test THC levels. If you have a good suppression issue, use that to your advantage to try and secure a dismissal. CONCLUSION The attitudes surrounding marijuana have drastically changed both in the United States and in Texas and show strong support in favor of legalization. Nationwide and statewide polls reveal a strong pattern in favor of marijuana legalization, evidenced by the fact that 46 states in America have some form of legalization and that it’s fully legal for adults 21 years of age or older in 18 of those states. In Texas, numerous counties are no longer prosecuting small-amount marijuana possession cases, including Bexar, Harris, and Dallas County. The 2018 Farm Bill and Texas’ House Bill 1325 have changed the landscape of criminal defense for marijuana cases indefinitely and gave criminal defense lawyers new and effective tools to use to beat marijuana cases. So, fight every fight, NEVER plea a misdemeanor marijuana case and NEVER let anyone become a felon for marijuana. And to quote our homie Dr. Dre, “Smoke [hemp] everyday” .

EXHIBIT 1

April 20, 2022 Hon. Ken Paxton Attorney General of the State of Texas Attn: Opinion Committee P.O. Box 12548 Austin, Texas 78711-2548 Re: request for an opinion regarding whether the exclusion of “tetrahydrocannabinols in hemp” from the statutory definition of “controlled substance” precludes prosecution of individuals for the possession and sale of delta8 tetrahydrocannabinol products derived from hemp. Dear Attorney General Paxton, The following is Texas Criminal Defense Lawyers Association’s response to the Montgomery County District Attorney’s request for opinion on the following questions: Are products containing concentrated or synthesized delta-8 THC still unlawful to possess or sell under sections 481.103, 481.113, and 481.116 of the Texas health and Safety Code? Or are delta-8 THC products no longer subject to prosecution under 481.002(5) of the Health and Safety Code—which excludes “tetrahydrocannabinols in hemp” from the statutory definition of “controlled substance”—if delta-8 THC is extracted or synthesized from lawfully-grown hemp products? Summary of Answer: Concentrated or synthesized Delta-8 THC is currently illegal under sections 481.103, 481.113, 481.116 as well as section 481.106 (c) of the Texas Health and Safety Code. The exclusion set out in section 481.002(5) for “tetrahydrocannabinols in hemp” is limited to the minute quantities of delta-8 THC which are naturally occurring in hemp plants.

Background Delta-8 THC is a naturally occurring cannabinoid within the cannabis plant1. The natural delta-8 THC found in cannabis plants is very minute and therefore not concentrated or synthesized2. Those small amounts of natural delta-8 THC are legal under section 481.002(5) of the Texas Health and Safety Code. However, the direct extraction of natural delta-8 THC from cannabis plants is extremely cost prohibitive and rarely, if ever, conducted compared to the current method of conversion from CBD3. Cannabidiol, CBD, began to be first seen in the marketplace with the legalization of hemp first in 2014 through state pilot projects and then flooded the market with the 2018 Federal Farm Bill and House Bill 1325 in Texas4. Like all market forces, the supply of CBD far outpaced the demand and prices for CBD plummeted. This left hemp producers and distributors with tons of biomass that could not be sold5. The market’s solution was to create delta-8 THC, a synthesized cannabinoid made by converting either CBD or delta-9 THC. The products being sold on the shelves throughout Texas are not made with the naturally occurring delta-8 THC they are made with this synthesized delta-8 THC6. It is this conversion process that makes delta-8 THC illegal. Other States Delta-8 THC is illegal in at least 13 states: Alaska, Colorado, Delaware, Idaho, Iowa, Montana, New York, Nevada, North Dakota, Rhode Island, Vermont, Utah, and Washington. Colorado’s Marijuana Enforcement Division issued a notice stating that “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of the “industrial hemp product.”7 New York added the following language to their hemp rules Products may “not contain synthetic cannabinoids, or cannabinoids created through isomerization, including delta-8 tetrahydrocannabinol and delta-10 tetrahydrocannabinol.”8 Vermont Hemp Rules ban the “use of synthetic cannabinoids in the production of any hemp product or hemp-infused product.”9 Vermont Hemp Rules § 6.3. So, while naturally occurring delta-8-THC is not barred from hemp or hemp products, Vermont producers cannot manufacture the delta-8-THC cannabinoid from hemp. 1

https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc Id. 3 https://cen.acs.org/biological-chemistry/natural-products/Delta-8-THC-craze-concerns/99/i31 4 https://www.hempgrower.com/article/6-strategies-overcoming-hemp-oversupply-legislation-exports-delta-8-thc/ 5 Id. 6 https://cen.acs.org/biological-chemistry/natural-products/Delta-8-THC-craze-concerns/99/i31 7 https://cbdoracle.com/news/policy/delta-8-thc-legal/ 8 https://hemptoday.net/new-york-adopts-final-rules-banning-delta-8-thc-smokable-hemp/ 9 https://agriculture.vermont.gov/hemp-program/manufacture-delta-8-thc-or-its-use-hemp-products-permitted-undervermont-hemp-program 2

There are multiple bills currently pending around the country to make delta-8 THC illegal or at least clarify that synthetic delta-8 THC is illegal. Clearly it was no states intention to legalize a psychoactive cannabinoid without some type of regulation or oversight. Texas Health and Safety Code Section 481.103(a)(1) of the Texas Health and Safety Code includes tetrahydrocannabinols and synthetic equivalents of the substances contained in the plant. First, delta-8 THC is a tetrahydrocannabinol10, and therefore illegal if not in hemp. Second, synthetically created delta-8 THC also falls within this definition. Delta-8 THC that is converted from CBD to delta-8 THC is not the naturally occurring cannabinoid that would be exclude under section 481.002(5) of the Texas Health and Safety Code. Since synthetic cannabinoids, i.e delta-8 THC, are included in the list of penalty group 2 substances prosecution under 481.113 and 481.116 would be proper. Additionally, prosecution under 481.106 controlled substance analogue would also be proper. Section 481.106 (6) Classification of Controlled Substance Analogue includes a “controlled substance analogue” that means: (1) a substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 1-B, 2, or 2-A; or (2) a substance specifically designed to produce an effect substantially similar to, or greater than, the effect of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 1-B, 2, or 2-A. Delta-8 THC is clearly an analogue as defined by this code section. It is a mirror image of Delta9 THC at the molecular level, thus satisfying11 (1). Delta-8 THC also has a high affinity for binding at the CB1 receptor12, those producing a similar effect on the body to delta-9 THC, satisfying (2). For this reason, synthetically created delta-8 THC can also be prosecuted as an analogue under the Health and Safety Code definition.

https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc https://precisionextraction.com/2021/06/delta-8-vs-delta-9-thc-what-it-is/ 12 Id. 11

Conclusion It is the opinion of the Texas Criminal Defense Lawyers Association that all concentrated or synthetically produced delta-8 THC is illegal and can be prosecuted under sections 481.113 or 481.116 of the Texas Health and Safety Code as a penalty group 2 substance or an analogue of a penalty group 2 substance. Any natural delta-8 THC in hemp is legal and excluded from the definition of controlled substance under section 481.002(5) of the Texas Health and Safety Code. /s/ Donald H. Flanary, III. Donald H. Flanary, III. Chairman, TCDLA Cannabis Committee /s/ Adam Tisdel Adam Tisdel Member, TCDLA Cannabis Committee /s/ Daniel Mehler Member, TCDLA Cannabis Committee

EXHIBIT 2

OFFICE OF THE STATE ATTORNEY ELEVENTH JUDICIAL CIRCUIT

KATHERINE FERNANDEZ RUNDLE STATE ATTORNEY

INTEROFFICE MEMORANDUM

TO:

Law Enforcement Agencies within the Eleventh Judicial Circuit of Florida

DATE:

FROM: KATHERINE FERNANDEZ RUNDLE State Attorney Eleventh Judicial Circuit

RE:

August 5, 2019

Marijuana Cases in the Wake of the "HEMP" Bill (Senate Bill 1020)

On June 25, 2019, Governor DeSantis signed into law Senate Bill 1020, also known as the “Hemp” Bill. This law, which has significant impact upon law enforcement, took effect on July 1, 2019. The bill creates a state hemp program, which legalizes the possession and use of hemp. Hemp is defined in the bill as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.” See Florida Statute §581.217(3)(d). The Bill also changes the definition of “Cannabis” in Florida Statute §893.02 such that the term “Cannabis” does not include hemp as defined in s. 581.217. Hemp and cannabis both come from the same plant, Cannabis sativa L. The only difference between hemp and cannabis is that hemp has a total delta-9 tetrahydrocannabinol (THC) concentration that does not exceed 0.3 percent. If the THC concentration of the plant does not exceed .3 percent, then the plant is hemp, and is legal in Florida. If the THC concentration of the plant does exceed .3 percent, then the plant is cannabis, and is illegal in Florida. This significant change in the law will impact police and prosecutors in Florida, just as it has impacted police and prosecutors in other jurisdictions that have had similar legislation enacted. The greatest impact will be upon probable cause determinations by police and sheriff’s offices, and upon State Attorney’s Offices’ ability to prove beyond a reasonable doubt that a substance is cannabis, an illegal controlled substance under Florida Statute 893.02, and not hemp. Because hemp and cannabis both come from the same plant, they look, smell, and feel the same. There is no way to visually or microscopically distinguish one from the other. Similarly, since hemp can be – and is - also smoked, there is no olfactory way to distinguish hemp from marijuana. In either their raw vegetative state, or while burning, both hemp and cannabis smell the same. Accordingly, the only way to distinguish legal hemp from illegal cannabis is through quantitative testing. Page 1 of 3

A. Probable Cause Determinations Since there is no visual or olfactory way to distinguish hemp from cannabis, the mere visual observation of suspected cannabis – or its odor alone – will no longer be sufficient to establish probable cause to believe that the substance is cannabis. Some agencies have established what they have referred to as an “odor plus” standard for establishing probable cause. Some of the factors that may lend themselves to helping to establish probable cause include – but are not limited to – the following: 1. 2. 3. 4. 5. 6.

Information or intelligence regarding illicit activity prior to the stop Knowledge of the subject’s prior recent criminal history for narcotics violations Observation of a hand-to-hand transaction prior to the stop Admission that the substance is – in fact – illegal cannabis Conflicting or nonsensical statements Nervousness, such as: a. Sweating when it is not hot b. Shaking or trembling hands c. Avoiding eye contact 7. Furtive movements 8. Discarding, destroying, or trying to hide a substance 9. A large amount of currency 10. Currency in rubber-banded “quick count bundles” 11. Masking agents such as fabric softener, air fresheners, or coffee grinds 12. Firearms or other weapons 13. Drug paraphernalia, such as baggies, pipes, heat sealers, or scales (although legal hemp may be stored in a baggie and smoked in a pipe as well) 14. Signs of impairment on a driver (such as bloodshot, watery eyes or slurred speech) This is a non-exhaustive list of some additional factors that may, in various combinations, lend themselves to establishing probable cause. Law enforcement officers should consider each of these factors, as well as look for other evidence of illegality, before taking any action that requires probable cause. We recommend that you consult your police legal advisor for guidance on particular factual scenarios that your officers may encounter in the field. Probable cause has always been assessed under the totality of the circumstances.

B. Prosecutions of Cannabis Offenses Since the Hemp Bill Came into Effect In any criminal trial involving a cannabis offense, the state is required to prove beyond a reasonable doubt that the suspected substance is, in fact, illegal cannabis, and not hemp. As stated previously, since cannabis and hemp are visually and microscopically identical – and smell exactly the same – in Page 2 of 3

order to prove that the substance is cannabis the state will need to prove that the substance has a delta-9 tetrahydrocannabinol (THC) concentration that exceeds 0.3 percent on a dry weight basis. The State Attorney's Office will need a laboratory test result that indicates that, in fact, the substance is illegal cannabis – as opposed to hemp – before filing formal charges in a case. Due to the fact that the speedy trial period under Florida Rule of Criminal Procedure 3.191 begins to run once a defendant is arrested, officers should not make a probable cause arrest for a cannabis-related offense until obtaining a positive laboratory result. However, the officer should still impound the suspected cannabis. The Miami-Dade Police Department Forensic Services Bureau Crime Laboratory does not currently determine the amount of THC in cannabis. The Miami-Dade Police Department is working diligently to gain the capability to perform the lab testing necessary to distinguish hemp from illegal cannabis. It is anticipated that the MDPD Crime Lab will have the ability to perform the required testing in approximately 3 to 6 months. We will send out a follow-up announcement in the future advising of when the MDPD Crime Lab is able to perform the necessary testing in house. In the meantime, in order to successfully prosecute a cannabis offense, it will be incumbent upon the law enforcement agency to submit suspected cannabis to another DEA-licensed facility for quantitative testing. To ensure that the results of any such testing are not excluded by the Court, the particular lab testing methodology utilized must be capable of meeting the Daubert predicate. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Please consult your police legal advisor in this regard. The cost of any such testing will be the responsibility of the law enforcement agency who submitted the sample for testing. Additionally, any expert witness fees beyond the amounts which are authorized by Administrative Order of the Eleventh Judicial Circuit of Florida will be the responsibility of the law enforcement agency who submitted the sample for testing. The expert witness fees which are established by Administrative Order of the Eleventh Judicial Circuit of Florida are seventy-five dollars ($75.00) per hour for actual courtroom testimony, fifty dollars ($50.00) per hour for preparation prior to court appearance or deposition and related consultation with an Assistant State Attorney, and twenty-five dollars ($25.00) per hour for travel time or time waiting to testify in court. Up until now, there was no laboratory expense involved in marijuana prosecution cases, as any necessary testimony was from the Miami-Dade Police Department Forensic Services Bureau Crime Laboratory personnel. Since every marijuana case will now require an expert, and necessitate a significant expenditure by the State of Florida, barring exceptional circumstances on a particular case, we will not be prosecuting misdemeanor marijuana possession cases.

Page 3 of 3

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Not Good or Bad, Just Labs Speaker: Deandra Grant 3300 Oak Lawn Ave Ste 700 Dallas, TX 75219-4270 (972) 943-8500 Phone (972) 432-7547 Fax TexasDWIGal@gmail.com Email www.texasdwisite.com Website

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

Not Good or Bad: Just Labs Deandra Grant, JD, GC, MS Deandra Grant Law Deandra M. Grant, JD, GC, MS #tcdlarusty2022 #tcdlastrong

LawyerScientist Program at Axion Labs in Chicago #tcdlarusty2022 #tcdlastrong

• Time of last drink if given

Create a Blood Timeline

• Time of driving • Time of warrant signing or consent • Time of blood draw • Time of log in to property room refrigerator (if any) • Date of transfer to lab • Date of testing

#tcdlarusty2022 #tcdlastrong

Blood Tubes They leave the manufacturer: • Sterile • Sealed • Appropriate vacuum

#tcdlarusty2022 #tcdlastrong

The powder additive keeps blood from clotting and “rotting”.

#tcdlarusty2022 #tcdlastrong

Red Green

Gray/ Yellow

Gray Orange

• None (glass) Clot activator • •Sodium heparin (plastic) • Lithium heparin

8 0 8 5 8

For serum determinations in chemistry. May be used for donor screening and diagnostic testing of Forroutine plasmablood determinations in chemistry. serum for infectious Tube inversions prevent disease.** clotting. Tube inversions ensure mixing of clot activator with blood. Blood clotting time: 60 minutes.

Thrombinoxalate/ • •Potassium sodium fluoride • Sodium fluoride/Na2 EDTA • Sodium fluoride (serum tube)

8 8

stat serum determinations chemistry. ForFor glucose determinations. Oxalateinand EDTA Tube inversions ensure complete clotting, which usually anticoagulants will give plasma samples. occursfluoride in less than minutes. Sodium is the5antiglycolytic agent. Tube inversions ensure proper mixing of additive and blood. ForFor lead determinations. This tubeand is certified trace-element, toxicology, nutritionalto chemistry contain less than .01 µg/mL(ppm) Tube determinations. Special lead. stopper inversions prevent clotting. formulation provides low levels of trace elements (see package insert).

8 8

• •K2Clot EDTAactivator (plastic) (plastic serum) 8 8 8 8 • K2EDTA (plastic) 0 5 8 • Sodium 8 polyanethol sulfonate (SPS) 8 • Sodium heparin • •Acid citrateheparin dextrose Lithium 8 additives (ACD): Solution A 8 22.0 g/L trisodium citrate, 8.0 g/L citric acid, •24.5 Potassium oxalate/ 8 g/L dextrose sodium B fluoride Solution 8 •13.2 Sodium fluoride/Na 8 2 EDTA g/L trisodium citrate, g/L citric acid, (serum tube) 8 •4.8 Sodium fluoride 14.7 g/L dextrose • K2EDTA (plastic) 8 8 • Liquid K3EDTA (glass) • Spray-coated K2EDTA 8 8 (plastic)

Royal Tan Blue

Yellow

Green

Gray

Tan Lavender

• •K2Sodium EDTA with gel 8 8 polyanethol sulfonate (SPS) • Acid citrate dextrose additives (ACD): Solution A 8 22.0 g/L trisodium citrate, • Spray-coated 8 2EDTA 8.0 g/L citricKacid, 24.5 g/L dextrose Solution B 8 13.2 g/L trisodium citrate, 4.8 g/L citric acid, 14.7 g/L dextrose 3-4 • Buffered sodium citrate 0.105 M ( glass EDTA (glass) 8 • Liquid K33.2%) 0.109 M ( 3.2%) plastic • Spray-coated K2EDTA 8 • Citrate, theophylline, 3-4 (plastic) adenosine, dipyridamole (CTAD) • None (plastic) 0 • K2EDTA with gel 8

SPS for blood culture specimen collections in microbiology. inversions prevent clotting. For plasmaTube determinations in chemistry. Tube inversions prevent clotting. ACD for use in blood bank studies, HLA phenotyping, and DNA and paternity testing.

For glucose determinations. Oxalate and EDTA anticoagulants will give plasma samples. Sodium fluoride is the antiglycolytic agent. Tube inversions ensure proper mixing of additive and blood. For lead determinations. This tube is certified K2EDTA and Kless for.01 whole blood hematology 3EDTA to contain than µg/mL(ppm) lead. Tube determinations. K2EDTA may be used for routine inversions prevent clotting. immunohematology testing and blood donor screening.*** Tube inversions prevent clotting. blood culture specimen ForSPS usefor in molecular diagnostic testcollections methods in microbiology. Tube inversions prevent clotting. (such as but not limited to polymerase chain reaction [PCR] and/or branched DNA [bDNA] amplification techniques). ACD for use in blood bank studies, HLA phenotyping, and DNA and paternity testing.

Lavender/purple top tubes are used for routine blood tests, including situations when whole blood is required for complete blood counts For whole blood hematology determinations. May be (CBC) and blood smears or blood typing. These tube tops include used for routine immunohematology testingthe and blood donor screening.*** Designed with special cross-match label for patient information required by the AABB. additive EDTA to prevent clotting. Tube inversions prevent clotting. Yellow White

Pink

Light Blue Lavender

New

Clear

For coagulation determinations. CTAD for selected platelet assays and routine K2EDTA and Kfunction 3EDTA for whole blood hematology coagulation determination. Tube be inversions determinations. K2EDTA may used for routine prevent clotting. immunohematology testing and blood donor screening.*** Tube inversions prevent clotting.

#tcdlarusty2022 #tcdlastrong For use as a discard tube or secondary specimen New Clear White

Partial-draw Tubes

Red/ Gray

Small-volume Pediatric •Tubes Spray-coated K2EDTA

(2 mL and 3 mL: 13 x 75 mm) (2 mL: 10.25 x 47 mm, 3 mL: 10.25 x 64 mm) Pink Red

New

• None

For usetube. in molecular diagnostic test methods collection (such as but not limited to polymerase chain reaction [PCR] and/or branched DNA [bDNA] amplification techniques). For whole blood hematology determinations. May be used for routine immunohematology testing and blood Designed with special cross-match Fordonor serumscreening.*** determinations in chemistry. May be used for label for patient information required by the AABB. routine blood donor screening, immunohematology Tube inversions prevent clotting. testing,*** and diagnostic testing of serum for infectious

Blood Tubes have expiration dates. According to the manufacturer: The expiration date on the tube label is stated as a month and year. The tubes expire at the end of the month that is stated on the label.

#tcdlarusty2022 #tcdlastrong

The expiration date applies to the integrity of the vacuum seal – not the chemicals inside the tube. Gray top tubes: •preservative sodium flouride (should have 100 mg) •anti-coagulant potassium oxalate (should have 20 mg)

#tcdlarusty2022 #tcdlastrong

According to the manufacturer: At what temperature should the BD Blood Collection Tubes be stored? BD tubes should be stored at 4-25'C (39-77'F).

#tcdlarusty2022 #tcdlastrong

Blood Storage Blood should be stored between 2-8 degrees Centigrade. Can the State prove refrigeration? How many days between the blood draw and the day the blood was tested? Can they account for the blood storage during that time?

#tcdlarusty2022 #tcdlastrong

Reported BAC is a result of a calculation of the ratio of the ethanol peak and the n-Propanol (internal standard) peak oToo much IS? IS and BAC is adjusted down oToo little IS? IS and BAC is adjusted up

#tcdlarusty2022 #tcdlastrong

Pipette A narrow, usually calibrated glass tube into which small amounts of liquid are suctioned for transfer or measurement. Were they calibrated?

Sample Preparation #tcdlarusty2022 #tcdlastrong

#tcdlarusty2022 #tcdlastrong

• DPS Garland no longer sending pipettes to a certified calibration lab for annual calibration • Changed their SOP to allow semi-annual, in-house “verification checks” • Pipette verification requires the use of a balance • They are still having their balances calibrated annually

#tcdlarusty2022 #tcdlastrong

• All the vials are exactly alike • The only identifying information is a number • MANY samples are run in a batch • It is up the analyst to put them in the right order

#tcdlarusty2022 #tcdlastrong

Contamination

#tcdlarusty2022 #tcdlastrong

PY O C TE D IN PR ED LL O TR N O C U N

#tcdlarusty2022 #tcdlastrong

PY C O TE D IN PR D LL E O TR N O C N U

#tcdlarusty2022 #tcdlastrong

Sloppy Work

#tcdlarusty2022 #tcdlastrong

Other Mistakes

#tcdlarusty2022 #tcdlastrong

E-030 FN011712-02 Revision 0 Page 1 of 2

fe Cerillianf ^^*J Aadytfgj hinwrn SnmJord.

Certificate of Analysis Certified (Reference Standard- <NIS(TfIracea6Ce

ISO/IK uow

Ethanol-80

"°1348S

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Ethyl Alcohol Catalog Number: Solution Lot: Expiration Date: Diluent: Volume per Ampoule:

E-030 FN011712-02 January 2017 Water 1.2 mL Refrigerate. Do not freeze. For R&D/ analytical purposes only. Not suitable for human or animal consumption.

Storage: Intended Use:

GMP/GIP

•

Expiration Date has been established through real time stability studies and applies to the ampoule stored unopened at the recommended storage condition.

•

Ampoules are overfilled to ensure a minimum 1.2 mL volume fill. We advise laboratories to use measured volumes of this standard solution before diluting to the desired concentration. The standard should be used immediately after opening to avoid concentration changes due to evaporation.

Component Ethanol

Solution Chromatographic Purity 100%

Certified Concentration 80.00 ± 0.28 mg/dL

#tcdlarusty2022 #tcdlastrong

Uncertainty of the concentration, expressed in terms of volume, is an expanded uncertainty in accordance with ISO 17025 and ISO Guide 34 at the 95% confidence interval using a coverage factor of k=2 and has been calculated by statistical analysis of our production methods applicable to ethanol reference standards and incorporates uncertainty of the purity factor, material density and mass measurement. The dispensing process is sufficiently controlled as to not be a significant contributor to uncertainly calculations and is, therefore, excluded. Solution stability is established through real time stability studies and is, therefore, excluded. When expressed in percentage terms, the relative standard uncertainty of the concentration is 0.175% and (he relative expanded uncertainty is 0.35% at the 95% confidence interval (k=2). The purity factor (PF) mass balance measurement equation is used to calculate the amount of ethanol required to achieve an accurate concentration of the solution standard, accounting for both purity and residual water content. Purity factor has been established through independent certification of Ihe neat analyte to ISO 172025 standards - See page 2.

THE POWER OF T H R E E

PHARMCO-AAPER

AND C O M M E R C I A L ALCOHOLS

Certificate of Analysis ETHYL ALCOHOL 200 PROOF, ABSOLUTE ACS/USP GRADE

THE POWER OF T H R E E

PHARMCO-AAPER

LOT#MF0125 QC009A1623 Date of Manufacture: 01/19/09 Recommended Retest Date: Three Years from Date of Manufacture* Main Catalog #: 1 ] 1000200, E200 This product meets or exceeds all specifications as »cl forth in the currtnt ACS/DSP monographs.

AND C O M M E R C I A L ALCOHOLS

Certificate of Analysis ETHYL ALCOHOL 200 PROOF, ABSOLUTE ACS/USP GRADE LOT#MF0125 QC009A1623 Main Catalog #: 1 ] 1000200, E200 This product meets or exceeds all specifications as »cl forth in the currtnt ACS/DSP monographs.

ion

on ater sidue olatile Residue

Monograph

SPECIFICATION

Results

ACS/USP ACS 27CFR 30.23 Pharmco

99.99% 0.02% 200.0 0.7905 0.7936 Pass Pass <5

USP USP USP ACS USP

USP ACS ACS USP ACS

Monograph

SPECIFICATION

Results

Assay (v/v) Water (w/w) Proof Specific Gravity Specific Gravity Identification Test A Identification Test B Color (APHA)

ACS/USP ACS 27CFR 30.23 Pharmco

99.99% 0.02% 200.0 0.7905 0.7936 Pass Pass <5

Clarity of Solution

USP

Color of Solution Solubility in Water Nonvolatile Residue Limit of Nonvolatile Residue Acetone/IPA Titrable Acid

Substances Darkened by Sulfuric Acid Substances Reducing Permanganate

USP ACS ACS USP ACS ACS ACS USP ACS ACS ACS

Ultraviolet Absorbance

USP

NLT 99.5% NMTO.2% Lot Analysis 0.7900-0.7932 ® 20°C Not more lhan 0.7962 @ 15.56°C It complies with the test for Specific Gravity Conforms to Infrared Spectra NMT 10 Test Solution A & B show same clarity as that of water, or their opalescencc is not more pronounced than that of Reference suspension A The Test solution has the appearance of water or is not more intensely colored than the Standard solution To Pass Test NMT 0.001% The weight of the residue does not exceed 2.5mg To Pass Tests NMT 0.0005 meq/g NMT 0.0002 meq/g The solution is pink (30ppm, expressed as acetic acid) NMT 0.1% To Pass Test To Pass Test 240nm 0,40 max. 250nm 0.30 max. 260nm 0.30 max. 270nm 0.10 max. 340nm 0.10 max. Absorption curve between 235nm - 340nm is smooth To Pass Test Methanol 100 ppm max. Sum of Acetal and Acetaldehyde lOppm max Benzene 2ppm max. Sum of all secondary peaks 300ppm max.

USP USP USP ACS

Titrable Base Acidity or Alkalinity Methanol

Date of Manufacture: 01/19/09 Recommended Retest Date: Three Years from Date of Manufacture*

y y est A est B

TEST

Ultra Violet Absorbance purged of O2

ACS

Volatile Impurities

USP

Pass Pass <O.OOI% <1.0mg Pass

Pass Pass <O.OOI% <1.0mg Pass <0. 0003 meq/g O.OOO 1 meq/s Pass O.000l%

Pass Pass 0.26 0.10 0.03 0.01 0.00 Pass Pass <l ppm <1 ppm <\m <5 ppm

romi; Elhanol. Pure. 200. ACS/USP. #101, Rev 4.4. 6/08. SAK

Approved by: E. Frenkel, Director of Quality Control Disclaimer Far Industrial, Pharmaceutical, Flavor & Fragrance or Lab Use. Nol intended for use as an active substance in Food or Drug. Not to be considered a Medical Device. Nol intended for use as a Disinfectant as defined by ihe RPA. The appropriate use of this product is the sole responsibility of the user. 'Excluding UV/Vis for pure Elhyl Alcohol (See shelf life statement). (Rev. # disclaimer only: Rev 3.5 11/06 EF) AnlSO90Ul:2CCO Certified Qmipwy

Pharmco Product* Inc.

58 V*l» Road, Brookflvld, CT 05804

Aap*r Alcohol • Clmmkal Co., Inc.

#tcdlarusty2022 #tcdlastrong Pass

Pass

1-8OO-243-5360

1101 IEMC Shelby Drive. Shelbyvlll*. KY 40065

www.prtArmco-prod.com

1-800-456-1017 www.Mpcr.com

#tcdlarusty2022 #tcdlastrong

Batch 1 Controls #tcdlarusty2022 #tcdlastrong

#tcdlarusty2022 #tcdlastrong

Batch 2 Controls #tcdlarusty2022 #tcdlastrong

#tcdlarusty2022 #tcdlastrong

Blanks

#tcdlarusty2022 #tcdlastrong

Samples

#tcdlarusty2022 #tcdlastrong

Quality Incident Reports (QIR’s) Quality Action Plans (QAP’s)

#tcdlarusty2022 #tcdlastrong

Knowledge Can Take You Far

#tcdlarusty2022 #tcdlastrong

End of Presentation Speaker Name Contact Information:

#tcdlarusty2022 #tcdlastrong

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: A Family Beef: Domestic Violence Speaker: Lisa Greenberg 622 S Tancahua St Corpus Christi, TX 78401-3426 (361) 446-2476 Phone (361) 288-3476 Fax lisagreenberglaw@gmail.com Email

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

Stepford Wives v. Real Housewives: 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 communication, funds ii. Motives: 1. Financial? 2. Affair? 3. Easy way out of marriage? 4. Hurt/Jealousy? 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. 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. 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. 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 and other civil cases (divorce? Protective order? Bankruptcy? Defaults on loans and money issues) 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

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. Tips: Get permission to cross complainant. This is very important and allows you to impeach without having to worry about not having the permission early on. 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 can’t deliver, you build credibility by delivering everything you said you were going to. 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. Tip: you don’t always have to have a cross that guts the witnesses (especially the complaining witness), consider a soft cross. In this, you get credit with the jury for not throat punching the CW, but simply exposing a motive, softly that verifies your story. 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.

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: Packin’ Heat: DW & Aggravated Findings Speaker: Monique Sparks 1923 Blodgett St Houston, TX 77004-5111 (713) 520-7000 Phone (713) 520-7013 Fax monique@thesparkslawfirm.com Email www.thesparkslawfirm.com Website

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

PACKING HEAT Introduction It would be an understatement to say that Texans love their guns. The State of Texas has made national news for its laws and views on firearms and countless movies, books and TV shows depict cowboys in shootouts amidst the lawless frontier. Texans warn others not to “mess with Texas,” in part because Texans carry enough heat to fend off even the most ferocious threats. From open carry to campus carry, Texans make up 10.5 percent of all registered weapons in the United States.1 Of course, with so many handguns in the atmosphere there will always be disputes that escalate into violence. For every dispute involving a pistol, a great lawyer is needed. The laws on firearms, deadly weapons, and what kinds of cases are considered “aggravated” when a firearm is involved have changed over the years. The purpose of this paper is to give additional insight into all the things that come with charges that stem from “Packing Heat.” One would assume that if Texas is so lenient about carrying firearms that the consequences of having a firearm would be as lenient as well. Unfortunately, that is not the case. A felony conviction of any kind will prohibit possession of a firearm for life. The only place a convicted felon can possess a firearm is in their residence and that is only after a considerable amount of time. After a felony conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later, the person is allowed to have a handgun at their place of residence.2 Even if an accused is not a convicted felon or has a license to carry, when certain crimes are committed with the aid or use of firearms the consequences are enhanced. Having a great grasp on the nuances of packing heat is essential to the Texas practitioner. 3G Offenses Whenever an accused is charged with a crime that includes the use of a firearm the charges will mostly likely be Aggravated. Unfortunately, aggravated charges are treated differently under the law and in most cases are more severe. The old way to reference Aggravated offenses was the term “3G.” The term “3G” originates from an old section of the Texas Code of Criminal Procedure: Texas Code of Criminal Procedure 42.12(3)(g). This section of the code listed the offenses for which the court was limited in its ability to order community supervision. The following offenses were all considered to be “3G”:

1 2

•

Capital murder

•

Aggravated kidnapping

•

Human trafficking

Texans love their firearms, more than any other state (chron.com) Texas Penal Code Ann. § 46.04

•

Indecency with a child

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Sexual assault

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Aggravated sexual assault

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Injury to a child, elderly, or disabled individual

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Aggravated robbery

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Burglary of a habitation to commit a felony other than theft

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Compelling prostitution of a minor by force, threat, or fraud

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Criminal solicitation of a first-degree felony

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Sexual performance by a child

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Drug offenses involving the use of a child, and

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Any felony in which a deadly weapon was used before, during, or after the crime.

In September 2017, the code was restructured. The result was that Texas Code of Criminal Procedure 42.12(3)(g) was replaced with 42A.054. Despite the name change most practitioners still refer to aggravated offenses as “3G” offenses. New Statue -Same Consequence The new statute (42A.054) referred to the same list of charges as previously stated in the prior statute. Unfortunately, the new statute did not change any of the consequences for these “3G” offenses. According to 42A.054 of the Texas Code of Criminal Procedure judges are prohibited from giving straight probation on any of the above listed enumerated charges. However, depending on the charge- the court can grant a deferred adjudication. Texas Code of Criminal Procedure 42A.054 only provides restrictions on the judge's ability to give straight probation. However, the option of probation is still available to a jury if your client is otherwise eligible for straight probation. It is always important to make sure the practitioner understands their client’s eligibility for certain types of community supervision and who (the judge or the jury) is authorized to grant it. When a defendant is charged with an aggravated offense, much of the strategy involved in fighting the case will depend on which trier of fact can give your client the best chance at a favorable resolution. Deadly Weapon Under the Penal Code, “deadly weapon” means a firearm, or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.3 An object may be a deadly weapon even though no wounds are inflicted.4 A "deadly weapon," as the basis for enhancing a penalty, may be anything, and there is no limitation as to what type of thing 3 4

Tex. Penal Code Ann. § 1.07(a)(17) Thomas v. State, 875 S.W.2d 774 (Tex. App. Beaumont 1994),

may be considered a deadly weapon.5 Whether or not an item was in fact a deadly weapon is a ripe area for trial. If the prosecution fails to show that the item used was capable of causing serious bodily injury or death, then you have a strong argument for directed verdict. It is important here, to really drive home what makes something deadly. Sure, the code does not put any limits on what a deadly weapon can be, so it is up to the practitioner to define what a deadly weapon is and differentiate their client’s conduct from the use of a deadly weapon. Affirmative Findings of Deadly Weapon The impact of using a deadly weapon during the commission of an offense is significant. Prior to 1977, affirmative findings were not a concern for the criminal practitioner. In addition to “3G” offenses, the 1977 Legislature also introduced us to affirmative findings with the implementation of Article 42.12 of the Texas Code of Criminal Procedure. 6 The changes in legislation created an avenue for what we now know as an affirmative finding. An affirmative finding is appropriate when the evidence shows the use or exhibition of a deadly weapon and that the trial court enters an affirmative finding of the same in the judgement.7 An affirmative finding of a deadly weapon in a court trial is decision that is left to the discretion of the court. A trial court is not required to enter a finding that a deadly weapon had been used in an offense even when the evidence supporting this finding is overwhelming. For example, no deadly weapon finding was necessary when a court accepted a defendant's guilty plea to an intoxication manslaughter even though the State had filed notice of its intent to seek an affirmative finding of use of a deadly weapon because the evidence supporting the finding was overwhelming.8 Affirmative findings can be entered when the trier of fact makes an affirmative finding if: (A) pleadings specifically place the issue before the trier of fact and a guilty verdict is returned, (B) the item is a deadly weapon as a matter of law, or (C) in response to a special issue submitted to the jury at the punishing hearing. The trier of fact's verdict on the indictment may constitute an affirmative finding.9 If the jury convicts of a lesser included offense, the judge can look to the application paragraph of the lesser offense to determine whether the jury made an affirmative finding of a deadly weapon and then enter it accordingly on the judgment.10 When fighting the affirmative finding, paying attention to the pleadings is critical. An affirmative finding is not a forgone conclusion, and if a deadly weapon is not properly pleaded, that is a powerful point of argument against such a finding. Collateral Consequences of Affirmative Findings of deadly weapon- Parole

Prichard v. State Act of May 30, 1977, 65th Leg. R.S. ch. 347, 1977 Tex. Gen. Laws 925, 926. 7 Tex. Code Crim. Proc. Ann. Art. 42A.054 8 Rodriguez v. State, 933 S.W.2d 702, 705 (Tex. App.—San Antonio 1996, pet. ref'd) 9 Polk v. State, 693 S.W.2d 391 (Tex.Crim.App. 1985) 10 Lafleur v. State, 106 S.W.3d 91 (Tex.Crim.App. 2003) 6

Affirmative findings are most impactful to the accused around parole. An affirmative finding of a deadly weapon has a direct impact on how much of the sentence a person must serve before they are eligible for parole. When there is a deadly weapon finding in the judgment and the offender is sentenced to prison, the offender must serve a longer period to achieve parole eligibility than an offender whose judgment did not include a deadly weapon finding because good time credits do not count for parole eligibility when there has been a deadly weapon finding.11 In addition, the offender is not eligible for release on mandatory conditional supervision and must, if not paroled, serve the entire sentence in prison.12 A person who is convicted of an offense that has an affirmative finding of deadly weapon, must do at minimum two years on any sentence. Affirmative findings of deadly weapon require a person to do half of their sentence before they are eligible for parole. As you can see, an affirmative finding can have drastic impacts on a defendant’s time in custody. It is important to understand what such a finding can mean for punishment when advising your client. It can mean spending extra years in prison if a deadly weapon finding is made. Conclusions When defending a case of “Packing Heat,” one must take a lot of things into consideration. In large part the affirmative finding of a deadly weapon depends on the individual facts and circumstances of each case. Understanding the applicable law and consequences to firearms is essential to obtain the best results for your client.

Tex. Gov't Code Ann. § 508.149 Id.

Texas Criminal Defense Lawyers Association

35th Annual Rusty Duncan Advanced Criminal Law June 16-18, 2022 Hyatt Regency Riverwalk 123 La Soya St. San Antonio, TX 78205

Topic: How to Get Away with Murder Speaker: Letica Quinones 2202 Ruth St Houston, TX 77004-5230 (713) 481-7420 Phone (713) 714-8670 Fax letitia@quinonesandassociates.com Email www.quinonesandassociates.com Website

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

How to Get Away with (Justified) Murder: Self-Defense & The Presumption of Reasonableness LETITIA D. QUINONES

QUINONES & ASSOCIATES, PLLC Houston, Texas

Letitia@quinonesandassociates.com 713-481-7420

Introduction Self-defense is a confession-and-avoidance defense requiring the defendant to admit to his otherwise illegal conduct. He cannot both invoke self-defense and flatly deny the charged conduct. Under Section 9.31, Self Defense, of the Texas Penal Code, a person is justified in using force against another “when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force.”1 Texas Penal Code Section 9.32, Deadly Force in Defense of Person, states that the use of deadly force is justified and legally permissible when, among other reasons, the actor is justified in using force under Section 9.31, and the actor reasonably believes deadly force is immediately necessary to protect against the other’s use, or attempted use, of unlawful deadly force.2 How to Defend Self-Defense—Deadly Force Presumption of Reasonableness Under section 9.32, the use of deadly force is presumed to be reasonable if the actor knew or had reason to believe that the person against whom the deadly force was used: 1) Was unlawfully and with force entering, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment; and 2) The actor did not provoke the person against whom the force was used and 3) The actor was not otherwise engaging in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. Lozano v. State, 636 S.W.3d 25, 30 (Tex. Crim. App. 2021). Deadly force by one actor is also permissible to “prevent the other [actor’s] imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery,

Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017).

TEX. PENAL CODE § 9.32(a)(2)(A).

Self-Defense & The Presumption of Reasonableness

or aggravated robbery.”3 This provision allows for use of deadly force to stop an actor’s attempt for any of the above-mentioned violent crimes. The individual using deadly force in self-defense is afforded a presumption on reasonableness only when that actor is not in midst of committing a crime4—such as unlawfully possessing a weapon. “Failure to fulfill the condition for the presumption, however, does not bar a self-defense claim.”5 Thus, even if an individual is unlawfully possessing a weapon, they may still successfully assert a claim of self-defense if their actions meet all the elements of the affirmative defense. Threat of Deadly Force Justification Although generally speaking, words alone are not enough to justify deadly force, Section 9.04 of the Penal Code provides a justification for deadly force even in verbal threat situations. In Gamino v. State, Gamino was arrested for aggravated assault with a deadly weapon after he pulled a gun out of his truck and pointed it at three men, allegedly saying “I got something for you.” Gamino, 537 S.W.3d at 509. Gamino disputed that evidence and testified that he drew his gun in self-defense after the men threatened him and his girlfriend. Id. At trial, Gamino requested a self-defense instruction, which was denied. The Court of Criminal Appeals concluded that Gamino was entitled to an instruction pursuant to section TEX. PENAL CODE § 9.04. Id. At 510. Because the evidence triggered application of § 9.04, which “is not a separate statutory defense, but is encompassed within Section 9.31,” the Court of Criminal Appeals held the trial court should have considered § 9.04 when considering Gamino’s request for an instruction on self-defense. Id. at 511; Happy Tran Pham v. State, 595 S.W.3d 769, 778-79 (Tex. App.—Houston [14th Dist.] 2019). Provocation A defendant may forfeit his right to self-defense if he provokes the attack: A jury instruction on provocation is required when there is sufficient evidence and the three elements of provoking the difficulty, set forth in Smith v. State,6 are present: (1) that the defendant did some act or used some words that provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and 3

Id. at § 9.32(a)(2)(B).

TEX. PENAL CODE § 9.31(a)(3).

Rogers v. State, 550 S.W.3d 190, 193 (Tex. Crim. App. 2018).

965 S.W.2d 509 (Tex. Crim. App. 1998).

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(3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Elizondo v. State, 487 S.W.3d 185, 196-97 (Tex. Crim. App. 2016). With regard to the first of the three Smith elements, there must be some evidence from which a rational jury could find beyond a reasonable doubt that some act or words of the defendant actually caused the attack on him. In addition, acts or words directed at a third party may likewise provoke a difficulty. Elizondo v. State, 487 S.W.3d 185, 199 (Tex. Crim. App. 2016). Even if acts or words may cause an attack on the defendant, if such acts or words were not reasonably calculated to do so, the defendant will not lose his right to self-defense. Elizondo v. State, 487 S.W.3d 185, 199 (Tex. Crim. App. 2016). A defendant's intentions can be determined from his words, acts, and conduct, occurring before, during, or after the provocation. Intent is a fact question to be determined from all the circumstances. The acts of provocation alone can carry the inference of intent. Elizondo v. State, 487 S.W.3d 185, 201-02 (Tex. Crim. App. 2016) Apparent Danger “The ‘apparent danger’ doctrine allows a person to defend himself from apparent danger to the same extent as he would if the danger were real; therefore, no evidence is necessary to show that the aggressor was actually using or attempting to use deadly force. See, e.g., Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980). However, the statutory requirement that the belief must be reasonable mitigates this doctrine because it requires that a reasonable person would have believed there was a danger of death or serious bodily injury apparent danger is not judged solely by the accused’s subjective perception. See TEX. PENAL CODE § 9.32; Semaire, 612 S.W.2d at 530.” Cantu v. State, No. 13-08-00666-CR, 2010 Tex. App. LEXIS 9522, at *5-6 (Tex. App.— Corpus Christi, Nov. 30, 2010). Jury Instructions A defendant is entitled to a self-defense jury instruction if he has “sufficiently admit[ed]”7 to the commission of the offense and the trial evidence establishes the elements of a self-defense claim under the Penal Code. When evaluating whether trial evidence establishes the prima facie elements of a defensive theory, appellate courts view the evidence in the light most favorable to

Gamino, 537 S.W.3d at 511–12 (holding that a defendant does not need to admit to every element of the crime charged if the defendant has adequately admitted to commission of the offense).

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the defendant’s requested submission.8 A reviewing court offers no deference to the trial court’s ruling on the instruction.9 “A trial court errs in denying a self-defense instruction if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self-defense.”10 The right to an instruction “on every defensive issue raised by the evidence” exists “whether the evidence is strong, feeble, unimpeached, or contradicted, and even when the trial court thinks that the testimony raising the defense is not worthy of belief.”11 The legal bar for successfully raising a defensive theory is low to ensure that the jury, not the court, decides the evidence’s credibility.12 “When a judge refuses to give an instruction on a defensive issue because the evidence supporting it is weak or unbelievable, he effectively substitutes his judgment on the weight of the evidence for that of the jury”13 The use of deadly force under section 9.32 requires a “reasonable belief” on the part of the actor that deadly force is immediately necessary. The Texas Court of Criminal Appeals has held that “it is not for the trial court to judge the reasonableness or viability of the alleged defense; such determination is rightfully left to the trier of facts.”14 Texas appellate courts have repeatedly held that a self-defense jury instruction is warranted when prima facie evidence, even if contradicted by other evidence, shows an actor used deadly force to prevent the other actor’s eminent commission of an offense enumerated in section 9.32(a)(1)(B) such as robbery or sexual assault.15 Thus, an actor’s use of deadly force is permitted

Bufkin v. State, 179 S.W.3d 166, 169–70 (Tex. App.—Houston [14th Dist.] 2005) aff’d, 207 S.W.3d 779 (Tex. Crim. App. 2006).

Id. at 172–73.

Gamino, 537 S.W.3d at 510.

Johnson v. State, 271 S.W.3d 359, 362 (Tex. App.—Beaumont 2008, pet. ref’d) (emphasis added) (citing Walters v. State, 247 S.W.3d at 208-09).

Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999.

Woodfox v. State, 742 S.W.2d 408, 410 (Tex. Crim. App. 1987).

Sanders v. State, 707 S.W.2d 78, 79–80 (Tex. Crim. App. 1986) limited on other grounds, Willis v. State, 790 S.W.2d 307, 313–14 (Tex. Crim. App. 1990); see also Rodriquez v. State, 544 S.W.2d 382, 384 (Tex. Crim. App. 1976.

Gamino v. State, 537 S.W.3d 507, 512 (Tex. Crim. App. 2017) (holding trial court erred by denying self-defense instruction to actor who used the threat of deadly force to prevent another actor’s attempted use of unlawful force); Romero v. State, 663 S.W.121 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d).

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to protect the actor against the “attempted use of unlawful deadly force” or to stop “the imminent commission” of a robbery or aggravated robbery against the actor. “‘A defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that the element is true.”16 Self-Defense and the Uniquely Texas State of Mind Stand Your Ground Before 2007, the deadly-force self-defense statute provided for a general duty to retreat, but that duty was removed from the statute effective September 1, 2007, and “stand your ground” provisions were added. Since then, the Court of Criminal Appeals has held that the inclusion of a “general duty to retreat” instruction is erroneous and constitutes an improper comment on the weight of the evidence. Lozano v. State, 636 S.W.3d 25, 31 (Tex. Crim. App. 2021) (citing Morales v. State, 357 S.W.3d 1, 6 (Tex. Crim. App. 2011). Texas is one of 23 states that employs the Castle Doctrine and gives its population the right to “stand their ground” when attacked. Other states have a “duty to retreat,” in which a person must retreat first, if possible, before using force. “Duty to retreat” laws say a person in fear for their life must first retreat and try to escape the situation before using force to protect themselves. The guiding principle is that even the lives of attackers are valuable. Right to Carry In the last Texas legislative session, HB 1927 (also known as “Constitutional Carry”) was passed and became effective on September 1, 2021. This House bill, among other things, lifted restrictions Texas had on carrying a firearm in public. For example, Section 46.02 of the Penal Code, was amended by adding Subsection (a-5): (a-5) A person commits an offense if the person carries a handgun and intentionally displays the handgun in plain view of another person in a public place. It is an exception to the application of this subsection that the handgun was partially or wholly visible but was carried in a holster. Acts of 2021, 87th Leg., R.S., ch. 809 (H.B. 1927), § 22, eff. Sept. 1, 2021. HB 1927 also added subsection (h)(1) to Texas Code of Criminal Procedure, Art. 14.03: (h)(1) A peace officer who is acting in the lawful discharge of the officer's official duties may disarm a person at any time the officer reasonably believes it is 16

Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013) (quoting Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007).

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necessary for the protection of the person, officer, or another individual. The peace officer shall return the handgun to the person before discharging the person from the scene if the officer determines that the person is not a threat to the officer, person, or another individual and if the person has not committed a violation that results in the arrest of the person. Acts of 2021, 87th Leg., R.S., ch. 809 (H.B. 1927), § 3, eff. Sept. 1, 2021 (emphasis added). Then there is Subsection (c) of the self-defense statute which describes self-defense during an arrest: (c) The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary. TEX. PENAL CODE § 9.31. (emphasis added). The juxtaposition of these new subsections expanding the rights of the public to carry firearms, the justification of resisting unlawful arrest, and Penal Code Section 9.51 which allows law enforcement to use deadly force, presents some interesting public safety and probable cause issues. Law enforcement may find themselves in an untenable position during attempted arrests and searches. After the murder of George Floyd and the unlawful arrest of Sandra Bland, the public at large is more aware of excessive force by law enforcement and the incidence of unlawful arrests. Is carrying a firearm in public reasonable suspicion to stop someone? What happens to Terry frisks and the justification of officer safety? If a law enforcement officer points a firearm at a suspect is that justification for a suspect who believes the officer is attempting to use greater force than necessary to make an unlawful arrest? The interplay of these statutes fundamentally changes the public’s interactions with law enforcement. You Need a Team to Prove Reasonableness of Deadly Force Expert Witnessses Fielder v. State, 17 is one example of how an expert may be used to establish the immediate necessity of deadly force. In order to establish Fielder’s “fear” (apparent danger from her standpoint) at the time of the offense, defense counsel produced past violent encounters with the deceased. This is an established method of proof in self-defense cases, because the law recognizes 17

756 S.W.2d 309, 319-20 (Tex. Crim. App. 1988).

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the fact that future conduct may be reasonably inferred from past conduct. See generally Horbach v. State, 43 Tex. 242 (1875); cf. Thompson v. State, 659 S.W.2d 649 (Tex. Crim. App. 1983); See also Mahaffey v. State, 471 S.W.2d 801 (Tex. Crim. App. 1971); Dempsey v. State, 266 S.W.2d 875 (1954). In order to diffuse and contest appellant’s evidence, the State suggested the "prior relationship" conduct of Fielder in staying in an abusive relationship with the deceased negated her "prior relationship" evidence; and therefore, also negated the reasonableness of her "fear" at the time of the shooting. Fielder was entitled to explain that she stayed with the deceased for reasons which were not inconsistent with that fear. The expert’s testimony was offered to revitalize the violent past of the parties, in order to rehabilitate the inference of Fielder’s ultimate apprehension of danger at the time of the killing. Kitchens v. State18 is another example of an expert being used to establish an element of deadly force justification. After being qualified as an expert to testify on the use of deadly force, retired Harris County Sheriff’s Office Chief Deputy Michael Smith testified on behalf of Kitchens. Smith testified that, when a person believes that something is about to happen that puts him or her in fear of his or her life or fear of being severely injured, a person is allowed to use deadly force to defend against apparent danger, even if that person turns out to be incorrect. Smith further testified that deadly force could be used appropriately when there exists “some type of aggressive movement to make the other person believe that they were about to be assaulted, either with a weapon, without a weapon that may not be apparent, or just with their body parts. Any part of the body can be used as a weapon.” Smith also said that a person who has been shot "absolutely" can continue to pose a threat. Smith testified that, based on the deceased’s body language in the video, and assuming that the deceased had verbally threatened Kitchens as Kitchens had testified, Kitchens was justified in shooting the deceased. Smith concluded that, under the facts, Kitchens was in fear and was entitled to use deadly force against the perceived use of deadly force by the deceased, a person who was more than 100 pounds bigger than Kitchens. A particular stumbling block to getting an expert witness’s testimony admitted may be the expert’s lack of personal examination of your client. But remember, personal examination of the defendant goes to the weight of the testimony not the admissibility. Barefoot v. State, 596 S.W.2d 875 (Tex. Crim. App. 1980). Knowing this legal point may help you avoid having the expert 18

No. 01-18-00518-CR, 2019 Tex. App. LEXIS 10417, at *7-8 (Tex. App.—Houston [1st Dist.], Dec. 3, 2019) distinguished by Henley v. State, 493 S.W.3d 77 (Tex. Crim. App. 2016).

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excluded as a witness in the first place. Also, remind the trial court that the use of hypothetical questions in the examination of expert witnesses is a well-established practice. 2 C. McCormick and R. Ray, TEXAS EVIDENCE, § 1402 (2d ed. 1956); Vanderbilt v. State, 629 S.W.2d 709, 721 (Tex. Crim. App. 1981). Lack of personal examination does not have to torpedo your expert witness on self-defense. Other Defense Team Contributors A good investigator cannot be overemphasized when putting on a self-defense case. An investigator can get out into the community and ask about the reputations of the defendant and deceased as well as find witnesses that might not have been interviewed by law enforcement. An investigator can also gather evidence from the scene which might support the use of deadly force. An investigator can whittle down the time you spend listing to jail calls and find gems like Your investigator is your boots on the ground and is instrumental to gathering the facts you will need to support self-defense. A mitigation specialist is also key to a self-defense case because a mitigation specialist can help you understand your client’s background and what lead to the circumstances surrounding the case. A mitigation specialist is also necessary in case the self-defense evidence isn’t believed by the jury. Before you even step into the courtroom, you must be prepared for the worst and have evidence ready to present at punishment that might mitigate a defendant’s guilt and result in a lighter sentence. Preserve Your Evidence for Appeal It’s not uncommon for a trial court to exclude the evidence of experts and others who might help you build your case for self-defense and reasonable use of deadly force. But all is not lost if you build a record that will help you live to fight another day (and hopefully in a more favorable appellate court!). If the trial court excludes your expert or other witness from testifying, make a bill of exception to preserve error. Ask the trial court to allow you to examine the witness outside the presence of the jury so that you can show the appellate court why your witness’s testimony was necessary and admissible. Conclusion Building a self-defense case when deadly force is used is not easy, but with preparation and a team of experts and fact witnesses, you can build a solid case for your client that will withstand even trial court error.

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Appendix

Self-Defense Statutes TEX. PENAL CODE § 9.31. Threats as Justifiable Force. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

TEX. PENAL CODE § 9.31. Self-Defense. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (b) The use of force against another is not justified: (1) in response to verbal provocation alone; (2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c); (3) if the actor consented to the exact force used or attempted by the other; (4) if the actor provoked the other's use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor; or (5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05. (c) The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary. (d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34. (e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section. (f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Self-Defense & The Presumption of Reasonableness

TEX. PENAL CODE § 9.32. Deadly Force in Defense of Person. (a) A person is justified in using deadly force against another: (1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit an offense described by Subsection (a)(2)(B); (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section. (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

TEX. PENAL CODE § 9.33. Defense of Third Person. A person is justified in using force or deadly force against another to protect a third person if: (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

TEX. PENAL CODE § 9.34. Protection Of Life or Health. (a) A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself. (b) A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other's life in an emergency.

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TEX. PENAL CODE § 9.42. Deadly Force to Protect Property. A person is justified in using deadly force against another to protect land or tangible, movable property: (1) if he would be justified in using force against the other under Section 9.41; and (2) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or (B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and (3) he reasonably believes that: (A) the land or property cannot be protected or recovered by any other means; or (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

TEX. PENAL CODE § 9.43. Protection of Third Person’s Property. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and: (1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or (2) the actor reasonably believes that: (A) the third person has requested his protection of the land or property; (B) he has a legal duty to protect the third person's land or property; or (C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

TEX. PENAL CODE § 9.51. Arrest and Search. (c) A peace officer is justified in using deadly force against another when and to the degree the peace officer reasonably believes the deadly force is immediately necessary to make an arrest, or to prevent escape after arrest, if the use of force would have been justified under Subsection (a) and: (1) the actor reasonably believes the conduct for which arrest is authorized included the use or attempted use of deadly force; or (2) the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the actor or another if the arrest is delayed. (d) A person other than a peace officer acting in a peace officer's presence and at his direction is justified in using deadly force against another when and to the degree the person reasonably believes the deadly force is immediately necessary to make a lawful arrest, or to prevent escape after a lawful arrest, if the use of force would have been justified under Subsection (b) and: (1) the actor reasonably believes the felony or offense against the public peace for which arrest is authorized included the use or attempted use of deadly force; or (2) the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to another if the arrest is delayed. (e) There is no duty to retreat before using deadly force justified by Subsection (c) or (d).

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Interesting Self-Defense Issue Self-Defense Insurance Could carrying self-defense insurance be used as proof of intent to provoke the difficulty? Concealed Carry.com provides this comparison of U.S. Concealed Carry Association’s (USCCA) SelfDefense Shield and National Rifle Association’s (NRA) Carry Guard Insurance programs: https://www.concealedcarry.com/law/shield-carry-guard-two-different-programs-compared/

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Lozano v. State Court of Criminal Appeals of Texas October 6, 2021, Delivered NO. PD-1319-19 Reporter 636 S.W.3d 25 *; 2021 Tex. Crim. App. LEXIS 956 **

CARLOS LOZANO, Appellant v. THE STATE OF TEXAS Notice: PUBLISH Subsequent History: Rehearing denied by In re Lozano, 2022 Tex. Crim. App. LEXIS 24 (Tex. Crim. App., Jan. 12, 2022) Prior History: [**1] ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS, EL PASO COUNTY. Lozano v. State, 2019 Tex. App. LEXIS 9590, 2019 WL 5616975 (Tex. App. El Paso, Oct. 31, 2019) Judges: HERVEY, J., delivered the opinion of the unanimous Court. Opinion by: HERVEY

Opinion [*26] The question in this case is whether Appellant, Carlos Lozano, was egregiously harmed by erroneous self-defense instructions when he was not entitled to deadly force self-defense instructions in the first place. We answer that question no and will reverse the judgment of the court of appeals and affirm the judgment of the trial court. BACKGROUND a. Facts In the early morning hours of September 26, 2015, Appellant shot and killed [*27] Jorge Hinojos in the parking lot outside Pockets Billiards and Fun (Pockets) in El Paso. Appellant went to Pockets to meet Fernanda Avila, whom he was dating at the time. A few hours after they arrived, Appellant and Avila sat with some of Appellant's coworkers. Avila testified that she told the manager when they joined the group to cut her and Appellant off because she did not want Appellant to keep drinking. According to people in

Lozano v. State

the group, Appellant was in a good mood until he noticed that one of the guys at the table had been talking to Avila, at which point he got angry. One person testified [**2] that Appellant said "something about that if [the guy] didn't stop then there would be something like blood." Two coworkers, one of whom was talking to Avila, left because of the escalating situation. Avila testified that she went to the restroom when Pockets was closing at 2:00 a.m., then walked outside. She thought that Appellant had already left, but he was in his truck and started flashing his truck headlights at her. She said Appellant wanted to talk to her, but she left in her car because she did not want to talk to him. Jorge Hinojos, his girlfriend Diana Ruiz, and their friend Carolina Rocha went to Pockets the same night. They arrived in Carolina's car around midnight. While they were there, they ran into three of Carolina's friends—David Torres, Carlos, and Chrystyan.1 The group sat together and stayed until closing. Like Avila, Carolina went to the restroom, then met Jorge and Diana outside. They walked to one of Carolina's friend's car to make plans for later. After meeting at Carolina's friend's car, Carolina continued walking to her car. According to Diana and David, when Carolina began crossing the parking lot, "she didn't see that there was a truck driving very fast that [**3] almost r[a]n her over." Carolina said that she was scared because the truck was "very close" to her when she noticed the lights, but she was distracted because she was texting. Once Appellant stopped the truck, Appellant rolled down the passenger-side window but did not say anything. Diana testified that "[h]e only stared at us, and we started telling him to be careful. And the boys started, like, telling him, like, 'What were you thinking? Be careful.'" Carolina continued walking past the passenger side of the truck over to the driver's side. Appellant rolled down the driver's-side window and stared at Carolina in an "ugly" way before turning back to stare at Diana; Carolina walked away. Torres asked Appellant "in a good way" to leave because Jorge, who was dating Diana, was getting agitated by Appellant's staring at her, but Appellant ignored Torres. Jorge then threw a full beer can through the open passenger-side window. Diana said that the can "exploded," spilling beer everywhere. Torres testified that he then saw Appellant get a backpack from the backseat of his truck, pull out a gun, and point it in the direction of the open passenger window. According to Torres, Jorge did not [**4] see the gun because by the time Appellant removed the gun from his backpack, Jorge had already begun to run around the truck to the open driver's-side window, where he punched Appellant. Diana and Carolina said that Jorge punched Appellant once. Carolina did not think Jorge hit Appellant because he was "short" and the truck was "very high," but Torres testified that he thought Jorge punched Appellant two or three times. When Jorge punched Appellant through the window, Appellant turned towards Jorge and shot him three times, killing him. Doctor Mario Rascon, the Chief Medical Examiner for El Paso County, performed [*28] the autopsy. He testified that he found six wounds from three gunshots, as well as some evidence of blunt force injury.2 According to him, the first bullet entered Jorge's chest and exited his back, the second hit Jorge's upper-left arm, and the third hit Jorge's upper-left torso, causing a fatal aortic tear. Dr. Rascon testified that it is "extremely unlikely" that a person who sustained such an injury would survive, especially Jorge since his tear was "extensive." b. Procedural History

1 The

record does not show the last names of Carlos and Chrystyan.

2 There

was a 1/2 inch purple contusion on the surface of Jorge's left ankle, and a 1/8 inch superficial, linear, red abrasion on the bottom surface of the right wrist.

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Lozano v. State

On January 21, 2016, Appellant was indicted for murder.3 Tex. Penal Code § 19.02(b)(1), (b)(2). The State abandoned paragraphs [**5] C and D before trial. Appellant was found guilty, and the trial court sentenced him to 25 years' confinement. Appellant appealed, arguing that the evidence was legally insufficient and that he was egregiously harmed by "duty to retreat" instructions that were erroneously included in the jury charge when a defendant no longer has a general duty to retreat. The court of appeals held that the evidence was legally sufficient, but it agreed with Appellant that the "duty to retreat" instructions caused him egregious harm and warranted a new trial. Lozano v. State, No. 08-17-00251-CR, 2019 Tex. App. LEXIS 9590, 2019 WL 5616975 (Tex. App.—El Paso Oct. 31, 2019) (not designated for publication). The State subsequently filed a petition for discretionary review in this Court, which we granted, asking whether, The Eighth Court of Appeals erred in its preliminary holding that Appellant was entitled to jury instructions on the use of deadly force in self-defense because there was no evidence presented from any source of Appellant's subjective state of mind at the time of the shooting, that is, whether he was in immediate apprehension or fear that the deceased was about to kill or seriously injure him at the time he shot the deceased, such that Appellant was not entitled to any self-defense instructions. Therefore, [**6] any errors in the self-defense instructions actually submitted did not result in egregious harm because Appellant [*29] was not entitled to the instructions in the first place. Because we conclude that Appellant was not egregiously harmed, we will reverse the judgment of the court of appeals. JURY CHARGE ERROR Claims of jury charge error are reviewed under the two-pronged test set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). First, a reviewing court must determine if there is jury charge error. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Second, if there is, then a harm analysis must be conducted. Id. There are two different standards of review under which to assess harm

3 The

indictment alleged that Appellant, Paragraph A did then and there intentionally and knowingly cause the death of an individual, namely, Jorge Hinojos by shooting Jorge Hinojos, Paragraph B did then and there, with intent to cause serious bodily injury to an individual, namely Jorge Hinojos, commit an act clearly dangerous to human life, to wit: shooting Jorge Hinojos, that caused his death, Paragraph C did then and there commit or attempt to commit the felony offense of Aggravated Assault by intentionally or knowingly causing bodily injury to Jorge Hinojos by shooting Jorge Hinojos with a firearm, and did then and there use or exhibit a deadly weapon during the commission of the assault, to wit: a firearm, and while in the course or in furtherance of the commission or attempted commission of said Aggravated Assault did then and there commit an act clearly dangerous to human life, to wit: shooting Jorge Hinojos with a firearm, and did thereby [**7] cause the death of an individual, namely Jorge Hinojos, Paragraph D did then and there commit or attempt to commit the felony offense of Aggravated Assault by intentionally or knowingly threatening Jorge Hinojos with imminent bodily injury and did then and there use or exhibit a deadly weapon during the commission of the assault, to wit: a firearm, and while in the course or in furtherance of the commission or attempted commission of said Aggravated Assault did then and there commit an act clearly dangerous to human life, to wit: shooting Jorge Hinojos with a firearm and did thereby cause the death of an individual, namely Jorge Hinojos

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Lozano v. State

depending on whether the defendant timely objected to the erroneous charge. Almanza, 686 S.W.2d at 171 (op. on reh'g). If there was a timely objection, the record need show only "some harm." Id. If there was not a timely objection, the record must show "egregious [**8] harm." Id. To determine if the jury charge egregiously harmed the defendant, we examine the record as a whole, including the entire jury charge, the evidence, the contested issues, and the arguments of counsel, and anything else in the record that informs our analysis. Id. In examining the evidence, reviewing courts must consider "the plausibility of the evidence raising the defense." Villarreal v. State, 453 S.W.3d 429, 436 (Tex. Crim. App. 2015). Egregious harm exists if the error affects the very basis of the defendant's case, deprives him of a valuable right, or vitally affects a defensive theory. Ngo, 175 S.W.3d at 750. The record must bear out that Appellant suffered actual harm, not theoretical harm, and neither party has burden to show harm. Id. THE JURY CHARGE The jury charge contains two erroneous instructions, both of which deal with the general duty to retreat, and because Appellant did not object to the erroneous charges, we review the errors for egregious harm. The jury charge states in relevant part that,4 The defendant, Carlos Lozano, stands charged by indictment with the offense of murder, alleged to have been committed on or about the 26th day of September 2015, in the County of El Paso and State of Texas. To this charge the defendant pleads not guilty. [**9] *** Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force. The use of force against another is not justified: 1) In response to verbal provocation alone: 2) If the actor consented to the exact force used or attempted by the other; 3) If the actor provoked the other's use or attempted use of unlawful force unless: A) The actor abandons the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and [*30] B) The other nevertheless continues or attempts to use unlawful force against the actor; A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes the deadly force is immediately necessary to protect the actor against the other's use or attempted use of unlawful deadly force. The use of deadly force is presumed to be reasonable if the actor [**10] knew or had reason to believe that the person against whom the deadly force was used: 1.) Was unlawfully and with force entering, or was attempting to enter unlawfully and with force, the actor's occupied vehicle, or and with force removing or was attempting to remove the actor with force from the actor's vehicle and 2.) The actor did not provoke the person against whom the force was used and

4 The

"duty to retreat" language in the two erroneous instructions are bolded for the convenience of the reader.

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Lozano v. State

3.) That the actor was not otherwise engaging in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. XI. When a person is attacked with unlawful deadly force, or he reasonably believes he is under attack or attempted attack with unlawful deadly force, by one or more persons, and there is created in the mind of such person a reasonable expectation or fear of death or serious bodily injury then the law excuses or justifies such person in resorting to deadly force by any means at his command to the degree that he reasonably believes immediately necessary, viewed from his standpoint at the time, to protect himself from such attack or attempted attack, and it is not necessary that there be an actual attack or attempted [**11] attack as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that he acted upon a reasonable apprehension of danger, as it appeared to him from his standpoint at the time, and that he reasonably believed such force was immediately necessary to protect himself against the other person's or assailants' use or attempted use of unlawful deadly force. *** Now if you find from the evidence beyond a reasonable doubt that on the occasion in question the defendant, Carlos Lozano, did shoot Jorge Hinojos with a firearm as alleged, but you further find from the evidence that, viewed from the standpoint of the defendant that his life or person was in danger and there was created in his mind a reasonable expectation of fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Jorge Hinojos or others, if any, and that acting under such apprehension, he reasonably believed that the use of deadly force on his part was immediately necessary to protect him against Jorge Hinojos or others', if any, use or attempted use of unlawful deadly force, and he shot the said Jorge [**12] Hinojos and that a reasonable person in defendant's situation would not have retreated, then you should acquit the defendant on the grounds of self-defense; or if you have a reasonable doubt as to whether or not the defendant was acting in self-defense on the occasion and under the circumstances, then you should give the benefit of the doubt to defendant and find him not guilty. (Verdict Form A) [*31] XIV. If you find from the evidence beyond a reasonable doubt (1) that at the time and place in question the defendant did not reasonably believe that he was in danger of death or serious bodily injury; (2) that a reasonable person in defendant's situation, at such time and place, would have retreated before using deadly force against Jorge Hinojos; or (3) that defendant, under the circumstances, did not reasonably believe that the degree of force actually used by him was immediately necessary to protect himself against Jorge Hinojos or others, if any, use or attempted use of unlawful deadly force, if any, as viewed from defendant's standpoint, at the time, then you must find against the defendant on the issue of self-defense. ***

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Lozano v. State

Before 2007, the deadly-force self-defense statute provided for [**13] a general duty to retreat, but that duty was removed from the statute effective September 1, 2007, and "stand your ground" provisions were added.5 Morales v. State, 357 S.W.3d 1, 6 (Tex. Crim. App. 2011). Since then we have explained, the inclusion of a "general duty to retreat" instruction is erroneous and constitutes an improper comment on the weight of the evidence. Id. HARM a. Arguments The State argues that the erroneous self-defense instructions could not have egregiously harmed Appellant because, despite being erroneous, they were nonetheless favorable to Appellant, and he was not entitled to a self-defense charge in the first place. The State asserts that self-defense is only raised by the evidence if the record shows that (1) a defendant experienced apprehension or fear of being the recipient of unlawful use of force from another, and (2) the defendant's subjective apprehension or fear was objectively reasonable. According to the State, there is no proof of the former. Appellant responds that a "prima facie case of reasonable fear of serious bodily injury or death by [Appellant] based on the totality of the circumstances was clearly there" and that he was egregiously harmed even if he was not entitled to selfdefense instructions [**14] because the instructions "sent the jury on an incorrect factual and legal wild goose chase... thus compounding the error and the egregious harm." b. Almanza 1. Entirety of the Jury Charge We conclude that Appellant was not egregiously harmed. While the jury charge might weigh in favor of finding egregious harm because the "general duty to retreat" instructions were indisputably erroneous, and the misstatements of that law were not clarified elsewhere in the charge, the other Almanza factors also weigh against him. Further, the jury charge factor only slightly weighs in favor of an egregious-harm finding here where there is no evidence that Appellant acted in self-defense with his use of deadly force [*32] when he shot and killed Jorge. See Villarreal, 453 S.W.3d at 436 (weight of jury charge factor depends on the plausibility of a defendant's self-defense evidence). 2. State of the Evidence and Contested Issues: Appellant Was Not Entitled to a Charge on Self-Defense Self-defense is "law applicable to the case" and must be included in the jury charge if raised by the evidence. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008). "A defensive issue is raised by the evidence if 5 The

old "duty to retreat" instruction required the jury to find that "a reasonable person in the actor's situation would not have retreated . . . ." before using deadly force. Tex. Penal Code § 9.32(a)(2) (2006). The current "stand your ground" amendments provide that an actor has no duty to retreat if the actor had a right to be present where the deadly force was used, did not provoke the person against whom deadly force was used, and was not engaged in criminal activity at the time. Id. § 9.32(c) (2006). The other amendment states that a jury may not consider a person's failure to retreat if he had no duty to retreat. Id. § 9.32(d) (2006).

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Lozano v. State

there is sufficient evidence to support a rational jury finding as to each element of the defense." [**15] Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007)). In determining whether self-defense is raised, we do not consider the strength of the evidence, whether its contested, its credibility, or the ultimate viability of the defense. Id. Here, the issue is deadly force, not regular self-defense. According to Section 9.31 of the Penal Code (the non-deadly force self-defense statute), a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person's use or attempted use of unlawful force. Tex. Penal Code § 9.31(a). Under Section 9.32(a), a person is justified in using deadly force if he would be justified in using force under Section 9.31, and he reasonably believes that deadly force is immediately necessary to protect himself against another's use or attempted use of deadly force. Id. § 9.32(a)(2). The "reasonably believes" language contains subjective and objective components. See Werner v. State, 711 S.W.2d 639, 645 (Tex. Crim. App. 1986). A defendant must subjectively believe that another person used or attempted to use unlawful force (Section 9.31) or deadly force (Section 9.32) against the defendant and that the defendant's use of unlawful or deadly force in response was immediately necessary. See Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim. App. 1980). Second, a defendant's subjective belief must be reasonable.6 A reasonable belief [**16] is one held by an "ordinary and prudent man in the same circumstances as the actor." Tex. Penal Code § 1.07(a)(42). In certain situations, an actor's subjective belief is presumed reasonable, (b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment; *** (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. [*33] Id. § 9.32(b). By its own terms, the presumption applies under Section 9.32(b) only if the defendant first harbors a subjective belief that the use of deadly force was immediately necessary to defend himself from another's use or attempted use of deadly force. Id. ("The actor's belief . . . that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable [**17] if the actor . . . .") (emphasis added). That is consistent with a grammatical analysis of the statutory language. However, Section 9.32(b) also adds the additional hurdles that (1) an actor must know or have reason to believe that the person against whom the deadly force was used unlawfully and with force entered the actor's occupied vehicle, (2) the actor did not provoke the person against whom the force was used, and (3) the actor was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. Id. A case can be made that Appellant cannot 6 Tex.

Penal Code § 9.32(a)(2); Werner, 711 S.W.2d at 645 (self-defense test "assumes that a defendant may act on appearances as viewed from his standpoint, . . . [but] the test also assumes the "ordinary prudent man test of tort law"); see Braughton v. State, 569 S.W.3d 592, 618 (Tex. Crim. App. 2018) (Keller, P.J., dissenting) ("The phrase 'reasonably believes' signifies both that the actor actually believes and that the actor's actual belief is reasonable.").

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Lozano v. State

overcome these additional requirements. Evidence not only indicates angry, drunken behavior on Appellant's part, but also contested testimony of high-speed driving toward Carolina and the brandishing of a weapon, both of which might be considered provocation, and neither of which are below a Class C misdemeanor regulating traffic at the time the force was used. The court of appeals focused on only the "ordinary and prudent person" standard and concluded that the presumption of reasonableness likely applied. It is not clear whether it did [**18] not analyze both issues or whether it presumed that, if an ordinary and prudent person would have believed that the use of deadly force was immediately necessary, a defendant must have believed the same. We agree with the court of appeals that a jury could find the presumption of reasonableness applicable in this case, but we do not agree that satisfaction of the "ordinary and prudent person" standard obviates the need for the evidence to show that a defendant actually believed that the use of deadly force was immediately necessary. Typically, the "ordinary and prudent person" standard is meant to operate as a limitation on defendants who harbor unreasonable beliefs that the use of deadly force was immediately necessary. But it can also operate as a limitation in the other direction. That is, it prevents a jury from acquitting a defendant based on self-defense when the defendant did not believe that he acted in self-defense. We now turn to whether the evidence, no matter how weak or contradicted, supports the conclusion that Appellant believed that the use of deadly force was immediately necessary. Like a culpable mental state, a person's belief, absent direct evidence, generally must [**19] be inferred from the circumstances of the case. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). And evidence of self-defense need not come from the defendant. It can be raised by other witnesses's testimony about the defendant's acts and words at the time of the offense. See Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App. 1984). The relevant evidence in the light most favorable to Appellant shows that, • He was driving his truck in the parking lot of Pockets and stopped when Carolina almost walked in front of his truck while she was crossing the lot, • Appellant lowered the passenger-side window and stared at Diana and Carolina, • Some of the people with Jorge told Appellant to be more careful, [*34] • When Carolina walked past the truck, Appellant lowered the driver's-side window and stared at her, • When Carolina walked away, Appellant turned back to the open passenger-side window and started staring at Diana again, • Jorge got mad and threw an almost-full beer can through the open passenger-side window of Appellants truck, • The almost-full beer can "exploded" in Appellant's truck, • Appellant brandished a firearm and pointed it at the passenger-side window where the beer came from, • Jorge ran around the truck to the driver's-side window and punched Appellant multiple times, and • Appellant [**20] turned towards Jorge and shot him three times. Appellant never spoke during the encounter or about the altercation following the encounter, and there is no evidence about Appellant's demeanor that is favorable to him. Although the evidence shows that Appellant brandished a firearm in response to Jorge throwing an almost-full beer can through the passengerside window, which "exploded," there is no evidence as to why Appellant brandished the firearm. It might have been because he believed that he needed to defend himself with deadly force, but he also might have overreacted in the moment or even brandished the firearm to intentionally escalate the situation. The same Page 8 of 9

Lozano v. State

is true when Jorge ran around the truck and punched Appellant through the open driver's-side window. It might be that Appellant believed that he was justified in using deadly force against Jorge, but no evidence supports that conclusion. Also, the fact that Appellant shot Jorge three times could be relevant to whether the use of deadly force was justified depending on the context. For example, Appellant might have shot Jorge three times because he thought that he was fighting for his life, and it was either him or Jorge. [**21] Or, he might have shot Jorge once in self-defense, then continued shooting even though he knew Jorge was no longer a threat. However, we simply do not know on this record why Appellant shot Jorge three times. Appellant argues that the evidence shows that he was the victim of a "coordinated attack by a group of experienced predators," which was sufficient for a jury to infer that Appellant was in "reasonable fear of serious bodily injury based on disparity of numbers." But the evidence does not support that there were multiple aggressors. We conclude that there was no egregious harm because deadly force self-defense was not raised by the evidence. See Villarreal, 453 S.W.3d at 436 (implausible self-defense evidence strongly favors no finding of egregious harm). 3. Arguments of the Parties and Other Relevant Information Revealed by the Record The court of appeals discussed the arguments of the parties at length, but we need not do so. Erroneous arguments of counsel about a defensive issue not raised by the evidence do not weigh in favor of finding egregious harm because the error benefitted the defendant. We also note that, although the jury was wrongly charged on self-defense, Appellant was still provided with the [**22] windfall of a possible acquittal on that basis, and it is evident that the jury considered doing so given that it sent a note to the judge asking about the presumption of reasonableness and what it means to "enter." Further, although erroneous, the selfdefense charge increased the State's burden of proof, requiring it disprove self-defense beyond a reasonable doubt even though it was not raised by the [*35] evidence. We hold that Appellant was not egregiously harmed by the erroneous "duty to retreat" instructions because they did not affect the very basis of the defendant's case, deprive him of a valuable right, or vitally affect a defensive theory raised by the evidence. CONCLUSION Because we conclude that the court of appeals erred in finding that the erroneous "duty to retreat" jury instructions caused Appellant egregious harm, we reverse its judgment and affirm the judgment of the trial court. Delivered: October 6, 2021 Publish End of Document

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