• '-Oft! - Voice For The Defense Online

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• '-Oft! - Voice For The Defense Online

VOICE

FOR THE DEFENSE

FOR THE

• '-Oft!

Volume 38 No. 9 | November 2009

Competency Catch-22

Jeanette Kinard

Thinking Outside the

DWI Voir Dire Box

J. Gary Trichter


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contents

g Features

g ...... Columns

Cc..JUJJJJJ!:f

24 I Competency Catch-22: A Plea for

Attorney Discretion When Considering

Competency Evaluations for Defendants

Facing Minor Charges

By Jeanette Kinard

32 Thinking Outside the DWI Voir Dire Box

By J. Gary Trichter

48 Catch of the Day: Defendant's Motion to

Protect the Fairness of Future Juries

By J. Gary Trichter and Mark Thiessen

8 President's Message

11 Executive Director's Perspective

13 Editor's Comment

15 Federal Corner

18 Said & Done

g Departments

5 TCDIA Member Benefits

6 Staff Directory

7 CLE Seminars and Events

39 Significant Decisions Report

Volume 38 No. 9 | November Issue

Voice for the Defense (ISSN 0364‐2232) is published monthly, except for January/February and July/August, which are bimonthly,

by the Texas Criminal Defense Lawyers Association Inc., 1717 W. 6th St., Ste. 315, Austin, Texas 78703. Printed in

the USA. Basic subscription rate is $40 per year when received as a TCDLA member benefit. Non‐member subscription is

$75 per year. Periodicals postage paid in Austin, Texas.

POSTMASTER: Send address changes to Voice for the Defense, 1717 W. 6th St., Ste. 315, Austin, Texas 78703. Voice for the

Defense is published to educate, train, and support attorneys in the practice of criminal defense law.

CONTRIBUTORS: Send all feature articles in electronic format to Voice for the Defense, 1717 W. 6th St., Ste. 315, Austin,

Texas 78703, 512-478-2514, fax 512-469-9107, c/o chattersley@tcdla.com or champton@tcdla.com.

Statements and opinions published in the Voice for the Defense are those of the author and do not necessarily represent the

position of TCDLA. No material may be reprinted without prior approval and proper credit to the magazine. © 2009 Texas

Criminal Defense Lawyers Association.


Voice for the Defense

EDITOR

Greg Westfall

Fort Worth, Texas

817-877-1700

westfall@wpcfirm.com

SIGNIFICANT DECISIONS REPORT EDITOR

Cynthia L. Hampton

TCDLA Home Office

512-478-2514

champton@tcdla.com

FEATURE ARTICLES EDITOR

Jani Maselli

Houston, Texas

713-757-0684

jjmaselli@aol.com

DESIGN, LAYOUT, EDITING

Craig Hattersley

TCDLA Home Office

512-478-2514

chattersley@tcdla.com

PRINTING

Art Jam Productions Inc.

512-389-1747

admin@artjampro.net

PRESIDENT Stanley Schneider | Houston PRESIDENT‐ELECT William Harris | Ft. Worth FIRST VICE PRESIDENT Keith S. Hampton | Austin

SECOND VICE PRESIDENT Lydia Clay-Jackson | Conroe TREASURER Bobby Mims | Tyler SECRETARY Emmett Harris | Uvalde

DIRECTORS

John Ackerman, San Antonio

Susan E. Anderson, Dallas

Kerri K. Anderson-Donica, Corsicana

Stephen Baer, Dallas

Robert J. Barrera, San Antonio

Samuel E. Bassett, Austin

Jason Butscher, Sherman

Jason Cassel, Longview

Jaime Carrillo, Kingsville

Clay Conrad, Houston

Harold Danford, Kerrville

Jim Darnell, El Paso

Emily DeToto, Houston

Danny Easterling, Houston

Steven R. Green, Athens

Michael C. Gross, San Antonio

Tip Hargrove, San Angelo

John R. Heath Jr., Nacogdoches

Sam Lock, San Antonio

Constance A. Luedicke, Corpus Christi

James Makin, Beaumont

Jim W. Marcus, Austin

Ray Merino, McAllen

Patrick Metze, Lubbock

David Moore, Longview

Doug Murphy, Houston

John Niland, Austin

Dave O’Neil, Huntsville

Robert Kelly Pace, Tyler

Tom Pappas, Dallas

Shawn Paschall, Fort Worth

Bruce Ponder, El Paso

William E. Price, Lampasas

George Scharmen, San Antonio

Mark S. Snodgrass, Lubbock

Fred Stangl, Lubbock

Gary Alan Udashen, Dallas

Tony Vitz, McKinney

James Whalen, Plano

Russell Wilson II, Dallas

Warren Alan Wolf, San Antonio

William Reagan Wynn, Fort Worth

Associate Directors

Bruce Ashworth, Arlington

Heather Barbieri, Plano

Larry Boyd, Dallas

Fred Brigman, San Angelo

Erika Copeland, Abilene

Nicole DeBorde, Houston

Craig Henry, Texarkana

Russell Hunt Jr., Austin

Jani Maselli, Houston

Todd Overstreet, Houston

Stephanie Patten, Fort Worth

Carole Powell, El Paso

Ray Rodriguez, Laredo

Clay Steadman, Kerrville

George Taylor, San Antonio

Coby Waddill, Denton


Benefits . . .

“Something that promotes well-being”

Enterprise Car Rental

Ten percent discount for TCDLA members. Enterprise is

the largest rental car company in North America in terms of

locations and number of cars, while providing the highest

level of customer service. The corporate account number for

TCDLA members is 65TCDLA. You may contact your local

office directly or visit www.enterprise.com. When booking

online, enter your location, date, time, and the corporate account

number. You will then be asked for your discount ID,

which is the first three letters of TCDLA (TCD). Make your

reservation at Enterprise Rent-a-Car.

La Quinta

Ten percent discount to all TCDLA members. Simply tell

the reservations agent that you are with the Texas Criminal

Defense Lawyers Association or give the discount code

( TCDLA) on the La Quinta website to get the discounted

rate. Visit www.lq.com or call 1-800-531-5900.

Sprint PCS

15 percent discount to TCDLA members on its wireless

services. Existing Sprint customers can receive the discount

without interruption and new customers can receive additional

discounts on equipment.

Subscription Services Inc.

Fifty percent discount off the cover price of more than 1,000

magazines, including Newsweek, New Yorker, Texas Monthly,

etc. Visit www.buymags.com/attorneys.

Voice for the Defense magazine

A subscription to the only statewide magazine written specifically

for defense lawyers, published 10 times a year.

Membership Directory (printed and online)

Comprehensive listing of current TCDLA members, updated,

reprinted, and mailed annually, and online directory of current

TCDLA members.

Lawyer Locator

Online directory providing members an opportunity to list

up to three areas of practice for public advertising.

Expert List

Extensive list of experts for all types of criminal cases, including

investigation, mitigation, and forensics specialists.

Listserve

A partnership to engage community members in areas of

significant decisions, legislative and capital issues/updates,

upcoming seminars and events, and more . . .

TCDLA Discounts

Receive significant discounts on CLE seminars and TCDLA

publications.

Discounted liability insurance with Joe Pratt Insurance.

Strike Force

Strike Force assistance to aid lawyers threatened with or

incarcerated for contempt of court.

Resources

Expansive library of research papers from renowned criminal

defense lawyers and other valuable information and sites.

Significant Decisions Report

Professional reports summarizing state and federal cases,

emailed weekly.

Legislature

Opportunities to be involved in the legislative effort.

State Motions CD

New members will receive a comprehensive CD of state

forms and motions,including DWI, post-trial, pretrial, and

sexual assault motions.

Membership Certificate

Display your TCDLA membership with pride! New members

will receive a personalized certificate by mail.

Brief/Motion Bank


committee chairs

Amicus Curiae

Wm. Reagan Wynn

817-336-5600

Angela Moore

210-335-0706

Budget & Finance

Bobby Mims

903-595-2169

Child Protective

Services Taskforce

Paul Conner

817-332-5575

Corrections & Parole

David O’Neil

936-435-1380

Criminal Defense

Lawyers Project

Mark S. Snodgrass

806-762-0267

David Moore

903-758-2200

Criminal Law

Specialization

Gary Udashen

214-468-8100

Death Penalty

John Niland

512-320-8300

Jack Stoffregen

806-775-5660

Driving While

Intoxicated

Doug Murphy

713-524-1010

David Burrows

214-755-0738

Larry Boyd

214-691-5630

Federal Law

Richard Alan Anderson

214-767-2746

Hall of Fame

Scrappy Holmes

903-758-2200

Innocence

Jeff Blackburn

806-371-8333

Lawyers Assistance

Richard Scott Gladden

940-323-9307

Kelly Pace

903-526-6777

James M. Pape

512-353-4004

Legislative

Mark Daniel

817-332-3822

Nominations

William Harris

817-332-5575

Public Defenders

Jeanette Kinard

512-854-3030

Jack Stoffregen

806-775-5660

Strategic Planning

Tom Pappas

214-871-4900

Strike Force

Michael P. Heiskell

817-457-2999

Gary Udashen

214-468-8100

strike force

District 1

West Texas

Jim Darnell

Mike R. Gibson

Mary Stillinger

District 2

Permian Basin

Tip Hargrove

Woody Leverett

Tom Morgan

District 3

Panhandle

Warren Clark

Chuck Lanehart

Bill Wischkaemper

District 4

North Texas

H. F. “Rick” Hagen

Don Wilson

Randy Wilson

District 5

Tarrant County

Mark Daniel

Lance Evans

Michael P. Heiskell

Jeff Kearney

Larry Moore

Greg Westfall

District 6

Dallas County

Richard Anderson

Ron Goranson

Bob Hinton

Gary Udashen

Russell Wilson

District 7

Northeast Texas

Scrappy Holmes

Bobby Mims

David E. Moore

Barney Sawyer

District 8

Central Texas

Kerri Anderson-Donica

F. R. “Buck” Files

W. W. Torrey

District 9

Travis County

Sam Bassett

Betty Blackwell

David Botsford

David Frank

Dexter Gilford

Keith Hampton

District 10

Bexar County

John Convery

Gerry Goldstein

Cynthia Orr

George Scharmen

District 11

Hill Country

Emmett Harris

District 12

Valley

Joe Connors

Bobby Lerma

James Granberry

Sheldon Weisfeld

District 13

Southeast Texas

James Makin

District 14

Harris County

Nicole DeBorde

Danny Easterling

JoAnne Musick

Mac Secrest

Katherine Scardino

Stan Schneider

Grant Scheiner

staff directory

Executive Director

Joseph Martinez x 726 (512-646-2726)

jmartinez@tcdla.com

Assistant Executive Director & General Counsel

Cynthia Hampton x 730 (512-646-2730)

champton@tcdla.com

Capital Assistance Attorney

Philip Wischkaemper (806-763-9900)

pwisch@tcdla.com

Communications Director

Voice Information

Craig Hattersley x 733 (512-646-2733)

chattersley@tcdla.com

Accounts Payable Specialist

Cristina Abascal x 725 (512-646-2725)

cabascal@tcdla.com

Seminar Planning Assistant

Denise Garza Steusloff x 729 (512-646-2729)

dgarza@tcdla.com

CONTACT US

Austin Home Office

1717 W. 6th St.

Ste. 315

Austin, TX 78703

512-478-2514 phone

512-469-9107 main fax

512-469-0512 seminar fax

Lubbock Office

915 Texas Ave.

Lubbock, TX 79401

806-763-9900 phone

806-769-9904 fax

Chief Financial Officer

Dawn Thornburgh x 727 (512-646-2727)

dthornburgh@tcdla.com

Administrative Assistant

Diana Vandiver x 721 or 0 (512-646-2721)

dvandiver@tcdla.com

Director of CLE and Special Projects

Seminar Information | Website

Melissa J. Schank x 724 (512-646-2724)

mschank@tcdla.com

Services Clerk

Publication Information

Nicole Pham x 735 (512-646-2735)

npham@tcdla.com

Database Coordinator

Membership Information

Miriam Rendon x 732 (512-646-2732)

mrendon@tcdla.com


CLE & Events . . .

Providing legal education across the state

November 2009

November 20

CDLP | Survivor Trial Tactics

Granbury, TX

December 2009

December 3–4

TCDLA | Sexual Assault

Houston, TX

December 5

TCDLA/TCDLEI Boards, TCDLA

Executive, and CDLP Committee

Meetings**

Houston, TX

December 11

CDLP | Survivor Trial Tactics

Longview, TX

December 11

CDLP | 2nd Annual Hal Jackson

Memorial Jolly Roger Criminal Law

Seminar| co-sponsored with the Denton

Criminal Defense Bar

Denton, TX

December 18

CDLP | Prairie Dog Lite | co-sponsored

with the Lubbock Criminal Defense Bar

Lubbock, TX

January 2010

January 15

CDLP | Survivor Trial Tactics

Laredo, TX

January 22

CDLP | Survivor Trial Tactics

Temple, TX

February 2010

February 12

CDLP | Survivor Trial Tactics

Wichita Falls, TX

February 17–21

TCDLA | Member’s Trip to Napa Valley

Napa Valley, California

February 25–26

CDLP | Capital/Habeas

Austin, TX

February 26

TCDLA/TCDLEI Boards, TCDLA

Executive, and CDLP Committee

Meetings**

Austin, TX

March 2010

March 4–5

TCDLA | Federal Law

New Orleans, Louisiana

March 14–19

CDLP | 34th Annual Texas Criminal Trial

College

Huntsville, TX

March 26–27

TCDLA | 47th Annual AA Semaan

Seminar | co-sponsored with San

Antonio Bar Association

San Antonio, TX

April 2010

April 8–10

TCDLA | 17th Annual Mastering

Scientific Evidence in DWI/DUI Cases |

co-sponsored with National College of

DUI Defense

New Orleans, Louisiana

April 9

CDLP | Survivor Trial Tactics

Amarillo, TX

April 15–16

TCDLA | Cross-Examination

Austin, TX

May 2010

May 7

TCDLA | DWI Defense Project

Dallas, TX

June 2010

June 2

CDLP | Public Defender Training

San Antonio, TX

June 3–5

TCDLA | 23rd Annual Rusty Duncan

Advanced Criminal Law Course

San Antonio, TX

June 4

TCDLEI Board Meeting and CDLP

Committee Meeting

San Antonio, TX

June 5

TCDLA Board and Executive Committee

Meetings**

San Antonio, TX

July 2010

July 8–9

CDLP | Survivor Trial Tactics

South Padre Island, TX

July 21

CDLP | Board Orientation

Boerne, TX

July 22–24

TCDLA | Member’s Retreat

Boerne, TX

Seminars spon sored by CDLP are funded by

the Court of Criminal Appeals of Texas.

*Unless otherwise noted, seminars are open

only to criminal defense attorneys, mitigation

specialists, defense investigators, or other

professionals who support the defense of

criminal cases. Law enforcement personnel

and prosecutors are not eligible to attend.

** Open to all members

Note: Schedule and dates subject to change. Visit our

website at www.tcdla.com for the most up-to-date information.


Stanley Schneider

The Voodoo We Do

President’s

Message

T

he current political debate over whether Texas executed an innocent man is important,

but far less important than the overriding issues of scientific fraud, misrepresentation, and

dishonesty that continue on a daily basis to plague our criminal justice system. Unfortunately,

we cannot retry the Willingham case. In focusing solely on whether Willingham was innocent,

government officials, political pundits, and the media are missing the larger issues raised

by the Willingham report: that is, the ongoing corruption of forensic science and scientific

evi dence in criminal proceedings in this state. Every week brings a new story of some area

of governmentally sanctioned or used science being called into question.

The Texas State Forensic Science Commission has been legislatively charged with inves

ti gat ing and determining whether proper forensic science techniques and procedures

were used by law enforcement in particular cases. If they were not followed, the commission

is charged with helping those involved to develop a plan to ensure that law enforcement

becomes aware of proper scientific methods and procedures and follows them in future cases.

The com mission was created (and charged with the responsibility of helping) to account

for technology changes and the repercussions that occur when untrained individuals make

lit tle more than unsupported guesses in the name of science, which affect real cases and real

peo ple in real ways. In creating the Forensic Science Commission, the legislature was not

con cerned with guilt or innocence, as the current political debate seems to be, but rather

whether science was properly applied in the courtroom.

The recent history of forensic science in this state is abysmal. We have serious problems

that need to be addressed by serious people concerning not just the results in a particular case

or about whether one side wins or loses, but rather whether there’s reliability and validity in

the allegedly “scientific” processes, methods, theories, and results sponsored by government

in general and law enforcement in particular as a basis for depriving presumptively innocent

people of their liberty.

In 2000, David Botsford, Fred Whitehurst, and I made a presentation at the Criminal

Jus tice Section of the annual meeting of the American Academy of Forensic Science (AAFS)

entitled “Fraudulent Forensic Science Is Endemic to Our Criminal Justice System.” Fred Whitehurst

spoke of his personal experience with the FBI lab and the problems that surfaced during

the late 1990s. David Botsford spoke of the Richardson case in Lubbock and his experience

with a medical examiner named Erdman who repeatedly falsified autopsy reports as an aide

to the prosecution of murder cases in West Texas. I spoke of my experiences involving the now

discredited Fred Zain, from the Bexar County Medical Examiner’s Office, who was re spon sible


for the falsification of serology and DNA test results not only

in the Jack Davis capital murder trial, but also in innumerable

others in both Texas and West Virginia.

We spoke of Katherine Scardino’s defense of Joe Durrett,

who was acquitted of capital murder in a prosecution that proceeded

even though DNA evidence exonerated him. We told

the group that the state’s original DNA expert, Dr. Elizabeth

John son, provided a report that exonerated Joe, yet the state

still prosecuted. On their way to an indictment, prosecutors

con ducted a grand jury investigation of Dr. Johnson and she was

fired by the Harris County Medical Examiner’s Office. A Harris

County jury later determined in a civil suit that her termination

was unlawful and without cause. We explained that even when

the science the prosecutors’ offices relied on to convict people

showed innocence, the prosecutors chose not to accept it and

instead sought retribution against the analyst who dared to not

give them the results they wanted.

We talked about the forensic scandal in Oklahoma con cerning

a medical examiner and the scandal in New York involving

fin ger prints. We spoke of a problem with a lab in the Northwest.

We pointed out that there existed serious forensic science issues

nationwide. Fred, David, and I challenged the criminalists at that

meeting in 2000 to do better work. We challenged them to be

excellent. Yet the problem in Texas has only gotten worse.

In 2001, we learned about a young man named Josiah Sutton,

who was prosecuted, convicted, and sentenced to prison for

sexual assault in Harris County. DNA testing showed that he was

in no cent and that the tests performed by the Houston Police Depart

ment lab reported in court were inaccurately reported. Josiah

Sutton was exonerated but his story was only the beginning.

Be cause of the media, the Houston Chronicle in particular, as a

result of the Sutton case, we learned the extent of the Houston

Crime Lab issues. The City of Houston spent millions of dollars

during the independent investigation conducted by Michael

Brom wich. That investigation revealed problems so numerous

that it has been followed by the appointment of a permanent

law yer to reinvestigate more than 400 cases. But even as the

scope of potential problems expanded to 400-plus cases, it became

apparent the 400 cases may have just been the tip of the

proverbial iceberg. We have now learned that the HPD Crime

Lab problems go back to at least the mid-1980s—a result made

ap parent by the exoneration of George Rodriguez, a man who

spent 17 years in custody before his innocence was proved by

science.

These cases and hundreds more like them represent a massive

issue of forensic accountability. But there is more.

The Texas Innocence Project conducted an investigation

of the latest scientific tool being used by law enforcement: dog

sniff lineups. The report released in September has resulted in

the dismissal of charges in a number of cases, and prosecutors

across the state are reexamining the techniques. Why? Because

real dog experts have examined the procedures being used and

have said in writing, “This is not science.” Yet there are people

in prison based on this suspect method of identification, and

some prosecutions continue to move forward even though the

va lid ity of the science, methods, and applications is, at best,

suspect and, at worst, snake oil.

But there’s more. It has been reported that a DWI technical

supervisor of intoxilyzer machines in multiple Houston- and

Galveston-area municipalities falsified maintenance records for

the Texas Department of Public Safety Breath Alcohol Testing

Pro gram. In Harris County alone, prosecutors have announced

they are reviewing more than 1200 cases. In total, more than 3000

breath test cases spanning almost a decade have been invalidated.

While it’s nice that it was finally discovered and encouraging

that action is finally being taken, where was the real review for

the last decade? Why has and does Texas Department of Public

Safety (DPS) continue to fight against discovery sought by the

de fense bar that might have alerted officials to these problems

be fore a decade’s worth of citizens were wrongfully convicted?

That it was not discovered for almost a decade is reason enough

to believe that our government either does not care enough to

al ways look for fraud or lacks the ability to do so. The technical

su per visor at issue has been sentenced to a year in prison, but

that hardly makes up for the thousands of lives that her fraud

adversely affected.

But there is still more: The Houston-area problems with

breath test machines are not isolated. Just this month, Polk

County DA William Lee Hon announced that all breath tests

from August 2008 through August 2009 in Polk County had been

in validated by DPS because the equipment was not properly

cer ti fied. In Dallas, prosecutors have announced that breath

tests in the city of Glen Heights have been invalidated because

an operator was falsifying results.

So what does all this have to do with the Texas State Foren

sic Science Commission? What David, Fred, and I believed

in 2000 when we spoke to AAFS has come true in this state.

Fraud u lent forensic science and corrupt application of even

good science have reached epidemic proportions in our criminal

jus tice system. Every government entity involved in any aspect

of science to be used in a courtroom in this state ought to be

charged with raising the standards for science and procedures

applied by analysts to ensure that there is no doubt, now or in

the future, that only truly competent experts (not just those who

the government can afford to hire) use only unquestionably

valid science in ways that are indisputably applied properly.

Any thing less is a direct and substantial breach of the trust that

every citizen places in its government. Close enough for gov‐


ern ment work ought to be relegated to the dead science pile.

I am mindful of the work of Barry Scheck and Peter Neufeld.

Through their efforts, more than 200 men have been exonerated

by DNA tests across the country.

The Forensic Science Commission was created to help ensure

the integrity of forensic science in this state. The public

de serves to know in the future that it can trust the integrity of

ex perts and the science that are being presented by prosecutors

and used by law enforcement for investigative purposes. It is

not enough to claim it; it must be so beyond question. The role

of the Forensic Science Commission is to help ensure that the

pub lic is protected and the system is fair. This should not be a

po lit ical issue but an issue concerning the integrity of our system

of justice. Interference by those with other motives ought not

be tolerated by the people of this state. Interference by those

with other motives does nothing but ensure that the mistake of

the past will be repeated today and in the future. The Forensic

Sci ence Commission has an important role in ensuring the

integrity of the one aspect of the criminal justice system in

this state: competent forensic science is used in our criminal

justice in the trial of those accused of crimes. The people of this

state expect their leaders to ensure the integrity of the criminal

jus tice system and not politicalize it.

Become a Fellow or

Super Fellow

, .

IJ , ..

Texas Criminal Defense Lawyers

Educational Institute

Endowment Program

TCDlEI has created an endowment program

to ensure continuing legal education for

tomorrow's criminal defense lawyer.

R Your money will be deposited into a

special endowment fund.

A Your contribution will be used to build a

fund for future Texas lawyers.

What you can do? Contribute $1,500 and

become a Fellow. Contribute $3,000 and

become a S.per Fellowr (form available on our

website).

Help support TCDLEI in its efforts to make funds

available for future criminal

defense lawyers in Texas.

For more infonnation, con·

tact Joseph Martinez at

512-646-2726.

MakeYOUI

contribution TODAY!

TCDLA

Memorializes

Charles Balwin

Quinn Brackett

Peter Bright

Jack H. Bryant

Phil Burleson

Byron Chappell

Emmett Colvin

C. Anthony Friloux Jr.

Jim Greenfield

Richard W. Harris

Odis Ray Hill

Weldon Holcomb

David Isern

Hal Jackson

Knox Jones

Joe Keagans

George F. Luquette

Homero Martinez

Ken McClain

Kathy McDonald

David A. Nix

Rusty O’Shea

Charles Rittenberry

George Roland

Thomas Gilbert Sharpe Jr.

Travis Shelton

Doug Tinker

Don R. Wilson Jr.

10 VOICE IDJlTHE DEFENSE November 2009


Joseph A. Martinez

Thanks Giving

Executive

~ • , I

Director’s

J JJ' £:'-CLf)i' ;

Perspective

?~i';jJ~ -cl jy~

Special thanks to all our TCDLA members who make this association strong. Special

thanks to our board members for their contributions. Thanks to all who contributed

their knowledge in articles for the Voice for the Defense. Thanks to all our members who

promote justice and the common good.

Have a safe and wonderful Thanksgiving.

Special thanks to our course directors, Kameron Johnson and David Indorf, for the

Defending Juveniles seminar held in Dallas in September. Thanks to their contributions,

we had 116 at ten dees.

Special thanks to Craig Jett, course director for Highs, Lows & the Deep Ellum Blues:

Defending the Drug Case, held in Dallas in September. Thanks to his contribution we had

141 attendees.

A very special thanks to the course directors for this year’s CDLP 7th Annual Forensics

seminar held in Houston. They were Philip Wischkaemper, Jeff Blackburn, Rob Cowie, E. X.

Martin, Dr. Chris Meissner, Dr. Roy Malpass, Larry Renner, Dr. Bill Tobin, and Dr. Fred

Whitehurst. This seminar is one of the most unique in the country. We had over 30 forensic

scien tists presenting. For the second year we also provided a “judges only” track for one of

the breakout sessions.

This year we combined the annual Innocence Clinic training with the forensic training.

All total we had 284 attendees, of which 11 were judges.

The membership trip is going to be to beautiful Napa Valley. Accommodations will be

at the River Terrace Inn. There will be 6 hours of CLE. Please go to our website for more

details.

We are working on taping a one-hour legislative update done by one of our lobbyists.

We will be sending a DVD to all local criminal defense bars.

Please let us know if any of our TCDLA brothers and sisters have passed away in recent

months. We recognize our special Fallen Heroes at the beginning of our TCDLA Board

meetings.

November 2009 VOICE FOITH~ DEfENSE 11


Please help us promote the 34th Annual Texas Criminal

Trial College to be held in Huntsville on March 14–19, 2010. We

will have 80 openings for lawyers with less than 5 years of trial

experience. An application should be available on our website

and in the Voice.

Good verdicts to all.

Be kept up to date with the latest

TCDLA information. Make sure your

email and fax are correct. If you

do not wish to receive fax or email

notices email: mrendon@tcdla.com

Get Smart!

Go online to

www.tcdla.com for

information on the

books now available,

including the Texas

Criminal Codebook,

Appellate Manual,

and Search & Seizure.


Greg Westfall

Editor’s

Comment

[Anderson Cooper:] Joining me now is David Martin, who was [Cameron Todd] Willing

ham’s defense attorney at trial. He says Willingham was a man without a conscience.

. . .

David, you always believed that your client was guilty. Now, over a half-dozen experts have

come forward to say that there’s no way the fire was arson. You still say he was guilty. Why?

Uh, Anderson, excuse my informal attire. We’ve been out checking cows, but it is nice to be

with you. And, uh, tell me your question again?

—Attorney David Martin, being interviewed by Anderson Cooper, October 15, 2009.

“Do all lawyers defend N-Negroes, Atticus?”

“Of course they do, Scout.”

Then why did Cecil say you defended niggers? He made it sound like you were running

a still.”


Atticus sighed. “I’m simply defending a Negro. His name’s

Tom Robinson. He lives in that little settlement beyond the town

dump. He’s a member of Calpurnia’s church, and Cal knows his

family well. She says they’re clean-living folks. Scout, you aren’t

old enough to understand some things yet, but there’s been some

high talk around town to the effect that I shouldn’t do much about

defending this man. . . .”

“If you shouldn’t be defendin’ him, then why are you doin’

it?”

For a number of reasons,” said Atticus. “The main one is, if

I didn’t I couldn’t hold my head up in town, I couldn’t represent

this county in the legislature, I couldn’t even tell you or Jem not

to do something again.”

—Harper Lee, To Kill a Mockingbird

Look, the night after these kids died, [Willingham’s] down at

the “Mudhole”—which is the Mustang Club. He bought—all these

people who contributed to him, I don’t know how much money

cause his kids had died—he’s buyin’ a new dart board, he’s buyin’

a new pair of boots, he’s buyin’ rounds for the house, that’s what

we were faced with in the trial of this case. That is the evidence

that the jury hears and that is indicia of guilt and that’s why they

found him guilty, I think, in less than 30 minutes.

—Attorney David Martin, being interviewed by

Anderson Cooper, October 15, 2009.

“Lemme tell you somethin’ now, Billy . . . You know the court

appointed him to defend this nigger.”

“Yeah, but Atticus aims to defend him. That’s what I don’t

like about it.”

This was news, news that put a different light on things: Atticus

had to whether he wanted to or not. I thought it odd that he hadn’t

said anything to us about it—we could have used it many times

in defending him and ourselves. He had to, that’s why he was doing

it, equalled fewer fights and less fussing. But did that explain

the town’s attitude? The court appointed Atticus to defend him.

At ti cus aimed to defend him. That’s what they didn’t like about

it. It was confusing.

—Harper Lee, To Kill a Mockingbird

Here’s a gross misconception about defense lawyers. When a

cli ent tells you his story, you don’t just stupidly accept everything

he says. The role of a defense attorney is to test the state’s evidence,

vig or ously cross-examine their witnesses, and can they prove their

case beyond a reasonable doubt? If they cannot, even if the person

is guilty, he is found not guilty. That’s the role of a defense

at tor ney.

—Attorney David Martin, being interviewed by

Anderson Cooper, October 15, 2009.

Judge Taylor was saying something. His gavel was in his fist,

but he wasn’t using it. Dimly, I saw Atticus pushing papers from

the table into his briefcase. He snapped it shut, went to the court

re porter and said something, nodded to Mr. Gilmer, and then went

to Tom Robinson and whispered something to him. Atticus put his

hand on Tom’s shoulder as he whispered. Atticus took his coat off

the back of his chair and pulled it over his shoulder. Then he left

the courtroom, but not by his usual exit. He must have wanted

to go home the short way, because he walked quickly down the

mid dle aisle toward the south exit. I followed the top of his head

as he made his way to the door. He did not look up.

Someone was punching me, but I was reluctant to take my

eyes from the people below us, and from the image of Atticus’s

lonely walk down the aisle.

“Miss Jean Louise?”

I looked around. They were standing. All around us and in

the balcony on the opposite wall, the Negroes were getting to their

feet. Reverend Sykes’s voice was as distant as Judge Taylor’s:

“Miss Jean Louise, stand up. Your father’s passin’.”

—Harper Lee, To Kill a Mockingbird

I thought this is an actor at first . . . no wonder the guy

was killed . . . this “attorney” was his sworn enemy, I bet

[the] prosecution felt like [they were] in heaven during

the process.

I’m not sure it mattered who his attorney was, at the time

fire science wasn’t what it is today. However it is a little

disturbing to see a defense attorney that believes his client

was guilty, especially with the evidence we now have.

Wow . . . that attorney showed the most jaw-dropping

stu pidity I’ve seen in years.

How on earth could a man like that be a defense at torney?

This is your defense attorney in hell, or a Kafka novel, or

Texas.

—Comments left on YouTube after the interview.

[Editor’s note: The gist of the 10-minute interview was that

Attorney Martin made a passionate and vociferous argument

that his client was completely and utterly guilty. Interestingly,

his conclusion that his client was guilty didn’t really depend on

the contested forensic evidence at all. On that point, though,

Mar tin had conducted his own experiments with carpet and

lighter fluid and argued to Cooper that his burned carpet “looked

just like those pictures”! It was obvious that he never believed

in his client from the beginning, and in fact Martin admitted as

much. Willingham was executed in 2004. Please watch the video

yourself: http://www.youtube.com/watch?v=L5cFKpjRnXE.]


F. R. Buck Files Jr.

Federal

J-!c rJ sf"J

Corner LfJfJJ£:;f

Beware: Read Your Next Mezzanatto Letter Very Carefully!

In mid-October, in the Tyler Division of the Eastern District of Texas, an Assistant United

States Attorney was in the process of drafting a new Mezzanatto letter to be used by all of

the AUSA’s in his district. It is safe to say that this was also happening in the other federal

ju dicial districts in Texas, Louisiana, and Arkansas because of the opinion of a panel of the

United States Court of Appeals for the Fifth Circuit in United States v. Sylvester, ___ F.3d

___ 2009 WL 2974219 (5th Cir. 2009) (the panel: Circuit Judges Higginbotham, Smith, and

Southwick; opinion by Judge Higginbotham).

The term “Mezzanatto letter” may not ring a bell with some folks; however, it is a proffer

letter that government, the defendant’s lawyer, and the defendant should sign before the debriefing

of any defendant in any federal criminal case for the purpose of facilitating plea nego

tia tions between the government and the defendant. The term comes from United States v.

Mezzanatto, 115 S.Ct. 797 (1995). In that case, the Supreme Court held—notwithstanding the

language of Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f)—that

an agreement to waive the exclusionary provisions of statements made during plea negotiations

was enforceable unless there was a showing that the defendant entered into the agreement unknow

ingly or involuntarily.

At first blush, FRE 410 and Fed.R.Crim.Proc. 11(f) appear to protect the statements

made by a defendant during plea negotiations from being admissible against the defendant

at trial—and they do. The problem is practical: The government will probably not consider

en ter ing into a plea agreement favorable to the defendant without having someone debrief

the defendant; and, the government is not going to debrief a defendant unless he or she

signs a Mezzanatto letter, waiving his or her right to the protections afforded by FRE 410

and Fed.R.Crim.Proc. 11(f).

It works like this: An AUSA and the defendant’s lawyer agree on the terms of a proffer

let ter which says, in essence, that the defendant must be completely truthful as to any and

all information that he or she provides during a debriefing. If the defendant complies, then

any thing related to the government by the defendant or his lawyer cannot and will not be

used against the defendant in any proceeding unless the defendant later testifies contrary

to the substance of the proffer or otherwise adopts a position inconsistent with the proffer.

Un til Sylvester, such evidence was viewed as admissible only on rebuttal. Things have now

changed.

In Sylvester—because of the language of the defendant’s waiver—the Court has expanded

the Mezzanatto Rule to allow the government to offer—in its case-in-chief—statements of

November 2009 VOICE FOITH~ DEfENSE 15


a defendant made during plea negotiations if the defendant

breaches the proffer agreement.

Judge Higginbotham’s opinion includes these excerpts:

[The Facts in Sylvester]

This case springs from a large-scale drug conspiracy in

Houston and New Orleans that ended with the ap prehen

sion of all key members and the murder of a federal

wit ness, Demetra Norse. At the time of her death in

June 2003, Norse was set to testify against a member

of the conspiracy, Tamara Durand. Nearly a year later,

the government obtained a warrant for the arrest of

Syl ves ter for the murder. Soon thereafter, Sylvester volun

tarily surrendered. Accompanied by his attorney at

the time, Sylvester met prosecutors at the United States

At tor ney’s Office in the Eastern District of Louisiana,

and was advised of his Miranda rights and informed

that he was under arrest for murder and various gun

and drug charges. An Assistant United States Attorney,

Mau rice Landrieu, played an audio recording in which a

mem ber of the drug conspiracy, Terrance Lash, identified

Syl ves ter as Norse’s killer. (A jury later convicted Lash

for arranging the murder.) Landrieu also confronted

Syl ves ter with a description of the killer and the killer’s

car from a 911 call, as well as evidence obtained during a

pre-arrest search of Sylvester’s car: cocaine, a newspaper

that noted Norse’s killing, and rap lyrics describing a

sim ilar murder.

Landrieu then explained that the Attorney General

had the discretion to seek capital punishment for the murder

of a federal witness, but proposed that, in return for a full

con fes sion that could be used against Sylvester in court if

there were a trial, and cooperating in the case, Landrieu

would ask permission from the Attorney General to seek

life imprisonment instead.

After consulting with his attorney, Sylvester waived

ob jec tion to the admission of incriminating statements

at trial in the event that plea negotiations failed and the

par ties proceeded to trial. Landrieu made the promised

rec om men da tion to the Attorney General, but shortly

af ter the meeting, Sylvester changed his mind, decided to

go to trial, and requested new counsel, whom the court

appointed [emphasis added].

[The Motion to Suppress]

Pursuant to Federal Rule of Evidence 410, Sylvester

moved to suppress statements he had made during plea

ne go tiations. The district court conducted a full evi dentiary

hearing and, after post-hearing briefing, denied

Syl ves ter’s motion. In its order, the district court found

Syl ves ter’s waiver to be knowing and voluntary, and allowed

the use of his plea statements in the government’s case-inchief

[emphasis added].

[The Government’s Case-in-Chief]

With that order in hand at trial, the government in troduced

Sylvester’s confession in its case-in-chief, as well

as other evidence of his guilt [emphasis added].

[The Verdict and Sentence]

A jury convicted Sylvester on multiple felony counts,

all stemming from the same factual matrix of murder

and narcotics trafficking. The district court sentenced

him to concurrent life sentences on seven counts, and

con cur rent terms of years on three others.

[The Issue of First Impression]

Sylvester’s appeal presents an issue of first impression in

this court: whether the government may use a defendant’s

statements made in the course of plea negotiations in its

case-in-chief, when the defendant, as a condition to en gaging

in negotiations with the government, knowingly and

voluntarily waived all rights to object to such use [emphasis

added].

Ordinarily, under Federal Rule of Evidence 410 and

Fed eral Rule of Criminal Procedure 11(f), statements made

by a defendant during plea negotiations are inadmissible

at trial. These Rules address both individual and systemic

con cerns in their attempt “to permit the unrestrained

can dor which produces effective plea discussions.” Most

rights afforded criminal defendants, including these, are

not inalienable, however. In the seminal case of United

States v. Mezzanatto, seven members of the Supreme

Court held that a criminal defendant can waive Rule

410 protection and make otherwise excludable plea statements

admissible at trial “absent some affirmative in di cation

that the agreement was entered into un know ingly or

involuntarily.” Notwithstanding this broad pro nouncement,

the Court in Mezzanatto upheld a more limited

waiver than Sylvester’s, one that allowed the government

to use statements made in plea negotiations to impeach

the defendant if he testified at trial, and five justices expressed

doubt as to whether a waiver could be used to

ad mit the defendant’s statements in the government’s

case-in-chief. Two dissenters disavowed waiver entirely,

while three justices concurred to raise the question of


whether “a waiver to use such statements in the case-inchief

would more severely undermine a defendant’s incen

tive to negotiate,” thereby presenting a more pressing

pub lic policy justification for disallowing waiver.

Now presented with a case-in-chief waiver, however,

we can find no convincing reason for not extending Mezzanatto’s

rationale to this case.

***

As Sylvester concedes, this is not a case of fraud or coer

cion; instead, he made the waiver knowingly and volun

tarily in the presence of counsel, while obtaining the

bene fit of his bargain when the prosecutor requested a

max i mum punishment of life imprisonment.

***

[C]ase-in-chief waivers serve two salient prosecutorial functions

that broad rebuttal waivers cannot. First, case-in-chief

waiv ers allow the prosecution to use the defendant’s plea

state ments in an opening statement. Second, they admit

plea statements even if the defendant limits his defense

to credibility impeachment of government witnesses or

es sen tially declines to wage any defense at all [emphasis

added].

My Thoughts

g The contents of a Mezzanatto letter are subject to negotiation;

e.g., it is not uncommon for the government to agree to a

provision stating that the government will not use the infor

ma tion furnished by the defendant in the prosecution

of the defendant’s spouse or other family members.

g Read any proposed Mezzanatto letter with great care. You

can expect that the “standard letter” will have been modified

as a result of the Court’s opinion in Sylvester.

g No client should ever agree to debrief unless he or she

un der stands the benefits and dangers of doing so and is

com mitted to being totally truthful.

g No defendant should ever participate in a debriefing unless

he or she has been thoroughly debriefed by his or her lawyer

and/or investigator.

g No client should ever be permitted to debrief unless there

is a Mezzanatto letter in the file.

Give us your

Word!

Your experiences in criminal law can contribute

to the continuing education of our membership.

Write now for the Voice for the Defense.

If you would like to submit an article, please

send it to

Cynthia Hampton at champton@tcdla.com or

Craig Hattersley at chattersley@tcdla.com

Swallow a loss and learn a lesson.

—Chinese proverb

Prior to publication, articles are reviewed and

approved by Greg Westfall, editor, and Jani

Maselli, feature articles editor.

Questions? Call 512-646-2733


Send your letters, pictures, gripes, bonehead gaffes, or whathave-you

to champton@tcdla.com or chattersley@tcdla.com.

Kudos

Kudos to all who helped free Ben Webb of Lubbock,


a TCDLA and LCDLA member jailed for contempt of

court June 11 for refusing to testify during the punishment

phase of a former client’s criminal trial. Judge Jim

Bob Darnell of the 137th District Court ordered Webb

to return the appointed attorney fees he had received

and held Webb in contempt. He was handcuffed, stripsearched,

and ordered to wear jail clothing. Webb was

behind bars for more than an hour before a different

judge signed a personal bond. Along with a few LCDLA

volunteers, Rod Hobson represented Webb, and all

his hard work paid off when visiting Judge Paul Davis

of Austin found Ben not guilty of contempt. The judge

signed an order agreed to by Webb and Hobson and the

Lubbock County DA. Several dozen members of LCDLA

and others spilled onto the west courthouse lawn for

an impromptu news conference following the hearing,

many sporting “Free Ben Webb!” stickers on their lapels.

All the Lubbock news media attended as Hobson and

Webb spoke, and TCDLA member Chuck Lanehart said

a few words on behalf of the association. An impassioned

Hobson called for an apology from the prosecutors

involved and Judge Darnell, but said he expected

that will never happen. Others who assisted in the Ben

Webb matter were TCDLA/LCDLA members Danny

Hurley, David Guinn, Phillip Wischkaemper, and Ralph

H. Brock. Congratulation to all for this victory! You guys

are awesome!

Congratulations to Clint Broden and Mick Mickelsen of


Dallas, who, after a long fight, successfully forced the

federal government to pay $356,000 in attorney and investigative

fees for a malicious, vexatious, and frivolous

prosecution under the Hyde Amendment. The client was

charged in the Southern District of Florida in 1993 with

drug distribution and ultimately convicted. Broden &

Mickelsen got involved in 1998 and won a new trial for

the client. The case was dismissed midway through the

retrial in 1999. In 2003, the trial judge found the government

liable for Hyde Amendment damages. The judge

signed the order on his deathbed, the last order he ever

signed. The government, taking advantage of the judge’s

death, sought reconsideration and the case languished

for several more years. During that time, the client himself

died. Nevertheless, earlier this year (16 years after

the indictment) the award was finalized and the client’s

estate was paid. Impressive victory!

Stan Schneider honors Delia G. De La Garza as TCDLA’s

3,000th member. Delia practices primarily in the areas

of immigration, criminal, and family law in Harris

and surrounding counties. She earned her JD from

Texas Southern University in May 2004. Delia is also

a member of HCCLA and the American Immigration

Lawyers Association.


Kudos on a magnificent victory to Joe Mar Wilson, Maxwell

Peck, mitigator Cyndy Short, and the entire defense


team in Levi King’s case. The jury deadlocked on the

mitigation question in this multiple murder case (with

other murders in Missouri), and so LWOP was imposed.

Way to go! This is the first life verdict from a jury in Lubbock

County. These guys have been in trial on a change

of venue from Pampa since July 1st. Jack Stoffregen,

Rob Cowie, the lawyers at the PD’s office, and of course

Philip Wischkaemper all are due a big thanks. The local

bar invited the team into their homes and helped in so

many ways. The guys from the Panhandle kicked butt.

Wow.

In the 253rd in Liberty County, TCDLA member and


TCTC group G alum Lameka Trahan received the twoword

verdict for her client, who was accused of possession

of a controlled substance in a penal institution.

Congratulations, Lameka, on a job well done!

Parole guru Bill Habern of Huntsville, with Richard


Gladden of Denton and Scott Pawgan of Huntsville,

won another victory in federal district court, this time

a finding by a jury that a parole official was personally

liable for damages. Judge Sam Sparks charged the jury in

Austin that as a matter of law, the Parole Board’s policy

(which they refused to amend until late June 2009 after

his law suit was over a year old) of placing parolees

who have no sex offense convictions on sex offender

supervision is unconstitutional as a matter of law. The

jury returned a verdict holding that: (1) Rissie Owens,

chair of the Parole Board, and Stuart Jenkins, head of the

Parole Division, violated Mr. Graham’s constitutional

due process rights; (2) Rissie Owens acted unreasonably

and Mr. Jenkins acted reasonably; (3) individual damages

were assessed against only Ms. Owens in the amount of

$15,000 for Graham’s emotional damages and $6,250

for compensatory damages, for a total amount of damages

of $21,250 (keep in mind they had to overcome

state immunity defenses to get to individual damages);

(4) finally, the jury found that the actions of the defendants

justified Graham hiring legal counsel, meaning

that attorney fees and costs will be determined and

awarded by the court. Primary credit for this victory in

this four-day trial, says Bill, goes to co-counsels Richard

Gladden and Scott Pawgan (Bill’s partner) for their

outstanding trial efforts. This decision potentially affects

between 650 and 1,000 other parolees who have been

subject to the same unconstitutional procedures when

the parole board placed them on sex offender conditions

without benefit of constitutional due process. Thanks to

Bill and his team for this outstanding win!

Congratulations to Lance Evans of Fort Worth, who was


appointed by the governor to the Texas Forensic Science

Commission. The commission was created by the legislature

in 2005 to establish a reporting system for instances

of professional negligence and misconduct on the part of

laboratories or other entities conducting forensic anal y-

ses, and to investigate allegations of professional neg ligence

or misconduct that would substantially af fect the

integrity of the results of a forensic analysis con ducted

by an accredited laboratory, facility or entity. Lance

re places Sam Bassett, who has served with distinction

on the commission since its inception, and whose term

expired September 1st. Congratulations to Sam for a job

well done and to Lance, whose adventure is just beginning.

Congratulations to TCDLA Board member Doug Murphy


of Houston, who was elected to the Board of Regents of

the National College for DUI Defense. Doug has worked

very hard to improve the quality not only of his representation,

but also that of other DWI defenders by writing

articles and teaching at seminars. Way to go, Doug!

Ken Leggett of Abilene reports that a life sentence was


obtained for Rocky Hidrogo, indicted for capital murder

in the death of retired Lutheran Minister Glen Bundy of

Comanche, Texas. Ken and Keith Woodley of Comanche

were appointed to represent Rocky. The state was represented

by Wes Mau of the Attorney General’s Office and

B. J. Shepherd, the Comanche County District Attorney.

Keith and Ken worked very hard and filed virtually every

motion in the Losch Capital Murder Manual and hired

Shelli Schade as a mitigation expert. The judge saw at

the third pretrial how expensive this was going to be and

“leaned” on Wes and B. J. to waive the death penalty.

B. J. did so (reluctantly), and we got the LWOP we had

sought (after a weeklong trial on guilt/innocence). Sometimes

hard work pays off. Much thanks goes to the Texas

Defenders Service (John Niland) and to Phillip Wischkaemper.

Their assistance was invaluable while the death

penalty was still on the table. Team effort (and given John

and Phil, our team was very strong). Congratulations to

Ken and Keith!

Re: People of Character

Dear Colleagues:

Dispatches

I could not help but share a recent event regarding a client who

demonstrates that there are still people of character among

those we represent. I had represented a gentleman in 1997 on

a Class A misdemeanor assault charge and concluded it with

a plea to a reduced charge of Class C assault deferred disposition.

Nothing particularly astonishing about what I deemed a

good result. Following the disposition I sent him a letter (now

in 1998) advising him that this disposition made him eligible

for an expunction and reminding him that he still owed me


$1,500 on his legal fees.

To my amazement, a couple of weeks ago I return to my

office from the courthouse and find a letter from this client,

who had moved to Puerto Rico, with a copy of my 1998 letter

and his own letter apologizing for the 12-year delay in payment

of the balance of my fee. He also figured that there must be

some interest due, so he enclosed $2,000 in money orders to

cover the fee and interest. I had long ago written this off as an

uncollectible debt that I am sure has been an experience of all

of you in your practices. The gentleman had even called my office

to be sure we got his letter and told my legal assistant that

he was a Christian man and knew that he had an obligation to

me and simply was unable to meet it until recently.

Of course I sent him a thank you letter recognizing that

there are still some people of character. My faith in my clients

and the work that we do is somewhat restored by this gentleman’s

act. I thought I would share this with my colleagues.

Sincerely,

Wes Ball

Jim Robinson

James E. (Jim) Robinson, a charter member

of TCDLA, passed away October 1, 2009,

in Abilene, Texas. He was 82. Jim attended

Texas A&M before enlisting in the Navy

in 1944, graduating from Baylor School

of Law in 1951. Jim was an “icon” as

a trial lawyer in the Abilene area, lead

counsel in the ’70s on the most sensational

capital murder case in local history (though

it was tried in Eastland County on a change of

venue). Jim was instrumental in fighting off the

death penalty in that case; his client lives

today. Known for representing the “downtrodden”

and “forgotten,” he is remembered

by friends for his intelligence, compassion,

and unrelenting ability as an advocate for

his clients, a model for West Texas attorneys.

Past president of the Abilene Bar Association

as well, Jim is survived by wife Cathy; one

son, John Ruther Robinson of Fairview, Texas;

a daughter, Janie Robinson Long of Austin, Texas;

one granddaughter; and four grandsons.

In Memory of Jim

He was always there when I needed him,

With not only understanding but compassion as well.

He was the one who always knew the answer.

Never too busy,

Never too tired,

And always willing to give of himself.

He fashioned my life and molded my character,

And I owe him more than I could ever repay.

He gave of himself,

In exchange I feel I returned very little.

For what I am or ever will be

I owe to Jim.

Always striving to protect the rights and liberties of his clients

From the injustice of mankind, the government and its impersonal edicts,

He was never afraid of the battle.

His weapons, the word, his wit, and his intelligence

Always armed, every ready

To defend the citizen accused

He was my mentor, my counselor and my friend

And I shall miss him dearly.

—Ra n d y Wilson (2009)


Whether you are wine tasting, dining at

renowned restaurants like the French Laundry,

pampering yourself with a mud bath in Calistoga,

or just enjoying your stay at quaint bed &

breakfasts, hotels, or resorts, Napa Valley is your

spot of heaven on earth.

The River Terrace Inn is located at 1600

Soscol Avenue, Napa, CA 94559. Room rate is

$99 per night, single or double occupancy. Call

707.320.9000 to make reservations and refer to

“TCDLA” to receive our group rate. The group

rate is available until January 15, 2010, or until

room block is full, whichever is earlier.

Information on social events and rates will be emailed to those registered.

Complete form if interested.

Attending?

YES! I would like to attend or would like more information on the Napa Valley Member’s Trip

Contact Information

Name ________________________________________ Bar Number __________________________________

Street Address _________________________________ City ________________ State _____ Zip __________

E-mail ______________________________________ Phone __________________ Fax __________________


Texas Criminal Defense Lawyers Association

Capital /Habeas

Philip Wischkaemper,

Kathryn Kase, & John Niland

February 25–26, 2010

Austin, Texas

Marriott Courtyard (512)236-8008

$139 single or double

www.tcdla.com

Seminars spon sored by CDLP are funded by a state grant administered by the Texas Court of Criminal Appeals.


The 23rd Annual

Rusty Duncan

Advanced Criminal Law Course

June 3–5, 2010

Hyatt Regency (host hotel, $175 s/d, $32.44 valet, $24.87 self-park)

(210)222-1234

Menger Hotel ($117 s/d, $25 valet parking)

(210)223-4361

La Quinta ($84 s/d, $21 valet, $17 self-park)

(210)222-9181

Cutoff date 5/7/10 or until filled

Shuttles available to convention center

(Member: $485 book/CD, $435 CD only)


"Sentinel" © estate of Steve Grosskopf


FOR

R~IEY

.O~I

S.J)ER.~IG

CY

."..--, ... O~IS

I'IG

OR

Dj.\~rrS

George is a 43-year-old

schizophrenic man who was making

almost daily calls to 911. After

representing him three times for “Silent

or Abusive Calls to 911” with three

evaluations of incompetent, his attorney

realized that George was spending

more than the maximum sentence for

his minor crime(s). George had a lot

to lose because he received government

benefits and had a stable place to live.

After the fourth arrest, counsel realized

that the revolving doors of evaluations

and restoration to competency were

probably not in George’s best interest

and, at that point, tried to fashion a

better solution with the prosecutor.

Jeanette Kinard

with special thanks to Brian W. Farabough

A donation in the name of Steve Grosskopf was made to an

endowed scholarship set up in his name at the UT School of Art.

NCMnlber 2009 VOICE FOITHE DEfENSE 25


If you represent a defendant with mental health problems

and that client has been accused of committing a class B

mis demeanor, 1 he faces a maximum of six months in jail. 2 But

the average number of days a defendant would spend in custody

is gen erally much lower than the maximum sentence. One way

to arrive at a sentence less than the maximum is for defendants

to make a bargain and just plead guilty to the charge. However,

to plead guilty, they must be competent to stand trial. 3 In Texas,

the common practice is to move for a competency evaluation

whenever there is a good faith or reasonable doubt as to the

com pe tency of a defendant. But, due to the increasing number

of defendants with questionable competency, the decreasing

num ber of state hospital beds, and other bureaucratic obstacles,

a de fen dant waiting on a competency evaluation will most likely

be held in custody longer than the average client. This is the compe

tency catch-22, in which the legal practitioner must make a

decision regarding what is in the mentally ill client’s best interest

(spending less time locked up) or regarding his ability to clearly

understand and communicate about the proceeding—and proba

bly their desire to spend less time behind bars.

According to the most recent Bureau of Justice Statistics

report regarding mental health and the criminal justice system,

in 2005 more than half of all prison and jail inmates in the

United States had at least one mental health problem. 4 In the

Texas penal system, there are approximately 43,000 prisoners,

55,000 probationers, and 21,000 parolees with a mental health

diagnosis. 5 These numbers do not include the roughly 170,000

mentally ill inmates Texas county jails admit yearly. 6 The

recent figures are staggering when compared to the number of

mentally ill inmates encountered in the United States just 50

years ago, a number that has grown approximately 500% since

then. 7 There is also a strong correlation between the gradual

de crease in the number of mentally ill patients being treated in

state hospitals and the increase in inmates with mental health

prob lems. 8 Unfortunately, the burden has just shifted from one

state-run facility to another, with a new concern being re cid i‐

vism as opposed to relapse. Recidivism of mentally ill inmates

is high, with approximately one quarter of inmates, in both jail

and prison, also carrying a criminal record with three or more

in car cerations. 9

The numbers strongly indicate many criminal defendants

are dealing with mental health issues. Most criminal defense

attorneys either have, or will, represent a client who suffers from

men tal illness. For an attorney to be the best advocate possible

for these mentally disabled clients, recognition of what is in

the client’s best interest is crucial. Are competency evaluations

in his best interest? Many criminal defense advocates answer

this question with a blanket yes. However, the answer is not

always so simple.

Why Seek a Competency Evaluation?

There are many good reasons to request a competency evaluation.

For example, if the defendant is found incompetent to stand

trial, the state will be required to restore that defendant to

com pe tency in order to be tried. It is generally in the client’s

best interest to be restored to competency. Failing to obtain

treat ment can, in some cases, seriously harm a person’s men tal

health. Also, there are treatments available that restore compe

tency without significant deprivation of liberty. These outpa

tient restorative intervention programs are available in at

least four Texas counties. Moreover, clients who are not flagged

as being incompetent, generally, face either probation or jail.

Neither are adequate solutions. Probation generally fails because

the mentally incompetent defendant will often violate

that probation. Jails, on the other hand, lack the resources to

prop erly care for inmates with mental illness. When the jailors

are unaware of any mental health issues, they most likely will

not attempt to treat the afflicted prisoner. Thus, the inmate is

not treated for the underlying mental health issue behind the

crim i nal act, which leads to high rates of recidivism. Though

not exhaustive, this list indicates several of the reasons why a

crim i nal defense attorney would motion to the court regarding

competency to stand trial.

Why Avoid Competency Evaluations?

The most obvious reason defense attorneys would not seek

eval u ation of competency, despite their suspicions, is the time

dis parity. Clients charged with petty misdemeanors will sometimes

spend more time waiting for—or in—a hospital in order

to be restored than they would spend in jail if convicted. Also, an

attorney could feel that disclosure of such suspicions breaches

the attorney-client privilege. The often rightfully cynical attorney

might feel that the client will not really get help. Thus, the lawyer

might feel there is no point to try to have the client restored.

Lastly, many criminal defense attorneys define zealous advocacy

as “get ting the client off the hook” or obtaining the most lenient

sen tence possible. When these motivating factors operate in the

defense counsel’s mind, he or she will likely feel responsible for

that additional time spent in the state’s custody for the compe

tency evaluation. There are certainly more reasons why attor

neys would purposefully avoid a competency evaluation,

but these four highlight a handful of the main drivers behind

this choice.

Competency Rules and Law in Texas

Article 46B of the Texas Code of Criminal Procedure describes


the process by which competency issues are addressed. The

com pe tency standard holds that a defendant must have: (1) a

sufficient present ability to consult with his lawyer with a reason

able degree of rational understanding, or (2) a rational as

well as factual understanding of the proceedings against him. 10

Interestingly, the Texas statutory construction is more con ducive

to findings of incompetence than the Dusky standard,

which includes an “and” conjunction that requires a lack of

both consultative ability and understanding of the adversarial

pro ceed ings. When presenting information that tends to prove

ei ther prong of the competency standard, the defendant’s burden

of proof requires that either item (1) or (2) be proven by

a pre pon derance of the evidence. 11 When a judge encounters

evi dence suggesting that a defendant is not competent to stand

trial, he must motion for a competency evaluation. 12 However,

the prosecution or defense counsel may motion for an evaluation

when evidence suggests the possibility of incompetency, but they

are not required to make this motion as is the judge. 13

The legal implications of a finding of incompetency are

nu mer ous. First, the United States Supreme Court has found

the conviction of an incompetent defendant to be a violation of

the United States Constitution’s Fourteenth Amendment Due

Process Clause. 14 A defendant who pleads guilty to a charge must

be competent enough to understand the implications of that

guilty plea. 15 Once a defendant is found incompetent, which

un der the Texas standard is more likely as compared to other

juris dic tions, due process requires that they not undertake the

ad ver sarial system until competency is restored. The maximum

period of treatment for an incompetent defendant is 120 days,

with one possible 60-day extension, 16 though the waiting period

and treatment cannot generally exceed the maximum sentence

possible for the charged crime. 17

When the question of competency arises, Texas defense

at tor neys are ethically bound by the State Bar Rules, which specifically

state:

A lawyer shall take reasonable action to secure the appoint

ment of a guardian or other legal representative for,

or seek other protective orders with respect to, a client

when ever the lawyer reasonably believes that the client

lacks legal competence and that such actions should be

taken to protect the client. 18

This statutory construction appears to have left open the

op tion of attorney discretion via the last clause, which mandates

ac tion only when the attorney reasonably believes both that the

client is legally incompetent and that the actions should be taken

to protect the client. But, how discretionary is this language? A

com pe tency evaluation could be considered necessary to protect

the client from due process violations, or from their own mental

ill ness. Conversely, an attorney might believe that avoidance

of the often disproportionate time in custody during the wait

for a competency evaluation and the time it takes to restore an

incompetent client better protects the client. Regardless, the

language of State Bar Rule 1.02(g) does not absolutely bar attor

ney discretion in deciding whether or not to seek a com petency

evaluation.

The Texas Bar Rules also obligate candor, which requires an

attorney to not “knowingly . . . make a false statement of mate

rial fact” to the court. 19 A knowing omission by the attorney

re gard ing his reasonable belief that a client is incompetent might

vio late this rule. This possible violation stems from the fact

that the omission is equivalent to knowingly making the false

state ment that a client is competent to stand trial. In Texas, as

in most jurisdictions, a defendant is presumed competent. 20

Fail ure to bring up a reasonable belief in the incompetency of

a defendant equates to a silent assertion that the defendant is

com pe tent, which might violate the rule regarding candor. But,

does the rule regarding candor trump the rule that mandates

rea son a ble action to seek protective orders, which does allow

for attorney discretion? Or, does the attorney-client privilege

pre vail over candor in this situation?

Dr. John King, of Washington and Lee University School of

Law in Lexington, Virginia, commenting on the issue of candor

and competency, indicated that candor is no more important

an ethical talisman than zealous representation or protection

of client confidences and secrets. 21 He also implies that most

cod i fi ca tions include candor in order to “give lip service” to

this “basic systemic value,” without recognizing the fact that it

is “fundamentally at odds with other values” such as zeal and

priv i lege. 22 Accordingly, he believes defense attorneys should take

the rule of candor with a grain of salt when it runs up against

other codified ethical obligations. Given that the Texas Bar Rules

in clude a version of this same conflict, and that omissions are not

al ways silent assertions of material fact, 23 it appears that the rule

re gard ing representation of incompetent defendants could be

fol lowed without violating the candor requirement. Even if it was

a violation of candor, it is arguable that zealous representation of

a defendant’s best interest would not necessarily sink a defense

at tor ney below that unethical line set by the State Bar because

these conflicting ethical obligations do not appear to trump

each other. 24

Because the Texas Bar Rules do not explicitly address the

rules of professional conduct in regard to raising the issue of

competency, many attorneys look to the American Bar As so ciation’s

(ABA) Criminal Justice Mental Health Standards. Spe cifi

cally, these standards state:


Defense counsel should move for evaluation of the defendant’s

competence to stand trial whenever the defense

counsel has a good faith doubt as to the defendant’s compe

tence and permit such a motion even over the de fendant’s

objection. 25

Clearly, the ABA standards do not allow for attorney discre

tion regarding competency evaluations, and candor trumps

even client advocacy. Most commentators improperly place this

same mandate of disclosure on defense attorneys. 26 Conversely,

one commentator has aptly stated that the ABA mental health

standards regarding raising the issue of competency as “out rageous”

because it abrogates both the attorney-client priv i lege

and the role of the attorney as advocate for her client. 27 This

kind of automatic disclosure, once doubts regarding a client’s

competency arise, would fail to consider the negative legal effects

of such a motion, and could end with numerous undesirable

im pacts to both the client and the penal system.

For example, oftentimes for minor offenses a defendant

would face far more time in state or county custody due to a

com pe tency evaluation than if she just served the maximum

sen tence for the crime. 28 The negative impact to the client is the

ar guably unnecessary extra time incarcerated, while the state

is also affected due to the extra cost of housing and treating

this prisoner. For these and other reasons, some practitioners

agree that for misdemeanors, the defense presumption should

be avoidance of incompetency evaluations. 29 Below are three

ex am ples of misdemeanor cases where the defense counsel was

faced with the difficult decision of whether or not to raise the

com pe tency issue. The factors vary from case to case, but the

con flict between the best interest of the client and competency

is common through each case.

Richard:

Richard is a client that the Travis County Mental Health Public

De fender (MHPD) represented last year. He was charged with

the minor offense of Criminal Trespass. 30 He is schizophrenic,

but lives with his mother and is active with Mental Health and

Men tal Retardation (MHMR). Psych medication does not seem

to work with Richard. At the time of the last case, a competency

mo tion was made and he was found incompetent. Between

the time he spent waiting in the jail for a bed to open at the

Austin State Hospital (ASH) and the time he spent in ASH, he

was locked up for nine months on a Class B misdemeanor. If

de fense counsel just had him plead guilty to criminal trespass,

the maximum time spent in the system would have been six

months. After this long stay in state custody, Richard returned

from the hospital “incompetent and unlikely to regain.”

Shortly thereafter, the MHPD were appointed to Richard

again when he was arrested on another criminal trespass. However,

this time MHPD did not make the competency motion.

Rather, the defense convinced the prosecutor to dismiss the case.

Ob viously this is a better outcome than the initial situation,

which included a nine-month stay with the state for a maximum

six-month offense. This did not comply with the ABA rules

and the general practice in Texas, but his counsel did not want

to send him into the same situation he was in before. Defense

coun sel felt it was in the client’s best interest not to request a

com pe tency evaluation.

Shiela:

Another client MHPD represented, Shiela, was a homeless schizophrenic

woman charged with Criminal Trespass. Shiela was in

the late stages of liver failure due to her chronic alcoholism. This

stage of her terminal illness was sadly marked by the fact that

her kidneys had shut down. The failure of these vital organs led

to her being terribly thin everywhere but her belly, which was

swol len due to fluid collection. Shiela’s crime involved returning

to a particular house and trying to get in because she believed

she owned that house. The people who lived there would dial

911 every time she banged on the door, and she would be taken

to jail. As long as the jail would take her to a hospital to have

her fluid drained, she continued to survive. Without these incustody

treatments, her life expectancy would be roughly two

weeks.

Understandably, the High Sheriff wanted her out of his

jail, as these trips to the hospital were coming out of his budget.

The treatments were a necessary problem because any inmate

hos pi tal death is still considered a “death in custody,” which

trig gers an unwanted investigation. In order to release Shiela,

the county wanted to be assured she had somewhere to stay.

De fense counsel found her mother, but the mother refused to

take her. Then, counsel found a nursing home that agreed to

take her. After arranging to turn in dismissals and release cards

when Shiela was at the hospital, the defense attorney went to

her room to get her and drive her to the nursing home. The

MHPD’s intention was that she live out her last few weeks in a

clean, comfortable place.

On the contrary, her intentions were to have one last

binge and die on the streets. She refused to get into the car

with the defense team or consider going to a nursing home.

Two days later, she was arrested again at the same house for

the same charge. While in custody the second time around,

she continually was moved between the jail and the hospital.

Tak ing into consideration the first experience with Shiela, this

time the defense went to civil court before turning in dismissals


and tried to get a guardianship. The judge found that she had

ca pac ity and she was released. However, three weeks later she

was back. To this day, the MHPD office still believes she is not

com pe tent to stand trial and will never be competent. However,

the defense also understands that no state hospital will take

some one with her complicated and terminal medical problems.

Mak ing a Motion for Competency in this situation dooms her to

a long, expensive stay in the county jail that will only end with

her death. It would be hard to say that a competency motion

would benefit Shiela, being that at least without that evaluation

pro cess, she is out sooner and possibly will get to live her last

days outside a jail cell.

Bobby:

Another real-life example involved a client named Bobby. The

defense attorney and Bobby were in a jail call in County Court.

This “cattle call” setup involved alternating rows of defendants

and attorneys. The attorney was turned around on the bench

seat to talk to the appointed client. The client was charged with

crim i nal trespass. There was no doubt in defense counsel’s mind

that Bobby had a firm grasp on what was occurring procedurally.

He understood that the person in front of him was his lawyer and

that the woman in the black robe was the judge. He understood

jail credit, and his most important understanding was that he

wanted out of jail. Interestingly, during this interview he also

told the attorney it was clear that she was an alien, and also that

aliens had put him in jail. Faced with these facts, the attorney

had two choices: either plead him for time served and get him

out and home to his mother or request a competency evaluation,

which would take about ten days and, if incompetent, would

keep him locked up another three to four months before he

re turned to court.

The Plea for Discretion

As the stories of Shiela, Bobby, and Richard illustrate, competency

evaluations particularly on the misdemeanor level, are not always

in the best interest of the mentally ill defendant. The application

of this simple truism generally is accompanied by silence because

many attorneys in Texas believe that there is an obligation to request

these evaluations at the first signs of incompetency. However,

neither the State Bar rules nor the Texas Code of Criminal

Pro cedure explicitly prohibits attorney discretion regarding

the decision to motion for a competency evaluation. Both of

these authoritative codes have attorney discretion built into

the statutes regarding raising the issue of competency. Article

46B.004(a) of the Texas Code of Criminal Procedure says that

ei ther party may motion for such an evaluation. 31 Use of the

word “may” regarding both the defense and prosecution leaves

the door wide open for attorney discretion when faced with

rais ing the issue of competency.

This discretion is also built into the Texas Bar rule regarding

rep re sen tation of defendants who might be incompetent. Under

that rule, as mentioned above, an attorney must take reason

a ble actions to seek protective orders for a client when he

reasonably “believe[s] that the client lacks legal competence

and that such action should be taken to protect the client.” A

com pe tency evaluation leads to an order regarding competency;

thus, motioning for an evaluation is a necessary part of seeking

an order of incompetency. But, as the statute states, this action

only shall be taken when the attorney believes that the client is

in com petent, and that the order of incompetency will protect

the client. This notion of protecting the client is equivalent to

tak ing into consideration what is in the mentally ill defendant’s

best interest.

Moreover, despite the general practice in Texas of following

the ABA rules, these rules serve more as a model. The Texas

Legislature revised the Code of Criminal Procedure competency

frame work in 2003. During this revision, legislators maintained

the state’s aversion to strict and obligatory rules, like those published

by the ABA, regarding competency to stand trial. This is

most no ta ble in the standards of proof required to motion for

a com petency evaluation. The ABA rules regarding competency

man date that all parties involved, including the judge, move for

a com pe tency evaluation whenever a good faith doubt exists

as to the defendant’s competency. The Texas Code of Criminal

Pro ce dure’s evidence suggests the standard is much less strict

than the ABA standard and allows for many more opportuni ties

to have the mental competency of defendants evaluated.

As one Texas judge has remarked, the Supreme Court did

not establish a stan dard for determining when to raise com petency

issues, and that “the purported [bona fide doubt] standard

is not a creature of the constitution and our Legislature may

pre scribe some other one that is adequate to meet due process

re quire ments.” 32 The bona fide doubt standard presented in

the Dusky opinion is not exactly the same as the good faith

doubt standard set forth by the ABA, but it is really close. The

legislative history of S.B. 553—and the fact that both attorneys

involved are provided discretion to choose whether or not to

pre sent a competency motion—indicates that the members of

the task force in charge of determining what standard to fol low

intentionally moved away from what they considered to be a

limiting standard. This also suggests that the Texas Leg is la ture

be lieves that a competency statute that includes a lower eviden

tiary hurdle and attorney discretion is adequate enough to

meet the requirements of due process. And, this belief has not

been challenged.


Conclusion

In a decision of the United States District Court for the District

of Columbia, O’Beirne v. Overholser, which was later reversed,

Judge Holtzoff attacked the defense counsel’s choice to seek an

incompetency order for a misdemeanant by saying:

It may not be inappropriate to observe that counsel

for defendants in borderline cases in which the offense

is of a type that would carry at most a short term of

im pris on ment, frequently do their clients a disservice

when they request a mental examination. Often the

out come of the examination is that the defendant is

found competent and yet will have been incarcerated

for several months in the criminal ward of a mental hospi

tal amidst madmen while the study of his mental state

is being conducted; and if he is eventually convicted and

sentenced to imprisonment, his incarceration is prolonged

that much longer. On the other hand, if he is

ac quit ted on the ground of insanity, he runs the risk

of being incarcerated for a much longer period than

might have been the case if he were sentenced to a short

term in jail. Counsel for defendants are advocates and

must have the courage to represent their clients’ best

in ter ests within the orbit of ethical practice. . . . If the

de fen dant is actually in need of mental treatment, his

coun sel would serve him better by securing treatment for

him on the civil side of a mental institution, possibly as

a voluntary patient, if and when an opportunity to do so

arises. Mental examinations and the defense of insanity

are better reserved for capital cases, as well as for cases

in which the defendant runs the risk of being sentenced

to imprisonment for a long term. 33

Dr. John King has remarked about this quote that the obser

va tion is unremarkable to any attorney who has “wrestled”

with this difficult issue. 34 What is remarkable is that there are

at tor neys who mistakenly neglect advocating for their mentally

ill client’s best interest because they believe that they lack the

dis cre tion to choose whether or not to motion for a competency

evaluation.

The Texas Bar rules and the Code of Criminal Procedure

are both constructed to allow for attorney discretion when confronted

with a defendant who might need a competency eval uation.

Using this discretion by actually weighing what is in the best

interest of the client might call for the defense counsel to avoid

the competency issue. This is especially true when the charge

is minor, such as Criminal Trespass, a class B misdemeanor. As

the stories of Shiela, Richard, and Bobby illustrate, there are

some situations where the answer to what is in the client’s best

in ter est is not a routine motion for a competency evaluation.

In these instances, forgoing the competency evaluation and

buy ing the client more time outside state custody is in those

de fen dants’ best interest, and should be considered side by side

with the issue of competency.

Notes

1. Jennifer S. Bard, Re-Arranging Deck Chairs on the Titanic: Why the In carceration

of Individuals with Mental Illness Violates Public Health, Ethical, and Consti

tutional Principles and Therefore Cannot Be Made Right By Piecemeal Changes to

the Insanity Defense, 5 Hous. J. Health L. & Pol’y 1, 42 (2005) (emphasizing that

the majority of the seriously ill are incarcerated for minor misdemeanors).

2. Tex. Penal Code Ann. §12.22 (Vernon 2009).

3. Criswell v. State, 278 S.W.3d 455, 457–58 (Tex. App.—Houston [14th

Dist.] 2009) (stating that a conviction obtained while the defendant is legally

in com petent violates due process of law).

4. Doris J. James & Lauren E. Glaze, Mental Health Problems of Prison and

Jail Inmates (2006), at 1, http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf.

5. Marc A. Levin, “Expand Program to Divert Mentally Ill from Prisons:

New Approach Can Save Money, Improve Safety,” Houston Chronicle, April

23, 2009, at B11, available at http://www.chron.com/CDA/archives/archive.

mpl?id=2009_4728379.

6. Ante, at n. 5.

7. John D. King, Candor, Zeal, and the Substitution of Judgment: Ethics and

the Mentally Ill Criminal Defendant, 58 Am. U.L. Rev. 207, 212 (2008) (stating

that a nearly five-fold increase in the number of mentally ill incarcerations has

occurred over the last 50 years, with a national incarceration rate of 162 per

100,000 inmates in the mid-1950s and a current incarceration rate that is over

700 per 100,000 inmates).

8. Ante, at n. 7 (stating that the institutionalization rate of people in mental

hospitals has dropped from 339 to 20 per 100,000 over the last 50 years, and

also that the shift from institutionalization to incarceration of the mentally ill

in the United States is well documented).

9. James and Glaze, ante note 4, at 1.

10. Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1-2) (Vernon 2009)(This is

often referred to as the Dusky standard since the standard was formulated by

the Supreme Court in Dusky v. United States, 362 U.S. 402, 402 (1960). However,

the Dusky standard requires both (1) and (2), while the Texas standard only

re quires either (1) or (2) to establish competency).

11. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2009).

12. Tex. Code Crim. Proc. Ann. art. 46B.004(b) (Vernon 2009) (“If evidence

suggesting the defendant may be incompetent to stand trial comes to the attention

of the court, the court on its own motion shall suggest that the defendant may

be incompetent to stand trial”).

13. Tex. Code Crim. Proc. Ann. art. 46B.004(a) (Vernon 2009) (“Either party

may suggest by motion, or the trial court may suggest on its own motion, that

the defendant may be incompetent to stand trial”).

14. Pate v. Robinson, 383 U.S. 375, 378 (1966).

15. Godinez v. Moran, 509 U.S. 389, 396 (1993); Tex. Code Crim. Proc. Ann.

art. 26.13(b) (Vernon 2009).

16. Tex. Code Crim. Proc. Ann. art. 46B.073(b) (Vernon 2009); Brian D.

Shannon & Daniel H. Benson, Texas Criminal Procedure and the Offender with

Mental Illness: An Analysis and Guide 88 (4th ed., National Alliance on Mental

Illness 2008).

17. Tex. Code Crim. Proc. Ann. art. 46B.0095(a) (Vernon 2009).

18. Texas Disciplinary Rules of Professional Conduct, Rule 1.02(g), 11 (2005)

(emphasis added).

19. Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(1), 59


(2005).

20. LaHood v. State, 171 S.W.3d 613, 618 (Tex. App.—Houston [14th Dist.]

2005), pet ref ’d (citing Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon

2006)).

21. King, ante note 7, at 215–26.

22. King, ante note 7, at 219.

23. Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(1)

Comment 2, 60 (2005) (quoting that there are circumstances where failure to

make a disclosure is the equivalent of an affirmative misrepresentation, and

in fer ring that there are circumstances where that is not the case).

24. Texas Disciplinary Rules of Professional Conduct, Preamble: A Lawyer’s

Responsibilities (7), 5 (2005) (stating that within the framework of these Rules

many difficult issues of professional discretion can arise, and that the Rules

and their Comments constitute a body of principles upon which the lawyer

can rely for guidance in resolving such issues through the exercise of sensitive

pro fessional and moral judgment).

25. A.B.A. Crim. Justice Mental Health Standards 7-4.2(c) (1989).

26. King, ante note 7, at 234 (commenting that such an approach is not

jus tified by history, necessity, or logic and undermines the integrity of the

attorney-client relationship and, therefore, the integrity of the criminal justice

system).

27. King, ante note 7, at 235.

28. 1 Crim. Prac. Manual §3:3 (2009).

29. Ante at n. 28.

30. Tex. Penal Code Ann. §30.05(d) (Vernon 2009) (stating that Criminal

Trespass is a class B misdemeanor, except when it meets any of the requirements

that heighten the crime to a class A misdemeanor).

31. Tex. Code Crim. Proc. Ann. art. 46B.004(a) (Vernon 2009).

32. Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980).

33. O’Beirne v. Overholser, 193 F. Supp. 652, 661 (D.D.C. 1961).

34. King, ante note 7, at 238.

Jeanette Kinard is Director of the Travis County

Mental Health Public Defender Office. A

long-time criminal defense attorney, Jeanette

has a Bachelor’s Degree from UT-Austin and

a law degree from U of H in Houston. She is a

frequent speaker, state wide, on the topic of the

mentally ill in the criminal justice system. She is a member

of the State Bar of Texas, Austin Crim i nal Defense Lawyer’s

Association and Texas Criminal Defense Lawyer’s Association.

Seminars spon sored by CDLP are funded by a state grant administered by the Texas Court of Criminal Appeals.


Thinking Outside the

DWI Voir Dire Box

Jury selection is the single most important part of a DWI trial. Breath test

DWI prosecutions are more difficult to defend then no test cases. Blood

test cases are even harder to defend. Accordingly, voir dire preparation in

a breath test case is more critical than in a no test case. It is here that the

defense begins the task of undermining the prosecution’s evidence. It is here

that exculpatory theories emerge, that jurors begin to learn their proper role,

that defense counsel starts making the potential jurors his witnesses and

initiates the task of persuading them to vote “not guilty”.


No brilliant opening statement, outstanding crossexamination,

or spectacular closing argument can

make up for a wrong-thinking jury. It is for this

rea son de fense counsel must always plan the voir

dire so questions can both teach and stimulate jurors not only

to understand the jury-trial right of the defendant, but also to

make them think of, and espouse, exculpatory theories.

No jury can decide a DWI case absent having a deep appre

cia tion and working grasp of the constitutional precepts of

“presumption of innocence” and “proof beyond a reasonable

doubt.” Clearly understanding these notions is paramount to

both effective jury service and effective assistance of counsel.

Regrettably, most jurors do not understand them. It is,

how ever, hard to blame them for this deficiency because most

judges, prosecutors, and defense lawyers do not either. Notwith

standing the fact that most lawyers do know the words

“pre sump tion of innocence” and “proof beyond a reasonable

doubt,” they simply lack an appreciation of their constitutional

his tory, true meaning, breadth, and spirit.

Recognizing these criminal justice system inadequacies, the

good lawyer will not only set about to teach these constitutional

notions to the judge and jury, but also seek to make these legal

and factual jurists actually embrace them. Accordingly, be cause

of judicial time constraints, learned defense counsel must thoroughly

explore both these constitutional assurances with the

jury, even to the exclusion of other material topics if the cit i zen

ac cused is going to get the fairest trial possible. Indeed, it was

with this recognition in mind that the majority of this ar ti cle

has been written.

The following voir dire questions, comments, and silver

bul let tips are offered to defense counsel as food for thought so

that you can hopefully render effective assistance of counsel.

Introduction

Comment: Reintroduce yourself and your client.

Comment: Tell the jurors that you and your client are

not there in defiance of the DWI laws. Indeed, share with

them your common belief that the laws are necessary and

good, but you are there because your client thinks he is not

guilty.

Silver Bullet Tip 1: Do not refer to your client as “the

defendant.” Call him by name there and throughout

the trial. Try to personalize your client.

Silver Bullet Tip 2: Self-disclose any fears you have

so as to allow the jurors to both identify with you and

self-disclose their fears to you. For example, admitting

you had a fear of being misjudged by the jurors because

of the way you wear your hair might connect to a juror

who has a fear of public speaking. Your courage to

self-disclose could cause the juror to have courage to

speak up, and more importantly, self-disclose a bias/

prej u dice/defense.

Silver Bullet Tip 3: In preparing your voir dire questions

and comments, create a fear list—i.e., evidence

that bothers you about the case. Addressing your fear

list in voir dire is the best way to create defenses for it

dur ing the trial.

Silver Bullet Tip 4: Use open-ended questions as often

as you can. If you use close-ended questions, then ask

for an explanation as to why a juror responded a certain

way.

Silver Bullet Tip 5: Try to create controversy in the

ques tions you create. For example, some people say

that if a group of ten people were charged with a crime,

nine of whom were absolutely guilty and one who was

ab so lutely innocent, that it is better to convict them all

to protect society from the nine guilty persons. Others

say you can only protect society by freeing them all to

pro tect the innocent person. What do you think?

Silver Bullet Tip 6: Design your questions to make

the jurors think so that they create defensive themes

for your client.

Silver Bullet Tip 7: Try not to use lawyer words. Speak

like a lay person.

Silver Bullet Tip 8: Listen carefully to not only what

jurors say, but also what their body language says too.

Make eye contact with each juror.

Silver Bullet Tip 9: The more time you spend talking

is less time for the jurors to talk. Accordingly, try to

have the jurors talk as much as possible.

Silver Bullet Tip 10: Loop, loop, and loop again. The

number three is a powerful number. Asking one juror

what he thinks and then asking the next juror what he

thinks of that answer, and then asking the third juror

what she thinks of the first two answers is a powerful

tool for bonding jurors together, creating defenses, and

for making witnesses.

Silver Bullet Tip 11: Know your case law and statutory

rules on challenges for cause and peremptory challenges.

You must also know the law on asking for additional

time and whether or not a question is proper.

Silver Bullet Tip 12: Remember that even though

most jurors have made up their mind as to how they

are going to vote at the end of voir dire, it is not over

un til it is over.


Presumption of Innocence

and Burden of Proof

There are four cornerstones that make up and support our crimi

nal justice system. They are the Presumption of Innocence, the

requirement that guilt be proved beyond a reasonable doubt by

the government, the right of a citizen to have an attorney, and

the right to be tried by a jury of our peers. You and I are two of

those cornerstones, but let us discuss the remaining two.

1. What is the presumption of innocence?

Comment: It is one of the four cornerstones of our criminal

justice system. It has been with us since our coun try was

born on June 21, 1788. The presumption of innocence is a

legal instruction from our founders to the judge, prosecutor,

and jury that it is the government’s ob li ga tion and duty

to prove guilt. Said another way, accused persons have no

obligation or duty to prove themselves innocent.

2. What is the one and only presumption or assumption a

ju ror can make in a criminal case?

Comment: The presumption of innocence.

3. What will you require Mr. Defendant to prove in order for

you to find him not guilty? And why?

Comment: “Nothing!” The presumption of innocence

requires only the government to prove anything. Where the

government fails to prove guilt, the default or automatic

ver dict is always “not guilty.”

4. If the prosecutor chose to let you decide this case right

now, and both Mr. Defendant and I did too, and the judge

agreed, how would you vote, “guilty or not guilty”? And

why?

Comment: The presumption of innocence is so im portant

that it is the only lawful authority needed for you to

find a person “not guilty” where the government’s proof is

insufficient to convince you of guilt.

5. How long does the presumption of innocence last?

Comment: It exists throughout the entire trial.

6. Does the presumption of innocence exist after you have

heard:

Y the opening statement of the prosecutor?

Y the sworn testimony of the arresting officer?

Y the sworn testimony of all police officers in this case?

Y the breath test machine officer say he ran a valid test?

Y the government’s paid expert witness say that the breath

test machine was properly working and that Mr. De fendant

failed the test?

Y the prosecutor present a closing argument and tell you

why you should vote guilty?

Y the judge tell you to go into your deliberation room and

decide this case?

Comment: “Yes” to all these stages of the trial.

7. In regard to the presumption of innocence, where the offi

cer says Mr. Defendant is guilty, does the presumption of

in no cence require you to look for an innocent explanation

or for some kind of mistake? Explain.

8. In regard to the presumption of innocence, where the govern

ment and/or machine witness says Mr. Defendant is

guilty, does the presumption of innocence require you to

look for an innocent explanation or for some kind of mistake?

Explain.

9. Where Mr. Defendant does voluntarily take a breath test,

with the presumption of innocence in mind, can you presume

that he didn’t think he was guilty? Why?

10. Does the presumption of innocence exist while each of you

are deciding/talking about this case after you start de lib erat

ing?

Comment: Absolutely, the presumption of innocence is

there as an instruction/guide to each of you individually

and collectively to constantly remind each other about when

eval uating the sufficiency of the government’s evidence.

Comment: Some legal scholars have compared the presump

tion of innocence to the “scales of justice,” where

each bit of evidence is weighed or evaluated. A jury can

de ter mine if any particular evidence has no weight, some

weight, or a lot of weight. Those same scholars say that the

presumption of innocence is only overcome where the govern

ment’s evidence is so overwhelming and weighty that

the scale not just tips or leans to the government, but rather

the scale is pegged all the way against Mr. Defendant.

11. How would you use the presumption of innocence where,

af ter hearing and seeing all the evidence, you conclude

“I can’t decide whether Mr. Defendant is guilty or not

guilty”?

Comment: Where not convinced of guilty, the default,

or automatic vote, is always not guilty.

12. When you hear or see evidence that says Mr. Defendant

is guilty, what does the presumption of innocence require

that you think as you receive that evidence?

Comment: The presumption of innocence requires that

you constantly search for innocent explanations and to

accept and embrace them until such time, if possible, the

government does disprove them by proof beyond a reason

able doubt.

13. How many presumptions or assumptions are there in a

crim inal case, and, can you name them?

Comment: The presumption of innocence is the only

al low able presumption and assumption.

14. Knowing there is only one presumption/assumption in a

crim inal case, and that is the presumption of innocence,


can you:

Y assume that where Mr. Defendant elects not to testify

for him self that he thinks he is guilty? Why not?

Y presume that police motor skill coordination exercises

or police standardized sobriety tests are reliable and accu

rate for

Q the average person?

Q Mr. Defendant?

Q any person? Why not?

Y presume that Mr. Defendant has the same motor skills or

coordination as a so-called average person? Why not?

Y presume that the motor skill/coordination performance

of Mr. Defendant as described by the police is how he

nor mally is? Explain.

Y presume that Mr. Defendant can, on any sober day in his

life, perfectly or correctly perform police field sobriety

tests? Why not?

Y assume that the police breath test machines work, or are

accurate, or are reliable because:

Q the government bought them? Why not?

Q a paid government witness said it was working, accu

rate, reliable? Why not?

Q the result showed a .08? .16? .20? 40? Why not?

15. “Tolerance” is a word you may hear in this case. Tolerance,

according to the dictionary, can have several meanings.

One meaning is that tolerance is an acceptable margin of

er ror—i.e., we will tolerate a mistake if we don’t think it

is a big one.

Another meaning of tolerance can be where a person,

over time, builds up a kind of immunity against something

or simply learns to cope with something. For example, a

gov ern ment breath test expert might say a person has a

tol er ance to alcohol where there appears to be no alcoholic

ef fect to their mental or physical abilities but they still failed

the breath test.

Y With the presumption of innocence in mind, can you

pre sume or assume that Mr. Defendant has a tolerance

to alcohol? Why not?

Y With the presumption of innocence in mind, can you

pre sume or assume Mr. Defendant, if impaired, can mask

or hide the effects of alcohol? Why not?

16. Do you personally think the presumption of innocence is

im por tant and why?

17. Keeping the presumption of innocence in mind, can you

pre sume or assume that just because a person consumed

an alcoholic drink that there:

Y is any loss of their normal mental ability?

Y is any loss of their normal physical ability?

18. What about where consumption is admitted and the amount

consumed was:

Y 2 beers?

Y 4 beers?

Y 6 beers?

Y 20 beers? Why not?

19. What other words or ways can you suggest or teach to me

how I might better explain the presumption of innocence

to future jurors?

Proof Beyond a Reasonable Doubt

1. What is your definition of “Reasonable Doubt”?

Comment: “Reasonable doubt” is the second of the four

cor ner stones of our criminal justice system. It is a legal instruc

tion to the prosecution, the judge, and the jury as to

how much evidence is required for the government to prove

be fore we can label a citizen a “criminal.” Remembering

those “scales of justice” we spoke about earlier, beyond a

rea son able doubt is the farthest measuring point opposite

from the presumption of innocence. It is the measuring

point that once crossed, once you go beyond the pegging of

the scale, that a finding of guilt is allowed.

Texas has no specific definition of reasonable doubt except

the one you have personally. Indeed, you may each have a

dif fer ent definition so long as it meets our constitutional

min i mum level of required proof.

We have a number of gradually increasing degrees of

re quired evidence in our justice system. Proof beyond a

rea son able doubt is the highest measure of required proof

in every criminal court in the United States. To best un derstand

what a “constitutional reasonable doubt” is, we can

com pare it to other less important levels of proof requiring

less certainty than reasonable doubt.

Comment: “Reasonable Suspicion”—this measure is more

than a mere hunch or a mere suspicion or conclusion. It

can not just be a guess, and it must be supported by specific

ac cu rate reasons. This is the minimum level of proof we

re quire our peace officers to have in order to momentarily

stop a person suspected of being involved in a criminal

ac tiv ity. It is an evidence measure that does not support

ei ther an arrest or a search. For example, it would be okay

for an officer to stop someone who was parked in front

of a bank at lunch where the motor was running, where

the driver was smoking, a number of cigarettes butts were

observed on the ground at the driver’s door, and where

the driver appeared nervous and looked as if he was doing

surveillance. However, it would not be okay where the officer

says only that the car was legally parked for a moment with

the engine on. For example, if we imagine a football field,


easonable suspicion would be at the government’s 20 yard

line.

Comment: “Probable Cause”—a measure of proof re quiring

more than reasonable suspicion that allows an officer

to arrest a person, search him, and even perform a strip

search. It is also the minimum level of proof required for

the issuance of a search warrant for a home and everything

in it. “Probable cause” is defined as that measure of evidence

show ing that a person has probably committed a crime or

that the place to be searched has probable evidence there.

The keyword here to be remembered is “probable.” Let us

look again to the football field example and imagine that

the probable cause measure is at the government’s 35 yard

line.

Comment: “Preponderance”—a measure of proof requir

ing more evidence than probable cause. It is sometimes

called the 51% rule because the party in a lawsuit who

con vinces the jury that 51% of evidence favors their side

wins. This measure is used in civil lawsuits where we are

talk ing about taking money or property from one person

or business and giving it to another person or company.

This measure allows a party to win when the jury might

have a 49% degree of uncertainty. Turning again to our

football field example, the government now is required to

get the ball to the defendant’s 49 yard line.

Comment: “Clear and Convincing”— a measure of proof

re quiring much more certainty than preponderance. Indeed,

in Texas, it is statutorily and judicially defined as a “firm

be lief that the allegations are true.” This is an extremely high

de gree of certainty/measure of proof that is used in child

custody cases. Said another way, it is a required measure

of proof where the government could come and take your

child away from you or a neighbor’s child away from her

parents. This measure requires less certainty to take a child

away from parents than it does to convict someone of a

crime.

2. Mr. Juror No. 1, you are a parent; so is Juror No. 2. The clear

and convincing evidence measure protects both you and

your children from being wrongly separated. That measure

of certainty must be applied to you both the same way if

there was a question about your fitness to raise your child.

With that in mind, what percent of certainty would you

have to be convinced in order to allow the government to

take your fellow juror’s child from him?

3. Mr. Juror No. 2, same question: How certain in terms of

per cen tage would you have to be in order to allow Ju ror

No. 1’s child to be taken from him?

4. Mr. Juror No. ___: I want you to think about the phrase

“a firm belief that the allegations are true,” which is the

measure for the clear and convincing evidence standard.

When something is “true,” how much of it can be false before

we can say it is no longer true?

5. What then does the phrase “firm belief” mean to you in

de clar ing that something is untrue?

Comment: “Beyond a Reasonable Doubt”— the highest

de gree of certainty in our law. This is the measure needed

to be overcome in order to label someone a criminal for

the rest of his or her life. Remembering our football field

ex am ple, this requirement can be likened to the entire length

of the football field where the government moving goal line

to goal line is not enough to convict. Failure to get beyond

the defendant’s goal line is an automatic default verdict of

not guilty.

Comment: Our law provides that reasonable doubt can

come from three places:

a. from a conflict of evidence;

b. from a lack of evidence; and

c. from the evidence.

6. In regard to “conflicts of evidence,” Mr. Juror No. _____, do

you understand that if we had a case where a person failed

a breath test, but you saw a video that was made close to the

same time that showed no impairment, that the video can

be a basis of reasonable doubt for you that the test result

was wrong?

7. On a “lack of evidence,” Mr. Juror No. _____, do you un derstand

that if we had a case where a person failed a breath test

and the government expert said the machine was properly

working, that if you were not convinced enough it was correctly

working or the witness was not convincing enough

to you, that you can use those facts for reasonable doubt?

8. And finally, on the “from the evidence” idea: When a

non-police witness says he saw a defendant’s videotaped

sobriety test session and, because he knows the defendant’s

normal mental and physical abilities, he says the driver was

not intoxicated, can you use that testimony as reasonable

doubt?

9. Do you think simply because a police officer or machine

says something that you must accept it? Explain.

10. How do “beyond a reasonable doubt” and “the presumption

of innocence” work together?

11. Understanding the presumption of innocence and the

con sti tu tional requirements of proof beyond a reasonable

doubt, can we convict a person of a crime where we have

only:

Y a reasonable suspicion?

Y a probability he did it?

Y 51% of the evidence leans to guilt?

Y a firm belief the allegation is true that the person did


com mit the crime?

Y a reasonable doubt?

Normal Mental and Physical Abilities

Comment: “Normal v. Average and Normal Range”—the

definition of intoxication in Texas for DWI purposes is

where, because of alcohol, a drug, or a controlled substance,

a person drives while she has lost the normal use of her

men tal or physical abilities. The normal abilities you are

go ing to examine will be those of Mr. Defendant.

1. Mr. Juror No. _____, supposing we take this row of jurors

and we make believe you all have a normal shoe size 8. We

will do the same with the next row except we will give them

all a size 10.

Y what would the average shoe size for the jury?

Y would it be normal for juror ___ to wear a size 9?

Y would it be fair, comfortable, or even safe to require all

of you to wear a size 9 shoe?

Y can we agree that normal does not mean average?

2. When it comes to what is normal for a person in regard to

their mental or physical abilities, are they always the same

for that person?

Y Does an older person generally have the same strength

and coordination he had in his youth? Explain.

Y Does a person have the same mental and physical snap

at all times of just one day?

Y Waking up vs. midday vs. the end of the day?

Y Why do athletes warm up?

Comment: Normal is not some static point on a 1-ft ruler

like the 6-inch mark. Rather, normal is a range, for example,

from the 4- to 8-inch mark.

3. With the presumption of innocence in mind, are you allowed

to presume that Mr. Defendant’s normal abilities are

those of the average person? Explain.

Comment: No. The presumption of innocence requires

that you presume he had and displayed his normal mental

and physical abilities.

4. Some people say the exercise of good judgment is proof of

no loss of normal mental abilities while others say not it is

not. What do you think?

Breath Test Voir Dire and Refusal

1. What do you know about the accuracy and reliability of

the breath test machine?

Comment: In Texas, a driver is generally allowed to decline

to take blood, breath, and urine tests. Three exceptions exist

for compelling a blood test: where a judicial warrant is ob‐

tained or where a person is seriously injured or dies as a

result of the driver’s intoxication. No law requires you to assume/presume

guilt or says that a license will be suspended

because a driver refused to submit to a breath or blood

test.

2. Would your opinion on the breath test machine be changed if

you learned that it was never warranted by its manufacturer

to be fit for breath testing on humans, but rather was only

warranted for parts and labor? Explain.

3. Would you allow your children to have lasik eye surgery

on a machine that was warranted just for parts and labor?

Explain.

4. Would you allow your children to have lasik surgery on an

unwarranted machine where, in addition to the possibility

your child’s vision might be harmed, if a problem arose,

you could be punished with 6 months in jail, a $2,000 fine,

and a year loss of your license? Explain.

Comment: The punishment for DWI can be as much

as 6 months in jail, a $2,000 fine, and a year loss of your

license.

5. As an innocent person, what would be your biggest fear of

taking a breath test you knew nothing about?

6. As an innocent person, how could you best protect your

in no cence when asked to take a breath test?

7. Assume with me the following hypothetical facts are true.

The IRS, to save space, has instituted a new tax procedure

wherein they seize all your records, compute your tax, destroy

your records, and then send you your tax bill. Explain

your thoughts on the fairness of this procedure.

8. What are your thoughts on a police practice or policy

wherein written statements are made by citizen defendants

explaining their actions, after which an officer reads the

state ment, destroys it, and then writes what he thought it

said in his report?

9. What possible reasonable justification could the police have

for not preserving the written statement of a citizen/de fendant?

10. Assume with me that it cost about one dollar to preserve a

breath test specimen for retesting. What possible reasonable

justification could the police have for not offering a citizen/

de fendant the choice of preserving his breath sample if the

citizen pays the dollar?

11. Can you tell me some innocent reasons why an innocent

per son might not take a breath test?

12. Having talked about machine mistakes, lack of breath sample

preservation, lack of warranty, maximum punishments,

would it be an exercise of good or bad judgment to not

take a breath test? Explain.


Miscellanous Must-Ask

Questions and Comments

Comment: It is not against the law to consume alcohol

and drive. It is only against the law to drive while you are

in toxicated.

Comment: It is not against the law to have a breath/blood

test result of greater than .08. It is only against the law to

have that result when a vehicle is being operated.

1. Who has not consumed alcohol in the past twelve months?

Six months? Three months? Why?

2. Who has had prior criminal jury service? Prior DWI jury

ser vice? Who did punishment—the judge or jury?

3. Who has worked with law enforcement or has a very close

friend or relative in law enforcement?

4. Who has been involved in an automobile accident or had

a close family member or close friend involved in an auto

mo bile accident where alcohol has been involved?

5. What would you think about a law that said everyone that

consumed alcohol and then drove was automatically guilty

of DWI?

6. What would you think about a law that said everyone who

con sumed alcohol and committed the traffic offense(s) of

_____________ (insert the offense for which your client

was stopped) was automatically guilty of DWI?

J. Gary Trichter offices in Houston and

Bandera, Texas, but tries cases throughout

the Lone Star State. In practice for 29

years, he is co-author of the two-volume

treatise entitled Texas Drunk Driving Law

(4th Edition) and is author/co-author of

over 40 journal articles on topics ranging from

DWI, grand jury, and drug couriers to aviation. Gary has

handled cases in over 20 states, has lectured in 25 states and in 5

foreign countries. He is past Regent for the National College for

DUI Defense and was Dean of the College for 2002–2003. Gary

is a former Director and past co-chair of the DWI Committee

for the Texas Criminal Defense Lawyers Association. He has

also served as past chairman of NACDL’s Drunk Driving

Committee. He has been named a “Super Lawyer” in Texas

Monthly magazine 2004–2009. Gary’s latest endeavor is to play

Col. William Frederick “Buffalo Bill” Cody in rodeo and Wild

West show events, competing in the equine sport of Cowboy

Mounted Shooting.

Affiliate Member

Melidia Perez, Austin

Paralegal Members

Jennifer Fry, Austin

George Negrete, Austin

Regular Members

Jennifer Linn Barnes, Rockwall

Monique Bracey, Garland

Lionel Castro, Houston

Tony Diaz, Austin

Leira Moreno Gracia, Houston

Muneeza Ilahi, Pearland

Louis J. Jones II, Houston

Daniel Kamin, Houston

Andrew H. Longan, Austin

Eric McDonald, Austin

Marie Munier, Houston

Ethan Myers, Austin

Alberto Osorio, Mission

Allen Parker, Port Arthur

Philip A. Perez, San Antonio

John A. Prisner, Houston

Michael G Salazar, Austin

Paul F. Tu, Houston

Nicolette Westbrooks, Houston

Student Members

Samuel H. Ackels, Lubbock

Raymond J. Baeza, Lubbock

Stefanie M. Gonzalez, Houston

Larry Prater McDougal Jr.,

Richmond

Rachel J. Nichols, Lubbock

Charles A. Pelowski, Lubbock

Sarah R. Preston, Lubbock

Benton G. Ross, Lubbock

Courtney Stamper, Lubbock

Tania Ward, Lubbock


Significant Decisions Report

Please do not rely solely on the summaries set forth below. The reader is advised to read the

full text of each opinion in addition to the brief synopses provided.

The Significant Decisions Report is published in Voice for the Defense thanks to a state

grant from the Judicial and Court Personnel Training Fund, administered by the Texas Court of

Criminal Appeals.

Fifth Circuit

United States v. Weatherton, 567 F.3d 149 (5th Cir. 2009)

District court did not plainly err in imposing upon defendant, convicted of making a false claim to

FEMA, special supervised release conditions requiring defendant to undergo psychosexual evaluation

and any necessary treatment, and also requiring him not to possess any sexually explicit materials;

defendant’s 1979 rape conviction and accusations that he had committed another sexual offense in

2007 (accusations defendant failed to deny) were a sufficient basis upon which to ground these conditions;

moreover, on plain-error review, the conditions were not plainly a greater deprivation of liberty

than necessary to achieve the goals of sentencing; finally, because it is not clear whether defendants

are entitled to advance notice before imposition of special conditions of supervised release, any error

in failing to give such notice was not “plain,” as necessary to grant relief under plain-error review.

Cynthia Hampton

Tim Crooks

United States v. Conroy, 567 F.3d 174 (5th Cir. 2009)

(1) District court did not abuse its discretion in denying defendant’s motion to withdraw her guilty

plea to several FEMA fraud charges; the government’s alleged withholding of exculpatory evidence,

in violation of Brady v. Maryland, 373 U.S. 83 (1983), did not supply a reason to allow withdrawal of

the plea, because under Fifth Circuit precedent—see, e.g., Matthew v. Johnson, 201 F.3d 553 (5th Cir.

2000)—defendant’s guilty plea waived her right to assert a Brady claim; nor did the other factors to

be considered favor allowing defendant to withdraw her plea.

(2) In FEMA fraud case, district court reversibly erred in applying an upward departure under

USSG §5K2.7 for significant disruption of a governmental function; the district court incorrectly interpreted

Fifth Circuit precedent to allow the departure in any case in which there was any disruption of

an important government function; rather, the departure properly applies only where the extent of the

disruption is significant; if the district court finds a significant disruption of a governmental func tion,

the importance of the function may, however, be considered in determining the extent of an upward

departure; accordingly, the Fifth Circuit vacated the sentence and remanded for resentencing.

Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir. 2009)

District court did not err in denying law enforcement defendants’ qualified immunity defenses

to Fourth Amendment claims arising out of officers’ raid on nightclub:

(1) At least as it was alleged to have occurred, the officers’ entry and search of the nightclub clearly

violated the Fourth Amendment; the entry could not be justified on the theory that the officers had the

same right to enter as any other patron, since the officers did not enter like other patrons, but rather

en tered projecting official authority by means of a SWAT-type raid; nor could the entry be justified

as a permissible warrantless administrative inspection, as the entry and extensive search unreasonably

ex ceeded the scope of state and local administrative inspection laws.

(2) The officers’ arrest of three of the plaintiffs (owners of the nightclub) also clearly violated

the Fourth Amendment because, at least on the facts alleged in the amended complaint, defendants

did not have probable cause to believe that plaintiffs had violated the laws under which they were

arrested.

(3) At least as they were alleged to have occurred, the officers’ searches and seizures of plaintiffs


clearly violated plaintiffs’ Fourth Amendment rights because (a)

the searches and seizures far exceeded the scope of permissible

searches for weapons under the Louisiana statutory scheme; (b)

the searches and seizures were not based upon individualized

suspicion as required by Terry v. Ohio, 392 U.S. 1 (1968); and (c)

were not searches incident to arrests based on probable cause.

United States v. Setser, 568 F.3d 482 (5th Cir. 2009)

(1) Where SEC, in the course of conducting a parallel civil

investigation of defendant’s allegedly fraudulent activities, appointed

a receiver to preserve the defendants’ assets, receiver’s

search and seizure of property did not violate the Fourth Amendment;

the receivership order was not required to possess the

same particularity as that required for a warrant; nor was there

any showing of specific evidence that the receiver had seized

that was outside the scope of the receivership order; nor was the

re ceiver’s search spoiled by the failure to post the required bond

be fore conducting the search; this purely technical defect did

not rise to the level of plain error; moreover, once the receiver

had seized the property in question, criminal law enforcement

of fi cers did not need a warrant in order to take possession of or

re view the property, because the defendant lost possessory, and

hence privacy, rights upon the receiver’s taking possession of

the property; finally, there was no improper collusion between

the SEC’s civil investigation and the FBI’s parallel criminal investigation.

(2) In fraud case involving a Ponzi scheme, district court

did not commit reversible plain error in admitting evidence of

the guilty pleas of co-conspirators where the court gave a proper

limiting instruction, where the government’s references to the

pleas were limited, and where the defense itself made use of the

pleas as part of its case; nor did the district court reversibly err in

allowing the SEC receiver to testify that defendant’s operations

constituted “security fraud” and a “Ponzi scheme”; however,

the error was harmless; finally, the district court did not err in

admitting evi dence that defendant’s businesses had not filed

corporate tax returns, because the evidence was intrinsic to the

fraud offenses charged and the district court gave appropriate

limiting instructions.

(3) In fraud case involving a Ponzi scheme, district court

did not reversibly err in calculating the Guideline loss amount

at tributable to one defendant; under USSG §2B1.1, in a Ponzi

scheme, the Guideline loss amount should be reduced by the

amounts of money returned to investors before the offense is

de tected, but those credits should be offset by any returned

mon ies that are subsequently reinvested in the Ponzi scheme;

the Fifth Circuit held that its 2000 decision respecting Guideline

loss calculation for Ponzi schemes (United States v. Deavours, 219

F.3d 400 (5th Cir. 2000)) was superseded by a 2001 amendment

to the Sentencing Guidelines.

Singh v. Holder, 568 F.3d 525 (5th Cir. 2009)

Immigrant’s 1987 Virginia felony conviction for unlawful

wound ing (Va. Code Ann. §18.2-51) was a “crime of violence,”

and hence an “aggravated felony,” under 8 U.S.C. §1101(a)(43)

(F), that rendered him statutorily ineligible for naturalization

as a United States citizen.

United States v. London, 568 F.3d 553 (5th Cir. 2009)

Adopting as precedent the reasoning and holding of its

nonprecedential decision in United States v. Collins, 205 Fed.

Appx. 196 (5th Cir. 2006) (unpublished), the Fifth Circuit held

that the “except to the extent that a greater minimum sentence is

oth er wise provided” clause of 18 U.S.C. §924(c)(1)(A) did not

bar imposition of a five-year consecutive sentence under §924(c)

(1)(A), even though defendant was also subject to a ten-year

man da tory minimum sentence on a drug count. NOTE: This

holding conflicts with the holdings of the Second Circuit in

United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), adhered

to on denial of reh’g, 540 F.3d 87 (2d Cir. 2008), and United

States v. Williams, 558 F.3d 166 (2d Cir. 2009).

United States v. Brigham, 569 F.3d 220 (5th Cir. 2009)

Where magistrate judge had (1) dismissed supervised release

revocation proceeding for lack of probable cause to believe

de fen dant (originally convicted of receipt of child pornography)

had violated the terms and conditions of supervised release, and

(2) ordered defendant released pending any further proceedings,

the district judge had jurisdiction/authority both to stay

the magistrate judge’s orders and to review (and reverse) those

or ders; furthermore, the district court did not improperly delegate

to nonjudicial officers the right to require a polygraph

of defendant, nor did the district court improperly consider

poly graph results in violation of defendant’s right against selfincrimination;

finally, the special supervised release conditions

defendant was accused of violating (possession of “any pornographic,

sexually oriented or sexually stimulating materials”

and a bar on possessing or using a computer or the Internet)

were not unconstitutionally vague or overbroad or statutorily

im proper.

United States v. Douglas, 569 F.3d 523 (5th Cir. 2009)

District court did not err by reducing defendant’s Guideline

offense level by three levels for acceptance of responsibility

(thus producing a Guideline imprisonment range of eighteen

to twenty-four months), but then imposing an above-Guideline

sentence of thirty months’ imprisonment based upon defendant’s

lack of remorse; because lack of remorse is a different

con sid eration from finding acceptance of responsibility under

USSG §3E1.1, there was no inconsistency in the district court’s

finding both that defendant had accepted responsibility and that

he lacked remorse for his conduct; because these two findings

could co-exist, and because the lack of remorse finding was


factually supported, there was no procedural error tainting defen

dant’s sentence.

United States v. Andrade-Aguilar, 570 F.3d 213 (5th Cir.

2009)

District court reversibly erred in characterizing defendant’s

sec ond Texas conviction for possession of a controlled substance

as an “aggravated felony” for purposes of USSG §2L1.2(b)(1)(C),

be cause the government did not carry its burden of proving that

the first conviction had become final before the offense underlying

the second conviction was committed; accordingly, the Fifth

Circuit vacated the sentence and remanded for resentencing,

but allowed the government on remand to come forward with

any additional evidence it could muster to show finality.

United States v. Duarte, 569 F.3d 528 (5th Cir. 2009)

Fifth Circuit declined to find defendant’s 46-month, lowend-of-the-Guidelines

sentence unreasonable; the Fifth Circuit

noted that the defendant had “argue[d] with some force that

the 16-level enhancement provided for illegal re-enterers who

com mit certain crimes can lead to excessive sentences for some

de fen dants”; this possibility of unjust sentences in some cases,

how ever, did not authorize the Fifth Circuit to overturn the

pre sump tion of reasonableness that the Fifth Circuit applies to

within-Guidelines sentences; nor did Kimbrough v. United States,

128 S. Ct. 558 (2007), abrogate the Supreme Court’s previous

ap proval of appellate presumptions of reasonableness, even

where it could be argued that (as in Kimbrough) the Guideline

in question lacked empirical grounding.

United States v. Velez-Alderete, 569 F.3d 541 (5th Cir.

2009)

Defendant’s prior Texas felony conviction for arson (in

vio lation of Tex. Penal Code §28.02 (1993)) qualified as the enumer

ated “crime of violence” of “arson” under USSG §2L1.2, and

hence warranted a 16-level enhancement under USSG §2L1.2(b)

(1)(A)(ii); the “generic, contemporary” definition of “arson”

in volves a willful and malicious burning of property (including

not just real property, but also personal property), without

any requirement that the burning present a threat of harm to a

per son; the full range of conduct covered by the Texas statute

was within this “generic, contemporary” definition of “arson.”

Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir.

2009)

Holding itself bound by United States v. Cepeda-Rios, 530

F.3d 333 (5th Cir. 2008), the Fifth Circuit held that defendant’s

second conviction for possession of a controlled substance corresponded

to recidivist possession under 21 U.S.C. §844(a), a

felony under the federal Controlled Substances Act, and hence

was an “aggravated felony” under 8 U.S.C. §1101(a)(43)(B), even

if the second conviction was not obtained after formal en hancement

procedures commensurate with those prescribed by 21

U.S.C. §851; the Fifth Circuit declined to give a different reading,

in the immigration context, to the same statutory scheme that

was considered in the criminal context in Cepeda-Rios.

Hatten v. Quarterman, 570 F.3d 595 (5th Cir. 2009)

(1) Where, before his resentencing, death-sentenced Texas

defendant had filed a state post-conviction relief petition challenging

his conviction, on which petition the Texas Court of

Crim inal Appeals never ruled, the challenges to his conviction

raised in that petition were exhausted, but there was no final

Texas court decision to review or to which to defer for purposes

of the AEDPA; accordingly, for the two claims falling into this

cate gory, the Fifth Circuit simply reviewed the federal district

court’s factual findings for clear error and that court’s legal

con clusions de novo.

(2) The Fifth Circuit rejected defendant’s claim that a juror

during his guilt-innocence trial was biased, thus depriving

de fendant of an impartial jury and a fair trial under the Sixth

Amend ment; defendant failed to show either actual or implied

bias arising from (a) the juror’s allegedly lying on his juror

ques tion naire and during questioning regarding his drug use;

(b) the juror’s alleged concealment of a relationship with the

vic tim’s father (the intended victim of the murder) and also

with the defendant’s stepfather; and (c) the juror’s allegedly

be ing threatened with prosecution.

(3) Even if defendant was erroneously shackled during closing

arguments in the guilt-innocence phase of his trial, in violation

of his due process rights, any error was not prejudicial and

did not have a substantial and injurious effect on the verdict.

United States v. Seale, 542 F.3d 1033 (5th Cir. 2008),

district court’s ruling on single issue affirmed by an

equally divided en banc court, 570 F.3d 650 (5th Cir.

2009) (en banc), and question certified to the U.S.

Supreme Court, ___ F.3d ___, WL 2256481 (5th Cir.

7/20/09) (en banc).

(1) Where defendant was not federally indicted until 2007

for two counts of kidnapping and one count of conspiracy to

com mit kidnapping (in violation of 18 U.S.C. §1201(a) and

(c)), but the kidnappings occurred in 1964, the panel held that

de fen dant’s prosecution for these offenses was barred by the

stat ute of limitations; although these offenses were, in 1964,

capi tal offenses that were not subject to a statute of limitations,

see 18 U.S.C. §3281, in 1968 the United States Supreme Court

in validated the death penalty for the federal kidnapping statute,

and in 1972 Congress amended the federal death penalty statute

to eliminate the death penalty as a possible punishment; the

amend ment decapitalizing the offenses with which defendant

was ultimately charged was retroactive with respect to the applica

ble statute of limitations, which then became the standard

five-year statute of limitations applicable to noncapital offenses,


see 18 U.S.C. §3282; moreover, the 1994 amendments reinstating

the death penalty as a possible punishment for these offenses

could not revive the limitations period for these offenses, inasmuch

as that limitations period had expired well before 1994;

ac cordingly, the Fifth Circuit panel vacated defendant’s convictions

and rendered a judgment of acquittal.

(2) On rehearing en banc of the statute of limitations issue,

the Fifth Circuit divided evenly (9–9), and thus the decision of

the district court on the sole issue of its denying dismissal of

the indictment because of the running of the statute of limitations

was affirmed by operation of law. (Judge DeMoss filed a

dissenting opinion.)

(3) A majority of the en banc Fifth Circuit voted to certify

the statute of limitations question to the United States Supreme

Court. (Chief Judge Jones filed a dissenting opinion in which

she was joined by judges King, Wiener, Clement, and Owen.

Judge Stewart dissented without opinion.)

Stoot v. Cain, 570 F.3d 669 (5th Cir. 2009)

District court reversibly erred in dismissing Louisiana

state defendant’s federal habeas petition as time-barred by the

AEDPA’s one-year statute of limitations, because there was an

un resolved factual issue about whether the statute of limita tions

was tolled by a state petition for review of the denial of postconviction

relief allegedly mailed by defendant from prison but

never received by the Louisiana Supreme Court; in Louisiana

courts, a pro se prisoner’s pleading is deemed filed on the date

that the prisoner submits the pleading to prison authorities to

be mailed, regardless of whether the pleading actually reaches

the court; accordingly, the Fifth Circuit reversed the judgment

of dismissal and remanded to the district court for a factual

in quiry into whether, under the prison mailbox rule, defendant

sub mit ted a timely petition for review to the Louisiana Supreme

Court, even if that petition was never received.

Morgan v. Quarterman, 570 F.3d 663 (5th Cir. 2009)

Where Texas state prisoner was disciplined (with the loss

of good time credit) by prison authorities for writing a vulgar

note to an assistant attorney general with whom he was engaged

in litigation, disciplinary action did not violate prisoner’s

First Amendment rights because the prison authorities had a

le git i mate penological interest in rehabilitation that justified

the disciplinary action; nor did prisoner’s disciplinary hearing

vio late due process; prisoner received notice of the disciplinary

hearing and his attendant rights, and received adequate

pro cess during the hearing; moreover, the evidence was more

than adequate to meet the “some evidence” standard necessary

to support disciplinary action; finally, prisoner failed to establish

that the hearing officer was biased; accordingly, the Fifth

Cir cuit affirmed the district court’s denial of habeas relief to

prisoner.

United States v. Stephens, 571 F.3d 401 (5th Cir. 2009)

(1) Where, in response to defense closing argument pointing

out government’s failure to produce a witness, government

objected that the defense could also have subpoenaed that witness,

government’s comment was not an impermissible shifting

of the burden of proof, but rather a permissible response to

the defense’s closing argument; in any event, even assuming

ar guendo that the statement was error, it was not sufficiently

prej u dicial to require reversal, given the curative instruction

given to the jury respecting the burden of proof and given the

am ple evidence produced at trial; likewise, the government’s

ref er ences, in opening and closing argument, to the defendants’

tak ing advantage of the generosity of persons trying to help the

vic tims of Hurricane Katrina, did not constitute reversible plain

er ror; this was not an out-of-bounds argument because the

scheme charged involved the creation of a fake Salvation Army

web site designed to fraudulently elicit money from persons

de sir ing to assist the victims of Hurricane Katrina; moreover,

the district court instructed the jury not to base its verdict on

preju dice or sympathy, including for the victims of Hurricanes

Ka trina and Rita.

(2) Where defendants were on trial for charges arising out

of the creation of a fake Salvation Army website designed to

fraud u lently elicit money from persons desiring to assist the

vic tims of Hurricane Katrina, district court did not plainly err in

ad mitting evidence that defendants had also registered a bogus

Red Cross website; this evidence was not “intrinsic,” but rather

was extrinsic and thus subject to the strictures of Fed. R. Evid.

404(b); however, the evidence was admissible under Rule 404(b)

to prove defendants’ intent, planning, preparation, and knowledge;

nor did the defendants show that the unfair prejudicial

ef fect of this evidence substantially outweighed its probative

value.

United States v. Stalnaker, 571 F.3d 428 (5th Cir. 2009)

Where a government witness suffered a panic attack on

the stand, which eventually left her unable to complete her

tes ti mony, and the district court struck her testimony and instructed

the jury to disregard it, defendant was not denied his

Sixth Amendment right to confront/cross-examine that witness;

be cause the district court struck the witness’s testimony and

in structed the jury to disregard it, the witness’ testimony was

not part of the “body of evidence” the jury could consider in

as sess ing guilt and thus could not be the basis for a confrontation

violation; put another way, as a result of the court’s actions,

the witness was no longer a witness “against” the defendant as

con templated by the Sixth Amendment’s Confrontation Clause;

accordingly, the district court did not err in denying defendant’s

motion for a mistrial on this ground.


United States v. Molina-Gazca, 571 F.3d 470 (5th Cir.

2009)

For purposes of 18 U.S.C. §3624(e), which provides that

“[a] term of supervised release does not run during any period

in which the person is imprisoned in connection with a con viction.

. . ,” a term of supervised release is tolled during the pe riod

of pretrial detention in a case in which the defendant is ul timately

convicted and sentenced with credit for time served, even

where the conviction does not occur until after the supervised

release period would otherwise have expired; thus, based on

May 3, 2007, warrant, district court had jurisdiction to revoke

defendant’s supervised release where, although defendant’s super

vised release would have normally expired on November 2,

2006, defendant was taken into custody on a state charge on

July 8, 2005, for which he was convicted and sentenced after

No vem ber 2, 2006 (with sentencing credit for his pretrial detention).

(The Fifth Circuit noted that its ruling agreed with

the Sixth Circuit’s decision in United States v. Goins, 516 F.3d

416 (6th Cir. 2008), but conflicted with the Ninth Circuit’s

decision in United States v. Morales-Alejo, 193 F.3d 1102 (9th

Cir. 1999).)

United States v. Armendariz-Moreno, 571 F.3d 490 (5th

Cir. 2009)

On remand from the United States Supreme Court for further

consideration in light of Begay v. United States, 553 U.S.____,

128 S. Ct. 1581 (2008), and Chambers v. United States, 555 U.S.

____, 129 S. Ct. 687 (2009), see Armendariz-Moreno v. United

States, 129 S. Ct. 993 (2009), the government conceded, and the

Fifth Circuit agreed, that in light of Begay and Chambers, the

Texas offense of unauthorized use of a vehicle can no longer

be considered a “crime of violence” under 18 U.S.C. §16 or,

hence, an “aggravated felony” under 8 U.S.C. §1101(a)(43)(F);

ef fectively overruling United States v. Galvan-Rodriguez, 169

F.3d 217, 219–20 (5th Cir. 1999), and Brieva-Perez v. Gonzales,

482 F.3d 356, 360–61 (5th Cir. 2007).

Court of Criminal Appeals

Appellants’ PDRs

Grammer v. State, __S.W.3d__ (Tex.Crim.App. No.

1508-08, 9/30/09); Affirmed, Hervey (9–0)

Appellant was placed on deferred-adjudication community

supervision (“probation”) for ten years after pleading guilty to a

9-count indictment charging him with aggravated sexual assault

and indecency against an 11-year-old. A condition of appellant’s

probation required him to pay $250 in court costs, and another

condition required him to “avoid association with persons having

criminal records and having disreputable or harmful character.”

The trial court later found that appellant violated these

two conditions and sentenced him to lengthy concurrent prison

terms (60 years on the three aggravated sexual-assault counts

and 20 years on the six indecency counts) immediately after

ad ju di cating his guilt. CCA affirms that the trial court did not

have to hold a separate punishment hearing before sentencing.

CCA finds that at the adjudication hearing, the trial court did

not prevent appellant from presenting punishment evidence,

and that appellant presented extensive punishment evidence

(e.g., his theory that he innocently believed he had permission

to associate with and marry a convicted felon and his reasons

for not paying the $250).

Tapps v. State, __S.W.3d__ (Tex.Crim.App. No. 0946-08,

9/30/09); Affirmed, Price (9–0)

Appellant was indicted under Tex.Penal Code §46.04(a)(1)

for unlawful possession of a firearm by a felon. The underlying

felony was failure to register as a sex offender, a state jail

fel ony. Four additional priors were alleged for enhancement.

The jury convicted Appellant, and the trial court found two of

the priors “true” and sentenced him to 32 years confinement.

Ques tion raised by Appellant’s PDR is whether a state jail felony

is a “felony” for purposes of Section 46.04(a)(1), and therefore

whether the evidence was legally sufficient to support Appellant’s

con vic tion for possession of a firearm by a felon. CCA holds

that a state-jail felony is a “felony” for purposes of §46.04(a)

(1); therefore, the evidence was legally sufficient to support

Ap pellant’s conviction for possession of a firearm.

State’s PDRs

Ex parte Hunter, __S.W.3d__ (Tex.Crim.App. No. 1047-

08, 9/16/09); Dismissed: Price (9–0)

When it was discovered early in Hunter’s trial for aggravated

sexual assault that one of the jurors had also served on

the grand jury, the trial court sua sponte declared a mistrial.

COA held that the State’s attempt to try Hunter a second time

vio lated double jeopardy. CCA granted the State’s PDR, but

Hunter has since died. Ordinarily under these circumstances,

in which appeal has been perfected but COA has yet to issue

its mandate, the appeal will be permanently abated. CCA has

made an exception for cases in which the State is the appealing

party. If a defendant dies during an appeal by the State from a

pre-trial order, the appellate court should dismiss the appeal

rather than abate it.

Hall v. State, __S.W.3d__ (Tex.Crim.App. No. 1304-08,

9/16/09); Affirmed, Keasler (8–1)

At a suppression hearing in Hall’s DWI trial, Hall challenged

the reliability of a LIDAR device that the officer used to measure

Hall’s speed. Hall claimed that because the State failed to prove

the reliability of the LIDAR, the officer’s decision to stop him

was not supported by probable cause. CCA holds that the judge

was not required to hold a Rule 702 Kelly hearing to evaluate


the device’s reliability. The Texas Rules of Evidence, with the

ex cep tion of privileges, do not apply to suppression hearings.

How ever, CCA holds that the judge abused his discretion in

deny ing the suppression because there was no evidence that

the LIDAR supplied probable cause for the stop.

State v. Moreno, __S.W.3d__ (Tex.Crim.App. No. 0821-

08, 9/23/09); Affirmed, Keasler (8–1)

During a hearing immediately prior to trial, the judge ruled

the statement of the State’s cop witness inadmissible because

it was testimonial, and the cop was not present. Throughout

the trial, the judge reprimanded the prosecutor for stalling to

wait for the cop. The cop was subpoenaed to appear at 1:30; he

showed up at 2:55. Defendant was granted a directed verdict

be cause the cop showed up after the State presented all its evidence.

When the State appealed, COA dismissed the case for

lack of jurisdiction, holding that the State could not appeal an

acquittal. The State argues that the judgment granting the directed

verdict was not really an acquittal but a dismissal of the

in dict ment, which it could appeal under Tex. Code Crim. Proc.

44.01(a)(1). CCA disagrees. The judge’s obvious intent was to

ac quit Moreno. The judge explicitly ruled that the State had

not met the required elements. Moreover, the case is jeopardy

barred. CCA understands that the judge was exasperated with

the delays, but when a key witness is right outside the doors, it

is unacceptable and inexcusable not to allow his testimony. But

even erroneous acquittal bars further prosecution.

Appellee’s PDR

State v. Rhine, __S.W.3d__ (Tex.Crim.App. No. 0912-08,

9/23/09); Affirmed, Johnson (9–0)

Rhine was charged with improper outdoor burning. He filed

a motion to quash the information, alleging that the provision

of the Administrative Code under which he was charged was

void because the legislature unconstitutionally delegated author

ity to the Texas Commission on Environmental Quality, an

executive-branch agency, in violation of separation of pow ers.

The trial court granted the motion, and COA reversed. CCA

holds that Tex. Health & Safety Code §382.018(a), which dele

gates to TCEQ the power to prohibit or control the outdoor

burn ing, is a constitutional delegation of legislative authority.

Be cause the legislature declared a policy and set standards and

limi tations on the authority delegated to TCEQ that are capable

of reasonable application, provide guidance, and limit discretion,

it has not unconstitutionally delegated to TCEQ authority

more “properly attached to” the legislature and, therefore, there

is no violation of the separation of powers principle of Art. II,

§1, of the Texas Constitution.

Mandamus

In re Escareno, __S.W.3d__ (Tex.Crim.App. No. 76,055,

9/16/09); Dismissed as Moot, Meyers (8–1)

Thirty-five days passed, and the trial court did not forward

Escareno’s habeas application to CCA as required by Code Crim.

Proc. art. 11.07. CCA inquired about the status of the application,

but the district clerk continually refused to respond. Even though

CCA denied Escareno’s habeas application, and the application

is moot because Escareno received his requested relief when

the application reached CCA, the Court reprimands the clerk’s

con duct as unacceptable. CCA holds the clerk in contempt and

assesses the maximum fine of $500.

Habeas Corpus

Ex parte Harbin, __S.W.3d__(Tex.Crim.App. No. 76,093,

9/16/09); Relief Granted, Meyers (8–1)

At the time he was charged, Harbin was not required to

reg is ter for either of the sex offenses listed in the indictment.

The offenses were two California convictions—one in 1988

for lewd and lascivious acts with a child and one in 1994 for

an noy ing and molesting a child. A savings clause in the Sex Offender

Registration Act precluded out-of-state convictions that

oc curred before September 1, 1995, if the offender was not in the

Texas correctional system for the offenses on or after September

1, 1997. CCA notes that the savings clause is only applicable to

of fenders who failed to register between September 1, 1997,

and August 31, 2005. Harbin is presently required to register

the California offenses listed by the DPS as substantially similar

to Texas laws.

Direct Appeal—Denial of DNA Testing

Skinner v. State, __S.W.3d__ (Tex.Crim.App. No.

75,812, 9/23/09); Affirmed, Keller (9–0)

Skinner was convicted of capital murder and sentenced to

death. CCA affirmed his conviction and sentence on direct appeal.

Subsequent DNA testing was conducted, but some items

re mained untested. Skinner requested testing of these items.

He claims testing is now required due to a new development in

CCA case law and new factual developments. CCA holds that

in the usual case, the interests of justice do not require testing

when defense counsel declined to request testing as a matter of

rea sonable trial strategy. Also, the new case law Skinner relies

upon is an unpublished opinion; therefore it cannot be used as

an authority of any sort.

Habeas Corpus

Ex parte Smith, __S.W.3d__ (Tex.Crim.App. No. 76,102,

9/30/09); Relief denied, Womack (9–0)

Applicant was found in possession of a firearm while he

was on deferred-adjudication community supervision for the

second-degree felony of possession of a controlled substance.

He pleaded guilty and was sentenced to the maximum punishment

of 10 years in prison. The trial court ordered that the

sentence run concurrently with the 20-year sentence that it

imposed in the controlled-substance case. Smith seeks relief

from the possession-of-firearm conviction on three grounds:

in suf ficient evidence of guilt, ineffective assistance of counsel,


and unknowing and involuntary plea. CCA rejects these claims.

First, petitioners may not, in post-conviction habeas corpus,

col laterally attack the sufficiency of the evidence to support the

con viction. Second, counsel’s advice to plead guilty was not ineffective

assistance given the circumstances of the case and because

it is unclear whether the Unlawful Possession of Firearm statute

applies to a person who is or has been on deferred-adjudication

community supervision.

Court of Appeals

Summaries are by Chris Cheatham, of Cheatham and Flach,

PLLC, Dallas, Texas.

Police approached D and asked if he had a weapon.

“I have a knife,” he said, and then pulled an antique

machete (yes, machete) from his pants. D unsuccessfully

asserted defenses of “traveling” and “curio.”

In re A.G., __S.W.3d__ (Tex.App. No.

11-08-00025-CV—Eastland, 7/09/09) (juvenile case)

Regarding the “traveling” defense, “[D] was only a short

dis tance from his home, and he was not traveling overnight.

Fur ther more, the presence of three other individuals walking

along with appellant at the time that Officer Perkins stopped

him is a fact that contradicts his contention that he was simply

re turn ing home with a knife that he just found while walking to

a friend’s house.” Regarding the “curio” (i.e., antique) defense,

“[D] does not cite any authority that carrying a knife that might

constitute a collector’s item is an exception to prosecution under

Sec tion 46.02. In this regard, the Penal Code provides a ‘curio’

ex cep tion for firearms, but it does not provide a similar exception

for illegal knives.”

Police officer who was employed by City A approached

an occupied car parked in the middle of a roadway of

City B, smelled alcohol, reached into the vehicle, pulled

the keys from the ignition, and waited for officers from

City B to arrive. The officer’s actions amounted to an

“encounter” not a “stop,” concluded court.

Abraham v. State, __S.W.3d__ (Tex.App. No.

05-08-00008-CR—Dallas, 7/02/09)

“[T]here is no evidence [Frisco officer] ‘stopped’ [D] at all.

Instead, the record is clear that [D’s] vehicle had been stopped

for a considerable period of time when [Frisco officer] came

upon it. Nor is there any evidence in the record that [Frisco offi

cer] spoke to [D] or anyone else concerning a possible traffic

vio lation.”

In the same case, sufficient evidence supported DWI

even though none of the officers actually observed D

drive the vehicle in which he was found.

Abraham v. State, supra.

“[D] asserts, without authority, that the State must establish

‘a time of driving’ to determine the relationship between

his alleged driving and his intoxication. When asked by [officer]

whether he had been drinking, [D] told the officer he had

drunk four beers in a bar in Dallas and was on his way home.

Thus, the evidence demonstrates [D] drove from a Dallas bar to

Plano. Further, as the result of [D’s] effort, the vehicle remained

stopped for a considerable amount of time in the center lane

of an intersection of two public streets. The evidence shows he

re mained passed out in the vehicle at least as long as it took a

pas serby to report his presence to [officer], for [officer] to find

him, and for [officer] to rouse him. The only reasonable inference

is that [D’s] driving and operation of his vehicle took place

while he was intoxicated.”

Trial court no longer had authority to cumulate D’s

sentences, and its attempt to do so by written order on

a later date had no effect, because the trial court failed

to order cumulation in open court while pronouncing

the sentence. Thereafter, D was taken into the custody

of the TDCJ and began serving his sentence. By then it

was too late.

Grays v. State, __S.W.3d__ (Tex.App. No.

14-08-00051-CR—Houston [14 Dist], 7/14/09)

In intoxication manslaughter trial, D unsuccessfully

argued that because the family of the victim chose to

voluntarily discontinue life support to prolong victim’s

life the State failed to show that his operation of the

vehicle caused the death.

Quintanilla v. State, __S.W.3d__ (Tex.App. No.

03-07-00561-CR—Austin, 7/14/09)

“Although medical intervention may have succeeded in

delaying [victim’s] death, and even if the lung empyema and the

dis continuance of life support were concurrent causes sufficient

to result in her death, the evidence shows that [victim] would

not have developed the empyema or required life support but

for [D’s] conduct.”

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President

Stan Schneider

President-Elect

Bill Harris

1st Vice President

Keith Hampton

District 1

Clara Hernandez, El Paso

District 2

Andrew Graves, San Angelo

District 3

Mark Snodgrass, Lubbock

District 4

Anthony “Tony” Vitz, McKinney

District 5

Lance Evans, Fort Worth

District 6

Susan E. Anderson, Dallas

District 7

Kelly Pace, Tyler

VOLUNTEER!

Ar1!J metk of TCDLA in gxx! Mand~gwho dem:sto make applkatian to ~ on the

TCDLA board ofJi,ecta& should lIII outthe app'~K:ation on tIie opposite pa9l and

.forward il:wt1en:DLAhomeoAice O.7l1W. 6th 51:., stll.}l" Au6tin, TX78~)

orfmt. f\::to 5Il--i6.9~.9107 on or before NOYe/IIber 16, 2.009.

The TXlIIIination6 committee listed belowwiH c.onsider ~ nominating

new board n-tnbers on ~ ,. 2009, moor ~9 rioard MacH, sin Hoo6Ion.

Plea5ehdpusc.ontirueto~thc~train·runnj~~oo.erthe

member5who>Mllnot~~hardforTCDLA,

rignsofourcitizens.Weneed

but also infu5e nev.' blood and icbM inlothe a56OciaI:ion.

TCII.A OffIcers

2009-10 _ CommiIee

2nd Vice President

Lydia Clay-Jackson

Treasurer

Bobby Mims

Secretary

Emmett Harris

District 8

Kerri Anderson-Donica, Corsicana

District 9

Jeanette Kinard, Austin

District 10

Robert J. Barrera, San Antonio

District 11

Kim de la Garza, Seguin

District 12

Constance Luedicke, Corpus Christi

District 13

David O’Neil, Huntsville

District 14

Grant M. Scheiner, Houston


APPLICATION FOR MEMBERSHIP TO BOARD OF DIRECTORS

Date: _________Name: _______________________ Date of birth:___________Business address:________________________City: _____________

State: _________ Zip:______________Business phone: ______________Office fax:_____________________Business e-mail: __________________

College Attended: ________________________________________ To: ____________From:____________ Degree: ____________________

Law School Attended: ____________________________________ To: ____________From:____________ Degree: ____________________

What percentage of your practice is devoted to Criminal Law? ________State Bar membership number: __________

Date admitted to the State Bar of Texas: ________

Name of firm, partnership and/or professional association: _________________________________________________________________________

Describe your legal career and experience as criminal defense practitioner (Please attach additional sheets, if necessary) : ____________________

________________________________________________________________________________________________________________________________

During the five years immediately preceding the date of this application, list your criminal law activities to the extent and the capacity indicated:

ACTIVITY NUMBER AS LEAD COUNSEL NUMBER AS CO-COUNSEL

State Felony Jury Trials

State Misdemeanor Jury Trials

Federal Jury Trials

State Appeals

Federal Appeals

State and Federal Non-Jury Trials

State and Federal Pleas of Guilty

State and Federal Post Conviction Remedies

Juvenile Proceedings

Dismissals

Grand Jury No-Bills

Case Decided on Pre-Trial Motions Where Evidence was Presented

Probation and Parole Revocations

DISCLOSURE OF CONDUCT

(circle one)

Yes No (1) Have you been subject to any disciplinary sanctions by the State Bar of Texas, by a district court in Texas, or by an

entity in another state which has authority over attorney discipline? Disciplinary sanctions include disbarment,

resignation, suspension, reprimand (public or private), order of rehabilitation, or referral to the professional

enhancement program?

Yes No (2) Have you received notification from a district grievance committee from the State Bar of Texas or similar entity in

another state that a finding of just cause as defined by Section 1.06(P) of the Texas Rules of Disciplinary Procedure

has been made against you?

Yes No (3) Has a criminal indictment or information been filed against you for a felony or misdemeanor involving moral

turpitude or other serious crimes as defined in the attorney standards?

Yes No (4) Have you been convicted, received probation/community supervision (whether deferred or not), or fined for a felony

or misdemeanor involving moral turpitude or other serious crime as defined in the attorney standards?

Yes No (5) Have you been sued for legal malpractice or other private civil actions alleging attorney misconduct, or have similar

actions been concluded by settlement, dismissal, or judgment for or against you?

Yes No (6) Has a finding of inadequate representation been made against you regarding representation in a criminal case?

If any answers are circled “yes”, please provide a full written explanation and supporting documentation.

TCDLA PARTICIPATION

Please state when you first became a member of the TCDLA and describe your participation in TCDLA since that time.

________________________________________________________________________________________________________________________________

List any articles, writings, outlines or publications that you have authored in connection with substantive or procedural criminal law matters.

________________________________________________________________________________________________________________________________

List any speaking engagements you have undertaken relating to or addressing substantive or procedural criminal law topics.

________________________________________________________________________________________________________________________________

Describe briefly the reasons that you wish to become a member of the Board of Directors of the Texas Criminal Defense Lawyers Association.

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Will you accept the obligation as a Director of the Texas Criminal Defense Lawyers Association to regularly attend board meetings (held

quarterly), submit articles to the Voice, participate in legislative efforts, be available for assistance in the Strike Force, participate in the Second

Chair (mentor) Program, maintain the highest level of ethical standards, maintain the highest level of competence and support by attendance and

participation at TCDLA and Criminal Defense Lawyers Project programs and endeavors? Yes _____ No ________.

28 VOICE FOR THE DEFENSE October 2003


Defendant’s Motion to Protect the

Fairness of Future Juries

by J. Gary Trichter & Mark Thiessen

CAUSE NO. _______

STATE OF TEXAS § IN THE COUNTY CRIMINAL

§

VS. § COURT AT LAW NO. ____

§

_______________ § ___________ COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:

1. The Defendant in this case has a prior criminal history which will not be admissible in the guilt/

innocence part of this criminal trial absent the Defense opening the door, which it will not do. Defense

Counsel is concerned, should this case end in a “not guilty” verdict or with a discharge of a hung jury, that

the prosecutors may improperly attempt to share their knowledge of the Defendant’s prior criminal history

with discharged jurors in an attempt to adversely influence future actions against other defendants. A

prosecutor can easily do so by telling discharged jurors defendant’s prior criminal history. During the guilt/

innocence part of the trial a jury cannot be told of that criminal history; that the defendant’s history shows

a disrespect for the law; that defendant shows a predisposition to break the law; and that this predisposition

is evidence defendant committed the crime he was charged with. Of course, the fear here is that the

discharged jurors will leave believing that all criminal defendants have hidden prior criminal histories. In

support hereof, Counsel for the Defendant would show:

2. Texas Disciplinary Rule 3.06 of Professional Conduct is entitled “Maintaining Integrity of Jury System.”

Section 3.06(d) provides in pertinent part:

After discharge of the jury from further consideration of a matter with which the lawyer was connected,

the lawyer shall not . . . make comments to a member of that jury that are calculated merely to

harass or embarrass a juror or to influence his actions in future jury service [emphasis added].

3. Comment 1 of Rule 3.06 provides, in pertinent part, that:

[to] safeguard the impartiality that is essential to the judicial process, . . . jurors should be protected

against extraneous influences . . . after the trial, communication by a lawyer with jurors is not prohibited

by this Rule so long as he refrains from . . . making comments that intend to harass or embarrass a

juror or to influence action of the juror in future cases [emphasis added].


4. Comment 1 for Rule 3.09 provides in pertinent part that:

special responsibilities of a prosecutor provides first and foremost that “a prosecutor has a responsibility

to see that justice is done and not simply to be an advocate. This responsibility carries with it a

number of specific obligations among these is . . . [that] a prosecutor is obliged to see that the Defendant

is accorded procedural justice [and] that the Defendant’s guilt is decided upon the basis of

sufficient evidence . . . [and not evidence of predisposition].”

5. Accordingly, where a case ends in a not guilty finding or where a jury is discharged because it is

hung, and where a Defendant had a prior criminal history, it is a violation of the Texas Disciplinary Rules

of Professional Conduct for a prosecutor to disclose, intentionally or recklessly, that a defendant had a

criminal history because it will create a presumptive predisposition in the minds of those jurors that any

future criminal defendant likely has a criminal history too, and that the future defendant was likely predisposed

to commit the crime in issue.

6. Comment 4 to Section 3.06(d) is clear that a violation of the aforementioned rule is a serious matter.

It says, in pertinent part, that:

[b]ecause of the extremely serious nature of any actions that threaten the integrity of the jury system,

the lawyer who learns of improper conduct . . . towards . . . a juror . . . should make a prompt report

to the court regarding such conduct. If such improper actions were taken by . . . a [prosecuting] lawyer,

either the reporting lawyer or the court normally should initiate appropriate disciplinary proceedings

[emphasis added].

7. Hence, it is equally clear that where a prosecutor makes such a disclosure both the defense lawyer

and the judge are obligated to initiate a disciplinary proceeding. Here it is far more comfortable to avoid

the problem altogether by having the court issue a precautionary order to maintain the integrity of the jury

system by protecting future jurors. Moreover, there is no harm to the State by the issuance of the requested

order.

PRAYER

8. WHEREFORE PREMISES CONSIDERED, should this case end in a “not guilty” or discharge of a

hung jury, this Honorable Court is respectfully asked to instruct the prosecutors herein not disclose the

Defendant’s prior criminal history. The Court is also asked to order the prosecutors to instruct their fellow

prosecutors, agents, and employees not to make this same disclosure.

Respectfully submitted,

By: _____________________________

J. GARY TRICHTER

SBN 20216500

MARK THIESSEN

SBN 24042025

The Kirby Mansion

2000 Smith Street

Houston, Texas

Tel: (713) 524-1010

Fax: (713) 524-1080

Attorneys for Defendant,

CITIZEN PILGRIM


CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Motion for has been furnished

to the Assistant District Attorney presently assigned to this case, on this the ____ day of _____________,

2009.

______________________________

J. GARY TRICHTER

CAUSE NO. _______

STATE OF TEXAS § IN THE COUNTY CRIMINAL

§

VS. § COURT AT LAW NO. ____

§

_______________ § ___________ COUNTY, TEXAS

ORDER

On this ____day of _______________, 2009, the Court considered the Defendant’s Motion to Protect

the Fairness of Future Juries, and the Court having heard from both the State and the Defense, GRANTS the

Motion in total. Therefore, the Prosecution is ORDERED not to mention the Defendant’s prior criminal history

in the event that this case results in a not guilty finding or the jury is discharged because it is hung and

cannot decide.

______________________________

PRESIDING JUDGE

Note: Last month’s motion was mistakenly attributed to Maxwell Peck. It should have been credited to Joe Marr

Wilson, lead counsel in the Levi King case. We regret the error.


.Fecler:a.l.1ilw

Federal Law

ill at uJhe the .F French rMe.hi

-QJlflder Quarter

March 4–5, 2010

Hotel Monteleone

504.523.3341

- I ~.,

.. u ." " , __ , , •.

New Orleans!

Register online at www.tcdla.com

17th Annual

Mastering

Scientific

Evidence

in DUI/DWI Cases

April 8–10, 2010

Royal Sonesta Hotel

504.586.0300

Co-sponsored with the National College for DUI Defense


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l

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To join TCDLA you must be a member membar in pd good standing ~tooding of the State Slaw Bar of

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applicants). awlicam:l). An applicaJ1t applicant must mtI§t he be endorsed endorwd I:Pj by a TCDLA TCOLA member. Membml Members of

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