San Antonio Defender

DEFENDER SAN ANTONIO

VOL. XVIIII ISS. 3 | MAY 2017

PRE-TRIAL

POST-JUDGMENT

DEFENDING MOTIONS TO REVOKE PROBATION & MOTIONS TO ADJUDICATE

EXPUNCTION OF OFFENSE AFTER SERVING COMMUNITY SUPERVISION

MAKING EXPUNCTIONS / NONDISCLOSURES WORK: HOW TO TRULY CLEAR YOUR CLIENT’S NAME

SACDLA OFFICERS Michael McCrum

Loraine Efron

Trisha Morales Padia

President

Secretary

Editor-in-Chief, DEFENDER

Don Flanary

Christine Del Prado

Jennifer Zarka

Vice President

Treasurer

Executive Director

Steven Barnett

John Hunter

Jodi Soyars

Adrian Flores

Pat Montgomery

Robin Teague

John Fox

Angela Moore

Chad Van Brunt

Roland Garcia

RC Pate

Arlene Gay

Tiffany Shockley

EDITOR-IN-CHIEF, DEFENDER Trisha Morales Padia

ASSOCIATE EDITORS, DEFENDER

DIRECTORS EMERITUS Charles Butts (Deceased)

Anthony Nicholas (Deceased)

If you would like to submit an article to be considered for publication in The Defender, or see about how you can help or become involved with and contribute as an Associate Editor, please email Padia.Trisha@gmail.com.

BOARD OF DIRECTORS Matthew Allen

Joseph Esparza

Angela Moore

Robert Barrera

Justin Fischer

Kristen Mulliner

Philip Bozzo

John Fox

Miguel Najera

Anne Burnham

Ray Fuchs

Trisha Morales Padia

John Carroll

Roland J. Garcia

Joel Perez

Karen Corby

Paul Goeke

Christopher Simpkins

Adam Crawshaw

Juan Carlos Hernandez

Robin Teague

Andrew del Cueto

John Hunter

Chad Van Brunt

Mario Del Prado

Blakely Mohr

Michael Young

Patricia Jay

Jeff Mulliner

John A. Convery

Warren Wolf

John “Bud” Ritenour

Ernest Acevedo, III

Robert Featherston

Adam Kobs

Ronald P. Guyer

Jorge Aristotelidis

George Taylor

Mark Stevens

Jay Norton

Stephanie Stevens

George Scharmen

Michael Gross

Jim Greenfeld

Cynthia Hujar-Orr

Jeff Mulliner

Michael S. Raign

PAST PRESIDENTS

DEFENDER SAN ANTONIO

06 09 10 13 14

LETTER FROM THE PRESIDENT Michael McCrum

2017 - 2018 COMMITTEE MEMBERS & NEW SACDLA MEMBERS CHANGES TO THE TEXAS CODE OF CRIMINAL PROCEDURE

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Arlene M. Gay

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Chad Van Brunt

MAKING EXPUNCTIONS / NON-DISCLOSURES WORK: HOW TO TRULY CLEAR YOUR CLIENT’S NAME Chad Van Brunt

THE SACDLA FIESTA PARTY

DEFENDING MOTIONS TO REVOKE PROBATION & MOTIONS TO ADJUDICATE John Hunter

EXPUNCTION OF OFFENSE AFTER SERVING COMMUNITY SUPERVISION

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PETITION FOR EXPUNCTION OF RECORDS & ORDER OF EXPUNCTION J. Frank Davis

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CASE LAW UPDATE Tiffany Shockley Alexandra Zepeda Zacery Munoz Stephanie Stevens

The San Antonio Criminal Defense Lawyers Association P.O. Box 831 206, San Antonio, Texas 78283 210.501.2916 | sacdla.com

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Letter From the President Michael McCrum

sions about this area of the law. And, frankly, I suppose they are to some degree. Yet what I have found to be the reality in post-judgment proceedings is that people tend to approach them in a very sterile manner. It seems to have become a routine business with

-Tina Turner, 1984 a routine state of mind—a person messed up after

having messed up before, and we have no sympathy, empathy, or any other “-pathy”. Probationers, having Personally, one of the most difficult challenges I been entrusted with the obligation to abide by cerface in my criminal defense practice is the repre- tain conditions of life, again walk the halls of justice sentation of those who have already been adjudged to face charges anew and the prospect of losing their guilty. Oh, I know that all cases bring their particu- freedom. Appellants, sending their Judgment above lar degree of challenge. But representing persons to loftier black-robed pillars of wisdom, are forced who have pled guilty or found guilty by a judge or to rely on my skills (and heart) to convincingly arjury no longer is shielded by a presumption of in- gue that it was all a mistake—a sad, tragic error (or nocence, leading many, if not most, prosecutors, even harder to convince—a set of errors) commitjudges, probation and parole officers to inevita- ted by their subjacent black-robed peers of justice. bly, unapologetically and freely without filter view Good luck in either instance. While there are legitimy client with bias—and not a favorable bias at mate issues of concern in the minds of prosecutors, that. It seems akin to someone asking you to trust judges, probation and parole officers who review them after they’ve burned their bridge. A presump- these situations, my particular concern is the lens tion of guilt weighs heavy on the heart and mind. through which these persons conduct their review.

Guilt affirmances, revocations and other sanctions This issue of The Defender focuses on probation and seem to be dispensed so easily. Errors against halother post-judgment proceedings. I realize that my lowed principles of justice are deemed harmless, as comments above may sound like very cynical conclu- if there could be such a thing. In the representation What’s love got to do, got to do with it What’s love but a second hand emotion What’s love got to do, got to do with it Who needs a heart when a heart can be broken

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of the adjudged guilty, justice, at least from my and my client’s perspectives, becomes that much more difficult to achieve. The other day, in a proceeding in which my guy is accused of assault on a family member, I couldn’t understand why the prosecutor refused my request to interview family members who came to court to tell the other side of the story—“I know all I need to know” was the casual response from the person in power. Does justice acquire a new definition once a signature is affixed to a parchment called “Judgment”? How does one truly achieve proper review and justice in an environment where a presumption of guilt blankets the room? And, frankly, I also have to ask myself—have I, as a criminal defense attorney, ever approached any situation with the same sterile perspective as those I critique?

Into that environ, I dutifully appear dressed in my Sunday best, promising my clients that I will do my best to tell their story. I ask what happened, and try to understand why this person, this human being, is in such a fix. I carefully note the different mitigating elements of truth that come to light, clinging to an idea that I might actually be able to do something good for this person. I craft my list of points, building what I hope will be a persuasive quiver of reasons to argue that trust again in my client is a safe gamble—to be lenient with my client—to remember that my client is a human who makes mistakes and unfortunately succumbs to life’s twists and turns, not unlike all the rest of us who conveniently like to pretend we don’t. How do I overcome the unmistakable obstacles of bias to truly achieve justice in the face of my client’s errors of judgment? How do I persuade another human that this human was just being human, and that there is good reason to believe that this human does not deserve sanction—or at least the severe sanction that surpasses reason? If they only would see my client through a lens of love.

Wait … love??? As Tina Turner reminded us, what’s

love got to do, got to do with it??? Is it too ridiculous a thought that love can actually walk into the sacrosanct arena of justice, and expect to have a meaningful and accepted voice? Why, it almost seems silly for me to even suggest that this “second hand emotion” should even dare to be included in the discussion. But wasn’t it Shakespeare in King Lear and Romeo and Juliet who tried to teach us that love was understood as the fulfillment of justice? And if justice has anything to do with truth (yes, I know, a crazy idealistic concept), shouldn’t we at least give some credence to the Biblical teaching that the revelation of Law exists at the point where “mercy and truth are met together” and where “righteousness and peace have kissed each other?” In his writings about the problems of human existence, Paul Tillich, one of the great philosophers of the 20th Century, observed that love is the ground, power, and aim of justice, and it forms the ultimate principle of morality in its union with justice. Can we believe this?

It seems to me that if justice, in its purest form, was born from a sense of love, then why isn’t it more prevalent and obvious in each and all of the players within our halls of justice? The Biblical mandate to love our neighbor gave birth to an effort to protect each other—to care for each other and respect each other. To strive to understand the other. This construct was called justice. Arising from a strong sense of love and commitment to each other, I believe that principles of justice began to take form and evolved to where we are today. If so, should love be ridiculed, misunderstood, or underrated within the context of our judicial systems of life? When I seek to flesh out the heart of my client’s situation, pleading that the listener see my client through a filter of love, am I living in lunacy land? I read somewhere that our culture has evolved to a point where people are undervalued.

Our circles of empathy have narrowed and shrunk over time. Research suggests that racism and sexism, two destructive icons of undervalued humanism,

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have not been banished to history books, but rather live prominently in the subculture of our existence.

That same research indicates that they mostly take a different, more sophisticated, form which is more subtle and elusive. Certainly disturbing, it also sounds very, very dangerous. In our context of criminal justice, do the adjudged guilty also live in that same home of undervalued humans who are not worthy of meaningful consideration that comes through a filter of compassion, understanding, and, yes, love?

I want listeners in our courts of law and justice to love my client as a human. I truly do not think that is too much to ask. I want these listeners to see him as a human who has a family and dreams and a childhood and a future, just as the rest of us. That doesn’t mean there won’t ever be a sanction for inappropriate and/ or illegal conduct. But it would mean that each person enters the fray seeing each other, and in particular, seeing the adjudged guilty through a different

lens. And equally and fairly so, I want to love the victims of whatever conduct is at issue. I want also to love the heart of those who have chosen to serve as government servants, whether they wear black robes or not. As I try desperately to tune out Tina Turner’s song from the back of my mind, I believe we should actively strive to return to the originating basis of this thing we called justice. Where bias exists with only one strand of DNA—a strand of love. Once life’s situations are so filtered, we would be encouraged to see each other as connected to the other, for love binds us unlike any imposter. Love obligates us to each other. Freedom is not to be the point of our analysis in post-judgment proceedings, and love would disregard fairness (whatever that word means). Instead, compassion and understanding would be allowed to enter the room and, with love, implore all of us to a higher realm of living. And justice will exist in our courts as it was always intended, for love always has, and always will, demand justice.

CALL FOR SUBMISSIONS The San Antonio Defender is always looking for content that serves to inspire, educate and excite our membership. If you would like to contribute, please contact a member of the Defender staff.

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2017 - 2018 SACDLA Committee Chairs Bylaws Michael McCrum Michael@mccrumlegal.com

Defender Magazine Trisha Morales Padia Padia.Trisha@gmail.com

Strike Force Michael Gross lawofcmg@gmail.com

CLE Blakely Mohr Blakely@TheMohrLawFirm.com

Membership George Taylor GeoTaylor101@aol.com

Tech Bud Ritenour Ritenourlaw@gmail.com

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SACDLA Room Phil Bozzo pbozzo@sbcglobal.net

Robert Featherston Robert@rhflaw.net

CMAG Program Michael Young Michael.Young@bexar.org

Social Trey Porter trey@rradc.com

Voucher John Robertson jrobertson@brylaklaw.com

Welcome New SACDLA Members Lisa Martinez

Alex Salazar

Gregory Simmons

Ruben Nino

Gilbert Stair

Gerardo Flores

Marco Cepeda

George Shaffer

Leigh Cutter

Carter Winters

Zacery Munoz

Gregory Wilson

Jean Brown

Carlo Key

Adam Paltz

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Stephanie De Sola

Tony Hernandez

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Alan Schoolcraft

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Mike Cohen

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Dirk Ashbaugh

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On January 1, 2017, the Texas Code of Criminal Procedure article 42.12 was repealed and recodified into article 42A. The changes to article 42.12 can be found in the following On January 1, 2017, the Texas Code of Criminal Procedure article 42.12 was repealed and recodified into article 42A. The changes chart.

Note: of Crim.chart.

Proc. art.Tex. 42.12 was removed completely. to article 42.12 can beTex. foundCode in the following Note: Codeยง8 of Crim.

Proc. art. 42.12 ยง8 was removed completely.

CHANGES TO THE TEXAS CODE OF CRIMINAL PROCEDURE

Tex. Code Crim. Proc. art. 42.12 ยง 2 3(a)-(g) 3(b) 3g(a) 3g(b) 4(a) 4(b) 4(c) 4(d) 4(e) 4(f) 5(a) 5(a-1) 5(b) 5(c), (c-1) 5(d) 5(e) 5(f) 5(g) 5(h) 5(i)-(j) 6 7 8 9(a) 9(b) 9(c) 9(d)-(f) 9(g) 9(h) 9(i) 9(j) 9(k) 9(l) 9A(a) 9A(b) 9A(c)

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New Tex. Code Crim. Proc. art.

42A.001 42A.053 42A.057 45A.054 42A.204 42A.055 42A.055, 42A.204 42A.055 42A.055, 42A.056 42A.053 42A.057 42A.101-42A.104, 42A.107 42A.106 42A.108, 42A.110 42A.111 42A.102 42A.105 42A.106 42A.105 42A.108 42A.105 42A.202 42A.201 Repealed 42A.252, 42A.353 42A.252 42A.254 42A.255 42A.252 42A.257 42A.253 42A.256 42A.259 42A.253 42A.251 42A.256 42A.258

10(a) 10(b) 10(c) 10(d), (e) 11(a) 11(b) 11(b-1) 11(c) 11(d) 11(e) 11(f) 11(g) 11(h) 11(i) 11(j) 11(k) 11(l) 11(m) 12 13(a) 13(b) 13(c), (d) 13(e) 13(f) 13(g) 13(h) 13(i) 13(j) 13(k)-(m) 13(n) 13A 13B 13C 13D 13E 13F 13G 13H 14 14(a) 14(c), (c-1), (c-2)

42A.051, 42A.151, 42A.203, 42A.754 42A.151 42A.152 42A.052 42A.051, 42A.301 42A.651, 42A.655 42A.651 42A.351 42A.596 42A.451 42A.307 42A.455 42A.504 42A.452 42A.352 42A.509 42A.505 42A.511 42A.302 42A.401, 42A.402 42A.401 42A.402 42A.401 42A.402 42A.407 42A.403, 42A.405, 42A.406 42A.408 42A.404-42A.406 42A.407 42A.407, 42A.408 42A.501 42A.453 42A.513 42A.502 42A.507 42A.508 42A.454 42A.512 42A.303 42A.503 42A.504

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15(a) 15(b) 15(c)(1) 15(c)(2), (3) 15(d) 15(e) 15(f) 15(g) 15(h) 15(i) 15(j) 15(k) 15A 16(a)-(f) 16(g) 17(a) 17(b) 18(a) 18(b) 18(c) 18(d), (e) 18(f) 18(g) 18(h) 18(i) 19(a)-(c), (g) 19(c) 19(d) 19(e),(f) 19(g) 20 20A 21 22(a), (b) 22(c) 22(d) 22A 23 24

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42A.551 42A.553 42A.552, 42A.554, 42A.555 42A.554 42A.555 42A.556 42A.558 42A.557 42A.559 42A.560, 42A.561 42A.560, 42A.561 42A.560 42A.409, 42A.510 42A.304 42A.305 42A.153 42A.154 42A.601 42A.602 42A.603 42A.604 42A.605 42A.606 42A.602 42A.607 42A.652 42A.306, 42A.652 42A.654 42A.653 42A.652 42A.701 42A.702 42A.751 42A.752 42A.753 42A.752 42A.757 42A.755 42A.109, 42A.756 - Chad Van Brunt

The SACDLA Fiesta Party The SACDLA Fiesta Party was held on April 20th at the Cadillac Bar. A good time was had by all!

Don Flanary and Chad Van Brunt

Trey Porter and Judge Brown

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Defending Motions to Revoke Probation & Motions to Adjudicate John Hunter

I

t is commonly understood among defense attorneys that one of the least enjoyable aspects of defense practice is the seemingly “indefensible” position of representing a person facing a motion to revoke probation or adjudicate guilt. Ostensibly, the difficulties attendant to these prosecutions stem from the relatively low evidentiary threshold—preponderance of the evidence—required to revoke a person’s probation. This difficulty is compounded, particularly in Bexar County by the nature of the revocation docket in most courts: the lack of communication between the probation office and the assistant district attorneys; the problems with discovery that arise from this lack of communication; and the fact that many such defendants have been remanded without bond, militating against full and complete participation in the probationer’s own defense.

Contrary to popular belief, however, there are both statutory and common law procedural tools that the defense practitioner can use to greatly improve his chances of success in a contested motion to revoke.1 This article is intended to highlight some of these considerations. If more defense attorneys were to routinely follow these procedures, it is my belief that we could change the methodology of the probation department in this County at its most fundamental levels. Probation should be viewed as a means for rehabilitation, but all too often it is used as an instrument to back-door a prison sentence or prolonged period of confinement without the need of proof beyond a reasonable doubt.

I. Arrest Before delving too deeply into the methodology of defending such an action, it is important to address 1 Unless explicitly noted, I will use the term “motion to revoke” to discuss both motions to revoke probation and motions to adjudicate guilt.

some aspects of the arrest authority vested with the courts and the probation officers. In particular, I’ve observed several courts summon a defendant to court for the purposes of a “status” hearing or using similar terminology to make a decision as to whether or not to issue a capias or arrest warrant in a particular probation case.

At any point during the period of supervision, a court may issue an arrest warrant for a probationer believed to have violated any condition of his supervision. Tex. Code Crim. Proc. Art. 42A.751(b) (2017). The court may also issue such a warrant for persons convicted or placed on deferred adjudication for an offense under Section 43.02 of the Penal Code, Chapter 481 of the Health and Safety Code, or Sections 485.031-485.035 of the Health and Safety Code for application of the communicable disease control measures set out in 81.083 or Subchapter G of Chapter 81 in the Health and Safety Code.

Tex. Code Crim. Proc. Art. 42A.751 (a)(1) & (a)(2) (2017). Additionally, any peace officer or other officer with arrest powers may arrest the probationer with or without a warrant “on the order of the judge to be noted on the docket of the court.” Tex. Code Crim. Proc. Art. 42A.751(b) (2017). Nothing in the statute requires a motion to revoke or motion to adjudicate to be filed prior to such order.

Although most of us are all too familiar with the typical procedures surrounding an arrest for a probation violation, it has become increasingly common among some courts to summon a defendant to a “status” or “pre-revocation” hearing to discuss violation reports sent to the judge by probation. The author has found these settings to be a useful way of addressing minor concerns raised by the court without the need and expense of conducting a complete revocation procedure, but these “settings” are not without their dangers, particularly in difficult cases.

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In particular, while a probationer waives his Fifth Amendment as to the underlying offense to which he pleaded guilty, he retains his Fifth Amendment privilege with respect to violations of his probation.

See Minnesota v. Murphy, 465 U.S. 420, 425 (1984) (“[W]e must inquire whether [the probationer’s] conditions merely required him to appear and give testimony about matters relevant to his probationary status or whether they went further and required him to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent. Because we conclude that Minnesota did not attempt to take the extra, impermissible step, we hold that the [probationer’s] Fifth Amendment privilege was not self executing.”) (emphasis supplied). Thus, while the probationer must expressly invoke his Fifth Amendment privilege, it is critical to note that he retains the right to do so, ostensibly even at an ad hoc “pre-revocation” hearing.

II. Release The single greatest impediment to defending a motion to revoke stems from the defendant’s incarceration. In true motions to revoke probation pursued under Article 42A.751, the Defendant has no right to bail. See Tex. Code Crim. Proc. Art. 42A.751(b) (2017) (“Subject to subsection (c), a defendant arrested . . . may be detained in the county jail or other appropriate place of confinement until the defendant can be taken before the judge for a determination regarding the alleged violation.”); see also Ex parte Ainsworth, 532 S.W.2d 640, 642 (Tex. Crim.

App. 1976) (Defendant has no right to bail on a motion to revoke, but bail can be set subject to the court’s discretion). This restriction does not apply to motions to adjudicate guilt; such a defendant, not suffering under a final conviction, enjoys the same constitutional right to bond as any other defendant.

Ex parte Laday, 594 S.W.2d 102, 104 (Tex. Crim.

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App. 1980). Similarly, a misdemeanant probationer is also entitled to reasonable bail, despite not being on deferred adjudication. Ex parte Smith, 493 S.W.2d 958 (Tex. Crim. App. 1973).

Keeping these principles in mind, it must be understood that a considerable portion of the jail population awaiting a motion to revoke or adjudicate for any level of offense cannot make bail in any amount.

While such individuals should receive a personal recognizance bond, many do not for a myriad of reasons. In a typical case, this means that the defendant will not obtain pre-hearing release by conventional means; the time required to fully litigate a writ of habeas to reduce the bond is often prohibitive given the accelerated nature of the revocation docket in most courts.

There is, however, a superior alternative to pursuing a bail writ. This method applies to all forms of revocation—felony probation revocations, motions to adjudicate, and misdemeanor revocations—and it provides the defendant with a considerable procedural advantage; one which many probationers, inexplicably, do not avail themselves. Pursuant to Article 42A.751: If the defendant has not been released on bail ... on motion by the defendant, the judge who ordered the arrest for the alleged violation of a condition of community supervision shall cause the defendant to be brought before the judge for a hearing on the alleged violation within 20 days of the date the motion is filed. After a hearing without a jury, the judge may continue, extend, modify, or revoke the community supervision.

Tex. Code Crim. Proc. Art. 42A.751(d) (2017). If the State announces “not ready” at the conclusion of this statutory period, the defendant must be released from jail. The trial court, in its discretion, may effectuate such release by (1) granting a personal recognizance bond; (2) reducing the amount of bond required; (3) dismissing the motion to revoke (without prejudice); or (4) withdrawing the warrant, depending upon which of these remedies best ensures that the Defendant will not suffer additional pre-hearing confinement. Aguilar v. State, 621 S.W.2d 781, 785 (Tex. Crim. App. 1981). As will be illustrated further below, there are several aspects of criminal procedure and constitutional law which apply to revocation hearings; when such rights are invoked, the State frequently cannot comply within the twenty-day statutory framework.

III. Discovery, Evidence, and Other Rights Discovery: Despite the lack of a right to jury trial and certain other restrictions, a Defendant’s constitutional right to due process of law guarantees him certain rights in a revocation proceeding. Gagnon v. Scarpelli, 411 U.S. 778, 820 (1973). In Gagnon, the Supreme Court identified the “minimum requirements of due process” afforded to a probationer facing revocation: (a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e)

a ‘neutral and detached’ hearing body ... and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking ...

Id. at 786 (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)) (block quotations in original).

Uniquely, and remarkably, the Texas Rules of Evidence apply to revocation hearings. Tex. R. Evid.

101(e) (2017) (outlining the types of hearings exempted from the rules of evidence; revocations are absent from this list). Keeping these evidentiary rights in mind, along with the rights recognized by Gagnon, it is clear that Article 39.14 discovery rights, along with the constitutional right to exculpatory, impeachment, and mitigation material under Brady v. Maryland and its progeny, apply to revocation proceedings. As a matter of course in Bexar County, the practitioner will encounter bench and prosecutor alike informing the defense that he should subpoena such materials rather than seek the same in formal discovery. Do not be deterred. See Martin v.

Darnell, 960 S.W.2d 838, 841-42 (Tex. App.—Amarillo, 1997, no writ) (noting that the Defendant does not have the statutory right to duces tecum subpoena power as a supplement to Article 39.14 discovery, although he may have a constitutional right to same in limited circumstances where he can show both materiality and favorability in the documents sought). The Martin opinion and the authorities recited therein make it plain that the defendant should not be forced to pursue the legally questionable and complex route of a subpoena, particularly when the records sought are in the possession of the State of Texas.

Procedural Defenses: The code of criminal procedure provides a statutory defense to revocation for failure to report or failure

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to remain in a designated location: [I]t is an affirmative defense to revocation for an alleged violation based on a failure to report to a supervision officer as directed or to remain within a specified place that no supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a judge for that alleged violation contacted or attempted to contact the defendant in person at the defendant’s last known residence address or last known employment address, as reflected in the files of the department serving the county in which the order of deferred adjudication community supervision was entered.

Tex. Code Crim. Proc. Art. 42A.109 (2017). Bexar County probation provides a check-box-form for due diligence. A cursory review of the probation file will reflect whether or not probation considers its obligations under this Article satisfied. If failure to report is the basis of the motion, and the box is unchecked, the case becomes a very simple one to defend. Do not be dissuaded from pursuing this theory even if the box is checked, however. Ultimately, the exercise of due diligence is a fact question for the court; in many instances, while the box may be checked, the probation officer will not have any records to corroborate the exercise of due diligence. Interviews with family members, employers, and the defendant can help to establish that no due diligence was, in fact, exercised.

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Capias: In many cases, the motion to revoke probation carries a probationer over to the jurisdiction of the court even though the period of community supervision has expired. This is legal, so long as the State has filed a motion to revoke during the period of supervision, and a capias is issued for the arrest of the defendant. Tex. Code Crim. Proc. Art. 42A.751(l) (2017). To illustrate the importance of this provision, let me present you with a case study.

This author defended a motion to revoke probation alleging some 15 different violations of community supervision, all of which were “technical” violations of enumerated terms of the defendant’s conditions. Upon obtaining the court’s file, it became clear that despite the lack of any excuse or justification for the violations that the case was very defensible. The motion to revoke was filed within the period of supervision, but there was no evidence in the clerk’s record of any capias ever being issued for the defendant, and the period of probation had long expired. There was only a notation at the bottom of the original motion stating “issue a capias.

Consulting with the district clerk’s office, there was nothing to indicate when the capias issued. In such a situation, a motion to quash the State’s motion to revoke is appropriate. When I called the prosecution’s attention to the issue, the motion was dismissed.

Notice and Other Defects in the Motion to Revoke: Because the accused enjoys the “rudiments of due process” in revocation proceedings, the motion to revoke, like an indictment or information in an underlying criminal case, must sufficiently allege a violation of the conditions of community supervision.

Similarly, the conditions themselves must be sufficiently specific as to place the probationer on notice

of what he is expected to do or refrain from doing while on probation. Cardona v. State, 655 S.W.2d 492, 494-95 (Tex. Crim. App. 1984). Conditions of supervision must be constitutionally sound. Basaldua v. State, 558 S.W.2d 2, 7 (Tex. Crim. App. 1977).

The conditions must not be inherently unreasonable. Simpson v. State, 772 S.W.2d 276, 280 (Tex. App.—Amarillo, 1989, no writ) (“Thus, a condition which (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to the future criminality of the offender or does not serve the statutory ends of probation, is invalid.”).

Substantive and procedural defenses such as incompetency, insanity, or entrapment similarly apply to revocation proceedings. Apropos to the most common allegation in revocation motions, the State must affirmatively prove that the defendant did not willfully refuse to pay fines, costs, or supervision fees if the Defendant raises inability to pay as a defense. Ortega v. State, 860 S.W.2d 561, 567 (Tex. App.—Austin 1993, no writ).

IV. Parting Thoughts It is beyond dispute that probation revocations are some of the most difficult cases to defend. For this reason, many attorneys focus the entirety of their efforts in defending such cases by means of negotiation. This article does not intend to suggest that the positions briefly outlined here can outperform a properly negotiated plea of true in every case. Nevertheless, some probation revocations need to be contested. Most probation revocations are not as cut-and-dry hopeless as the motion to revoke suggests. It is my deepest hope that by arming yourself with these procedural tools, your revocation practice can develop the flexibility to effectively fight the case when it is needed, and to better negotiate your client’s position when it is not.

CALL FOR SUBMISSIONS The San Antonio Defender is always looking for content that serves to inspire, educate and excite our membership. If you would like to contribute, please contact a member of the Defender staff.

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Cause No. STATE OF TEXAS

§ IN THE JUDICIAL § V. § DISTRICT COURT § § COUNTY, TEXAS

MOTION FOR EARLY TERMINATION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW the Defendant in the above-styled and numbered cause, by and through his attorney of record, ________________________, and files this Motion for Early Termination under Tex. Code of Crim. Pro. Art. 42.12 §20; and in support thereof would show as follows: I. In the instant case, the Defendant has been placed on community supervision in this Court for 2 years for the offense of possession of a controlled substance, penalty group 1, less than 1 gram. The community supervision in this case was imposed on December 12, 2011. Defendant has successfully completed each of the terms and conditions of his community supervision prior to the end of his term of community supervision.

II.

Tex. Code of Crim. Pro. Art. 42.12 §20 provides:

At any time after the defendant has satisfactorily completed one-third of the original community supervision period or two years of community supervision, whichever is less, the period of community supervision may be reduced or terminated by the judge . . . Upon satisfactory fulfillment of the conditions of community supervision, and the expiration of the period of community supervision, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the community supervision period and shall discharge the defendant.

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Tex. Code of Crim. Pro. Art. 42.12 §20 further provides:

If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw the defendant’s plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty, except that: (1) Proof of the conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and (2) If the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Health and Human Services Commission may consider the fact that the defendant previously has received community supervision under this article in issuing, renewing, denying or revoking a license under that chapter.

III.

Defendant has completed all conditions of his community supervision with the exception of the time period (“term of community supervision�). Defendant has completed more than half of his original imposed sentence of community supervision.

IV. Defendant is asking that his term of community supervision be amended or modified and that his community supervision be terminated successfully.

V. Defendant further asks that the Court set aside the verdict or permit him to withdraw his plea, and that the Court dismiss the accusation, complaint, information or indictment against him, and that thereafter he be released from all penalties and disabilities resulting from the offense or crime of which he had been convicted or to which he had pleaded guilty, except that: (1) Proof of the conviction or plea of guilty shall be made known to the judge should he again be convicted of any criminal offense; and (2) If he is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Health and Human Services Commission may consider the fact that he previously has received community supervision under this article in issuing, renewing, denying or revoking a license under that chapter.

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WHEREFORE, premises considered, the Defendant prays that this Honorable Court set this Motion for a hearing and after said hearing to reduce his term of community supervision, terminate him successfully and that the Court set aside the verdict or permit him to withdraw his plea, and that the Court dismiss the accusation, complaint, information or indictment against him, and that thereafter the Court discharge him from all penalties and disabilities resulting from the offense except as required by Tex. Code of Crim. Pro. Art. 42.12 ยง20.

Respectfully submitted,

ATTORNEY OF RECORD

CERTIFICATE OF SERVICE

I, , hereby certify that a true and correct copy of the foregoing Motion for Early Termination was hand delivered to the District Attorney on .

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ATTORNEY OF RECORD

Cause No.

STATE OF TEXAS V.

§ § § § §

IN THE

JUDICIAL

DISTRICT COURT COUNTY, TEXAS

ORDER ON THIS DATE came on to be heard the Defendant’s Motion For Early Termination and after due consideration finds that the Motion should be GRANTED.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendant’s community supervision shall be reduced to and hereby TERMINATED SUCCESSFULLY as of this date.

Furthermore, all conditions of the Defendant’s community supervision shall be modified in accordance with this ORDER.

IT IS FURTHER ORDERED THAT in accordance with Texas Code of Criminal Procedure Art. 42.12 §20, Defendant’s plea in this case is hereby withdrawn, and that the Court hereby dismisses the indictment against him, and discharges him from all penalties and disabilities resulting from the offense except that: (1) Proof of the conviction or plea of guilty shall be made known to the judge should he again be convicted of any criminal offense; and (2) If he is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Health and Human Services Commission may consider the fact that he previously has received community supervision under this article in issuing, renewing, denying or revoking a license under that chapter.

SIGNED on this the

day of

, 20

.

JUDGE PRESIDING

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Expunction of Offense After Serving Community Supervision Arlene M. Gay

W

hat if a client who completes community supervision wants an expunction? A Petition of Nondisclosure has been the only remedy to keep the criminal offense from the public eye. In 2011, the legislature made a change to Chapter 55 of the Code of Criminal Procedure that went mostly unnoticed until Texas Department of Public Safety v.

Ibarra, 444 S.W.3d 735 (Tex. App.-Corpus Christi, 2014, pet. denied) was decided. It appears that you can expunge a case if you served community supervision. Section 55.01(b) (2) states: b) Except as provided by Subsection (c), a district court may expunge all records and files relating to the arrest of a person who has been arrested for commission of a felony or misdemeanor under the procedure established under Article 55.02 if:

(2) an office of the attorney representing the state authorize by law

to prosecute the offense for which

the person was arrested recommends

the expunction to the appropriate

district court before the person is tried

for the offense, regardless of whether

an indictment or information has been

presented against the person in relation

to the offense.

Ibarra is the only case decided that has addressed this section of the expunction statute. In Ibarra, the Petitioner was arrested and charged with money laundering and pled no contest and was placed on deferred adjudication for two years. The plea bargain also included the following term: “State recommends expunction if law allows under 55.01(b) (2).” After completing her community supervision, Petitioner moved for an expunction. At the expunction hearing, the district attorney agreed with the Petitioner that the expunction should be granted.

Therefore, the trial court entered the agreed or-

der of expunction. The Texas Department of Public Safety filed a restricted appeal challenging the granting of the expunction since the Petitioner had served community supervision.

The court in Ibarra held that the criminal charge can be expunged by agreement even if the person seeking expunction served community supervision if the expunction is sought under Art 55.091(b)(2) which is an entirely separate basis for an expunction than under Art 55.01 (a). Furthermore, the limitation that there could be no court-ordered community supervision did not apply. This thereby did away with the requirement under Section 55.01 (a) that if a person served community supervision for an offense, he is excluded from receiving an expunction.

What does that mean for the criminal lawyer and plea bargaining? It appears you can plea bargain an expunction. In Bexar County the expunctions are handled by the Bexar County District Attorney Office so the prosecuting authority and the expunction attorney are with the same district attorney’s office.

I would suspect that there would have to be extraordinary circumstances to get the District Attorney’s office to agree, but it is worth giving it a try.

Arlene M. Gay

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Making Expunctions / Non-disclosures Work: How to Truly Clear Your Client’s Name Chad Van Brunt

Y

ou’ve won your client’s trial, the case was dismissed, or you got her that sweet deferred adjudication deal and the client completed community supervision successfully. It’s time to clear her record. The client who now sends you holiday cards, graciously pays you a fair fee to file for an expunction or non-disclosure (unless you get her acquitted in which case it is free). You get that done. The waiting time for compliance with the order of expunction or non-disclosure has passed and you are feeling pretty good about yourself.

Then suddenly, you get an email that contains the word “URGENT” in the subject line from your former client. She proceeds to explain to you (between a number of expletives) that she tried to get a job but was refused employment because the employer said that the case is still on her criminal record. So, there you are wondering: Did I do something wrong? The judge ordered the record sealed/expunged, why is this still a problem?

The long and short of it is that once any information is put on the internet, it just can’t be completely removed. The problems are manifold. It may start with the failure of the Texas Department of Public Safety to notify every entity to whom it has sold criminal records that the record is subject to the order of expunction and must be destroyed as it is required under Article 55.02 § 3(c-2) of the Texas Code of Criminal Procedure. This article provides:

The Department of Public Safety shall also provide, by secure electronic mail, electronic transmission, or facsimile transmission, notice of the order to any private entity that is named in the order or that purchases criminal history record information from the department. The notice must include an explanation of the effect of the order and a request that the entity destroy any information

in the possession of the entity that is subject to the order. The department may charge to a private entity that purchases criminal history record information from the depart ment a fee in an amount sufficient to recover costs incurred by the department in providing notice under this subsection to the entity.

Id. (emphasis added). The same goes for nondisclosure:

Not later than 10 business days after receipt of relevant criminal history record infor mation contained in an order or a copy of an order under Subsection (a), the department shall seal any criminal history record information maintained by the department that is the subject of the order. The department shall also send all relevant criminal history record information contained in the order or a copy of the order by certified mail, return receipt requested, or secure electronic mail, electronic transmission, or facsimile transmission to all:

(1) law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies or other entities of this state or of any political subdivision of this state;

(2) central federal depositories of criminal records that there is reason to believe have criminal history record information that is the subject of the order; and

(3) private entities that purchase criminal

history record information from the department

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or that otherwise are likely to have criminal history record information that is subject to the order.

Tex. Gov’t Code § 411.075(b). As you can imagine, DPS is happy to sell this info and has endured growing pains with the proliferation of the background checking startups. Even if DPS did actually send the notice, there is another burden of following up with compliance that results in additional cracks to the system.

But the problem doesn’t stop there. Criminal records are also available on personal data mining websites that collect everything from property records to social media information. These agencies get their information second hand. They may have purchased it from one of the agencies that buys direct from DPS or from an agency that purchased it from another agency and so on. None of these secondhand information gathering agencies are going to be notified of the order of expunction/non-disclosure and so your client’s record is still out there. So what do you do?

First, you need to manage client expectations on the front end. Do not make blanket claims to your clients that the expunction/non-disclosure is 100% fail-proof. Be sure to enlighten them to the possibility of potential employers or others using less than top tier background checking agencies. Even sophisticated employers often simply Google your client’s name and click on whatever link says it has information about her. This could come from news sites or even those sleazy booking photo sites.

B Misdemeanor for violation of expunction).

2. Tex. Gov’t Code § 411.085 (creates criminal penalty for illegal dissemination class b but raises to 2nd felony if done for remuneration).

3. Tex. Gov’t Code § 411.0851 (creates civil liability for damages to your client).

Offer your clients better protection. Gather as much information as possible about the different and most common background checking services and serve them with a copy of the order along with a letter like the one below. You can and absolutely should charge extra for this. You can even offer your clients continuing protection. If the client finds out about a website that continues to disseminate the information then you can send the letter to that site as well. It gives the client piece of mind and you get to offer an opportunity to earn more fees. It’s a win win for all.

NOTE: The letter provided (see next page) is my working copy and should only be used as an example. Be sure to read it completely and make sure all legal claims are applicable to your client’s situation.

Good luck and keep your clients happy!

Learn the law. Texas law creates several criminal and civil penalties for the continued dissemination of criminal history subject to an order of expunction/non-disclosure once a person or business entity has notice. The statutes are as follows:

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1. Tex. Code Crim. Proc. art. 55.04 (class

Chad Van Brunt

DATE

Agency Street Address.

City, State Zip

RE: HERO

Dear AGENCY,

The web address AGENCY.com, contains information related to the criminal history report of HERO which is now sealed by an order of nondisclosure/expunction. [See Attached Order]. The order of nondisclosure/expunction directs all criminal justice agencies and private entities to not disclose to the public/destroy any criminal history record information related to the offense of OFFENSE, CAUSE NUMBER. Your AGENCY.com criminal records section for HERO provides criminal history record information for a charge of OFFENSE. [See attached screenshot]. HERO was initially arrested for OFFENSE. All charges that arose out of the same arrest, are now sealed/destroyed by order of nondisclosure/expunction.

Information relating to the offense of OFFENSE, CAUSE NUMBER, including OTHER OFFENSES/ ARREST RECORDS are currently being disseminated to the public by your agency at the following web address: AGENCY.com. Your agency is charging a fee to provide this information. Attached please find a copy of the billing records related to the purchase of HERO’s profile your agency provided on DATE. HERO’s order of nondisclosure/expunction was signed and entered on DATE. Accordingly, all information relating to the offense of OFFENSE, CAUSE NUMBER, including OTHER OFFENSES/ARREST RECORDS must be sealed/destroyed. Your website continues to disclose information related to these offenses. Attached, please find a copy of HERO’s AGENCY.com profile including criminal history report for the date DATE. Texas Government Code, Section 411.085 provides that a person commits an offense if the persons knowingly or intentionally discloses criminal history record information to another who is not entitled to

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such information. An offense is a Class B misdemeanor except if the person discloses the criminal history record information for remuneration or employs another for the same purpose, the offense is a felony of the second degree.

Additionally, Texas Government Code Section 552.1425 provides civil penalties for a private entity that compiles or disseminates information for which there is an order of non-disclosure or expunction.

Texas Government Code, Section 411.0851, states that a private entity has a duty to update criminal history record information and any entity who compiles and disseminates for compensation, criminal history record information shall destroy and may not disseminate information with respect to which the entity has received notice that an order of nondisclosure has been issued.

Moreover, any private entity that disseminates information in violation of the law is liable for any damages that are sustained by the person who is the subject of that information.

Please immediately remove all criminal record history information related to: (a) Full Name: (b) Sex: (c) Race: (d) Date of Birth: (e) Driver’s License Number: (f) Social Security Number: (g) Address at the time of Arrest: (h) Offense Charged: (i) Date of Alleged Offense: (j) Date of Arrest: (k) County and city where arrest occurred: (l) Arresting Agency: (m) Cause No. & Court: Failure to take appropriate measures in this matter may result in future civil and criminal action being taken against your company, AGENCY. My office will monitor your website until the illegal information is removed. Please respond as soon as practicable to notify us that the information is removed.

Respectfully,

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Chad Van Brunt

NO.

EX PARTE

Petitioner’s initials

§ § § § § §

IN THE DISTRICT COURT JUDICIAL DISTRICT BEXAR COUNTY, TEXAS

PETITION FOR EXPUNCTION OF RECORDS TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, Petitioner’s full name, Petitioner, by and through the undersigned attorney of record, and files this Petition for Expunction of Records pursuant to Chapter 55 of the Texas Code of Criminal Procedure, and in support thereof the Petitioner would respectfully show the following: The best source for information necessary for drafting the petition is the B1-Page. B1-Pages are often used to reset cases, so your client may have one if you were not his attorney in the criminal case. If neither you nor the petitioner have a copy, get one from a clerk. All the information I usually find on the B1 will be noted below, as well as other tips.

I. IDENTIFICATION OF PETITIONER NAME: actual full name A.K.A: include any known aliases or misspellings of client’s name. Check all reports, booking sheets, the B-1, etc.

SEX: see B-1, upper right corner RACE: see B-1, upper right corner DATE OF BIRTH: see B-1, upper right corner, xx/xx/xxxx format preferred TEXAS DRIVER’S LICENSE NO: SOCIAL SECURITY NUMBER: XXX-XXADDRESS AT TIME OF ARREST: If pleading for more than one arrest and moved between the arrests, list each address and indicate which arrest each applies to.

II. ARREST(S) TO BE EXPUNGED ALLEGED OFFENSE: see B-1, upper left corner DATE OF ARREST: see B-1, middle following “Custody:” DATE OF ALLEGED OFFENSE: see B-1, middle left side LOCATION OF ARREST: city or county ARRESTING AGENCY: see B-1, upper middle

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COURT CASE NUMBER: see B-1, upper middle COURT: see B-1, upper middle DATE OF DISMISSAL: I try to include a copy of the dismissal as an exhibit to each petition. The Bexar DA wants to see a certified copy of any dismissal outside its records, i.e. municipal courts.

TRN: see B-1, upper left corner. The TRN is a number assigned to each arrest. It is not required to be on the petition, but is on the order. I include it on both.

You can ask that more than one arrest be expunged on a single petition; however, drafting the petition requires more than allegations of different arrests.

Be sure that you cover all the variances between the arrests when identifying the petitioner. This is where you find the aliases in name, date of birth, driver’s license numbers and social security numbers. And, addresses frequently change between arrests.

Also, the arrests may involve different agencies. List every agency that was involved in each of the arrests, but only once.

III. ENTITLEMENT TO EXPUNCTION A petition must allege a cause of action. Please specify which allegation applies to which arrest for clarity and choose wisely. The following are allegations which track Article 55.

• Petitioner is entitled to have all the records concerning this charge expunged under

Chapter 55 of the Code of Criminal Procedure in that:

• Petitioner was acquitted by the trial court and no other offense arising from the same

criminal episode resulted in a conviction or remains subject to prosecution. 55.01(1)(A)

• Petitioner was convicted and subsequently pardoned. 55.01(1)(B)(i) or(ii)

• Petitioner has been released, the charge has not resulted in a final conviction and is no

longer pending, and there was no court ordered community supervision under Article

42.12 of the Texas Code of Criminal Procedure for any offense other than a Class C

misdemeanor. Also, no indictment or information charging the petitioner with the

commission of a misdemeanor or felony offense based upon the arrest or transaction has

been presented against the petitioner at any time, at least 180 days have elapsed from the

date of arrest for this Class C misdemeanor offense, and no felony charge arose from the

same arrest or transaction. 55.01(2)(A)(i)(a) Further, petitioner did not intentionally or

knowingly abscond from the jurisdiction after being released under Chapter 17 following his arrest. 55.01(2)(B)(b)(a-2)

• Petitioner has been released, the charge has not resulted in a final conviction and is no

longer pending, and there was no court ordered community supervision under Article

42.12 of the Texas Code of Criminal Procedure for any offense other than a Class C

misdemeanor. Also, no indictment or information charging the petitioner with the

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commission of a misdemeanor or felony offense based upon the arrest or transaction has

been presented against the petitioner at any time, at least one year has elapsed from the

date of arrest for this Class A or B misdemeanor offense, and no felony charge arose from

the same arrest or transaction. 55.01(2)(A)(i)(b) Further, petitioner did not intentionally

or knowingly abscond from the jurisdiction after being released under Chapter 17

following his arrest. 55.01(2)(B)(b)(a-2)

• Petitioner has been released, the charge has not resulted in a final conviction and is no

longer pending, and there was no court ordered community supervision under Article

42.12 of the Texas Code of Criminal Procedure for any offense other than a Class C

misdemeanor. Also, no indictment or information charging the petitioner with the

commission of a misdemeanor or felony offense based upon the arrest or transaction

has been presented against the petitioner at any time, and at least three years have elapsed

from the date of arrest for this felony offense. 55.01(2)(A)(i)(c) Further, petitioner did not

intentionally or knowingly abscond from the jurisdiction after being released under

Chapter 17 following his arrest. 55.01(2)(B)(b)(a-2) or:

• Petitioner has been released, the charge has not resulted in a final conviction and is no

longer pending, and there was no court ordered community supervision under Article

42.12 of the Texas Code of Criminal Procedure for any offense other than a Class C

misdemeanor. Also, no indictment or information charging the petitioner with the

commission of a misdemeanor or felony offense, based upon the arrest or transaction,

has been presented against the petitioner at any time, and at least three years have elapsed

from the date of arrest for this misdemeanor offense, and a felony charge arose from

the same arrest or transaction. 55.01(2)(A)(i)(c) Further, petitioner did not intentionally

or knowingly abscond from the jurisdiction after being released under Chapter 17

following his arrest. 55.01(2)(B)(b)(a-2)

• Petitioner has been released, the charge has not resulted in a final conviction and is no

longer pending, and there was no court ordered community supervision under Article

42.12 of the Texas Code of Criminal Procedure for any offense other than a Class C

misdemeanor. Further, no indictment or information charging the petitioner with the

commission of a misdemeanor or felony offense based upon the arrest or transaction has

been presented against the petitioner at any time, and the attorney representing the state

certifies that the applicable arrest records and files are not needed for use in any criminal

investigation or prosecution, including an investigation of another person. 55.01(2)(A)(i)(d)

• Petitioner has been released, the charge has not resulted in a final conviction and is no

longer pending, and there was no court ordered community supervision under Article

42.12 of the Texas Code of Criminal Procedure for any offense other than a Class C

misdemeanor. Further, the indictment or information charging the petitioner with the

commission of a misdemeanor or felony offense based upon the arrest or transaction

presented against the petitioner was dismissed or quashed because Petitioner completed a

pretrial intervention program authorized under Section 76.011 Government Code.

55.01(2)(A)(ii)

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• Petitioner has been released, the charge has not resulted in a final conviction and is no

longer pending, and there was no court ordered community supervision under Article

42.12 of the Texas Code of Criminal Procedure for any offense other than a Class C

misdemeanor. Further, the indictment or information charging the petitioner with the

commission of a misdemeanor or felony offense based upon the arrest or transaction

presented against the petitioner was dismissed or quashed because the presentment had

been made because of mistake, false information, or other similar reason indicating

absence of probable cause at the time of the dismissal to believe the Petitioner committed the offense. 55.01(2)(A)(ii)

• Petitioner has been released, the charge has not resulted in a final conviction and is no

longer pending, and there was no court ordered community supervision under Article

42.12 of the Texas Code of Criminal Procedure for any offense other than a Class C

misdemeanor. Further, the indictment or information charging the petitioner with the

commission of a misdemeanor or felony offense based upon the arrest or transaction

presented against the petitioner was dismissed or quashed because the indictment or

information was void. 55.01(2)(A)(ii)

• Petitioner has been released, the charge has not resulted in a final conviction and is no

longer pending, and there was no court ordered community supervision under Article

42.12 of the Texas Code of Criminal Procedure for any offense other than a Class C

misdemeanor. Further, prosecution of the Petitioner is no longer possible because the

limitations period for the alleged offense has expired. 55.01(2)(B) Further, petitioner did not

intentionally or knowingly abscond from the jurisdiction after being released under

Chapter 17 following his arrest. 55.01(2)(B)(b)(a-2)

• Petitioner was tried for the alleged offense and convicted by the trial court, but later

acquitted by the Court of Criminal Appeals, and no other offense arising from the same

criminal episode resulted in a conviction or remains subject to prosecution. 55.01(2)(B)(b)(1) (A-C)

• Petitioner was tried for the alleged offense and convicted by the trial court but later

acquitted by the ____ Court of Appeals, the period for granting a petition for discretionary

appeal has expired, and no other offense arising from the same criminal episode resulted

in a conviction or remains subject to prosecution. 55.01(2)(B)(b)(1)(A-C)

• The office of the attorney representing the state authorized by law to prosecute the

offense for which the Petitioner was arrested recommends the expunction to the court

before the person is tried for the offense. 55.01(2)(B)(b)(2) Additionally, you should allege:

• Petitioner was not arrested pursuant to a warrant issued under Section 21, Article 42.12.

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IV. AGENCIES WITH RECORDS

Petitioner has reason to believe that the following law enforcement agencies, jails or other detention facilities and/or correctional facilities, magistrates, courts, prosecuting attorneys, central state depositories of criminal records, and other officials or agencies or other entities of this State, or of any other political subdivision of this State, as well as central federal depositories of criminal records, have records or files subject to expunction herein and should be served with notice of this petition: Each expunction will have a unique list of agencies that you should tailor fit to your client. Include all agencies that have created records (i.e.: those involved in the investigation, arrest, transportation, the magistrate, pretrial services, detention, prosecution, county or district clerk and the court), compiled records (i.e.: DPS, FBI, NCIC, TCIC, TDCJ etc.) and those who only have records because the petition was filed (i.e. district clerk, district attorney and the Office of Court Administration if you E-filed). That said, here’s a list of my usual suspects. Always check the agency’s website for up to date addresses.

Bexar County District Attorney, Paul Elizondo Tower, 101 E. Nueva, 4th Floor, San Antonio, Texas 78205-3005

Bexar County District Clerk, Paul Elizondo Tower, 101 E. Nueva, Suite 217, San Antonio, Texas 78205-3411

Bexar County Clerk, 100 Dolorosa, Suite 104, San Antonio, Texas 78205

Bexar County Adult Detention Center, 200 N. Comal, San Antonio, Texas 78207-3536

Bexar County Pretrial Services, 207 N. Comal, Suite 200, San Antonio, Texas 78207

Bexar County Court at Law Number

San Antonio Police Department, 315 S. Santa Rosa, San Antonio, Texas 78207

Bexar County Sheriff’s Office, 200 N. Comal, San Antonio, Texas 78207-3536

San Antonio Municipal Court, 401 S. Frio, San Antonio, Texas 78207

San Antonio Municipal Court, Magistrate, 1702 N. Alamo St., San Antonio, Texas 78215

Texas Department of Public Safety, P.O. Box 4143, MSC 0234, Austin, Texas 78765-4143 (for itself and the T.C.I.C., F.B.I. and N.C.I.C.) (I don’t bother serving federal agencies separately unless they were actually involved in the arrest. The FBI and NCIC generally will not have records other than those provided by DPS and only DPS can request their removal.)

, 100 Dolorosa, San Antonio, Texas 78205

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Texas Department of Criminal Justice - CJAD, Attn: CSTS Administrator, 209 W. 14th Street, Suite 400, Austin, Texas 78701 (Important if your client received pretrial services or was on community supervision, even if only for a class-c)

Office of Court Administration, 205 West 14th Street, Austin, Texas 78701 (Only if you e-file) V. PRIVATE ENTITIES WITH RECORDS

Petitioner has reason to believe private entities compile, and disseminate for compensation, criminal history record information related to records or files that are subject to expunction, such as the following groups of private entities:

1. Those entities and persons listed by the Texas Department of Public Safety;

2. Each person who applies for access to criminal history record information maintained by the Texas Department of Public Safety Tex. Gov’t Code § 411.085 (d)(1);

3. Any private entity which notifies the Texas Department of Public Safety that it has sold or sells any compilation of criminal history to another similar entity Tex. Gov’t. Code § 411.0851 (b)(2);

4. And/or any “similar entity” listed by another private entity controlled by Tex. Gov’t. Code § 411.0851 (b)(2), regardless of its generation on the list maintained by the Texas Department of Public Safety pursuant to Tex. Gov’t. Code § 411.0851 (b)(2).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner prays this Honorable Court to:

1. Set this matter for hearing, giving reasonable notice pursuant to Article 55.02 § 2 of the

Texas Code of Criminal Procedure to each official, agency or other entity of this state or any

political subdivision of this state named in this petition;

2. After said hearing, and once the resulting Order is final, direct the Clerk of the Court to

send a certified copy of the Order by either secure electronic mail, electronic transmission,

facsimile transmission, certified mail return receipt requested or by hand delivery (with suitable

receipt of delivery) to each official, agency or other entity of this state or any political subdivision

of this state named in the Order to:

I. Return all records and files related to the petitioner’s arrest to the Court, or if removal is

impracticable, obliterate all references to the Petitioner and notify the Court of its

36

action;

II. Delete all index records or references related to the petitioner’s arrest which are subject

to the Order from its records;

III. Require any agency which sent information related to the petitioner’s arrest to a

central federal repository to request the repository to return all records and files subject

to the order of expunction. In particular, the Texas Department of Public Safety shall

notify any central federal or state repository of criminal records by any means including

electronic transmission or facsimile transmission of the Order with an explanation of

the effect of the order and a request that the depository, as appropriate, either:

a. destroy or return to the Court the records in possession of the depository

subject to the Order including any information with respect to the Order; or,

b. comply with §5(f) pertaining to information contained in records and files of a

person entitled to an expunction under Article 55.01 (d) of the Texas Code of

Criminal Procedure.

IV. Additionally, the Texas Department of Public Safety Crime records service shall notify

each private entity that has purchased or otherwise acquired criminal history record

information from the Texas Department of Public Safety, at no cost to the petitioner, of

any order entered by the Court and their obligation to comply with any order entered;

3. Direct that all returned receipts received by the Clerk from notices of the hearing and copies of the Order shall be maintained in the file on these proceedings;

4. Direct that the Court may give petitioner all records and files returned to it pursuant to its order within a reasonable amount of time after receipt of the same;

5. Direct that if an Order of Expunction is issued under Article 55 of the Code of Criminal Procedure, the Court records concerning the expunction proceedings are not open for inspection by anyone except the Petitioner. The Clerk of the Court issuing the order shall obliterate all public references to this proceeding and maintain the files or the records in an area not open for inspection;

6. Direct that the Clerk of the Court shall destroy all the files or other records maintained under Article 55.02 § 5(c) on the first anniversary of the Date the Order of Expunction is entered;

7. Direct that the Clerk of the Court shall certify to the Court the destruction of files and

other records maintained under Article 55.02 § 5(d) on the first anniversary of the Date the Order

of Expunction is entered.

Respectfully submitted: J. Frank Davis P.O. Box 90143

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San Antonio, Texas 78209 (210) 286-8858 Fax: (866) 572-3225 jfrankdavislaw@gmail.com State Bar No. 00785809 Attorney for Petitioner

CERTIFICATE OF SERVICE I hereby certify that a copy of Petitioner’s Petition for Expunction of Records has been served by Hand Delivery to the Bexar County District Attorney, Paul Elizondo Tower, 101 E. Nueva, 4th Floor, San Antonio, Texas 78205-3005, on this the day of , 20 .

J. Frank Davis

STATE OF TEXAS ) COUNTY OF BEXAR ) AFFIDAVIT

BEFORE ME, the undersigned authority, on this day personally appeared ________________, who after being duly sworn stated:

My name is ____________. I am the Petitioner in the above entitled and numbered cause. I have read the foregoing Petition and swear it is true and correct.

OR:

My name is ____________. I am the attorney of record for the Petitioner in the above entitled and numbered cause. I have read the foregoing Petition and swear it is true and correct.

38

SUBSCRIBED AND SWORN TO BEFORE ME on the

.

, 20

day of

Notary Public in and for Bexar County, Texas

No.

EX PARTE

§ § § § § §

IN THE DISTRICT COURT

JUDICIAL DISTRICT

BEXAR COUNTY, TEXAS

ORDER SETTING HEARING DATE

IT IS ORDERED that on the hearing on Petition for Expunction of Records is hereby set for 2:00 P.M., on the day of , 20 , in the courtroom of the Judicial District Court in San Antonio, Bexar County, Texas.

SIGNED on this the

day of

, 20

.

JUDGE PRESIDING

39

In Bexar County, the expunction docket is always set for Thursday afternoon at 2:00 P.M. in civil presiding court.

Bring an order to the hearing. Most judges look for an agreed signature from the State. If the petition is contested by a party, the case will likely be sent to another district court with civil jurisdiction — though I have also been sent to Judge Wright in County Court Seven.

If the petition is granted, take the signed order to the clerk’s counter so it can be sent to the respondents. This is the time to purchase a set of certified copies of the order in case a respondent does not receive a copy from the clerk. I generally purchase four copies, I keep one and provide the client with the remainder. In the letter with those copies I instruct the client to store the copies in a safe place and to use photocopies of the certified copies whenever possible. I also warn the client that if the District Clerk complies with the Expunction Order, no copy will be available to prove this ever happened.

No. You will obtain a cause number and court at the time of filing

EX PARTE

Petitioner’s initials

§ § § § § §

IN THE DISTRICT COURT JUDICIAL DISTRICT BEXAR COUNTY, TEXAS

ORDER OF EXPUNCTION

On this day came to be heard Petitioner’s Petition for Expunction of Records, and it appears to the court that this petition should be, and hereby is, GRANTED.

The Court finds that Petitioner’s full name is entitled to expunction as provided by Article 55.01 (a) (1) (A), Texas Code of Criminal Procedure, with respect to the following offenses charged against Petitioner, with pertinent information provided in accordance with Texas Code of Criminal Procedure, Article 55.02, §2(b): I. IDENTIFICATION OF PETITIONER Cut and paste the ID information from the Petition.

II. ARREST TO BE EXPUNGED Cut and paste the arrest information from the Petition.

The Court further finds that the following law enforcement agencies, jails or other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of

40

criminal records, or other officials, agencies, entities, or political subdivisions, may have records or files pertaining to Petitioner in connection with the arrest and/ or alleged offense described in this Order, and which are subject to expunction: Cut and paste the agency information from the Petition.

1.

The Clerk of the Court is ordered to send a certified copy of the Order by either secure electronic mail, electronic transmission, facsimile transmission, certified mail return receipt requested, or by hand delivery (with suitable receipt of delivery), to each official, agency or other entity of this state or any political subdivision of this state named in the Order to:

I. Return all records and files related to the petitioner’s arrest to the Court, or if removal is

impracticable, obliterate all references to the Petitioner and notify the Court of its action;

II. Delete all index records or references related to the petitioner’s arrest which are subject to

the Order from its records;

III. Require that any official, agency or other entity of this state, or any political subdivision of

this state named in the Order, which has shared any information related to the petitioner’s

arrest with any other agency not listed in the Order, through any means including

intergovernmental agreement, provide a copy of this Order to those additional unnamed

agencies with instructions to return all records and files related to the petitioner’s arrest to

the Court, or if removal is impracticable, obliterate all references to the Petitioner and

notify the Court of its action.

IV. Require any agency which sent information related to the petitioner’s arrest to a

central federal repository to request the repository to return all records and files subject

to the order of expunction. In particular, the Texas Department of Public Safety shall

notify any central federal or state repository of criminal records by any means, including

electronic transmission or facsimile transmission, of the Order with an explanation of the

effect of the order and a request that the depository, as appropriate, either:

a. destroy or return to the Court the records in possession of the repository subject

to the Order including any information with respect to the Order; or,

b. comply with §5(f) pertaining to information contained in records and files of a

person entitled to an expunction under Article 55.01 (d) of the Texas Code of

Criminal Procedure.

V. Additionally, the Texas Department of Public Safety Crime Records Service is ordered to

notify each private entity that has purchased or otherwise acquired criminal history

record information from the Texas Department of Public Safety, at no cost to the

petitioner, of any order entered by the Court and their obligation to comply with any order entered;

VI. Any business entity which has knowledge, or has received notice of, this Order of

Expunction may not publish any criminal record information within its possession which

is subject to this Order. Texas Business and Commerce Code § 109.005(a)(1).

VII. Further, any business entity that compiles and disseminates for compensation criminal

41

record information shall destroy, and may not disseminate, any information in the possession of the entity with respect to which the entity has received notice of this Order.

Texas Gov’t Code § 411.0851(a)(1).

2.

The Clerk of the Court is ordered that all returned receipts received by the Clerk from notices of the hearing and copies of the Order shall be maintained in the file on these proceedings; 3.

The Clerk of the Court is ordered to give petitioner all records and files returned to it pursuant to its order within a reasonable amount of time after receipt of the same; however, the Court records concerning the expunction proceedings are not open for inspection by anyone except the Petitioner.

4.

The Clerk of the Court is ordered to obliterate all public references to this proceeding and maintain the files or the records in an area not open for inspection; 5.

The Clerk of the Court is ordered to destroy all the files or other records maintained under Article 55.02 § 5(c) on the first anniversary of the Date the Order of Expunction is entered; 6.

The Clerk of the Court is ordered to certify to the Court the destruction of files and other records maintained under Article 55.02 § 5(d) on the first anniversary of the Date the Order of Expunction is entered.

7.

IT IS FURTHER ORDERED, that the DEPARTMENT OF PUBLIC SAFETY shall send a copy by certified mail, return receipt requested of this Order to any federal depository of criminal records that there is reason to believe has any of the records, together with an explanation of the effect of this Order and request that the records in the depository, including any information with respect to this proceeding, be destroyed.

SIGNED on this the

day of

, 20

JUDGE PRESIDING Attorney for Petitioner

Assistant Criminal District Attorney

42

.

CASE LAW UPDATE Tiffany Shockley Alexandra Zepeda Zacery Munoz Stephanie Stevens The following analyses are by Tiffany Shockley:

SUPREME COURT OF THE UNITED STATES BUCK V. DAVIS, 580 U.S. (Feb. 22, 2017): Defendant’s trial counsel provided ineffective assistance of counsel when he introduced evidence that there was an increased probability that defendant would commit future acts of violence because he was African American. Trial counsel’s performance fell outside the bounds of competent representation because it would have been unconstitutional for the State to make the argument that a defendant is a future danger simply because of his race. The defendant was prejudiced by counsel’s ineffectiveness because future dangerousness was the focus of the trial and the fact that the defendant was African American would never change, so defendant could never prove he was not a future danger.

PENA-RODRIGUEZ V. COLORADO, 580 U.S. (Mar. 6, 2017): A jury convicted defendant of unlawful sexual contact and harassment. After the verdict, two jurors

spoke with defendant’s counsel and informed counsel that a juror made racial remarks during deliberations and relied on their bias to convict the defendant. The court held that where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

BECKLES V. UNITED STATES, 580 U.S. (Mar. 6, 2017): Beckles was convicted of possession of a firearm by a convicted felon and was hit with a “career offender” sentencing enhancement. The Court held that, although the language in the sentencing guidelines and the Armed Career Criminal act residual clause was similar, the sentencing guidelines only guided sentencing discretion and are not subject to a vagueness challenge under the Due Process Clause.

RIPPO V. BAKER, 580 U.S. (Mar. 6, 2017): During trial, the petitioner received information that

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the judge was the target of a federal bribery probe and that the office prosecuting him was playing a role in the investigation. The petitioner moved for disqualification under the Due Process Clause of the Fourteenth Amendment. The judge declined to recuse himself and the petitioner was convicted and sentenced to death. The Court held that recusal is required when, objectively speaking, “the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.”

MOORE V. TEXAS, 580 U.S. (Mar. 28, 2017): The Court of Criminal Appeals rejected Moore’s challenge to his death sentence based on his intellectual disability because of the standards set out in Briseno. The Supreme Court held that the Court of Criminal Appeals relied on outdated standards to determine that Moore was not intellectually disabled.

FIFTH CIRCUIT COURT OF APPEALS UNITED STATES V. PALACIOS, 14-40279 (Dec. 27, 2016): While the district court allowed Palacios to speak with regard to acceptance of responsibility, the court did not allow him to allocute and “speak on any subject of his choosing prior to imposition of sentence.” This error affected Palacios’s substantial rights because he was given a mid-range sentence in the advisory guidelines range. The Court chose to exercise its discretion to correct the error because Palacios’s attorney gave a cursory mitigating argument and Palacios provided a specific, thorough statement in his appellate brief of what he would have said had he been given the opportunity to allocute.

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UNITED STATES V. MENDEZ-HENRIQUEZ, 15-41551 (Jan. 30, 2017): Whether an offense merits a crime-of-violence sentencing enhancement depends on whether the statute that constitutes a crime-of-violence is divisible or indivisible. A statute is indivisible if it contains a single set of elements to define a single crime. A statute is divisible if it lists elements in the alternatives and thus defines multiple crimes. The court must use a categorical analysis in which it lines up the statute’s elements alongside those of the generic offense and sees if they match. If they match, or if the generic enhancement is broader, the enhancement applies.

UNITED STATES V. MONSIVAIS, 15-10357 (Feb. 3, 2017): Two law enforcement officers observed Monsivais walking away from a disabled vehicle and stopped to do a “welfare check.” After speaking for a few moments, one officer conducted a Terry pat down “because of his behavior” and “officer safety reasons.”

The pat down revealed a weapon and methamphetamine. The government argued that Monsivais walking past the patrol car after the lights were activated, placing his hands in his pocket, and being inconsistent about his destination provided reasonable suspicion that he was involved in criminal activity.

The district court suppressed this evidence because there was “no objectively logical path of deduction that led to reasonable suspicion of criminal activity at the time of Monsivais’s seizure and detention.”

Monsivais was free to walk away from the patrol car and complied every time he was asked to take his hands out of his pocket. Additionally, even if he were inconsistent about his destination there is no reason to believe the inconsistency was related to criminal conduct.

UNITED STATES V. FISCH, 15-20636 (Mar. 14, 2017): Fisch was a criminal defense attorney who was convicted for conspiracy, obstruction of justice, money laundering and tax evasion. The Court held that to support a conspiracy conviction under 18 U.S.C. § 371 the government must prove: 1) an agreement between two or more people to pursue an unlawful objective; 2) knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and 3) an overt act by one or more conspirators in furtherance of the objective. Direct evidence of a conspiracy is unnecessary and each element may be inferred from circumstantial evidence. The evidence was sufficient for the jury to find that Fisch conspired to obstruct justice because the evidence showed that he implored criminal defendants not to accept plea agreements in return for false promises to favorably influence the outcome of their cases.

which the Government was required to recommend that he receive a sentence of imprisonment at the low end of the guidelines range. Despite its obligation under the plea agreement, the Government recommended the high end of the guidelines range.

Kirkland and counsel failed to object. The Government’s breach of its promise to recommend a lesser sentence affects a defendant’s substantial rights unless the record indicates that the court would have imposed the same sentence regardless of the Government’s breach. The fact that the court exercised independent judgment does not mean that the court did not also consider and give weight to the Government’s recommendation, the arguments made, and the graphic testimony presented by its witnesses.

Kirkland’s request for specific performance of the plea agreement was granted because the record did not indicate that the court would have imposed the same sentence had the Government complied with its obligations.

UNITED STATES V. JORDAN, 15-20454 (Mar. 14, 2017):

COURT OF CRIMINAL APPEALS

While imprisoned, Jordan filed documents claiming he was wrongly convicted. When the judge and prosecutor failed to respond, Jordan asserted that both owed him a large sum of money so he filed financing statements with the Secretary of State and liens with the District Clerk. He was convicted for filing a false lien or encumbrance against the real or personal property of the judge and prosecutor. The evidence was sufficient to convict Jordan under 18 U.S.C. § 1521 and it did not matter that he did not identify specific property belonging to the judge and prosecutor.

UNITED STATES V. KIRKLAND, 16-40255 (Mar. 17, 2017): Kirkland pleaded guilty under a plea agreement in

BYRAM V. STATE, PD-1480-15 (Jan. 25, 2017): A police officer observed a vehicle stopped at a light and became concerned for the passenger’s safety as he noticed a strong odor of alcohol emitting from the vehicle and the passenger appeared to be unconscious. To determine whether an officer’s invocation of the community caretaking function is reasonable, the court will inquire whether the officer was primarily motivated by a community caretaking function purpose and whether the officer’s belief that the individual needed help was reasonable. Because the court answered both questions in the affirmative, the officer’s invocation of the community caretaking function was reasonable. The standard for reasonable is no different when an officer stops the vehicle

45

to check on the welfare of the passenger rather than the driver.

PRUETT V. STATE, PD-0251-16 (Jan. 25, 2017): Appellant was observed setting a fire in the backyard of a home he owned as tenants-in-common with his siblings. Two neighbors quickly put out the fire and there was no injury to any person. The Court held that a fire can be considered a deadly weapon depending on the way it is used. Fire is inherently dangerous and capable of causing serious bodily injury, especially when it is intentionally set in a residential neighborhood. The capability of the fire to cause serious bodily injury is not obviated by the fact that the neighbors were able to quickly put it out without injury.

EX PARTE THUESEN, WR-81,584-01 (Feb. 8, 2017): Once a judge voluntarily recuses himself, he does not have the authority to take any action or sign any orders in the case. However, the recused judge may sign an order in the case if the order contains a statement of “good cause.” An adequate statement of good cause must articulate the nature of the exigency that necessitates that the recused judge, in lieu of the judge with actual judicial authority, render the particular order at issue.

McCLINTOCK V. STATE, NO. PD-1641-15 (Mar. 22, 2017): Police took a drug-sniffing dog to McClintock’s door and the dog alerted to the presence of drugs. Police obtained a search warrant and McClintock was then charged with felony possession of marijuana. McClintock filed a motion to suppress arguing that the search warrant was not supported by probable cause

46

because the affidavit in support contained illegally obtained information. While McClintock’s case was pending on appeal, the Supreme Court decided Florida v. Jardines, causing the Court of Appeals to reverse his conviction. The State argued that Davis v. United States applied and the Court of Criminal Appeals held that the exclusionary rule does not apply when the challenged evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

FOURTH COURT OF APPEALS The following analyses are by Alexandra Zepeda and Stephanie Stevens: Appointment of an Unlicensed Spanish Language Interpreter FRANCO V. STATE, 04-16-00090-CR (Mar. 1, 2017) (Unpublished): Franco was convicted of five counts of indecency with a child by contact. The state called a witness who primarily spoke Spanish, and so, requested an interpreter for this witness. The trial court appointed Sandy Espinosa and Franco’s attorney did not object to the appointment or to her translation of the testimony provided by the State’s witness.

On appeal, Franco argued that the trial court was in violation of his constitutional right of confrontation and section 57.002 of the Texas Government Code “when it failed to appoint a licensed Spanish language interpreter to interpret the testimony of [a] State’s witness”. Franco argued, in the alternative, that the trial court erred in failing to make express findings that the interpreter met the qualifications set out in the Texas Government Code,

section 57.002(e).

Under Texas Code of Criminal Procedure 38.30, an individual appointed as an interpreter is not required to have any specific qualifications, but need only have sufficient skill in translating and familiarity of slang. Under 57.002(e) of the Texas Government Code, an interpreter must be licensed; however, in a county with a population less that 50,000, a court may appoint one that is not licensed, but that person (1) must still be qualified by the court as an expert; (2) must be at least 18 years of age; and (3) may not be a party to the proceeding.

The Fourth Court held that the defendant’s objection was not made to the trial court, and therefore, his complaints on appeal were invalid. Even assuming error was preserved, Franco concedes the trial court is located in Sutton county, which has a population of less than 50,000, and thus, the interpreter was not required to be licensed. Moreover, Franco failed to determine on the record the credentials of the interpreter in order to determine whether she was or was not in fact licensed. For those reasons, the Fourth Court would not hold that the trial court erred. The trial court’s judgment was affirmed.

No Right to Plea Agreement

Appeal

Pursuant

to

a

CASTRO V. STATE, 04-17-00363-CR (Mar. 8, 2017) (Unpublished) Castro pled nolo contendere to the offense of indecency with child-contact pursuant to a plea agreement. The trial court sentenced Castro in addition to signing a certificate stating that the defendant has no right to appeal.

On February 1, 2017, appellant was given notice

by The Fourth Court that the appeal would be

dismissed unless the trial court certification was amended to show that he has the right to appeal and was made part of the appellate record by March 3, 2017.

A week later, appellant’s appointed counsel filed a written response, stating he has reviewed the record and concedes this cause must be dismissed because this is a plea bargain case and Castro does not have a right to appeal. The Fourth Court dismissed this appeal.

Pre-Trial Identification Process Requires Objection to Preserve Error WRIGHT V. STATE, 04-17-00292-CR (Mar. 22, 2017) (Unpublished): Wright was convicted for aggravated assault with a deadly weapon. He asserted that the pre-trial identification by the victim, Marquise Scott, was impermissibly suggestive and gave rise to a substantial likelihood of irreparable misidentification.

Although Wright concedes that he did not object to Scott’s in-court identification of him, he argues that he may still challenge the pre-trial identification procedure on appeal as “so suggestive and conducive to mistaken identification” that its subsequent use at trial denied him due process. The Fourth Court of Appeals rejected this argument and stated that an objection is required to preserve the issue for appellate review. The judgment of the trial court was affirmed.

Failure to Object to Testimony About Child Complainant’s Credibility Not Ineffective YZAGUIRRE V. STATE, 04-15-00799-CR (Mar. 15, 2017) (Unpublished):

47

Appellant was tried and convicted on two counts of indecency with a child. A police officer testified that the child was very credible. Similarly, a psychologist testified about the credibility of the child. No objections were made to this testimony and the state conceded there should have been. The state, however, did not believe it was to the level of ineffectiveness. The Court of Appeals agreed.

It held that Appellant failed to show a reasonable probability the result of the proceeding would have been different if counsel had objected in light of the other evidence corroborating the child’s testimony.

In Miranda v. Arizona, the Supreme Court mandated that suspects be warned of their constitutional rights before being subjected to custodial interrogation. A routine traffic stop, such as the one in the case at hand, does not instantly place a person in custody for Miranda purposes; But according to Ortiz v. State, a situation may escalate into a custodial detention when a formal arrest ensues or the freedom of movement is restrained to the degree associated with a formal arrest. Whether a suspect has been detained in such a manner is made on a case-by-case assessment.

Custodial Interrogations and the Suppression of Evidence Seized “Pre-Miranda”

In this case, the Court of Appeals believed that Salinas was in custody at the time the officer asked her if she had anything else on her. First, the officer physically retrained Salinas and deprived her of her freedom in a significant way when he handcuffed her to search the vehicle. Second, the officer told Salinas she was handcuffed so that he could search the vehicle due to an odor of marijuana, which indicated Salinas’s inability to leave during the search. Third, Salinas was aware of the discovery and collection of the drugs. Fourth, Salinas’s continued detention in handcuffs after discovery of the drugs created a situation that would lead a reasonable person in her position to believe that her freedom of movement was significantly restricted. These factors, in conjunction with the fact that the officer never told Salinas she was free to leave, satisfy the standards of defining custodial detention.

SALINAS V. STATE, 04-16-00247-CR (Mar. 15, 2017) (Unpublished): Law enforcement stopped a car for having an obscured license plate. Salinas, the passenger, and the driver were removed from the car and placed in handcuffs. The officer informed them he was searching the vehicle due to a strong odor of marijuana. Salinas voluntarily informed the officer of a blunt that could be found in her purse. The officer located the drug and asked Salinas if she had anything else on her. Salinas responded through further questioning that she did. The officer placed her under arrest upon finding these drugs. According to the complaint authored by the officer, as well as his testimony, Salinas was not given Miranda warnings prior to the arrest.

Salinas was placed on deferred adjudication community supervision for the misdemeanor offense of possession of a dangerous drug. The issue at hand is whether the trial court erred in the denial of Salinas’s motion to suppress evidence. Salinas contends the evidence was the product of an unwarranted custodial interrogation.

48

Before Salinas made the statement regarding the drugs, she was in custody. By asking Salinas whether she had anything else on her, the officer engaged in express questioning of Salinas despite the fact that he did not first provide Miranda warnings.

The Court of Appeals reversed and remanded this case on the notion that the State used evidence seized after an impermissible custodial interroga-

tion that violated Salinas’s constitutional rights.

Declaring the officer’s custodial interrogation without Miranda protections to be harmless error could undermine the protection afforded individuals from unreasonable searches and seizures and erode the protections afforded by Miranda.

The 4th court held that this was simply a mistake by the State and they were not acting in bad faith.

Furthermore, the court held that Fox could have reasonably anticipated the testimony from the witnesses the state intended to call because all of the witnesses’ names were provided to Fox by the State in other discovery materials.

The following analyses are by Zacery Munoz and Stephanie Stevens:

Plea Withdrawal Required

Surprise Witnesses Being Allowed to Testify FOX V. STATE, 04-15-00618-CR (Jan. 11, 2017) (Unpublished): Appellant Fox was convicted of aggravated sexual assault of a child. Fox claimed the trial court erred in admitting testimony from undisclosed witnesses.

During the trial, Fox requested a continuance arguing the State’s notice of intent to introduce extraneous offense was deficient and would impair his ability to adequately prepare for trial. Fox further argued that testimony from the undisclosed witnesses should be excluded or his request for continuance should be granted. The trial court denied Fox’s request for a continuance and allowed all of the State’s witnesses to testify.

If the trial judge allows a witness to testify who doesn’t appear on the State’s witness list, the court must consider whether the prosecutor’s actions constitute “bad faith” and whether the defendant could have reasonably anticipated the witness’s testimony. In, considering whether the State acted in bad faith, reviewing courts have considered the following: (1) whether the State intended to deceive; (2) whether the State’s notice left the defense with adequate time to prepare; and (3) whether the State freely provided the defense with information.

LOPEZ V. STATE, 04-16-00103-CR (Jan. 25, 2017): Lopez pled no contest to a charge of prostitution with three or more priors. Before the plea hearing, Lopez signed the plea agreement which would allow her to withdraw her plea or evidence if the court rejected the plea agreement. Under the agreement, punishment was set at three years confinement and a $1,500 fine. The trial court found the evidence sufficient to establish a finding of guilt. At the sentencing hearing, the trial court decided to not follow the plea agreement and accepted the plea of no contest. The trial court found Lopez guilty and sentenced her to 10 years at TDC. The Fourth Court reversed the trial court’s judgment for not allowing Lopez to withdraw her plea of no contest and remanded for further proceedings.

Prior Assault admissible in Self-defense Trial PATRICK V. STATE, 04-16-00317- CR (Jan. 25, 2017) (Unpublished): Patrick was found guilty of assault causing bodily injury and sentenced to one-year confinement, probated, and a $1,500 fine. Patrick hit the complainant after the complainant refused to stop smoking inside the house. Patrick testified that after asking the complainant why he was smoking on the front porch, the complainant became belligerent so he hit

49

the complainant in self-defense. On appeal, Patrick asserted that the trial court abused its discretion by prohibiting him from presenting evidence of the complainant’s alleged 2015 assault on him. Patrick argued that the evidence was relevant to his contention at trial that his apprehension of danger was reasonable.

The Fourth Court agreed that the trial court erred in excluding the evidence; however, the Court found that Patrick was not harmed by this error.

The Court held that because of all the evidence, the jury could reasonably infer that Patrick hit the complainant in anger and not because he felt threatened.

The Fourth Court did reverse the case and remand it to the trial court for a proper restitution hearing the appellant had complained of his sentencing that the trial court had entered an order for “restitution, if any” to be paid. The State had requested the probation department discover the amount owed and assess that amount. The Fourth Court, however, noted that Tex Code Crim Proc. §42.12 10(a) places the duty to set probation conditions on the judge and such authority is not to be delegated.

Appellant also complained that his motion to quash the information was denied. Pursuant to Tex. Code Crim Proc. 21.15, Appellant urged that the facts and circumstance to support the allegation of “reckless” were not specified as required. Because the information alleged “intent or knowledge” as well, the trial court did not err in failing to grant Appellant’s motion.

Evidence of Benadryl Usage in DWI Case Admissible Without an Expert GUTIERREZ V STATE, 04-16-00218-CR (Feb. 1, 2017) (Unpublished) :

50

Appellant was convicted of driving while intoxicated. Appellant crashed head-on into the wall of an exit ramp. After Appellant was cleared by EMS, Officer Jimenez conducted field sobriety tests because he noticed that Appellant had bloodshot, red eyes and a strong smell of alcohol on his breath. During the field sobriety tests, Appellant informed Officer Jimenez he had taken doses of Benadryl a couple of hours ago. At trial, Officer Jimenez read the warning on the box that instructed its users to avoid alcoholic drinks and be careful while driving motor vehicles.

On appeal, Appellant’s sole issue was whether the State is required to produce expert testimony to establish the reliability and relevancy of Benadryl when proving intoxication for a DWI offense. Appellant made two main arguments. First, the State was required to produce an expert “within the particular field of toxicology or drug recognition” in order to introduce evidence of Benadryl intoxication, and Officer Jimenez was not qualified as such an expert. Second, Appellant argued that the State failed to prove the evidence regarding the Benadryl was reliable and relevant.

The Fourth Court held that because the jury was charged that the definition of intoxication included not having the normal use of mental or physical faculties by reason of a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body, the State was not required to prove Benadryl would have had a synergistic effect on appellant’s degree of intoxication by alcohol. Instead, the State was only required to show that appellant introduced both alcohol and Benadryl into his body and was intoxicated as a result.

The Fourth Court affirmed the trial court’s judgment, holding that Officer Jimenez did not require any special, expert qualifications to read the label or

that the State was otherwise required to prove the reliability of the scientific theory used in determining the side effects listed on the label of the box.

About the Authors:

Tiffany Shockley currently serves as an Assistant Editor for The Defender magazine and is employed as an associate attorney at Gross & Esparza, PLLC.

Alexandra Zepeda is a second year law student at St. Mary’s University School of Law and is currently the President of the Criminal Law Association on campus.

She graduated with honors as an undergraduate student

with a degree in criminology and plans to continue her practice and study of the criminal justice system. She is enrolled as a student attorney in the Criminal Justice Clinic and will graduate in May 2018 with a Juris Doctorate.

Zacery Munoz is a second-year law student at St. Mary’s University. He is enrolled in the Criminal Justice Clinic and will graduate in May of 2018 with a Juris Doctorate. Zacery wants to be a criminal defense and personal injury attorney.

Stephanie Stevens is a Clinical Professor at the Criminal Justice Clinic at St. Mary’s University School of Law, supervising law students representing indigent clients in criminal cases. She is Board Certified in Criminal Law. Prior to joining St. Mary’s full time, she practiced criminal law in San Antonio with the law office of Mark Stevens.

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