39th Annual
RUSTY DUNCAN
Advanced Criminal Law Course
Course Directors
Michael Heiskell • Fort Worth Stephanie Stevens • San Antonio Jani Maselli Wood • Houston Reagan Wynn • Fort Worth
June 18-20, 2026 • Hyatt Regency Riverwalk • San Antonio, TX
Daily CLE Hours: 7.00, Ethics: 2.75 7:00 AM 8:00 AM 7:30 AM 5:30 PM 7:30 AM 8:30 AM 8:00 AM 8:05 AM 0.75 8:05 AM 8:50 AM 8:50 AM 8:55 AM 1.00 8:55 AM 9:55 AM 0.75 9:55 AM 10:40 AM 10:40 AM 11:00 AM 0.75 11:00 AM 11:45 AM 11:45 AM 1:15 PM 1:15 PM 1:15 PM 1:25 PM 1.00 1:25 PM 2:25 PM 0.75 2:25 PM 3:10 PM 3:10 PM 3:30 PM 1.00 3:30 PM 4:30 PM 1.00 4:30 PM 5:30 PM 5:30 PM 5:30 PM 5:30 PM 6:30 PM
6:30 PM 6:30 PM 8:30 PM
Daily CLE Hours: 7.00, Ethics: 1.00 7:30 AM 7:45 AM 7:45 AM 8:00 AM 8:05 AM
8:30 AM 5:00 PM 8:45 AM 8:05 AM 9:05 AM
9:05 AM 9:15 AM
9:50 AM 10:15 AM
1.00
9:50 AM
10:50 AM
0.75 1.00
10:30 AM 10:50 AM 11:10 AM 11:55 AM 1:25 PM
11:30 AM 11:10 AM 11:55 AM 1:25 PM 2:25 PM
1.00
2:25 PM
3:25 PM
3:25 PM
3:45 PM
0.75
3:45 PM
4:30 PM
4:00 PM
5:00 PM
0.75
4:30 PM
5:15 PM
1.00
0.75
5:15 PM 5:30 PM 8:00 PM
6:30 PM 12:00 AM
Daily CLE Hours: 4.00, Ethics: 0 0.75 0.75 0.75 0.75 1.00
7:45 AM 8:45 AM 8:00 AM 8:45 AM 8:45 AM 9:30 AM 9:30 AM 10:15 AM 10:15 AM 11:00 AM 11:00 AM 12:00 PM 12:00 PM 12:15 PM 2:00 PM
THURSDAY - June 18, 2026 - Regency Ballroom
Rusty Fun Run/Walk (Lobby Front Entrance) Registration Continental Breakfast President's Message & Opening Remarks ~ Nicole DeBorde Hochglaube, Jani Maselli Wood, & Stephanie Stevens Strategic Communication (Ethics) ~ Michelle May O'Neil Presidential Award - Pat Metze & 50 Year Member Recogniton ~ Nicole DeBorde Hochglaube Salsa & Selection: Finding the Rhythm of Your Jury ~ Reagan Wynn Opening Statements: The Havana Flare Edition ~ Mark Thiessen Break - 20 min Immigration ~ Jordan Pollock Lunch On Your Own or Awards Banquet Lunch — Rio Grande Ballroom (ticket required) Opening Remarks ~ Michael Heiskell & Reagan Wynn The Right to Vote for Previously Incarcerated Persons ~ Jill Torbert Cross-Examination con Caliente: Turning Up the Heat on the State ~ Mark Stevens From the Tropics to the Trenches: Defending Fourth Amendment Rights ~ Monique Sparks Break - 20 min Plea Bargaining: State & Federal (Ethics) ~ Michael Heiskell & Sarah Duncan Jacobs Under the Palms, Over the Line: Understanding Collateral Consequences (Ethics) ~ Amanda Hernandez Adjourn New Lawyers, New Members, & Law School Students Reception with Board Members (Beethoven Hall) TCDLEI Fellows & Super Fellows Reception (Invitation Only) Goldstein & Orr Pachanga (Beethoven Hall)
FRIDAY - June 19, 2026 - Regency Ballroom
Bike Ride (Lobby Front Entrance) Registration Continental Breakfast President-Elect Message & Opening Remarks ~ Clay Steadman & Michael Heiskell High Conflict: The Ethics of Criminal Advocacy (Ethics) ~ Doug Gladden
AI & Tech Track | Regency Ballroom Stephanie Stevens & Reagan Wynn
Appellate Track | Rio Grande Ballroom Michael Heiskell & Jani Maselli Wood
Integrating AI & Media Analysis into Modern Defense ~ Miles Brissette
So Crazy It Just Might Work: Long-Shot Legal Issues ~ Mark Bennett
AI Assistance Tools & Challenges in Courtroom ~ Sean Hightower Havana Heat: Keeping Cool While Preserving Error ~ Mac Secrest TCDLEI Annual Board Meeting (Chula Vista | Lobby Level) CDLP Committee Meeting (Chula Vista | Lobby Level) Break - 20 min AI in Discovery & Office Management ~ Felix Valenzuela When the Music Stops: The Final Dance of Jury Charges ~ Anne Burnham Lunch On Your Own or Women Defenders Lunch (Live Oak | Hill Country Level) Case Law Update: The Hottest Decisions Heating Up the Courts ~ Hon. David Newell
Science & Forensics Track | Regency Ballroom Stephanie Stevens & Reagan Wynn
Federal Track | Rio Grande Ballroom Michael Heiskell & Jani Maselli Wood
High Stakes in Havana: The Future of Cannabis Prosecution in Texas The Dual Cabana: Moving Between Federal vs. State Practice ~ David Gonzalez ~ George Milner Break - Family Ice Cream Social Cigars & Contamination: Lighting Up the Truth Behind Bad Science Sentencing Guidelines: Finding Justice Beyond the Numbers ~ Roberto Balli ~ Mark Daniel Executive Committee Meeting (Presidential Suite) Under the Havana Moon: When DNA or Other Science Tells the Wrong Mojitos & Mandates: The 5th Circuit in Review ~ Camille Knight Story ~ Frank Sellers Adjourn Friends of Bill (Pecan Room | Hill Country level) TCDLA Annual Membership Party — Hyatt Regency Ballroom (ticket required)
SATURDAY - June 20, 2026 - Regency Ballroom
Registration & Continental Breakfast Rum & Rulings: Supreme Court Highlights ~ Gerry Goldstein Criminal Justice Reform Advocate & Pardon Advisor to the President of The United States ~ Alice Marie Johnson Cuban Calm, Cyber Chaos: Mining Social Media ~ Stephen Ross Johnson Winning the Challenging Case ~ Jason Goss & Nico LaHood Trial Tactics: Turning Up the Heat in the Courtroom ~ Brian Steel Adjourn 54th Annual TCDLA Members' Meeting & Swearing in of Officers & Board Members Rosario's Celebration Lunch
Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law Table of Contents Thursday, June 18, 2026 speakers Michelle May O’Neil
topic Strategic Communication in the Legal Industry in the Age of AI
Mark Thiessen
Effective Opening and Closing Arguments
Jordon Pollock
Crimmigration
Mark Stevens Monique Sparks Michael Heiskell & Sarah Duncan Jacobs Amanda Hernandez
Cross-Examination Con Caliente: Turning Up the Heat on the State From the Tropics to the Trenches: The Fourth Amendment Ethical Plea Bargaining – State Cases Under the Palms, Over the Line: Understanding Collateral Consequences
Friday, June 19, 2026 speakers
topic
Doug Gladden
Ethics in Criminal Defense
Sean Hightower
AI Tools for Lawyers
Mac Secrest
Preservation Of Error
Miles Brissette
Ethical Social Media Investigation
Mark Bennett
Making Law: Solving Old Problems
Felix Valenzuela
Chatbots to AI Systems: Competence & Judgment in the Future of Defense
Anne Burnham
Jury Charges
Hon. David Newell
Significant Decisions: SCOTUS & CCA from July 2025 – May 2026
David Gonzalez
High Stakes in Havana: The Future of Cannabis
George Milner
Federal vs. Texas Criminal Practice
Frank Sellers
Under the Havana Moon: Lies, Damn Lies & Government Science
Roberto Balli
2026 Sentencing Guideline Amendments
Camille Knight
Fifth Circuit & Supreme Court Significant Criminal Law Decisions
Saturday, June 20, 2026 speakers Gerry Goldstein Stephen Ross Johnson
topic Rum & Rulings: Supreme Court Highlights Sex, Lies & Social Media
Strategic Communication
Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Strategic Communication in the Legal Industry in the Age of AI
Speaker:
Michelle May O’Neil OWLawyers - Trial Law (972) 852-8000 phone mmo@michellemayoneil.com email https://www.owlawyers.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Strategic Communication in the Legal Industry in the Age of AI Five Layers, One Imperative: Why the Lawyer Who Connects Wins the Decade Ahead 39th Annual Rusty Duncan Advanced Criminal Law Seminar June 18, 2026 By Michelle May O’Neil1
Communication is half art and half science. Artificial intelligence has taken the science. The art was always the lawyer’s work, and the next decade will be decided by who remembers that.
I. Introduction: Same Wound, New Bandage Abraham Lincoln, who practiced law on the Illinois prairie for nearly twenty-five years before he ran for president, is supposed to have said that a lawyer’s time and advice are his stock in trade.2 I would respectfully disagree. I believe it’s communication. Persuasive communication, to be exact. Persuasive communication plus judgment. It is the way we take a client’s tangled situation, sift it for what matters, and weave the pieces back together into a story that moves a judge, persuades a jury, settles a dispute, or saves a marriage. Judgment is half of that work. Communication using the right word, the right form, the right register, delivered to the right audience, at 1 Michelle May O'Neil is a strategic architect, Board Certified family law trial attorney, and founder
of Concierra Legal, Concierra Business, and Concierra Authority. After 34 years of representing founders, executives, and high-profile individuals through the highest-stakes moments of their lives, she built Concierra to work upstream of crisis and design the legal and strategic architecture that protects businesses, families, and reputations before the stakes escalate. She is the creator and host of The Michelle May O'Neil Show (Webby-nominated), a featured speaker at SXSW 2026 and the Aspire Tour, and the author of two forthcoming books. She holds a post-doctoral certification in Women's Leadership from Harvard Law School and co-founded Hell on Heels, an 1,800-member women lawyers leadership community. She may be contacted at Michelle@ConcierraLegal.com. 2 Abraham Lincoln, Notes for a Law Lecture (July 1, 1850), in 2 The Collected Works of Abraham
Lincoln *81 (Roy P. Basler ed., 1953).
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the right moment, is the other half. The two are inseparable in the same way that a song is inseparable from the singer. And, the presenting problem this profession faces in 2026 is not a new problem. It is a very old problem in a new bandage. •
In 1987, Steve Martin remade Edmond Rostand’s Cyrano de Bergerac into Roxanne, a small comedy in which a fire chief with an oversized nose ghostwrote love letters for a handsomer man who could not speak in his own voice. The woman who fell in love with the letters figured out, eventually, that the words were not the man’s.3
•
In 2013, Spike Jonze made Her, a film about a man who fell in love with his operating system.4 Twelve years later, family-court judges in Los Angeles are now hearing three to five cases a week in which a marriage has collapsed because one spouse fell in love with a chatbot.5
•
In 2025, Wired reported that secret chatbot relationships were creating new legal challenges for married couples, with one spouse spending thousands on an AI app designed to simulate a romantic partner. 6 A national study by the Kinsey Institute and DatingAdvice.com found that sixty-one percent of American singles now consider an AI relationship to be a form of cheating.7
The bandage keeps changing. The wound has not. The New York divorce lawyer James Sexton, asked recently about the wave of AIcompanion applications now ending real marriages, put it as plainly as anyone has: “It may be the newest manifestation of an age-old problem, which is we’re not particularly good at monogamy. The problem of loneliness, the problem of alienation from your partner, the problem of feeling disconnected — we throw new things at
3 Roxanne (Columbia Pictures 1987). 4 Her (Annapurna Pictures / Warner Bros. 2013) (Spike Jonze, dir.). 5 Carolyn Potts, Virtual Infidelity: Is Cheating with an AI Girlfriend Considered Adultery?, Rich. J.L.
& Tech. (Nov. 28, 2025).
6 Jason Parham, AI Relationships Are on the Rise. A Divorce Boom Could Be Next, Wired (Nov. 13,
2025).
7 Lynn Cadet, Digital Affairs Are Here: 61% of Singles Say Sexting or Falling in Love With AI Crosses the Line, DatingAdvice.com., (Aug. 26, 2025); see also Ashley Fike, People Are Cheating on Their Partners—With AI, Vice (Sept. 2, 2025).
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them all the time…. None of them seem to do a particularly good job. They’re all Band-Aids on a bullet wound.”8 Sexton was talking about marriages. He could have been talking about lawyers. The bandage keeps changing. But the wound is the human difficulty of saying what we actually mean to the people who actually need to hear it, and it has not changed in three hundred years, or a thousand. Generative artificial intelligence is the newest Band-Aid, and it is the most powerful one the profession has yet been handed. It can draft a brief in twenty minutes that would have taken a young associate twenty hours. It can summarize a deposition transcript in a single page. The temptation is enormous, the cost savings are real, and the technology is improving at a pace none of us has time to track. But the wound underneath is the same wound it has always been. The lawyers who do not see that, who treat the new tools as a substitute rather than a workaround, are about to discover what every “chatfished” date and every chatbot-divorced spouse are already discovering: the audience always meets the deliverer. It’s like the moment when Toto in the Wizard of Oz pulls back the curtain and the booming voice of the great Oz turns out to belong to a small man working a microphone, 9 and what is seen in that moment cannot be unseen. The technical work that defined generations of legal careers is becoming a commodity. The relational work that has been quietly carrying every successful case, every retained client, every promoted associate, and every settled dispute is now the entire game. The gap between what the modern profession requires and what most firms reward is, at root, a gap in strategic communication. The lawyers who close that gap will dominate the decade ahead. Strategic communication, in the sense used here, is not a synonym for marketing. It is the disciplined practice of choosing the right form, register, channel, and timing of an exchange to advance a defined legal or institutional objective. It encompasses the courtroom and the conference room, the client intake and the press inquiry, the prompt entered into a generative AI tool and the emoji introduced as evidence in a criminal trial. That framework operates on five layers: •
The artificial layer: communication with and through AI.
8 Rae Witte, A Chatbot Stole My Wife, Playboy (Apr. 30, 2026), https://www.playboy.com/read/sex-
relationships/a-chatbot-stole-my-wife (quoting James Sexton, divorce lawyer, New York).
9 The Wizard of Oz (Metro-Goldwyn-Mayer 1939).
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The internal layer: communication inside the firm across five generations.
•
The client layer: communication with the people the profession exists to serve.
•
The courtroom layer: communication with judges and juries in a changed evidentiary landscape.
•
The external layer: communication with the public, the press, and the adversary.
Strategic Communication
•
The argument is that the simultaneous compression of all five, driven by AI on one axis and generational change on the other, with ethics as a foundational substrate, has produced a moment in which they must be addressed as a single integrated problem.
II. THE ARTIFICIAL LAYER: CYRANO’S BRIEF Cyrano wrote the brief. Christian filed it. Roxane read it. The case was lost.
A. The Ethics of Technological Competence In 2012, the ABA amended Comment 8 to Model Rule 1.1 to provide that competent representation includes keeping abreast of the benefits and risks associated with relevant technology.10 Texas adopted the same language in 2019.11 In July 2024, the ABA issued Formal Opinion 512, the profession’s first formal ethics guidance on generative AI, identifying six Model Rules that the technology directly implicates: competence, confidentiality, communication, candor, supervision, and fees. 12 Texas followed in February 2025 with Opinion 705.13 The duties reduce to five obligations: know the tools; verify the output; protect the client’s information; tell the client how the AI is being used; and supervise everyone who touches it.
10 ABA Model R. Prof. Conduct 1.1 cmt. 8 (2012). 11 Tex. Disciplinary R. Prof. Conduct 1.01 cmt. 8 (as amended by Tex. Sup. Ct. Misc. Docket No. 199016 (Feb. 26, 2019)). 12 ABA Standing Comm. on Ethics & Prof. Resp., Formal Op. 512 (July 29, 2024). 13 Tex. Comm. on Prof. Ethics, Op. 705 (Feb. 2025).
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B. Hallucinations: The Mata Doctrine On June 22, 2023, Judge P. Kevin Castel of the Southern District of New York issued the sanctions opinion in Mata v. Avianca, Inc.14 Plaintiff’s counsel used ChatGPT to generate legal research. The chatbot returned six citations to federal appellate decisions that did not exist. Counsel filed the brief without cite-checking. When the court could not locate the cases, counsel doubled down, filing an affidavit attaching fabricated copies of the decisions. Judge Castel sanctioned both attorneys $5,000 and ordered them to send the sanctions order to each federal judge falsely identified as the author of a fabricated opinion. Researcher Damien Charlotin’s hallucination-cases database currently catalogs almost 600 matters worldwide in which lawyers or experts submitted AI-fabricated authorities to courts.15 In April 2026, the Sixth Circuit sanctioned counsel in United States v. Farris whose appellate brief, drafted in CoCounsel, contained three citations to real cases accompanied by quotations that did not exist in the cited sources. The brief’s file name was “CoCounsel Skill Results.”16 Purpose-built legal AI tools are not immune. A Stanford-Yale study found they still hallucinate 17-33% of the time.17 The verification duty is non-delegable. The attorney who signs a pleading is responsible for every assertion in it, regardless of who or what drafted it.
C. The Authenticity Problem: Why Borrowed Voice Fails This is the problem that will cause more damage to the reputation of lawyers as communicators than any sanctions hearing. Researchers at the University of Florida have documented the credibility cost of AI-assisted writing: readers who detect AI-generated content discount the writer’s sincerity, with perceived trustworthiness dropping from 83% for lightly edited messages to as low as 40% for heavily AI-assisted ones.18
14 Mata v. Avianca, Inc., 678 F. Supp. 3d 443 (S.D.N.Y. 2023). 15 Damien Charlotin, AI Hallucination Cases Database (last visited 2026). 16 United States v. Farris, 2026 WL 915082 (6th Cir. Apr. 3, 2026) (per curiam). 17 Varun Magesh et al., Hallucination-Free? Assessing the Reliability of Leading AI Legal Research Tools, J. Empirical Legal Stud. (Apr. 23, 2025).
Peter W. Cardon & Anthony W. Coman, Professionalism and Trustworthiness in AI-Assisted Workplace Writing, Int’l J. Bus. Comm’n (2025); see also Allison Alsup, Is Writing with AI at Work Undermining Your Credibility?, UF News (Aug. 6, 2025). O’Neil, Strategic Communication, Page 5 39th Annual Rusty Duncan Advanced Criminal Law Seminar June 18, 2026 18
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What tips readers off is a recognizable cluster of stylistic clues and language patterns, such as standardized expressions and overrepresented "AI buzzwords". These predictable markers signal that a piece of writing was machine-produced or heavily edited, replacing authentic human texture with a homogenized tone.19 Each platform has its own tells: ChatGPT (OpenAI)
Claude (Anthropic)
Gemini (Google)
Signature vocabulary
Delve, intricate, crucial, elevate, surpass, navigate.
It is worth noting, careful consideration, nuanced, multifaceted.
Comprehensive, robust, seamless, leverage, optimize.
Structure
Predictable bolded list items followed by colons. Threeitem lists where two or four would be more natural.
Methodical multi-step prose. Tendency to summarize at the end of each section, even when no summary was requested.
Bullet-heavy formatting. Quickhit paragraphs.
Failure mode in legal writing
Confidently fabricated citations. Strong assertion of nonexistent facts in fluent prose.
Overlong responses with hedging that buries the operative point.
Generic surface-level analysis that reads as assembled from secondary summaries.
Pattern
This author would observe that use of the em dash alone would not singularly indicate ChatGPT authorship – this author too loves a good em dash. Unfortunately, ChatGPT has all-but ruined that for most writers. The strategic response is not to refuse generative AI. The strategic response is the discipline of authorship. Use AI for what it does well: synthesis, first drafts, structured comparison. Then retain human authorship over the decisions that constitute the lawyer’s distinctive voice. The brief is the lawyer’s. The closing is the lawyer’s. The counseling letter is the lawyer’s. The voice and the deliverer must be the same person. 19 See Jeremy B. Merrill, What Are the Clues That ChatGPT Wrote Something? We Analyzed Its Style, Wash. Post (Nov. 14, 2025); Melissa Fleur Afshar, AI Is Changing How We Speak, Newsweek (Aug. 29, 2025); Julia Grimmett, AI May Be Making Us Think and Write More Alike, USC Dornsife News (Mar. 11, 2026).
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D. The Multi-Agent Workflow The most promising fix for single-prompt AI failure is what researchers call a reflective multi-agent workflow.20 Instead of typing one prompt into one chatbot and accepting whatever comes back, you split the job across several AI tools. One drafts. One checks citations. One cleans up the writing without touching the facts. That is, in plain English, what every good appellate team has been doing for generations. What is new is that the structure can now be enforced in software. Stage
Firm Analog
Suggested Tool
Supervisory Question
1. Ideation
Conversation with ChatGPT a thoughtful (conversational associate. pressure-testing).
Is the argument tested against its strongest counterargument?
2. Research
Research librarian NotebookLM (corpus- Has every source been assembling the bound research). personally read? corpus.
3. Outline
Senior associate NotebookLM or any Does the outline serve producing LLM. the central argument? structured outline.
4. Draft
Senior associate Claude (long-form Does each section reflect drafting under drafting). Cross- the intended voice? partner direction. checked against other tools.
5. Revision
Partner, reading No AI tool. aloud, signing the lawyer alone. final document.
The Does every sentence sound like the writer when said aloud?
The tools will change. They will change again next year. The structure of supervised legal work will not.
E. The Confidentiality Frontier Every prompt submitted to a consumer-grade generative AI tool is a transmission of information to the vendor. The lawyer who pastes a draft pleading, a deposition transcript, or a settlement communication into such a tool may have transmitted
20 Li Zhang & Kevin D. Ashley, Mitigating Manipulation and Enhancing Persuasion: A Reflective Multi-Agent Approach for Legal Argument Generation, in Proceedings of the 2nd ConventicLe on Artificial Intelligence Regulation and Safety at ICAIL 2025 (2025).
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client information to unknown third parties without informed consent. Both Formal Opinion 512 and Texas Opinion 705 require that lawyers communicate with clients about whether and how AI will be used in the representation, and that confidential information not be input into self-learning models without satisfying the lawyer that the information will be protected.21
III. THE INTERNAL LAYER: FIVE GENERATIONS UNDER ONE FIRM A firm that cannot communicate across the multigenerational divide is bleeding talent, training capacity, and institutional knowledge in real time.
A. The Generational Vocabulary Generational categories are, by their nature, generalizations. Individual variation within any cohort is significant. The categories nonetheless remain useful as a framework for understanding broad patterns in communication preference, information processing, and institutional expectation.22 The Silent Generation (born 1928 through 1945) was shaped by the Depression and the Second World War. Members of this cohort value loyalty, respect for institutional authority, and formal communication. Most are beyond ordinary retirement age, but they continue to appear in jury pools and remain a significant client base in estate, trust, and elder-law matters. They are the generation most likely to defer to credentialed authority and to interpret formality as a signal of competence. They write thank-you notes by hand. They expect a phone call to be returned the same day. Baby Boomers (born 1946 through 1964) defined the modern American workplace. Boomers value face-to-face communication, telephone calls, and hierarchical organizational structures. They came of age during a period of extraordinary economic expansion and tend to associate professional success with dedication, long hours, and institutional loyalty. In the courtroom, they respond to credentials, linear argument, and traditional markers of authority. In law firms, they hold a disproportionate share of senior leadership positions and often set the communication norms that younger lawyers find alienating without being able to articulate why.
21 ABA Formal Op. 512, supra; Tex. Op. 705, supra. 22 Pew Research Ctr., Where Millennials End and Generation Z Begins (Jan. 17, 2019).
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Generation X (born 1965 through 1980), often called the latchkey generation, grew up with greater independence and lower institutional trust than their Boomer predecessors. Gen X is comfortable with technology but did not grow up with it. Most learned to use computers in high school or college. In the workplace, Gen X tends toward independent, resourceful, and pragmatic styles, preferring concise written communication like email but still valuing face-to-face interaction for important conversations. In the courtroom, Gen X occupies a bridge position: skeptical enough to question authority, traditional enough to respond to structured argument. Millennials (born 1981 through 1996) constitute the largest segment of the current American workforce. They are the first generation to come of age with the internet, although most made the transition to digital communication as young adults rather than as children. They value authenticity, transparency, and purpose-driven work. In the courtroom, they expect multimedia presentations, respond to storytelling over didactic argument, and are deeply skeptical of corporate and institutional authority. They are comfortable expressing themselves and expect a two-way dialogue rather than a top-down lecture. Generation Z (born 1997 through 2012) is the first true digital-native cohort. Members of this generation have never known a world without smartphones, social media, or on-demand content. The oldest members of Gen Z are now approaching thirty and well into their professional careers; the youngest are entering the jury pool. They process information in short, visual bursts and are accustomed to evaluating competing perspectives simultaneously. They value speed, authenticity, and individualized communication, and they are profoundly skeptical of institutions. They are also, notably, more anxious than prior generations and heavily favor text-based communication over telephone calls and face-to-face meetings.
B. The Communication Divide The data on generational communication preferences tell the story. 65% of Baby Boomers prefer face-to-face meetings; only 34% of Generation Z share that preference.23 Younger generations heavily favor text-based and digital messaging for work communication, while traditional voice calls induce “workplace phone phobia” driven by the anxiety of real-time conversations. Outside of the workplace, Roy Maurer, Managing Multi-Generational Communication in the Workplace, SHRM (Jan. 2, 2025). 23
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this preference is even more pronounced: survey data reported by the BBC shows that nearly 70% of adults aged eighteen to 34 prefer text messages over voice calls, and approximately a quarter say they never answer voice calls at all.24 Consider what this means in the daily life of a firm. The senior partner who calls an associate to discuss a case is doing something that feels intrusive and urgent to the associate. The associate who responds to a client question via text message is being unprofessional to the partner. Neither is wrong. But neither is adapting to the other, and the resulting friction is producing measurable institutional cost. Younger cohorts frequently integrate emojis and visual symbols into their daily communication. While older generations steeped in traditional corporate culture may read these habits as a failure of professionalism, they are nothing of the sort. They are evidence of a different professional vocabulary. The lawyer who cannot communicate across that vocabulary gap is no different from the lawyer who cannot adapt advocacy strategy to a changing jury box. The skill is the same. Only the audience has shifted.
B. The Retention Crisis The legal profession is facing a severe talent retention crisis. A record-high proportion of associates are abandoning their firms within the first few years, with the critical departure point now between the fourth and fifth year.25 Firm-wide lawyer attrition reached 27% in 2025, and the cost of replacing a single third-year associate now exceeds one million dollars.26 With the adoption of remote work, organic hallway mentorship has significantly diminished. An entire cohort of emerging legal professionals has been largely deprived of the informal interactions, real-time feedback, and observational
24 Yasmin Rufo, Why Gen Z & Millennials Are Hung Up on Answering the Phone, BBC News (Aug. 26, 2024); Call Me Maybe (Not): A Quarter of Young People Never Answer the Phone, Uswitch (Apr. 30, 2024). 25 See Press Release, The NALP Found., The NALP Foundation Releases Latest Update on Associate
Attrition and Hiring (CY 24) (Apr. 24, 2025); Amanda Robert, Associates Continue to Leave Firms Within 5 Years of Hire, New Report Says, ABA J. (Apr. 22, 2026). 26 BigHand, BigHand Legal Talent & Resourcing Report 2025 (2025).
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learning necessary for their development.27 The firm’s revenue engine is running on institutional memory that is not being passed down. When managers fail to adapt to the communication preferences of Gen Z employees, the resulting gaps interrupt organizational communication, slow production, and cause companies to miss opportunities.28
C. Examples of Communication Differences These examples illustrate that generational communication differences are not a failure of professionalism in any cohort. They are evidence of different professional vocabularies. 1. Giving a client your personal cell phone number. Boomer reading: This is exactly what good service requires. The lawyer who can be reached after hours is the lawyer the client trusts. Gen Z reading: Slightly horrifying. Why would the client need that? Email and the firm’s after-hours system exist for a reason. 2. Responding to a client’s text message at nine o’clock at night. Boomer reading: Diligent and responsive. Millennial and Gen Z reading: This is the associate teaching the client that 9 PM availability is normal, which the associate will regret in six months when the client is texting at midnight. 3. Calling a colleague without texting first. Boomer reading: A phone call is more efficient than typing back and forth. Why would I text first? Millennial and Gen Z reading: An unannounced call interrupts focused work. The polite thing is to text first. 4. Sending a one-line email that just says “Thanks!” with no other content. Boomer reading: Polite acknowledgment. 27 See Xiumei Dong, Associates Feel Partners’ Absence In Return To Office, Law360 Pulse (Apr. 23,
2025).
28 See Jamie Bredbenner, Generation Z: A Study of Its Workplace Communication Behaviors and
Future Preferences (May 2020) (M.A. thesis, Wichita State University).
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Millennial and Gen Z reading: Mild irritation. The “thanks” email shows up as a notification, requires opening, and contains no information. It is the digital equivalent of someone tapping you on the shoulder to say nothing. 5. Replying to a work email with a thumbs-up emoji. Boomer reading: Unprofessional. Millennial and Gen Z reading: Efficient and warm. The thumbs-up is the proper unit of acknowledgment for a message that does not require a written reply. 6. Posting on TikTok or Instagram about practicing law (without naming clients). Boomer reading: Cheapens the profession. Gen Z reading: This is how every other professional builds a practice now. The lawyer who is not on TikTok is invisible to a substantial share of the under-35 client base. 7. A senior partner walking into an associate’s office without knocking. Boomer reading: This is how a firm works. The associate’s door is always open. Gen Z reading: A boundary violation. The associate is doing something. Why would the partner not check first? 8. Calling a junior associate’s personal phone after 6 PM about a case. Boomer reading: This is what associates are paid for. Gen Z reading: The associate has every right to ignore the call and respond at 8 AM the next morning. 9. Asking an associate to stay until midnight to finish a brief due the next morning. Boomer reading: This is the practice of law. Gen Z reading: A red flag about firm culture. The associate is going to remember this and use it as a reason to leave within twelve months. 10. Wearing a navy suit, white shirt, and red tie to court. Boomer reading: Standard professional dress. Gen Z reading: The over-conservative dress can actually read as untrustworthy to a Gen Z juror who associates that level of formality with politicians and televangelists. O’Neil, Strategic Communication, Page 12 39th Annual Rusty Duncan Advanced Criminal Law Seminar June 18, 2026
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IV. THE CLIENT LAYER: THE DIFFICULT CONVERSATION The conversation with the client IS the legal work. Every other product the lawyer produces is downstream of two things: how well the lawyer hears the client at the beginning of the matter, and how well the lawyer talks to the client throughout.
A. Intake Listening The client communication that matters most happens in the first thirty minutes of the first conversation. The trial lawyer’s instinct, trained by years of crossexamination, is to interrupt for clarification, to drive toward the operative facts, to convert the narrative into elements. That instinct is exactly wrong at intake. The client who is interrupted, redirected, and converted feels disrespected and unheard. Empathy is a trainable skill, not a fixed personality trait. Lawyers can actively develop it through deliberate practice, including reading literary fiction.29 Literary fiction exercises the brain’s capacity to model the inner lives of others, to track motivations that are not stated, to read a scene for what is being concealed as well as for what is being said. Those are precisely the cognitive skills the trial lawyer deploys in cross-examination, in voir dire, in negotiation, and in closing argument.
B. Ongoing Listening Every experienced trial lawyer has seen the signals. The client who goes quiet in deposition prep is not tired. The client who insists on a settlement number that has nothing to do with what the case is worth has decided something she has not told the lawyer. The client who asks the same question three times has not heard the answer. The client who starts calling at odd hours is going through something and that something is going to land in the middle of the case whether the lawyer deals with it or not. All of them are communicating. The lawyer who reads the signal can respond. The lawyer who misses it finds out too late.
C. The Duty to Inform Texas Disciplinary Rule 1.03 requires a lawyer to keep the client reasonably informed about the status of the matter.30 ABA Model Rule 1.4 imposes
29 See Chris Graham, Lawyer Empathy: How Reading Fiction Can Improve Client Relationships,
Attorney at Work (May 7, 2025).
30 Tex. Disciplinary R. Prof. Conduct 1.03(a), (b).
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substantively identical duties.31 Both rules are deceptively simple. Both rules are violated more often than any other rule in the profession. The number one allegation in attorney grievances is failure to communicate. 32 The client who feels uninformed files a grievance. The client who feels uninformed and whose case is also going sideways files a malpractice claim. The lawyer’s failure to communicate is the precondition for both. The discipline is regular updates even when there is no news to report, because the regular update is what gives the difficult update somewhere to land when it eventually arrives. Return the call within twenty-four hours even when there is nothing new to say, because the rhythm of returning calls is what tells the client the lawyer is still paying attention. The lawyer who puts it on the calendar does not have to decide, in any given week, whether to call the client. The avoidance problem does not come up.
V. THE COURTROOM LAYER: THE NEW JURY BOX The trial lawyer who walked into a 1985 courtroom and the trial lawyer who walks into a 2026 courtroom are not practicing the same craft. The audience has changed at every level.
A. The Multimodal Jury The most important difference between the 1995 jury and the 2026 jury is the generational composition. Millennials and Generation Z, a growing share of the available jury pool, have information-processing habits that diverge sharply from those of earlier generations. The younger jurors process information in short, visual, multimodal bursts.33 They have spent their formative years scrolling through TikTok, Instagram, and YouTube content, watching average individual clips of fifteen to forty seconds, and developing an almost reflexive comfort with simultaneous evaluation of visual, audio, and text inputs. This has produced an audience whose attention rhythms, evidentiary preferences, and credibility
31 ABA Model R. Prof. Conduct 1.4. 32 Laura Popps, The Grievance You Didn’t See Coming: Why Good Lawyers Get Grieved, Popps Law &
Consulting Blog (May 19, 2025).
33 Stephen P. Laitinen & Merrie Jo Pitera, How to Be Hundo P and on Fleek: The Millennial Factor
in Jury Selection, Larson King.
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assessments are structurally different from those of jurors who developed their information-processing habits in the era of long-form reading and broadcast television. They weigh video, photographs, and demonstrative exhibits more heavily than oral testimony.34 The eyewitness account, foundational to historical trial practice, is now competing for credibility with whatever video evidence is available, and younger jurors will frequently default to the video over the witness when the two diverge. The Gen Z juror who has spent fifteen years optimizing visual attention for shortform content is poorly served by a thirty-minute opening statement delivered in unbroken paragraphs. The trial lawyer who breaks the same content into shorter rhetorical units, varies pacing, and intersperses visual demonstration with verbal narrative is making contact with the modern juror in a way the traditional orator cannot achieve. Adopting a “teach, don’t tell” narrative will create better rapport with younger jurors because they resent being told what to think by authority figures.35 Members of Generation Z have a structural skepticism toward institutional authority. Gen Z jurors are, on every available measure, the most skeptical American cohort in the history of survey research with respect to government, corporations, religious institutions, and the legal system itself.36 The lawyer who walks into the courtroom expecting deference to credentials is misreading the room. The Gen Z juror does not assume that an attorney is trustworthy because the attorney is licensed. The Gen Z juror assumes the attorney is performing an institutional role and will assess credibility through other channels, including authenticity of voice, transparency about uncertainty, and consistency between the attorney’s stated and implied messages. Strategic communication in the courtroom now requires earning the trust the lawyer used to be granted as a default.
B. Silence and Pacing In a courtroom whose audience expects speed by default, the strategic deployment of silence becomes more powerful, not less. The lawyer who pauses before 34 Joe Dowdy, Effectively Engaging Intergenerational Dynamics and the Law, Wake Cnty. Bar Ass’n (July 17, 2025). 35 Laitinen & Pitera, supra.
Linda Petersen & Alison K. Bennett, Trial Strategy Tips for Generation X, Y and Millennial Jurors, Plaintiff, Jan. 2009. 36
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responding to opposing counsel’s objection, who lets a difficult cross-examination answer hang in the air for two seconds longer than is comfortable, or who delivers a closing argument’s most important sentence and then says nothing for a full beat is using a tool whose force has actually increased as the surrounding rhetorical environment has accelerated. The Gen Z juror who is accustomed to the densely packed visual and verbal stream of contemporary media notices the pause more sharply than the Boomer juror would have. The trial lawyer who sustains a single rhythm for twenty minutes is producing an undifferentiated wall of advocacy that the modern juror will tune out within the first five. The trial lawyer who varies the rhythm, accelerating through technical material, slowing through emotionally consequential testimony, pausing before each major rhetorical pivot, is making contact with the audience the way a skilled musician makes contact with a concert audience. The deeper observation is that silence, properly deployed, is itself a form of communication that no AI tool has yet learned to imitate. The decision to pause requires reading the room in real time. That decision is the human work of the courtroom advocate.
C. Emoji as Evidence The emoji has moved from playground decoration to litigation exhibit. Eric Goldman of Santa Clara University Law School tracks the growing body of case law, with reported decisions involving emoji as substantive evidence roughly doubling in each two-year window since 2018.37 The same emoji means different things to different generations, in different contexts, and across different platforms. A thumbs-up emoji is, in some communities, a polite acknowledgment; in others, a binding contract.38 The lawyer offering emoji evidence must build the contextual record: the relationship between sender and recipient, the platform, the surrounding text, and the generational frame in which the symbol was deployed. The lawyer opposing emoji evidence has a parallel obligation to develop the alternative reading. See Exhibit A, Emoji Interpretation in U.S. Case Law (companion exhibit).
37 Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227 (2018); see also Eric Goldman, Emoji
Law, https://blog.ericgoldman.org/ (last visited May 5, 2026).
38 South West Terminal Ltd. v. Achter Land & Cattle Ltd., 2023 SKKB 116 (Saskatchewan, Can.
2023).
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D. Deepfakes and Authentication Consumer-grade tools can now produce convincing synthetic video in minutes. The Advisory Committee on Evidence Rules has proposed amendments to Rule 901 creating a burden-shifting procedure for evidence challenged as a deepfake, and a new Rule 707 applying expert-witness reliability standards to evidence acknowledged to have been produced by AI.39 In Huang v. Tesla, Tesla refused to admit the authenticity of video showing Elon Musk making public statements about Autopilot’s safety, arguing that Musk’s fame made him a deepfake target. The court reproached Tesla’s refusal, raising the concern that any famous person sued for words publicly spoken on video could refuse to admit the recordings.40 In State v. Rittenhouse, the defense successfully challenged Apple’s pinch-to-zoom function on the ground that AI-driven interpolation could alter the footage.41 The deeper risk is the liar’s dividend: the prospect that the rising salience of deepfakes will allow parties to challenge genuine evidence as fabricated.42 The lawyer whose case rests on video must establish, in opening or early direct, why the jury can trust this video: the chain of custody, the device of origin, the absence of any indicia of manipulation.
VI. THE EXTERNAL LAYER: WHERE THE PROFESSION IS WATCHED The 1985 lawyer worried about the local newspaper and the courthouse rumor mill. The 2026 lawyer is on LinkedIn and TikTok and Substack and YouTube, is searched on ChatGPT and Perplexity before the first phone call is placed, and is one screenshotted misstep away from a regional reputation problem that did not exist on Monday and is in full flower by Friday. Lawyer advertising in Texas is governed by Rules 7.01 through 7.05 of the Texas Disciplinary Rules of Professional Conduct.43 The foundational requirement: a 39 Proposed Fed. R. Evid. 901(c) (2025) (draft); Proposed Fed. R. Evid. 707 (2025) (draft). 40 Sz Hua Huang v. Tesla, Inc., No. 19CV346663 (Cal. Super. Ct., Santa Clara Cnty. 2024). 41 State v. Rittenhouse, No. 2020CF983 (Wis. Cir. Ct., Kenosha Cnty. 2021). 42 Robert Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and
National Security, 107 Calif. L. Rev. 1753, 1785-86 (2019). 43 Tex. Disciplinary R. Prof. Conduct 7.01-7.05.
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communication about a lawyer’s services may not be false or misleading. The platform on which a communication is made does not exempt the communication from the rules.44 The casual quality of social-media posting is a feature of the medium, not a license for the lawyer. Thought leadership, whether through CLE, podcast, Substack, or TikTok, is permissible and increasingly necessary. Texas Opinion 702 holds that a lawyer providing an educational presentation on general legal topics is not, by virtue of the presentation alone, engaged in the practice of law or creating an attorney-client relationship.45 The line the lawyer must watch is the line between educating and soliciting. Trial publicity is governed by Rule 3.07, which prohibits extrajudicial statements with a substantial likelihood of materially prejudicing an adjudicative proceeding. 46 A statement that would have reached one hundred local readers in 1985 reaches one hundred thousand on social media in 2026. The substantial-likelihood analysis must account for that distribution.
VII. WHAT THE LAWYER STILL OWNS AI will replace some of what the lawyer used to do. AI will not replace the lawyer. The technical work is now compressible. That compression is real, and it is permanent. But AI cannot conduct an intake conversation in which a client tells her truth for the first time and then quietly takes it back. AI cannot pause for two seconds in front of a jury and use the pause to tell the jury that the next sentence is the one that matters. AI cannot read a partner’s face well enough to know that the answer the partner just gave the associate is not the answer the partner actually wants the associate to act on. AI cannot deliver bad news to a client in a way that holds the relationship together while the news lands. AI cannot calibrate the angle of a closing argument to a specific juror in the front row whose body language has shifted in the last five minutes. AI cannot stand in front of a courtroom and be the
44 Tex. Comm. on Prof. Ethics, Op. 678 (2018). 45 Tex. Comm. on Prof. Ethics, Op. 702 (2024). 46 Tex. Disciplinary R. Prof. Conduct 3.07; ABA Model R. Prof. Conduct 3.6; see also Gentile v. State
Bar of Nev., 501 U.S. 1030 (1991).
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kind of human presence the proceeding requires for the verdict to feel like justice rather than process. These are not soft skills. The phrase soft skills is itself part of the problem. The skills this article has been describing are hard skills in the most demanding sense of the word. Skills that require sustained training, take years to develop, fail visibly when the practitioner has not done the work, and cannot be acquired by reading about them. The firms that recognize the shift early will keep the right partners and the right associates. The firms that resist will spend the rest of the decade losing both.
VIII. THE LAWYER WHO STAYS In the second-to-last scene of Rostand’s play, Roxane is reading the last letter Cyrano wrote for Christian, fifteen years after Christian has died.47 The light has faded. Cyrano, dying himself, recites the letter from memory in the gathering dark, and Roxane finally understands. The voice was always his. The man on the balcony was the wrong man. The love she gave away she had given to the wrong address, and she gave it because Cyrano never told her, and Cyrano never told her because telling her would have meant giving up the only delivery channel his face would not let him use. Some lawyers are going to be Cyrano: the talented voice behind the polished document, watching the audience fall in love with words the deliverer cannot really claim, hoping the meeting will not come. Some lawyers are going to be Christian: the deliverer who never wrote the letter, hoping the audience never asks. And a few lawyers, the ones this article has been about, are going to be none of those things. They will be the lawyers whose words and whose voice and whose presence are all the same thing. They will deliver what they wrote, in the voice the audience eventually meets, and the meeting will not change anything because the meeting will only confirm what the writing already promised. That is the lawyer who stays. The technology is going to do what the technology does. The audience is going to meet the deliverer. The lawyer who is the same person on both sides of that meeting is the lawyer the next decade is going to belong to. 47 Edmond Rostand, Cyrano de Bergerac act V, sc. v (1897).
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Texas Criminal Defense Lawyers Association
Effective Opening & Closing Arguments
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Effective Opening and Closing Arguments Speaker:
Mark Thiessen
The Thiessen Law Firm 733 E 12th 1/2 St Houston, TX 77008 713.864.9000 phone 713.864.9006 fax mark@thetexastrialattorney.com email http://www.thetexastrialattorney.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Effective Opening and Closing Arguments By: Mark Thiessen
Effective Opening & Closing Arguments
In a criminal trial, the defense attorney’s opening and closing arguments are not merely procedural bookends—they are the narrative anchors of the case. Done well, they frame how jurors interpret evidence, assign credibility, and ultimately apply the law. Drawing from practical trial strategies, an effective defense argument is rooted in storytelling, clarity of law, and emotional resonance without sacrificing credibility. The Defense Mindset: Theme Over Facts Alone A critical insight emphasized in trial advocacy is that trying a case “on the facts” alone is rarely enough. Jurors do not process trials like lawyers; they interpret stories. The defense must therefore present a compelling theory of the case early and reinforce it throughout. Common defense themes include: •
Rush to judgment
•
Misunderstanding or misinterpretation
•
Incomplete or inconsistent evidence
•
“Doesn’t add up” reasoning
This theory should be simple, repeatable, and consistent with the evidence. It becomes the lens through which jurors evaluate everything they hear.
Opening Statement: Planting the Seed Opening statement is not an argument—it is a roadmap. In Texas, defense counsel may choose to give an opening immediately after the State or reserve it until the beginning of the defense case. Either way, its purpose is to introduce the jury to your theory and frame reasonable doubt before evidence begins. 1. Start with a Clear Theme Jurors need something to hold onto. Begin with a concise, memorable idea that reflects your theory: “This case Doesn’t Add Up.” Avoid legal jargon. Speak plainly and directly.
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2. Humanize the Defendant From the outset, the defendant must be more than a name. Without overdoing it, provide context about who they are—job, family, values. Mention the best parts about who they are in opening. This counters the natural tendency to view our client solely through the lens of the allegation. Effective Opening & Closing Arguments
3. Introduce the Three Core Legal Principles Always remind a jury there at three rules in any criminal trial: •
Presumption of Innocence
•
Burden of Proof on the State
•
Beyond a Reasonable Doubt
Explain these in everyday language. For example: “You must presume our client innocent. That presumption stays with him unless the State proves its case beyond a reasonable doubt—which is the highest burden in the land.” 4. Preview Weaknesses in the State’s Case Without arguing, gently signal where the State’s case will fall short: •
Missing evidence
•
Inconsistent testimony
•
Faulty procedures
This primes jurors to notice those issues when they arise. 5. Do Not Overpromise Credibility is everything. Never promise evidence you cannot deliver. Jurors will remember.
The Closing Argument: Delivering the Verdict Narrative Closing argument is where the defense earns the verdict. Unlike opening, this is the time to argue—forcefully, clearly, and persuasively. 1. Return to Your Theme Begin where you started. Reinforce the central idea and show how the evidence confirmed it.
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“At the beginning of this trial, I told you this case Didn’t Add Up. Now, after hearing all the evidence, that’s exactly what we’ve seen.” Consistency builds trust. 2. Anchor Everything in Reasonable Doubt Effective Opening & Closing Arguments
Reasonable Doubt is the “silver bullet” for any criminal case. Get the jury to understand how high that burden is and anything less is a not guilty. Remind them that the verdict does not say Innocent or Guilt, but rather, Not Guilty or Guilty. Your job is to show where it comes from: •
Conflicting evidence
•
Mistakes in investigation
•
Lack of evidence
Remind the jury that reasonable doubt does not require proving innocence. It only requires showing that the State has not met its burden. 3. Retell the Story—Honestly Jurors expect you to address the full picture, including bad facts. Do not ignore weaknesses; confront them directly: “You heard testimony that may sound damaging at first. But when you look closer…” This builds credibility and prevents the prosecution from controlling the narrative. 4. Empower the Jury One of the most powerful techniques is to remind jurors of their role: •
They are the decision-makers.
•
They must follow the law.
•
They are the safeguard against wrongful conviction.
When the facts are against us, we must appeal to jurors’ sense of responsibility and even righteous indignation when appropriate. 5. Use Plain Language to Explain the Law Avoid abstract definitions. Instead, translate legal standards into relatable ideas: “If you find yourself hesitating—if something doesn’t sit right—that’s reasonable doubt.”
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The more natural and intuitive your explanation, the more likely jurors will apply it correctly. 6. Highlight the Stakes Without being melodramatic, remind jurors of the consequences of their decision. A criminal conviction in Texas can have lifelong impacts. The presentation notes that jurors cannot help but consider these ramifications . Effective Opening & Closing Arguments
7. Make a Clear, Direct Ask Do not end vaguely. Tell the jury exactly what you want: “The law requires you to find him not guilty.” Confidence matters.
Practical Techniques for Both Opening and Closing Storytelling Over Argumentation Humans remember stories, not bullet points. Structure your presentation with: •
A beginning (what happened)
•
A middle (what went wrong)
•
An end (why it matters)
Visual and Demonstrative Aids Get ready to use simple visuals—charts, photos, or physical objects—to make abstract ideas tangible. Visuals can be especially effective when explaining concepts like reasonable doubt or investigative gaps. Repetition Without Redundancy Key ideas—your theme, reasonable doubt, and the burden of proof—should be repeated throughout, but with variation in phrasing to keep jurors engaged. Authenticity Jurors are highly attuned to insincerity. Speak conversationally. Avoid theatrics unless they feel natural.
Common Pitfalls to Avoid
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1. Arguing in Opening Statement This can draw objections and reduce credibility. 2. Ignoring Bad Facts The prosecution will highlight them—better that you address them first.
Effective Opening & Closing Arguments
3. Overcomplicating the Law Simplicity wins. 4. Attacking the Prosecutor Personally Focus on the evidence, not personalities. 5. Failing to Tie Evidence to Reasonable Doubt Every point should answer: “Why does this create doubt?”
Conclusion An effective opening and closing argument is not about overwhelming the jury with facts— it is about guiding them to a fair conclusion through a clear, consistent, and credible story. From the first words of the opening to the final plea in closing, the defense must reinforce a simple truth: the State carries the burden, and if there is reasonable doubt, the law demands a verdict of not guilty. When done well, these arguments do more than persuade—they give jurors the confidence to stand by their verdict and the clarity to know they followed the law.
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Speaker:
Crimmigration
Topic: Crimmigration
Jordon Pollock
Dallas County Public Defender’s Office 133 N. Riverfront Blvd., LB2 Dallas, TX 75207 214.653.3579 phone Jordan.Pollock@dallascounty.org email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Crimmigration Paper with 2026 Introduction by Jordan Pollock, Dallas County Public Defender’s Office Many thanks to Kathy Brady (Immigrant Legal Resource Center) and Gabriella McDonald (Texas Appleseed) who edited a previous version of this paper that appeared in the printed version of the Immigration Consequences Manual, now available at www.immigrationconsequencestx.org INTRODUCTION FOR THE CHALLENGES OF 2025 AND 2026 Criminal defense has always been among the most difficult and important areas of practice, and representing noncitizens accused of crimes has always been an even greater challenge given the complexity of the law, but in today’s environment, this work is particularly brave. There has been a concerted effort at the federal level, through executive orders, weaponizing the Department of Justice and defunding key actors, to remove any impediments that exist (legal or otherwise) to target noncitizens. Despite these efforts to intimidate advocates, lawyers have stood up for the rule of law and the rights of noncitizen clients. Crimmigration
Those who practice in Texas have been on the ground as the tides of policy have changed. Texas is home to more ICE detention facilities than any other state. Texas has the highest number of local entities collaborating with ICE under 287(g) programs. Texas has put forward and passed some of the most radical anti-immigration legislation such as S.B.4 (2023) with the sanction of the Fifth Circuit. Representing clients in this environment is not for the faint of heart, but it is more vital than ever. These state law dynamics are only magnified with the changes at the federal level. Thousands of noncitizens have lost their immigration status based on federal policy changes. ICE enforcement has taken to the streets, borrowing tactics from criminal justice enforcement, but refusing to provide many constitutional protections based on the civil nature of the immigration system. Massive firings at the immigration courts and the Board of Immigration Appeals have led to judges being replaced with adjudicators who lack immigration experience and knowledge. The rules regarding immigration appeals, asylum fillings, and other legal processes have been administratively and decisively altered. Provisions of the immigration code rarely used, like third-country removals, have become central enforcement tools for ICE. Finally, the entire immigration bond process has been upended, which has led thousands of noncitizens to seek habeas relief in federal district courts. These developments on the federal level have only heightened the importance of zealous and competent representation by criminal defense counsel for noncitizens clients, many of whom may never speak with a lawyer again as there is no right to court-appointed counsel in immigration proceedings. When we come together for training, we are educating ourselves so that we do not let the tactics of intimidation make us shy away from the work that we are not only authorized but compelled to do. Noncitizens in the criminal legal system are uniquely marginalized, and we as defense attorneys are in a unique position to stand up to government overreach. Thank you for your compassion, your courage, and your tenacity defending those who need it most. May the challenges of today remind us of why we came to defense work. Page 1 of 24 32
HISTORICAL: THE RISE OF CRIMMIGRATION
The criminal justice and immigration systems were fused together with major changes to the immigration code, formally titled The Immigration and Nationality Act, in 1996. Before 1996, immigration judges had broad discretion to balance positive factors against criminal conduct when deciding the fate of a non-citizen in removal proceedings. State court criminal judges could even issue a judicial recommendation against deportation as part of a criminal sentence. After 1996, the immigration code was re-written to include many mandatory bars to immigration relief, creating new grounds of removability for those lawfully present in the United States. Consequently, the criminal case is now the determining factor in whether a non-citizen can remain in the country. In fact, according to Transactional Records Access Clearinghouse (TRAC), 96% of all interior deportations occur as a result of contact with the criminal justice system. The criminal courts are the gateway to the deportation pipeline for non-citizens that reside in the Unites States.
Crimmigration
These sweeping changes to the immigration code affect all immigrants—even immigrants who are lawfully present and have extensive ties to the U.S. Finally, TRAC data from 2023 shows that over 80% of immigrants in removal proceedings in Texas do not have access to counsel. Thus, for many non-citizens, defense counsel is the only attorney they will ever have. Padilla v. Kentucky and its progeny In 2010, the Supreme Court issued Padilla v. Kentucky, a watershed decision, requiring criminal defense counsel to competently advise their clients of the potential immigration consequences of criminal charges or plea bargains. Mr. Padilla, a Vietnam War veteran, had been a Lawful Permanent Resident (LPR) for forty years when he was charged with transporting a large quantity of marijuana. Mr. Padilla pled guilty to drug trafficking after his defense attorney told him he was not at risk for deportation because he was a long-term resident and a war veteran. When Mr. Padilla found out he was subject to what was essentially automatic deportation as an “Aggravated Felon” under the immigration code, he filed for post-conviction relief, alleging ineffective assistance of counsel. The Kentucky Supreme Court held that deportation was a collateral consequence of his criminal plea and thus outside the scope of the Sixth Amendment. Mr. Padilla appealed to the U.S. Supreme Court. The U.S. Supreme Court observed the increasing harshness of changes in immigration laws since 1996 and noted that immigration outcomes are direct consequences of the criminal charge and thus not categorically removed from the ambit of Sixth Amendment. The Court found that immigration consequences were not properly characterized as “collateral” but were instead “intrinsically intertwined” with the penalty. Furthermore, the Court found that constitutionallycompetent counsel would have advised Mr. Padilla that his conviction made him subject to automatic deportation. Page 2 of 24 33
Padilla is also a decision about proportionality. The Court recognized that immigrants are often punished twice for a crime: once by the criminal court, and again via the immigration court, with the latter punishment often being more severe and more important to the defendant. With this in mind, for a non-citizen to receive proportionate and just punishments, immigration status must come into play in the negotiations between the prosecutor and the defense. In fact, the Court references the role of a prosecutor and the defense in trying to fashion “immigration-neutral” pleas, which can result in “better outcomes for both parties.” In the years since Padilla was decided, federal courts have continued to elaborate on defense counsel’s obligations to non-citizen defendants. Violations of Padilla are evaluated under the Strickland test for ineffective assistance of counsel. For a defendant to succeed under Strickland they must show two things: (1) that their lawyer’s performance fell below an "objective standard of reasonableness" and was thus ineffective, and (2) that there was a reasonable probability that, but for counsel's unprofessional errors, a rational defendant would have proceeded differently, i.e., prejudice. There is extensive caselaw on how Padilla violations play out in both steps of this test. Crimmigration
More recently, the Supreme Court addressed the second prong of Strickland within the Padilla context in Lee v. US. In Lee, the Court held that a non-citizen can establish he was prejudiced by taking a plea with negative immigration consequences even though the evidence of his guilt was strong and his likelihood of success at trial was low. The Court found that is rational for an immigrant defendant to decide to go trial in order to have even a small chance of avoiding deportation. Reading Padilla and its progeny together, it is clear that understanding a client’s immigration status and goals, providing specific and detailed immigration advice, and attempting to negotiate an immigration neutral disposition, is the obligation of competent defense counsel. DEFENSE COUNSEL’S OBLIGATIONS UNDER PADILLA The Standard Under Padilla Although the Padilla decision itself does not go into much detail on what a defense attorney must do for each case, reading the decision with its progeny offers insight on the variety of things competent defense counsel should do. Competent counsel should: 1. 2. 3. 4. 5. 6. 7.
Evaluate their client’s immigration status; Advise the noncitizen client whether they will be placed in removal proceedings; Advise whether the client will be eligible for future immigration relief; Advise whether the client will be subject to mandatory detention; Advise whether the client can travel abroad; Advise whether the client can naturalize; and Negotiate with the district attorney to avoid negative outcomes.
Page 3 of 24 34
While not required, there are key advantages to giving the client advice in writing. Because the client is often advised about a myriad of topics before a plea (from discovery rights to appellate rights), the relevant immigration advice can often get lost in the shuffle. Providing advice in writing allows the client to consider their options before their plea and, should they choose, share key information with their family. Additionally, because most indigent non-citizen clients will not have any counsel when they get to immigration court, a written advisal letter allows the client to have some documentation regarding their plea. This advisal letter is particularly essential if counsel has preserved relief and the argument is complex. So how does one comply with this standard of representation of noncitizens? Research
Crimmigration
The Court in Padilla is very clear that defense counsel must do at least a basic level of immigration research to understand the requirements of their client’s immigration status, available forms of immigration relief, immigration consequences of a charged offense, and to identify immigration-neutral alternative dispositions. The Court in Padilla also discusses clear and unclear immigration consequences, noting that advice must be specific if the outcome is clear, but less so if the outcome is unclear. But to even begin to assess if advice is clear or unclear, defense counsel must do initial immigration research or reach out to a competent expert to assist them. Advice Once defense counsel has completed the necessary immigration research (or spoken to an expert), it is important to discuss the options with the client. Counsel may be surprised to know that non-citizen clients often are less concerned about avoiding time in jail or prison and more concerned about the immigration outcome of their case. Explaining the risks and benefits, while understanding the client’s priorities, prepares defense counsel to negotiate with the prosecution. Negotiate The Court in Padilla makes clear that negotiation between the prosecution and defense counsel is essential in order to create proportionate outcomes. Being armed with the immigration research and an understanding of the client’s priorities, defense counsel can hopefully suggest a plea that will protect the client’s immigration options, but also meet the prosecution’s needs. Resolve If an agreement cannot be reached, defense counsel can consider trial or discuss with the client if they wish to plead, understanding the immigration consequences. What is Insufficient Under Padilla
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Given ongoing discussion regarding the standard of representation for a non-citizen client, it is important to know some common ways that counsel may be attempting to comply with Padilla, but unfortunately falling short of the standard, as currently established. General Advice While it is appropriate for the judge to give a generalized judicial admonition, this generalized one size fits all statement falls short of defense counsel’s obligations. Defense counsel’s advice needs to be specific and based on research on the individual client’s particular situation including the client’s immigration status, available forms of immigration relief, and the specific consequences of a particular charge. If, after researching the issue (or speaking to an expert) there is ambiguity in the law, counsel can explain that there is ambiguity, and give advice about general outcomes. However, giving generalized advice right “off the bat” is never appropriate. As a judge once aptly framed this issue: “I know every time I get on a plane that it might crash, but if I’m told specifically it will crash that will lead to a different outcome.” Advice that is Wrong Crimmigration
In an attempt to avoid being found ineffective, defense counsel - or courts - often try to give what they believe is overarching, stern warnings, such as telling all clients they will be deported if convicted. This is a bad practice because there are criminal offenses that clearly do not result in deportation. Giving a client incorrect legal advice is no more acceptable in the Padilla context than it would be in any other. Referring Out Because Padilla places the burden on defense counsel to advise the client about the immigration consequences of a plea, asking the client to contact an immigration attorney to get this same advice is inappropriate. Just as counsel would not require the client to do their own discovery, here too the burden is on defense counsel to give the advice. That being said, a defense counsel untrained in immigration law may indeed contact an immigration attorney/crimmigration expert themselves. Also there is no reason defense counsel should not work with an immigration attorney if the client has already hired one. But it is essential that defense counsel speak themselves with immigration counsel so they can understand the exact advice they need to give the client. Developing a working relationship with a crimmigration expert is the best way for defense counsel to meet their obligations. Relying on Judicial Admonition If defense counsel does not adequately advise their clients of the immigration consequences of the charge and plea, there is nothing a judge can say that will cure this error. Padilla advisals are a Sixth Amendment obligation and cannot be cured by a Fifth Amendment admonition from the judge. Failing to Negotiate for an Immigration Neutral Disposition
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Although there may not be a way to resolve all cases so that they avoid immigration consequences, defense counsel is obligated to at least negotiate with this in mind. Both Padilla and its progeny made clear that negotiation with the prosecution with the goal of creating an immigration neutral plea is required. Once defense counsel understands the priorities of the client, there are a variety of ways that defense counsel may be able to offer plea options that satisfy both the prosecution and the client. That said, if defense counsel and the prosecution cannot come to an agreement, and the client wishes to plead, so long as the client is fully informed of the immigration consequences of that plea, all the requirements of Padilla have been met. Padilla does not require defense counsel to go to trial, only that the client be given the necessary information to make an informed decision. WHAT HAPPENS AFTER THE PLEA OR TRIAL
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With the current surge of immigration enforcement, careful pleading is particularly critical, as many clients will end up before an immigration judge immediately after their criminal case concludes. U.S. Immigration and Customs Enforcement (ICE) detainers, which ask local law enforcement to hold non-citizens until ICE takes custody, are present in the majority of cases for incarcerated undocumented immigrants in Texas. They are also increasingly present for immigrants with lawful status but who have criminal history. Although most clients will have contact with immigration enforcement, there is a great deal of valuable work for a defense attorney to do. Careful pleading can help lawful immigrants avoid being placed in removal proceedings and can preserve relief for undocumented clients. Even in cases where removal seems likely, a good plea deal can leave open the opportunity for the client to return lawfully in the future. Procedurally, after being picked up on an ICE detainer, the non-citizen will go to an ICE office for book-in; ICE will then have the ability to make a custody determination. ICE can set a bond, release the client under an Order of Recognizance (or other non-detention alternative), or they can send them to an ICE detention center, asserting either that the client is bond ineligible or that the bond decision will be left to the immigration judge. Detained clients will have court dates usually within a few weeks. The first immigration court hearing is called a Master hearing, where the immigration charges are read, and the client can request more time to find a lawyer. If the client is found removable, but wishes to seek relief, then a Merits hearing is scheduled and the client has the chance to put forward applications for specific relief with supporting documents. At the Merits hearing, testimony is given and the judge will either issue a verbal ruling or re-set the case to provide a written ruling. There is no right to court-appointed counsel in immigration proceedings, so most immigrants appear pro se. The Florence Project has excellent pro se guides on various forms of relief that are available online: https://firrp.org/resources/prose/. Defense counsel may wish to print some of these resources for their client at the conclusion of the criminal case. If the client is granted relief in immigration court and no appeal is taken, they are released. If they are denied relief, ICE will try and arrange removal except in a few limited exceptions where due to diplomatic reasons, ICE cannot effectuate physical removal. The client and the government both have a right to appeal, and removal is stayed at the first level of appeal only. Page 6 of 24 37
ADVISING NON-CITIZENS: A 3-PIECE PUZZLE Part 1: Gathering Information To advise a non-citizen client, defense counsel will need to do some information gathering before they can even begin to start legal research. There are three key categories of information defense counsel will need from the client: 1. The client’s current and prior immigration statuses; 2. The client’s prior criminal history; and 3. The client’s future immigration goals and options.
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Below is a sample intake sheet that should help counsel obtain the key information they need to do the analysis of possible immigration consequences for a client. Once defense counsel knows what status the client has, and what relief the client may want to seek, then defense counsel can analyze what plea options would protect that status or leave open the possibility of relief. This sheet is also the ideal way to share relevant information with a crimmigration expert who might be consulting on defense counsel’s case.
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EXAMPLE INTAKE FORM (PRINT DOUBLE SIDED WITH NEXT PAGE) o o o o
FILL OUT THE ATTACHED FORM COMPLETELY WITH CLIENT RE-SET CASE IF SEEKING OUTSIDE EXPERT IMMIGRATION ADVICE PRINT OUT THE INFORMATION/INDICTMENT IF YOU ARE WORKING WITH AN OUTSIDE EXPERT: Have your client sign the following statement either in Spanish or English: Formulario de Divulgación para Remisión a Especialista en Inmigración Yo, _______________________________ (nombre del cliente), permito que mi abogado/a solicite la asociación de la _____________ (nombre del experto) en este caso, y entiendo que el privilegio de abogado/a-cliente se extiende para incluir la Especialista en Inmigración, según la Regla de Texas Reglas Disciplinarias de Conducta Profesional 1.01 (A)(1) y la Regla 105. ______________ Fecha
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________________________ Firma del Cliente Disclosure Form for Referral to Immigration Specialist
I, _____________________________ (client name), allow my attorney to seek the association of _____________ (name of expert) in this case, and I understand that the attorney-client privilege is extended to include the Immigration Specialist, as per Rule Texas Disciplinary Rules of Professional Conduct 1.01(A)(1) and Rule 105. ________________________ Signature of Client
______________ Date
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Non-Citizen Client Worksheet/Referral Client Name: ____________________________________ Referring Attorney: ______________________ DOB: ___________ Language: ______________________ Referral Date: ___________________________ Client is: ☐Not in custody ☐In custody Booking #:______________________________ ICE Detainer? ☐Yes ☐No Detainer Copy? ☐Yes ☐No Arresting Officer:________________________ Met with ICE? ☐Yes, on (date) ☐No Reset Date:
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Immigration Status: Place of Birth/ Citizenship (note if more than 1) :_______________ ☐ LPR – Lawful Permanent Resident (greencard) Since when? _____________________ ☐ Refugee or granted asylum status Since when? _____________________ ☐ Entered without documentation Date of entry __________________ Age on entry _____ ☐ Entered with a visa that expired/expires on______________ ☐ Previously deported? If yes, when? _______________ ☐By ICE ☐Saw Immigration Judge Alien/ A number_________________________ U.S./Family Ties: * Other may be Asylee/Refugee or other valid immigration status
SPOUSE: ☐ USC ☐ LPR ☐ Undocumented ☐ Other________
PARTNER: ☐ USC ☐ LPR ☐ Undocumented ☐Other_______ CHILDREN: How many?____ Ages?_______________________ ☐ USC ☐ LPR ☐ Undocumented ☐ Other _________ MOTHER: ☐ USC ☐ LPR ☐ Undocumented ☐Other_______
Contact Info: Name of contact in the U.S.:________________________ Phone:_______________________________________________ Permission to contact? ☐Yes ☐No Current Charge(s): Cause #:__________________________ Court:____________ Offense and level: ____________________________________ Plea offer: __________________________________________ Cause #:__________________________ Court:____________ Offense level: ________________________________________ Plea offer: __________________________________________ Cause #:__________________________ Court:____________ Offense level: ________________________________________ Plea offer: __________________________________________ Complete Criminal History: (ATTACH Information/Indictment, JI55 and include offense, date of conviction and sentence here, even if it appears on FORVUS. Include arrests, Deferred Adjudications, memo agreements or divert programs, juvenile history and any other resolutions) IF NO CRIMINAL HISTORY, INDICATE THAT BY WRITING “NONE”.
FATHER: ☐ USC ☐ LPR ☐ Undocumented ☐ Other_______ # of USC Grandparents? _______ # of USC Siblings? ________ Options for Relief: Currently in H.S.? _____ Diploma? _______ GED? _______ Did your family or an employer ever file a petition for you? _____ If so, when? _______________ Have you ever filed for any immigration relief in past?________ If so, what type of relief?_______________________________ Were you ever a victim of crime and reported it to the police?_____ (Qualifying crimes: incest, assault, DV, false imprisonment, extortion, obstruction of justice, sex abuse or related crimes) Do you fear return to home country/suffered past persecution?____
Defendant’s Goals re: Immigration Consequences ☐ Avoid conviction that triggers deportation ☐ Preserve eligibility to obtain future immigration benefits (e.g. LPR status or citizenship) or keep lawful status & stay in U.S. ☐ Get out of jail ASAP ☐ Immigration consequences, including deportation, are not a priority ☐ Other goals re immigration consequences:
Were you ever a victim of Domestic Violence or Trafficking?_____
____________________________________________
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Part 2: Determining the Potential Immigration Consequences This analysis is rooted in immigration law and it is best for defense counsel to contact a crimmigration expert to confirm defense counsel’s analysis and conclusions. However, included here is a helpful overview of the major areas of immigration law defense counsel should evaluate if they choose to do this analysis themselves. Inadmissibility vs. Deportability The first inquiry asks if the client can be placed in removal proceedings. There are two different standards that are used. Generally, inadmissibility is the standard used to see if undocumented people will be placed in removal, and deportability is the standard used to see if those with valid immigration status (or who entered with valid status) will be placed in removal proceedings. These standards will come up in other places in the immigration code, but they first will be examined at this initial inquiry: will the client be placed in removal proceedings? Non-citizens may be found removable from the United States for criminal violations that fall under both the inadmissibility grounds under INA § 212(a)(2) and the deportability grounds under INA § 237(a)(2). Crimmigration
Criminal Inadmissibility Grounds [INA § 212(a)(2)] Applies when the non-citizen does not have immigration status (e.g., undocumented), is seeking status, or sometimes when a resident is returning from travel abroad. 1. The client has been convicted of, or admits to having committed: a. a Crime Involving Moral Turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime; i. Exception for a single offense if: 1. person was under the age of 18 when the crime was committed, and the crime was committed more than 5 years before the date of an application (Youthful Offender Exception); OR maximum penalty possible for the crime is 1 year, and the person was not sentenced to a term of imprisonment exceeding 6 months (Petty Offense Exception). b. a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act ) 2. Multiple criminal convictions – person is convicted of 2 or more offenses (other than purely political offenses), for which the aggregate sentences of confinement were 5 years or more. 3. Person is or has been an illicit trafficker of any controlled substance or of any listed chemical, under 21 U.S.C. § 802, or is or has been a known aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking of any such controlled or listed substance, or endeavored to do so; (ii) spouse, son, or daughter of person inadmissible under (i), has, within the previous 5 years, obtained any financial or
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4.
5.
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6.
7.
other benefit from the illicit activity of the person, and knew or reasonably should have known that the benefit was the product of such illicit activity. Person (i) came to the United States to engage in prostitution, or has engaged in prostitution within 10 years of the date of application, (ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives (or within such 10-year period) received, the proceeds of prostitution, or (iii) is coming to the United States to engage in any other unlawful commercial vice. Committed a serious criminal offense in the United States, as defined by 8 U.S.C. § 1101(h), for whom immunity from criminal jurisdiction was granted, who as a consequence of the offense and exercise of immunity departed from the United States, and who has not subsequently submitted to the jurisdiction of the federal court with jurisdiction over such offense. Person commits or conspires to commit human trafficking offenses in or outside of the United States, or the person is known or believed to be a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons; (ii) known or believed to be the spouse or child of a person in (i), and has, within the past 5 years, obtained any financial or other benefit from the illicit activity, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity. Person believed to have engaged, is engaging, or seeks to enter the United States to engage, in money laundering (as described in 18 U.S.C. § 1956-1957); (ii) known to be a knowing aider, abettor, assister, conspirator, or colluder with others in a money laundering offense.
Criminal Deportability Grounds [INA § 237(a)(2)] Applies when the non-citizen has or had some sort of immigration status (e.g., lawful permanent resident). This is what ICE has to prove to try and remove someone with immigration status. 1. Convicted of a Crime Involving Moral Turpitude committed within five years after date of admission (10 years if provided lawful permanent resident status), and a sentence of one year or longer may be imposed. 2. Convicted of two or more Crimes Involving Moral Turpitude after admission. 3. Convicted of an Aggravated Felony at any time after admission. 4. Convicted of high speed flight from an immigration checkpoint (18 U.S.C. § 758). 5. Fails to register as a sex offender (18 U.S.C. § 2250). 6. Convicted after admission of violating any federal or state or foreign law relating to a controlled substance (as defined in section 102 of the Controlled Substances Act) a. Exception: a single offense involving possession of marijuana (up to 30 grams) for personal use. 7. Drug abuser or addict at any time after admission. 8. Convicted under any firearm or destructive device law after admission. 9. At any time has been convicted of, or has been convicted of a conspiracy or attempt to violate, any offense relating to espionage (18 U.S.C. Chapter 37), sabotage (18 Page 11 of 24 42
U.S.C. Chapter 105), or treason or sedition (18 U.S.C. Chapter 115) for which a term of imprisonment of 5 or more years may be imposed; threats against the President or expedition against friendly nation (18 U.S.C. § 871, 960); Military Selective Service Act (50 U.S.C. § 3801 et seq.); Trading with the Enemy Act (50 U.S.C. § 4301 et seq); travel of citizens and aliens (8 U.S.C. § 1185, 1328). 10. Convicted of domestic violence, stalking, child abuse, child neglect, or child abandonment any time after admission; person found in violation of the terms of a protective order at any time after admission. 11. Person (i) commits or conspires to commit human trafficking offenses in or outside of the United States, or the person is known or believed to be a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons; (ii) known or believed to be the spouse or child of a person in (i), and has, within the past 5 years, obtained any financial or other benefit from the illicit activity, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity. Non-Criminal Inadmissibility and Deportability Grounds Crimmigration
It is important to understand that the grounds of inadmissibility and deportability are not limited to criminal conduct. There are many more grounds than can be detailed here that could trigger inadmissibility and deportability, from health-relating grounds to terrorism. But there are two non-criminal grounds that are particularly essential to know. 1. Inadmissibility for being present without inspection - Under INA § 212(a)(6), a person can be placed in removal proceedings for being in the United States without having been lawfully admitted, i.e. for having entered illegally (regardless of how long ago that occurred). This means for many undocumented clients, defense counsel can advise that the client can be placed in removal merely for being here without a valid admission to the U.S. 2. Deportability for being present after the expiration of lawful status - Under INA § 237(a)(1) a person can be placed in removal proceedings if they remain in the U.S. after the expiration of their lawful status (and without any other application for status pending). This means for clients who came on a visa that has since expired, defense counsel can advise that the client could be placed in removal just based on their lack of valid immigration status. Eligibility for Relief For many clients, this is where the key advocacy needs to be done. If the client already has an ICE detainer and will be placed in removal, defense counsel needs to focus on trying to preserve some future relief for the client. Again, this inquiry relates to detailed provisions of the immigration code and warrants contacting a crimmigration expert. Below is some basic information on the most common forms of relief. 1. Family-based immigration Page 12 of 24 43
Crimmigration
a. Who can get it? i. Can apply for residence now if they are the spouse, parent of a child over 21, or child under age 21 of a U.S. citizen. ii. Will have to wait to file for residence if they are spouse or child under 21 of a resident, the child over 21 of a citizen or resident, married child of a citizen, or sibling of a citizen. b. What bars this relief? i. If the person is inadmissible 1. Unless subject to the two exceptions (Petty Offense and Youthful Offender) 2. Or unless granted discretionary 212(h) waiver a. 212(h) waives: Crimes of Moral Turpitude; two convictions with aggregate 5 years imposed; Prostitution; First offense of “simple possession of 30 grams or less of marijuana”; unlikely to waive a “violent or dangerous crime.” b. Who can request it? i. Must be spouse, parent, or child of USC or LPR who would suffer extreme hardship; OR ii. Became inadmissible more than 15 years ago and inadmissible only for prostitution; OR iii. Violence Against Women Act -eligible. c. Note that there are other bars to relief regarding prior immigration violations, mental health disorders that pose a risk to people or property, health grounds, etc. 2. Cancellation of Removal for Non-Residents a. Who can get it? i. Persons with 10 years of continuous presence in the U.S.; ii. Whose U.S. citizen or LPR spouse, child or parent would suffer exceptional and extremely unusual hardship b. What bars this relief? i. Lack of good moral character (under INA §101(f)); ii. Conviction for an inadmissible offense; iii. Conviction for a deportable offense. 3. Cancellation of Removal for Lawful Permanent Residents a. Who can get it? i. Continuous residence of 7 years after being “admitted” in any status, e.g., tourist, student, LPR 1. Note time stops counting at commission of a removable offense listed in 212(a)(2). ii. LPR at least 5 years b. What bars this relief? i. Aggravated Felony conviction; ii. Can only be granted once. 4. Asylum, Withholding and relief under the Convention Against Torture Page 13 of 24 44
a. Who can get it? i. Those who fear persecution based on their race, religion, political opinion, national origin or membership in a particular social group. b. What bars this relief? i. Asylum: Aggravated Felony ii. Withholding: Particularly Serious Crime (PSC)
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5. Adjustment of Status for Asylum recipients (Asylees) and Refugees a. Who can get it? i. People are already Asylees or Refugees who have not yet applied to become residents who have been present for at least one year in Asylee/Refugee status. ii. Asylum or refugee status can be terminated for conviction of an Aggravated felony or PSC – but the asylee or refugee can ask as a defense removal to adjust their status to that of a resident before termination. b. What bars this relief? i. Inadmissibility, but there is a good waiver: 1. INA 209(c) discretionary but technically can waive any ground except “reason to believe” drug trafficker. 2. Adjustment could be denied as a matter of discretion if conviction is for a “dangerous or violent” offense. 6. U/T Visas and VAWA a. Who can get it? i. The U visa is for a victim of crime (assault, incest, DV, sexual abuse, etc.) who has, will, or would cooperate in the investigation or prosecution of the crime. Requires law enforcement certification of helpfulness and victimization. Person gets temporary status and can later apply for permanent status. ii. T is for trafficking victims. Need law enforcement sign off. Person gets temporary status and can later apply for permanent status. iii. VAWA: Married to USC/LPR, abused. b. What bars this relief? i. U and T are subject to inadmissibility but there is a very discretionary waiver of all grounds except terrorism and national security. ii. VAWA must show good moral character but can use the 212(h) waiver. 7. Deferred Action for Childhood Arrivals (DACA) a. Who can get it? i. As of February 2018 only renewals permitted, no new filings. b. What bars this relief? i. Any felony; ii. A “significant misdemeanor:” 1. DWI, domestic violence, Sex abuse, Burglary, Unlawful firearm, Drug sales; iii. More than 2 misdemeanors (unless same scheme of misconduct); Page 14 of 24 45
iv. A misdemeanor with sentence of 90 days or more. 8. Temporary Protected Status (TPS) a. What bars relief? i. Inadmissible offenses. ii. Two misdemeanors 1. Class C should not trigger. iii. One felony
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9. Maintaining Current non-immigrant visa status a. Student Visas and Tourist Visas i. What bars relief? 1. Deportable offense; 2. Inadmissible offense that would have barred them from getting visa in the first place. 10. Voluntary Departure a. Who can get it? i. Any person in removal who does not wish to fight their case, but also does not want the additional penalty of a deportation on their record. ii. What bars relief? 1. Pre-hearing Voluntary (i.e. asking before they seek any other relief) a. Aggravated Felony. 2. Post-hearing Voluntary (i.e. they sought other relief and lost) a. Lack of good moral character in past five years; b. Aggravated Felony. 11. Naturalization a. Who can apply? i. 5 years of LPR status (3 in special circumstances); ii. Special Rules for Veterans/Active Duty Military. b. What are the bars? i. Lack of Good Moral Character for five years before filing. ii. Barred for five years if convicted of a: 1. CIMT (unless Petty Offense Exception); 2. 2 + offenses with aggregate 5 years’ incarceration; 3. 2 gambling offenses; 4. Actual confinement to jail for aggregate of 180 days. iii. Conviction of an Aggravated Felony after November 29, 1990 is a permanent bar. c. Danger: If a deportable LPR applies for naturalization, likely to be placed in removal proceedings.
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12. Preserving Ability to Travel a. LPRs returning from abroad after having certain criminal convictions will be evaluated under the grounds of inadmissibility and could be barred from re-entry if they are convicted of (or admit at the border): i. A CIMT that is not subject to Petty Offense; ii. A drug offense (there is no exception for 30 grams of marijuana); iii. Any offenses with an aggregate of 5 years in jail; or iv. Prostitution (generally a pattern). Mandatory Detention Mandatory Detention references when a person is statutorily not able to bond out of ICE custody. A person is subject to mandatory detention for a criminal offense if they are inadmissible or deportable for certain offenses. Statute: INA §236(c)
•
•
•
•
Deportable Two CIMTs Crimmigration
Inadmissible Crime involving Moral Turpitude (CIMT) if no exception Controlled Substance Violations Multiple convictions with aggregate sentence of 5 years Reason to believe a drug or human trafficking Prostitution
CIMT with a sentence of a year or more Controlled Substance (except less than 30 grams of marijuana) Firearms Aggravated Felony
Congress passed the Laken Riley Act in early 2025. The Laken Riley Act expands the above listed bars to for certain undocumented folks who: o Entered without inspection o Or entered with fraudulent documents AND who are arrested/accused/admit the elements of o Theft (including Class C Theft) o Burglary o Assault of a Peace Officer o Assault Serious Bodily Injury There are strong arguments the law is not retroactive, and the first federal district court to hear a habeas challenge on the legality of the “arrest/accused” portion of the statute found it unconstitutional o https://www.aclum.org/app/uploads/drupal/sites/default/files/2025.09.05__dkt_62_-_doe_mem_order.pdf Additionally in 2025, the Board of Immigration Appeals found that people who entered the U.S without authorization are also subject to mandatory detention regardless of criminal history, upending decades of practice and understanding of the case law. o The Fifth Circuit affirmed this ruling in early 2026, despite most federal district courts finding the BIA’s reasoning unpersuasive and granting habeas for many. o The battle for release under habeas in federal court continues as of April 2026, with cases in the Fifth Circuit now focusing on due process issues. Page 16 of 24 47
Part 3: Analyzing Texas Statutes Now that defense counsel knows which immigration grounds are relevant, they can turn to the Texas statute at issue and begin the legal analysis to see if the Texas criminal statute at issue will trigger the immigration grounds specific to the client. For information on the specific immigration consequences of Texas statutes, please visit the Immigration Consequences Manual, now available at www.immigrationconsequencestx.org. This manual is intended solely for use by criminal defense and immigration attorneys and is password protected, so you will need to set up an account and request access to the resource. THE CATEGORICAL APPROACH The categorical approach refers to the analysis utilized to determine if a state offense triggers an immigration result. Under the categorical approach, the court compares the exact state statute of conviction against the generic or federal definition referenced in the immigration code. If they match, the state offense triggers the immigration result. Crimmigration
When comparing the statutes, the court must look at the statute of conviction – NOT the underlying conduct that led to the offense. In other words, the court is looking at the minimum conduct required to trigger conviction under the state statute, not the actual conduct of the client. There is one exception: the court may only look at the client’s actual charging document if the statute is “divisible,” and only to see which sub-section the client was convicted under. How to conduct the categorical approach: a. Identify the generic or federal definition that appears in the removal ground or bar to relief; b. Identify the minimum conduct required to violate the state statute; c. Compare them to see if there is a match, or if there is any way the client could violate the state statute that would not violate the federal definition; d. If there is a match, or all the conduct under the state status would be punishable under the federal definition, then it is a match that triggers the immigration result. e. If there is not a match, it does not trigger the immigration result. What if the statute defines multiple offenses? Determine if the state statutes actually defines multiple offenses, or if they are just means. A statute is only “divisible” if alternative crimes exist within the same statute. This means that existing within one statute are offenses with different elements, not just various means, and at least one of the offenses created by these alternatives is a categorical match to (or comes within) the generic/federal definition. How to distinguish Elements vs. Means
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For it to be an element, there must be jury unanimity between the alternatives to find a client guilty, and the prosecutor must prove each of those elements beyond a reasonable doubt. Different levels of punishment are a clear indicator of separate offenses, as opposed to separate means. If they are separate offenses (i.e., offenses with different elements), do the above analysis based on the subsection at issue in the client’s case. Defense counsel can tell the subsection at issue by looking at the record of conviction. If they are means, compare the least culpable conduct under the whole statute to the federal definition. Realistic Probability of Prosecution
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Finally, it is important for defense counsel to check that the minimum conduct under the state offense they are using as a point of comparison has a realistic probability of actually being charged or pled to in Texas. Meaning defense counsel may need to show that this theory of violating the statute was actually prosecuted in the past. This can be shown with an indictment or judicial confession from another case, the clients own case or from the case law. For a more detailed explanation of the Categorical Approach, please refer to the excellent guide from the Immigrant Legal Resource Center, available at: https://www.ilrc.org/resources/howuse-categorical-approach-now-2021 ADVISE THE CLIENT Once defense counsel has collected the information from the client, determined the key immigration consequences, and researched if the criminal charge triggers those consequences, it is time to discuss options with the client. CONSULTATION WITH AN IMMIGRATION ATTORNEY/CRIMMIGRATION EXPERT Given the complexity of the immigration consequences analysis, it is always best practice to speak with an attorney who has expertise in this area. This area of the law is very complex and there is no substitute to having a trained attorney look at the facts of the case. NEGOTIATING WITH THE PROSECUTOR Once defense counsel has spoken to the client about the risks associated with their charge and their client’s ultimate immigration goals, defense counsel has the information needed to negotiate with the prosecutor. Getting the Prosecutor to Consider Immigration Consequences
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Often prosecutors do not understand their role in the system set up in the Padilla decision. If the prosecutor is resistant to discussing the immigration consequences of the charges, here are a few good arguments for defense counsel to make: It is part of the system Padilla lays out Many prosecutors are unaware that the Padilla decision also addresses the role of the state. In Padilla, the Court encouraged both the defense and the prosecution to consider immigration consequences in the plea bargaining process in order to “reach agreements that better satisfy the interests of both parties” and “to plea bargain creatively . . . in order to craft a conviction and sentence that reduce the likelihood of deportation.” See Padilla at 373. This makes sense, as the entire system outlined in Padilla would not function if the state were unable to consider immigration consequences.
Crimmigration
Often prosecutors will say they have no responsibility when it comes to the immigration consequences because that is a separate proceeding, but remember that if immigration consequences are within the ambit of the Sixth Amendment for defense counsel, they clearly flow directly from the actions of the prosecutor, as well. The Padilla decision itself has several great quotes about the role of the prosecutor that may be worthwhile to print out. Proportionality Additionally, as the Padilla Court noted, considering immigration consequences is an essential way to achieve proportional punishments. Banishment is among the harshest punishments imaginable thus considering the immigration consequences that are triggered by the criminal charge is integral to the prosecutor’s duty to promote proportionate punishments. Knowing the immigration consequence flows directly from the state criminal charge means the prosecutor should be tailoring a punishment appropriate to the offense. Avoiding double punishment When a prosecutor tells defense counsel that they can’t offer a better deal to a non-citizen then they would to a citizen, it is helpful to reframe the issue for the prosecutor. Considering immigration consequences is not asking for a better deal, but rather trying to avoid a double and more serious punishment for the non-citizen. Remind the prosecutor that they will defend the writ If there is any issue with the initial plea, the client may well file a writ, and the prosecutor is the person in Texas who will be tasked with defending the conviction. It is helpful to remind the prosecutor that it is better to get the plea done right the first time. Additionally, Prosecutors are charged with serving the public and are expected to “respect the constitutional and legal rights of . . . clients.” (Standards for Criminal Justice: Prosecution Function Standard 3-1.2 (Am. Bar Ass’n, 4th ed. 2015). Considering immigration consequences is an excellent way to promote the integrity of convictions and also to protect the client’s constitutional rights.
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Serving the community at large As part of the prosecutor’s duties to serve the public, it can be helpful to remind them of the impact on the community if the client is removed. Defense counsel can explain how losing the sole breadwinner of a family or removing the emotional support to a traumatized child has large community impacts. There are many ways to help the prosecutor see that their charter to serve the public is met by considering the immigration consequences. Give them something in writing for their file While making these points verbally to a prosecutor is helpful, it can help to also have something in writing. Since often a prosecutor’s decision is reviewed by other attorneys in their office, giving them a written document about why they should consider these issues may help them feel more comfortable working out a creative plea. Not asking for a dismissal
Crimmigration
Finally, it is important that the prosecutor understand that considering immigration consequences during plea bargaining does not necessarily mean a dismissal. In some instances, during the plea bargaining phase, a noncitizen client may need to take more jail time or plead to a potentially more serious offense if it is better for immigration purposes. Creative Pleading with the Prosecutor The Court in Padilla repeatedly references creative pleading, but does not give a roadmap on how to do that. Creative pleading requires digging back into the initial research defense counsel did about what immigration consequences are at issue. Then counsel figures out if there is a plea option that does not trigger those consequences, but would give the prosecutor some sort of punishment that they seek. Below are a few potential ideas for creative pleading, although there are many more options than those outlined below. Suggest pre-plea diversion if possible Pre-plea diversion programs are probably the best bright line solution for creative pleading so long as the program does not require an admission to the alleged conduct. These programs allow prosecutors to address the root cause of the crime, such as substance use and mental health issues, thus promoting public safety while also minimizing immigration consequences for noncitizens. It is important to review the contract for these programs as any program that requires a plea or admission would not benefit the non-citizen as it would be considered a conviction. Even if there is no formal pre-plea program available, there may be a way to create a similar informal program where the client agrees to do classes, community service, voluntary testing in exchange for a dismissal or a plea to an offense that does not trigger immigration consequences. Even clients in custody may be able to attend classes in the jail in exchange for a dismissal or reduction. Page 20 of 24 51
Pleading to different subsections or creating an ambiguous record Sometimes it is the particular subsection of the offense that is risky for a client and defense counsel can suggest doing a judicial confession to another subsection to protect immigration relief. In some cases, particularly if the client is a lawful permanent resident and it is the government’s burden to prove deportability, creating an ambiguous record could preserve the client’s immigration status. Pleading to a particular offense, sometimes with a larger punishment in exchange for dismissal of other charges If a client is charged with multiple offenses, sometimes it could be advantageous to agree to a longer a sentence on the charge that does not trigger immigration consequences in exchange for a reduction or dismissal on the charges that do have immigration consequences. This is why if defense counsel is only appointed on one of several pending charges, it is not a good practice to resolve that charge alone, since negotiating the charges as a group is likely advantageous. Crimmigration
TALKING TO THE JUDGE The judge also has a unique role to play under Padilla. Because the judge has a Fifth Amendment duty to assure the client enters a knowing and voluntary plea, the judge has an express interest in making sure Padilla is complied with. Additionally, the judge is in a unique position to help ensure the client’s constitutional rights under Padilla are protected. Grant Continuances Defense counsel should not hesitate to ask a judge for a continuance if it is to get qualified immigration advice. If the judge pushes back, this is the moment for defense counsel to remind the judge of their duty to protect the client’s rights and to enter a knowing and voluntary plea, which can only be done once the client is properly informed. Encourage Collaboration Additionally, in the interest in judicial economy, it is advantageous to have the prosecutor and defense work out a plea that does not cause severe immigration consequences, as the case will be less likely to come back on writ. Thus, judges should encourage the collaboration between the prosecutor and defense, with immigration consequences in mind. Not Overstep on Admonition While judges in Texas have a duty to admonish the client on the record under the Texas Criminal Procedures Code that a plea could result in negative immigration consequences, it does not give the judge carte blanche to solicit prejudicial immigration information on the record, nor to offer specific legal advice to a client. The admonition is basically a way for the judge to ensure the plea is knowing and voluntary, but it is not an opportunity for the judge to give legal advice to Page 21 of 24 52
the client. Additionally, because state court records are public, defense counsel should urge the judge not to solicit detailed immigration information on the record. Defense counsel can tell the judge the client has been advised, particularly if it was in writing, without putting that advice or any information about the client’s immigration status into the record. Allocate Funds for Hiring an Crimmigration Expert for Consultation Finally, defense counsel should absolutely push the judge to provide funds to pay for an immigration consultation for indigent clients. Just as the judge would allocate funding for an investigator or other expert, there is no reason defense counsel should not push for similar funding allocations to meet the requirements of Padilla. Glossary Important Note: This glossary exists because there are a variety of terms used in this guide that are unique to the immigration context or mean something entirely different from what the same term(s) mean when used in other legal contexts. Crimmigration
212(h) Waiver: A discretionary waiver of certain inadmissibility grounds. Affirmative Case: When a non-citizen files for immigration relief (ie such as status through a spouse) but is not in removal proceedings. Aggravated Felony: A category of criminal offenses with serious immigration consequences, although these offenses may not even be felonies under the state criminal code. Asylee: A person who has been granted Asylum. Asylum: Humanitarian relief granted in the U.S. to persons fleeing specific types of persecution. Categorical Approach: The method for determining if a state conviction triggers an immigration result. Charging Document: The document filed by the prosecutor with the state court to allege a criminal offense. Controlled Substance Offense: An offense relating to a substance on the Federal list of Controlled Substances. Convictions: Generally in the immigration context, a conviction is any adjudication or admission of guilt with some form of punishment. Crime Involving Moral Turpitude (CIMT): A category of criminal offenses with immigration consequences but no statutory definition in the immigration code. Crime of Domestic Violence, Stalking and Child Abuse: A category of criminal offenses that trigger deportability. Crimmigration Expert: Attorney who specializes in the intersection of immigration law and criminal law. Many Texas counties have such a person working at the public defender or for the managed assigned counsel system, if not myPadilla.com is an excellent resource. Defensive Case: A case heard in immigration court where the non-citizen is defending themselves against the government’s attempt to have them deported. Deferred Action for Childhood Arrivals (DACA): Special temporary relief granted during the Obama administration for non-citizens brought to the U.S. as children who meet certain requirements; the program is currently under litigation.
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Crimmigration
Deportability: Generally the standard used to decide if a person who has or had valid status can be placed in removal proceedings. Divisible: A term to describe if a criminal offense encompasses a variety of separate offenses. Elements: What a jury must find beyond a reasonable doubt to convict some one of a particular offense. Firearms Offense: Any offense in which a firearm is an element of the offense; this is a ground of deportability. ICE Detainer: A request from ICE to local law enforcement to hold a non-citizen for up to 48 hours after the termination of the criminal case (or posting bond) so that ICE can come retrieve the person. Inadmissibility: Generally, the standard used to decide if a person can qualify for many forms of immigration relief, the standard to decide if an undocumented person can be placed in removal proceedings and the standard that certain returning residents are subjected to after travel abroad. LPR: Lawful Permanent Resident or a “green-card” holder, this is not the same as being a U.S. citizen. Mandatory Detention: A group of offenses that require non-citizens to be detained by ICE during the pendency of their removal proceedings. Master Hearing: Preliminary immigration court hearing where the government alleges why the non-citizen can be removed and where the non-citizen responds to the allegations and states their options for relief. Means: A term to describe the various ways a single offense may be violated but which do not need to be found beyond a reasonable doubt by the jury. Merits Hearing: The final immigration court hearing; basically a trial on immigration relief. Naturalization: The process by which a Lawful Permanent Resident applies to become a U.S. citizen. Particularly Serious Crime: A category of crimes that bar Withholding of Removal. Prostitution: A specific ground of inadmissibility in the immigration code. Refugee: A status a person is granted abroad based on specific types of persecution. Sentence: In the immigration context, any period of confinement contemplated by the court even if suspended. Student Visa: A non-immigrant visa granted to a student for a specific period of time/course of study that can be terminated based on criminal violations. Temporary Protected Status (TPS): A temporary status granted to non-citizens from certain designated countries (usually based on natural disaster), which is renewed annually until the designation for that country is terminated (or until the TPS holder no longer meets the qualifications). Tourist Visa: Also known as a B-2 visa, although often granted for 10 years, the visa holder is only permitted to enter the U.S. for a specific period of time on each visit indicated by Border Patrol, usually six months. T Visa: A visa for victims of trafficking who cooperate with law enforcement. U Visa: A visa for victims of a series of enumerated crimes who cooperate with law enforcement. Voluntary Departure: Immigration relief granted by ICE or the Immigration judge to a noncitizen in removal where the non-citizen agrees to depart the U.S. voluntarily and thus avoid the additional penalties associated with a formal deportation order.
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Withholding of Removal: A form of relief which is similar to Asylum but with slightly different requirements.
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Cross-Examination Con Caliente: Turning Up the Heat on the State
Cross Examination Con Caliente
Speaker:
Mark Stevens
Law Office of Mark Stevens 106 S Saint Mary’s St., Ste 430 San Antonio, TX 78205 210.226.1433 phone 210.223.8708 fax mark@markstevenslaw.com email http://www.markstevenslaw.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
57
Cross-Examination Con Caliente: Turning Up The Heat On The State [Respectfully, Your Honor, You Can’t Do That]
39th Annual Rusty Duncan Advanced Criminal Law Course Texas Criminal Defense Lawyers Association
Cross Examination Con Caliente
Hyatt Regency Hotel Riverwalk San Antonio, Texas June 18-20, 2026
Mark Stevens 106 S. St. Mary’s, Ste. 430 San Antonio, TX 78205 mark@markstevenslaw.com 58
TABLE OF CONTENTS Page I.
THE SCOPE OF THIS PAPER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
CONSTITUTIONAL AND STATUTORY PROVISIONS . . . . . . . . . . . . . . . . . . . . . 1
III.
LEGAL ENGINES, CORNERSTONES, AND OTHER WISHFUL THINKING. . . 1
IV.
V.
A.
From the Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B.
From Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
HEARSAY, OR CONFRONTATION? OR BOTH? OR NEITHER, BUT STILL INADMISSIBLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A.
Hearsay and confrontation are similar but not identical . . . . . . . . . . . . . . . . . 4
B.
Constitutionally unreliable evidence is inadmissible. . . . . . . . . . . . . . . . . . . . . 5
C.
Whatever it is, make the correct objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CRAWFORD v. WASHINGTON, AND ITS OFFSPRING . . . . . . . . . . . . . . . . . . . . . . 6
Crawford v. Washington: Unavailability and an opportunity to crossexamine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B.
Davis v. Washington, Hammon v. Indiana, and Michigan v. Bryant: Ongoing emergencies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C.
Melendez-Diaz v. Massachusetts: The Confrontation Clause applies to forensic evidence; but watch out for article 38.41 . . . . . . . . . . . . . . . . . . . . 8
D.
Bullcoming v. New Mexico: Surrogate analysts . . . . . . . . . . . . . . . . . . . . . 9
E.
Smith v. Arizona: For the truth of the matter asserted? . . . . . . . . . . . . . 11
F.
Hemphill v. New York: Opening the door? . . . . . . . . . . . . . . . . . . . . . . . . . 12
G.
Giles v. California: Forfeiture by wrongdoing? . . . . . . . . . . . . . . . . . . 12
Cross Examination Con Caliente
A.
ii
59
1. Wrongdoing cases favorable for the defense (and most are not). . . 12 2. Cases favorable for the prosecution, before and after article 38.49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Cross Examination Con Caliente
H.
VI.
Testimonial or non testimonial? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1.
In general.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.
Testimonial statements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.
Non-testimonial statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.
Are testimonial dying declarations an exception to the general rule? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
I.
Unavailability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
J.
A prior opportunity to cross-examine. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
K.
Harmful or harmless? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
L.
Timely, specific objections are required to preserve error. . . . . . . . . . 23
M.
Crawford is not applicable in certain proceedings. . . . . . . . . . . . . . . . . 23
N.
Crawford’s retroactivity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SEX AND CONFRONTATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 A.
“It is a truism that constitutional protections have costs” . . . . . . . . . . . . . . . 25
B.
“He said, she said” cases “may raise particular evidentiary and constitutional concerns.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
C.
Exposing bias and motive through cross-examination in sexual cases. . . . . . 26
D.
Outcry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
E.
Evidence of previous sexual conduct in criminal cases. . . . . . . . . . . . . . . . . . 30 iii
60
VII.
1.
TEX. R. EVID. 412. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.
Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
F.
Rule 403 “should be used sparingly”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
G.
Other confrontation issues arising in sexual assault cases. . . . . . . . . . . . . . . . 34
BARRIERS TO FACE-TO-FACE CONFRONTATION. . . . . . . . . . . . . . . . . . . . . . 34 A. Coy v. Iowa: Testimony behind a screen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 B. Maryland v. Craig: Testimony by one-way, closed circuit television. . . . . . . . . . 34 C. TEX. CODE CRIM. PROC. art. 38.071. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 D. Testimony by FaceTime.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 E. Masked or disguised witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
VIII. IMPEACHMENT WITH EVIDENCE OF BIAS, MOTIVE, OR PREJUDICE . . 38 A.
Impeachment defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
B.
Bias, motive or prejudice, generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Bias is almost always “relevant” and the field from which it may be inferred is “infinite.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.
Rule 613(b): The predicate for using a statement to impeach. . . . . . . 39
3.
A few Rule 613(b) cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Cross Examination Con Caliente
C.
1.
Bias from pending charges or probationary status. . . . . . . . . . . . . . . . . . . . . 41 1.
Davis v. Alaska. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
2.
Davis’s offspring. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3.
Error under Davis v. Alaska. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.
Davis v. Alaska: Logical or causal connections required. . . . . . . . . . . 46 iv
61
Cross Examination Con Caliente
D.
IX.
5.
No error under Davis v. Alaska. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.
Harmless error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Bias from hostility or violence against accused by witness. . . . . . . . . . . . . . . 48 1.
Law enforcement hostility and violence.. . . . . . . . . . . . . . . . . . . . . . . . 48
2.
Arrest quotas and officer’s pay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
3.
Hostility and violence by non-law enforcement. . . . . . . . . . . . . . . . . . 50
E.
Bias related to civil litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
F.
Racial bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
G.
Bias stemming from membership in gangs or organizations. . . . . . . . . . . . . . 53
H.
Bias by defense witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
I.
Other biases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
J.
Preservation of error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
K.
Harmful or harmless?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
IMPEACHMENT WITH CHARACTER EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . 56 A.
B.
Rule 608(a): Reputation or Opinion Evidence . . . . . . . . . . . . . . . . . . . . . . . . 56 1.
Text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2.
Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
3.
Preservation of error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Rule 608(b): Specific instances of misconduct. . . . . . . . . . . . . . . . . . . . . . . . . 58 1.
Text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
2.
The general rule prohibits the use of specific acts of misconduct to attack character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 v
62
3.
Exceptions to the general rule prohibiting specific acts of misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
C.
To correct a false impression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
X.
IMPEACHMENT WITH EVIDENCE OF CONVICTION OF CRIME . . . . . . . . . 61 A.
B.
C.
E.
1.
What constitutes “moral tupitude” in Texas? . . . . . . . . . . . . . . . . . . . 62
2.
Probative value must outweigh prejudicial effect.. . . . . . . . . . . . . . . . 66
Rule 609(b): Limit on using the evidence after 10 years. . . . . . . . . . . . . . . . . 67 1.
Remoteness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
2.
Rule 609(b) – not the common-law of “tacking – applies when determining the admissibility of remote convictions. . . . . . . . . 68
3.
Proof of conviction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Rule 609(c): Effect of pardon, annulment, or certificate of rehabilitation . . 70 1.
Texas Rule 609(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
2.
Probation completed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
3.
Unadjudicated offenses taken into consideration pursuant to §12.45 of the penal code.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Rule 609(d): Juvenile adjudications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 1.
A change in the law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
2.
When required by the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Rule 609(e): Pendency of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 1.
F.
Cross Examination Con Caliente
D.
Rule 609(a): In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Ineffective assistance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Rule 609(f): Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
vi
63
G.
XI.
Insufficient notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
2.
When is notice timely? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
3.
Motion or request? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
To correct a false impression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 1.
An exception to Rule 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
2.
Bootstrapping not allowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
3.
The door was not opened . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
4.
The door was opened . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
I.
Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
J.
Rule 806: Attacking and supporting the declarant’s credibility. . . . . . . . . . . 80
IMPEACHMENT WITH PRIOR STATEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 81 A.
Cross Examination Con Caliente
1.
B.
Rule 613(a): Examining witnesses concerning prior inconsistent statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 1.
In general. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
2.
Laying the predicate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
3.
Don’t be ineffective when dealing with inconsistent statements. . . . . 85
Rule 613(c): Prior consistent statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 1.
XII.
Rules 613(c) and 801(e)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
IMPEACHMENT WITH EVIDENCE OF MENTAL CONDITION . . . . . . . . . . . . 88 A.
Rule 601(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
B.
Case law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 1.
Trial court erred in not allowing cross-examination tending to reflect on credibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 vii
64
2.
No error preventing cross-examination. . . . . . . . . . . . . . . . . . . . . . . . . 89
3.
Preservation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
XIII. IMPEACHMENT WITH EVIDENCE OF DRUG OR ALCOHOL USE . . . . . . . . 89 A.
Admissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
B.
Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
XIV. IMPEACHMENT ON COLLATERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . 90 A.
General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
B.
The viability of this common law rule after the Rules of Evidence? . . . . . . . 91
C.
Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
D.
Not error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
E.
Where a statement of good conduct goes to the "heart" of the matter . . . . . 93
F.
Exception to the general rule: False impressions. . . . . . . . . . . . . . . . . . . . . . . 93
G.
Contradiction is impermissible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 Cross Examination Con Caliente
XV. IMPEACHING ONE’S OWN WITNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 A.
Rule 607: Who may impeach a witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
B.
Limitations on impeaching one’s own witness. . . . . . . . . . . . . . . . . . . . . . . . . 94
XVI. PLACING THE WITNESS IN HIS PROPER SETTING . . . . . . . . . . . . . . . . . . . . . 95 A.
Residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
B.
Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
XVII. MODE AND ORDER OF INTERROGATION AND PRESENTATION . . . . . . . . 96 A.
Control by the court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 1.
Rule 611(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 viii
65
2.
Cross Examination Con Caliente
B.
Scope of cross-examination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 1.
Rule 611(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
2.
Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
C.
Redirect examination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
D.
Leading questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 1.
Rule 611(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
2.
Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
E.
Recalling witnesses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
F.
Rebuttal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
G.
Pretrial hearings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
H.
1.
Rule 104(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
2.
Rule 104(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
3.
Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
4.
Simmons and Havens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Calling and interrogation of witnesses by the court. . . . . . . . . . . . . . . . . . . . 103 1.
I. XVIII.
XIX.
Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Texas law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Preservation of error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 WRITING USED TO REFRESH A WITNESS’S MEMORY . . . . . . . . . . . . . . 104
A.
Rule 612: Writing used to refresh a witness’s memory. . . . . . . . . . . . . . . . . 104
B.
Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
PRODUCTION OF STATEMENTS OF WITNESSES . . . . . . . . . . . . . . . . . . . . . . 107 ix
66
XX.
A.
Rule 615: Producing a witness’s statement in criminal cases. . . . . . . . . . . . 107
B.
Rule 615 applies to pretrial hearings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
C.
Case law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
CONFRONTATION ISSUES WHEN DEFENDANTS ARE JOINTLY TRIED . 110 A.
Bruton v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
B.
Limiting instructions, naive assumptions, and “unmitigated fiction.” Or not.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
C.
Redaction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
D.
Interlocking confessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
E.
When the co-defendant testifies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
F.
Rebuttal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
G.
Waiver.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
H.
Harmful or harmless?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Cross Examination Con Caliente
XXI. INTERPRETERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 A.
Statutes and rules.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
B.
Case law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
XXII.
CONTROLLING UNRULY DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . . 115 A.
Removal from the courtroom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
B.
Stun belts, and a defendant who was “electrocuted” three times. . . . . . . . . 115
C.
Shackling, before conviction (with the presumption of innocence).. . . . . . . 117
D.
Shackling, after conviction (without the presumption of innocence). . . . . . 118
E.
The noticeable deployment of courtroom security. . . . . . . . . . . . . . . . . . . . 119 x
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I.
THE SCOPE OF THIS PAPER
“Cross-examination is the greatest legal engine ever invented for the discovery of the truth.” That’s what Professor John Henry Wigmore said, anyway. I don’t know if I believe that or not. What I am certain of, though, is that cross-examination is the best tool lawyers have for making adverse witnesses say things that they don’t want to say. And for criminal defense lawyers that tool is essential because, as is often the case, we may not have any witnesses at all to tell our side of the story. And if we can’t get witnesses to say things to support our story, our story doesn’t get told. Call me cynical, but it has been my experience that many of our trial judges do not share the perspective of a Texas criminal defense lawyer. It therefore becomes our duty to educate these judges on the tools essential to our practice, including the law of cross-examination. If we can’t educate these judges, they may prevent us from using this essential tool to bring forth the evidence that we need to win. The purpose of this paper is to provide to Texas criminal defense lawyers all the useful law I know about cross-examination so they can use it to win in court. II.
CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. CONST. amend. VI: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .” The Sixth Amendment's Confrontation Clause is applicable to the States by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965). Cross Examination Con Caliente
TEX. CONST. Art. 1, § 10: “In all criminal prosecutions the accused . . . shall be confronted by the witnesses against him. . . .” TEX. CODE CRIM. PROC. art. 1.05: “In all criminal prosecutions the accused . . . shall be confronted with the witnesses against him. . . ." TEX. CODE CRIM. PROC. art. 1.25: “The defendant, upon a trial, shall be confronted with the witnesses, except in certain cases provided for in this Code where depositions have been taken.” III.
LEGAL ENGINES, CORNERSTONES, AND OTHER WISHFUL THINKING
A.
From the Supreme Court.
1. "The right of cross-examination is more than a desirable rule of trial procedure. It is implicit in the constitutional right of confrontation, and helps assure the ‘accuracy of the truthdetermining process.’" Chambers v. Mississippi, 410 U.S. 284, 295 (1973). 2. "The opportunity for cross-examination, protected by the Confrontation Clause, is critical 1 68
for ensuring the integrity of the fact-finding process." Kentucky v. Stincer, 482 U.S. 730, 736 (1987). 3. "[T]he confrontation guarantee serves not only symbolic goals. The right to confront and to cross-examine witnesses is primarily a functional right that promotes reliability in criminal trial." Lee v. Illinois, 476 U.S. 530, 540 (1986). 4. “‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.’” Davis v. Alaska, 415 U.S. 308, 315–16 (1974)(quoting Wigmore). 5. "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316 (1974). 6. “There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.” Pointer v. Texas, 380 U.W. 400, 405 (1965). 7. Cross-examination is the "greatest legal engine ever invented for the discovery of truth." California v. Green, 399 U.S. 149, 158 (1970).
Cross Examination Con Caliente
8. "Confrontation: (1) insures that the witness will give his statements under oath – thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." California v. Green, 399 U.S. 149, 156 (1970). 9. "This opinion is embellished with references to and quotations from antiquity in part to convey that there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’" Coy v. Iowa, 487 U.S. 1012, 1017 (1988). 10. "The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). 11. "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craig, 497 U.S. 836, 845 (1990).
2 69
12. While the ultimate goal of the Confrontation Clause is to ensure that evidence is reliable, reliability is a procedural, not a substantive, guarantee. The Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.” Crawford v. Washington, 541 U.S. 36, 61 (2004). 13. “One of the bedrock constitutional protections afforded to criminal defendants is the Confrontation Clause of the Sixth Amendment, which states: ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’” Hemphill v. New York, 595 U.S. 140, 150 (2022). 14. “[A]lthough the Confrontation Clause aims to produce fairness by ensuring the reliability of testimony, States may not provide for unconfronted testimony to be used at trial so long as it is reliable. . . . We have rejected an approach to individual liberties that ‘abstracts from the right to its purposes, and then eliminates the right.’ ” Indiana v. Edwards, 554 U.S. 164, 185 (2008). B.
From Texas.
1. “Over one hundred years ago, Dean Wigmore waxed eloquent over the special sanctity of cross-examination in the American system of justice: ‘[C]ross-examination, not trial by jury, is the great and permanent contribution of the Anglo–American system of law to improved methods of trial procedure.’” Coronado v. State, 351 S.W.3d 315, 326 (Tex. Crim. App. 2011).
Cross Examination Con Caliente
2. “[T]he right of confrontation helps to establish a criminal justice system ‘in which the perception as well as the reality of fairness prevails.’” Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996)(quoting Lee v. Illinois, 476 U.S. 530, 540 (1986)). 3. "An unbelievable denial of the existence of a fact can be even more probative as to lack of credibility than an affirmative admission of the fact." Spain v. State, 585 S.W. 2d 705, 710 (Tex. Crim. App. 1979). 4. "Cross-examination is the cornerstone of the criminal trial process and, as such, a defendant must be given wide latitude to explore a witness’ story, to test the witness’ perceptions and memory and to impeach his or her credibility." Gutierrez v. State, 764 S.W. 2d 796, 799 (Tex. Crim. App. 1989); accord Love v. State, 861 S.W. 2d 899, 904 (Tex. Crim. App. 1993). 5. The court of criminal appeals "has often stated and discussed the fact that one of the greatest constitutional rights that an accused person might have is the right to confront and crossexamine the State's witnesses. . . ." Virts v. State, 739 S.W. 2d 25, 29 (Tex. Crim. App. 1987). 6. “[T]here is no general, pandemic-exception to the Confrontation Clause and we agree. The text of the Sixth Amendment is clear that the right of the accused to confront witnesses applies to 3 70
“all” criminal prosecutions. . . . There is no general exception to this right during other global events such as wars and natural disasters. We believe our founders would not so generally dispense with the very rights—which are divine in nature—in which they risked everything to enshrine.” Finley v. State, 707 S.W.3d 320, 331 (Tex. Crim. App. 2024). 7. A defendant's right to cross-examine witnesses is constitutionally based. "The State's right to cross-examine defense witnesses, on the other hand, is not based upon the Sixth Amendment, but rather is required for the accurate determination of guilt or innocence and in order to prevent fraud upon the court. Keller v. State, 662 S.W. 2d 362, 364 (Tex. Crim. App. 1984). 8. “‘[P]robably no one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-examination in exposing falsehood and bringing out the truth in the trial of a criminal case.’” Rodriguez v. State, 926 S.W.2d 379, 380 (Tex. App.–San Antonio 1996, no pet.)(quoting Pointer v. Texas, 380 U.S. 400, 404 (1965). 9. "The Texas Court of Criminal Appeals has clearly directed that the Sixth Amendment must be liberally construed in order that an accused may receive all the protection intended by the Constitution." Chew v. State, 804 S.W. 2d 633, 635 (Tex. App.–San Antonio 1991, pet. ref'd)(emphasis supplied). IV.
HEARSAY, OR CONFRONTATION? OR BOTH? OR NEITHER, BUT STILL INADMISSIBLE.
A.
Hearsay and confrontation are similar but not identical. Cross Examination Con Caliente
1. Although the hearsay rules and the Confrontation Clause generally protect the same values, the two are not identical. "The Confrontation Clause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule." Idaho v. Wright, 497 U.S. 805, 814 (1990). 2. “Hearsay is ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ Hearsay is inadmissible unless expressly authorized by statutes or rules. . . . In addition to the rules generally prohibiting hearsay, in all criminal prosecutions the accused has a right, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, ‘to be confronted with the witnesses against him.’ Even when hearsay is properly admitted against a criminal defendant under evidentiary rules, the evidence implicates the Confrontation Clause of the Sixth Amendment because the defendant is not afforded the opportunity to confront the out-of-court declarant.” Shuffield v. State, 189 S.W.3d 782, 790 (Tex. Crim. App. 2006). 3. “[N]ot all hearsay implicates the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted. On the 4 71
other hand, ex parte examinations might sometimes be admissible under modern hearsay rules, but the Framers certainly would not have condoned them.” Crawford v. Washington, 541 U.S. 36, 51 (2004). 4. The Confrontation Clause might be violated even if evidence is admitted under a recognized hearsay exception. "The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied." California v. Green, 399 U.S. 149, 156 (1970). 5. “Hearsay – an out-of-court statement offered in evidence to prove the truth of the matter asserted – may be admissible under evidentiary rules. But hearsay statements nevertheless must overcome the Confrontation Clause bar, which may be implicated if the defendant is not afforded the opportunity to confront the out-of-court declarant.” Del Carmen Hernandez v. State, 273 S.W.3d 685, 687 (Tex. Crim. App. 2008). 6. “[M]ost questions concerning cross-examination may be resolved by looking to the Texas Rules of Evidence. In those rare situations in which the applicable rule of evidence conflicts with a federal constitutional right, Rule 101(c) requires that the Constitution of the United States controls over the evidentiary rule.” Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). “In sum, several different state evidentiary rules permit the use of prior false accusations when offered to show the witness's bias or motive or for some other relevant, noncharacter purpose. The Confrontation Clause mandate of Davis v. Alaska is not inconsistent with Texas evidence law. Thus, compliance with a rule of evidence will, in most instances, avoid a constitutional question concerning the admissibility of such evidence.” Id. at 566. Cross Examination Con Caliente
7. In Miles v. State, 918 S.W. 2d 511 (Tex. Crim. App. 1996), the court of criminal appeals reversed appellant's conviction because the trial court erroneously admitted evidence as a statement against interest under Rule 803(24). The court recognized that this evidence might also have been violative of appellant's rights under the Confrontation Clause, but found no need to address this issue, in light of its reversal under the rules of evidence. Id. at 519 n.9. B.
Constitutionally unreliable evidence is inadmissible.
Even assuming hearsay is ostensibly admissible under some exception, it may in fact be inadmissible if it lacks an indicia of reliability sufficient to insure the integrity of the fact finding process. Porter v. State, 578 S.W. 2d 742, 746 (Tex. Crim. App. 1979); e.g., Trevino v. State, 815 S.W. 2d 592, 598 (Tex. Crim. App. 1991); Beltran v. State, 728 S.W. 2d 382, 386-87 (Tex. Crim. App. 1987); DeLuna v. State, 711 S.W. 2d 44, 47 (Tex. Crim. App. 1986); ; Cortez v. State, 571 S.W. 2d 308, 312 (Tex. Crim. App. 1978). C.
Whatever it is, make the correct objections. 1. An objection at trial that evidence is hearsay does not preserve for appeal the question of 5
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whether that evidence violates the Confrontation Clause. “The two are neither synonymous nor necessarily coextensive.” Holland v. State, 802 S.W. 2d 696, 698 (Tex. Crim. App. 1991). 2. Counsel’s objection, “it doesn't afford me an opportunity to cross-examine, it doesn't afford my client the opportunity to cross-examine,” preserved appellant’s right to complain on appeal that the trial court erred in admitting the non-testifying co-defendant's custodial statement, made to a police officer during investigation of a crime and incriminating the defendant. Brooks v. State, 132 S.W.3d 702, 705 (Tex. App.–Dallas 2004, pet. ref’d). 3. In Heitman v. State, 815 S.W. 2d 681, 682, 690 (Tex. Crim. App. 1991), the court of criminal appeals announced it was reserving for itself “the power to interpret our own constitution.” If you want to preserve a claim that your defendant’s right to confrontation was offended under the Texas Constitution, you must point out “meaningful distinctions between the confrontation clauses in the Federal and Texas Constitutions which merit . . . extension of broader confrontational capacity under Article I, Section 10 of the Texas Constitution.” Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App. 1997)(the defense failed to point such distinctions out). 4. The general rule that applies in most situations requires a timely, specific objection to preserve error. There are exceptions to the general rule. In Tates v. State, 721 S.W.3d 268 (Tex. Crim. App. 2025), appellant appeared remotely by videoconferencing at his sentencing, and did not object at trial. He appealed and complained that this violated his right to be present, guaranteed by article 33.03 of the Texas Code of Criminal Procedure. The court of criminal appeals agreed. “We conclude that the statutory right to be personally present during the punishment phase of trial is at least a category-two Marin right meaning it must be affirmatively waived and is not subject to forfeiture by failing to object at trial. Id. at 271. Cross Examination Con Caliente
5. Appellant’s complaint on appeal that admission of hearsay evidence in the punishment phase of a capital murder trial violated both the Eighth Amendment's requirement for heightened reliability in capital sentencing as well as his ‘fundamental rights to confrontation and cross-examination,’” was multifarious and did not preserve the confrontation clause issue for appellate review. Green v. State, 713 S.W.3d 865, 883 (Tex. Crim. App. 2025), cert. denied, 2026 WL 490513 (2026). V.
CRAWFORD v. WASHINGTON, AND ITS OFFSPRING
A.
Crawford v. Washington: Unavailability and an opportunity to cross-examine.
1. Crawford was arrested for stabbing Lee. The police gave Miranda warnings to both Crawford and Sylvia, his girlfriend, interrogated them twice after his arrest, and recorded the interrogations. Crawford told the police he thought Lee had a knife, but was not sure. Sylvia told them that she did not see anything in Lee’s hand when he was stabbed. Crawford’s defense at trial was self-defense. Sylvia – due to the spousal privilege, – did not testify, but the State introduced her recorded statement as a statement against penal interest, an exception to the hearsay rule in 6 73
Washington. Crawford countered that, state hearsay law notwithstanding, Sylvia’s statement was inadmissible because it violated his Sixth Amendment right to confront witnesses against him. The Washington Supreme Court agreed with the State, holding that Sylvia’s statement bore “particularized guarantees of trustworthiness. Crawford v. Washington, 541 U.S. 36, 40-41 (2004) After a lengthy historical analysis dating back to Roman law, the United States Supreme Court reversed: Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. Id. at 68. 2. When a defendant objects that evidence is inadmissible under Crawford, the burden shifts to the State, as the proponent, to establish admissibility, either by showing that the evidence does not contain testimonial hearsay statements, or if it does contain testimonial hearsay, that the evidence is nevertheless admissible under Crawford. De La Paz v. State, 273 S.W.3d 671, 680–81 (Tex. Crim. App. 2008)(State failed to carry its burden regarding notes of nurses and social workers concerning alleged sexual abuse of a child). B.
Davis v. Washington, Hammon v. Indiana, and Michigan v. Bryant: Ongoing emergencies.
Cross Examination Con Caliente
1. “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822, 827-28 (2006)(complainant’s frantic 911 call to the police in an apparently unsafe place was non-testimonial where it was not designed primarily to establish a past fact, but instead “to describe current circumstances requiring police assistance”). The Court further noted that a non-testimonial statement could “evolve” into a testimonial statement once the emergency ended, in which case, the testimonial statements could be redacted in limine. Id. at 828-29. 2. Statements “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution” Hammon v. Indiana, 547 U.S. 813, 822. (2006)(complainant’s statement was made to the police investigating possible past criminal behavior, with no emergency in progress, while separated from the defendant and deliberately recounted in response to questions). 3. Where a wounded victim’s identification and description of his assailant and the location 7 74
of the attack were primarily to enable police assistance in an ongoing emergency, those statements were non-testimonial, and their admission did not violate the Confrontation Clause. Michigan v. Bryant, 562 U.S. 344, 349 (2011). The Court noted that there was an ongoing emergency here, but unlike in Davis and Hammon, the potential danger was to the public and the police, and not to a single domestic violence victim. Also, the emergency here involved a gun, which means the emergency could last longer than the violent act itself. The questions the police asked were the exact sort of questions they needed to answer to assess the situation, the danger to the victim, the public, and to themselves. In other words, they were gathering information to deal with an ongoing emergency. Nothing they heard suggested the emergency had ended. And the statements made were more like they harried 911 call in Davis than the statement at the police station in Crawford. Id. at 374-77. 4. The court held that the unavailable complainant’s initial identification of appellant as the person who had assaulted her was nontestimonial, since he was present and not yet secured in the patrol car and the emergency was ongoing. Then the officer arrested appellant and put him in his car. The detailed interview that occurred after that time was testimonial and inadmissible under Crawford. Vinson v. State, 252 S.W.3d 336, 341 (Tex. Crim. App. 2008). Although the appellate courts will typically defer to the trial court’s findings of historical facts, when those findings cannot possibly be derived from the evidence, the court must “keenly review the issue.” Id. See also Mason v. State, 225 S.W.3d 902, 911 (Tex. App.–Dallas 2007, pet. ref’d)(no emergency in progress when officer, who repeatedly referred to this as an “investigation,” arrived, and observed no signs of a struggle or disturbance). C.
Melendez-Diaz v. Massachusetts: The Confrontation Clause applies to forensic evidence; but watch out for article 38.41. Cross Examination Con Caliente
1. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the State introduced certificates of analysis identifying the substance – cocaine – and its weight. “This case involves little more than the application of our holding in Crawford v. Washington . . . . The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez–Diaz was error.” Id. at 329. Justice Scalia – not a generally reliable ally of the defense (to say the least) – was as powerful a supporter of the Confrontation Clause as we are likely ever to see. He made some useful points in this case, rejecting a number of the State’s arguments along the way, including that these certificates were admissible as business records. “The analysts' certificates—like police reports generated by law enforcement officials—do not qualify as business or public records for precisely the same reason”, namely that they were “calculated for use essentially in the court, not in the business.” Id. at 321-22. Nor did the Court agree that there was no confrontation problem because the defense could have subpoenaed the witnesses. “[T]he Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.” Id. at 324–25. Nor was the Court moved by the State’s burdensome claim. “The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against 8 75
self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.” Id. 2. Could Gorsuch be the next Scalia? Maybe not, but he did write this in a dissent: To protect against the “mischief and mistake” discussed in Melendez-Diaz, and Bullcoming, “and the risk of false convictions they invite, our criminal justice system depends on adversarial testing and cross-examination. Because cross-examination may be ‘the greatest legal engine ever invented for the discovery of truth,’ the Constitution promises every person accused of a crime the right to confront his accusers.” Stuart v. Alabama, 586 U.S. 1026, 1027 (2018)(Gorsuch, J., dissenting from denial of certiorari, joined by Sotomayor, J.)(citation omitted). 3. In Texas, certificates of analysis are provided for by TEX. CODE CRIM. PROC. art. 38.41. Melendez-Diaz cited this statute, and statutes like it in other states, as examples of proper “notice and demand” laws, and noted that these statutes do not impermissibly shift any burdens. “The defendant always has the burden of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections.” Melendez-Diaz v. Massachusetts, 557 U.S. at 326-27 (emphasis in original).
Cross Examination Con Caliente
4. A certificate that complies with the requirements of article 38.41 is admissible in evidence “to establish the results of a laboratory analysis of physical evidence conducted by or for a law enforcement agency without the necessity of the analyst personally appearing in court.” The party seeking to rely on the certificate must file it with the clerk of the court, with a copy to the opposing party not later than the 20th day before the trial begins. The certificate is not admissible if, not later than the 10th day before trial begins, the opposing party files a written objection to the use of the certificate in a proceeding in which a certificate of analysis under this article is to be introduced, the certificate must be filed with the clerk of the court and a copy must be provided by fax, secure electronic mail, hand delivery, or certified mail, return receipt requested, to the opposing party. 5. In Williams v. State, 585 S.W.3d 478, 483 (Tex. Crim. App. 2019), a laboratory in Pennsylvania identified a number of mind-altering substances in the defendant’s system and the State introduced a certificate of analysis without calling the out-of-state analyst. The court of criminal appeals affirmed Williams conviction and his 60-year sentences, finding that the State timely filed the certificates, that they substantially complied with article 38.41, and that Williams forfeited his confrontation rights by not timely objecting. The court noted that defendants can always defeat the admission of a certificate by complying with the statute. “If he acts within this time frame, there is no need for him to explain to the trial judge how or why he thinks the certificate fails to comply with Article 38.41; his constitutional right of confrontation simply trumps the statute. But if he tries to act outside this time frame, all bets are off.” Id. at 487. D.
Bullcoming v. New Mexico: Surrogate analysts.
1. Bullcoming’s blood was tested and a certificate of analysis was generated that showed, among other things, that he was over the legal limit. The court admitted the report which was 9 76
sponsored by someone qualified with respect to the type of analysis and familiar with the laboratory practices, but not by the analyst who did the analysis. The State did not assert that the testing analyst was unavailable, and there was no opportunity to cross-examine this. Bullcoming v. New Mexico, 564 U.S. 647, 659 (2011). The Court rejected the State’s arguments that the surrogate analyst was a mere scrivener who just transcribed the results of the machine, and that the certificate of analysis was not testimonial. The certificate did more than just report a number; it contained representations of past events and human actions that were “meet for cross-examination.” Id. at 660. “[T]he Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination.” Id. at 662 (emphasis supplied). Melendez-Diaz dispatched the State’s non-testimonial position, and the fact that the certificate was sworn in Bullcoming and not in Melendez-Diaz “does not remove [the] certification from Confrontation Clause governance.” Id. at 665. 2. “This case is controlled by Bullcoming.” There is no indication that the testifying supervisor had personal knowledge that the tests were done correctly or that the tester did not fabricate the results. Cross-examining this supervisor did not satisfy the Confrontation Clause since she could only say that the original analyst (who did not testify) claimed he conformed with the required safeguards. And, as in Bullcoming, the non-testifying analyst’s report was introduced into evidence. Burch v. State, 401 S.W.3d 634, 637 (Tex. Crim. App. 2013)
Cross Examination Con Caliente
3. The court distinguished Burch in Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015), and held that under these facts, there was no confrontation violation. In Paredes, the testifying supervisor did not introduce or testify from a report or assertion from the non-testifying analyst. “Instead, she used non-testimonial information—computer-generated DNA data—to form an independent, testimonial opinion and appellant was given the opportunity to cross-examine her about her analysis.” Id. at 519. 4. Where the testifying witness was not a mere surrogate for the non-testifying analyst, but rather conducted an independent analysis, where the report was not testimonial and was not introduced into evidence or used in front of the jury, where there was an important control, namely that no report would have been generated had there been an error processing evidence, there was no Confrontation Clause error. “[T]his case is more like Paredes than Burch.” Molina v. State, 632 S.W.3d 539, 547 (Tex. Crim. App. 2021). 5. The court of appeals declined to extend Bullcoming to a person who performs only a blood draw and has no other involvement in the analysis or testing of a blood sample. State v. Guzman, 439 S.W.3d 482, 488 (Tex. App.–San Antonio 2014, no pet.)(witness was not involved in the analysis of the sample, did not perform any test, and did not provide any statement appearing within or accompanying the test results; and the toxicologist who did the analysis will be available for crossexamination).
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E.
Smith v. Arizona: For the truth of the matter asserted?
1. The Confrontation Clause “‘applies only to testimonial hearsay’—and in that two-word phrase are two limits. First, in speaking about ‘witnesses’—or ‘those who bear testimony’—the Clause confines itself to ‘testimonial statements,’ a category whose contours we have variously described. . . . Second and more relevant here, the Clause bars only the introduction of hearsay—meaning, out-of-court statements offered ‘to prove the truth of the matter asserted.’ When a statement is admitted for a reason unrelated to its truth, we have held, the Clause's ‘role in protecting the right of cross-examination’ is not implicated. That is because the need to test an absent witness ebbs when her truthfulness is not at issue.” Smith v. Arizona, 602 U.S. 779, 784–85 (2024)(citations omitted). In Smith, an analyst named Rast did all the analysis work, but the State called Longoni who reviewed Rast’s work and came up with his own “independent opinion which agreed with Rast’s, namely that the substance in question was marijuana, methamphetamine, and canabis. In fact, although Longoni was familiar with the lab’s general practices, he had no personal knowledge about Rast’s testing of the items. The Arizona courts affirmed the conviction, holding that Longoni had only used Rast’s work as a basis for his own conclusion. Therefore, according to the lower courts, Rast’s work was not offered for the truth of the matter asserted, so it was not hearsay, and the Confrontation Clause, which is concerned only with “testimonial hearsay,” was not implicated.
Cross Examination Con Caliente
The Supreme Court reversed. The question was whether Rast’s statements came in for the truth of the matter asserted. Interpretations of the Confrontation Clause “are ultimately matters of federal constitutional law that are not dictated by state or federal evidentiary rules.” So, the Court conducted its “own independent analysis of whether an out-of-court statement was admitted for its truth, and therefore may have compromised a defendant's right of confrontation.” Id. at 794. “[T]ruth is everything when it comes to the kind of basis testimony presented here. If an expert for the prosecution conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts.” Id. at 795. Smith decided the “hearsay” issue, but did not decide if Rast’s statements were “testimonial.” That question was not before the Court, and so it was returned to Arizona for that determination. Id. at 801. 2. A detective was entitled under Rule 703 of the Texas Rules of Evidence to base his opinion that “to pull a Carlos” meant to do a shooting on knowledge gained from what a confidential informant and two law enforcement officers told him under Rule 703 of the Texas Rules of Evidence. Because he did not testify as to the hearsay basis of his opinion, there was no confrontation problem, since he, the detective, was the person “bearing witness,” and he was subject to cross-examination. Allison v. State, 666 S.W.3d 750, 763 (Tex. Crim. App.), cert. denied, 144 S. Ct. 245 (2023)(and, if there was error, it was harmless). 3. A custodial statement of a co-accused “clearly falls within the ambit of the Crawford decision.” The statement was admissible, though, because it was not hearsay, offered for the truth of the matter asserted, but was instead rebuttal evidence offered for the non-hearsay purpose of 11 78
impeaching credibility. Del Carmen Hernandez v. State, 273 S.W.3d 685 (Tex. Crim. App. 2008). F.
Hemphill v. New York: Opening the door?
In Hemphill v. New York, 595 U.S. 140 (2022), the trial court admitted a portion of a codefendant’s plea allocution after determining that Hemphill had created a misleading impression when he claimed that the co-defendant, not he, had committed the murder in question. “For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill's theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State's proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge's role to decide that this evidence was reasonably necessary to correct that misleading impression. Such inquiries are antithetical to the Confrontation Clause.” Id. at 153. G.
Giles v. California: Forfeiture by wrongdoing?
“[T]wo forms of testimonial hearsay statements may be admitted even though the defendant has no opportunity to confront the declarant: declarations made by a declarant who was facing imminent death and was aware he was dying,1 and declarations made by a declarant whose unavailability the defendant procured. The latter exception to the exclusionary effect of the Confrontation Clause is referred to as the doctrine of forfeiture by wrongdoing.” Shepherd v. State, 489 S.W.3d 559, 573 (Tex. App.–Texarkana 2016, pet. ref’d)(citations omitted). 1. Wrongdoing cases favorable for the defense (and most are not).
Cross Examination Con Caliente
a. In Giles v. California, 554 U.S. 353 (2008), the Court reversed a state court decision that admitted a testimonial statement from the person the defendant allegedly murdered, pursuant to the doctrine of forfeiture by wrong doing. At the time of founding, this doctrine only applied when the criminal act was designed to prevent the witness from testifying. “ We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter.” Id. at 377. A dissenting opinion in Giles discussed a rationale for the California view, to protect victims of domestic violence. The majority declared itself “puzzled” by the suggestion that, according to the majority, advocated for one Confrontation Clause for most crimes, but “a special, improvised, Confrontation Clause for” domestic violence. “Domestic violence is an intolerable offense that legislatures may choose to combat through many means—from increasing criminal penalties to adding resources for investigation and prosecution to funding awareness and prevention campaigns. But for that serious crime, as for others, abridging the constitutional rights of criminal defendants is not in the State's arsenal. Id. at 376. 1
“Under Rule 804(b)(2) of the Texas Rules of Evidence, a dying declaration is a “statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.” This exception to the hearsay rule has been accepted under common-law tradition since before the drafting of the American Constitution.” Gardner v. State, 306 S.W.3d 274, 289 (Tex. Crim. App. 2009).
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b. Proof is required and speculation will not do. “At some point, Appellant just living his life with the victim is simply not enough, either because such conduct cannot reasonably be considered ‘wrongdoing’ or because any connection between such conduct and the alleged victim's refusal to cooperate is too indirect or attenuated to satisfy the causation requirement. And this is not changed by the fact that the charges against Appellant were for family-violence assault, or by the fact that he had previously been convicted of the same offense. Even when those facts are added to Appellant and [the witness] living together, and to Appellant's deception regarding the victim's whereabouts, any conclusion that Appellant improperly influenced [the witness] to not show up for court remains speculative.” Brown v. State, 618 S.W.3d 352, 358–59 (Tex. Crim. App. 2021). c. Article 38.49 of the Texas Code of Criminal Procedure codifies the common law doctrine of forfeiture by wrongdoing. Most of the cases decided under article 38.49 go against the defendant. Gutierrez v. State, 2024 WL 4030712 (Tex. App.–San Antonio 2024, pet. ref’d)(not designated for publication), is a rare exception. There the court set out the State’s burden when relying on this Confrontation Clause exception. Under article 38.49, the trial court shall determine, in a hearing outside the jury’s presence whether forfeiture by wrongdoing occurred by a preponderance of the evidence. If so, the State must prove that: (1) the declarant-witness is unavailable; (2) the defendant engaged in wrongful conduct; (3) the wrongful conduct procured the unavailability of the witness; and (4) the defendant intended to procure the unavailability of the witness. Cross Examination Con Caliente
Id. at *4. d. In Gutierrez, the State failed to prove unavailability, and there were two problems with the trial court’s contrary conclusion. First, proof of unavailability requires a good faith effort to secure the witness’s presence, and the State did not employ those means here. Second, “the trial court could not have made a determination that Ruiz was unavailable for a trial that had not occurred, and was not scheduled, when the State knew where to locate her and had means to compel her appearance. Because the trial court could not have possibly known whether Ruiz would be unavailable for a trial that never commenced—or a future trial date that was never set—its unavailability conclusion is outside the zone of reasonable disagreement.” Id. at *6. The conviction was reversed because the court could not conclude that this constitutional error was harmless. e. Absent evidence that appellant killed the witness “specifically to prevent her from testifying, we cannot hold that” he forfeited his right to confront her. Davis v. State, 268 S.W.3d 683, 706 (Tex. App.–Fort Worth 2008, pet. ref’d)(harmless error, though). f. Although one theory was that appellant killed the complainant to keep her from 13 80
testifying at his parole hearing, “the evidence was also presented that the trouble between appellant and [the witness] was just as likely tied to appellant's obsession with [the witness] after she decided to terminate their relationship. Accordingly, we do not find the application of the forfeiture of appellant's rights to confrontation because of his conduct to be applicable in this case.” Bibbs v. State, 371 S.W.3d 564, 570 (Tex. App.–Amarillo 2012, pet. ref’d), cert. denied, 569 U.S. 969 (2013)(harmless error, though). g. While there is evidence of harassment, “there is no evidence that he ever broached the subject of her testifying against him or that his actions were linked to the assault. Therefore, it cannot be said that his actions were designed to prevent [the complainant’s] testimony.” Khan v. State, 2024 WL 3458073, at *3 (Tex. App.–Fort Worth 2024, no pet.)(not designated for publication). 2. Cases favorable for the prosecution, before and after article 38.49. a. Article 38.49 “applies only to offenses committed on or after September 1, 2013.” Colone v. State, 573 S.W.3d 249, 265 (Tex. Crim. App. 2019). b. Before she died, Ms. Herrera implicated appellant, and her statement doing so was admitted as an excited utterance at appellant’s trial for capital murder. Four years before Giles was decided, the San Antonio Court of Appeals held that, when a defendant benefits from his wrongful act rendering a witness unavailable for trial, the State need not prove “the defendant specifically intended to prevent the witness from testifying at the time he committed the act that rendered the witness unavailable.” Gonzalez v. State, 155 S.W.3d 603, 611 (Tex. App.–San Antonio 2004), aff'd, 195 S.W.3d 114 (Tex. Crim. App. 2006). Cross Examination Con Caliente
c. The court of criminal appeals granted Gonzalez’s petition for discretionary review and, four days before Giles was decided, the court of criminal appeals affirmed the conviction, finding that the evidence strongly suggests that the procurement of the victim’s absence “was motivated, at least in part, by appellant's desire to permanently silence her and prevent her from identifying him.” Gonzalez v. State, 195 S.W.3d 114, 126 (Tex. Crim. App.), cert. denied, 549 U.S. 1024 (2006); accord Colone v. State, 573 S.W.3d 249, 264 (Tex. Crim. App. 2019)(rational trier of fact could conclude that Appellant's killing of the victim was motivated, at least in part, by a desire to permanently silence her in order to prevent her from testifying at a future aggravated robbery trial where the victim was killed two days after the indictment and appellant was heard accusing the victim of telling on him). d. “The State is not required to show that the defendant's sole intent was wrongfully to cause the witness's unavailability, that the defendant's actions constituted a criminal offense, or that any offered statements are reliable.” Mohsin v. State, 691 S.W.3d 193, 201 (Tex. App.–Austin 2024, pet. ref’d)(affirming the order granting the State’s motion for forfeiture by wrongdoing, finding that the trial court had not abused its discretion in holding that the witness was unavailable even though no writ of attachment was sought; that appellant engaged in wrongful conduct even though he did not threaten physical harm or directly prevent the State from learning her whereabouts; and that 14 81
appellant’s multiple acts of misconduct cause the unavailability). e. See also Rivera v. State, 708 S.W.3d 732, 740 (Tex. App.–San Antonio 2024, pet. ref’d)(trial court did not abuse its discretion based on content of numerous phone calls from appellant to complaint from which it was clear that he begged the State’s “star witness” not to testify and used intimidation); Shepherd v. State, 489 S.W.3d 559, 575 (Tex. App.–Texarkana 2016, pet. ref’d)(trial court did not abuse its discretion in finding forfeiture where killing “was motivated (at least partially) by his desire to prevent her from testifying against him”); Sohail v. State, 264 S.W.3d 251, 260 (Tex. App.–Houston [1st Dist.] 2008, pet. ref’d)(“record supports the trial court's implied determination that appellant's intimidation caused complaint to refuse to testify at the trial” not her fear of prosecution for perjury). f. “[T]he common-law doctrine of forfeiture by wrongdoing, as a doctrine of estoppel, trumps the hearsay rule even in the absence of a statute or another rule so providing.” Colone v. State, 573 S.W.3d 249, 265 (Tex. Crim. App. 2019). H.
Testimonial or non testimonial?
“[O]nly testimonial statements are excluded by the Confrontation Clause.” Giles v. California, 554 U.S. 353, 376 (2008). 1. In general.
Cross Examination Con Caliente
a. Crawford left “for another day any effort to” comprehensively define “testimonial.” “Regardless of the precise articulation, some statements qualify under any definition—for example, ex parte testimony at a preliminary hearing. . . . Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Crawford v. Washington, 541 U.S. at 51-52, 68 (citations omitted). b. Whether a particular out-of-court statement is testimonial or not is a question of law to be reviewed de novo on appeal. “In making that judgment, we look to determine whether ‘the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’” Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010)(statement of confidential informant to detective that was used to obtain a search warrant was testimonial). c. “The primary focus in determining whether a hearsay statement is “testimonial” is upon the objective purpose of the interview or interrogation, not upon the declarant's expectations.” De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). 2. Testimonial statements. a. A hearsay statement that is “the result of police interrogation,” is testimonial. 15 82
Shuffield v. State, 189 S.W.3d 782, 791 (Tex. Crim. App. 2006). b. A co-defendant’s “formal, Mirandized confession to authorities, which the Government sought to introduce at trial, is testimonial.” Samia v. United States, 599 U.S. 635, 643 (2023). “[A] custodial interrogation of a co-accused. . . . clearly falls within the ambit of the Crawford decision.” Del Carmen Hernandez v. State, 273 S.W.3d 685, 688 (Tex. Crim. App. 2008); Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007)(statements by the defendant’s accomplice during a police interrogation); see also Hale v. State, 139 S.W.3d 418, 421–22 (Tex. App.–Fort Worth 2004, no pet.)(trial court erred in admitting testimonial statement made by accomplice, and the error was not harmless beyond a reasonable doubt). c. Complainant’s statement made to the police investigating possible past criminal behavior, with no emergency in progress, while separated from the defendant and deliberately recounted in response to questions was testimonial. Hammon v. Indiana, 547 U.S. 813, 822. (2006). d. Statements are testimonial and inadmissible under Crawford if there is no objective indication of an ongoing emergency. After the complainant identified appellant as her assailant, the officer placed appellant in his patrol car, returned to the house and interviewed the complainant about the details of the assault. “Because the appellant was not present during the recounting of the assault, and no other Davis factors indicate that an emergency situation was still in progress, [the complainant’s] statements to [the officer] concerning the details of the assault were testimonial in nature and thus inadmissible under Crawford.” Vinson v. State, 252 S.W.3d 336, 341 (Tex. Crim. App. 2008).
Cross Examination Con Caliente
e. In Wall v. State,184 S.W.3d 730 (Tex. Crim. App. 2006), the trial court admitted the testimony of an officer who interviewed the assault victim at the hospital as an excited utterance,” and the court of criminal appeals held that a case-by-case approach is necessary to determine whether an excited utterance is testimonial evidence as contemplated by Crawford. The court concluded that, under the circumstances a reasonable person in the witness’s shoes “would have either retained or regained the capacity to make a testimonial statement at the time of the utterance, and that a reasonable person would have appreciated the fact that the officers were conducting a criminal investigation and collecting evidence for a prospective prosecution.” That the witness’s statement also qualifies as an excited utterance exception under the Texas hearsay rule does not alter its testimonial nature. Because the witness was not available to testify at trial, and appellant had no prior opportunity for cross-examination, the trial court erred in admitting his statement. Id. at 745. f. A statement made in response to a police officer’s questioning was testimonial, considering the formal nature of the interaction, the intent of the declarant, and especially, that the declarant had been warned of her Miranda rights. Moore v. State, 169 S.W.3d 467, 474 (Tex. App.–Texarkana 2005, pet. ref’d). g. Mason v. State, 225 S.W.3d 902, 911 (Tex. App.–Dallas 2007, pet. ref’d)(no emergency in progress when officer, who repeatedly referred to this as an “investigation,” arrived, 16 83
and observed no signs of a struggle or disturbance). h. Both the 911 call and the complainant’s statements to the officer “were focused on what had occurred in the past without any expressed concern or discussion of an ongoing emergency.” The complainant declined medical attention on the 911 call and when EMS arrived at the scene. The complainant focused on details that were not immediately necessary, which weighs against a finding that she was experience an ongoing emergency. The complainant’s written statement was consistent with what she had initially told the officer, indicating the complainant was concerned with the details, and not an ongoing emergency. And appellant drove away from the scene, and no one expressed concern that he would return; when he did return, he parked behind the patrol car, and voluntarily approached the officer. Gutierrez v. State, 516 S.W.3d 593, 598-99 (Tex. App.–Houston [1st Dist.] 2017, pet. ref’d). i. In Samarron v. State, 150 S.W. 3d 701, 707 (Tex. App.–San Antonio 2004, pet. ref’d), the police took the witness to the station and questioned him, and the witness gave a formal, signed written statement that was introduced at trial. This statement was testimonial, and its admission was harmful error. j. Forensic child-interview statements and videotapes are testimonial. Coronado v. State, 351 S.W.3d 315, 324 (Tex. Crim. App. 2011). k. A certificate of analysis identifying the substance as cocaine and its weight was testimonial. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits. . . .” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329 (2009). Cross Examination Con Caliente
l. “An analyst's certification prepared in connection with a criminal investigation or prosecution, the Court held, is ‘testimonial.’” Bullcoming v. New Mexico, 564 U.S. 647, 658 (2011); see Burch v. State, 401 S.W.3d 634, 639 (Tex. Crim. App. 2013)(a report asserting the substance was cocaine and signed by a non-testifying analyst, was testimonial evidence even though it lacked the formal certification language found in Bullcoming). m. In this capital murder case the trial court admitted incident reports from jail and prison disciplinary reports as business records. They documented appellant’s misconduct “in the most detailed and graphic of terms.” These records violated Crawford. There was no showing that declarants were unavailable or that the appellant had the opportunity to cross-examine them. The statements were testimonial – that is, they were “solemn declarations[s] made for the purpose of establishing some fact.” The admission of this evidence was not harmless, considering its highly damaging nature, and the fact that it was repeatedly emphasized during closing arguments. Russeau v. State, 171 S.W. 3d 871, 880-81 (Tex. Crim. App. 2005); but cf. Segundo v. State, 270 S.W.3d 79, 106–07 (Tex. Crim. App. 2008) “sterile” and standard “boilerplate,” statements found in pre-printed language in a form entitled Board of Pardons and Paroles Proclamation of Revocation and Warrant of Arrest “are non-testimonial and therefore beyond the prohibition of Crawford”).
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n. The statement of a confidential informant used to get a search warrant is "testimonial" under Crawford, because it’s “primary purpose” was “to pave the way for a potential criminal prosecution.” Langham v. State, 305 S.W.3d 568, 579 (Tex. Crim. App. 2010); see also Willrich v. State, 729 S.W.3d 425, 433 (Tex. App.–Austin 2025, pet. filed)(rejecting the State’s argument that admission of a paper written by an accomplice that identified appellant was admissible to explain how the police started investigating him, where “identity was hotly contested at trial, [and the paper] was the most damning piece of information put before the jury, creating a greater likelihood that the jury would gravitate toward the improper use [of the paper]”); Hereford v. State, 444 S.W.3d 346, 352 (Tex. App.–Amarillo 2014, no pet.)(phone call to 911 from anonymous tipster that appellant was selling drugs from a specific location was testimonial, since the “primary, if not sole, purpose of the terse exchange at bar was for the purpose of developing “a factual predicate for later litigation” or investigating a crime”). o. “Unlike an autopsy report which contains “matters observed pursuant to a duty imposed by law” and are therefore considered nontestimonial for Crawford purposes, the primary purpose of the latent print report was to establish or prove past events potentially relevant to later criminal prosecution.” Acevedo v. State, 255 S.W.3d 162, 173 (Tex. App. – San Antonio 2008, pet. ref’d)(harmless error).
Cross Examination Con Caliente
p. Entries in high school records that described appellant’s behavior and quoted language went beyond merely establishing the commission of disciplinary infractions to discuss specific behavior, and were testimonial. many of the entries in the records contain testimonial statements. Specifically, the descriptions of appellant's behavior and quotations of language he used are not intended merely to establish that appellant committed a disciplinary infraction, but to establish that he violated school rules by engaging in the specific behavior described. Grant v. State, 218 S.W.3d 225, 232 (Tex. App.– Houston [14th Dist.] 2007, pet. ref’d)(harmless error, though). 3. Non-testimonial statements. a. In Ohio v. Clark, 576 U.S. 237, 241 (2015), the trial court admitted statements made by a three-year old to his pre-school teachers naming his caregiver as the person who caused various physical injuries to the child. The Court held that “under our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial.” Id. at 245. But the Confrontation Clause does not bar every case that satisfies the “primary purpose test.” One example would be out-of-court statements that were admissible in a criminal trial at the time of the founding. Nor is the Confrontation Clause necessarily inapplicable simply because the statement was made to a teacher, rather to law enforcement. The proper test requires consideration of “all relevant circumstances,” which here included that the statements were made to teachers, not police; in the context of an ongoing emergency; without a primary purpose to gather evidence for a prosecution; in an informal, spontaneous environment and not a station-house; by a very young child. Additionally, historical research shows that such statements by young children were admissible in criminal trials at the founding. “In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing the child's statements at trial.” Id. at 246-49. 18 85
b. A wounded victim’s identification and description of his assailant and the location of the attack were primarily to enable police assistance in an ongoing emergency, and were nontestimonial. Michigan v. Bryant, 562 U.S. 344, 349 (2011). c. The unavailable complainant’s initial identification of appellant as the person who had assaulted her was nontestimonial, since he was present and not yet secured in the patrol car and the emergency was ongoing. Vinson v. State, 252 S.W.3d 336, 341 (Tex. Crim. App. 2008). d. A 911 call made by a tow truck driver reporting appellant’s erratic driving was nontestimonial because the circumstances objectively showed that the primary purpose of the call was to enable police assistance for an ongoing emergency. Ramjattansingh v. State, 587 S.W.3d 141, 16061 (Tex. App.– Houston [1st Dist.] 2019, no pet.). e. The expert in State v. Guzman, 439 S.W.3d 482, 488 (Tex. App.–San Antonio 2014, no pet.) conducted the blood draw but did not perform any test or provide any statement, and the toxicologist who did the analysis will be available for cross-examination. f. Statements of personal or family history admitted under TEX. R. EVID. 804(a)(5) are nontestimonial hearsay and do not implicate the Confrontation Clause. Elsik v. State, 714 S.W.3d 27, 42 (Tex. Crim. App. Nov. 27, 2024).
Cross Examination Con Caliente
g. “Raw, computer-generated data” from a computer, and not from a witness capable of being cross-examined, are not testimonial. Paredes v. State, 462 S.W.3d 510, 519 (Tex. Crim. App. 2015); see Molina v. State, 632 S.W.3d 539, 546 (Tex. Crim. App. 2021) (Reliagene report containing nothing “inherently inculpatory” and not created for use against appellant, who was not a suspect until years later, was not testimonial). h. Where the primary purpose of the child’s treatment sessions was to help him cope with his memories of the offense and the loss of his parents, and to help him adjust to his new life and family, his statements to his therapist were non-testimonial and did not violate the Confrontation Clause. Calvert v. State, 2019 WL 5057268, at *46 (Tex. Crim. App. Oct. 9, 2019)(not designated for publication). i. “If the testimony did not involve hearsay, it ineluctably follows that it did not involve “testimonial hearsay.” Coble v. State, 330 S.W.3d 253, 289 n. 99 (Tex. Crim. App. 2010). j. Casual remarks spontaneously made to acquaintances were non-testimonial in nature; thus, Crawford is not applicable. Woods v. State, 152 S.W.3d 105, 114 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 1050 (2005); accord Irsan v. State, 708 S.W.3d 584, 621 (Tex. Crim. App. 2025)(admissions were “non-testimonial” and “fit neatly within Crawford and Woods’s descriptions of “a casual remark to an acquaintance”). k. Testimony from an autopsy report containing sterile recitation of objective facts 19 86
regarding injuries and cause of death was “routine, descriptive, and nonanalytical,” did not relate subjective narratives pertaining to guilt or innocence, and was nontestimonial. Campos v. State, 256 S.W.3d 757, 762–63 (Tex. App.– Houston [14th Dist.] 2008, pet. ref’d)(noting also that the doctor who authored the report was cross-examined, and the report was not admitted); see also Mitchell v. State, 191 S.W.3d 219, 221–22 (Tex. App.– San Antonio 2005, pet. ref'd)(autopsy report and testimony from doctor who did not perform the autopsy was nontestimonial); Denoso v. State, 156 S.W.3d 166, 182 (Tex. App. –Corpus Christi 2005, pet. ref'd)(certified copy of autopsy report and testimony of doctor who did not do the autopsy did not violate confrontation rights). 4. Are testimonial dying declarations an exception to the general rule? a. Although there have always been exceptions to the hearsay rule, “there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case.” Crawford v. Washington, 541 U.S. at 60. The Court noted that there might be authority for admitting testimonial dying declarations, but had no occasion to answer that question in Crawford. The Court went on: “If this exception must be accepted on historical grounds, it is sui generis.” Id. at 60 n. 6. b. Counsel conceded that, if a 911 call qualified as a dying declaration, neither Crawford nor the Confrontation Clause would bar its admission. “Although this question was not explicitly addressed by the Supreme Court, appellant's concession seems well taken. Gardner v. State, 306 S.W.3d 274, 289 (Tex. Crim. App. 2009)(citing to note 6 in Crawford). I.
Unavailability.
J.
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A witness who testified at an earlier trial, but died before the retrial, is unavailable. Martinez v. State, 327 S.W.3d 727, 738 (Tex. Crim. App. 2010). A prior opportunity to cross-examine.
Between appellant’s initial capital trial, and the retrial, the special punishment issues were undeniably different. The purpose of both sets of instructions, though, was the same: to instruct the jury to consider mitigating evidence. “The parties, issues, and underlying purpose of the jury charge were the same in both 1989 and 2009. Further, defense counsel in 1989 and 2009 had the similar motive of presenting mitigating evidence to the jury. That appellant is now dissatisfied with the depth of prior counsel's cross-examination of [the deceased witness] does not affect that motive,” and so, the trial court did not err in admitting the prior testimony of the witness. Martinez v. State, 327 S.W.3d 727, 739 (Tex. Crim. App. 2010). K.
Harmful or harmless? 1. A violation of the Confrontation Clause is subject to harmless error analysis. Delaware v. 20 87
Van Arsdall, 475 U.S. 673, 684 (1986). 2. Along the way to finding the constitutional error not harmless beyond a reasonable doubt, Chief Justice Quinn made several interesting observations, including two I find particularly thoughtful. After acknowledging that “the harmless error rule serves a legitimate purpose, the Chief wrote this: Yet, experience suggests that it has become more than a tool to assure that judgments remain intact despite the presence of insignificant error. Though few litigators would admit to it, we sense that a number have come to view the rule as an invitation to commit error while believing that the error will most likely be held harmless on appeal. Our interest in preventing such efforts is another reason why we hesitate to sanction a clear constitutional error simply because admissible evidence may establish appellant's guilt. Hereford v. State, 444 S.W.3d 346, 354 (Tex. App.–Amarillo 2014, no pet.). Then, addressing the “insignificance” of the error, he wrote: “And, if it was so insignificant here, we can only ask why the State engaged in rather extensive effort to have the jury hear it. Indeed, telling the fact finders about what the unknown caller said may not have been needed to win a conviction. Presenting it to them surely made the decision to convict easier, though.” Id. at 355.
Cross Examination Con Caliente
3. In Rodriguez v. State, 926 S.W.2d 379 (Tex. App.–San Antonio 1996, no pet.), the State argued that a confrontation violation was cumulative, and harmless because similar evidence came in without objection through another witness. Chief Justice Hardberger rejected that argument. “It can be argued that this is cumulative, and therefore doesn't make any difference whether it is in evidence or not, but it obviously does make a difference. That's why the state wanted to put it in, albeit in an inadmissible form. Id. at 382 (emphasis supplied). 4. When reviewing whether an error admitting out-of-court statements in violation of Crawford is harmless beyond a reasonable doubt should consider, among other things: (1) The importance of the hearsay statements to the State's case; (2) Whether the hearsay evidence was cumulative of other evidence; (3) The presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and (4) The overall strength of the prosecution's case. “[I]n the final analysis, the reviewing court must be convinced, beyond a reasonable doubt, that the admission of Crawford-barred testimony would probably not have had a significant impact on the mind of an average juror. Put another way, is there a reasonable possibility that the Crawford error, within the context of the entire trial, ‘moved the jury from a state of non-persuasion to one of persuasion’ on a particular issue?” Davis v. State, 203 S.W.3d 845, 852–53, 856 (Tex. Crim. App. 2006)(concluding that the error was harmless beyond a reasonable doubt here); see Clay v. State, 240 S.W.3d 895, 905–06 (Tex. Crim. App. 2007)(Crawford error harmless where court was persuaded beyond a reasonable doubt that the guilt and punishment verdicts would have been the same even if the trial court had not admitted the officer’s testimony about what he had been told). 21 88
5. In addition to the factors listed in Davis, the courts can consider others, including, “the source and nature of the error, to what extent, if any, it was emphasized by the State, and how weighty the jury may have found the erroneously admitted evidence to be compared to the balance of the evidence with respect to the element or defensive issue to which it is relevant. . . . Ultimately, after considering these various factors, the reviewing court must be able to declare itself satisfied, to a level of confidence beyond a reasonable doubt, that the error did not contribute to the conviction before it can affirm it.” Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010)(remanded to the court of appeals for a proper harm analysis). On remand, the court of appeals held the error to be harmless beyond a reasonable doubt. Langham v. State, 331 S.W.3d 87, 91 (Tex. App.–Eastland 2010, pet. ref’d). 6. “[T]he question for the reviewing court is not whether the jury verdict was supported by the evidence. Instead, the question is the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at that verdict—whether, in other words, the error adversely affected ‘the integrity of the process leading to the conviction.’” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007)(after reviewing the evidence the court was unable “to declare itself satisfied, to a level of confidence beyond a reasonable doubt,” that the erroneous admission of the accomplice’s statement did not contribute to the conviction). 7. The erroneous admission of incident reports from the Smith County Jail and disciplinary reports from TDCJ was not harmless, considering its highly damaging nature, and the fact that it was repeatedly emphasized during closing arguments. Russeau v. State, 171 S.W. 3d 871, 880-81 (Tex. Crim. App. 2005). Cross Examination Con Caliente
8. Crawford error was not harmless where “the crucial evidence to rebut the appellant's contention that he was not guilty by reason of insanity came almost exclusively from one source: [the accomplice’s unconfronted statements].” Rubio v. State, 241 S.W. 3d 1, 11 (Tex. Crim. App. 2007)(recognizing that “the statements of accomplices are normally particularly harmful”). 9. Where the officer was the only witness to testify and the State depended on the hearsay almost completely to make its case, the court concluded that this evidence contributed to appellant's conviction and punishment. Gutierrez v. State, 516 S.W.3d 593, 600 (Tex. App.–Houston [1st Dist.] 2017, pet. ref’d). 10. In Hale v. State, 139 S.W.3d 418, 422 (Tex. App.–Fort Worth 2004, no pet.), appellant moved to exclude unconfronted testimony; the trial court denied the motion, and Hale pleaded guilty and obtained permission to appeal the pretrial ruling. The court of appeals held that, since there was no trial, it could not determine beyond a reasonable doubt on the record that the trial court's erroneous ruling on the pretrial motions to exclude did not contribute to his guilty pleas and convictions. Accordingly, the convictions were reversed.
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L.
Timely, specific objections are required to preserve error.
1. When a defendant’s constitutional right to confrontation is violated, “we must reverse the conviction unless we determine beyond a reasonable doubt that the error did not contribute to the jury's verdict.” Shuffield v. State, 189 S.W.3d 782, 791 (Tex. Crim. App. 2006)(required by TEX. R. APP. PROC. 44(a)). 2. Confrontation Clause claims are subject to the rule requiring timely, specific objections. Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010)(appellant failed to object that documents violated his confrontation rights, thus failing to preserve error). 3. “An objection on hearsay does not preserve error on Confrontation Clause grounds.” Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005). “One lesson from Reyna is that general arguments about hearsay do not put the trial judge on notice that Appellant is making a constitutional argument, let alone a Confrontation Clause argument. In line with that principle, we find here that a general appeal to a proffer's relevance, or a broad expression that the jury needs to “get the whole picture of the situation,” does not adequately articulate a constitutional basis sufficient to preserve the argument for appellate review.” Golliday v. State, 560 S.W.3d 664, 671 (Tex. Crim. App. 2018). 4. “Appellant's objections encompass complaints under both the Texas Rules of Criminal Evidence governing the admission of hearsay statements and the Confrontation Clause of the United States Constitution. Because appellant did not specify at trial which complaint he was asserting, his objection was not sufficiently specific to preserve review on appeal.” Cantu v. State, 939 S.W.2d 627, 634 (Tex. Crim. App. 1997). Cross Examination Con Caliente
5. Where appellant’s trial objection relies on both the Federal and State Constitutions, but his argument on appeal “provides argument and authority under only the United States Constitution, he has forfeited consideration of these points of error under the Texas Constitution.” Shuffield v. State, 189 S.W.3d 782, 788 (Tex. Crim. App. 2006); see also Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim. App. 1997)(appellant failed to point out any meaningful distinctions between the confrontation clauses in the Federal and Texas Constitutions which merit [the] extension of broader confrontational capacity under Article I, Section 10 of the Texas Constitution”). 6. In Blackman v. State, 2014 WL 50804, at *4 (Tex. App.–Houston [1st Dist.] Jan. 7, 2014, pet. ref’d)(not designated for publication), portions of the records in question were inadmissible under the Confrontation Clause, and other portions were not inadmissible. Appellant’s objection to the whole document failed to preserve error). M.
Crawford is not applicable in certain proceedings.
1. “We hold that when a PSI is used in a non-capital case in which the defendant has elected to have the judge determine sentencing, Crawford does not apply. . . . This holding is limited to a sentencing hearing in which the judge assesses punishment. We need not address here whether Crawford applies when a jury determines the sentence in a non-capital case.” Stringer v. State, 309 23 90
S.W.3d 42, 48 (Tex. Crim. App. 2010)(no error in including evidence of unadjudicated offense). Cf. Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005)(trial court erred in admitting Smith County Jail incident reports, and TDCJ disciplinary reports at the punishment phase of this capital murder trial); see also Smith v. State, 297 S.W.3d 260, 277 (Tex. Crim. App. 2009)(two disciplinary documents “go beyond a sterile description and violate appellant's rights as set out in Russeau,” but the error was harmless).
Cross Examination Con Caliente
2. There is a split of authority as to whether or not Crawford v. Washington applies probation revocation proceedings. Compare State v. Navarro, ___ S.W. 3d ___ 2025 WL 2942231, at *12 (Tex. App.–Austin, pet. filed)(not yet published)(“We join our sister courts and federal courts in holding that a deferred-adjudication community-supervision revocation hearing is not a stage in a criminal prosecution at which the Sixth Amendment right to confrontation applies.”); Cunningham v. State, 673 S.W.3d 280, 290 (Tex. App. – Texarkana 2023, no pet.)(Confrontation Clause does apply to motion to adjudicate proceeding, and denial of this right is a due process violation); Hughes v. State, 651 S.W.3d 461, 468 (Tex. App.– Houston [14th Dist.] 2022), aff'd on other grounds, 691 S.W.3d 504 (Tex. Crim. App. 2024); Perez v. State, 2015 WL 4234236, at *1 n.2 (Tex. App.–Corpus Christi July 9, 2015, no pet.)(not designated for publication) with Diaz v. State, 172 S.W. 3d 668, 670 (Tex. App.–San Antonio 2005, no pet.). The Courts of Appeals in Fort Worth, Dallas, Beaumont, Eastland have held, like the San Antonio Court, that the Confrontation Clause does not apply at revocation hearings. Several courts have “assumed without deciding that the Clause does apply. See Torres v. State, 617 S.W.3d 95, 101 (Tex. App.– Houston [1st Dist.] 2020, pet. ref’d); Blackman v. State, 2014 WL 50804, at *3 (Tex. App.–Houston [1st Dist.] Jan. 7, 2014)(not designated for publication); Bacilio v. State, 2016 WL 1253420, at *3 (Tex. App.– El Paso 2016)(not designated for publication). The court of criminal appeals granted a petition that might have resolved the conflict, but later dismissed the petition as improvidently granted. See Inman v. State, No. PD-0251-22, 2023 WL 3495573, at *1 (Tex. Crim. App. May 17, 2023). Maybe the high court will decide this issue in Montgomery v. State, 2022 WL 5240472 (Tex. App.–Fort Worth 2022, pet. granted)(not designated for publication), which is not pending decision. 3. “The Sixth Amendment did not apply to Applicant's parole revocation hearings, and his limited due process right to confront the witnesses in those hearings was honored by their appearance via Zoom.” Ex parte Zubiate, 710 S.W.3d 724, 728 (Tex. Crim. App. 2025)(a parole hearing is not a criminal proceeding). 4. Crawford does not apply to a juvenile transfer hearing under § 54.11 of the Texas Family Code because this is not a stage of the criminal prosecution under the Sixth Amendment. In re D.L., 198 S.W.3d 228 (Tex. App.–San Antonio 2006, rev. den’d.). 5. The trial court erred when it permitted various unidentified witnesses to read their victim impact statements to the court prior to court's assessment of punishment or pronouncement of sentence.This violated TEX. CODE CRIM. PROC. art. 42.03 §1(b), and denied appellant his right to confront and cross-examine witnesses, and was harmful under Tex. R. App. Proc. 44.2(b). Aldrich v. State, 296 S.W.3d 225, 260 (Tex. App.–Fort Worth 2009, pet. ref’d). 24 91
N.
Crawford’s retroactivity.
1. “[U]nder the rules set out in Teague v. Lane” the decision in Crawford v. Washington, is not retroactive to cases already final on direct review.” Whorton v. Bockting, 549 U.S. 406, 409 (2007); see Ex parte Keith, 202 S.W.3d 767 (Tex. Crim. App. 2006)(Crawford will not be applied retroactively in a state-court proceeding); Ex parte Lave, 257 S.W.3d 235, 237 (Tex. Crim. App. 2008)(“we adhere to our retroactivity analysis in Keith and its holding that Crawford does not apply retroactively to cases on collateral review in Texas state courts”). 2. The rule established in Crawford applied to appellant’s case which was pending on direct appeal when Crawford was handed down, but had been tried before then. Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007). 3. Although Teague limits the kinds of violations that entitle a defendant to federal habeas relief, that “does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed ‘nonretroactive’ under Teague.” Danforth v. Minnesota, 552 U.S. 264, 282 (2008). VI.
SEX AND CONFRONTATION
A.
“It is a truism that constitutional protections have costs.”
Cross Examination Con Caliente
“[F]ace-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.” Coy v. Iowa, 487 U.S. 1012, 1020 (1988). B.
“He said, she said” cases “may raise particular evidentiary and constitutional concerns.”
“Trials involving sexual assault may raise particular evidentiary and constitutional concerns because the credibility of both the complainant and defendant is a central, often dispositive, issue. Sexual assault cases are frequently ‘he said, she said’ trials in which the jury must reach a unanimous verdict based solely upon two diametrically different versions of an event, unaided by any physical, scientific, or other corroborative evidence. Thus, the Rules of Evidence, especially Rule 403, should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the credibility of either the defendant or complainant in such “he said, she said” cases.” Hammer v. State, 296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009); but see Lopez v. State, 18 S.W.3d 220, 223 (Tex. Crim. App. 2000)(although other states have held that the Confrontation Clause requires a special exception for sexual offenses to allow admission of prior false accusations of abuse by the complainant despite evidentiary bars, the court of criminal appeals refuses to do so). Presiding Judge Keller concurred in Lopez, noting, “as a practical matter, evidence of prior false allegations will be admissible more often in sex cases than in most other types of offenses.” Lopez v. State, 18 S.W.3d at 227 (Keller, P.J., concurring). 25 92
C.
Exposing bias and motive through cross-examination in sexual cases.
1. In Olden v. Kentucky, 488 U. S. 227 (1988), the defendant was charged with various sexual crimes against the complainant, and his defense was consent. Defendant wanted to prove that the complainant was co-habitating with Russell, asserting that this was necessary to prove her motivation to lie against him. Specifically, defendant argued that he and the complainant had engaged in consensual sex, and that the complainant, because she feared jeopardizing her relationship with Russell, lied about being raped. The Court found that the trial court erred in excluding this evidence, holding that a reasonable jury might have had a much different impression of the complainant's credibility had the defendant been able to expose her motivation through cross-examination. Id. at 233. 2. Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009), is an excellent example of the wide latitude defense counsel must be given when exploring the motives of a complainant in a case alleging a sexual offense. There "[a]ppellant was allowed to question P.H. generally about her motive to falsely accuse him. . . . But what the jury did not know – because the trial judge excluded it – is that P.H. was particularly angry with her father. . ." The court of criminal appeals held that the trial court erred in excluding the evidence, which was "strong support for appellant's theory that [the complainant] had a motive to falsely accuse him of sexual molestation." Id. at 566-67 (emphasis supplied). Although Hammer took care to say that its decision was based on the Texas Rules of Evidence, it also observed that “the Confrontation Clause might well have required the admission of this evidence showing P.H.'s motive to fabricate if appellant had not been able to show that motive through other means—even if that evidence had been barred under state evidentiary rules.” Id. at 568.
Cross Examination Con Caliente
3. In Billodeau v. State, 277 S.W. 3d 34 (Tex. Crim. App. 2009), the trial court prevented appellant from questioning the complainant about threats he made to neighbors who angered him, that he would falsely accuse them of molesting him. It was not dispositve that the threats were made after the accusations against the appellant. “If it were so, the first person about whom a complainant lied would be rendered unable to challenge the complainant's credibility and reputation for truthfulness even if the complainant had since been shown to be a veritable Pinocchio.” Id. at 40. The court also rejected the State’s other argument for affirmance — that the threat and the accusations were dissimilar. To the contrary, the threats and the accusations “were the same – molestation.” Id. “The possible animus, motive, or ill will of a prosecution witness who testifies against the defendant is never a collateral or irrelevant inquiry, and the defendant is entitled, subject to reasonable restrictions, to show any relevant fact that might tend to establish ill feeling, bias, motive, interest, or animus on the part of any witness testifying against him.” A unanimous court of criminal appeals held that the trial court abused its discretion under Rule 613(b), and reversed the conviction, finding “that the inability to fully present his defense affected a substantial right and is therefore harmful error.” Id. at 42-43. 4. The trial court erred in excluding evidence that the mother of the complaining witness was being investigated for physical abuse of her children, where it was appellant's defensive theory that the mother forced the child to accuse him in order to divert the attention of the authorities. Steve v. State, 614 S.W. 2d 137, 139-140 (Tex. Crim. App. 1981). 26 93
5. Where appellant was charged with sexually assaulting his stepdaughter, the trial court abused its discretion under Rule 608(b) and the Confrontation Clause when it prohibited him from cross-examining his wife about having an affair with a man named Bridges. “If appellant had shown that Ms. Fox was having an extramarital affair with Bridges, that fact would have made it more likely that she wanted a divorce from appellant and custody of the children long before the three girls made any allegations of sexual abuse. If Ms. Fox wanted a divorce and custody of the two children born of her marriage to appellant, then she had a strong motive to suggest to [the children] and A.F. that appellant had sexually molested them. If appellant were in jail or even accused of sexual abuse of a child, Ms. Fox would stand a far better chance of obtaining custody of all of the children.” Fox v. State, 115 S.W.3d 550, 568 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d). 6. The 13-year old complainant testified that appellant had sex with her once in a hotel and twice in his apartment. Appellant admitted he took her twice to his apartment but denied having sex with her. He wanted to testify that the complainant had told him she was being molested by a cousin, and that he was counseling her at his apartment, but the trial court prohibited that questioning, limiting him to offering evidence that she was experiencing “family problems.” The court of appeals held that the trial court reversibly erred because the general description did “not convey appellant's alleged motivations for meeting with the complainant: (1) he felt she was in danger of being molested, and (2) her family's failure to act in her defense contributed to that danger.” Cooper v. State, 95 S.W.3d 488, 491 (Tex. App.– Houston [1st Dist.] 2002, pet. ref’d). The court of appeals refused to speculate whether the jury would have accepted appellant’s “line of reasoning” had he been allowed to fully present it. The jury was entitled to have the benefit of the defense theory so it could make an informed judgment as to weight to place on the witness’s testimony. Id. at 493.
Cross Examination Con Caliente
7. The trial court erred when it allowed the State’s psychologist to testify that the complainant’s behavior was consistent with a child who had been abused – testimony that effectively strengthened complainant's testimony that appellant did it – but did not allow the witness to be crossexamined on the child’s statement that another relative had abused her. This restriction violated appellant’s constitutional right to cross-examine witnesses, and the restriction was not required under either Rule 403, or 412. And the constitutional error was reversible because the court could not determine, beyond a reasonable coubt, that it was harmless. Kesterson v. State, 997 S.W.2d 290, 295 (Tex. App.–Dallas 1999, no pet.). 8. The trial court erred in excluding evidence concerning marital difficulties between appellant and the complainant’s mother which was relevant to appellant’s defensive theory that the charges were contrived as a potential weapon in a divorce suit. Driggers v. State, 940 S.W. 2d 699, 705 (Tex. App.–Texarkana 1996)(harmless error, though). 9. The trial court erred when it refused to allow appellant to cross-examine the complainant about her boyfriend’s jealousy and violence toward her where appellant’s sole defense was that the complainant fabricated the accusation because she feared that her admittedly jealous boyfriend would beat her for having sex with another man. “The testimony was relevant and admissible as valid cross-examination,” and the constitutional error was harmful, considering the Van Arsdall factors. Thomas v. State, 897 S.W.2d 539, 542 (Tex. App.–Fort Worth 1995, no pet.). 27 94
10. The entire defense rested on appellant’s claim that the mother induced the complainant to fabricate charges so she might regain custody of another child. That the mother had previously, through the same child, brought false charges against appellant was extremely relevant. “Without the details behind [the mother’s] prior conviction, the jury was not sufficiently informed of the lengths gone to by [the mother] and the complainant to achieve the goal of regaining custody. . . . The appellant was unable to sufficiently show the jury the ill feelings and bias of [the mother]. The jury did not hear how [the mother] had once before exerted her influence over . . . and induced [him] into making false allegations against the appellant.” Lape v. State, 893 S.W.2d 949, 958 (Tex. App.–Houston [14th Dist.] 1994, pet. ref’d). 11. Where the appellant's sole defense was consent, the trial court erred in prohibiting him from presenting evidence that the complainant had previously engaged in group sexual encounters with other men. This evidence, in combination with expert testimony on the subject of nymphomania, was relevant to show the complainant's motive to protect her alleged affliction. Chew v. State, 804 S.W. 2d 633, 638 (Tex. App.–San Antonio 1991, pet. ref'd). 12. The trial court erred in not permitting appellant to impeach a witness for the state with evidence that she tried to purchase drugs. This evidence tended to show motive to consent to intercourse. Harrison v. State, 686 S.W. 2d 220, 225-226 (Tex. App.–Houston [1st Dist.] 1984, pet. ref'd).
Cross Examination Con Caliente
13. The trial court erred in not permitting appellant to prove that the complainant had previously made false allegations of sexual assault. Thomas v. State, 669 S.W. 2d 420, 423 (Tex. App.–Houston [1st Dist.] 1984, pet. ref'd); accord Polvado v. State, 689 S.W. 2d 945, 950 (Tex. App.–Houston [14th Dist.] 1985, pet. ref'd)("no charge is more easily made and more difficult to disprove than a sex charge, particularly if made by a young child"). 14. Keep an eye on Rodriguez v. State, 2024 WL 3593185 (Tex. App.–Beaumont 2024, pet. granted)(not designated for publication). In that case the court of appeals affirmed the trial court’s decision prohibiting evidence that the complainant made prior sexual assault allegations against another that resulted in the complainant’s sister being able to live with her grandmother. The court of criminal appeals granted appellant’s petition on May 21, 2025, and a decision is pending. D.
Outcry.
1. Texas law provides for the admissibility of an outcry statement under certain circumstances. TEX. CODE CRIM. PROC. art. 38.072. 2. A statement by child complainant to a physician admitted under the residual hearsay exception lacked the requisite "indicia of reliability," and was therefore inadmissible under the Confrontation Clause. Idaho v. Wright, 497 U.S. 805, 827 (1990). 3. The State designated a TDFPS investigator as its outcry witness, then offered through this 28 95
witness the entirety of a 30 minute interview with the child complainant pursuant to article 38.072. This was error. The outcry statute is a “hearsay exception statutorily limited to live testimony of the outcry witness. . . . The child-complainant's own videotaped statement does not meet the requirements for being admitted under that statute.” Bays v. State, 396 S.W.3d 580, 581–82 (Tex. Crim. App. 2013). 4. The State's outcry witness was unavailable to testify at trial because she suffered a loss of mental faculties. The trial court overruled appellant’s objection and allowed the outcry witness's testimony from a pre-trial hearing to be read to the jury. “Because an Article 38.072 hearing provides a defendant with an inadequate opportunity to cross-examine an outcry witness's credibility, admitting testimony from an Article 38.072 hearing at a trial when the witness is unavailable violates the Sixth Amendment.” Sanchez v. State, 354 S.W.3d 476, 489 (Tex. Crim. App. 2011). The court of criminal appeals remanded the case to the court of appeals for a determination of harm. “[W]e cannot conclude beyond a reasonable doubt that the denial of appellant's fundamental right to cross-examination, guaranteed by the Confrontation Clause of the Sixth Amendment, was harmless.” v. State, 383 S.W.3d 211, 216–17 (Tex. App.–San Antonio 2012, no pet.). 5. “The Confrontation Clause may act as a brake upon the admission of ‘testimonial’ child outcry statements unless the child actually testifies or is presently unavailable but has been subject to cross-examination in a prior proceeding.” Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005).
Cross Examination Con Caliente
6. Appellant’s conviction was reversed in Gay v. State, 981 S.W.2d 864, 866-67 (Tex. App.–Houston [1st. Dist.] 1998, pet. ref’d), because the summary did not provide adequate notice of the content and scope of the outcry. “The purpose of the notice requirement is to prevent the defendant from being surprised by the introduction of the outcry-hearsay testimony. To achieve this purpose, the written summary must give the defendant adequate notice of the content and scope of the outcry testimony.” 7. Failure to comply with the notice requirements of article 38.072 is subject to a harm analysis. Dorado v. State, 843 S.W.2d 37, 38 (Tex. Crim. App. 1992). 8. Article 38.072 is not facially violative of either the state or federal confrontation clauses. Buckley v. State, 786 S.W. 2d 357, 359 (Tex. Crim. App. 1990). 9. Regardless of the state’s compliance with article 38.072's predicates for admitting hearsay, the trial court erred in overruling appellant’s confrontation objection, where the State did not call the child to testify or show that the outcry testimony was necessary to protect the welfare of the child. Matter of P.M., 543 S.W.3d 365, 381, 383 (Tex. App.– El Paso 2018, no pet.)(the error was harmful because a “reasonable possibility exists that the error moved the jury from a state of non-persuasion to one of persuasion”). 10. All three witnesses testified to the same events; thus, the testimonies of at least two outcry witnesses constituted inadmissible hearsay and were improper bolstering of B.R.'s testimony, serving 29 96
solely to enhance B.R.'s credibility—the sole issue in this case—in violation of rule 613(c) of the Texas Rules of Evidence. Lopez v. State, 343 S.W.3d 137, 140, 143-44 (Tex. Crim. App. 2011)(appellate counsel failed to establish Strickland’s first prong because the record was silent as to trial counsel's reason for not objecting to the improper testimony). E.
Evidence of previous sexual conduct in criminal cases. 1.
TEX. R. EVID. 412.
Reputation or opinion evidence of a victim's past sexual behavior is not admissible in certain designated sexual offenses. And evidence of specific instances of an alleged victim’s past sexual behavior is admissible only if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice to the victim, and finds that this evidence:
is necessary to rebut or explain scientific or medical evidence offered by the attorney representing the state;
concerns past sexual behavior with the defendant and is offered by the defendant to prove consent, if the lack of consent is an element of the offense;
relates to the victim's motive or bias;
is admissible under Rule 609; or
is constitutionally required to be admitted. Cross Examination Con Caliente
The rule further requires that, before offering evidence of a specific instance of a victim’s past behavior, the defendant, must, outside the presence of the jury, move to do so. The court must then conduct an in camera examination of the evidence in the presence of a court reporter and determine whether it is admissible. A defendant may not refer in the jury's presence to any evidence of a victim's past sexual behavior without first obtaining such a ruling from the court. The record of this in camera examination must be sealed and preserved as a part of the record in the case. 2.
Case law.
a. “We hold that the in camera hearing required by Rule 412 is an adversarial hearing where the parties are present and the attorneys are afforded the opportunity to question witnesses and present evidence. We further hold that the remedy for a trial court's failure to follow this requirement is to abate the appeal and remand the case to the trial court to conduct (retrospectively) a proper hearing.” LaPointe v. State, 225 S.W.3d 513, 523–24 (Tex. Crim. App. 2007). b. “We conclude that a Rule 412 adversarial hearing is a critical stage of trial, and 30 97
Appellant's right to counsel was not forfeited by inaction alone. . . . Appellant's agreement with the trial court's proposed ex parte procedure for the Rule 412 hearing was not an affirmative waiver of his right to counsel.” Villafranco v. State, 654 S.W.3d 753, 760 (Tex. Crim. App. 2021). c. The trial court abused its discretion under Rule 412 by excluding admissible evidence where the excluded evidence related to the complainant’s “motive to fabricate the accusation, was constitutionally required to be admitted under the Confrontation Clause, and the probative value outweighed the danger of unfair prejudice.” Johnson v. State, 490 S.W.3d 895, 913 (Tex. Crim. App. 2016). d. “But what the jury did not know—because the trial judge excluded it—is that P.H. was particularly angry with appellant when he took her to the hospital for a sexual assault examination after she had run away from home and stayed out overnight. . . . [A]ppellant properly invoked Rule 412, which contains an explicit “motive or bias” exception to the bar against evidence of an alleged victim's previous sexual conduct.” Hammer v. State, 296 S.W.3d 555, 567 (Tex. Crim. App. 2009). e. Evidence of past sexual conduct with persons other than appellant is not material to appellant's claim that sex in the instant case was consensual. And, absent evidence that semen could be found in the complainant's mouth for two weeks after the act, evidence that the complainant had oral sex with another at this time is not material. Boyle v. State, 820 S.W. 2d 122, 148-49 (Tex. Crim. App. 1989), cert. denied, 112 S.Ct. 1297 (1992).
Cross Examination Con Caliente
f. The trial court did not err in excluding evidence of consensual intercourse with another 48 hours before being assaulted; of complainant's opinion that her attacker ejaculated inside her; and, of a doctor's testimony concerning sperm motility. Appellant did not meet his initial burden of proving materiality. Pinson v. State, 778 S.W. 2d 91, 94 (Tex. Crim. App. 1989). g. That the complainant has a reputation as a common prostitute is not material to determining whether she consented to sexual activity. Holloway v. State, 751 S.W. 2d 866, 871 (Tex. Crim. App. 1988). h. Before the trial began, the judge instructed counsel that he was requiring strict compliance with the law and that no questions could be asked of the complainant’s prior sexual history without advising the court and litigating the question in a closed hearing. In front of the jury, when questioning the complainant about safety precautions she had taken since the assault, counsel asked, “I take it nothing like that ever happened to you before?” Ex parte Rose, 704 S.W.2d 751, 753 (Tex. Crim. App. 1984). The trial court held counsel in contempt, and the court of criminal appeals affirmed. Id. at 754-57. i. The Texas rape shield law does not, on its face, violate the Sixth Amendment, Article I, § 10 of the Texas Constitution, federal due process or state due course of law. Allen v. State, 700 S.W. 2d 924, 932 (Tex. Crim. App. 1985). 31 98
j. "If a defendant claims a victim's past sexual conduct is relevant, it is up to the defendant to make a preliminary showing that the issue is material to an issue in the case. This is not raised by merely asserting that it is so. There must be a showing of a reasonable basis for believing that the past sexual conduct is pertinent. If there is no such showing, questions concerning past sexual conduct are to be excluded. If such a showing of relevancy is made, the balancing test of [Rule 412] is to be applied in determining admissibility." Allen v. State, 700 S.W. 2d 924, 929 (Tex. Crim. App. 1985)(whether or not the complainant was a virgin was not material, and, even if it had been, it was too prejudicial). k. "Where the balancing test has been met, where the balance inclines toward the accused, Texas trial courts are free and should not hesitate to admit evidence of the victim's prior sexual conduct to attack her credibility, to impeach her, if it does." Allen v. State, 700 S.W. 2d at 929. l. The trial court erred in prohibiting the defense from questioning the complainant about her prior sexual activity because it directly rebutted the explanation offered by the State’s witness for her medical findings. Aguilera v. State, 75 S.W.3d 60, 67 (Tex. App.–San Antonio 2002, pet. ref’d). m. “Simply put, if the evidence falls within any of the exceptions itemized in [the Rule] and its probative value outweighs the danger of unfair prejudice, it is admissible.” Hood v. State, 944 S.W.2d 743, 746 (Tex. App.–Amarillo 1997, no pet.)(trial court erred in excluding evidence of prior sexual behavior to “explain” the “well-healed” tears found in complainant’s hymen).
Cross Examination Con Caliente
n. The trial court erred where the State's medical evidence showed that the child's vaginal introitus was stretched, which might be explained by previous sexual conduct with men other than appellant. And the child’s testimony or a letter in which she admitted substantial other contact might have rebutted the medical report in which the child denied other intercourse or sexual abuse. Reynolds v. State, 890 S.W.2d 156, 157 (Tex. App.–Texarkana 1994, no pet.). o. Reputation evidence is expressly prohibited by Rule 412(a). Rankin v. State, 821 S.W. 2d 230, 233 (Tex. App.–Houston [14th Dist.] 1991, no pet.). p. Past sexual behavior evidence is not admissible to prove promiscuity where the behavior occurred after the assault alleged in the instant case. Rankin v. State, 821 S.W. 2d at 234. q. On the issue of consent, only evidence of specific past sexual behavior with the accused is admissible. Leger v. State, 774 S.W. 2d 99, 101 (Tex. App.–Beaumont 1989, pet. ref'd). r. A threshold requirement of Rule 412 is that the defendant inform the court, outside the presence of the jury, of his intent to offer evidence of prior sexual activity. Golden v. State, 762 S.W. 2d 630, 632 (Tex. App.–Texarkana 1988, pet. ref'd). Rule 412 "does not authorize general impeachment by insinuations of unchastity or immorality." Id. s. Where the appellant could not prove that the mere fact that the complainant had 32 99
gonorrhea would have resulted in its transmission to anyone with whom she had sex, that evidence is not material. Smith v. State, 737 S.W. 2d 910, 915 (Tex. App.–Fort Worth 1987, pet. ref'd). t. The trial court did not err in admitting evidence from the complainant that she told appellant that she was a virgin and was saving herself for marriage. The court believed it a well established rule in Texas that the jury is entitled to know what happened immediately before and after the offense, and thought it unlikely that Rule 412 was meant to denigrate such a venerable rule. Cole v. State, 735 S.W. 2d 686, 693 (Tex. App.– Amarillo 1987), rev'd on other grounds, 839 S.W. 2d 798 (Tex. Crim. App. 1990). u. Appellant bears the burden of making a preliminary showing of materiality. Keeter v. State, 723 S.W. 2d 356, 358 (Tex. App.–Fort Worth 1987, pet. ref'd). v. The trial court erred in not permitting appellant to offer evidence that the complainant had been in trouble in the past for improper sexual behavior, and therefore had a motive to blame someone else. This evidence was material to the complainant’s motive, and was therefore admissible under Rule 412(b)(2). Yzaguirre v. State, 938 S.W. 2d 127, 129 (Tex. App.–Amarillo 1996). w. Rule 412 applies only to attempts to introduce prior consensual sexual activity. Draheim v. State, 916 S.W. 2d 593, 599 (Tex. App.–San Antonio 1996, pet. ref’d). F.
Rule 403 “should be used sparingly.”
Cross Examination Con Caliente
1. “Because Rule 403 permits the exclusion of admittedly probative evidence, it is a remedy that should be used sparingly, especially in “he said, she said” sexual-molestation cases that must be resolved solely on the basis of the testimony of the complainant and the defendant.” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). “In this case, the trial judge may have used the correct balancing test, but there is nothing in the record to show that she also took into account the possible constitutional ramifications of an exclusion of all of appellant's evidence offered to demonstrate P.H.'s motive to testify against appellant. . . . There is nothing in the record that would support a finding that its prejudicial effect outweighed its probative value, much less why its probative value was substantially outweighed by the danger of unfair prejudice.” Hammer v. State, 296 S.W.3d 555, 56869 (Tex. Crim. App. 2009). 2. “Although Rule 403 gives a trial judge discretion to exclude evidence that is more prejudicial than probative, in sexual assault “he said, he said,” cases such as this one, where the credibility of both the complainant and the defendant is the central, dispositive issue, Rule 403 should be used very sparingly. Under Rule 403, the danger of unfair prejudice must substantially outweigh the probative value.” Johnson v. State, 490 S.W.3d 895, 911 (Tex. Crim. App. 2016). The court held that the trial court abused its discretion by not permitting appellant to cross examine the complainant regarding his past sexual abuse of his sister where this evidence support appellant’s theory that the complainant had a motive to falsely accuse him of sexual molestation. Id. at 915. 33 100
G.
Other confrontation issues arising in sexual assault cases.
1. A state statute which excludes the defendant, but not his lawyer, from a pre-trial, in chambers, hearing to determine the competency of child complainants, does not limit the opportunity for cross-examination, and does not violate the Confrontation Clause. Pennsylvania v. Stincer, 482 U.S. 730, 744 (1987). 2. That a witness was asking for drugs was admissible to prove that she had a motive to prostitute herself for drugs, thus strengthening appellant's defense of consensual sex. Harrison v. State, 686 S.W. 2d 220, 225 (Tex. App.–Houston [1st Dist.] 1984, pet. ref'd). 3. The trial court should permit the appellant to prove that the father of the complainant had a motive for his testimony. Polvado v. State, 689 S.W. 2d 945, 951 (Tex. App.–Houston [14th Dist.] 1985, pet. ref'd). 4. Where children testify at trial that their mother coerced them into making tape recordings which exonerated appellant, the entire tapes were admissible. Polvado v. State, 689 S.W. 2d at 949. 5. The trial court erred in not permitting appellant to impeach the complaining witness in a sexual assault case, since "separate allegations of sexual misconduct made by the boy are not collateral to the main issue at trial." Polvado v. State, 689 S.W. 2d at 950. VII.
BARRIERS TO FACE-TO-FACE CONFRONTATION
A.
Coy v. Iowa: Testimony behind a screen. Cross Examination Con Caliente
At issue in Coy v. Iowa, 487 U.S. 1021 (1988), was an Iowa statute which allowed the child complainant to testify behind a screen which prevented her from seeing the defendant at all. Id. at 1014. Iowa had upheld this procedure, since the defendant's ability to cross-examine the witness had not been impaired. Writing for the Court, Justice Scalia distinguished between the rights of crossexamination and confrontation, and held that the Iowa procedure violated the Confrontation Clause. "The State can hardly gainsay the profound effect upon a witness of standing in the presence of the person the witness accuses, since that is the very phenomenon it relies upon to establish the potential `trauma' that allegedly justified the extraordinary procedure in the present case. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs." Id. at 1020. The Court reserved the question whether exceptions to the right of confrontation might be allowable when necessary to further an important public policy. Id. at 1021. B.
Maryland v. Craig: Testimony by one-way, closed circuit television.
1. In Maryland v. Craig, 497 U.S. 836 (1990), the Court answered the question reserved in Coy. At issue was the constitutionality of a statute which permitted child complainants to testify 34 101
outside the defendant's presence by way of one way, closed-circuit television. The Court held that, "if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant." Id. at 855. 2. "The requisite finding of necessity must of course be a case-specific one: the trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that cause the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify. . . ." Id. at 855(citations omitted). Cf. Bousquet v. State, 47 S.W.3d 131, 136–37 (Tex. App.–Houston [1st Dist.] 2001, pet. ref’d)(trial court abused its discretion in making a finding of unavailability, and the constitutional error was harmful and reversible). 3. Justice Scalia, joined by Justices Brennan, Marshall, and Stevens, dissented. Id. at 860-70.
Cross Examination Con Caliente
4. Did Crawford v. Washington implicitly overrule Craig? “The Supreme Court has never overturned the holding in Craig, but, beginning with Crawford v. Washington, the Supreme Court has nibbled it into Swiss cheese by repeating the categorical nature of the right to confrontation in every one of its more recent cases.” Coronado v. State, 351 S.W.3d 315, 321 (Tex. Crim. App. 2011); see Finley v. State, 707 S.W.3d 320, 329 n. 21 (Tex. Crim. App. 2024)(“This Court is aware of the icy relationship between Maryland v. Craig, . . . and the later decided Crawford v. Washington”); see also Haggard v. State, 612 S.W.3d 318, 326–27 (Tex. Crim. App. 2020). C. TEX. CODE CRIM. PROC. art. 38.071. 1. Texas law permits children to testify by closed-circuit television. TEX. CODE CRIM. PROC. art. 38.071. 2. In Coronado v. State, 351 S.W.3d 315 (Tex. Crim. App. 2011), the trial court relied on article 38.071 § 2(b) of the Texas Code of Criminal Procedure to allow the state to present the videotape of its child-witness, supplemented with written interrogatories of the child submitted by defense counsel, and asked by a neutral questioner. This procedure did not satisfy the Confrontation Clause. “The ex parte “written interrogatory” procedure used in this case would not pass muster under Craig, the very case that the State and the court of appeals relied upon.” Id. at 330. The injustice of this statute moved Judge Cochran to reach back to the English common law: “Had he been forced 35 102
to accept such a pallid substitute for the real thing, Sir Walter Raleigh would once more rattle his chains and cry out from the Star Chamber, “[L]et Cobham be here, let him speak it. Call my accuser before my face[.]” A few written interrogatories sent off to the Tower for the warden to ask Lord Cobham in his cell would not satisfy Sir Walter or the Confrontation Clause his trial engendered.” Id. And the court rejected the State’s public policy argument that the procedure was necessary to protect the physical and psychological well-being of children. “The content of the constitutional rights to confrontation and cross-examination do not depend upon the type of crime charged or the fragility of the witnesses; all accused citizens are entitled to the full protection of the constitution.” Id. at 328. 3. In Hightower v. State, 822 S.W. 2d 48 (Tex. Crim. App. 1991), the trial court properly employed the Craig test to find that closed-circuit procedure was necessary. Appellant was not denied his Sixth Amendment right to effective assistance of counsel when he was not allowed in the same room with his lawyer during cross-examination of the child. Id. at 53-54. Failure to exactly follow the provisions of this statute does not necessarily call for reversal. Id. at 55. 4. In Gonzales v. State, 818 S.W. 2d 756 (Tex. Crim. App. 1991), the court used the same analysis applied by the Supreme Court to determine that neither the federal nor the state constitutions were violated by the use of Craig to closed-circuit television. Id. at 764. The court found no constitutional violation here in the lack of face-to-face confrontation, because there was crossexamination. Id. Closed-circuit televised testimony is constitutionally permissible even when the child witness is not a victim of the offense then being tried, and when the offense is not enumerated in Article 38.071. Id. at 765-66. D.
Testimony by FaceTime. Cross Examination Con Caliente
In Haggard v. State, 612 S.W.3d 318 (Tex. Crim. App. 2020), the SANE moved to Montana, then refused – “for economic and personal reasons” – to appear in court in Beaumont to give testimony necessary to admitting DNA results. The trial court allowed her to appear by FaceTime, over the defense’s Confrontation objection. The court of criminal appeals held this was error and reversed. Recognizing that traveling to court to testify can be frustrating and difficult, the court wrote that “the right to physical, face-to-face confrontation lies at the core of the Confrontation Clause, and it cannot be so readily dispensed with based on the mere inconvenience to a witness.” Id. at 328. The court held that the trial court committed constitutional error in permitting the witness to testify remotely, and remanded the case to the court of appeals for a proper harm analysis. Id. at 330. On remand, the court of appeals found that the State failed to show that Haggard had not been harmed, and reversed and remanded the case for a new trial. Haggard v. State, 2021 WL 2557955, at *6 (Tex. App.–Beaumont 2021, pet. ref’d)(not designated for publication). E.
Masked or disguised witnesses.
1. In Finley v. State, , 707 S.W.3d 320, 331 (Tex. Crim. App. 2024), the complainant in an assault case was allowed to wear a mask that covered her mouth and nose while testifying, over appellant’s confrontation objection. The court of criminal appeals held that the trial court erred and 36 103
that appellant was harmed. The Confrontation Clause applies to “all” criminal cases, and there is no global pandemic exception. The court did not hold that a witness can never wear a mask, but did make clear that “only the weightiest of considerations should allow” a defendant’s right of confrontation to be denied. Id. at 331. “[I]f you partition off a significant portion of your expressive face—the nose and mouth—and there is an objection under the Confrontation Clause, there must be a reason given why it is necessary for that witness to do so to support a sufficient governmental interest. . . . The trial court’s findings here were not “constitutionally sufficient.” No reason other than the witness’s “comfort” were given, and this was not reason enough to deny the right to face-toface confrontation. Id. at 334. Setting aside the complainant’s testimony “leaves a large hole in the State's case which the remaining evidence simply cannot fill to a point where we can conclude beyond a reasonable doubt that the trial court's error did not contribute to the conviction.” Id. at 335-36.
Cross Examination Con Caliente
2. In Romero v. State, 173 S.W.3d 502 (Tex. Crim. App. 2005), the witness claimed he feared the defendant and wore dark sunglasses, a baseball cap pulled down over his forehead, and a long-sleeved jacket with its collar turned up and fastened so as to obscure his mouth, jaw, and the lower half of his nose. As a result of his disguise, the witness hid almost all his face from view. Calling it a “very close issue,” the court of criminal appeals reversed the conviction because the disguise denied appellant his right to confront the witness. Id. at 503. “The Sixth Amendment's Confrontation Clause reflects a strong preference for face-to-face confrontation at trial. An encroachment upon face-to-face confrontation is permitted only when necessary to further an important public interest and when the reliability of the testimony is otherwise assured.” The “presence element” of confrontation and “accountability [were] compromised because the witness was permitted to hide behind his disguise.” Id. at 505. Additionally, the disguise impaired the jury’s ability to observe the witness’s demeanor. “And while wearing a disguise may itself be an aspect of demeanor that jurors could consider in assessing credibility, that fact cannot by any stretch of the imagination be considered an adequate substitute for the jurors' ability to view a witness's face, the most expressive part of the body and something that is traditionally regarded as one of the most important factors in assessing credibility.” Id. at 505-06. Finding that the State failed to show why the error was harmless beyond a reasonable doubt, the “The State has, thus, failed to show us why the error was harmless beyond a reasonable doubt, the court agreed with the court of appeals that reversal was required. 3. “We agree that wearing a surgical mask would make more than just a slight impact on a juror’s ability to assess a witness’s demeanor. Further, here, the trial court made no individualized findings on whether the masks were necessary to further a public policy goal.” Smith v. State, 726 S.W.3d 466, 471 (Tex. Crim. App. 2025). The court went on to find that the court of appeals erred when it “mistakenly applied a rule of ‘default’ when it reversed the trial court’s judgment because the State failed to make an argument in its brief as to why the constitutional violation was harmless beyond a reasonable doubt. “[W]e hold that, regardless of whether the State abides by its own duty under Chapman to show that a constitutional error was harmless, a court of appeals must follow its own obligation under Chapman to determine whether a constitutional error was harmless.” The court of criminal appeals did recognize, however, that it “has repeatedly reaffirmed” that, as the beneficiary of constitutional error, the State bears the burden of proving beyond a reasonable doubt that the error was harmless. Id. at 475. The case was remanded to the court of appeals to determine harm. Id. at 37 104
476.
VIII. IMPEACHMENT WITH EVIDENCE OF BIAS, MOTIVE, OR PREJUDICE A.
Impeachment defined.
1. "To impeach a witness means adducing proof that such witness is unworthy of belief or credit. A mere showing that the State has introduced prior inconsistent statements of witnesses called to testify on its behalf does not automatically constitute impeachment." Ransom v. State, 789 S.W. 2d 572, 587 (Tex. Crim. App. 1989), cert. denied, 110 S.W. 2d 3255 (1990). 2. “There are five major forms of impeachment: two are specific, and three are nonspecific. The two specific forms of impeachment are impeachment by prior inconsistent statements (also known as self-contradiction) and impeachment by another witness. The three non-specific forms of impeachment are impeachment through bias or motive or interest, impeachment by highlighting testimonial defects, and impeachment by general credibility or lack of truthfulness. Specific impeachment is an attack on the accuracy of the specific testimony (i.e., the witness may normally be a truthteller, but she is wrong about X), while non-specific impeachment is an attack on the witness generally (the witness is a liar, therefore she is wrong about X).” Michael v. State, 235 S.W.3d 723, 725–26 (Tex. Crim. App. 2007). B.
Bias, motive or prejudice, generally. 1. Bias is almost always “relevant” and the field from which it may be inferred is “infinite.” Cross Examination Con Caliente
a. "Bias is a term used in the ‘common law of evidence’ to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the witness's self-interest. Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." United States v. Abel, 469 U.S. 45, 52 (1984). b. “Evidence to show bias or interest of a witness in a cause covers a wide range and the field of external circumstances from which probable bias or interest may be inferred is infinite. The rule encompasses all facts and circumstances which, when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping to establish one side of the cause only.” Jackson v. State, 482 S.W.2d 864, 868 (Tex. Crim. App. 1972)(internal quotes omitted)(emphasis supplied); accord Koehler v. State, 679 S.W.2d 6, 9 (Tex. Crim. App. 1984). The witness may not defeat appellant's offer of proof of bias simply by generally admitting an interest in seeing appellant convicted. "This Court has held . . . that when a witness admits bias and prejudice proof of particular acts tending to show this bias and prejudice is admissible to show its extent." Jackson v. State, 482 S.W. 2d at 867. 38 105
c. "The Court has frequently stated that great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him." Evans v. State, 519 S.W. 2d 868, 871 (Tex. Crim. App. 1975); See also Kissinger v. State, 70 S.W. 2d 740, 742 (Tex. Crim. App. 1934)(“well settled that the motives operating upon the mind of a witness are never regarded as immaterial or collateral matters”); Powitzky v. State, 117 S.W. 2d 72, 73 (Tex. Crim. App. 1938)(“Though the witness admits bias or prejudice the extent of it may be shown.”). d. Proof that a witness failed to appear and testify at a prior proceeding, despite reasonable efforts of the state to procure their testimony, is admissible to prove the bias of the witness. Alexander v. State, 919 S.W. 2d 756, 763 (Tex. App.–Texarkana 1996, no pet.). 2. Rule 613(b): The predicate for using a statement to impeach. The proper predicate must be established to impeach for bias. "To lay a proper predicate for impeachment the witness should be asked about any possible interest or bias he may have before there is an attempt to prove interest or bias otherwise. The witness must first be informed as to the circumstances supporting a claim of bias or interest and must be given an opportunity to explain or deny such circumstances." Willingham v. State, 897 S.W. 2d 351, 358 (Tex. Crim. App. 1995)(citations omitted). Presently, the predicate for impeaching a witness for bias or interest is set out in Texas Rule of Evidence 613(b):
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(1) Foundation Requirement. When examining a witness about the witness's bias or interest, a party must first tell the witness the circumstances or statements that tend to show the witness's bias or interest. If examining a witness about a statement – whether oral or written – to prove the witness's bias or interest, a party must tell the witness: (A) the contents of the statement; (B) the time and place of the statement; and (C) the person to whom the statement was made. (2) Need Not Show Written Statement. If a party uses a written statement to prove the witness's bias or interest, a party need not show the statement to the witness before inquiring about it, but must, upon request, show it to opposing counsel. (3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the circumstances or statements that tend to show the witness's bias or interest. And the witness's proponent may present evidence to rebut the charge of bias or interest. (4) Extrinsic Evidence. Extrinsic evidence of a witness's bias or interest is not admissible unless the witness is first examined about the bias or interest and fails to unequivocally admit 39 106
it. TEX R. EVID. 613(b). 3. A few Rule 613(b) cases. a. “Rule 613(b) reflects the reality that a biased witness may well deny that the circumstances gave him a motive to testify falsely. But the rule just as plainly contemplates that the witness may nevertheless be questioned about the potential for bias so engendered.” Jones v. State, 571 S.W.3d 764, 769 (Tex. Crim. App. 2019). b. “This is precisely the prohibited propensity chain of logic—‘Once a thief, always a thief,’ ‘Once a liar, always a liar’ — that underlies both Rules 404(b) and 608(b).” Hammer v. State, 296 S.W.3d 555, 564 (Tex. Crim. App. 2009). However, while our rules of evidence “frown on unnecessary character assassination,” cross-examination about specific instances of conduct is permitted to establish specific bias, self-interest, or motive for testifying. “ Under Rule 613(b), the opponent must first cross-examine the witness with the circumstances surrounding the bias, interest, or motive, and, if the witness denies the circumstances or the motive, the opponent may introduce extrinsic evidence to prove the motive or bias.” Cross-examination on purported bias, interest, and motive is permitted, generally speaking “without undue limitation or arbitrary prohibition.” Id. at 563.
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c. The question in Hammer was whether the “rules accommodate evidence of a witness’s prior, purportedly false, accusations.” Yes, the court held, when the evidence of a prior false accusation is offered for something other than a propensity attack on the witness’s general character for truthfulness. Id. at 565. The Hammer court held that the trial court erroneously excluded evidence that the complainant was “particularly angry with appellant when he took her to the hospital for a sexual assault examination after she had run away from home and stayed out overnight. . . . This evidence was admissible—unless excluded under Rule 403—to prove P.H.'s bias against appellant and to show her purported motive in falsely accusing him. The Texas Rules of Evidence do not contain a specific rule allowing the admission of bias or motive evidence (maybe because the right to impeach a witness on these bases is so obvious), but Rule 613(b) presumes the right to admit such evidence because it deals with how the witness may be examined concerning bias or interest and when extrinsic evidence of that bias or interest may be admitted.” Hammer v. State, 296 S.W.3d 555, 567 (Tex. Crim. App. 2009). See also Billodeau v. State, 277 S.W.3d 34, 40 (Tex. Crim. App. 2009)(“Rule of Evidence 613(b), which creates an exception to Rule 608(b), provides that a witness may be impeached by using extrinsic evidence to show bias or interest.”). d. Recognizing that Davis v. Alaska is not inconsistent with Texas evidence law, Hammer noted that “compliance with a rule of evidence will, in most instances, avoid a constitutional question concerning the admissibility of such evidence.” Hammer v. State, 296 S.W.3d at 566. “Only if the proffered evidence is barred by all state evidentiary rules must courts turn to the federal constitution.” Id (“over-emphasized his reliance upon the Confrontation Clause” rather than Rules 412, 613, and 404(b). Id. 40 107
e. Rule 613(b) “is different from Rule 608. Rule 608 addresses a witness's general character for truthfulness. [Rule 613(b)] addresses a witness's trustworthiness in the particular case because of some bias or interest.” Dixon v. State, 2 S.W.3d 263, 271 (Tex. Crim. App. 1999)(objecting to a cross-examination under one rule does not preserve the argument that the other rule was violated). f. A party is allowed greater latitude to prove bias than untruthful character. Rules 608 and 609 are restrictive. Rule 613, “by contrast, places no limits on the sort of evidence that may be adduced to show a witness's bias or interest. Evidence of bias or interest covers a wide range, and the field of external circumstances from which probable bias or interest may be inferred is infinite.” Gonzales v. State, 929 S.W. 2d 546, 549, 551 (Tex. App.–Austin 1996, pet. ref’d)(that said, the trial court’s prohibition on impeachment for offensive racial remarks did not constitute an abuse of discretion under Rule 403, because the witness’s remarks were irrelevant to his “credibility as a witness in this cause yet likely to provoke an emotional response among the jurors”). g. Prior statements do not have to be inconsistent if they show bias or motive. Sparks v. State, 943 S.W. 2d 513, 515 (Tex. App.–Fort Worth 1997, pet. ref’d). C.
Bias from pending charges or probationary status. 1. Davis v. Alaska.
Cross Examination Con Caliente
a. Cross-examination directed at revealing possible biases, prejudices, or motives of the witness is a more particular attack on credibility than introducing evidence of a prior crime. “The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316–17 (1974)(citations and internal quotes omitted). b. In Davis, the Court held that the defendant should have been allowed to prove that the State's identification witness was on juvenile probation at the time of trial and at the time of the events he testified to. This evidence was admissible, not to generally impeach the witness's character as a truthful person, but rather to show the existence of possible bias and prejudice causing the witness to misidentify the defendant because of his vulnerable status as a probationer. Id. at 317-18. c. "We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the witness's] testimony. . . ." Id. at 317. The defendant should have been allowed to expose facts to the jury from which jurors could draw appropriate inferences relating to the credibility of the witness. Id. at 318. d. Defendant's interest in cross-examination was paramount to the State's interest in 41 108
protecting the anonymity of juvenile offenders. Id. at 319. 2. Davis’s offspring. a. “Davis v. Alaska embodies a forceful delineation of a defendant's right to cross-examine a prosecution witness to establish bias or motive. “[J]urors [are] entitled to have the benefit of the defense theory before them so that they [can] make an informed judgment as to the weight to place on [the witness'] testimony.” Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App. 2016)(recognizing that arguments to admit evidence attacking a witness’s credibility “may involve both the Confrontation Clause and the Rules of Evidence”). “[W]here the believability of the complainant forms the foundation of the State's case, Texas law favors the admissibility of evidence that is relevant to the complainant's bias, motive, or interest to testify in a particular fashion.” Id. at 910. b. “[T]he constitution is offended if the state evidentiary rule would prohibit him from cross-examining a witness concerning possible motives, bias, and prejudice to such an extent that he could not present a vital defensive theory.” Hammer v. State, 296 S.W.3d 555, 562–63 (Tex. Crim. App. 2009).
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c. “A defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias, or interest for the witness to testify.” Carroll v. State, 916 S.W. 2d 494, 497 (Tex. Crim. App. 1996). Cross-examination of a State’s witness concerning bias stemming from pending charges pursuant to Davis v. Alaska is of constitutional stature, and is not forbidden by Rule 608(b). Appellant's cross-examination concerning the witness’s incarceration was not an inquiry into a specific instance of conduct. Instead, it focused on the witness’s “possible motive, bias or interest in testifying for the State.” Even if there were a conflict with Rule 608(b), the Constitution would prevail. Carroll v. State, 916 S.W. 2d at 500-501. d. The proponent of bias evidence bears the burden of establishing the substance of the excluded evidence by making an offer of proof. Absent this, error is not preserved for appeal. Chambers v. State, 866 S.W. 2d 9, 26-27 (Tex. Crim. App. 1993)(appellant wholly failed to explain why evidence should have been permitted, and what he hoped to establish with evidence). e. "It is clear that the right to cross-examination for the purpose of affecting a witness' credibility is at least dual: A witness may be asked any question, the answer to which may have a tendency to affect his credibility. And if he denies anything that would show a motive for, [sic] or animus to, testify against a party, it may be shown by other witnesses and by independent facts." Harris v. State, 642 S.W. 2d 471, 476-77 (Tex. Crim. App. 1982). f. Spain v. State, 585 S.W. 2d 705, 709-710 (Tex. Crim. App. 1979) – decided five years after Davis v. Alaska – held that appellant was entitled to elicit from the witness, not only that he had been convicted, but also that he had received a probated sentence, to show his bias and motive to testify. 42 109
g. When the courts want to affirm, they point out that the extent of cross-examination which is permissible to show bias rests within the sound discretion of the trial court, which must balance the probative value of the evidence against the risks associated with admission. "The potential risks include the possibility of undue prejudice, embarrassment or harassment to either a witness or a party, the possibility of misleading or confusing a jury, and the possibility of undue delay or waste of time." Cloud v. State, 567 S.W. 2d 801, 802-803 (Tex. Crim. App. 1978). 3. Error under Davis v. Alaska. a. In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Court held that the trial court erred in wholly barring cross-examination concerning dismissal of a drunkeness charge, where the witness admitted the case was dismissed in exchange for his promise to speak to the prosecutor, but denied the agreement affected his testimony. "By thus cutting off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court's ruling violated respondent's rights secured by the Confrontation Clause." Id. at 679.
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b. Appellant's conviction was reversed in Carroll v. State, 916 S.W. 2d 494 (Tex. Crim. App. 1996), where the trial court refused to permit impeachment of the state's witness with evidence that he was awaiting trial on an aggravated robbery charge. The broad scope of crossexamination permitted by the constitution "necessarily includes cross-examination concerning criminal charges pending against a witness and over which those in need of the witness' testimony might be empowered to exercise control." Id. at 498. Such evidence is always admissible to prove bias. Id. at 498 n.5. It is not determinative that there is no agreement between the state and the witness. "What is determinative is whether appellant was allowed to demonstrate any possible bias or interest that [the witness] may hold to testify on the State's behalf. In other words, it is possible, even absent an agreement, that [the witness] believed his testimony in this case would be of later benefit." Id. at 500. c. In Duggan v. State, 778 S.W. 2d 465 (Tex. Crim. App. 1989), the accomplices testified against appellant and denied having any deals for leniency with the state. In the motion for new trial, the prosecutor admitted that he had told the accomplices that he would consider leniency in exchange for their testimony. The court of appeals overruled this challenge, finding no formal agreement for any specific recommendation. This was error. There is no distinction between formal or express agreements, on the one hand, and implied, suggested, insinuated or inferred agreements, on the other. "It makes no difference whether the understanding is consummated by a wink, a nod and a handshake, or by a signed and notarized formal document ceremoniously impressed with a wax seal. A deal is a deal." Id. at 467-68. See also Burkhalter v. State, 493 S.W.2d 214, 219 (Tex. Crim. App. 1973)(rule that “is constitutionally dictated and cannot be cleverly circumvented” by an agreement between the prosecution and defense counsel to give the witness immunity but to keep him unaware of it until after he testified). d. The trial court must permit the appellant to introduce into evidence all of the plea 43
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bargain of the testifying accomplice. The court errs in excluding evidence that the state was not seeking an affirmative finding against the witness, and that the state would ask for no more than 50 years in prison, and, in any event, no more time than the appellant received. Even though the court of criminal appeals agrees that this latter evidence might have been a motive for the witness to have testified mildly against the appellant, this "was a decision that the jury had to make and not for any appellate court to make." Virts v. State, 739 S.W. 2d 25, 31-32 (Tex. Crim. App. 1987). e. In Granger v. State, 683 S.W. 2d 387 (Tex. Crim. App. 1984), cert. denied, 472 U.S. 1012 (1985), appellant was first convicted upon the testimony of his accomplice, who had earlier received the death penalty. Within ten days after testifying against appellant, the accomplice was granted a new trial, and she received 50 years in prison. Appellant's conviction was reversed, and the accomplice refused to testify at the second trial. The court admitted her testimony from the first trial, finding that she was unavailable. This was error, because appellant had been denied the right to effectively cross-examine the accomplice due to the state's failure to disclose that her testimony was induced by an agreement to reduce her punishment. This was not cured by the fact that appellant was allowed to call the accomplice at the second trial and have her testify about the deal, or by the fact that the second jury knew her sentence was 50 years, because the state offered the false testimony at the second trial. Id. at 389-91.
Cross Examination Con Caliente
f. The trial court erred in not permitting appellant to prove that the state had dismissed two charges against its witness and had given him a plea bargain on the third. It is irrelevant that there was no evidence that testifying for the state was a part of the plea bargain. It is also irrelevant that two of the cases had been dismissed, since "there is always a possibility that the State may cause the charges to be refiled if it so chooses." Parker v. State, 657 S.W. 2d 137, 140 (Tex. Crim. App. 1983); see also Morgan v. State, 740 S.W. 2d 57, 59 (Tex. App.–Dallas 1987, pet. ref'd)(even though the state withdrew its motion to revoke the witness’s probation, it could have been refiled). g. Appellant had an unqualified right to ask the state's main witness whether she too had been accused of the offense on trial, because the jury was entitled to understand the witness's vulnerable status in juvenile court and to observe her testimony. Harris v. State, 642 S.W. 2d 471, 479 (Tex. Crim. App. 1982). “[E]xtreme prejudice ensues from a denial of the opportunity to place a material witness in his proper setting as regards his testimony. Accordingly, eliciting an admission that the witness has been accused of or incarcerated for a crime may be pertinent to show that his ‘testimony was biased because given under promise or expectation of immunity, or under the coercive effect of his detention by officers of [government who are] conducting the present prosecution.’” Id. at 476. h. The trial court errs in forbidding cross-examination of the witness about his plea bargain, even if the witness denies that there is a plea bargain. "An effective cross-examination encompasses more than just the opportunity to elicit testimony to establish the existence of certain facts. The cross-examiner should be allowed to expose the limits of the witness' knowledge of relevant facts, place the witness in his proper setting, and test the credibility of the witness. The failure to affirmatively establish the fact sought does not prevent the cross-examination from having 44
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probative value in regard to the witness' credibility. An unbelievable denial of the existence of a fact can be even more probative as to lack of credibility than an affirmative admission of the fact." Spain v. State, 585 S.W. 2d 705, 709-10 (Tex. Crim. App. 1979)(appellant was entitled to elicit from the witness, not only that he had been convicted, but also that he had received a probated sentence, to show his bias and motive to testify). i. The defense was entitled to demonstrate to the jury the bias or motive of the state's rebuttal witness by proving that he was under indictment for possession of methamphetamine. This fact was admissible to show a basis for an inference of undue pressure due to his status as an indictee. This is true even though the prosecutor denied there was a deal for his testimony. Randle v. State, 565 S.W. 2d 927, 930-31 (Tex. Crim. App. 1978). j. The court erred in not permitting appellant to show that an important witness for the state had been arrested and charged as a participant in the robbery and murder but that these charges were not pending at the time of appellant's trial. Castro v. State, 562 S.W. 2d 252, 257 (Tex. Crim. App. 1978). k. The trial court erred in not allowing appellant to prove that the complaining witness had three arrests–for possession of marijuana, unlawfully carrying a weapon and burglary–and that all three charges had been dismissed. It is not important that the charges had been dismissed, since there is the possibility they could be refiled. Simmons v. State, 548 S.W. 2d 386, 388 (Tex. Crim. App. 1977).
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l. The court erred in not permitting appellants to impeach an important witness for the state with the fact that he was under felony indictment for sodomy at the time of trial, where this evidence showed his bias, interest and motive. Evans v. State, 519 S.W. 2d 868, 873 (Tex. Crim. App. 1975). m. Unquestionably a defendant is entitled to wide latitude to expose the potential bias of a State’s witness because charges are pending against the witness. “[T]he same considerations exist when someone other than the witness faces criminal prosecution.” Smith v. State, 156 S.W.3d 184, 186–87 (Tex. App.–Amarillo 2005, no pet.). In Smith, the State depended on three witnesses. Novak was awaiting sentencing on unrelated drug charges, and was the mother of two of the witnesses, and was about to be the mother-in-law of the third. The court of appeals held that the trial court erred in prohibiting cross-examination about Novak’s charges because Smith established “a nexus between the criminal problems to which the third party [Novak] is exposed and the witness' testimony” and so that testimony was relevant and Smith should have been allowed to develop it. Id. at 187. n. The possible motive or bias on the part of the witness and the complainant to see appellant convicted "could have been an important part of his defense and would have strengthened his own testimony. Hilliard v. State, 881 S.W. 2d 917 (Tex. App.–Fort Worth 1994, no pet.). "By denying him the right to explore this possible bias, the trial court frustrated his right to effective crossexamination." Id. at 922-23. 45
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o. The trial court erred in not permitting appellant to prove that the main witness against her had been charged with a felony drug offense and the state had not filed a motion to revoke, even though the witness testified that "no one's offered me anything." Coody v. State, 812 S.W. 2d 631, 633-34 (Tex. App.–Houston [14th Dist.] 1991), rev’d, 818 S.W. 2d 68 (Tex. Crim. App. 1991). The error was harmless, though. Coody v. State, 841 S.W. 2d 30, 31 (Tex. App.–Houston [14th Dist.] 1992, pet. ref’d). p. The trial court abused its discretion in not permitting appellant to cross-examine the witness regarding his deferred adjudication status and any conversations he might have had with the prosecution, police or his probation officer about ending it. Paley v. State, 811 S.W. 2d 226, 229230 (Tex. App.–Houston [1st Dist.] 1991, pet. ref'd)(error harmless, though). q. The trial court erred in not permitting appellant to develop the witness's juvenile parole status, from which the jury might have inferred the possibility of undue influence. Buitureida v. State, 684 S.W. 2d 133, 141 (Tex. App.–Corpus Christi 1984, pet. ref'd). r. The trial court erred in prohibiting appellant from showing that the state's eyewitness was under indictment for possession of heroin where her version of the events had greatly changed between the time she gave her statement and the time of trial. Hall v. State, 663 S.W. 2d 154, 158 (Tex. App.–Fort Worth 1983, no pet.). 4. Davis v. Alaska: Logical or causal connections required.
Cross Examination Con Caliente
a. “Davis v. Alaska is not a blunderbuss that decimates all other evidentiary statutes, rules, and relevance requirements in matters of witness impeachment. It is a rapier that targets only a specific mode of impeachment—bias and motive—when the cross-examiner can show a logical connection between the evidence suggesting bias or motive and the witness's testimony.” Irby v. State, 327 S.W.3d 138, 152 (Tex. Crim. App. 2010)(emphasis supplied)(rejecting “appellant’s absolutist position” that mere status as a probationer is always automatically relevant to bias and motive); see also Johnson v. State, 433 S.W.3d 546, 557-58 (Tex. Crim. App. 2014)(no error in allowing appellant to show the jury only that the witnesses faced felony charges and not that they were first degree felonies, since the sentences faced were only incrementally probative, and there was no showing that a reasonable jury might have received a significantly different impression of credibility had counsel been allowed to elicit that evidence”); Carpenter v. State, 979 S.W.2d 633, 635 (Tex. Crim. App. 1998)(no error in excluding evidence that the State’s witness was charged with theft and a drug offense in federal court where there was no “causal connection or logical relationship between the pending federal charges and the witness' testimony at trial”). b. Jones v. State, 571 S.W.3d 764 (Tex. Crim. App. 2019), reiterated the causal connection/logical relationship principle, but was careful to add this: “Such a principle cannot be applied too rigorously, however, since, ‘generally speaking, the Texas Rules of Evidence permit the defendant to cross-examine a witness for his purported bias, interest, and motive without undue limitation or arbitrary prohibition.” Id. at 769.
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c. In Barrera v. State, the prosecution’s witness had been placed on deferred for an unrelated theft committed two months after the murder that Barrera was being tried for. The defense argued that it was entitled to examine the witness about this because he had been offered "deferred with this DA's office in this courthouse, in this court." The State objected that Barrera had failed to show a causal connection as required by Irby, the trial court sustained the objection, and the court of appeals affirmed. The mere existence of a deferred adjudication status, according to the court of appeals, is not enough to establish bias. Barrera had not elicited evidence from the witness or otherwise demonstrated that he had been offered deferred in exchange for his testimony, or that he was testifying out of fear of revocation. And the witness’s testimony that he had not been promised anything or threatened to testify in a certain way refuted an inference of undue influence or bias resulting from the mere existence of his deferred adjudication status. 2025 WL 1829556 (Tex. App.–Eastland 2025, pet. granted)(not designated for publication). The court of criminal appeals granted Barrera’s petition for discretionary review on its own motion to determine this question: “Should the Court reconsider or clarify any aspect of its decision in Irby v. State . . . . A decision on the petition is pending. 5. No error under Davis v. Alaska. a. The trial court did not abuse its discretion in forbidding appellant from eliciting the witness’s knowledge or lack of knowledge concerning parole eligibility where this would not have further shown his vulnerable relationship with the state, or his potential bias or motive. McDuff v. State, 939 S.W. 2d 607, 618 (Tex. Crim. App. 1997).
Cross Examination Con Caliente
b. The trial court did not err in prohibiting appellant from exploring with the accomplice the details of an unrelated robbery in another county, where the details shed no further light on his motive to cooperate. Lewis v. State, 815 S.W. 2d 560, 565 (Tex. Crim. App. 1991); see Richardson v. State, 744 S.W. 2d 65. 79 (Tex. Crim. App. 1987), vacated on other grounds, Richardson v. Texas, 109 S.Ct. 65 (1989). c. The trial court did not err in not allowing appellant to ask one testifying accomplice about the effect on his testimony of his knowledge that another accomplice, who did not testify, received a life sentence. That this reflected on the testifying witness's bias was collateral and highly speculative. Miller v. State, 741 S.W. 2d 382, 390 (Tex. Crim. App. 1987), cert. denied, 486 U.S. 1061 (1988). d. "Davis v. Alaska is not offended when a defendant is prohibited from asking a witness about an unrelated pending charge, provided that the defendant has otherwise been afforded a thorough and effective cross-examination and where, as here, the bias and prejudice of the witness is so patently obvious." Carmona v. State, 698 S.W. 2d 100, 104 (Tex. Crim. App. 1985). e. The trial court does not err in refusing impeachment with a pending worthless check case having no connection with the instant case, where the witness is a rebuttal, and not a material or accomplice witness, and where there was nothing to show that the prosecutor was using the charge 47
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to pressure favorable testimony. Green v. State, 676 S.W. 2d 359, 363 (Tex. Crim. App. 1984). f. The trial court did not abuse its discretion in excluding proof that the arresting officer had been suspended for filing a false report about another officer. The instant case was filed prior to the incident that led to the officer's suspension. Since the officer was not trying to curry favor or redeem himself by filing this case, and since his testimony supported the charge he filed, it is very speculative to say that his testimony was any different than it would have been had he not been suspended. Cloud v. State, 567 S.W. 2d 801, 803 (Tex. Crim. App. 1978). g. The trial court did not err in refusing to allow cross-examination where the witness's probation had expired at the time of trial so that he had no pending criminal charge. Mead v. State, 759 S.W. 2d 437, 443 (Tex. App.–Fort Worth 1988), rev'd on other grounds, 819 S.W. 2d 869 (Tex. Crim. App. 1991). 6. Harmless error. The improper denial of an opportunity to impeach a witness for bias is subject to a harmless error analysis. . . . Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). "The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of crossexamination otherwise permitted, and, of course, the overall strength of the prosecution's case." Id. Cross Examination Con Caliente
D.
Bias from hostility or violence against accused by witness. 1. Law enforcement hostility and violence.
a. Where appellant contended that the police had beaten a confession out of him, he was entitled to cross-examine the police on this issue. Fuentes v. State, 664 S.W. 2d 333, 335 (Tex. Crim. App. 1984); b. Where appellant's defense to the charge of possession of cocaine was that the cocaine was planted on him by the police, the trial court erred in excluding evidence of bias or hatred by a particular class – police officers – against appellant. Coleman v. State, 545 S.W. 2d 831, 835 (Tex. Crim. App. 1977). c. The trial court errs in not permitting appellant to prove that, the day after he was arrested for assault on a police officer, the complaining witness and several other officers came to his house and beat him. This was relevant to show the complainant's bias and prejudice and may have affected his credibility before the jury. Blair v. State, 511 S.W. 2d 277, 278-79 (Tex. Crim. App. 48
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1974). d. Where appellant was charged with possession of heroin, he should have been permitted to prove that the police beat him up shortly after his arrest, because this would have proved their bias, motive or animus. Hooper v. State, 494 S.W. 2d 846, 848 (Tex. Crim. App. 1973); accord Seal v. State, 496 S.W. 2d 621, 623 (Tex. Crim. App. 1973); see Lansdale v. State, 158 S.W. 2d 75, 75 (Tex. Crim. App. 1942)(trial court erred in not permitting appellant to prove "certain testimony relative to what took place at the time of his arrest by the constable"). e. Appellant was on trial for assaulting a prison guard. The trial court reversibly erred in prohibiting appellant from questioning the guard about a prior incident where he had lied in a written statement to protect a fellow officer because this action was probative of a bias in favor of prison officials. “The basic argument is if he lied to protect a fellow officer from this same type of charge, he would likely lie to protect himself. This is the type of evidence that is admissible on cross-examination.” Sherman v. State, 20 S.W.3d 96, 100–01 (Tex. App.–Texarkana 2000, no pet.). f. Evidence that a police officer had been discharged from the police force for falsifying reports was inadmissible under Rule 608(b). Ramirez v. State, 830 S.W. 2d 827, 829 (Tex. App.–Corpus Christi 1992, no pet.). g. The trial court erred in not permitting appellants to question the arresting officer in a resisting arrest case about his use of a nightstick, because the officer's use of force was sharply contradicted, and because appellants' s theory was that they were merely resisting the use of excessive force. Moody v. State, 830 S.W. 2d 698, 705 (Tex. App.–Houston [1st Dist] 1992, pet. ref’d). Cross Examination Con Caliente
h. The trial court erred in prohibiting appellant from asking the arresting officer in a resisting arrest case about his prior use of a stun gun, because this was relevant to establish the officer's motive for testifying that he had not used excessive force in this case. Posey v. State, 738 S.W. 2d 321, 324 (Tex. App.–Dallas 1987, pet. ref'd). i. The trial court erred in not permitting appellant to prove that the police shot him, where this evidence both went to appellant's defense to the offense of resisting arrest, and where it may have affected the credibility of the police officers. Nicholson v. State, 738 S.W. 2d 59, 62 (Tex. App.– Houston [1st Dist.] 1987, no pet.). j. The trial court should have permitted appellant charged with the attempted capital murder of a police officer that the officer visited appellant after the shooting and said, "I should have killed you." This proved the officer's state of mind and the jury should have had the evidence to evaluate his prejudice and bias in weighing his credibility. Further, this is admissible to show the officer's ill-feeling and animus against appellant. Moreno v. State, 711 S.W. 2d 382, 385 (Tex. App.–Houston [14th Dist.] 1986), rev'd on other grounds, 755 S.W. 2d 866 (Tex. Crim. App. 1988). k. The trial court erred in prohibiting defense counsel from “inquiring into any matters 49
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regarding defense counsel's attempts to speak with the arresting officers or any statements made by the officers to defense counsel or his agents when refusing to discuss the arrest with them.” This evidence was admissible as a matter affecting the witnesses credibility. The court rejected the State’s argument that the evidence showed the witness’s hostility toward the lawyer and not the appellant. [A]nimosity directed toward a defendant's attorney may often be, as a practical matter, as harmful to the defendant as animosity directed toward him.” R --- M --- G --- v. State, 711 S.W.2d 397, 399-400 (Tex. App.–Dallas 1986), aff'd sub nom. Gengnagel v. State, 748 S.W.2d 227 (Tex. Crim. App. 1988). 2.
Arrest quotas and officer’s pay.
a. The trial court erred in refusing to allow the appellant to cross-examine the arresting officer in a DWI case concerning a directive from his superior establishing a quota for arrests. Alexander v. State, 949 S.W. 2d 772, 775 (Tex. App.–Dallas 1997, pet. ref’d). b. Although evidence of the arresting officer’s aggregate overtime pay was relevant evidence, the trial court did not err in excluding same in light of the potential for undue prejudice, embarrassment, harassment, confusion of the issues and undue delay. Castillo v. State, 939 S.W. 2d 754, 758-60 (Tex. App.--Houston [14th Dist.] 1997). The jury in Castillo was allowed to hear that the officer was getting overtime pay for testifying in the instant case. c. The trial court erred in not permitting appellant to cross-examine the arresting officer in a drink solicitation case about how much money he had spent at the bar, where appellant's theory was that the officer had to make meritless arrests in order to justify his expenses. Vela v. State, 776 S.W. 2d 721, 725 (Tex. App.–Corpus Christi 1989, no pet.). Cross Examination Con Caliente
3.
Hostility and violence by non-law enforcement.
a. Appellant was entitled to prove that the state's witness had attacked him in public, had thrown drinks at him, and had tried to attack women he was with, because this tended to prove her malice, bias, ill feeling, animus or prejudice. Koehler v. State, 679 S.W. 2d 6, 10 (Tex. Crim. App. 1984). b. Appellant was entitled to ask the state's witness whether she and her husband had hard feelings against him, even though the witness denied this on a bill of exceptions. The jury should have been given the opportunity to judge for themselves her credibility. Wood v. State, 486 S.W. 2d 359, 362 (Tex. Crim. App. 1972). c. The trial court erred in not permitting appellant to prove that the state's witness hit him on the head with a key ring after he had been arrested. Powitzky v. State, 117 S.W. 2d 72, 73 (Tex. Crim. App. 1938).
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E.
Bias related to civil litigation.
1. The trial court erred in not permitting appellant to cross-examine the mother of the complainant in an aggravated sexual assault case concerning a pending lawsuit seeking $125,000.00 in damages against the owners of the apartment complex where the alleged incident occurred. Shelby v. State, 819 S.W. 2d 544, 545 (Tex. Crim. App. 1991); accord Davis v. State, 831 S.W. 2d 426, 442 (Tex. App.–Austin 1992, pet. ref’d). 2. The court distinguished Shelby in Hoyos v. State, holding that the trial court did not err in excluding evidence that the complainant had sued the apartment complex she lived in when assaulted, finding that, under the facts, appellant’s conviction would not “further complainant’s objectives in the civil lawsuit,” and that success in the civil case depends on proving the crime occurred as a result of the complex’s negligence; neither the crime’s occurrence nor the complex’s negligence were issues in the criminal case. The record contained “no indication that (1) appellant was a contemplated party to the anticipated lawsuit, (2) a relationship existed between appellant and the apartment complex, (3) a fact issue existed concerning the occurrence of the crime, or (4) there was any other reason to believe that the lawsuit might cause the complainant to be biased in her testimony at the criminal trial. . . . Absent one of the four factors listed above, the lawsuit did not give rise to an inference of bias.” 982 S.W.2d 419, 421–22 (Tex. Crim. App. 1998).
Cross Examination Con Caliente
3. The trial court erred in prohibiting appellant from cross-examining the State’s witness regarding a pending termination-of-parental-rights proceeding where her awareness of that proceeding created a sufficient “logical relationship”/“causal connection” to invoke appellant's Sixth Amendment right to cross-examine her for potential bias. Jones v. State, 571 S.W.3d 764, 770 (Tex. Crim. App. 2019)(error harmless, though, despite that “most of the Van Arsdall factors appear to militate in favor of the court of appeals' conclusion that the error was not harmless beyond a reasonable doubt”). 4. The trial court did not err in prohibiting cross-examination into a previously settled lawsuit against the witness by an anonymous West Virginia prisoner where this in no way showed bias or motive. Moody v. State, 827 S.W. 2d 875, 891 (Tex. Crim. App. 1992). 5. In Cox v. State, 523 S.W. 2d 695, 700 (Tex. Crim. App. 1975), the court held that, where the fact of the filing of the civil case was before the jury, the court does not err in refusing to admit the pleading itself, at least where it does not contain any statement which could be used for impeachment purposes. See Jolly v. State, 681 S.W. 2d 689, 694 (Tex. App.–Houston [14th Dist.] 1984), rev'd on other grounds, 739 S.W. 2d 345 (Tex. Crim. App. 1987)(impeachment must be by cross-examination of person who initiated suit, not by introduction of pleading or by testimony of third party); Mullins v. State, 699 S.W. 2d 346, 351 (Tex. App.–Corpus Christi 1985, no pet.)(no error in refusing testimony of attorney where complainant admitted filing lawsuit); but cf. Fletcher v. State, 437 S.W. 2d 849, 852 (Tex. Crim. App. 1969)(court records, not testimony of attorney, are best evidence of pending litigation). 6. "For the purpose of discrediting him, it may be shown that a prosecuting witness has 51
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brought a civil suit for damages based upon the same occurrence as that for which the accused is being prosecuted." Blake v. State, 365 S.W. 2d 795, 796 (Tex. Crim. App. 1963); accord Rhodes v. State, 387 S.W. 2d 413, 414 (Tex. Crim. App. 1965); see also Gilson v. State, 145 S.W. 2d 182, 183 (Tex. Crim. App. 1940); Vyoral v. State, 224 S.W. 889, 889 (Tex. Crim. App. 1920); Hoffman v. State, 209 S.W. 747, 748 (Tex. Crim. App. 1919); see Zuniga v. State, 664 S.W. 2d 366, 369 (Tex. App.–Corpus Christi 1983, no pet.)("bringing of a civil suit is proper evidence of bias or interest"). 7. The trial court erred when it limited cross-examination of the State's only witness on his motive to fabricate testimony against appellant, his former wife. Although jury heard that their divorce was bitter, the defense was entitled to inquire about a “substantial child support arrearage judgment” against the witness. McDaniel v. State, 3 S.W.3d 176, 180–82 (Tex.App.–Fort Worth 1999, pet. ref'd). 8. The trial court erred in sustaining the State’s objection to evidence showing a witness, the appellant’s husband. had offered to influence the criminal proceedings favorably for appellant in return for concessions in the divorce proceedings, because it showed the witness’s bias and motive. L.M.W. v. State, 891 S.W.2d 754, 766 (Tex. App.–Fort Worth 1994, pet. ref’d). 9. The trial court did not abuse its discretion in prohibiting appellant from cross-examining a police officer concerning a corresponding civil forfeiture suit where the officer himself gained only indirectly, if at all, from such suit. This evidence has only marginal relevance. Frierson v. State, 839 S.W. 2d 841, 850 (Tex. App.–Dallas 1992, pet. ref’d).
Cross Examination Con Caliente
10. The trial court erred in prohibiting appellant from cross-examining the complainant in a robbery case concerning the civil lawsuit she had against the store in which the robbery took place. Furgison v. State, 800 S.W. 2d 587, 591 (Tex. App.–Houston [14th Dist.] 1990, pet. ref'd)(error harmless, though, in light of overwhelming evidence of guilt). 11. The trial court does not err in prohibiting cross-examination of the complainant concerning his worker's compensation suit, since it was not a civil suit seeking damages arising from the robbery. Deloney v. State, 734 S.W. 2d 6, 9 (Tex. App.–Dallas 1987, pet. ref'd). 12. Where the parties to the lawsuit testify, but do not testify to facts which inculpate appellant, there is no error in refusing to permit proof of a lawsuit. Branford v. State, 306 S.W. 2d 725, 726 (Tex. Crim. App. 1957). 13. Pleadings and judgments from other cases are inadmissible as hearsay. E.g., Jernigan v. State, 589 S.W. 2d 681, 692 (Tex. Crim. App. 1979)(lawsuits); Oliver v. State, 551 S.W. 2d 346, 348 (Tex. Crim. App. 1977)(answer and judgment); Erwin v. State, 531 S.W. 2d 337, 338 (Tex. Crim. App. 1976)(divorce petition); Barker v. State, 509 S.W. 2d 353, 354 (Tex. Crim. App. 1974)(annulment petition); Yates v. State, 489 S.W. 2d 620, 621 (Tex. Crim. App. 1973)(divorce petition and temporary restraining order); Brooks v. State, 475 S.W. 2d 268, 272 (Tex. Crim. App. 1972)(temporary restraining order); Acker v. State, 421 S.W. 2d 398, 402 (Tex. Crim. App. 52
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1967)(divorce petition). 14. Pleadings are inadmissible even to rebut testimony. Barker v. State, 509 S.W. 2d 353, 354 (Tex. Crim. App. 1974); Hoyle v. State, 223 S.W. 2d 231, 232 (Tex. Crim. App. 1949). F.
Racial bias.
1. The trial court permitted appellant to ask the complainant if he had anything against black people; if he had ever stated or had feelings or oppositions to people of the black race, or whether there was anything in his past that would show an aversion to blacks. Counsel was not permitted to ask the complainant about various acts of alleged bigotry, including: whether he had an established propensity for hating people of the black race; if he had been terminated from employment on several occasions for violence against blacks; whether he had fired every black employee he ever had, and if he was terminated as manager of a liquor store in Florida because he had problems with black customers. This was error. "Racial bigotry is a prototypical form of bias." Hurd v. State, 725 S.W. 2d 249, 253 (Tex. Crim. App. 1987). It is reasonable to assume that the alleged racial bias of the witness could furnish him with a motive for favoring the state in his testimony. Id. at 253 n.1. 2. “The same may be said, we believe, about prejudice based on ethnicity or national origin. Thus, a witness's bias or prejudice against Hispanics may be a legitimate area of inquiry under rule [613(b)]. Gonzales v. State, 929 S.W.2d 546, 550 (Tex. App.–Austin 1996, pet. ref’d). Here, although the court recognized that prejudice against a defendant because he is biased may be a legitimate area of inquiry, the trial court did not abuse its discretion in excluding the evidence under Rule 403. Id. at 551. Cross Examination Con Caliente
G.
Bias stemming from membership in gangs or organizations.
1. "A witness' and a party's common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias." United States v. Abel, 469 U.S. 45, 52 (1984). In Dawson v. Delaware, 503 U.S. 159, 160 (1992), the question was not impeachment evidence, but instead, whether evidence was admissible at the punishment phase of a capital murder case. Not – according to the Supreme Court – where membership is protected under the First and Fourteenth Amendments and “has no relevance to the issues being decided in the proceeding”); cf. Anderson v. State, 901 S.W.2d 946, 954 (Tex. Crim. App. 1995)(distiguishing Dawson, where appellant’s gang was organized primarily for illegal purposes and not protected by the First Amendment). 2. Appellant was entitled to prove that the state's witness had distributed handbills, and why he had distributed them, where this showed his bias and prejudice against the system of justice in Austin. Jackson v. State, 482 S.W. 2d 864, 868 (Tex. Crim. App. 1972). 3. The trial court properly allowed the state to impeach its own recalcitrant witness with evidence that both he and the defendant were members of the “Black Villains Assassins,” because 53
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their gang affiliation showed bias. Bridgewater v. State, 905 S.W. 2d 349, 353 (Tex. App.–Fort Worth 1995, no pet.); see McKnight v. State, 874 S.W. 2d 745, 746 (Tex. App.–Fort Worth 1994, no pet.)(evidence that witness and appellant belonged to same gang bore on witness's veracity and bias, and was sufficiently probative to be admissible); see also Bynum v. State, 731 S.W. 2d 661, 664-65 (Tex. App.–Houston [14th Dist.] 1987, no pet.). 4. In Trinh v. State, 930 S.W. 2d 214, 219 (Tex. App.–Fort Worth 1996, pet. ref’d), the court of appeals held that the trial court impermissibly admitted evidence of gang membership where there was no evidence connecting the witness and the appellant by gang affiliation, and where there was no evidence reflecting the nature of the gang in question. This error was waived, however, when appellant failed to move to strike the evidence after the state was unable to connect him with the gang. H.
Bias by defense witnesses.
1. It is permissible for the prosecution to prove that the defendant and his witness are both members of a prison gang which was sworn to secrecy and self-protection. United States v. Abel, 469 U.S. 45, 52 (1984).
Cross Examination Con Caliente
2. Typically, bias by proof of pending charges is used to impeach witnesses for the state. "In most cases proof of a pending charge against a defense witness has no bearing on his motive to testify for an accused." Alexander v. State, 740 S.W. 2d 749, 763 n.7 (Tex. Crim. App. 1987); see Murphy v. State, 587 S.W. 2d 718, 723 (Tex. Crim. App. 1979); Fentis v. State, 528 S.W. 2d 590, 593 (Tex. Crim. App. 1975); but see Staley v. State, 888 S.W. 2d 45, 50 (Tex. App.–Tyler 1994, no pet.)(impeachment permitted where defense witness was under indictment and being prosecuted in same court as appellant); McKnight v. State, 874 S.W. 2d 745, 747-48 (Tex. App.–Fort Worth 1994, no pet.)(animosity between prosecutor and witness). 3. Where the state is entitled to show the bias of a defense witness, it may not impeach that witness with evidence that his relatives were in trouble with the law, unless it can establish some causal connection or relationship between the relative's problem and the witness's testimony. London v. State, 739 S.W. 2d 842, 846 (Tex. Crim. App. 1987)(trial court erred in permitting proof of relative's problem's with the law where these problems were irrelevant). 4. Although the state may have been entitled to prove the witness's extraneous offense for bias impeachment, it was improper to prove that appellant was her co-indictee. Kelley v. State, 807 S.W. 2d 810, 818 (Tex. App.–Houston [14th Dist.] 1991, pet. ref'd). 5. Although a defendant’s status as a probationer is relevant to his credibility as a witness for himself, the court of criminal appeals held that its admission here violated Rule 403, because the relevance of the evidence was “vanishingly low” and the “danger of its misleading the jury and being used for unfair prejudice was much higher.” Moreno v. State, 22 S.W.3d 482, 489 (Tex. Crim. App. 1999).
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I.
Other biases.
1. Where the defendant alleges that his file with the Texas Board of Pardons and Paroles contains letters from a state's witness which would tend to show her bias, prejudice and motive for testifying, the trial court must examine these letter in camera. If the letters do tend to show bias, they must be made available for cross-examination after the witness testifies. Texas Board of Pardons and Paroles v. Miller, 590 S.W. 2d 142, 145 (Tex. Crim. App. 1979). 2. It was not error for the state to prove that the witness enjoyed a "special relationship with" and was "romantically involved with" appellant, for the purpose of showing the witness's bias. Vaughn v. State, 888 S.W. 2d 62, 74-75 (Tex. App.–Houston [1st Dist.] 1994, pet. granted). J.
Preservation of error.
1. Where counsel relies on an informal bill of exception to preserve error, the bill must include a summary of the proposed testimony. Merely informing the judge of an intent to establish a basis for an instruction on probable cause does not preserve error, because it does not provide a concise statement regarding the content of the testimony to be elicited. Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993). 2. A defendant is not limited to any one method of showing what the excluded testimony would have been. Here appellant preserved error by clearly explaining what the excluded testimony would have been, even though he did not establish the specific questions he intended to ask. Gutierrez v. State, 764 S.W. 2d 796, 798 (Tex. Crim. App. 1989). Cross Examination Con Caliente
3. Error was preserved by an informal bill of exceptions which sufficiently showed what questions appellant would have asked the witness and the answers he might have received. "It was not necessary for counsel to show the trial court that his cross-examination of the witness would affirmatively establish the facts he sought to prove." Hurd v. State, 725 S.W. 2d 249, 253 (Tex. Crim. App. 1987); accord Harris v. State, 642 S.W. 2d 471, 479 (Tex. Crim. App. 1982); Buitureida v. State, 684 S.W. 2d 133, 139 (Tex. App.--Corpus Christi 1984, pet. ref'd). 4. Koehler v. State, 679 S.W. 2d 6, 8-9 (Tex. Crim. App. 1984)(appellant’s offer of proof , which included the questions appellant desired to ask, preserved error, without the need of showing what facts the cross-examination would have revealed). 5. Although it is error to deny the right to impeach for purposes of showing bias, prejudice, interest or motive, "in this case, appellant never advised the court that his cross-examination concerning prior arrests of the witness was for the purpose of showing bias, prejudice, interest or motive." Robinson v. State, 681 S.W. 2d 288, 289 (Tex. App.–San Antonio 1984, pet. ref'd).
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K.
Harmful or harmless?
1. "[T]he constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). 2. In Shelby v. State, 819 S.W. 2d 544, 551 (Tex. Crim. App. 1991), the court applied the Van Arsdall test and was unable to conclude beyond a reasonable doubt that the confrontation violation there was harmless. IX.
IMPEACHMENT WITH CHARACTER EVIDENCE
A.
Rule 608(a): Reputation or Opinion Evidence. 1. Text. Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.
TEX. R. EVID. 608(a). Cross Examination Con Caliente
2. Case law. a. “Impeaching a witness with a prior inconsistent statement is not necessarily an attack on credibility that would allow rehabilitative evidence of character for truthfulness under Rule of Evidence 608(a).” Michael v. State, 235 S.W.3d 723, 725 (Tex. Crim. App. 2007). b. “A complainant's testimony regarding the charged offense may be undermined in any number of ways, including . . . evidence of bad character for truthfulness. . . . The State may counter with evidence that logically rehabilitates that complainant. Such rehabilitation may take the form of . . . evidence of good character for truthfulness. . . .” Pavlacka v. State, 892 S.W.2d 897, 902–03 (Tex. Crim. App. 1994). c. Appellant's question of the complainant’s mother concerning whether the complainant was a truthful person was a “valid attempt to impeach the complainant's character through general opinion testimony. Obviously, the complainant's mother knew the complainant well enough to give a lay opinion as to character.” Schutz v. State, 957 S.W.2d 52, 73–74 (Tex. Crim. App. 1997). 56
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d. As the rule notes, character for truthfulness, as opposed to untruthfulness, may not be proved unless the witness's character for truthfulness has been attacked by opinion or reputation or otherwise. Presenting evidence that merely contradicts the witness is not a sufficient attack to merit proof of truthful character. Stewart v. State, 587 S.W. 2d 148, 152 (Tex. Crim. App. 1979); Mehaffey v. State, 650 S.W. 2d 851, 855-56 (Tex. App.–Houston [14th Dist.] 1982, no pet.). e. Where the witness testifies only to appellant's reputation for truth and veracity, it is error to permit impeachment question which relate only to reputation for being a peaceful and law abiding citizen. Baize v. State, 790 S.W. 2d 63, 66 (Tex. App.–Houston [1st Dist.] 1990, pet. ref'd). f. Where a party calls a character witness to testify to the good reputation of a witness, the opponent can ask the witness if he has heard of specific acts of misconduct inconsistent with that reputation. Evans v. State, 757 S.W. 2d 759, 760 (Tex. Crim. App. 1988). g. Before enactment of the Rules of Criminal Evidence, the only proper way to prove character was by reputation testimony. If a witness was improperly allowed to give an opinion about character, it was deemed improper to impeach the witness with "Have you heard" questions. Ward v. State, 591 S.W. 2d 810, 814 (Tex. Crim. App. 1978). Since under the Rules a character witness may now testify both as to what he knows and as to what he has heard, it follows that the witness may be asked on cross-examination, both "Do you know," as well as, "Have you heard" questions. Lancaster v. State, 754 S.W. 2d 493, 495 (Tex. App.–Dallas 1988, pet. ref'd); see Bratcher v. State, 771 S.W. 2d 175, 187 (Tex. App.–San Antonio 1989, no pet.).
Cross Examination Con Caliente
h. "It is . . . improper to permit a witness to testify that a defendant's general reputation for being a peaceable law-abiding citizen is bad based upon the offense for which he is being tried." Wright v. State, 491 S.W. 2d 936, 938 (Tex. Crim. App. 1973). "It is also improper to test the knowledge of a witness who has testified to the good reputation of a defendant for being a peaceable, law-abiding citizen by asking 'have you heard' questions concerning the alleged offense for which he is being tried." Id; accord Rodriquez v. State, 509 S.W. 2d 319, 321 (Tex. Crim. App. 1974); Davis v. State, 831 S.W. 2d 839, 844 (Tex. App.–Dallas 1992, pet. ref'd). This rule is based both on the presumption of innocence and common sense. "If the discussion of the charge contained in the indictment could be used as a basis for showing that a man's reputation as a law-abiding citizen was bad, then no man who was on trial could successfully show a good reputation as a law-abiding citizen." Stephens v. State, 80 S.W. 2d 980, 982 (Tex. Crim. App. 1935). i. That appellant was a juvenile when his reputation became known to the character witness will not render the testimony inadmissible. Cooks v. State, 844 S.W. 2d 697, 737 (Tex. Crim. App. 1992); see Chandler v. State, 744 S.W. 2d 341, 345 (Tex. App.–Austin 1988, no pet.)("juvenile probation officer is competent to testify to a defendant's reputation"). j. A reputation witness is not disqualified simply because his testimony is based on both personal experience and community reputation. Cooks v. State, 844 S.W. 2d 697, 737 (Tex. Crim. App. 1992). 57
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k. If requested, the trial court should give a limiting instruction "to the effect that the questions are not to be considered as substantive evidence, and that only the credibility of the witness, and not the credibility of the defendant is being called into question." Brown v. State, 477 S.W. 2d 617, 220 (Tex. Crim. App. 1972). l. It is improper to ask a witness, on redirect examination, whether he is telling the truth. This does not seek to support the witness's credibility by way of opinion or reputation, nor does it concern the witness's character for truthfulness, and therefore, it "is not consistent with rule 608(a)." This is merely a self-serving assertion as to whether or not he was telling the truth. Wills v. State, 867 S.W.. 2d 852, 855 (Tex. App.–Houston [14th Dist.] 1993, pet. ref'd). m. “We believe the question, ‘Is it such that she should be believed under oath?’ is a further question as to reputation based on the witness's opinion, which is allowed under Rule 608.” Scott v. State, 222 S.W.3d 820, 826 (Tex. App.–Houston [14th Dist.] 2007, no pet.)(harmless error). n. “Rule 608(a), which allows opinion or reputation evidence as to the character of a party's own witness for truthfulness, but only after the witness's character for truthfulness has already been attacked by the opposing party, appears to be encompassed by the generic “bolstering” objection.” Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009). 3. Preservation of error.
B.
Cross Examination Con Caliente
Appellant’s “bolstering” objection does not preserve a complaint that the conduct violated Rule 608(a). Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993); but see Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)(characterizing Rule 608(a) as an “apparent ‘bolstering’” provision). Rule 608(b): Specific instances of misconduct. 1. Text. Specific Instances of Conduct. Except for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness's conduct in order to attack or support the witness's character for truthfulness. TEX. R. EVID. 608(b). 2. The general rule prohibits the use of specific acts of misconduct to attack character. a. Generally, impeachment on a collateral matter is impermissible. Although sometimes the rules of evidence must give way to the right to confrontation, appellant did not carry his burden to show any exception to the general rule. Appellant has not shown that any such exception applies in this case. “Appellant failed to carry his burden, as proponent of the evidence, to show that 58
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the question was anything more than a prelude to impeachment on a collateral matter and an impermissible attempt to attack the complaining witness's general credibility with evidence of specific instances of conduct.” Pierson v. State, 426 S.W.3d 763, 772 (Tex. Crim. App. 2014)(no abuse of discretion to prohibit question about prior false allegation of sexual abuse). b. The trial court properly excluded evidence that a State’s witness had previously given a false name after an arrest, and that he had shot his stepfather, since this evidence constituted specific instances of conduct but not prior convictions under Rule 609. Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000). c. “Rule 608(b) expressly prohibits the utilization of specific instances of conduct – such as drug addiction evidence – for impeachment except to expose bias, correct any affirmative misrepresentations made on direct examination, or demonstrate lack of capacity.” Lagrone v. State, 942 S.W. 2d 602, 613 (Tex. Crim. App. 1997). d. The State improperly questioned appellant’s witness about her use of heroin where it made no effort to demonstrate that she “had previously used or was under the influence of heroin at the time of the incident for which appellant was prosecuted.” Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990).
Cross Examination Con Caliente
e. The trial court erred in permitting the state to impeach appellant with evidence that he had falsified information about his prior criminal record when he purchased a pistol, since this was a specific act of misconduct that had not resulted in a conviction. Alexander v. State, 740 S.W. 2d 749, 764 (Tex. Crim. App. 1987); see Moreno v. State, 711 S.W. 2d 382, 384 (Tex. App.–Houston [14th Dist.] 1986), rev'd on other grounds, 755 S.W. 2d 866 (Tex. Crim. App. 1988)(trial court erred in permitting impeachment of appellant by evidence that he had previously owned or fired guns). f. Evidence that a police officer had been discharged from the police force for falsifying reports was inadmissible under Rule 608(b). Ramirez v. State, 830 S.W. 2d 827, 829 (Tex. App.–Corpus Christi 1992, no pet.). g. The trial court did not err prohibiting appellant from questioning the complainant in an aggravated assault case about her income tax returns. Fagbemi v. State, 778 S.W. 2d 119, 121 (Tex. App.–Texarkana 1989, pet. ref'd). 3. Exceptions to the general rule prohibiting specific acts of misconduct. a. Although Rule 608(b) "is very restrictive and allows for no exceptions . . . constitutional considerations are of some import to this issue." Specifically, the constitutional right to "confrontation includes the opportunity for cross-examination to attempt to expose a witness's motivation in testifying." Accordingly, the trial court lacks the "discretion to prohibit a defendant from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of a witness." Moody v. State, 827 S.W. 2d 875, 891 (Tex. Crim. App. 1992)(no error). 59
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b. “Rule of Evidence 613(b), which creates an exception to Rule 608(b), provides that a witness may be impeached by using extrinsic evidence to show bias or interest.” Billodeau v. State, 277 S.W.3d 34, 40 (Tex. Crim. App. 2009). In Billodeau, a unanimous court of criminal appeals rejected the State’s reliance on Rule 608(b), finding instead that the trial court abused its discretion under Rule 613(b) when it prevented appellant from questioning the complainant about threats he made to neighbors who angered him, that he would falsely accuse them of molesting him. “[T]he inability to fully present [appellant’s] defense affected a substantial right and is therefore harmful error.” Id. at 42-43. c. “Under Rule 404(a)(3) of the Texas Rules of Evidence, a defendant may always offer evidence of a pertinent character trait – such as truthfulness – of any witness. But, under Rule 608 the witness's general character for truthfulness may be shown only through reputation or opinion testimony. A witness's general character for truthfulness or credibility may not be attacked by cross-examining him (or offering extrinsic evidence) concerning specific prior instances of untruthfulness.” Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009)(however, “the rules of evidence do permit a witness to be cross-examined on specific instances of conduct when they are used to establish his specific bias, self-interest, or motive for testifying”). d. The court of appeals improperly relied on Rule 608(b) where “appellant did not seek to cross-examine Russell about the underlying facts which gave rise to the aggravated robbery charge. Rather, appellant attempted to inform the jury that Russell had a vulnerable relationship with the State at the time of his testimony.” And even if there were a “conflict between the right to cross-examine a witness about a pending charge and Rule 608(b) . . . the constitutional right of confrontation would prevail.” Carroll v. State, 916 S.W.2d 494, 501 (Tex. Crim. App. 1996). Cross Examination Con Caliente
e. Rule 613(b) “is different from Rule 608. Rule 608 addresses a witness's general character for truthfulness. [Rule 613(b)] addresses a witness's trustworthiness in the particular case because of some bias or interest.” Dixon v. State, 2 S.W.3d 263, 271 (Tex. Crim. App. 1999)(but objecting to a cross-examination under one rule does not preserve the argument that the other rule was violated); see Sparks v. State, 943 S.W. 2d 513, 517 (Tex. App.– Fort Worth 1997, pet. ref’d)(Rule 613(b) creates an exception to rule 608(b)’s general prohibition against the use of specific acts to impeach where the evidence shows a bias or motive to testify untruthfully). C.
To correct a false impression.
1. In Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005), the defendant (stupidly) testified: “I would not do something like that,” and “I have never done anything of that sort with a sixteen year old girl, period.” Id. at 453. The court held that direct examination testimony that contains “a broad disclaimer of misconduct sometimes can open the door for extrinsic evidence to contradict even though the contradictory evidence is otherwise inadmissible under Rules 404 and 608(b) and is, thus, collateral.” The court found that defendant’s testimony allowed the State to introduce extraneous sexual conduct with another child “to rebut these sweeping statements disavowing any sexual 60
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misconduct with minors.” Id. at 454. That said, the court reversed the conviction because the trial court’s limiting instruction allowed the jury to consider the extraneous offense for its substantive value, rather than its proper purpose, which was only to rebut the blanket statement of good conduct with minors. The case was remanded to the court of appeals for a harm analysis, and that court reversed and remanded for a new trial, finding “little doubt that the erroneously admitted evidence, and the way it was used by the State, substantially affected and influenced the jury in determining its verdict.” Daggett v. State, 2006 WL 2263883, at *5 (Tex. App.–San Antonio 2006, no pet.)(not designated for publication). 2. “When a witness presents a picture that the defendant is not the type of person to commit the charged offense, the prosecution may impeach that witness' testimony by cross-examining the witness concerning similar extraneous offenses. . . . The evidentiary caveat, however, is that the opponent must correct the ‘false impression’ through cross-examination of the witness who left the false impression, not by calling other witnesses to correct that false impression.” Wheeler v. State, 67 S.W.3d 879, 885 (Tex. Crim. App. 2002)(emphasis supplied); but see Daggett v. State, 187 S.W.3d at 454(where “defendant's statement of good conduct is directly relevant to the offense charged—i.e., “I would never have sexual relations with a minor”—the opponent may both cross-examine the defendant and offer extrinsic evidence rebutting the statement. This is not impeachment on a collateral matter. The statement of good conduct goes to the “heart” of the matter.
Cross Examination Con Caliente
3. “Rule 403 gives the trial court considerable discretion to exclude evidence” offered to correct a false impression. Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007). In Winegarner, appellant was on trial for assaulting his wife, who testified that “I'm not crazy enough to hit a man or start a fight. That's why I always leave.” Arguing that she had opened the door, the defense sought to prove that, on at least one occasion, some 13 years before appellant allegedly assaulted her, the complainant had assaulted her then-husband. Given the nature of complainant’s actions, and their remoteness, the court of criminal appeals was unwilling to say the trial court’s decision was outside the zone of reasonable disagreement. “Had we been in the trial court's shoes, we might have reached a different conclusion, but that is not the standard on appellate review.” Id. 4. The witness K.R.’s contradiction of another witness’s statements that K.R. was a “poor” mother, did not amount to a blanket assertion that she had never before been in trouble, and was insufficient to implicate the exception allowing the correction of a false impression. Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990). 5. The trial court properly refused to permit appellant to impeach the complainant with evidence that he carried a gun, because he did not make a blanket statement claiming that he never carried a gun. Medina v. State, 828 S.W. 2d 268, 270 (Tex. App.–San Antonio 1992, no pet.). X.
IMPEACHMENT WITH EVIDENCE OF CONVICTION OF CRIME
A.
Rule 609(a): In general.
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In General. Evidence of a criminal conviction offered to attack a witness's character for truthfulness must be admitted if: (1) the crime was a felony or involved moral turpitude, regardless of punishment; (2) the probative value of the evidence outweighs its prejudicial effect to a party; and (3) it is elicited from the witness or established by public record. TEX. R. EVID. 609(a). 1. What constitutes "moral turpitude" in Texas? a. "Generally, moral turpitude means something that is inherently immoral or dishonest." Hutson v. State, 843 S.W. 2d 106, 107 (Tex. App.–Texarkana 1992, no pet.); see also Hardeman v. State, 868 S.W. 2d 404, 405 (Tex. App.–Austin 1993), pet. dism'd, 891 S.W. 2d 960 (Tex. Crim. App. 1995)("the quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita"); Searcy v. State Bar of Texas, 604 S.W. 2d 256, 258 (Tex. Civ. App.–San Antonio 1980, writ ref'd n.r.e.)(acts which are base, vile or depraved).
Cross Examination Con Caliente
b. “Crimes involving moral turpitude are those that involve dishonesty, fraud, deceit, misrepresentation, or deliberate violence. Furthermore, moral turpitude can be construed as including offenses concerning matters of personal morality.” Matter of G.M.P., 909 S.W.2d 198, 208 (Tex. App.–Houston [14th Dist.] 1995, pet. ref’d)(citation omitted). c. “Moral turpitude has been defined as: (1) the quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita; (2) conduct that is base, vile, or depraved; and (3) something that is inherently immoral or dishonest.” Ludwig v. State, 969 S.W.2d 22, 28 (Tex. App.–Fort Worth 1998, pet. ref’d). d. The following offenses do not involve moral turpitude: i. Misdemeanor possession of marijuana. Bell v. State, 620 S.W. 2d 116, 121 (Tex. Crim. App. 1981). ii. Misdemeanor driving while intoxicated. Shipman v. State, 604 S.W. 2d 182, 183 (Tex. Crim. App. 1980); accord Janecka v. State, 937 S.W. 2d 456, 464 (Tex. Crim. App. 1996); Ladner v. State, 868 S.W. 2d 417, 425-26 (Tex. App.–Tyler 1993, pet. ref'd).
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iii. Unlawfully carrying a pistol. Trippell v. State, 535 S.W. 2d 178, 180 (Tex. Crim. App. 1976); Brousseau v. State, 663 S.W. 2d 691, 694 (Tex. App.–Corpus Christi 1983, no pet.). App. 1976).
iv. Disturbing the peace. Garza v. State, 532 S.W. 2d 624, 625 (Tex. Crim.
v. Juvenile delinquency adjudication. Rivas v. State, 501 S.W. 2d 918, 919 (Tex. Crim. App. 1973). vi. Public intoxication. Ochoa v. State, 481 S.W. 2d 847, 850 (Tex. Crim. App. 1972); Brousseau v. State, 663 S.W. 2d 691, 694 (Tex. App.–Corpus Christi 1983, no pet.). vii. Misdemeanor aggravated assault, not against a woman. Valdez v. State, 450 S.W. 2d 624, 625 (Tex. Crim. App. 1970)(older case, when aggravated assault was not a felony). viii. Driving with a suspended license. Stephens v. State, 417 S.W. 2d 286, 288 (Tex. Crim. App. 1967). ix. Selling or handling whiskey. Smith v. State, 346 S.W. 2d 611, 611 (Tex. Crim. App. 1961); see Rivera v. State, 255 S.W. 2d 219, 219 (Tex. Crim. App. 1953)(violations of the liquor law). x. Criminally negligent homicide. Arnold v. State, 36 S.W.3d 542, 547 (Tex. App.–Tyler 2000, pet. ref’d). Cross Examination Con Caliente
xi. Gambling. Neill v. State, 258 S.W. 2d 328, 331 (Tex. Crim. App. 1953). xii. Failure to identify by refusing to give the requested information to a peace officer is not a crime of moral turpitude. Lester v. State, 366 S.W.3d 214, 215 (Tex. App.–Waco 2011, pet. ref’d)(emphasis supplied). xiii. Evading arrest. Dominguez v. State, 2003 WL 834778, at *2 (Tex. App.–Amarillo 2003, pet. ref’d)(not designated for publication). xiv. Delivery of cocaine. Denman v. State, 193 S.W.3d 129, 136 (Tex. App.– Houston [1st Dist.] 2006, pet. ref’d). xv. Reckless conduct and misdemeanor assaultive offenses not involving violence against women. Patterson v. State, 783 S.W. 2d 268, 271 (Tex. App.–Houston [14th Dist.] 1989, pet. ref'd). xvi.
Misdemeanor assault, dating violence, committed by a woman against 63
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a man. Chambliss v. State, 2011 WL 665323, at *3 (Tex. App.–Houston [14th Dist.] 2011, pet. ref’d)(not designated for publication). xvii. Criminal trespass. Hutson v. State, 843 S.W. 2d 106, 107 (Tex. App.–Texarkana 1992, no pet.). xviii. Criminal mischief. Gonzalez v. State, 648 S.W. 2d 740, 742 (Tex. App.–Beaumont 1983, no pet.)(taking money from coin operated video machines). xix. Contempt for failure to pay support. Jessup v. State, 853 S.W. 2d 141, 144 (Tex. App.–Fort Worth 1993, pet. ref'd). x. Issuance of a bad check, absent intent to defraud. Dallas County Bail Bond Board v. Mason, 773 S.W. 2d 586, 589 (Tex. App.–Dallas 1989, no writ). xxi. Harassment. Vargas v. State, 2017 WL 1337651, at *3 (Tex. App.–San Antonio 2017, pet. ref’d)(not designated for publication). xxii. Interference with emergency telephone call, not shown to involve domestic violence. Urtado v. State, 333 S.W.3d 418, 429 (Tex. App.–Austin 2011, pet. ref’d). xxiii. Unauthorized use of a motor vehicle. Kneeland v. State, 2017 WL 1535103, at *5 (Tex. App.–2017, no pet.)(not designated for publication); Castillo v. State, 1995 WL 645231, at *2 (Tex. App.–Houston [14th Dist.] 1995, no pet.(not designated for publication); Cross Examination Con Caliente
c. The following offenses do involve moral turpitude: i. Misdemeanor assault by a man against a woman. Hardeman v. State, 868 S.W. 2d 404, 405 (Tex. App.–Austin 1993), pet. dism'd, improvidently granted, 891 S.W. 2d 960 (Tex. Crim. App. 1995); accord Jackson v. State, 50 S.W.3d 579, 592 (Tex. App.–Fort Worth 2001, pet. ref’d); Lopez v. State, 990 S.W.2d 770, 778 (Tex. App.–Austin 1999, no pet.); Williams v. State, 2004 WL 2804851, at *5 (Tex. App.–2004, no pet.)(not designated for publication); Barron v. State, 1999 WL 455475, at *9 (Tex. App.–1999, no pet.)(not designated for publication); Guerra v. State, 2010 WL 2183860, at *5 (Tex. App.–San Antonio 2010, no pet.)(not designated for publication) contra, Tenery v. State, 680 S.W. 2d 629, 639-40 (Tex. App.–Corpus Christi 1984, pet. ref'd)(“misdemeanor assault charge [man assaulting woman] was not shown to be one involving moral turpitude, or even that it resulted in a final conviction”); see also Jessup v. State, 853 S.W. 2d 141, 144 (Tex. App.–Fort Worth 1993, pet. ref'd)(finding that a man’s misdemeanor assault against a woman is not a crime of moral turpitude); but see Ludwig v. State, 969 S.W.2d 22 (Tex. App.–Fort Worth 1998, pet. ref’d)(a latter case by the Fort Worth Court of Appeals “specifically disapprove[d] its holding in Jessup, “to the extent it says otherwise”). ii. Misdemeanor aggravated assault on a female. Trippell v. State, 535 S.W. 64
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2d 178, 180 (Tex. Crim. App. 1976)(older case, when aggravated assault could constitute a misdemeanor). iii. Misdemeanor assault against a family member who was a child. Campos v. State, 458 S.W.3d 120, 149 (Tex. App.–Houston [1st Dist.] 2015), judgment vacated on other grounds, 466 S.W.3d 181 (Tex. Crim. App. 2015). iv. Violation of a protective order when the underlying offense is one of family violence or involving a direct threat of family violence. Ludwig v. State, 969 S.W.2d 22, 29 (Tex. App.–Fort Worth 1998, pet. ref’d). v. Failure to identify by intentionally giving a false or fictitious name to a peace officer. Lester v. State, 366 S.W.3d 214, 215 (Tex. App.–Waco 2011, pet. ref’d)(emphasis supplied). vi. “Conspiracy to defraud the government is both a felony and a crime of moral turpitude.” Mason v. State, 663 S.W.3d 621, 645 (Tex. Crim. App. 2022). vii. Theft. Milligan v. State, 554 S.W. 2d 192, 196 (Tex. Crim. App. 1977); Ex Parte Rodriguez, 378 S.W.3d 486, 490 (Tex. App.–San Antonio 2012, pet. ref’d), cert. denied, 134 S. Ct. 785 (2013). viii. Prostitution. Holgin v. State, 480 S.W. 2d 405, 408 (Tex. Crim. App. 1972); Ex Parte Rodriguez, 378 S.W.3d 486, 490 (Tex. App.–San Antonio 2012, pet. ref’d), cert. denied, 134 S. Ct. 785 (2013). Cross Examination Con Caliente
ix. Making a false report to a police officer, regardless of whether it was done for personal gain. Robertson v. State, 685 S.W. 2d 488, 492 (Tex. App.--Fort Worth 1985, no pet.). See also Lape v. State, 893 S.W. 2d 949, 957 (Tex. App.–Houston [14th Dist.] 1994, pet. ref’d)(false report). x. Indecent exposure. Smith v. State, 439 S.W.3d 451, 457 (Tex. App.–Houston [1st Dist.] 2014, no pet.); Tristan v. State, 393 S.W.3d 806, 812–13 (Tex. App.–Houston [1st Dist.] 2012, no pet.); Polk v. State, 865 S.W. 2d 627, 630 (Tex. App.– Fort Worth 1993, pet. ref'd)(indecent exposure, when coupled with an intent to arouse or gratify sexual desire). xi. Public lewdness, because it “violates accepted social behavior and offends society at large.” Escobedo v. State, 202 S.W.3d 844, 849 (Tex. App.–Waco 2006, pet. ref’d). xii. Swindling. Sherman v. State, 62 S.W. 2d 146, 150 (Tex. Crim. App. 1933). xiii. Failure to stop and render aid. Tate v. State Bar of Texas, 920 S.W. 2d 727, 729-30 (Tex. App.–Houston [1st Dist.] 1996, writ denied)(although not a crime of moral turpitude per se, it was under the facts of this case). 65
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2. Probative value must outweigh prejudicial effect. a. The proponent of prior conviction evidence "has the burden of demonstrating that the probative value of a conviction outweighs its prejudicial effect." Theus v. State, 845 S.W. 2d 874, 880 (Tex. Crim. App. 1992). The court listed five factors helpful in performing the balancing mandated by Rule 609: the impeachment value of the particular crime; temporal proximity; similarity; importance of defendant's testimony; and, credibility. Id. at 880-81. The court went on to reverse appellant's conviction, even though four of the five factors favored admissibility. Id. at 881. Important was that the arson conviction had so little probative value on the question of appellant's credibility and had much prejudicial effect, and that the trial court did not dispel the prejudice when it had the chance. Id. at 881-82; see Jackson v. State, 11 S.W.3d 336, 341 (Tex. App.–Houston [1st Dist. 1999, pet. ref’d)(“scale tipped severely against admissibility of the prior [remote] convictions for aggravated rape and a crime against nature”); see also Cryan v. State, 798 S.W. 2d 333, 336 (Tex. App.–Beaumont 1990, no pet.)(probative value outweighed by its prejudicial effect, but error is harmless); cf. Norris v. State, 902 S.W.2d 428, 441 (Tex. Crim. App. 1995)(trial court’s decision to admit appellant’s murder conviction was within the “zone of reasonable disagreement; also, it was harmless). b. In Pierre v. State, 2 S.W.3d 439, 443 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d), the court reversed, concluding that the first and third Theus factors favored inadmissibility. “The similarity between the charged offense of sexual assault of a woman and appellant's prior offenses of misdemeanor assault against women created a danger the jury would convict appellant based upon its perception of a pattern of past conduct rather than on the facts surrounding the commission of the charged offense. This danger was not overcome by the probative value of the evidence of appellant's prior convictions because his prior convictions involved violence rather than dishonesty.” Cross Examination Con Caliente
c. “[F]ailure to register as a sex offender can be a crime of deception that bears on the witness's character for truthfulness,” and the trial court did not err in admitting it under the Theus balancing test in a case where appellant was on trial for misdemeanor indecent exposure. Tristan v. State, 393 S.W.3d 806, 812 (Tex. App.–Houston [1st Dist.] 2012, no pet.). d. The balancing test required by Rule 609(a)(2) “is in some ways more favorable to this appellant than the test in Rule of Evidence 403.” Moreno v. State, 22 S.W.3d 482, 486 n. 11 (Tex. Crim. App. 1999)(prior convictions are excluded unless the probative value of the evidence outweighs its prejudicial effect; under Rule 403, evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice)(emphasis supplied). e. Rule 609(a) does not require the trial court to make specific findings of fact and conclusions of law when weighing the probative value and prejudicial effect, although that is the better practice. “Therefore, we urge trial courts to enunciate on the record not only whether the probative value of a conviction outweighs its prejudicial effect, but also the rationale behind such a determination.” Theus v. State, 845 S.W.2d 874, 880 n. 6 (Tex. Crim. App. 1992); cf. Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996)(“Appellant did not ask the court to make oral or written 66
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findings and the court is not mandated to sua sponte put these findings or conclusions on the record.”). B.
Rule 609(b): Limit on using the evidence after 10 years. Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
TEX. R. EVID. 609(b). 1. Remoteness. a. “The reason for the adoption of the remoteness limitation on impeachment evidence is that a remote conviction is a poor indication of the accused’s present character.” Miller v. State, 549 S.W. 2d 402, 403 (Tex. Crim. App. 1977). b. To determine remoteness, the court of appeals gave appellant credit for the time he served before the conviction, and concluded that even if he served the maximum time on his sentence, the conviction was more than 10 years old at the time of appellant’s testimony, and therefore, the trial court erred in permitting the State to use it for impeachment. Battles v. State, 2006 WL 1029072, at *2 (Tex. App.–Eastland 2006, no pet.)(not designated for publication). Cross Examination Con Caliente
c. In Butler v. State, 890 S.W. 2d 951 (Tex. App.–Waco 1995, pet. ref'd), the state argued that the record did not establish that the prior conviction was too remote because appellant failed to show when he was released from confinement under the prior offense. The court of appeals disagreed, holding that the party urging admission bears the burden of proof. Because the state failed to prove that appellant had been released from confinement within ten years prior to his current trial, it failed to establish that the conviction did not come within rule 609(b). Id. at 954. Nor did the state show that the probative value of this remote conviction substantially outweighed its prejudicial effect. Accordingly, the trial court clearly abused its discretion in admitting the evidence. Id. at 955. d. The probative value of defendant's 25 year old prior conviction for murder without malice was not substantially outweighed by its prejudicial effect, considering the impeachment value of the prior crime, the temporal proximity of the prior crime and the witness's subsequent history, the similarity between the prior and the present crimes, the importance of the defendant's testimony, and the importance of credibility. Polk v. State, 865 S.W. 2d 627, 630-31 (Tex. App.–Fort Worth 1993, pet. ref'd). The court was particularly impressed by the fact that the defendant's testimony and credibility determined the outcome of the case. e. In Buffington v. State, 801 S.W. 2d 151 (Tex. App.–San Antonio 1990, pet. ref'd), 67
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cert. denied, 502 U.S. 876 (1991), appellant was first tried and convicted in 1978, and at this trial appellant had been able to impeach an accomplice witness with evidence of a prior conviction. This conviction was reversed, and appellant was retried in 1988. By this time, the convictions had aged more than 10 years, and the trial court excluded them under Rule 609(b). This was not error. Id. at 155. f. The trial court erred in admitting appellant's convictions where he had been released from prison 10.5 years prior to trial, where he had no intervening convictions since his release, where he was between 16 and 19 years old when these prior offenses were committed, where the longest sentence received was five years, and where none of the convictions involved narcotics offenses. Sinegal v. State, 789 S.W. 2d 383, 388 (Tex. App.–Houston [1st Dist.] 1990, pet. ref'd). 2. Rule 609(b) – not the common law of “tacking – applies when determining the admissibility of remote convictions.
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a. Under the common-law “tacking” doctrine, if a defendant has convictions that are more than ten years old and also has more recent convictions for felonies or misdemeanors involving moral turpitude, the intervening convictions remove the taint of remoteness from the prior conviction and make a conviction older than ten years admissible. “We hold that the unambiguous plain language of the rule supplants the common-law tacking doctrine.” Meadows v. State, 455 S.W.3d 166, 170 (Tex. Crim. App. 2015). The rule in question is Rule 609(b), and it applies to convictions more than 10 years old. Evidence of such a conviction is “admissible only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.” [emphasis supplied] The Meadows court remanded the case to the court of appeals so it could apply the proper test, that is “substantially outweighs” test required by Rule 609(b), and which is “more rigorous” that Rule 609(a)’s “outweighs” test. Id. at 171. b. It is important to note that Meadows does not prevent the courts from considering intervening misbehavior altogether: “In deciding whether, in the interests of justice, the probative value of a remote conviction substantially outweighs its prejudicial effect, a court may consider all relevant specific facts and circumstances, including whether intervening convictions dilute the prejudice of that remote conviction.” Meadows v. State, 455 S.W. 3d at 170. On remand, the court of appeals used the more rigorous test, but once again concluded that the trial court had not abused its discretion in admitting the remote convictions. Meadows v. State, 2015 WL 1956238, at *3 (Tex. App.–Fort Worth 2015, pet. ref’d)(not designated for publication). c. The court of appeals assumed, without deciding, that the probative value of the more than 20 year old conviction for aggravated did not substantially outweigh its prejudicial effect, and that the trial court erred in admitting the remote conviction. The court went on to affirm the conviction, finding the error harmless under Rule 44.2(b). Campos v. State, 2016 WL 3199027, at *4 (Tex. App.–Houston [1st Dist.] 2016, pet. ref’d)(not designated for publication). 3. Proof of conviction. 68
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a. A witness may not be impeached under Rule 609 for being on deferred adjudication, since this is not a conviction. Jones v. State, 843 S.W.2d 487, 496 (Tex. Crim. App. 1992); accord Duncan v. State, 899 S.W.2d 279, 281 (Tex. App.–Houston [14th Dist.] 1995, pet. ref'd); see also Soliz v. State, 809 S.W. 2d 257, 257-58 (Tex. App.–San Antonio 1991, pet. ref'd). But see Paley v. State, 811 S.W. 2d 226, 229-230 (Tex. App.–Houston [1st Dist.] 1991, pet. ref'd)(although a witness on deferred adjudication has not been convicted, a defendant should be allowed to impeach him to show bias under the rationale of Davis v. Alaska). b. The trial court properly refused impeachment where appellant failed to introduce sufficient evidence to link the convictions to the witness. Davis v. State, 791 S.W. 2d 308, 310 (Tex. App.–Corpus Christi 1990, pet. ref'd). c. "A defendant has the right to examine a witness concerning prior convictions if the questions are asked in good faith." Aleman v. State, 795 S.W. 2d 332, 334 (Tex. App.–Amarillo 1990). In Aleman, the State admitted that it had a rap sheet showing that someone with the witness's name had previously been convicted of theft in justice court, and the witness testified on voir dire, that she had no independent recollection of the conviction, and that she knew nothing about it. The rap sheet provided a good faith basis for the appellant's question. Just because the witness denied the conviction, appellant was not precluded from asking the question; he was still entitled to have the jury hear her denial. Id (harmless, though).
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d. Appellant testified and, when asked by the prosecutor, “emphatically denied” having been previously convicted of murder in Harrison County or that he had ever been to that county. The State introduced a fingerprint card and had a Harris County Deputy testify that appellant’s fingerprints matched those on a pen packet that was also introduced. Appellant’s father testified that his son had not been convicted of murder. At the motion for new trial hearing, appellant and his father again denied he had previously been convicted of murder, and they introduced an affidavit from a Deputy in Harrison County stating that the Calvin Moore who had been tried and convicted in Harris County was not the same Calvin Moore who had been convicted in Harrison County of murdering his father, and that Calvin Moore, the murderer, had lived in Harrison County all his life. The trial court denied the motion for new trial. On appeal, the State “apparently concedes the gist of appellant's contention that he was not the same Calvin Moore previously convicted of murdering his father in Harrison County,” but argued that any error was harmless in light of other convictions (not for murdering his father) that Moore was apparently good for. The court of appeals disagreed, noting that “evidence of the murder conviction was obviously not relevant to any material issue in this case” and that, “[w]ithout doubt, evidence that one is guilty of homicide, one of the most heinous of crimes, must be considered highly prejudicial and inflammatory.” Moore’s conviction was reversed and remanded for a new trial, and the State’s petition for discretionary review was refused. Moore v. State, 826 S.W. 2d 775, 778 (Tex. App.–Houston [14th Dist.] 1992, pet. ref’d). e. Evidence that the witness had been “in trouble” for writing hot checks was not proof of conviction as required by Rule 609. Greene v. State, 928 S.W. 2d 119, 123 (Tex. App.–San Antonio 1996, no pet.). The court of appeals went on to find trial counsel ineffective for a host of 69
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errors, including that he impeached the credibility of his most important witness with inadmissible evidence. “But there is no logical reason why defense counsel would want to impeach the credibility of his most important witness. This can only be evidence of ineffectiveness of counsel.” Id. C.
Rule 609(c): Effect of pardon, annulment, or certificate of rehabilitation. 1. Texas Rule 609(c). Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment; (2) probation has been satisfactorily completed for the conviction, and the person has not been convicted of a later crime that was classified as a felony or involved moral turpitude, regardless of punishment; or
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(3) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. TEX. R. EVID. 609(c). 2. Probation completed. a. There is no distinction between a probation period that has expired and one that is satisfactorily completed. "Therefore, when the probationary term has expired and the witness has not been subsequently convicted of a felony or crime involving moral turpitude, the prior conviction is not admissible for impeachment purposes. Ex parte Menchaca, 854 S.W. 2d 128, 131-32 (Tex. Crim. App. 1993)(emphasis in original)(trial counsel ineffective for not filing a motion in limine, not objecting, not requesting a limiting instruction, and bringing up the inadmissible case in his final argument). b. The trial court erred in permitting appellant's impeachment with a prior misdemeanor for which probation had been completed. Cryan v. State, 798 S.W. 2d 333, 336 (Tex. App.–Beaumont 1990, no pet.); James v. State, 102 S.W.3d 162, 181 (Tex. App.–Fort Worth 2003, pet. ref’d)(trial court abused its discretion and reversibly erred by admitting a prior felony conviction 70
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when appellant had served out her probation). c. The trial court did not err in prohibiting appellant from cross-examining a State’s witness where she had successfully lived out her probation 18 years previously, and where she had received only probation for the latter theft offense. “The trial court could reasonably have determined, from these facts and circumstances, that the probative value of the 1972 conviction did not substantially outweigh its prejudicial effect.” Smith v. State, 850 S.W.2d 275, 279 (Tex. App.–Fort Worth 1993, pet. ref’d). d. The trial court properly denied appellant the right to impeach the state's witness where her probation period had expired. The mere filing of a motion to revoke was insufficient to prove that the probation had been revoked. Wunneburger v. State, 844 S.W. 2d 864, 867 (Tex. App.– Amarillo 1992, pet. ref’d). 3. Unadjudicated offenses taken into consideration pursuant to § 12.45 of the penal code. A “conviction” ordinarily requires a “a judgment of guilt for the crime in question.” Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim. App. 2008). Offenses taken into consideration under article 12.45 of the Penal Code are not convictions and may not be used for Rule 609 impeachment. Id. “[T]he § 12.45 procedure can be implemented only if the State consents. If the State wishes to have the use of that extraneous offense as a prior conviction, it has another option: it can seek a conviction on the extraneous offense.” Id. at 686. D.
Rule 609(d): Juvenile adjudications.
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Evidence of a juvenile adjudication is admissible under this rule only if: (1) the witness is a party in a proceeding conducted under title 3 of the Texas Family Code; or (2) the United States or Texas Constitution requires that it be admitted. TEX. R. EVID. 609(d). 1. A change in the law. Under a former rule of evidence, juvenile adjudications were not admissible unless required by the Constitution. The new rule is considerably different.
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2. When required by the Constitution. a. In Davis v. Alaska, 415 U.S. 308 (1974), the Court held that the defendant should have been allowed to prove that the state's identification witness was on juvenile probation at the time of trial and at the time of the events he testified to. This evidence was admissible, not to generally impeach the witness's character as a truthful person, but rather to show the existence of possible bias and prejudice causing the witness to misidentify the defendant because of his vulnerable status as a probationer. Id. at 317-18. b. “In Texas, as in most jurisdictions, juvenile criminal records and adjudications are not admissible to impeach the general credibility of a testifying witness, even though the juvenile may be on probation and is technically in a “vulnerable relationship” with the State throughout that probationary period. Rule 609(d) of the Texas Rules of Evidence explicitly prohibits their use for attacking the general credibility of the witness. But Rule 609(d) also contains an explicit exception that such evidence may be admissible when it is required by the United States Constitution, such as in the Davis scenario.” Irby v. State, 327 S.W.3d 138, 147 (Tex. Crim. App. 2010). c. In Gilmore v. State, 871 S.W. 2d 848, 850-51 (Tex. App.–Houston [14thDist.] 1994, no pet.), the court distinguished Davis v. Alaska, relying instead on § 51.13(b) of the Texas Family Code, which strictly limits the use of juvenile records.
E.
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d. “[N]otwithstanding Rule 609(d), Texas Rules of Evidence . . . evidence may be offered by the state and the defendant of an adjudication of delinquency based on a violation by the defendant of a penal law of the grade of: (A) a felony; or (B) a misdemeanor punishable by confinement in jail.” TEX. CODE CRIM. PROC. art. 37.07 §3(a)(1). See Strasser v. State, 81 S.W.3d 468, 470 (Tex. App.–Eastland 2002, pet. ref’d)(trial court did not err admitting evidence of appellant's four prior unadjudicated juvenile offenses). Rule 609(e): Pendency of appeal. Pendency of an Appeal. A conviction for which an appeal is pending is not admissible under this rule. TEX. R. EVID. 609(e). 1. Ineffective assistance. a. Trial counsel performed deficiently under Strickland v. Washington when he elicited testimony from the defendant at the guilt phase of his trial that he was presently incarcerated on two conviction that were pending on appeal. Robertson v. State, 187 S.W.3d 475, 486 (Tex. Crim. App. 2006). b. Although appellant had served his probation, trial counsel failed to file a motion in 72
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limine, he failed to object, he failed to minimize the possible prejudice by requesting a limiting instruction, and he referred to the prior conviction during his closing argument which prompted the State to emphasize the conviction in his closing. Counsel’s deficient and prejudicial performance satisfied the Strickland test, and Menchaca got a new trial. Ex parte Menchaca, 854 S.W. 2d 128, 13132 (Tex. Crim. App. 1993). c. Oddly enough, in Stone v. State, 17 S.W.3d 348 (Tex. App.–Corpus Christi 2000, pet. ref’d), the trial court informed the parties that it was not going to allow the State to prove appellant’s prior conviction for murder. So, defense counsel asked his client if he had ever been convicted for murder, and the client admitted he had. The court of appeals took the rare step of finding counsel ineffective on direct appeal, since it could conceive of no strategic reason for a lawyer to elicit a prior conviction that was not only remote and inadmissible under Rule 609, but also that the trial court had ruled it inadmissible before the defense went into it. Id. at 352. d. Trial counsel was ineffective where he did not request notice of the State’s intent to use a prior conviction (that was remote and inadmissible), and he did not request a limiting instruction after the conviction was admitted, and he did not object to the prosecutor’s final argument that used the conviction to argue appellant’s propensity to kill. “It is difficult to imagine a more powerful rejoinder to his claim of self-defense.” Ramirez v. State, 873 S.W.2d 757, 763 (Tex. App.–El Paso 1994, pet. ref’d). F.
Rule 609(f): Notice.
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Notice. Evidence of a witness's conviction is not admissible under this rule if, after receiving from the adverse party a timely written request specifying the witness, the proponent of the conviction fails to provide sufficient written notice of intent to use the conviction. Notice is sufficient if it provides a fair opportunity to contest the use of such evidence. TEX. R. EVID. 609(f). 1. Insufficient notice. a. In Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995), appellant complained at trial that extraneous offense evidence was inadmissible because the state had not given him notice, as required by rule 404(b) of the Rules of Criminal Evidence. The state argued that it provided sufficient notice by giving appellant a copy of an offense report which referred to the extraneous offense in question. The court of criminal appeals disagreed. "We cannot conclude that the mere opening of its file containing an offense report detailing extraneous evidence satisfies the requirement of giving notice ‘of intent to introduce’ such evidence. The mere presence of an offense report indicating the State's awareness of the existence of such evidence does not indicate an 'intent to introduce' such evidence in its case in chief." Id. at 15. Nor will the fact that appellant is aware of his 73
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prior convictions excuse non-compliance with Rule 609(f). b. The delivery of witness statements "upon the heels of a timely request for notice", fairly implies that the State intends to use the evidence. "The prosecution is not required to make a written response concerning its intent, although this is certainly the recommended procedure. Although the better practice is for the prosecutor to state explicitly the intent to introduce extraneous offense evidence, the trial court did not abuse its discretion in concluding that delivery of witness statements to the defense in this particular case provided appellant with reasonable notice." Hayden v. State, 66 S.W.3d 269, 272-73 (Tex. Crim. App. 2001). c. Hayden "modified [the Buchanan] rule somewhat." McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). That said, the court distinguished McDonald's case from Hayden's for two reasons: "First, the State submitted documents that purported to consist of its notice of intent to offer acts of uncharged misconduct. This appellant was entitled to rely upon the State's notices and to assume that these acts were the only ones that the State intended to offer. Second, the appellant disputed the State's claim that he had received actual notice of the pants incident." Specifically, the notice in McDonald described touching the complainant's breast, which was different from what it proved at trial — that he pulled down her pants. "Because of these two circumstances we cannot conclude that the exception we outlined in Hayden applies to the facts of this case." McDonald v. State, 179 S.W.3d at 577. Id. at 576.
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d. “[M]erely listing witnesses who could give testimony concerning other crimes, wrongs or acts of the defendant does not communicate an intent to use evidence of such matters at trial.” Webb v. State, 36 S.W.3d 164, 179 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d)(analyzing a similar requirement in Rule 404(b)); see also Neuman v. State, 951 S.W.2d 538, 540 (Tex.App.–Austin 1997, no pet.)(“That the file contained a list of telephone calls by appellant to his wife and a recording of the call in question did not alone satisfy the rule 404(b) notice requirement.”). e. The State cannot avoid non-compliance with Rule 609(f) by claiming that the defendant was aware of his own conviction. Brown v. State, 880 S.W.2d 249, 251 (Tex. App.–El Paso 1994, no pet.); see also Bryant v. State, 997 S.W.2d 673, 677 (Tex. App.–Texarkana 1999, no pet)(“The language of Rule 609(f) is plain; the failure to give the required notice makes the prior conviction ‘not admissible’ for impeachment purposes,” and that the defendant knew of his priors does not make non-compliance harmless)(although a proper analysis under Rule 44.2(b) did result in a finding of harmlessness). 2. When is notice timely? a. The State’s notice of intent to use a prior conviction for enhancement that was filed the Friday before trial on Monday violated appellant’s “due process right to notice under the Sixth and Fourteenth Amendments of the United States Constitution. Sears v. State, 91 S.W.3d 451, 453 (Tex. App.–Beaumont 2002, pet. ref’d); see also Neuman v. State, 951 S.W.2d 538, 540 (Tex.App.–Austin 1997, no pet.)(notice given the day before jury selection, where notice was requested six weeks earlier, 74
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was untimely under Rule 404(b)); Hernandez v. State, 914 S.W.2d 226, 234 (Tex.App.–Waco 1996, no pet.)(notice given three days before trial, where defendant requested notice ten months before trial, was not reasonable under Rule 404(b)); but see Self v. State, 860 S.W.2d 261, 264 (Tex.App.–Fort Worth 1993, pet. ref'd)(defendant requested notice nineteen days before trial; State gave notice eleven and five days before trial; reasonable notice given). b. The notice requirement of Rule 609(f) applies only to conviction evidence used for impeachment, not to evidence introduced at the punishment phase to prove a prior criminal record. Vela v. State, 771 S.W. 2d 659, 662 (Tex. App.–Corpus Christi 1989, pet. ref'd). See also Ramirez v. State, 967 S.W.2d 919, 923 (Tex. App.–Beaumont 1998)(Rule 609(f) not applicable where appellant did not testify, and where conviction were offered at punishment). 3. Motion or request? a. Although strictly speaking Espinosa v. State, 853 S.W.2d 36 (Tex. Crim. App. 1993), was concerned with the notice requirement of Rule 404(b), there is no reason for it not to have equal application to Rule 609(f). Before the state is required to give notice under either Rule, appellant must make a timely written request. Espinosa had made his request long before trial in a general motion for discovery, but it had not been ruled on in advance of trial. The court held that "when a defendant relies on a motion for discovery to request notice pursuant to Rule 404(b), it is incumbent upon him to secure a ruling on his motion in order to trigger the notice requirements of that rule. In this case, appellant's discovery motion did not operate as such a request." Id. at 39. Had the trial court granted appellant's motion for discovery, the state would have been required to give notice. Id.
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practice tip:
b. In his concurring opinion in Espinosa, Judge Baird offered the following helpful
To make an adequate request under Rule 404(b), the better practice is for the defendant to file a document entitled "Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct" and to timely serve the State with a copy of the request. In this situation, the defendant is not required to obtain a ruling from the trial judge. However, if the request is made within a discovery motion, the defendant is compelled to obtain a ruling because the State need not comply with the requests in a discovery motion until the trial judge orders compliance. Finally, a motion in limine is insufficient to invoke the notice provisions of Rule 404(b). Espinosa v. State, 853 S.W.2d at 39-40 (Baird, J., concurring); cf. Simpson v. State, 991 S.W.2d 798, 801 (Tex. Crim. App. 1998)(appellant’s pleading, which was styled a “motion” and addressed to the trial court, was “simply a motion, not a self-executing request, for notice,” and the notice requirements of Rule 609(f) were not triggered because he did not obtain a ruling on the motion). c. “A certificate of service creates a presumption that a document properly sent is received by the addressee.” Webb v. State, 36 S.W.3d 164, 177 (Tex. App.–Houston [14. Dist.] 2000, 75
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pet. ref’d). G.
To correct a false impression. 1. An exception to Rule 609.
a. Rule 609 establishes the general rule under which a witness may be impeached with evidence of a crime. "An exception to this general rule arises when a witness, during direct examination, leaves a false impression as to the extent of either his prior (1) arrests (2) convictions (3) charges or (4) ‘trouble’ with the police." Prescott v. State, 744 S.W. 2d 128, 131 (Tex. Crim. App. 1988). By leaving a false impression during his direct examination, the witness is said to have "opened the door," permitting the opponent to dispel the false impression. Id. 2. Bootstrapping not allowed. a. "Of course the State may not bootstrap its way to such impeachment by eliciting for the first time on cross-examination the blanket statement that the accused has never before been ‘in trouble,’ and then contradicting it. Having broached the question, the State is bound by the answer it receives." Hammett v. State, 713 S.W. 2d 102, 105 n.4 (Tex. Crim. App. 1986); accord Booker v. State, 929 S.W. 2d 57, 66 (Tex. App.–Beaumont 1996, pet. ref’d).
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b. Generally, "[t]he exception does not apply when the false impression is created by the State's cross-examination of the defendant. The State may not rely on its own questioning on cross-examination to contradict the defendant and get in evidence collateral matters and evidence of convictions for other offenses which would otherwise be inadmissible." Shipman v. State, 604 S.W. 2d 182, 184-85 (Tex. Crim. App. 1980); Statham v. State, 683 S.W. 2d 89, 90 (Tex. App.–Dallas 1984, no pet.). c. In Smith v. State, 763 S.W.2d 836 (Tex. App.–Dallas1988, pet. ref’d), the defense called a witness who gave testimony on direct examination that corroborated defendant’s testimony. After questioning the witness for a while on cross-examination, the prosecutor asked him if he knew the defendant and the witness answered: “Yes, ma'am. I've been knowing him for about a whole year. I have never known him to be in any kind of trouble.” Id. at 840. Smith’s lawyer was alert and immediately instructed the witness not to give nonresponsive answers and, when the court told counsel to just make his objection, he did object that the answer was nonresponsive. The court told the prosecutor to proceed, and she asked, “have you heard,” and counsel objected again and asked to retire the jury. Counsel elaborated on his objection at the bench, the court overruled the objection, and the State was allowed to cross-examine the witness whether he had heard about several prior arrests of the defendant. The court of appeals reversed, noting that the court had erred in allowing the have you heard questions. The witness’s answer was not only unresponsive but also inadmissible because “the issue of the defendant's character had not been opened up.” And the court agreed that counsel’s objection, when read as a whole, was sufficiently specific to preserve the error. Id. at 840-43.
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d. Where, however, the witness testifies as to his criminal record on cross-examination "without any prompting or maneuvering on the part of the State's attorney and in so doing he leaves a false impression with the jury, the State is allowed to correct that false impression by introducing evidence of the defendant's prior criminal record." Martinez v. State, 728 S.W. 2d 360, 362 (Tex. Crim. App. 1987). 3. The door was not opened. a. Appellant did not open the door by asking a state’s witness about drug use by a group of friends that included appellant, and about whether the behavior of these friends changed while they were on drugs. Counsel made no mention of how appellant acted on drugs. Nor was the door opened after the state questioned appellant himself. Appellant did not volunteer information about his drug usage. Rather, this came up on cross-examination. “This evidence was not admissible to correct a false impression because under these facts appellant did not create a false impression without ‘prompting or maneuvering’ by the State.” Lopez v. State, 928 S.W. 2d 528, 531-32 (Tex. Crim. App. 1996). b. The prosecutor did not open the door by asking whether this was the first time the witness had ever been in a courtroom as a witness, even where the witness answered the question prematurely, before it had been completed. Delk v. State, 855 S.W. 2d 700, 704 (Tex. Crim. App. 1993). c. Testimony that appellant was a businessman and not involved with drugs, but which in no way asserted that he had never before been convicted of a felony, did not leave a false impression which the state was entitled to rebut with a prior arson conviction. Theus v. State, 845 S.W. 2d 874, 879 (Tex. Crim. App. 1992). Cross Examination Con Caliente
d. Appellant did not open the door to a juvenile adjudication by testifying at punishment that he did not think he wanted to do it again. Cavazos v. State, 789 S.W. 281, 283 (Tex. Crim. App. 1989); see Murphy v. State, 777 S.W. 2d 44, 67 (Tex. Crim. App. 1988)("self-serving declaration by applicant that he will not violate the law if placed on probation" does not open the door); but cf. King v. State, 773 S.W. 2d 302, 303 (Tex. Crim. App. 1989)(testimony that appellant had never had a misdemeanor conviction and would not violate the law if placed on probation opened the door to arrest for drug delivery). e. The defendant testified "this is my first time of going through this. Hopefully, my last." Whether the door is opened depends on the question asked and its context. Here, the answer "is restrictive, responsive, reasonable and understandable," and not a deliberate attempt to portray the witness as ignorant of the criminal justice process. Even if the remark can be considered ambiguous, the court refused "to hold that the ambiguity should in every instance, inexorably be resolved against an appellant." Prescott v. State, 744 S.W. 2d 128, 131-32 (Tex. Crim. App. 1988). f. Appellant did not open the door to proof of a conviction for criminal mischief by answering affirmatively to the question: "Is that the only time you have ever been arrested for public 77
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intoxication?" Hammett v. State, 713 S.W. 2d 102, 106 (Tex. Crim. App. 1986). g. Appellant’s statement – that he did not voluntarily go back to prison—did not give the impression that he was a law-abiding citizen, and the “overall tenor of the cross-examination did not create a false impression with the jury concerning [his]prior criminal history.” Lumsden v. State, 564 S.W.3d 858, 894 (Tex. App.–Fort Worth 2018, pet. ref’d), cert. denied, 564 S.W.3d 858 (2019). h. Testimony concerning a specific group of transactions did not open the door to cross-examination concerning all of appellant's business transactions. Statham v. State, 683 S.W. 2d 89, 91 (Tex. App.–Dallas 1984, no pet.). i. Testimony that the witness had never testified before, to explain his nervousness, did not open the door to evidence of a prior assault conviction resulting from a plea. Patterson v. State, 783 S.W. 2d 268, 272 (Tex. App.–Houston [14th Dist.] 1989, pet. ref'd). j. Testimony that appellant had never committed a felony did not open the door to evidence that he had been charged with a felony. Blacklock v. State, 681 S.W. 2d 155, 157 (Tex. App.–Houston [14th Dist.] 1984, pet. ref'd). k. Testimony explaining that appellant remembered the instant arrest because "being arrested, its not something that occurs every day. I pay attention to something like that that happens to me." Powell v. State, 673 S.W. 2d 403, 405 (Tex. App.–Houston [1st Dist.] 1984, pet. ref'd).
Cross Examination Con Caliente
l. The door was not opened to a prior conviction for DWI where the appellant answered that he had not had anything to drink when arrested, and that “I will not drink and drive.” This answer pertained only to his feelings about drinking and driving on the night in question. Lewis v. State, 933 S.W. 2d 172, 178-81 (Tex. App.–Corpus Christi 1996, pet. ref’d)(error harmless, though). m. The complainant did not open the door to her impeachment by testifying that she did not carry a knife. There was no testimony that she “never” carried a knife. Her “testimony that she was not carrying a weapon either at the time of the stabbing or at the time of trial was not a blanket statement creating a false impression of her prior law-abiding behavior.” Carter v. State, 928 S.W. 2d 745, 747 (Tex. App.–Eastland 1996, pet. ref’d). 4. The door was opened. a. The State was permitted to impeach appellant’s character witness with evidence of remote, prejudicial, and otherwise inadmissible convictions after the witness testified that he had been to prison, but later “released on a pardon for actual innocence.” This testimony left the false impression that he had been in trouble only once. Bess v. State, 2013 WL 827479, at *40 (Tex. Crim. App. Mar. 6, 2013)(not designated for publication). b. The state was entitled to introduce two pictures of appellant's cell displaying the 78
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words, "Kill, kill, Judge, D.A." and "Kill all white pig police," after appellant gratuitously testified that he had personal friends who were police officers. Pyles v. State, 755 S.W. 2d 98, 115 (Tex. Crim. App.), cert. denied, 488 U.S. 986 (1988). c. Voluntary testimony on cross-examination, without any prompting from the state, that appellant was scared because this was the first time he had been busted. Martinez v. State, 728 S.W. 2d 360, 361-62 (Tex. Crim. App. 1987). d. Appellant's testimony that he had been in trouble before on a car theft case opened the door to inquiry about various other arrests. Reese v. State, 531 S.W. 2d 638, 641 (Tex. Crim. App. 1976); accord Ex parte Carter, 621 S.W. 2d 786, 788 (Tex. Crim. App. 1981); Bell v. State, 620 S.W. 2d 116, 126 (Tex. Crim. App. 1981); Nelson v. State, 503 S.W. 2d 543, 545 (Tex. Crim. App. 1974). e. Testimony that he had never been convicted of a felony or misdemeanor or paid a fine. Orozco v. State, 301 S.W. 2d 634, 635 (Tex. Crim. App. 1957). f. Gratuitous testimony on direct examination that he had never molested the complainant "or any other child." Beckley v. State, 827 S.W. 2d 74, 77 (Tex. App.–Fort Worth 1992, no pet.). g. Denial of any trouble with the law in the past ten years other than a couple of speeding tickets. Muse v. State, 815 S.W. 2d 769, 773-74 (Tex. App.–Waco 1991, no pet.).
Cross Examination Con Caliente
h. Testimony by the state's witness that he had never before been convicted of a felony or crime of moral turpitude in this or any other state opened the door to inquiry about a prior felony conviction for transporting illegal aliens. Hinojosa v. State, 780 S.W. 2d 299, 302 (Tex. App.–Beaumont 1989, pet. ref'd). i. Where the testimony of appellant's mother on direct examination created a false impression as to the details and the disposition of a prior offense, the door was opened to proof of those details. Kendrick v. State, 729 S.W. 2d 392, 396 (Tex. App.–Fort Worth 1987, pet. ref'd). j. Appellant’s testimony that he was not a drug dealer and he could not get drugs for anyone opened the door to a prior, non-final conviction for delivery with a controlled substance. Royal v. State, 944 S.W. 2d 33, 36 (Tex. App.–Texarkana 1997, pet. ref’d). I.
Procedure.
1. In Luce v. United States, 469 U.S. 38 (1984), the defendant moved in limine to preclude the government from using a prior conviction for impeachment. This motion was overruled, and appellant did not testify. The Supreme Court held "that to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify." Id. at 43; see also Jackson v. State, 79
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992 S.W.2d 469, 479–80 (Tex. Crim. App. 1999). This is also the rule in Texas. Caballero v. State, 919 S.W. 2d 919, 923 (Tex. App.–Houston [14th Dist.] 1996, pet. ref’d). 2. Preservation of error was the question in Geuder v. State. There, counsel filed a motion in limine to prevent the State from impeaching appellant with prior convictions because it had not provided notice that was requested under Rule 609(f). The motion was not ruled on, but before crossexamination counsel objected, outside the jury’s presence, and the objection was overruled. 115 S.W.3d 11, 15 (Tex. Crim. App. 2003). The court of criminal appeals held that the court of appeals erred when it ruled that appellant waived error. “Because appellant made a timely and sufficiently specific objection which complied with Rule 103(a)(1) and the trial court expressly ruled on that objection, appellant preserved his complaint concerning Rule 609(f).” Id. at 14-15 (recognizing the difference between an objection outside the presence of the jury, which “sought a definitive final ruling on a timely and specific motion to exclude evidence,” and a motion in limine, which “is a preliminary ruling only and normally preserves nothing for appellate review”). 3. In Dixon v. State, 928 S.W. 2d 564 (Tex. Crim. App. 1996), appellant called Pelfrey as a witness. Outside the presence of the jury, Pelfrey’s counsel, not appellant’s, objected to the state impeaching Pelfrey with a non-final conviction. This objection was overruled, and, before the jury, appellant’s counsel made a general objection, to which the court replied: “For the reasons previously stated, I will overrule the objection.” The court of criminal appeals held that, in light of the trial court’s explicit reference, it was obvious that the court considered appellant’s objection to have adopted Pelfrey’s objection, and that the court understood the objection. Accordingly, appellant’s objection was sufficient. Id. at 564. J.
Rule 806: Attacking and supporting the declarant’s credibility. Cross Examination Con Caliente
1. Rule 806 of the Texas Rules of Evidence provides: When a hearsay statement–or a statement described in Rule 801(e)(2)(C), (D), or (E), . . . has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's statement or conduct, offered to impeach the declarant, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination. TEX. R. EVID. 806. 2. Appellant was charged with assaulting Bivens. Prior to trial, the defense filed a Brady motion for production of the arrest and conviction records of its witnesses, and, in response, the 80
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prosecutors turned over “Bivins' rap sheet, i.e., an official summary of her arrests, charges, convictions, etc.” Arroyo v. State, 117 S.W.3d 795, 796 (Tex. Crim. App. 2003). Bivins did not testify, but the State offered hearsay testimony from a police officer who interviewed her on the day of the alleged assault. Appellant offered certified copies of judgments of conviction showing Bivins’s convictions for theft and impersonating a nurse. The State objected to relevance claiming, among other things, that the defense had not shown that Bivins the complainant was the same person as the Bivins named in the certified copies, and the trial court sustained the State’s objections. Appellant was convicted and his conviction was affirmed by the court of appeals. The court of criminal appeals vacated the court of appeals judgment: “We hold that the State, once it tendered Bivins' rap sheet to appellant without qualification, was estopped from thereafter claiming that the defense exhibits were inadmissible on the ground of identity.” Arroyo v. State, 117 S.W.3d 795, 796-98, 796 n.2 (Tex. Crim. App. 2003). See also Aleman v. State, 795 S.W.2d 332, 334 (Tex. App.–Amarillo 1990, no pet.)(“It is inconsistent for the State to raise the issue of a witness' criminal history; admit that its records showed a conviction, then complain on appeal that appellant failed to prove the conviction. We hold the State to its admission and conclude that error was preserved.”). 3. In Griffith v. State, 983 S.W.2d 282 (Tex. Crim. App. 1998), the State called a deputy who had once supervised appellant and he testified that appellant’s reputation was bad. Defense counsel introduced appellant’s personnel file during cross-examination and brought out documents placed in the file from two other deputies that contained positive remarks about appellant. On redirect, the prosecutor elicited testimony that both deputies who were positive for appellant had been fired after convictions for criminal offenses. Concluding that the documents were hearsay, the court held that the trial court did not abuse its discretion in permitting the State to impeach the non-testifying declarants with their convictions, as allowed by Rule 609(a). Apparently, said the court, the trial court engaged in the proper balancing test required by the rule Id. at 289-90. Cross Examination Con Caliente
4. When cross-examining the lead detective in a manslaughter case, defense counsel asked why he returned to the impound lot to take pictures of the car. The detective’s statements were not offered to prove the matter asserted, so they were not hearsay, and so the trial court abused its discretion when it admited three prior convictions to impeach appellant’s credibility. Enriquez v. State, 56 S.W.3d 596, 601 (Tex. App.–Corpus Christi 2001, pet. ref’d). Even if appellant's statements could be considered hearsay, “the inconsistencies and conflicts in the statements themselves cast serious doubt upon appellant's credibility about how the accident occurred. The State did not need to introduce evidence of the three prior convictions in order to impeach appellant's credibility.” Id. XI.
IMPEACHMENT WITH PRIOR STATEMENTS
A.
Rule 613(a): Examining witnesses concerning prior inconsistent statements. 2 2
At one time the rule now known as Texas Rule of Evidence 613 was known as Texas Rule of Criminal Evidence 612. More recently, “the Rules of Evidence have been consolidated, and the text of former Rule of Criminal Evidence 612 has moved, essentially unchanged, to Rule of Evidence 613.” Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002).
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(1) Foundation Requirement. When examining a witness about the witness's prior inconsistent statement–whether oral or written–a party must first tell the witness: (A) the contents of the statement; (B) the time and place of the statement; and (C) the person to whom the witness made the statement. (2) Need Not Show Written Statement. If the witness's prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel. (3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement. (4) Extrinsic Evidence. Extrinsic evidence of a witness's prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement. (5) Opposing Party's Statement. This subdivision (a) does not apply to an opposing party's statement under Rule 801(e)(2). TEX. R. EVID. 613(a) Cross Examination Con Caliente
1. In general. a. “A complainant's testimony regarding the charged offense may be undermined in any number of ways, including: 1) by prior inconsistent statement. . . . The State may counter with evidence that logically rehabilitates that complainant. Such rehabilitation may take the form of . . . prior consistent statements. . . .” Pavlacka v. State, 892 S.W.2d 897, 902 (Tex. Crim. App. 1994). b. "The rule of admissibility of evidence of prior inconsistent statements should be liberally construed and the trial judge should have discretion to receive any evidence which gives promise of exposing a falsehood." Aranda v. State, 736 S.W. 2d 702, 707 (Tex. Crim. App. 1987); accord Joseph v. State, 960 S.W. 2d 363, 366 (Tex. App.–Houston [1st Dist.] 1998, pet. ref’d). c. “‘The theory of attack by prior inconsistent statements is not based on the assumption that the present testimony is false and the former statement true but rather upon the notion that talking one way on the stand and another way previously is blowing hot and cold, and raises a doubt as to the truthfulness of both statements.’” Del Carmen Hernandez v. State, 273 S.W.3d 685, 689 (Tex. Crim. App. 2008)(trial court did not err in admitting under Rule 806 portions of the custodial statement of a co-accused to impeach the credibility of the co-accused after the defense called two witnesses who 82
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testified about what the co-accused had said to them). d. ““Impeaching a witness with a prior inconsistent statement is not necessarily an attack on credibility that would allow rehabilitative evidence of character for truthfulness under Rule of Evidence 608(a).” Michael v. State, 235 S.W.3d 723, 725 (Tex. Crim. App. 2007). “Impeachment by a prior inconsistent statement (or “self-contradiction”) is normally just an attack on the witness's accuracy, not his character for truthfulness.” Id. at 726. e. A prior inconsistent statement admitted under Rule 613(a) is admissible only for impeachment, and not as substantive evidence. Owens v. State, 916 S.W. 2d 713, 718 (Tex. App.– Waco 1996, no pet.). f. The trial court erred in not permitting appellant to impeach Dr. Grigson with prior inconsistent testimony concerning the number of capital murder defendants he had examined. Clark v. State, 881 S.W. 2d 682, 695-96 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1156 (1995)(harmless error, though). g. The trial court erred in not permitting appellant to testify that the arresting officer told him he did not appear drunk where the officer denied having said this. Jackson v. State, 756 S.W. 2d 82, 84 (Tex. App.–San Antonio 1988), remanded, 772 S.W. 2d 117 (Tex. Crim. App. 1989)(disagreeing with the court of appeals's recitation of facts relevant to harmless error determination). h. Rule 613(a) does not change the common law. McGary v. State, 750 S.W. 2d 782, 786 n.4 (Tex. Crim. App. 1988). Cross Examination Con Caliente
2. Laying the predicate. a. "The proper predicate for impeachment by prior inconsistent statement requires that the witness first be asked if he made the contradictory statement at a certain place and time, and to a certain person. If the witness denies making the contradicting statement, it can then be proved by the prior inconsistent statement. If the witness admits the prior inconsistent statement, however, the prior statement is not admissible." Huff v. State, 576 S.W. 2d 645, 647 (Tex. Crim. App. 1979)(citations omitted). Here, the prosecutor erred in reading the grand jury testimony to the witness and asking if she remembered making the statement, without first eliciting a denial. This was improper impeachment, because the proper predicate was not laid. Id. at 648. b. "Generally, under such rule where the prior inconsistent statement is in writing, and the witness unequivocally admits making such statement, the instrument itself is not admissible, but the examining attorney may ask about specific sentences, remarks, or things in the prior statement. If the witness admits the remarks, etc., then the witness has impeached himself, and no portion of the written statement is admissible. If the witness admits making the written statements but upon inquiry denies portions of the statement, then the portion that contradicts the witness and only that portion may 83
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be proven for the purpose of impeachment. The fact that a statement contains portions which might impeach a witness will not furnish the proper predicate for the admission of the entire statement." McGary v. State, 750 S.W. 2d 782, 787 (Tex. Crim. App. 1988); accord Andrews v. State, 794 S.W. 2d 46, 49 (Tex. App.–Texarkana 1990, pet. ref'd)(extrinsic evidence offered to impeach should be limited to the statements the witness denies having made); see Beauchamp v. State, 870 S.W. 2d 649, 652 (Tex. App.–El Paso 1994, pet. ref'd)(statement inadmissible where appellant did not tell the witness of its contents, or tell him of the time and place and to whom it was made). c. “The purpose of the time and place foundation requirements . . . is to put the witness on notice as to which statements are going to be used to impeach his or her credibility.” Joseph v. State, 960 S.W. 2d 363, 366 (Tex. App.–Houston [1st Dist.] 1998). The witness’s testimony that the conversation occurred on the telephone at her home, after the accomplice’s arrest and her own appearance before the grand jury was sufficient to meet the time and place foundation. d. When the witness admits the act inquired about, he has impeached himself, and extrinsic evidence should not be admitted. Hager v. State, 734 S.W. 2d 180, 183 (Tex. App.–Eastland 1987, pet. ref'd); cf. Linder v. State, 828 S.W. 2d 290 (Tex. App.–Houston [1st Dist.] 1992)(admission must be unequivocal, though). e. "If a witness only qualifiedly or partially admits to making a prior inconsistent statement, the statement may be used to impeach him. Staley v. State, 888 S.W. 2d 45, 49 (Tex. App.–Tyler 1994, no pet.). See Broden v. State, 923 S.W. 2d 183, 188-89 (Tex. App.–Amarillo 1996)(state was entitled to impeach witness who answered that he did not recall).
Cross Examination Con Caliente
f. “In order to qualify for admission under Rule 613(a), the court must be persuaded that the statements are indeed inconsistent.” Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002)(defense failed to prove inconsistency). g. The proponent of the evidence must show that the statement was indeed made by the witness. Mosquera v. State, 877 S.W. 2d 40, 42 (Tex. App.–Corpus Christi 1994, no pet.)(trial court erred in admitting police reports comprising the witness's guilty plea papers where there was no clear showing in the record that the witness had stipulated to facts recited in the police reports). h. When a party offers one or more videotapes the trial court is “not required to sort through and edit the videotapes in order to determine which statements might impeach the witness. That task was appellant's responsibility. Since appellant did not specify and extract the statements he wanted to use for impeachment purposes, it was not an abuse of discretion for the trial court to exclude the videotapes,” altogether. Willover v. State, 70 S.W.3d 841, 847 (Tex. Crim. App. 2002)(citation omitted). i. "A party should not, however, be permitted to use a straw-man ploy to get impeachment evidence before the jury as substantive evidence. Courts should balance the probative value of admitting the prior inconsistent statement for its legitimate impeachment purpose against the 84
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danger of unfair prejudice created by the jury misusing the statement for substantive purposes." Miranda v. State, 813 S.W. 2d 724, 735-38 (Tex. App.–San Antonio 1991, pet. ref'd)(error must be preserved with specific objection, however). 3. Don’t be ineffective when dealing with inconsistent statements. a. Counsel was found ineffective where the court of criminal appeals held “that there is a reasonable probability that, but for counsel's failure to impeach [a State’s witness] with his prior inconsistent statement to the police, the result would have been different.” Ex parte Saenz, 491 S.W.3d 819, 833 (Tex. Crim. App. 2016). b. Trial counsel was found ineffective for not requesting a limiting instruction as soon as the trial court admitted a prior inconsistent statement, when such instruction “would not only have been appropriate, but essential, to ensure that the jury did not misuse impeachment evidence as substantive evidence of guilt.” Ex parte Munsch, 2009 WL 256505, at *1 (Tex. Crim. App. Feb. 4, 2009)(not designated for publication). c. Defense counsel failed to object or ask for a limiting instruction when the prosecution offered a witness’s written statement and her signed complaint, and, as a result, this inadmissible evidence was admitted as substantive evidence. “Defense counsel's course of conduct cannot be considered sound trial strategy.” Owens v. State, 916 S.W.2d 713, 718–19 (Tex. App.–Waco 1996, no pet.). B.
Rule 613(c): Prior consistent statements.
Cross Examination Con Caliente
Unless Rule 801(e)(1)(B) provides otherwise, a witness's prior consistent statement is not admissible if offered solely to enhance the witness's credibility. TEX. R. EVID. 613(c). A declarant-witness’s statement is not hearsay if: “The declarant testifies and is subject to cross-examination about a prior statement, and the statement . . . . is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” TEX. R. EVID. 801(e)(1)(B). 1. Rules 613(c) and 801(e)(1)(B). a. “Rule 613(c) essentially codifies the common law rule against ‘bolstering,’ which prohibits ‘the use of prior consistent statements of a witness for the sole purpose of enhancing his credibility.’” Davis v. State, 2016 WL 6520209, at *34 (Tex. Crim. App. Nov. 2, 2016)(not designated for publication). b. Four requirements must be met for a statement to be admissible as a prior consistent 85
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statement: “(1) the declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant's testimony by the opponent; (3) the proponent must offer a prior statement that is consistent with the declarant's challenged in-court testimony; and, (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose.” Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App. 2007) c. The trial court does not abuse its discretion in admitting a prior consistent statement that was made before any motive to fabricate arose if, from the totality of the questioning, giving deference to the trial judge's assessment of tone, tenor, and demeanor, a reasonable judge could conclude the cross-examiner was mounting a charge of recent fabrication or improper motive. Hammons v. State, 239 S.W.3d at 808-809; see also Klein v. State, 273 S.W.3d 297, 312 (Tex. Crim. App. 2008)(trial court did not abuse its discretion when it admitted testimony from a CPS investigator and an investigating police officer based on the complainant’s conflicting trial testimony about whether appellant sexually abused her).
Cross Examination Con Caliente
d. "Rule 801(e)(1)(B) requires that a prior consistent statement be made before the alleged improper influence or motive arose." Prior consistent statements made after a motive to falsify exists are not admissible. Haughton v. State, 805 S.W. 2d 405, 408 (Tex. Crim. App. 1990)(child's videotape not admissible where alleged motive for fabrication arose prior to making of videotape); Campbell v. State, 718 S.W. 2d 712, 717 (Tex. Crim. App. 1986)(statement not admissible because it was made after witness was promised money); Fleming v. State, 819 S.W. 2d 237, 246-47 (Tex. App.–Austin 1991, pet. ref'd)(no showing that statements were made before the alleged improper influence was brought); Beaver v. State, 736 S.W. 2d 212, 215 (Tex. App.–Corpus Christi 1987, no pet.)(statement made shortly before, and in anticipation of, trial); Rodriguez v. State, 687 S.W. 2d 505, 507 (Tex. App.–Houston [1st Dist.] 1985, no pet.)(statement made after defendant knew he had been accused). e. A statement is not admissible under Rule 801(e)(1)(B) unless it is consistent with the trial testimony. Kipp v. State, 802 S.W. 2d 804, 810 (Tex. App.–Texarkana 1990), rev'd on other grounds, 876 S.W. 2d 330 (Tex. Crim. App. 1994). f. The prior consistent statement was found admissible in the following cases: McDuff v. State, 939 S.W. 2d 607, 619 (Tex. Crim. App. 1997); Dowthitt v. State, 931 S.W. 2d 244, 263-64 (Tex. Crim. App. 1996); Moody v. State, 827 S.W. 2d 875, 893-94 (Tex. Crim. App. 1992); Wood v. State, 833 S.W. 2d 753, 754 (Tex. App.–Houston [1st Dist.] 1992, no pet.); Long v. State, 821 S.W. 2d 216, 217 (Tex. App. –Houston [14th Dist.] 1991, no pet.); Alvarado v. State, 816 S.W. 2d 792, 797 (Tex. App.--Corpus Christi 1991), aff’d on other grounds, 840 S.W. 2d 442 (Tex. Crim. App. 1992); Mathes v. State, 765 S.W. 2d 853, 858-860 (Tex. App.–Beaumont 1989, pet. ref'd); Ray v. State, 764 S.W. 2d 406, 411 (Tex. App.–Houston [14th Dist.] 1988, pet. ref'd); Cartmill v. State, 748 S.W. 2d 581, 583 (Tex. App.–Dallas 1988, no pet.). g. Error in excluding a prior consistent statement can be harmless. Rodriguez v. State, 86
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687 S.W. 2d 505, 507 (Tex. App.–Houston [1st Dist.] 1985, no pet.). h. "Where an attempt is made to impeach a witness by showing that he made statements inconsistent with his trial testimony, the witness may be supported by showing that he made statements consistent with his trial testimony after the offense in question." Reed v. State, 703 S.W. 2d 380, 385 (Tex. App.–Dallas 1986, pet. ref'd)(pre-rules case). i. Even if the prior consistent statement is admissible under Rule 801(e)(1)(B), a defendant can still argue that it denies him his constitutional right of confrontation. See Haughton v. State, 805 S.W. 2d 405, 408 n.4 (Tex. Crim. App. 1990). j. A prior consistent statement is only admissible to rebut. If offered as substantive evidence, or for the truth of the matter asserted, it is objectionable as hearsay. Cohn v. State, 849 S.W.2d 817, 820 n.8 (Tex. Crim. App. 1993). k. The trial court properly admitted co-defendant Carlos Black's written confession under Rule 801(e)(1)(B), as a consistent statement offered to rebut a charge of recent fabrication. Lawton v. State, 913 S.W. 2d 542, 561 (Tex. Crim. App. 1995). "According to the record, appellant questioned Carlos Black during cross-examination about the preparations he and the district attorney had undertaken for his trial testimony. Appellant never flatly accused Black of fabricating his testimony with the State's assistance, but it was clearly implied that Black's testimony was influenced by the district attorney's tutelage. Under these facts it is far from clear that the trial court abused its discretion." Id.
Cross Examination Con Caliente
l. In Dowthitt v. State, 931 S.W. 2d 244, 263-64 (Tex. Crim. App. 1996), the trial court permitted the witness’s attorney to testify to a statement implicating appellant that the witness had made to the attorney in confidence. According to the court, the witness’s motive to fabricate arose at the time he made his plea bargain, and the statement had preceded that. m. “Rule 613(c), seems to be covered under the ‘bolstering’ objection ‘to the extent it prevents the use of prior consistent statements of a witness for the sole purpose of enhancing his credibility.’” Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009). n. Where three outcry witnesses testified to the same event, the testimonies of at least two of those witnesses constituted inadmissible hearsay and were improper bolstering of the complainant, serving solely to enhance her credibility, in violation of Rule 613(c). The court of criminal appeals held that counsel failed to establish deficiency, Strickland’s first prong, because the record was silent as to trial counsel's reason for not objecting to the improper testimony. Lopez v. State, 343 S.W.3d 137, 140 (Tex. Crim. App. 2011).
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XII.
IMPEACHMENT WITH EVIDENCE OF MENTAL CONDITION
A.
Rule 601(a).
In General. Every person is competent to be a witness unless these rules provide otherwise. The following witnesses are incompetent: (1) Insane Persons. A person who is now insane or was insane at the time of the events about which the person is called to testify. (2) Persons Lacking Sufficient Intellect. A child – or any other person – whom the court examines and finds lacks sufficient intellect to testify concerning the matters in issue. TEX. R. EVID. 601(a). B.
Case law. 1. Trial court erred in not allowing cross-examination tending to reflect on credibility.
a. “Cross-examination of a testifying State's witness to show that the witness has suffered a recent mental illness or disturbance is proper, provided that such mental illness or disturbance is such that it might tend to reflect upon the witness's credibility.” Virts v. State, 739 S.W. 2d 25, 30 (Tex. Crim. App. 1987). Cross Examination Con Caliente
b. The trial court erred in not permitting appellant to cross-examine the state's witness on the duration, extent and treatment of his mental condition. Sidney v. State, 753 S.W. 2d 410, 413 (Tex. App.–Houston [14th Dist.] 1986, pet. ref'd). c. Even if a witness is not insane and therefore incompetent to testify under Rule 601(a)(1), his mental impairment can be used for impeachment. “[T]he mental capacity of the witness is the proper subject of consideration and impeachment as bearing upon his credibility.” Bouldin v. State, 222 S.W. 555, 556-557 (Tex. Crim. App. 1920). d. “Available, relevant adverse evidence that might affect such a witness' credibility should be admitted so that the jury might use it in making the determination of how much weight it should give the witness' testimony. . . .White's status as a codefendant, combined with his ongoing experiences of hallucinations or visions, takes this case into the realm of conduct contemplated by Virts. . . . As in Virts, we hold that Perry should have been able to cross-examine White regarding White's history of visions and hallucinations.” Perry v. State, 236 S.W.3d 859, 867 (Tex. App.–Texarkana 2007, no pet.). The court rejected the State’s attempt to rely on Rule 403, holding that the evidence was not “unfairly prejudicial, and certainly not to the extent that it substantially outweighs the probative force of testing White's credibility on matters that might affect an interference, due to 88
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mental infirmities, in his ability to perceive events accurately or relate them.” Id. at 867-69 (harmless error, though). 2. No error preventing cross-examination. a. “The fact that a witness has a history of mental illness does not automatically make him incompetent to testify, and, under some circumstances, his history of mental illness may be a proper subject of cross-examination to the extent it impacts his credibility.” Brooks v. State, 590 S.W.3d 35, 49 (Tex. App.–Houston [1st Dist.] 2019, pet. ref’d). b. The evidence “clearly demonstrates [the witness] had suffered a recent mental illness or disturbance prior to the night in question. . . . [and that] is ongoing, and persisted through and beyond that night. What the evidence does not show is that it affected his credibility. . . . The testimony elicited does not demonstrate [his] mental illness affected his perception of events.” Scott v. State, 162 S.W.3d 397, 401 (Tex. App.–Beaumont 2005, pet. ref’d). c. Evidence that the complainant believed in witchcraft did not by itself establish a mental deficiency permitting cross-examination on the subject. “[A]ppellant offered no evidence that the belief in hexes affected [the witness’s] ability to observe the assault, remember the facts, or truthfully and accurately state the facts in court. Unlike the facts in Virts, the appellant was unable to show that [the witness] a persistent disabling disturbance of her mental and/or emotional equilibrium. Gilstrap v. State, 945 S.W. 2d 192, 195 (Tex. App.–Fort Worth 1997, pet. ref’d). 3. Preservation. Cross Examination Con Caliente
Although appellant failed to preserve a Confrontation Clause objection “he did preserve the broader issue of credibility and impeachment as provided in the Texas Rules of Evidence” by objecting under Rules 601, 607, 608, and 611(b). Perry v. State, 236 S.W.3d 859, 864 (Tex. App.–Texarkana 2007, no pet.). XIII. IMPEACHMENT WITH EVIDENCE OF DRUG OR ALCOHOL USE Cases from the early 1900's recognized the right to “right to utilize a witness' drug addiction as an impeachment tool.” Rule 608(b), though, “implicitly abolished the impeachment of witnesses with evidence of drug addiction.” Lagrone v. State, 942 S.W.2d 602, 612–13 (Tex. Crim. App. 1997). A.
Admissible.
1. The court properly admitted evidence of the drunken condition of appellant's wife at the homicide scene, because this was relevant to her powers of observation and recollection of the events about which she testified. Taliaferro v. State, 158 S.W. 2d 493, 494 (Tex. Crim. App. 1942). 2. The trial court properly admitted evidence that appellant had consumed a quart of beer at 89
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lunch, because this was relevant to his mental and physical condition at the time of the baby's death. Sandow v. State, 787 S.W. 2d 588, 598 (Tex. App.–Austin 1990, pet. ref'd). 3. Whether the defense witness was smoking marijuana was admissible to show motive and to test his ability to recollect the events in question. Albiar v. State, 705 S.W. 2d 305, 309 (Tex. App.– San Antonio 1986), rev'd on other grounds, 739 S.W. 2d 360 (Tex. Crim. App. 1987). B.
Inadmissible.
1. It is impermissible to impeach a witness with merely the fact that she is addicted to drugs. “Counsel must demonstrate an actual drug-based mental impairment during the witness’ observation of the crime in order to pursue impeachment of a witness’ perceptual capacity with evidence of drug addiction. Lagrone v. State, 942 S.W. 2d 602, 613 (Tex. Crim. App. 1997). 2. The Lagrone case went beyond Rule 608(b), and also rejected the defense’s alternative argument — that the trial court denied appellant his constitutional right to confront when it prohibited him from cross-examining the State’s witness with evidence of the effects of her withdrawal from cocaine. First, there was no evidence the witness was under the influence of cocaine at the time of the events she witnessed, so the trial court was not outside permissible discretion when it prohibited the cross-examination on specific conduct evidence that was both prejudicial and collateral. Additionally, “appellant has failed to point out any meaningful distinctions between the confrontation clauses in the Federal and Texas Constitutions which merit our extension of broader confrontational capacity under Article I, Section 10 of the Texas Constitution.” Id. at 613-14.
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3. Alcohol or drug abuse was found inadmissible in the following cases: Ramirez v. State, 802 S.W. 2d 674, 676 (Tex. Crim. App. 1990)(no proof of impairment at time of events about which witness testified); Simmons v. State, 229 S.W. 2d 370, 371 (Tex. Crim. App. 1950)(that the witness was drinking wine four hours before the killing had little, if any, impact upon his testimony); Kennedy v. State, 200 S.W. 2d 400, 404-405 (Tex. Crim. App. 1947)(court erred in permitting state to impeach where there was no evidence that the witness was intoxicated when the matter about which he testified occurred); Turner v. State, 762 S.W. 2d 705, 708 (Tex. App.–Houston [14th Dist.] 1988, pet. ref'd)(irrelevant that murder victim had used drugs prior to the date of the murder, where there was no evidence that drugs had any connection with the offense); Epley v. State, 704 S.W. 2d 502, 504 (Tex. App.–Dallas 1986, pet. ref'd)(no proof of impairment of mental or moral sensibilities). XIV. IMPEACHMENT ON COLLATERAL MATTERS A.
General rule.
"The general rule is that a party is not entitled to impeach a witness on a collateral matter. 'The test as to whether a matter is collateral is whether the cross-examining party would be entitled to prove it as a part of his case tending to establish his plea.'" Ramirez v. State, 802 S.W. 2d 674, 675 (Tex. Crim. App. 1990); see Gutierrez v. State, 764 S.W. 2d 796, 798 (Tex. Crim. App. 1989)(could the fact 90
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upon which the error is predicated have been proven for any purpose independently of the contradiction). B. The viability of this common law rule after the Rules of Evidence? 1. Judge Miller concurred in the Ramirez case, pointing out the Texas Rules of Evidence (then known as the Texas Rules of Criminal Evidence), have “no specific rule addressing this common law general rule regarding impeachment on a collateral matter or its attendant exception.” Judge Miller believed “Rule 607 maintains the viability of this general rule and exception and provides the vehicle for such impeachment. . . . As long as a party is correcting a false impression made by a witness I would allow that party, pursuant to Rule 607, to utilize for impeachment purposes a specific instance of the witness's conduct. Although Rule 607 does not expressly address this exception, I do not believe the enactment of the Rules of Criminal Evidence abolished it.” Ramirez v. State, 802 S.W.2d 674, 677 (Tex. Crim. App. 1990)((Miller, J., concurring); see also Clark v. State, 881 S.W. 2d 682, 695-96 n. 12 (Tex. Crim. App. 1994), cert. denied, 115 S. Ct. 1114 (1995)(referencing Judge Miller’s concurrence in Ramirez, but expressing no opinion since the parties did “not directly address the question of the continued viability of such in light of the Rules”).
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2. The court of criminal appeals referred to the “general rule that impeachment on a collateral matter is impermissible” in Pierson v. State, 426 S.W.3d 763, 772 (Tex. Crim. App. 2014). While conceding that there are exceptions to that general rule, and that sometimes the rules of evidence must give way to the Sixth Amendment, the Pierson court held that appellant failed to show any exception applied in this case. “Under these circumstances, the trial court was free to conclude that Appellant failed to carry his burden, as proponent of the evidence, to show that the question was anything more than a prelude to impeachment on a collateral matter and an impermissible attempt to attack the complaining witness's general credibility with evidence of specific instances of conduct. See TEX. R. EVID. 608(b).” Id. 3. Although Judge Miller’s concurrence has not yet been formally adopted by the court of criminal appeals, careful lawyers should consider multiple objections when dealing with the common law rule, impeachment on collateral matters. When opposing this evidence, object, not only that the evidence is inadmissible because it is impeachment on a collateral matter, but also that it violates Rule 608(a) since it is impeachment with a specific act of misconduct other than conviction. When attempting to impeach a State’s witness, argue that you are entitled to do so under the Sixth Amendment’s Confrontation Clause, for bias, motive, or otherwise; or that the prosecutor has left a false impression; or that your questions are permissible under Rule 107. Or each of the above. C.
Error.
1. The trial court erred in permitting the state to impeach a defense witness in a sexual assault case with evidence of her prior use of heroin, since it is unquestioned that the state could not have relied on this evidence in its case in chief to prove that appellant committed sexual assault. Ramirez v. State, 802 S.W. 2d 674, 675 (Tex. Crim. App. 1990). 91
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2. Where the State made no effort to link appellant's drug use with the murder he was charged with, and the court was unable to conclude that appellant's purchase and use of cocaine would have been admissible as part of the State's case-in-chief, the trial court erred admitting that collateral evidence. Drone v. State, 906 S.W.2d 608, 615-16 (Tex. App.–Austin 1995, pet. ref’d)(error, if any, was harmless). 3. The state improperly impeached appellant with extraneous sexual offenses which were collateral to proof of the indictment. Celeste v. State, 805 S.W. 2d 579, 581 (Tex. App.–Tyler 1991, no pet.). 4. The prosecution improperly impeached appellant with evidence that he had a private law practice while serving as an assistant district attorney because this was in no way relevant to a contested issue in the case. Goldstein v. State, 803 S.W. 2d 777, 794 (Tex. App.–Dallas 1991, pet. ref'd)(harmless error). 5. The state improperly impeached appellant with the collateral matter that he had previously lied about his criminal record on applications to purchase guns. Alexander v. State, 740 S.W. 2d 749, 764 (Tex. Crim. App. 1987). 6. The trial court erred in permitting the state to question appellant in a resisting arrest case about domestic altercations with her husband, and when appellant denied same, to call a rebuttal witness. These altercations were irrelevant. "The State cannot create a contested issue through its cross-examination and then claim that such issue `opens the door' to rebuttal evidence." Posey v. State, 738 S.W. 2d 321, 325 (Tex. App.–Dallas 1987, pet. ref'd). Cross Examination Con Caliente
7. In Arce v. State, 720 S.W. 2d 147 (Tex. App.–San Antonio 1986, pet. ref'd), appellant's alibi witness testified that he was with appellant at the time of the robbery, and further, that appellant had worked at a hotel for approximately a year to a year and a half. The state then put on evidence showing that appellant could not have worked there that long since he had been paroled from prison less than a year prior to trial. Since appellant's whereabouts some eight months prior to the robbery were collateral, this was error. Id. at 149(harmless, though). 8. The trial court erred in not permitting appellant to impeach the complaining witness in a sexual assault case, since "separate allegations of sexual misconduct made by the boy are not collateral to the main issue at trial." Polvado v. State, 689 S.W. 2d 945, 950 (Tex. App.– Houston [14th Dist.] 1985, pet. ref'd). 9. The trial court erred in not permitting appellant to impeach a witness for the state with evidence that she tried to purchase drugs. This evidence tended to show motive to consent to intercourse; it was relevant to her credibility; and it would have exposed allegedly perjured or mistaken testimony. Harrison v. State, 686 S.W. 2d 220, 225-226 (Tex. App.–Houston [1st Dist.] 1984, pet. ref'd).
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D.
Not error.
1. The trial court properly prohibited appellant from bringing extrinsic evidence that the deceased had carried a gun within the last year. This was collateral to any issue in the case, including self-defense. Gutierrez v. State, 764 S.W. 2d 796, 798 (Tex. Crim. App. 1989). 2. Whether the defense witness was smoking marijuana was not collateral, but was instead admissible to show motive and to test his ability to recollect the events in question. Albiar v. State, 705 S.W. 2d 305, 309 (Tex. App.–San Antonio 1986), rev'd on other grounds, 739 S.W. 2d 360 (Tex. Crim. App. 1987). Motive is never collateral. Sparks v. State, 943 S.W. 2d 513, 516 (Tex. App.–Fort Worth 1997, pet. ref’d). E.
Where a statement of good conduct goes to the “heart” of the matter.
Where “defendant's statement of good conduct is directly relevant to the offense charged—i.e., “I would never have sexual relations with a minor”—the opponent may both cross-examine the defendant and offer extrinsic evidence rebutting the statement. This is not impeachment on a collateral matter. The statement of good conduct goes to the “heart” of the matter. Daggett v. State, 187 S.W.3d 444, 454 (Tex. Crim. App. 2005). F.
Exception to the general rule: False impressions.
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1. There is an exception to the general rule prohibiting impeachment on collateral matters. "When a witness leaves a false impression concerning a matter relating to his or her credibility, the opposing party is allowed to correct that false impression." Ramirez v. State, 802 S.W. 2d 674, 676 (Tex. Crim. App. 1990). 2. In Walters v. State, 247 S.W.3d 204, 205–06 (Tex. Crim. App. 2007), the state proved that appellant made a 911 call, but then objected when the defense attempted to establish what he said in the call. This allowed the state to leave a false impression that Walters had not explained the call, when he had, and the conviction was reversed under Rule 107 of the Texas Rules of Evidence. 3. Rule 107 of the Texas Rules of Evidence permits the introduction of evidence – even evidence that would otherwise be inadmissible – when necessary to explain fully and fairly a matter opened up by the adverse party. West v. State, 121 S.W.3d 95 (Tex. App.–Fort Worth 2003, pet. ref'd). 4. In Saglimbeni v. State, the court reversed the conviction, holding that the trial court erroneously limited appellant's constitutional right to cross-examine the complainant and his mother, who had both left the false impression that behavioral changes in the complainant were caused by the appellant. 100 S.W.3d 429, 434-55 (Tex. App.– San Antonio 2002, pet. ref'd). The court called this a case of first impression because, unlike other false impression cases, here it was the State’s witness, not the defense’s, who left the false impression. “There is no reason the false impression rule should not work both ways. If the State is permitted to cross-examine a defendant or a defense witness who 93
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creates a false impression, the defendant should be permitted to cross-examine a State's witness who creates a false impression.” Id. at 434; cf. Wheeler v. State, 67 S.W. 3d 879, 885 (Tex. Crim. App. 2002)(defense opened the door by leaving a false impression about defendant's risk of abuse, which opened the door for the state to cross-examine about extraneous misconduct). 5. "While great latitude is allowed in cross-examination in attempts to discredit the witness, the witness may not be cross-examined as to any fact that is collateral and irrelevant to the issue merely for the purpose of laying a predicate for the introduction of independent evidence to impeach him by a showing that, as to the matter embraced in the question, the witness has answered falsely." Hoffman v. State, 514 S.W. 2d 248, 252 (Tex. Crim. App. 1974). G.
Contradiction is impermissible.
When a witness is cross-examined on a collateral matter, the cross-examiner may not contradict the answer given by the witness. Shipman v. State, 604 S.W. 2d 182, 183 (Tex. Crim. App. 1980). accord Hammett v. State, 713 S.W. 2d 102, 105 n. 4 (Tex. Crim. App. 1986); Flannery v. State, 676 S.W. 2d 369, 370 (Tex. Crim. App. 1984). XV. IMPEACHING ONE’S OWN WITNESS A.
Rule 607: Who may impeach a witness.
“Any party, including the party that called the witness, may attack the witness's credibility.” TEX. R. EVID. 607. Limitations on impeaching one’s own witness.
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B.
1. “The plain language of Rule 607 dispenses with the surprise and injury exception to the “voucher” rule which served as a prerequisite to impeaching one's own witness. . . . [W]e conclude the State's knowledge that its own witness will testify unfavorably is a factor the trial court must consider when determining whether the evidence is admissible under Rule 403.” Analyzing lack of surprise or injury in terms of Rule 403 is preferable not only because it comports with the plain language of Rule 607, but because it will lead to the conclusion that a trial court abuses its discretion under Rule 403 when it allows the State to admit impeachment evidence for the primary purpose of placing evidence before the jury that was otherwise inadmissible. Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999). Where the record shows the State elicited no favorable evidence from the witness, it suggests its primary purpose was to get otherwise inadmissible evidence before the jury. The court concluded the State had little, if any, legitimate purpose in admitting her prior inconsistent statements to impeach her testimony. Due to the highly prejudicial nature of this evidence , the court concluded any probative value it may have had was substantially outweighed by its prejudicial effect. Id. at 7; cf. Kelly v. State, 60 S.W.3d 299, 302 (Tex. App.–Dallas 2001, no pet.)(acknowledging that some of its facts were similar to those in Hughes, but finding no error under Rule 403).
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2. “The voucher rule in Texas with its common law roots is gone with the wind. . . . It has been said that a party is permitted to impeach his own witness to the same extent that he would be permitted to impeach an adversary's witness. . . . The right to impeach one's own witness, however, is subject to the court's authority under Rule 403 and Rule 610 [now Rule 611] to protect against abuse. . . . Since Rule 607 dispenses with the “surprise” and “injury” requirements as a prerequisite to the impeachment of a party's own witness, the opposing party will have to resort to Rule 403 as its ground for objection.” Miranda v. State, 813 S.W.2d 724, 734 (Tex. App.–San Antonio 1991, pet. ref’d)(objections to hearsay and improper predicate failed to preserve error). 3. When the witness “responded ‘I don't remember’ to every substantive question asked on voir dire, the State was put on notice that his trial testimony would likely be the same. It is well-settled that a party may not call a witness primarily for the purpose of impeaching the proposed witness with evidence that would otherwise be inadmissible. . . . [I]t was improper for the State to call [the witness] knowing that he would feign a memory loss only to introduce facts into evidence by asking leading questions.” Armstead v. State, 977 S.W.2d 791, 795–96 (Tex. App.–1998, pet. ref’d)(harmless error, though); see also Sills v. State, 846 S.W.2d 392, 396–97 (Tex. App.–Houston [14th Dist.] 1992, pet. ref’d)(trial court erred in allowing the prosecutor to use witness's police statement after he repeatedly refused to answer questions) 4. If evidence is admitted solely for impeachment, the trial court should limit the use of that evidence to impeachment only with a proper jury instruction. Contreras v. State, 766 S.W. 2d 891, 892 (Tex. App.–San Antonio 1989, no pet.).
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5. The old "voucher rule," recognized in Palafox v. State, 608 S.W. 2d 177 (Tex. Crim. App. 1980), which required the state to disprove exculpatory statements it introduced, has been overruled by Rule 607. Russeau v. State, 785 S.W. 2d 387, 390 (Tex. Crim. App. 1990). XVI. PLACING THE WITNESS IN HIS PROPER SETTING A.
Residence.
1. The trial court errs in prohibiting the defense from asking the witness where he lives. Alford v. United States, 282 U.S. 687, 692-94 (1931). 2. The trial court does not err in limiting evidence of the complainant's background in Corpus Christi, absent a showing of particularized need. Satterwhite v. State, 499 S.W. 2d 314, 317 (Tex. Crim. App. 1973); see Salas v. State, 481 S.W. 2d 825, 826 (Tex. Crim. App. 1972). 3. Where the defendant destroys the witness's credibility otherwise, the trial court does not err in excluding cross-examination as to the town the witness lives in. Saunders v. State, 572 S.W. 2d 944, 949 (Tex. Crim. App. 1978). 4. When the witness has been threatened, the court does not err in limiting cross-examination 95
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to the city of residence. Cook v. State, 738 S.W. 2d 339, 341 (Tex. App.–Houston [1st Dist.] 1987, pet. ref'd); see also Henry v. State, 738 S.W.2d 332, 338 (Tex. App.–Houston [1st Dist.] 1987, pet. ref’d)(no error where threats were made, and the court required the witness to produce her employment application, name of her present employer, the name of the city in which she lived, and the names of the only persons in the neighborhood whom she admitted knowing”). 5. Where the security risk is obvious, the trial court does not err in denying appellant the right to ask an undercover narcotics officer his residential address, his bank, and his social acquaintances. Richardson v. State, 508 S.W. 2d 380, 382 (Tex. Crim. App. 1974); see Watson v. State, 488 S.W. 2d 816, 817 (Tex. Crim. App. 1973); Winkle v. State, 488 S.W. 2d 798, 800 (Tex. Crim. App. 1972); Baldwin v. State, 478 S.W. 2d 476, 479 (Tex. Crim. App. 1972). B.
Name.
1. The trial court errs in prohibiting the defense from asking the state's witness his name and where he lives. Smith v. Illinois, 390 U.S. 129, 132-33 (1968). 2. The trial court did not err in preventing appellant from cross-examining the state's witness concerning certain aliases he had used. "It has been held permissible . . . to limit cross-examination to prevent harm to the witness involved." Castle v. State, 748 S.W. 2d 230, 233 (Tex. Crim. App. 1988).
Cross Examination Con Caliente
3. Complainants in certain cases "may choose a pseudonym to be used instead of the victim's name to designate the victim in all public files and records concerning the offense, including police summary reports, press releases, and records of judicial proceedings." TEX. CODE CRIM. PROC. art. 58.102(a)(any offense leading to a reportable conviction or adjudication under Chapter 62 of the code of criminal procedure); TEX. CODE CRIM. PROC. art. 58.152(a)(stalking, TEX. PENAL CODE § 42.072); TEX. CODE CRIM. PROC. art. 58.202(a)(family violence, TEX. FAMILY CODE § 71.004); TEX. CODE CRIM. PROC. art. 58.252(a)(trafficking of persons, TEX. PENAL CODE § 20A.202). 4. The trial court did not err in permitting the complainant to use a pseudonym where her name was irrelevant, and where her true name had been revealed to appellant and to the jury. Sallings v. State, 789 S.W. 2d 408, 415 (Tex. App.–Dallas 1990, pet. ref'd). 5. When a pseudonym has been permitted, the "court may order the disclosure of a victim's name, address, and telephone number only if the court finds that the information is essential in the trial of the defendant for the offense or the identity of the victim is in issue.” TEX. CODE CRIM. PROC. art. 58.104; see also TEX. CODE CRIM. PROC. arts. 58.154; 58.204; 58.254. XVII. MODE AND ORDER OF INTERROGATION AND PRESENTATION A.
Control by the court.
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1. Rule 611(a). a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. TEX. R. EVID. 611(a). 2. Case law. a. The trial court’s authority is broad, but not unlimited. In Packer v. State, 442 S.W.3d 375 (Tex. App.–Dallas 2011, no pet.), the trial court had a blanket policy to prevent the parties from publishing DWI videotapes during the trial. The court of appeals reversed, holding that the trial court’s order “deprived appellant of a meaningful opportunity to defend himself, and violated appellant's rights under the Sixth and Fourteenth Amendments to present his defense and confront the witnesses against him.” Id. at 379.
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b. “Given the large number of jail calls at issue in this case and the likelihood that the State will utilize only a minor portion of those calls at trial, a pretrial designation of the jail calls best serves [the defendant’s] right to a fair trial and is likely to aid in the orderly presentation of [the defendant’s] and the State's respective cases at trial. Further, a pretrial designation of the jail calls will aid in the quick and efficient identification of any objectionable matters that could be resolved pretrial regarding the admissibility of specific jail calls. In this regard, the trial court's order was authorized by rule 611's mandate for the court to ‘exercise reasonable control’ over the mode of ‘presenting evidence’ so as to ‘make those procedures effective for determining the truth’ and ‘avoid wasting time.’ Moreover, based on this record, the trial court's order constituted an exercise of discretion that was both reasonable and rendered in the pursuit of justice as well as efficiency.” In re State ex rel. Skurka, 512 S.W.3d 444, 456 (Tex. App.–Corpus Christi 2016, no pet.). c. Absent a clear legislative mandate, it is error for the trial court to permit jurors to ask questions, even with the imposition of procedural safeguards. This is not subject to a harmless error analysis. Morrison v. State, 845 S.W. 2d 882, 888-889 (Tex. Crim. App. 1992). An objection, however, is necessary to preserve error. Gonzalez v. State, 852 S.W.2d 102, 106 (Tex. App.–Austin 1993, pet. ref’d). d. The trial court does not err in preventing a "fourth round" of cross-examination. "Clearly, the court retains wide latitude to impose reasonable limits on examination of witnesses." Saenz v. State, 879 S.W. 2d 301, 307 (Tex. App.–Corpus Christi 1994, no pet.). 97
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B.
Scope of cross-examination. 1. Rule 611(b). Scope of Cross-Examination. A witness may be cross-examined on any relevant matter, including credibility.
TEX. R. EVID. 611(b). 2. Case law. a. Unlike the rule in many other jurisdictions, Texas does not restrict cross-examination to the scope of direct. See Brumfield v. State, 445 S.W.2d 732, 736 (Tex. Crim. App. 1969); Robinson v. State, 293 S.W.2d 781, 785 (Tex. Crim. App. 1956). b. “The trial court has discretion [under Rule 611(b)]3 as to the extent of crossexamination of a witness for the showing of bias or as to credibility, and its decision is not subject to reversal on appeal absent a clear abuse of discretion.” Cantu v. State, 939 S.W. 2d 627, 635 (Tex. Crim. App. 1997). In Cantu, the state asked a defense witness whether she thought the killing was funny, and she answered “no.” The state was then allowed to impeach her with a letter she had written which indicated otherwise. This was permissible, both because it showed her strong bias towards the appellant, and because it contradicted her testimony and was therefore relevant to her credibility. Id.
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c. In Ramirez v. State, 815 S.W. 2d 636 (Tex. Crim. App. 1991), the state asked appellant's expert witness whether he was aware of a Rand Corporation study showing that repeat offenders are responsible for the great majority of crimes in this country. This was improper under Rule 610, both because the state failed to prove that this study was a recognized or standard authority, and because it assumed facts not in evidence. Id. at 652. d. Trial court properly allowed the State to cross-examine the defense’s expert on portions of his website that the expert described as “strictly satirical,” because the jury was free to consider that his decision to publish such material on a public website revealed something about his “perspective about sexual matters.” In re Commitment of Winkle, 434 S.W.3d 300, 314 (Tex. App.–Beaumont 2014, rev. den’d)(nor did this violate Rule 403). e. "Texas permits cross-examination of any matter relevant to the issues. On the other hand, cross-examination cannot extend to irrelevant, collateral and immaterial matters. A matter is 'collateral' if the cross-examining party would not be entitled to prove such matter as part of his casein-chief." Posey v. State, 738 S.W. 2d 321, 325 (Tex. App.–Dallas 1987, no pet.).
3
Texas Rule of Evidence 611 was formerly known as Texas Rule of Criminal Evidence 610. The two versions are substantially identical and, for ease of reference, will be listed as Rule 611.
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f. Where appellant testified extensively about his prior work history during direct examination, he opened the door for cross-examination on that subject, namely, that appellant had been fired from two jobs. Wiggins v. State, 778 S.W.2d 877, 895 (Tex. App.–Dallas 1989, pet. ref’d). C.
Redirect examination.
1. "It is a well established, Texas rule, that questions may be asked on redirect examination to explain answers on cross-examination from which wrong inferences might be drawn by the jury." Ikeda v. State, 846 S.W. 2d 519, 520 (Tex. App.–Houston [14th Dist.] 1993, pet. ref'd). Here, the state thoroughly cross-examined the witness concerning a prior plea, but appellant was not permitted ask questions on redirect that would have explained the witness's answers on cross. "[I]t was error for the trial court not to allow defense counsel to redirect questions to the witness on matters which were covered in cross examination." Id. at 521. 2. The trial court also has discretion to permit redirect examination which is beyond the scope of cross-examination. Bradeen v. State, 711 S.W. 2d 263, 265 (Tex. App.–Dallas 1986, no pet.). D.
Leading questions. 1. Rule 611(c). Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:
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(1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. TEX. R. EVID. 611(c). 2. Case law. a. Trial counsel was not ineffective for failing to object to more than 30 leading questions from the prosecutor. One of those questions was: ““And were the ten people that you observed [in the trailer] in various physical states, no shirts on, consistent with what you had seen, people laying around, multiple people on couches, beds, et cetera, consistent with a den—a dope house?” The detective responded,“That is correct.” Wheeler v. State, 433 S.W.3d 650, 653 (Tex. App.–Houston [1st Dist.] 2014, pet. ref’d). “Despite the general rule disfavoring the use of leading questions on direct examination, ‘it is sound trial strategy for opposing counsel to choose not to object to leading questions when the evidence will come in anyway.’” Id. at 655. Despite the general rule disfavoring the use of leading questions on direct examination, “it is sound trial strategy for opposing 99
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counsel to choose not to object to leading questions when the evidence will come in anyway.” b. “A leading question phrases a question so that it either suggests the answer desired or assumes the truth of a disputed fact.” Callahan v. State, 937 S.W. 2d 553, 557 (Tex. App.– Texarkana 1996)(leading questions are permissible on cross-examination). c. "A question is impermissibly leading only when it suggests which answer, yes or no, is desired, or when it puts into the witness's mouth words to be echoed back." Newsome v. State, 829 S.W. 2d 260, 269 (Tex. App.–Dallas 1992, no pet.)(questions which "merely ask for confirmation of testimony in the words of the prosecutor" are leading); see Myers v. State, 781 S.W. 2d 730, 733 (Tex. App.–Fort Worth 1989, pet. ref'd)(a leading question "instructs witness how to answer or puts into his mouth words to be echoed back"). d. The mere fact that a question may be answered “yes” or “no” does not render the question “impermissibly leading.” Keller v. State, 604 S.W.3d 214, 225 (Tex. App.–Dallas 2020, pet. ref’d). e. “With a child witness, however, a trial court is given some leeway, and the rule against leading questions is relaxed somewhat.” Keller v. State, 604 S.W.3d at 225. See Moon v. State, 856 S.W. 2d 276, 279 (Tex. App.– Fort Worth 1993, pet. ref'd); accord Clark v. State, 952 S.W. 2d 882, 886 (Tex. App.–Beaumont 1997); Baber v. State, 931 S.W. 2d 359, 363 (Tex. App.–Amarillo 1996, pet. ref’d).
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f. "The asking of leading questions is seldom a ground for reversal (especially where a child is testifying)." Uhl v. State, 479 S.W. 2d 55, 57 (Tex. Crim. App. 1972); see Hernandez v. State, 643 S.W. 2d 397, 400 (Tex. Crim. App. 1982), cert. denied, 462 U.S. 1144 (1983)(no reversal absent showing that appellant was unduly prejudiced). g. Leading questions may be asked when the witness has difficulty understanding the English language. Hernandez v. State, 643 S.W. 2d 397, 400 (Tex. Crim. App. 1982), cert. denied, 462 U.S. 1144 (1983); accord Trevino v. State, 783 S.W. 2d 731, 733 (Tex. App.–San Antonio 1989, no pet.)(no error in permitting state to lead 15 year old complainant who attended special education classes and had difficulty communicating in English). h. Rule 611(c) “does not forbid the asking of leading questions; it states that leading questions “should not be used on the direct examination of a witness except as may be necessary to develop his testimony. . . . The rule clearly contemplates that some leading questions are acceptable at the trial court's discretion.” Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000)(emphasis in original)(trial court did not abuse its discretion); see also Newsome v. State, 829 S.W. 2d 260, 269 (Tex. App.–Dallas 1992, no pet.)(no error where the leading questions did not supply the witness with a "false memory"); Myers v. State, 781 S.W. 2d 730, 733 (Tex. App.–Fort Worth 1989, pet. ref'd)(permissible to clarify).
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i. "When the court allows a confusing or incorrect impression to be clarified by the use of leading questions reversible error exists only if appellant was unduly prejudiced by the questions." Stevens v. State, 671 S.W. 2d 517, 521 (Tex. Crim. App. 1984). E.
Recalling witnesses.
1. Following direct examination, the defense announced it had no questions "at this time." After his motion for instructed verdict was overruled, the defendant attempted to recall the witnesses, but was not allowed to do so. This was error. "A defendant does not lose his right to recall a State's witness for cross-examination merely because he does not exercise the right of cross-examination immediately after direct examination by the State, nor because the witness was subpoenaed by him and then placed on the witness stand by the State." Craig v. State, 594 S.W. 2d 91, 95-96 (Tex. Crim. App. 1980)(error not preserved, though, because no bill of exception made); Love v. State, 861 S.W. 2d 899, 903 (Tex. Crim. App. 1993)(appellant preserved error through an offer of proof which showed he wanted to recall the witness to impeach the credibility and reliability of his previous testimony). 2. The trial court abuses its discretion in not permitting the defense to recall a state's witness where further cross-examination would not cause undue delay in the trial or present cumulative evidence. Love v. State, 861 S.W. 2d 899, 904 (Tex. Crim. App. 1993); see generally Arteaga v. State, 757 S.W.2d 158, 160 (Tex. App.–San Antonio 1988, no pet.)(trial court erred in not allowing appellant to reopen to present evidence on defensive issues that court refused to submit to jury because they were not raised by the evidence).
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3. Error, of course, is subject to review for harm. In Love v. State, 861 S.W. 2d 899, 904-07 (Tex. Crim. App. 1993), a three prong analysis for making this determination, and found the error was harmful. Cf. Johnson v. State, 773 S.W. 2d 721, 727-28 (Tex. App.–Houston [1st Dist.] 1989, pet. ref'd)(harmless error). 4. Cross-examination typically begins immediately after direct examination concludes. Just because you can recall witnesses does not mean that you should. “[A] deferred opportunity to cross-examine is thought to be distinctly inferior to contemporaneous cross-examination.” Coronado v. State, 351 S.W.3d 315, 327 (Tex. Crim. App. 2011). F.
Rebuttal.
1. "The prosecution is entitled on rebuttal to present any evidence that tends to refute the defensive theory of the accused and the evidence introduced in support of it." Laws v. State, 549 S.W. 2d 738, 741 (Tex. Crim. App. 1977); Yohey v. State, 801 S.W. 2d 232, 236 (Tex. App.–San Antonio 1990, pet. ref'd). 2. The trial court has discretion, when consistent with the administration of justice, to permit new evidence to be presented in rebuttal, although the same might not be true for purely repetitious evidence. Long v. State, 742 S.W.2d 302, 322 n.21 (Tex. Crim. App. 1987). 101
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3. The trial court erred in admitting rebuttal evidence which was collateral and had nothing to do with the defensive theory. Flannery v. State, 676 S.W. 2d 369, 370 (Tex. Crim. App. 1984)(error was not prejudicial, though). G.
Pretrial hearings. 1. Rule 104(c).
Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession in a criminal case; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires. 2. Rule 104(d). Cross-Examining a Defendant in a Criminal Case. By testifying outside the jury's hearing on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case. TEX. R. EVID. 104(d). 3. Case law. Cross Examination Con Caliente
a. In Nelson v. State, 765 S.W. 2d 401 (Tex. Crim. App. 1989), the appellant testified outside the jury's presence on the question of admissibility of previous convictions for impeachment under Rule 609, and the court held the convictions too remote to be admissible. The state then offered the transcript of this voir dire hearing at punishment to prove appellant's criminal record. This was error. "[A]n accused testifying before a jury on the issue of guilt retains the right to reclaim his privilege to exclude any testimony given by him in a hearing conducted by the trial judge outside the presence of the jury in order to hear voir dire examination by the State to determine admissibility of his own testimony the State proposes to offer against accused, and the trial court rules his testimony inadmissible for its intended purpose and withholds it from the jury." Id. at 405. b. The trial court errs in permitting the state to cross-examine appellant's witness at a suppression hearing as to irrelevant matters. Johnson v. State, 803 S.W. 2d 272, 284 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259 (1991). c. A hearing outside the jury's presence to determine the admissibility of a conviction alleged to be void is required as a matter of federal constitutional law. "By testifying upon such a preliminary matter out of the hearing of the jury, the accused does not subject himself to crossexamination on other issues." Cooper v. State, 769 S.W. 2d 301, 303-304 (Tex. App.–Houston [1st 102
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Dist.] 1989, pet. ref'd)(counsel found ineffective for not attacking the validity of a prior conviction outside the jury's presence). d. Appellant has no right to testify before the jury at the punishment for the limited purpose of rebutting evidence of an extraneous offense. Cantu v. State, 738 S.W. 2d 249, 257 (Tex. Crim. App. 1987). e. It is improper for the state to impeach appellant's trial testimony by asking him whether he gave similar testimony at a pre-trial hearing, where his pre-trial testimony was expressly limited to other purposes. Franklin v. State, 606 S.W. 2d 818, 848-850 (Tex. Crim. App. 1978). f. When the witness chooses to testify in front of the jury, she waives her privilege against self-incrimination and her testimony is not for a limited purpose. Green v. State, 670 S.W. 2d 332, 333 (Tex. App.–Eastland 1984, no pet.). g. “[T]he confrontation clause protects a defendant's trial rights and are inapplicable to proceedings occurring prior to trial.” Martin v. Darnell, 960 S.W.2d 838, 841(Tex. App.–Amarillo 1997, no pet.). 4. Simmons and Havens.
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a. It is "intolerable" that a defendant should be required to give up his Fifth Amendment privilege against self-incrimination in order to effectively assert his Fourth Amendment right to suppress illegally seized evidence. Simmons v. United States, 390 U.S. 377, 394 (1968). "We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection." Id. b. A defendant who testifies at trial may be impeached with physical evidence seized in violation of the Fourth Amendment. United States v. Havens, 446 U.S. 620, 627-28 (1980); Walder v. United States, 347 U.S. 62, 65 (1954). H.
Calling and interrogation of witnesses by the court. 1. Texas law.
a. Article 38.05 of the code of criminal procedure mandates that the court shall not, "at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case." b. “[T]he instruction “intent or knowledge may be inferred by acts done or words spoken” falls on the near side of the “improper judicial comment” scale.” Brown v. State, 122 S.W.3d 794, 801 (Tex. Crim. App. 2003)(harmless error, though). Before finding this erroneous instruction 103
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harmless, the court of criminal appeals waxed eloquently on the dangers when trial judges comment on the weight of the evidence: The primary reason for the rule is that an instruction “by the trial judge to the jury on the weight of the evidence reduces the State's burden of proving guilt beyond a reasonable doubt to the jury's satisfaction.” In Texas, a trial judge must also must refrain from making any remark calculated to convey to the jury his opinion of the case. As we have explained: “[j]urors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved.” Id. at 799. c. The court of criminal appeals has indicated at least a general wariness of judicial questioning. See Morrison v. State, 845 S.W. 2d 882, 886 n. 10 (Tex. Crim. App. 1992). In Morrison, the court was concerned with a different, but related issue–whether jurors should be allowed to ask questions. The majority held that jurors should not be allowed to ask questions. Id. at 889. d. "A trial judge is permitted to question a witness when seeking information only, to clarify a point, or to get the witness to repeat something that the judge could not hear." Moreno v. State, 900 S.W. 2d 357, 359 (Tex. App.–Texarkana 1995, no pet.). See Munoz v. State, 485 S.W. 2d 782, 784 (Tex. Crim. App. 1972)(judicial questioning permissible where it was "clear from this record that such inquiry was to clarify an issue and that the judge maintained an impartial attitude when addressing such questions"). Cross Examination Con Caliente
e. Absent an objection to interference by the trial court, reversal is called for only when there is fundamental error. Brewer v. State, 572 S.W. 2d 719, 721 (Tex. Crim. App. 1978); accord Moreno v. State, 900 S.W. 2d 357, 360 (Tex. App.–Texarkana 1995, no pet.). f. The trial court is entitled to more leeway when the trial is before the court rather than the jury. See Navarro v. State, 477 S.W. 2d 291, 292 (Tex. Crim. App. 1972). I.
Preservation of error
"When a defendant contends that his cross-examination of a witness has been unduly limited, nothing is preserved for review unless the record shows by bill of exception or otherwise what questions he wanted to propound and the answers he expected therefrom." Easterling v. State, 710 S.W. 2d 569, 578 (Tex. Crim. App. 1986); accord Barnett v. State, 615 S.W. 2d 220, 223 (Tex. Crim. App. 1981). XVIII. WRITING USED TO REFRESH A WITNESS’S MEMORY A.
Rule 612: Writing used to refresh a witness’s memory. 104
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(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; (2) before testifying, in civil cases, if the court decides that justice requires the party to have those options; or (3) before testifying, in criminal cases. . . . (b) Adverse Party's Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or – if justice so requires – declare a mistrial. TEX. R. EVID. 612.4 B.
Case law.
Cross Examination Con Caliente
1. A writing used by a witness to refresh his memory either while or before testifying is discoverable, even though that statement was not made by the witness. See Marsh v. State, 749 S.W. 2d 646, 649 (Tex. App.–Amarillo 1988, pet. ref'd)(statement used to refresh memory is discoverable "regardless of authorship"). In Marsh, a supervisor from the Texas Department of Human Services testified for the State, and admitted to having previously examined records compiled by a colleague. The trial court denied defendant's request to inspect the department's file. Id. at 647. This was error under Rule 612. "The wording of the Rule is unambiguous and unequivocal. If a witness uses a writing to refresh his memory for the purpose of testifying, an adverse party is entitled to immediate production of the writing for the purposes specified in the Rule . . . . In this case, [the witness] used the DHS file to prepare for her testimony. Therefore, appellant was entitled to the file as he requested." Id. at 648. 2. The trial court erred in preventing appellant from introducing into evidence the witness’s statement that she had used to refresh her memory but the error was harmless because the witness 4
Texas Rule of Evidence 612 was formerly known as Texas Rule of Criminal Evidence 611. The two versions are substantially identical and, for ease of reference, will be listed as Rule 612.
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admitted her testimony was inconsistent, and appellant was able to use this admission in crossexamination and in his closing argument. Donnell v. State, 191 S.W.3d 864, 867–68 (Tex. App.–Waco 2006, no pet.); see also de la Rosa v. State, 961 S.W.2d 495, 497 (Tex. App.–San Antonio 1997, no pet.)(trial court erred in not admitting written statement that witness testified he had used to refresh his memory, but the nonconstitutional error was not harmful). 3. The trial court did not err in denying defendant’s motion to produce the field sobriety checklist where the officer testified that, although he had the document with him while he testified, he had not used it to refresh his memory. Thomas v. State, 336 S.W.3d 703, 711 (Tex. App.– Houston [1st Dist.] 2010, pet. ref’d). 4. Where the prosecutor testifies that he reviewed his jury selection notes prior to testifying at a Batson hearing, defendant is entitled to production of those notes under Rule 611 (which is now Rule 612). Salazar v. State, 795 S.W. 2d 187, 193 (Tex. Crim. App. 1990). In Pondexter v. State, 942 S.W. 2d 577 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997), the court held that this rule could apply where the prosecutor gave testimony at the Batson hearing, even though he was not formally sworn as a witness. Id. at 582. The court went on to hold, however, that the rule was not applicable because there was no evidence that the prosecutor actually used the notes to refresh his memory prior to testifying. Id. 5. Rule 612 is "cast in terms of entitlement." Young v. State, 830 S.W. 2d 122, 124 (Tex. Crim. App. 1992). When appellant invokes the rule, the trial court is obliged to honor the request by requiring the witness to produce the materials before directing appellant to proceed with crossexamination. Id. at 124-25. Cross Examination Con Caliente
6. Once appellant moves for production and that motion is denied, error is complete. Appellant does not bear the burden of acquiring these withheld records from the witness for inclusion in the appellate record. Young v. State, 830 S.W. 2d 122, 125 n.3 (Tex. Crim. App. 1992). 7. Ballew v. State, 640 S.W. 2d 237 (Tex. Crim. App. 1980), is a pre-rules case. There the court recognized that the attorney-client privilege extends to a psychiatrist hired to assist in the preparation of a sanity defense. The court went on to hold, however, that the privilege is waived when the defendant calls the psychiatrist to testify. Accordingly, it was not error for the trial court to compel the defense to allow the state to examine the notes and reports the witness made during his examination of the appellant, for purposes of cross-examination. Id. at 240. 8. On direct examination the state's witness, a juvenile probation officer, testified that he had prepared for testifying by reading a psychological evaluation of defendant. The document was used to refresh the witness's memory and related to his testimony. Robertson v. State, 871 S.W. 2d 701, 708 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 853 (1994). The trial court erred in not admitting this report in its entirety on cross-examination under Rule 612. "When the writing is used by the witness to refresh his memory, the opposing party upon request can inspect the document and use if for purposes of cross-examination. Further, the opposing party can introduce the document, not for the 106
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truth of the matter asserted, but for use by the jury in comparing the document to the witness's testimony." Id. Here, the error was harmless, however, because the report had no impeachment value. Id. at 709. 9. The trial court erred in not admitting, upon appellant’s request, a written statement made by a prosecution witness which the witness had used to refresh his recollection, and which was inconsistent with his trial testimony. DeLaRosa v. State, 961 S.W.2d 495, 500 (Tex. App.–San Antonio 1997, no pet.)(error harmless, though). 10. “The rule does not require that the witness have prepared the writings. Since the writings are not being offered into evidence, no predicate of admissibility need be met. When a witness is shown to have had personal knowledge at some time in the past—which he cannot now remember—counsel may provide a writing for his review in an attempt to refresh his present recollection.” Callahan v. State, 937 S.W.2d 553, 559 (Tex. App.–Texarkana 1996, no pet.)(no error refusing to allow appellant to review his school records where he never testified that his memory needed refreshing). 11. This rule did not technically apply because the defendant called the witness in question, a police officer. The court of appeals held that “the provisions of the rule apply equally in a case where a party has called an adverse witness who is unable to recall the requested information without refreshing his recollection. Allowing the officer not to answer appellee's questions because he could not recall, and then to prohibit the officer from refreshing his memory with his offense report defeats the interests of justice.” State v. Williams, 846 S.W.2d 408, 411 (Tex. App.–Houston [14th Dist.] 1992, pet. ref’d). Cross Examination Con Caliente
XIX. PRODUCTION OF STATEMENTS OF WITNESSES A.
Rule 615: Producing a witness’s statement in criminal cases. (a) Motion to Produce. After a witness other than the defendant testifies on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the state or the defendant and the defendant's attorney to produce, for the examination and use of the moving party, any statement of the witness that: (1) is in their possession; (2) relates to the subject matter of the witness's testimony; and (3) has not previously been produced. (b) Producing the Entire Statement. If the entire statement relates to the subject matter of the witness's testimony, the court must order that the statement be delivered to the moving party. 107
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(c) Producing a Redacted Statement. If the party who called the witness claims that the statement contains information that does not relate to the subject matter of the witness's testimony, the court must inspect the statement in camera. After excising any unrelated portions, the court must order delivery of the redacted statement to the moving party. If a party objects to an excision, the court must preserve the entire statement with the excised portion indicated, under seal, as part of the record. (d) Recess to Examine a Statement. If the court orders production of a witness's statement, the court, on request, must recess the proceedings to allow the moving party time to examine the statement and prepare for its use. (e) Sanction for Failure to Produce or Deliver a Statement. If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness's testimony from the record. If an attorney for the state disobeys the order, the court must declare a mistrial if justice so requires. (f) “Statement” Defined. As used in this rule, a witness's “statement” means: (1) a written statement that the witness makes and signs, or otherwise adopts or approves; (2) a substantially verbatim, contemporaneously recorded recital of the witness's oral statement that is contained in any recording or any transcription of a recording; or Cross Examination Con Caliente
(3) the witness's statement to a grand jury, however taken or recorded, or a transcription of such a statement. TEX. R. EVID. 615.5 B.
Rule 615 applies to pretrial hearings.
Rule 615 applies "to proceedings in Texas courts except as otherwise provided in subdivisions (d)-(f). TEX. R. EVID. 101(b). C.
Case law.
1. Rule 615(d) provides for a recess to allow a reasonable examination of the statement in question. How much of a recess is "reasonable?" In Camacho v. State, 864 S.W. 2d 524, 531 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215 (1994), no abuse of discretion was found where the trial 5
Texas Rule of Evidence 615 was formerly known as Texas Rule of Criminal Evidence 614. The two versions are substantially identical and, for ease of reference, will be listed as Rule 615.
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court recessed long enough for counsel to read and comprehend the statement and to compare that statement with statements given by other witnesses. 2. Before Rule 615, the question on appeal was whether the trial court had abused its discretion in not ordering production. The rule now governs. "Under the provisions of Rule [615] if the requested statement is in the possession of the State, a trial court, upon timely request by the accused, must order the attorney for the State to produce such statement if it relates to the subject matter to which the witness testified." Marquez v. State, 757 S.W. 2d 101, 103 (Tex. App.–San Antonio 1988, pet. ref'd)(no error where record shows report was not in possession of the state). 3. The work-product rule and the attorney-client privilege cannot be asserted to prevent discovery under Rule 615(a). Mayfield v. State, 758 S.W. 2d 371, 375 (Tex. App.–Amarillo 1988, no pet.). 4. Rule 615 error may be harmless where the material is consistent with the trial testimony and where virtually all the information in the material is developed at trial. Mayfield v. State, 758 S.W. 2d 371, 375 (Tex. App.–Amarillo 1988, no pet.).
Cross Examination Con Caliente
5. In Newsome v. State, 829 S.W. 2d 260 (Tex. App.–Dallas 1992, no pet.), the first appeal was abated for a retroactive Batson hearing, at which time appellant sought production of the prosecutor's notes for cross-examination under Rule 615 of the Texas Rules of Evidence. The prosecutor responded that he had no notes from the jury selection itself, but that he had prepared some notes in anticipation of the Batson hearing. He objected to disclosure, invoking the work product privilege and the trial court sustained the objection. Id. at 263. The court of appeals affirmed the judgment below on two grounds. First, the court held that these "private writings that a witness has made solely for his own use in testifying and that only the witness has seen" are not "statements' within the purview of Rule 615. Second, even if these notes were within the purview of Rule 615, appellant failed to preserve this issue on appeal. Even though trial counsel requested that the notes be made a part of the record, in fact, they were not. "The record does not reflect any efforts to incorporate the statement in the appellate record nor does Newsome complain in a point of error of the trial court's refusal to include the statement in the record." Id. at 264. See Pondexter v. State, 942 S.W. 2d 577 (Tex. Crim. App. 1996)(appellant’s burden to request that notes be made part of the appellate record). 6. In Guilder v. State, 794 S.W. 2d 765 (Tex. App.–Dallas 1990, no pet.), the court of appeals held that appellant's request for the prosecutor's notes under Rule 615 was properly denied since these notes do not constitute a "statement" as contemplated by that rule. Appellant did not complain on appeal that the notes were producible under Rule 612. Id. at 773. See Pondexter v. State, 942 S.W. 2d 577 (Tex. Crim. App. 1996)(no evidence that the prosecutor’s notes were signed or otherwise adopted by him). 7. In Jenkins v. State, 912 S.W. 2d 793 (Tex. Crim. App. 1995), the state called a narcotics investigator with the Texas Department of Corrections who testified about the importation of drugs into prison and their widespread use. On cross-examination, he testified that it was part of his job to 109
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make reports and findings of his investigations. Appellant requested production of these reports and the request was denied, except as to those reports that specifically concerned appellant. This was not error, since the statements were not in the possession of the prosecutor. "We hold the 'plain language' of Rule [615(a)] requires a prosecutor to produce witness statements that are in the prosecutor's possession. And, since the record does not reflect that Bitter's reports were in the prosecutor's possession or that Bitter was part of the 'prosecutorial arm of the government,' the trial court did not error in denying appellant's request to order Bitter to produce them." Id. at 819. 8. A report by the arresting police officer detailing the items found after an inventory of appellant's car was a "statement" under Rule 615. Cross v. State, 877 S.W. 2d 25, 27 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd). The statement was not discoverable, however, because it had been destroyed, and was therefore not in the state's possession. Id. XX. CONFRONTATION ISSUES WHEN DEFENDANTS ARE JOINTLY TRIED A.
Bruton v. United States.
1. In Bruton v. United States, 391 U.S. 123 (1968), the petitioner and Evans were jointly tried, and Evans's oral confession implicating him and petitioner was admitted into evidence, with the instruction that the jury must not consider Evans's confession against petitioner. Bruton's conviction was reversed. "We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the confrontation Clause of the Sixth Amendment." Id. at 126. Cross Examination Con Caliente
2. Evans did not take the stand in Bruton. As a result, his confession added substantial weight to the government's case in a form not subject to cross-examination. Id. at 128. "The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed." Id. at 136. 3. "Despite the concededly clear instructions to the jury to disregard Evans' inadmissible hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination. The effect is the same as if there had been no instruction at all." Id. at 137. B.
Limiting instructions, naive assumptions, and “unmitigated fiction.” Or not.
1. Bruton made it clear that an instruction to the jury purporting to limit consideration of the statement to the defendant making the statement is inadequate to cure the constitutional error. Bruton v. United States, 391 U.S. at 137. Justice Brennan made this observation: “‘The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.’” Id. at 129 (quoting from Justice Jackson’s concurrence in Krulewitch v. United 110
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States, 336 U.S. 440, 453 (1949)(Jackson, J., concurring). 2. The Court was decidedly more friendly toward the efficacy of limiting instructions in Richardson v. Marsh, 481 U.S. 200 (1987). “We hold that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence. Id. at 211 (expressly declining to extend further the rule in Bruton). 3. And it went even further in Samia v. United States, 599 U.S. 635, 655 (2023). “The Confrontation Clause ensures that defendants have the opportunity to confront witnesses against them, but it does not provide a freestanding guarantee against the risk of potential prejudice that may arise inferentially in a joint trial. Here, the Clause was not violated by the admission of a nontestifying codefendant's confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.” 4. In Ransom v. State, the court held that there was “no direct violation” of Bruton, because the confessions of the co-actors were not introduced into evidence. And, since the trial court immediately sustained the defense’s objection and instructed the jury to disregard, any error was cured. 789 S.W.2d 572, 586 (Tex. Crim. App. 1989), cert. denied, 497 U.S. 1010 (1990).
Cross Examination Con Caliente
5. Texas law, both before and after Bruton, entitles a defendant to a limiting instruction, upon request. "In all cases of multiple defendants where a defendant's confession has been admitted in evidence, the trial court is required, on proper request, to guard the rights of the codefendant on trial by limiting in his charge the purpose of the confession to establishing the guilt of the confessor only." Evans v. State, 500 S.W. 2d 846, 849 (Tex. Crim. App. 1973). Such an instruction might be useful in a case where A and B are tried together, A's confession is admitted, and A testifies. Because A testified, B might not be able to claim a Bruton error. Still, under Texas law, B should be entitled to an instruction limiting A's confession to evidence of A's guilt. C.
Redaction.
1. In Gray v. Maryland, 523 U.S. 185 (1998) the trial court substituted blanks and the word “delete” for the petitioner's proper name. The Supreme Court held that this effort did not cure a Bruton error. “[C]onsidered as a class, redactions that replace a proper name with an obvious blank, the word “delete,” a symbol, or similarly notify the jury that a name has been deleted are similar enough to Bruton's unredacted confessions as to warrant the same legal results.” Id. at 195. 2. Deletion of all references to appellant might be an effective remedy. Griffin v. State, 486 S.W. 2d 948, 949 (Tex. Crim. App. 1972). 3. Where references to appellant could not be excised from the confession without the jury realizing that the excised portions referred to appellant, the only way to protect appellant's right to confrontation was by a separate trial. McMahon v. State, 582 S.W. 2d 786, 793 (Tex. Crim. App. 111
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1978), cert. denied, 444 U.S. 919 (1979)(error waived, though). D.
Interlocking confessions.
The question in Cruz v. New York, 481 U.S. 186 (1987), was whether Bruton applies where the appellant's own confession corroborating that of his non-testifying co-defendant, is introduced against him. Id. at 188. The Court held that Bruton still applies in such a situation. It is appropriate, however, to consider the nature of appellant's confession, to determine whether the resulting Confrontation Clause violation is harmless. Id. at 194; see Parker v. Randolph, 442 U.S. 62 (1979)(plurality decision); see Quinones v. State, 592 S.W.2d 933, 944 (Tex. Crim. App. 1980)(harmless error where appellant was “inculpated” by his own statements, not those of his codefendant, and any damage caused by the co-defendant’s confession was “relatively insignificant” and harmless error). E.
When the co-defendant testifies.
1. The co-defendant in Bruton did not testify. Where the co-defendant testifies and is subject to cross-examination, there is no denial of the right to confrontation. Thomas v. State, 533 S.W. 2d 796, 797 (Tex. Crim. App. 1976). 2. The rule stated in Thomas "is even stronger in a situation, such as the case at bar, where the defendant on trial calls a co-defendant (not on trial) as a witness in his own behalf." Ricondo v. State, 657 S.W. 2d 439, 446 (Tex. App.–San Antonio 1983, no pet.).
F.
Cross Examination Con Caliente
3. The defendant is entitled to "full and effective cross-examination" of the testifying codefendant. Nelson v. O'Neil, 402 U.S. 622, 627 (1971). The question in Nelson was whether crossexamination could be full and effective where the co-defendant testified, but denied making the statement and claimed it was false. "We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments." Id. at 629-30. Rebuttal.
1. Where the defendant testifies that his confession was coercively derived from the confession of an accomplice, the accomplice's confession may be read in rebuttal. The accomplice's confession is not hearsay, since it was offered in rebuttal, not to prove the truth of the matter asserted in the confession. Tennessee v. Street, 471 U.S. 409, 417 (1985). G.
Waiver.
1. By opposing the state's motion for severance, appellant waived his right to complain of a denial of confrontation under Bruton. McMahon v. State, 582 S.W. 2d 786, 794 (Tex. Crim. App. 112
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1978), cert. denied, 444 U.S. 919 (1979); see Griffin v. State, 486 S.W. 2d 948, 949 (Tex. Crim. App. 1972)(failure to move for severance may constitute waiver). 2. Appellant waives Bruton error by making no more than a general objection, and by not objecting to the court's charge or making any special requested limiting instructions. Ricondo v. State, 657 S.W. 2d 439, 446 (Tex. App.–San Antonio 1983, no pet.). H.
Harmful or harmless?
1. Bruton error may be harmless. E.g., Harrington v. California, 395 U.S. 250, 254 (1969); Ex parte Smith, 513 S.W. 2d 839, 846 (Tex. Crim. App. 1974); Moore v. State, 504 S.W. 2d 904, 905 n.1 (Tex. Crim. App. 1974); Carey v. State, 455 S.W. 2d 217, 223 (Tex. Crim. App. 1970). 2. Bruton error was found not harmless in the following cases. Evans v. State, 534 S.W. 2d 707, 711 (Tex. Crim. App. 1976)(where “the co-defendant's statement clearly supplied the missing pieces [and the] State's case would have been significantly less persuasive without the admission of the co-defendant's confession”); Bass v. State, 527 S.W. 2d 556, 562-63 (Tex. Crim. App. 1975)(“unable to conclude that without Bass' confession the State's case (against Coleman) would not have been less persuasive”); Lewis v. State, 521 S.W. 2d 609, 613 (Tex. Crim. App. 1975)(“The confessions of appellant's co-defendants refuted appellant’s defense). XXI. INTERPRETERS A.
Statutes and rules.
Cross Examination Con Caliente
1. When it is determined that an accused or a witness does not understand and speak the English language, and interpreter must be appointed. If the only available interpreter lacks adequate interpreting skills, or if the interpreter is not familiar with slang, "the person charged or witness may be permitted by the court to nominate another person to act as intermediary between himself and the appointed interpreter during the proceedings." TEX. CODE CRIM. PROC. art. 38.30. 2. Interpreters may also be appointed when either the accused or a witness is deaf. TEX. CODE CRIM. PROC. art. 38.31. 3. “An interpreter must be qualified and must give an oath or affirmation to make a true translation.” TEX. R. EVID. 604. B.
Case law.
1. The Confrontation Clause guarantees that the accused has a right to be present in the courtroom during his trial, and the “right to be present includes the right to understand the testimony of the witnesses.” Garcia v. State, 149 S.W.3d 135, 140 (Tex. Crim. App. 2004). In Garcia, the appellant did not speak English, and there was no translation for him during trial. That the court 113
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appointed a bilingual person as an interpreter did not elevate that person to the status of court interpreter. “On the contrary, ‘[c]ourtroom interpretation is a sophisticated art, demanding not only a broad vocabulary, instant recall, and continuing judgment as to the speaker's intended meaning, but also the ability to reproduce tone and nuance, and a good working knowledge of both legal terminology and street slang.’” Id at 143. The court reversed, holding that Garcia’s Sixth Amendment right to counsel was violated. Id. at 145; see also Ex parte Nanes, 558 S.W. 2d 893 (Tex. Crim. App. 1977). 2. The Garcia court rejected the State’s argument that appellant waived the error by not objecting. Although this sort of error can be waived, the failure to object is not a waiver “if the trial court is aware that an accused does not speak and understand the English language.” Garcia v. State, 149 S.W. 3d at 143. 3. Appointing trial counsel fluent in Spanish is not enough. Baltierra v. State, 586 S.W. 2d 553, 559 n. 11 (Tex. Crim. App. 1979). 4. In Briones v. State, 595 S.W.2d 546, 548 (Tex. Crim. App. 1980), appellant pleaded guilty and waived his right to confrontation and cross-examination. “The trial court did not err in accepting the appellant's plea of nolo contendere which the record shows was voluntarily and intelligently entered even though the appellant may not have understood the English language.” 5. Where a tape recording in a foreign language is admitted into evidence the trial court should swear an interpreter to translate the conversation for the jury. Leal v. State, 782 S.W. 2d 844, 849 (Tex. Crim. App. 1989).
Cross Examination Con Caliente
6. The trial court errs in refusing to appoint an interpreter simply because the defendant is not indigent. "The statute which requires the appointment of an interpreter does not distinguish between indigent and non-indigent defendants; the right to have an interpreter appointed under the statute applies to all defendants." Villareal v. State, 853 S.W. 2d 170, 172 (Tex. App.– Corpus Christi 1993, no pet.). 7. Although the statutes do not provide for the appointment of a translator for one suffering from physical or mental disabilities not amounting to deafness or muteness, one appointed to this task should be qualified. Watson v. State, 596 S.W. 2d 867, 873 (Tex. Crim. App. 1980). 8. The trial court erred in not appointing an interpreter without first determining appellant's understanding of English as it relates to criminal proceedings. It is not enough that he understood and spoke some English. Hernandez v. State, 862 S.W.2d 193, 197 (Tex. App.–Beaumont 1993, pet. ref'd). 9. The trial court is not constitutionally obliged to appoint a second interpreter to act as a member of the defense team. Nguyen v. State, 774 S.W. 2d 348, 350 (Tex. App.–Houston [14th Dist.] 1989, pet. ref'd); cf. DeFreece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993).
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10. Despite noting that this was a “complicated capital murder case wherein the jury was asked to assess death,” and its “tremendous concern that expense was given more weight than Abdygapparova's constitutional right to confrontation”, the court felt constrained by the abuse of discretion standard, and held that the trial court did not err in refusing to appoint an interpreter Abdygapparova v. State, 243 S.W.3d 191, 202–03 (Tex. App.–San Antonio 2007, pet. ref’d). 11. The Texarkana Court of Appeals has concluded that “the requirement of effective assistance of counsel forms a basis for the requirement of an interpreter.” Sanchez v. State, 122 S.W.3d 347, 354 (Tex. App.–Texarkana 2003, pet. ref’d)(error, if any, was harmless). XXII. CONTROLLING UNRULY DEFENDANTS A.
Removal from the courtroom.
Cross Examination Con Caliente
Although one of the basic rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of the trial, this right can be lost by unruly behavior. “The question presented in this case is whether an accused can claim the benefit of this constitutional right to remain in the courtroom while at the same time he engages in speech and conduct which is so noisy, disorderly, and disruptive that it is exceedingly difficult or wholly impossible to carry on the trial.” Illinois v. Allen, 397 U.S. 337, 338 (1970). Allen demanded his right to be his own lawyer, and then became abusive and disrespectful with the judge, tearing up a court’s file and telling the judge, “there's not going to be no trial.” The judge removed him from the courtroom, allowed him back in, removed him again, and, finally, let him back in to finish the trial. “[W]e explicitly hold today that a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” Id. at 340-43. In Bluntson v. State, after the court had appellant removed from the court for talking too much, the parties had a brief discussion about plea bargaining, and about writing instruments made available to appellant. The court held that appellant’s absence did not violate the Constitution because his presence had no reasonably substantial relationship to his defense. 728 S.W.3d 87, 142 (Tex. Crim. App. 2025), cert. denied, 2026 WL 795116 ( 2026). B. Stun belts, and a defendant who was “electrocuted” three times. 1. As the court of appeals put it, the trial court “electrocuted” appellant by ordering his bailiff to use a stun belt to “hit” him three times: Here, the record clearly shows the judge engaged in a pattern of calculated conduct aimed not at security or even maintaining decorum, but rather at demonstrating his 115
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power over the defendant. The judge repeatedly asked the defendant “[a]re you going to behave?” and if Morris was “going to answer my question?” He then ordered the sheriff's deputy to “hit him” “again” and “again” when the defendant gave answers other than the word “yes.” Morris v. State, 554 S.W.3d 98, 118–19 (Tex. App.–El Paso 2018, pet. ref’d). The court held “that decorum concerns alone are not enough to justify shocking a defendant multiple times, even outside the presence of the jury.” Id.. at 112. “[N]o American court has ever held that a judge may use a stun belt as a disciplinary device against a non-dangerous defendant. This Court will not be the first to do so.” Id. at 117. “As other courts have recognized, the mere outfitting of a defendant of a stun belt must be necessitated by legitimate courtroom security or risk of flight concerns—and even then, it must only be used as a last resort.” Id. We hold that stun belts may be actually deployed only in extraordinary circumstances when immediate security concerns or flight risk justify use. We further hold that the use of stun belts for other purposes, such as a method to enforce decorum or as a punishment for a defendant's obstreperous conduct, is constitutionally prohibited and falls outside the wide discretionary penumbra for courtroom management set by Allen.”
Cross Examination Con Caliente
Id. at 118. “The trial court violated Morris' Sixth Amendment right to be present for trial by inflicting unjustifiable physical pain on Morris, thereby causing him to refuse to re-enter the courtroom for the entirety of the guilt-innocence phase and a substantial portion of the punishment phase of trial.” Id. at 122. “Given Rule 44.2(a)'s presumption in favor of reversal, given the importance of the right that was violated and the pervasive manner in which it was violated, and given the intangible effect that Morris' absence may have had on the jury, we cannot say beyond a reasonable doubt that this error was harmless. Id. at 126. We close by stating the obvious: this case represents an extreme, idiosyncratic fact pattern. While the trial court's frustration with an obstreperous defendant is understandable, the judge's disproportionate response is not. We do not believe that trial judges can use stun belts to enforce decorum. A stun belt is a device meant to ensure physical safety; it is not an operant conditioning collar meant to punish a defendant until he obeys a judge's whim. This Court cannot sit idly by and say nothing when a judge turns a court of law into a Skinner Box, electrocuting a defendant until he provides the judge with behavior he likes. Such conduct has no place in this State's courts. We have no choice but to reverse. The court rejected the State’s argument that Morris failed to preserve error. His statements, “You're torturing an MHMR client” and “You have no right to do this,” which could arguably be construed as objections.” Additionally, the court held that there was no need for him to object to the administration of the shocks, or his rith-to-be-present. Id. 113-15. 2. In State v. Belcher, 183 S.W.3d 443 (Tex. App.–Houston [14th Dist.] 2005, no pet.), 116
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a deputy accidentally activated the stun belt, and because he was stunned, Belcher was unable to confer with his lawyer in deciding peremptory challenges. After he was convicted, the judge granted Belcher a new trial, and the State appealed. The court of appeals affirmed the order granting a new trial. “Although physically present, Belcher was incapacitated and unable to participate in an important part of his trial—the exercise of his peremptory strikes. Belcher's accidental stunning also interfered with his ability to confer with his counsel during the exercise of his peremptory strikes. . . . Based on the unusual facts and circumstances that led to the seating of [a juror] on the jury, the trial court did not abuse its discretion in granting Belcher a new trial.” Id. at 450. C.
Shackling, before conviction (with the presumption of innocence).
1. “[S]hackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large. . . .” Holbrook v. Flynn, 475 U.S. 560, 569, 106 S. Ct. 1340, 1346, 89 L. Ed. 2d 525 (1986)(distinguishing the presence of guards at a defendant's trial [which] need not be interpreted as a sign that he is particularly dangerous or culpable”); see also Marquez v. State, 725 S.W.2d 217, 230 (Tex. Crim. App. 1987)(“noticeable deployment of security personnel around a defendant is not as inherently prejudicial as shackling”). 2. “[I]n the absence of a showing of actual prejudice or lack of due process arising from the presence of the armed guards, we hold that the trial court did not err in overruling appellant's objections. Sterling v. State, 830 S.W.2d 114, 118 (Tex. Crim. App. 1992).
Cross Examination Con Caliente
3. Shackling a defendant at the guilt-innocence phase is harmful because it infringes on his presumption of innocence. It is justified only under exceptional circumstances. The fact that a person is charged with capital murder does not override his presumption of innocence. The trial court abuses its discretion in shackling a defendant merely based on general concerns, where there is no violence or threats of violence during the trial. Long v. State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991)(error harmless, though, where there is no evidence that the jury actually saw the shackles); see Cooks v. State, 844 S.W. 2d 697, 722-23 (Tex. Crim. App. 1992)(although shackling is seriously prejudicial and only called for in rare circumstances, it was harmless here, absent evidence the jury actually saw shackles). 4. The trial court clearly erred when it ordered the defendant shackled based on the generalized concern — “Everybody who is in custody has the same necessity of restraint.” The court made no “particularized finding articulating the reasons for shackling . . . nor are any justifiable reasons for shackling clear from the record.” Bell v. State, 415 S.W.3d 278, 283 (Tex. Crim. App. 2013)(because there was no evidence that any juror saw the shackles, the error was non-constitutional, and harmless). 5. “[T]he trial court did not abuse its discretion in ordering the use of restraints. The record is clear and well developed on this point. In addition, we hold that appellant did not suffer any prejudice as a result of potential jurors possibly seeing him restrained.” Jacobs v. State, 787 S.W.2d 397, 407 (Tex. Crim. App. 1990); Kelley v. State, 841 S.W.2d 917, 920 (Tex. App.–Corpus Christi 1992)(trial court did not abuse discretion in shackling appellant where appellant had earlier tried to 117
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hide the state's physical evidence). 6. When a criminal defendant fails to take measures to exclude prospective jurors he knows or suspects saw him in shackles during jury selection, he waives the complaint on appeal.” Gennusa v. State, 689 S.W.3d 320, 324-25 (Tex. Crim. App. 2024)(Slaughter, J., concurring in denial of discretionary review)(“not only did Appellant fail to take measures to exclude the juror, he expressly consented to seat him). D.
Shackling, after conviction (without the presumption of innocence).
1. “Appellant's right to a presumption of innocence terminated after he was found guilty of capital murder. Thus, at the time appellant was shackled he had no right to a presumption of innocence.” Marquez v. State, 725 S.W.2d 217, 227 (Tex. Crim. App.), cert. denied, 484 U.S. 872 (1987). 2. In light of appellant's past history and more recent actions close to the time of trial and during the trial we hold that the trial judge was entirely justified in ordering the shackles in order to prevent his escape or self-destruction and to protect other persons present in the courtroom. The judges findings are amply supported by the record.” Marquez v. State, 725 S.W. 2d at 230.
Cross Examination Con Caliente
3. The defendant was required to wear leg cuffs, handcuffs, and a belly chain during the punishment phase of a capital murder trial. Deck v. Missouri, 544 U.S. 622, 624 (2005). The court held that “the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is ‘justified by an essential state interest’—such as the interest in courtroom security—specific to the defendant on trial.” Shackling raises three concerns. “First, the criminal process presumes that the defendant is innocent until proved guilty. . . . Second, the Constitution, in order to help the accused secure a meaningful defense, provides him with a right to counsel. . . . The use of physical restraints diminishes that right. Shackles can interfere with the accused's ‘ability to communicate’ with his lawyer. . . . Third, judges must seek to maintain a judicial process that is a dignified process.” Id. at 631. “[C]ourts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding. The constitutional requirement, however, is not absolute. It permits a judge, in the exercise of his or her discretion, to take account of special circumstances, including security concerns, that may call for shackling. In so doing, it accommodates the important need to protect the courtroom and its occupants. But any such determination must be case specific; that is to say, it should reflect particular concerns, say, special security needs or escape risks, related to the defendant on trial.” Id. at 633. “[W]here a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove “beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.” Id. at 635. 3. Shackling at the punishment phase of a non-capital trial was held to be reversible error where there was no evidence of escape, threats of physical violence, resistance, repeated interruptions, 118
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or other such egregious conduct. "[J]udicial patience is part of the job and such extreme methods as binding and gagging should only be imposed after clear warnings to the defendant and as a last resort." Shaw v. State, 846 S.W.2d 482, 487 (Tex. App.–Houston [14th Dist.] 1993, pet. ref’d). E.
The noticeable deployment of courtroom security.
1. “The question presented in this case is whether a criminal defendant was denied his constitutional right to a fair trial when, at his trial with five codefendants, the customary courtroom security force was supplemented by four uniformed state troopers sitting in the first row of the spectator's section.” Holbrook v. Flynn, 475 U.S. 560, 562 (1986). The noticeable deployment of security personnel in the courtroom during trial is not inherently prejudicial. “All a federal court may do in such a situation is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over. Respondent has failed to carry his burden here.” Id. at 572.
Cross Examination Con Caliente
2. “[T]his Court cannot hold that the mute and distant presence of twenty peace officers—comprising roughly one-fifth of the spectator gallery—is prejudicial, per se, without some other indication of prejudice. . . . If the record at bar indicated some overt conduct or expression, or perhaps a higher ratio of police officers, or even perhaps some indication that the law-enforcement contingency gravitated toward the jury, then there might be some basis for appellant's argument. Yet none of these considerations are present. We will not lightly assume the jury disregarded its instructions and rendered a verdict based upon the presence of these peace officers alone.” Howard v. State, 941 S.W.2d 102, 118 (Tex. Crim. App. 1996), cert. denied, 535 U.S. 1065 (2002); accord Compton v. State, 666 S.W.3d 685, 726 (Tex. Crim. App. 2023), cert. denied, 144 S. Ct. 916 (2024) (“mere presence of these uniformed employees in the courtroom, without more, was not inherently prejudicial”). 3. Referring to Holbrook’s refusal to “believe that the use of the four troopers tended to brand respondent in their eyes ‘with an unmistakable mark of guilt,’” the court of criminal appeals came to the same conclusion regarding somewhat different facts in Nixon v. State, 707 S.W.3d 279 (Tex. Crim. App. 2024). “We conclude that holding Appellant's trial in the auxiliary courtroom located in the same building as the Medina County Jail and Sheriff's Department was not inherently prejudicial to Appellant's presumption of his innocence.” Id. at 292. 4. The presence of armed guards is not inherently as prejudicial as is shackling. Accordingly, to prevail an appellant must show actual prejudice. Absent prejudice, there is no error. Sterling v. State, 830 S.W.2d 114, 188 (Tex. Crim. App. 1992).
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: From the Tropics to the Trenches: The Fourth Amendment
Speaker:
Monique Sparks
The Fourth Amendment
The Sparks Law Firm 1923 Blodgett St Houston, TX 77004 713.520.7000 phone 713.520.7013 fax monique@thesparkslawfirm.com email http://www.thesparkslawfirm.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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FROM THE TROPICS TO THE TRENCHES The Fourth Amendment Havana Nights, Modern Surveillance, and the Constitutional Fight Against Unreasonable Searches and Seizures TCDLA — Continuing Legal Education
The Fourth Amendment
“Havana Nights” Seminar • 2026
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From the Tropics to the Trenches — TCDLA — Havana Nights Page 1
Introduction The Fourth Amendment remains one of the most important constitutional protections in American criminal law and one of the most heavily litigated doctrines in Texas criminal practice. Although the language of the Amendment is brief, its reach extends into virtually every criminal investigation involving interaction between citizens and law enforcement. Traffic stops, investigative detentions, search warrants, arrests, cell phone extractions, GPS tracking, geofence warrants, digital surveillance, facial recognition technology, and self-reporting vehicles all implicate the same central constitutional principle: governmental intrusion must remain subject to meaningful limitation. For criminal practitioners, the Fourth Amendment is not abstract constitutional theory. It is the daily battlefield upon which cases are won and lost. Most criminal prosecutions begin long before indictment. They begin during roadside encounters, investigative detentions, consensual searches, warrant applications, digital extractions, and rapidly evolving investigative decisions made by officers in the field. Consequently, Fourth Amendment litigation often determines the trajectory of a criminal case before trial ever begins. Against the backdrop of the “Havana Nights” theme, the symbolism becomes especially compelling. Havana evokes images of revolution, secrecy, surveillance, resistance, and governmental control — the very imagery the Framers had in mind when they wrote the Fourth Amendment against the memory of the writs of assistance. 1 Havana is a city where music plays on one balcony while microphones listen from the next. The Fourth Amendment reflects America’s constitutional rejection of that arrangement. It stands for the proposition that liberty requires boundaries. The Fourth Amendment
And those boundaries are increasingly under pressure. Modern practitioners now confront investigative technologies the Framers could never have imagined. Cell phones track movement and communication. Vehicles generate telemetry and location data. Cloud-storage services preserve digital records indefinitely. Automated license plate readers reconstruct travel history.
1
James Otis's February 1761 argument against the writs of assistance in the Massachusetts Superior Court is widely treated as the rhetorical seedbed of the Fourth Amendment. See Michael J. Z. Mannheimer, The Fourth Amendment: Original Understandings and Modern Policing 18-22 (Univ. of Mich. Press 2023) [uploaded source]. From the Tropics to the Trenches — TCDLA — Havana Nights Page 2
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Geofence warrants identify every digital device within a designated location. Artificial intelligence increasingly influences investigative targeting. The modern Fourth Amendment practitioner therefore litigates not only traditional searchand-seizure questions, but also the constitutional implications of life in a surveillance society. From the tropics to the trenches, the constitutional struggle remains the same. The Fourth Amendment is administered through human beings. It has always meant one thing on paper and something else on the side of the road, in the project stairwell, in the parking lot behind the corner store. Doctrine speaks in the register of the “reasonable person.” Practice speaks in the register of who actually walks home and who does not. How much power should the government possess to investigate its citizens. 2 I. The Fourth Amendment’s Original Purpose The Fourth Amendment emerged directly from colonial resistance to arbitrary governmental intrusion. Before the American Revolution, British authorities routinely relied upon general warrants and writs of assistance to search homes and businesses without meaningful judicial oversight or individualized suspicion. These instruments allowed customs officials broad discretionary authority to search property in pursuit of smuggled goods. To the Framers, unrestricted search authority represented one of the clearest markers of tyranny. 3 James Otis’s challenge to writs of assistance in 1761 profoundly influenced revolutionary thought. 4 John Adams later described Otis’s speech as the spark that ignited the American Revolution. 5 The constitutional generation therefore understood that liberty could not survive
2
The Fourth Amendment
Utah v. Strieff, 579 U.S. 232, 254-62 (2016) (Sotomayor, J., dissenting) (cataloguing the constitutional costs of the contact-andattenuation regime and citing James Baldwin, Ta-Nehisi Coates, Between the World and Me (2015), and W.E.B. Du Bois, The Souls of Black Folk (1903)). Justice Sotomayor wrote that "unlawful 'stops' have severe consequences much greater than the inconvenience suggested by the name," id. at 254, and that "it is no secret that people of color are disproportionate victims of this type of scrutiny." Id. at 262. 3 On the colonial backdrop and the centrality of general warrants to the framers' concerns, see Mannheimer, supra note 1, at 2746; see also Katharine Leigh, Developments on the Fourth Amendment and Privacy to the 21st Century, in Privacy in the Digital Age: 21st-Century Challenges to the Fourth Amendment, ch. 1, at 5-9 (Nancy S. Lind & Erik Rankin eds., 2015).
★ NEW SOURCE — John Adams later recalled the speech with the often-quoted line, "Then and there the child Independence was born." 10 The Works of John Adams 247-48 (Charles Francis Adams ed., 1856). The line is reproduced in countless modern treatments; see, e.g., Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 64-65 (1998). 5
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where executive officials possessed unrestricted authority to search citizens without judicial limitation. The Fourth Amendment reflects that concern. Its text provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. 6 Although concise, the Amendment established one of the most significant structural restraints upon governmental authority in American law. Importantly, the Fourth Amendment does not prohibit all searches and seizures. Rather, it prohibits unreasonable ones. The constitutional tension therefore has always involved balancing governmental interests in law enforcement against individual interests in liberty and privacy. That balance becomes increasingly difficult as technology expands governmental investigative capabilities. Originalist scholars has lately complicated the easy assumption that the Amendment’s reasonableness inquiry leaves courts “free-wheeling” discretion; the better reading is that the framers — chastened by Wilkesite cases like Entick v. Carrington and by colonial fights over the writs — understood reasonableness as historically anchored, not infinitely malleable. 7 The Framers drafted the Fourth Amendment to repudiate writs of assistance—broad, warrantless searches that characterized colonial enforcement. In 2026, Fourth Amendment litigation is, in many respects, the unfinished business of that revolt: enforcing the limits they set The Fourth Amendment
in motion.[8] II. The Fourth Amendment Protects People, Not Places
6 7
U.S. Const. amend. IV.
On the originalist case that the Fourth Amendment's prohibition tracks the founding generation's experience with the writs of assistance and the Wilkesite cases, see Mannheimer, supra note 1, at 30-45 [uploaded source]. From the Tropics to the Trenches — TCDLA — Havana Nights Page 4
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Modern Fourth Amendment jurisprudence begins with Katz v. United States, where the Supreme Court famously held that “the Fourth Amendment protects people, not places.” 8 Prior to Katz, Fourth Amendment analysis depended heavily upon physical trespass concepts. If no physical intrusion occurred, courts often concluded that no search had taken place — a position the Court took to its furthest extreme in Olmstead v. United States, which held warrantless wiretaps to be constitutionally invisible because no wire was “entered.” 9 Katz fundamentally altered that framework. Justice Harlan’s concurrence established the now-familiar reasonable expectation of privacy test: 1. The individual must exhibit a subjective expectation of privacy; and 2. Society must recognize that expectation as objectively reasonable. Id. at 361 (Harlan, J., concurring). 10 This doctrinal shift transformed Fourth Amendment litigation. For decades, courts analyzed searches primarily through privacy expectations rather than property rights alone. But modern digital technology has strained the doctrine considerably. Contemporary life requires citizens to disclose enormous quantities of information to third parties simply to function in society. Cellphone providers maintain location records. Internet companies track browsing activity. Vehicle manufacturers collect telemetry data. Cloud-storage services preserve personal communications and documents. Traditional Fourth Amendment doctrine historically held that individuals lose constitutional protection over information voluntarily disclosed to third parties — the “third-party doctrine” crystallized in Smith v. Maryland. 11 But the Supreme Court’s decision in Carpenter v. United
The Fourth Amendment
States signaled growing judicial discomfort with applying the third-party doctrine rigidly in the
8 9
Katz v. United States, 389 U.S. 347, 351 (1967) ("[T]he Fourth Amendment protects people, not places.").
Olmstead v. United States, 277 U.S. 438 (1928) (warrantless wiretapping not a search because no physical trespass); overruled by Katz, 389 U.S. 347. The transition from Olmstead's trespass framework to Katz's privacy framework is recounted in Leigh, supra note 4, at 16-22. 10 Id. at 361 (Harlan, J., concurring). For an extended critique of the indeterminacy that has followed from Harlan's two-part test, see Steven Penney, Reasonable Expectations of Privacy and Novel Search Technologies: An Economic Approach, 97 J. Crim. L. & Criminology 477 (2007). 11 Smith v. Maryland, 442 U.S. 735, 743-44 (1979) (no reasonable expectation of privacy in numbers dialed and conveyed to the phone company). Smith is the canonical articulation of the "third-party doctrine" the draft references.
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digital age. 12 In Carpenter, the Court recognized that historical cell-site location information reveals deeply private details about a person’s life, movements, associations, and habits. The Court therefore required law enforcement generally to obtain warrants before accessing historical CSLI. The significance of Carpenter extends well beyond cell phone towers. The case reflects increasing judicial recognition that modern digital surveillance fundamentally differs from traditional investigative methods. Even before Carpenter, the Court had already signaled this shift in United States v. Jones, reaching the same result on a property-trespass theory when officers attached a GPS device to a suspect’s vehicle. 13 Citizens today do not meaningfully “choose” to generate location data or digital records. Participation in modern society effectively requires it. That concern becomes increasingly relevant as courts confront geofence warrants, automated vehicle telemetry, facial recognition systems, and artificial intelligence-assisted investigations. There is a further point the third-party doctrine quietly suppresses. The data the doctrine treats as “voluntarily disclosed” is generated in some neighborhoods at far higher density than in others. License plate readers cluster on certain corridors. Predictive-policing systems are trained on arrest data, and arrest data records where police arrested people, not where crime occurred. Feed that into a model and the model recommends more policing in precisely the places that produced the input — a closed loop. Carpenter’s recognition that participation in modern society is not a meaningful choice is doctrinally important. It is also, candidly, a recognition that the “voluntary disclosure” fiction has been doing different work for different communities for a very long time.14 The deeper problem, as scholars have noted, is that the Katz test’s normative content remains underdetermined: judges import their own intuitions about what privacy society “should” recognize, with predictably uneven results. 15 The Fourth Amendment
III. Traffic Stops and the Expansion of Police Discretion
12
Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (warrant generally required to obtain seven days or more of historical cell-site location information). 13 United States v. Jones, 565 U.S. 400, 404-05 (2012) (warrantless attachment of GPS tracker to defendant's vehicle constituted a search under a property-based theory). Jones, decided six years before Carpenter, signaled the Court's renewed willingness to police technologically aided surveillance even before Carpenter unsettled the third-party doctrine. 14 Andrew Guthrie Ferguson, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement 35-72 (2017) (predictive-policing systems trained on historical arrest data reproduce historical patterns of policing).
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Few areas generate more Fourth Amendment litigation in Texas criminal practice than traffic stops. Modern interdiction strategies transformed the traffic stop into one of the most powerful investigative tools available to law enforcement. Minor traffic infractions routinely become gateways to broader criminal investigations involving narcotics, firearms, currency seizures, and digital evidence. The Supreme Court’s decision in Whren v. United States effectively authorized pretextual traffic stops so long as an objective traffic violation exists. 16 In practical terms, this means an officer’s subjective intent often becomes irrelevant. A failure to signal, minor lane violation, license-plate-light issue, or alleged traffic infraction may provide constitutional justification for initiating the encounter, even where the true investigative purpose involves unrelated criminal suspicion. Precision matters about what Whren held. Whren did not bless pretextual policing; it held that the Fourth Amendment is not the vehicle for challenging it. The Court routed discrimination objections to the Equal Protection Clause—an enforcement framework that typically requires proof of discriminatory purpose and therefore almost never prevails. The practical effect was to move the issue out of the suppression hearing, where defense counsel can contest it, and into a forum where the claim is structurally difficult to win. Practitioners should not mistake that doctrinal channeling for approval. Pretext is not “fine.” It is largely unreviewable, which is different—and worse. In Texas, counsel has additional tools the federal Fourth Amendment does not supply, including the state racial-profiling provisions and the Sandra Bland Act, and should use them. Sandra Bland was stopped in Waller County for a lane change and did not survive the encounter. The statute that bears her name altered Texas law on several margins, but it left Whren The Fourth Amendment
intact.[17] As a result, practitioners increasingly focus less upon why officers initiated stops and more upon what occurred after the stop began. Modern traffic-stop litigation frequently centers on: •
prolonged detention;
•
expansion of investigation;
16
Whren v. United States, 517 U.S. 806, 813 (1996) (officer's subjective motivation does not invalidate an objectively justified traffic stop).
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•
reasonable suspicion;
•
K9 deployment;
•
consent searches;
•
officer credibility; and
•
body-camera analysis. The Supreme Court’s decision in Rodriguez v. United States significantly reshaped
suppression litigation by holding that officers may not prolong traffic stops beyond the time reasonably necessary to complete the mission of the stop absent additional reasonable suspicion. 17 That principle transformed the practical reality of suppression hearings. Determining a prolonged detention now requires a practitioner to reconstruct traffic stops minute by minute using: •
body-camera footage;
•
dash-camera recordings;
•
CAD logs;
•
dispatch timestamps;
•
citation timing;
•
audio recordings; and
•
GPS records. Suppression hearings increasingly resemble forensic timeline reconstruction. The
constitutional question becomes whether officers diligently pursued the purpose of the stop or intentionally manufactured delay to facilitate unrelated investigation. Every experienced practitioner has encountered the familiar pattern. An officer completes the purpose of the stop, but continues questioning the driver about travel plans, criminal history, narcotics, or weapons while The Fourth Amendment
awaiting a canine unit. The constitutional problem is not merely the questioning itself — it is the extension of detention absent additional reasonable suspicion. Many suppression motions rise or fall based upon mere minutes. The other doctrinal expansion worth naming is Heien v. North Carolina. An officer’s objectively reasonable mistake of law can supply reasonable suspicion. Read alongside Whren, 17
Rodriguez v. United States, 575 U.S. 348, 354-55 (2015) (a seizure justified only by a police-observed traffic violation "becomes unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission" of issuing a ticket) (alteration in original). From the Tropics to the Trenches — TCDLA — Havana Nights Page 8
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Heien means that a stop can rest on a violation the driver did not commit, of a statute the officer misunderstood, while the officer’s real reason for the stop is constitutionally irrelevant. That is a remarkable accumulation of police latitude. Practitioners should treat Heien not as a one-off doctrine but as a force-multiplier on every Whren stop. 18 IV. Reasonable Suspicion and the Elasticity of Suspicion The doctrine of reasonable suspicion was intended to permit limited investigative detention where officers possess specific, articulable facts suggesting criminal activity. 19 In practice, however, reasonable-suspicion doctrine has become extraordinarily elastic. Practitioners routinely hear officers cite: •
nervousness;
•
inconsistent travel plans;
•
high-crime-area presence;
•
furtive movements;
•
avoidance of eye contact;
•
excessive eye contact;
•
unusual calmness;
•
excessive nervousness; or
•
generalized “indicators” of criminal conduct. Ordinary human behavior increasingly becomes constitutionally suspicious once filtered
through law-enforcement interpretation. That tension lies at the heart of modern Fourth Amendment litigation. Courts frequently defer heavily to officer experience and training even The Fourth Amendment
where the underlying conduct is entirely innocent. The danger, of course, is that generalized suspicion becomes indistinguishable from individualized suspicion. Practitioners therefore must aggressively challenge boilerplate testimony
18
Heien v. North Carolina, 574 U.S. 54, 60-67 (2014) (officer's objectively reasonable mistake of law may support reasonable suspicion). Heien expanded police latitude well beyond Whren and is a frequent overlay in modern Texas traffic-stop litigation. 19 Terry v. Ohio, 392 U.S. 1, 21-22 (1968) (introducing the reasonable-suspicion standard for limited investigative detentions). Although the draft does not cite Terry by name, every reasonable-suspicion argument in modern practice is, at root, a Terry argument.
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masquerading as reasonable suspicion. A citizen’s nervousness during a roadside encounter with armed law enforcement officers should not automatically become evidence of criminality. Nor should presence in a “high-crime area” substitute for individualized constitutional justification. 20 Reasonable suspicion must remain tethered to articulable facts rather than generalized intuition. Otherwise, the doctrine risks becoming little more than a constitutional rubber stamp. Let me press on this. The “high crime area” factor is not a neutral geographic descriptor. It is a policing input. A neighborhood becomes a “high crime area” because police have concentrated enforcement there; concentrated enforcement produces arrests; arrests produce statistics; statistics produce the designation. Wardlow then teaches that being present and walking the other way in such a place is enough to support a stop. Justice Stevens warned, in dissent, that this rule would press most heavily on the people for whom contact with the police was already the most dangerous and most frequent. Sixteen years later Justice Sotomayor, dissenting in Utah v. Strieff, described the consequences in language no Fourth Amendment practitioner should pretend not to have read. She wrote that the Court had created a system in which “unlawful stops” are tolerated as long as the officer eventually finds something — and that it is no secret who pays for that arrangement. A serious reasonable-suspicion challenge in 2026 does not pretend Strieff was never written. It uses it. 21 There is a further point on “furtive movements.” That phrase has become the law-enforcement equivalent of a stage direction — it does the work without doing the showing. Asked to describe the furtive movement, the officer will often describe an ordinary motion: reaching for a wallet, adjusting a seat belt, glancing down at the floorboard. The practitioner’s job is to recover the specificity the doctrine pretends to require. Make the officer show the motion, in real time, on the video, in the courtroom. Ordinary human movement is not constitutional suspicion. 22 The Fourth Amendment
V. Race, Reasonableness, and the Fourth Amendment as Practiced
20
Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (presence in a "high crime area" is a relevant contextual factor but "standing alone" is not enough to support reasonable suspicion); see also United States v. Sokolow, 490 U.S. 1, 9-10 (1989) (totality-of-thecircumstances analysis).
★ NEW SOURCE — Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333 (1998) (the Court's Fourth Amendment doctrine systematically discounts the experience of Black Americans in encounters with police). 22
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This is the section a modern Fourth Amendment paper cannot honestly omit. Doctrine is administered through people, and people are not interchangeable. A driver in an affluent neighborhood and a driver in a low-income neighborhood do not face the same constitutional gauntlet when the lights come on behind them. A pedestrian in Highland Park and a pedestrian on MLK Boulevard do not inhabit the same “reasonable person” when an officer asks, do you mind if I ask you a few questions. Doctrine pretends otherwise. The traffic stop does not. The architecture is well documented. Whren channels racial-profiling claims out of the Fourth Amendment. Heien lowers the threshold for the stop itself. Atwater permits custodial arrest for an offense the legislature treated as fine-only. Bostick posits a “reasonable innocent person” who is unraced and feels free to walk away from a bus full of armed officers. Strieff treats an outstanding warrant as a retroactive absolution for the unlawful stop that produced it. Stack these rules and the result is not colorblind investigative discretion, but discretion moving through structured channels.[23] This is not a complaint; it is a list of doctrines, and doctrines are arguable. The serious practitioner makes the arguments. In Texas, the toolkit is broader than the federal one. Article 38.23 reaches not only constitutional violations but also violations of Texas statutes. The racialprofiling provisions in articles 2.131 through 2.137 require agency policies and data collection; demanding that data—especially in pretrial discovery and on cross-examination about the officer’s “practice”—has become a regular feature of suppression litigation in the urban counties. The Sandra Bland Act, enacted after a Waller County stop that ended in a jail cell, reshaped deescalation and mental-health policy but did not disturb pretext-stop doctrine. Tulia is the other Texas touchstone: in 1999, one undercover officer’s word produced roughly forty indictments, most against Black residents; when the convictions collapsed, the Legislature responded with the The Fourth Amendment
corroboration statute in article 38.141. These are not historical curiosities. They are the operating environment in which the Fourth Amendment is litigated in this state.[24] In a suppression hearing where race plausibly shapes the encounter, practitioners should be prepared to argue at least the following: (i) Whren’s channeling rule does not bar evidence of a stop pattern, contemporaneous statements, or agency policy when offered to test credibility and to frame the Rodriguez mission-scope analysis; (ii) the Texas racial-profiling statutes are “laws of this State” for purposes of article 38.23; (iii) the “high crime area” factor under Wardlow is not a
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substitute for individualized suspicion and, in any event, reflects prior enforcement choices that the State must support empirically rather than rhetorically; and (iv) Bostick’s reasonable-person inquiry is a totality test, and the totality includes the client’s real-world position—not the unraced figure of the casebook.[25] It is appropriate—indeed, it is the practitioner’s responsibility—to speak plainly about what these doctrines do. The Constitution does not require us to pretend these realities are not there. It requires us to litigate the encounter that follows.[26] VI. Consent Searches and the Fiction of Voluntariness Few doctrines expose the imbalance of power in police encounters more clearly than consent searches. The law treats consent as voluntary waiver of constitutional protections. But practitioners understand that the practical reality is often far more complicated. Most citizens do not understand they may refuse consent. Even where they do, many do not feel genuinely free to refuse an armed officer standing beside them on a dark highway late at night. Yet the Supreme Court declined to require officers to advise citizens of the right to refuse consent. 23 Texas law imposes a higher burden than federal law by requiring the State to prove voluntary consent through clear and convincing evidence, 24 but voluntariness often turns entirely upon credibility and body-camera footage. Modern consent litigation rarely concerns overt coercion. Instead, it concerns subtle pressure: retention of identification;
•
positioning of patrol vehicles;
•
multiple officers surrounding a suspect;
•
prolonged questioning;
•
authoritative tone;
•
implied inevitability; and
The Fourth Amendment
•
23
Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973) (knowledge of the right to refuse consent is not a prerequisite to voluntary consent under the Fourth Amendment). 24 Texas law requires the State to prove voluntariness of consent by clear and convincing evidence. State v. Ibarra, 953 S.W.2d 242, 245 (Tex. Crim. App. 1997); see also Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000) (videotape evidence may contradict officer's account of consent). From the Tropics to the Trenches — TCDLA — Havana Nights Page 12
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•
inherently intimidating circumstances. The question is not simply whether consent was given. The question is whether refusal
realistically remained possible. Body-camera footage has become especially significant in this context. Video frequently reveals encounters far more coercive than officer reports suggest. A request framed politely in testimony may sound substantially different when viewed in real time. For practitioners, consent litigation increasingly involves not merely legal doctrine, but careful analysis of tone, posture, pacing, and psychological pressure. Consent doctrine requires confronting the fiction at the center of the test. Bostick’s “reasonable innocent person,” who supposedly feels free to end the encounter, is an abstraction. Thirty years of empirical work confirms what practitioners already know: drivers and pedestrians do not experience police encounters as equally optional, and many have well-grounded reasons to believe they cannot simply walk away. Under current doctrine, that experiential gap is not, by itself, a basis for suppression. But it can support—if developed in the record—a finding that the State has not carried its clear-and-convincing burden to prove voluntariness under the totality of the circumstances. Voluntariness is a totality inquiry, and the totality must mean the whole encounter.[25] VII. Search Warrants and Boilerplate Justice Search warrant litigation remains one of the most consequential battlegrounds in modern criminal practice. The Fourth Amendment strongly favors warrants because the Framers intended neutral judicial oversight to restrain executive power. Yet modern warrant practice increasingly risks becoming procedural formalism rather than meaningful constitutional review. Practitioners routinely encounter affidavits filled with recycled boilerplate language The Fourth Amendment
untethered to individualized probable cause. Digital-search warrants are especially vulnerable. Officers frequently assert generalized propositions such as “drug traffickers commonly use cellphones,” or “criminals often store evidence electronically.” The constitutional problem arises when those generalized assumptions replace meaningful nexus analysis. Boilerplate is more than doctrinal laziness. It often smuggles in unexamined cultural assumptions: “known drug-trafficking corridor,” “consistent with gang activity,” “common
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indicators of narcotics conduct.” In affidavits, these phrases do what “furtive movements” does in stop testimony—they reach the conclusion without supplying the facts. Particularity challenges and Franks challenges are the tools for forcing the showing. And when done well, a particularity challenge also helps detect discrimination by exposing the gap between the affidavit’s shorthand and the individualized probable cause the Constitution demands. The Court of Criminal Appeals addressed precisely that concern in State v. Baldwin, emphasizing that generalized assertions about cellphone usage were insufficient absent factual connection between the device and the alleged offense. 25 That issue has become increasingly significant because modern cellphones contain vast quantities of personal information: •
communications;
•
photographs;
•
financial records;
•
medical information;
•
location history;
•
cloud-storage access;
•
internet activity; and
•
social relationships. The Supreme Court recognized this reality in Riley v. California, holding that officers
generally must obtain warrants before searching cellphones seized incident to arrest. 26 Modern cellphone searches are not analogous to searching pockets or containers. They are closer to searching the digital equivalent of a person’s private life. Practitioners challenging digital warrants should carefully examine: nexus deficiencies;
•
boilerplate recitations;
•
overbreadth;
•
lack of particularity;
The Fourth Amendment
•
25
State v. Baldwin, 664 S.W.3d 122, 132-34 (Tex. Crim. App. 2022) (generalized assertions that "drug dealers commonly use cell phones" did not, without more, establish probable cause to search a phone). 26 Riley v. California, 573 U.S. 373, 401-03 (2014) (warrant generally required to search a cell phone seized incident to arrest). From the Tropics to the Trenches — TCDLA — Havana Nights Page 14
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•
staleness;
•
Franks issues;
•
execution procedures; and
•
scope limitations. Increasingly, the most sophisticated Fourth Amendment litigation involves digital evidence
rather than physical contraband. Statutory privacy frameworks — the Stored Communications Act, the Electronic Communications Privacy Act, and CALEA — now run in parallel with the Fourth Amendment and frequently determine the lawful method of acquisition long before any motion to suppress is filed. 27 VIII. Homes, Curtilage, and the Last Private Space Despite technological evolution, the home remains the core protected space under the Fourth Amendment. The Supreme Court repeatedly describes physical intrusion into the home as the “chief evil” against which the Fourth Amendment was directed. Protection extends beyond the physical residence itself to the home’s curtilage — the area intimately associated with domestic life. In Florida v. Jardines, the Supreme Court held that bringing a narcotics dog onto residential curtilage constituted a search. 28 The decision reflected renewed judicial emphasis upon property rights and physical intrusion as independent constitutional concerns. The home as concept has received Fourth Amendment solicitude. The home as actually occupied — the rental apartment, the duplex, the multi-family unit, the public-housing complex, the trailer park, the rooming house, the bed someone sleeps in at a friend’s place — has received considerably less. Minnesota v. Carter denied a short-term guest standing to challenge the surveillance of his host’s apartment. The curtilage cases that produce the most generous Fourth The Fourth Amendment
Amendment protection map most cleanly onto the freestanding single-family house with a front porch and a fenced yard — the housing form of the Framers’ imagination, and not, in the State of Texas, the housing form in which most Texans actually live. The “chief evil” language is
★ NEW SOURCE — David H. Carpenter, Cong. Rsch. Serv., Privacy: An Overview of the Electronic Communications Privacy Act, in Jesse V. Kessler ed., The Fourth Amendment: Select Issues and Cases (Nova Sci. Pub. 2010) [uploaded source] (collecting statutory privacy frameworks that operate alongside the Fourth Amendment). 28 Florida v. Jardines, 569 U.S. 1, 11-12 (2013) (bringing a narcotics-detection dog onto the curtilage of a home is a Fourth Amendment search). 27
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rhetorically gorgeous. The doctrine that operationalizes it is, in practice, distributed unevenly across the state’s housing stock. 29 That development is especially important in an era of expanding surveillance technology. Modern law enforcement agencies increasingly rely upon: •
drones;
•
thermal imaging;
•
pole cameras (similar to Flock);
•
automated license plate readers;
•
facial recognition systems;
•
geofence technology; and
•
persistent digital monitoring.
The constitutional concern is obvious. Technology now permits forms of surveillance once impossible without physical intrusion. The Fourth Amendment must therefore adapt or risk becoming functionally obsolete. The Court anticipated precisely this concern in Kyllo v. United States, which held that the warrantless use of thermal imaging on a private home was a search where the technology was not in general public use. 30 Recent cases reflect growing judicial discomfort with unrestricted surveillance authority. The Supreme Court’s decision in Case v. Montana reaffirmed that warrantless home entry remains presumptively unreasonable absent carefully limited exceptions. 31 Similarly, Brigham City v. Stuart recognized emergency-aid authority while emphasizing that such exceptions remain narrow and fact-specific. 32 Practitioners should therefore scrutinize: claimed exigencies;
The Fourth Amendment
• 29
Minnesota v. Carter, 525 U.S. 83, 102-04 (1998) (Ginsburg, J., dissenting) (criticizing the majority's denial of standing to short-term apartment guests as inconsistent with the Fourth Amendment's protection of the home). 30 Kyllo v. United States, 533 U.S. 27, 40 (2001) (use of thermal-imaging device aimed at a private home from a public street is a search where the technology is not in general public use). Kyllo anticipated, by more than a decade, the modern problem of surveillance technologies that defeat the home/public distinction without physical entry. 31 Case v. Montana, No. 24-624, 605 U.S. ___ (2025) (reaffirming that warrantless entry into a home is presumptively unreasonable absent a recognized exception). [Reader: please verify pinpoint cite against final published opinion.] 32 Brigham City v. Stuart, 547 U.S. 398, 403-04 (2006) (warrantless entry permissible under the emergency-aid exception where officers have an objectively reasonable basis to believe an occupant is seriously injured or imminently threatened with such injury). From the Tropics to the Trenches — TCDLA — Havana Nights Page 16
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•
emergency-aid assertions;
•
protective sweeps;
•
curtilage intrusions;
•
knock-and-talk investigations; and
•
warrantless surveillance techniques.
The home remains the last meaningful private space in American constitutional law. Whether it remains protected may become one of the defining Fourth Amendment questions of the digital era. IX. Geofence Warrants, AI Surveillance, and Self-Reporting Vehicles Geofence warrants represent perhaps the clearest example of modern Fourth Amendment tension. Unlike traditional warrants targeting a known suspect, geofence warrants begin by identifying every digital device present within a designated geographic area and only later narrowing the pool of potential suspects. In practical terms, the government effectively searches innocent people first and develops probable cause later. Recent cases including United States v. Smith reflect increasing judicial concern regarding: 33 •
overbreadth;
•
generalized probable cause;
•
lack of particularity; and
•
mass digital surveillance. These concerns will likely intensify. Modern vehicles increasingly function as rolling
The Fourth Amendment
computers capable of generating enormous quantities of information: •
location history;
•
speed;
•
braking patterns;
•
driver behavior;
•
biometric information;
33
United States v. Smith, 110 F.4th 817 (5th Cir. 2024) (Fifth Circuit's first published decision squarely addressing the constitutionality of a geofence warrant); see also De H Nguyen v. State (Tex. App.) (state-court treatment of geofence-warrant overbreadth challenges).
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•
occupant activity;
•
communications synchronization; and
•
telemetry. The rise of self-reporting vehicles may fundamentally alter the future meaning of privacy
itself. Future prosecutions may increasingly rely upon data automatically generated and transmitted without affirmative governmental action. The constitutional issue is no longer merely whether police may search a vehicle. The question becomes whether citizens meaningfully retain privacy interests in information continuously generated by their own property and involuntarily shared with corporate third parties. 34 Similarly, artificial intelligence increasingly influences investigative decision-making. Predictive policing algorithms, facial recognition systems, automated license plate readers, and AI-assisted surveillance now shape modern criminal investigations in ways courts are only beginning to confront. As public-safety functions migrate from traditional police departments to algorithmic vendors, hybrid public-private investigative platforms, and non-police “responder” agencies, even basic Fourth Amendment coverage may be in doubt. 35 The practitioner of the future may litigate algorithmic reliability and automated suspicion as frequently as officer credibility. The constitutional challenge will involve determining whether traditional Fourth Amendment doctrine remains capable of meaningfully limiting technologically enhanced governmental power. The algorithmic critique is worth stating in its strongest form. A predictive model trained on historical arrest data does not predict crime. It predicts arrest. Those are not the same thing. In a state and a country with the policing history we have, a model trained on that record will reproduce that record — concentrating attention in the neighborhoods that produced the inputs, generating new arrests there, and feeding the loop. Sandra Mayson has put it succinctly: in a racially stratified The Fourth Amendment
world, any predictive method will project the inequalities of the past into the future. That is not a bug; it is math. Practitioners challenging an algorithmically generated lead — a facial-recognition 34
On the connection between modern vehicle telemetry and the Carpenter line of authority, see Leigh, supra note 4, at 24-31 [uploaded source]; for a broader discussion of how digital infrastructure has eroded the volitional element of the third-party doctrine, see Penney, supra note 6, at 478-83 [uploaded source]. 35 On the constitutional implications of public-safety functions performed by non-police agents — a question increasingly relevant as AI and private surveillance vendors are folded into investigations — see Shawn E. Fields, The Fourth Amendment Without Police, 90 U. Chi. L. Rev. 1023 (2023) [uploaded source]. Fields argues that current "special needs" doctrine leaves substantial governmental conduct largely outside Fourth Amendment guardrails when it is reframed as something other than "policing." From the Tropics to the Trenches — TCDLA — Havana Nights Page 18
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hit, a predictive-policing alert, a license-plate-reader association — should treat the algorithm the way they would treat any other affiant: demand the training data, error rates, the validation studies, and the deployment policy. The Constitution does not exempt the machine. 36 The parallels to the Havana of popular imagination are not entirely unwelcome. A society in which microphones are everywhere and the law of search has not kept up is, in many ways, the predicament the Fourth Amendment was written to prevent.
X. Article 38.23 and the Practitioner’s Role in Constitutional Enforcement Texas continues providing broader suppression protections than federal law in several important respects. Article 38.23 of the Texas Code of Criminal Procedure remains one of the most powerful tools available to criminal practitioners. 37 Unlike federal doctrine, Texas exclusionary protections extend not only to constitutional violations, but also to evidence obtained in violation of Texas law. Texas likewise rejects the inevitable-discovery doctrine 38 and permits jury instructions regarding disputed factual questions involving illegally obtained evidence. 39 Those distinctions matter. Federal Fourth Amendment jurisprudence increasingly emphasizes deterrence and costbenefit analysis. Texas law remains more firmly rooted in the principle that unlawful governmental conduct should not produce evidentiary advantage. Suppression litigation therefore remains structurally indispensable. Without adversarial enforcement, constitutional protections risk
The Fourth Amendment
becoming symbolic rather than substantive.
36
Sandra G. Mayson, Bias In, Bias Out, 128 Yale L.J. 2218, 2222 (2019) ("In a racially stratified world, any method of prediction will project the inequalities of the past into the future. This is the fundamental dilemma of algorithmic fairness in a context of racial inequality."). 37 Tex. Code Crim. Proc. art. 38.23(a) ("No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."). 38 On Texas's rejection of the federal inevitable-discovery doctrine, see State v. Daugherty, 931 S.W.2d 268, 270 (Tex. Crim. App. 1996) (declining to recognize an inevitable-discovery exception under art. 38.23). 39 Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007) (criminal defendant entitled to an art. 38.23 jury instruction where evidence raises a contested fact issue material to the lawfulness of police conduct).
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From the Tropics to the Trenches — TCDLA — Havana Nights Page 19
It is worth pausing on what Texas’s exclusionary tradition is and where it comes from. The Texas Court of Criminal Appeals has reaffirmed, repeatedly and across decades, that article 38.23 is not a junior partner to the federal exclusionary rule. It is an independent statutory mandate, broader in coverage and less forgiving of governmental shortcuts. Ex parte Lewis stands for the proposition that this state did not adopt the federal good-faith exception because the Legislature did not choose to. That is the kind of state-law inheritance a practitioner should know cold. Texas defense lawyers built that tradition out of a hundred years of suppression hearings, including hearings in cases the rest of the country has now half-forgotten — Tulia, Sharpstown, the long line of contested confessions in counties whose names do not appear in casebooks. The Texas Criminal Defense Lawyers Association exists because that tradition required, and still requires, a guild to maintain it. 40 That reality underscores the broader role practitioners play in modern constitutional litigation. Criminal practitioners do not merely represent individual clients. They function as constitutional adversaries testing the limits of governmental authority. Every challenged detention, every contested warrant, every Franks motion, and every suppression hearing reinforces constitutional boundaries protecting all citizens. The Fourth Amendment survives only because practitioners continue litigating it. The analogous workplace setting is instructive: the constitutional protections public-sector employees enjoy against searches of their work spaces, computers, and biological samples eroded quickly once courts began deferring to “special needs” justifications, and they survived only where advocates continued pressing them. 41 Conclusion The Fourth Amendment was born from resistance to arbitrary governmental intrusion. Its The Fourth Amendment
continued vitality depends upon whether courts remain willing to impose meaningful constitutional restraints upon evolving investigative power. Modern surveillance technologies increasingly threaten traditional assumptions regarding privacy, voluntariness, and governmental limitation.
40
Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007) (reaffirming the independent and broad sweep of Texas's art. 38.23 exclusionary rule). 41 R. Craig Curtis, Employee Expectations of Privacy in the Workplace: Drug Tests, Work Spaces, Computers, and Social Media, in Privacy in the Digital Age, supra note 4, ch. 5. From the Tropics to the Trenches — TCDLA — Havana Nights Page 20
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Traffic stops have become investigatory platforms. Cellphones have become repositories of personal identity. Vehicles increasingly function as mobile surveillance systems. Algorithms increasingly influence suspicion. And digital records now permit retrospective reconstruction of nearly every aspect of modern life. Against this backdrop, the role of the criminal practitioner becomes structurally indispensable. Practitioners serve not merely as advocates for individual clients, but as constitutional adversaries testing the limits of governmental power. The Fourth Amendment survives only through adversarial enforcement. From the tropics to the trenches, the constitutional struggle remains unchanged. The question is not whether technology will continue expanding governmental power. It unquestionably will. The real constitutional question is whether the Fourth Amendment will continue imposing meaningful restraints upon that power. That answer depends largely upon whether practitioners continue fighting in the trenches — even when the city outside the courtroom is humming with music, microphones, and a thousand glittering reasons to forget the boundary. One last thing. The Fourth Amendment, for some of our clients, has never quite arrived. It has been on its way for a long time. The doctrine speaks the language of the “reasonable person.” The work — the actual work, in the actual courtroom, with the actual client — is the work of insisting that the reasonable person is our client. From colonial Boston to Houston feeder road. The Fourth Amendment
From Otis at the State House to Sandra Bland on a Waller County shoulder. From the writs of assistance to the geofence warrant. The struggle has names, and we know them. Havana nights are loud. The Constitution still must be heard above the music. That is the work.
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From the Tropics to the Trenches — TCDLA — Havana Nights Page 21
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Ethical Plea Bargaining – State Cases
Speaker:
Sarah Duncan Jacobs
Speaker:
Michael Heiskell
Author
Sarah Duncan Jacobs
Federal Public Defender Office, Eastern District of Texas 7460 Warren Pkwy, Ste 270 Frisco, TX 75034 214.562.6792 phone sarah_jacobs@fd.org email
Johnson, Vaughn & Heiskell 500 W. 7th Street Suite 700 Fort Worth, TX 76102 817.457.2999 phone mheiskell@johnson-vaughn-heiskell.com email http://www.johnson-vaughn-heiskell.com/ website
Federal Public Defender Office, Eastern District of Texas 7460 Warren Pkwy, Ste 270 Frisco, TX 75034 214.562.6792 phone sarah_jacobs@fd.org email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Texas Criminal Defense Lawyers Association
Ethical Plea Bargaining
Ethical Plea Bargaining – State cases Sarah Duncan Jacobs Criminal justice today is for the most part a system of pleas, not a system of trials. Lafler v. Cooper, 566 U.S. 156 (2012) (citing Missouri v. Frye, 566 U.S. 134, 143 – 144 (2012). Plea bargains account for more than 90% of case disposition in Texas. They allow for Defendants to minimize punishment, and for the State to conserve efforts and resources. There are pros and cons to this but it is unavoidable. Negotiation “The art of negotiation is at least as nuanced as the art of trial advocacy, and it presents questions further removed from immediate judicial supervision.” Premo v. Moore, 562 U.S. 115, 125 (2011). Bargaining is, by its nature, substantially defined by personal style. Missouri v. Frye, 566 U.S. 134, 145 (2012). With tactics of negotiation being so individual, it would neither be prudent nor practicable to elaborate or define detailed standards for what either party must do to “properly” participate in the process. Id. While you have to target your approach to the jurisdiction and adversary, you can only be you. Defense lawyers have a duty to zealously pursue client’s interests within the bounds of the law. In doing so, you should be competent, prompt, and diligent. Tex. Disciplinary R. Prof’l Conduct, Preamble 3. 1.01. As a negotiator, you must seek a result advantageous to the client but consistent with requirements of honest dealing with others. Tex. Disciplinary R. Prof’l Conduct, Preamble 2. In the simplest terms: Your client has a maximum of what they are willing to do and the DA has a minimum of what they are willing to do. Can you make these overlap? The Plea In Texas the defendant is allowed three basic pleas: 1. A plea of guilty. 2. A plea of not guilty.
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3. A plea of nolo contender, the legal effect of which shall be the same as that of a plea of guilty, except that such plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based. Tex. Code Crim. Pro. Ann. art. 27.02 (in relevant part). A plea of “guilty” or a plea of “nolo contendere” in a felony case must be made in open court by the defendant, in person, and with the required admonishments and waivers. Tex. Code Crim. Pro. Ann. art. 1.13 (waivers); 26.13 (admonishments); 27.13 (felony). The Defendant must make their plea on the record and acknowledge they are doing so voluntarily. Aguirre-Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App. 2003). The plea must be supported by evidence that substantiates the essential elements of the charge presented in court. Tex. Code Crim. Pro. Ann. art. 1.15. This can be done through presentation of evidence, stipulation of evidence, written confession, or oral confession. Misdemeanor pleas are similar but have less formal requirements. Tex. Code Crim. Pro. Ann. art. 27.14 (misdemeanor). Alford pleas are complicated and rare in Texas. A plea of guilty under Alford without an admission of guilt, constitutionally requires a showing of strong evidence of the defendant's guilt before a court may accept a defendant's Alford plea. Sewell v. State, Nos. 14-15-00217-CR, 1415-00218-CR, 2016 WL 750059, at *––––, 2016 Tex. App. LEXIS 1945, at *6 (Tex. App.— Houston [14th Dist.] Feb. 25, 2016, no pet.) (mem. op., not designated for publication) (citing North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). An Alford guilty plea with an admission, “is no more than a nolo contendere [plea].” Id. Sewell; Hoard v. State, No. 07-24-00233-CR, 2025 WL 1095382, at *1 (Tex. App.—Amarillo Apr. 11, 2025, no pet.) Punishment The options to determine punishment in a plea of guilty or nolo contender are: 1. Plea bargain/ negotiated plea. Plea in exchange for set punishment offer. 2. Open Plea to the Judge. Plea guilty and go to the Judge for punishment 3. Jury Punishment Trial/ Unified Trial. Slow plea. Plea guilty and go to the Jury for punishment.
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There are two basic types of plea bargains—sentence bargains and charge bargains. Thomas v. State, 516 S.W.3d 498, 502 (Tex. Crim. App. 2017). Sentence bargaining involves a situation in which a defendant agrees to enter a plea of guilty in exchange for the State’s binding or non-binding recommendation to the court regarding punishment. Id. Charge bargaining, in turn, involves questions of whether a defendant “will plead guilty to the offense that has been alleged or to a lesser or related offenses, and of whether the prosecutor will dismiss, or refrain from bringing, other charges.” Id. A plea bargain is a contract between the state and the defendant. As a contract, once both parties have entered into the bargain they are bound by the terms of the agreement. Moore v. State, 295 S.W. 3d 329, 331-33 (Tex. Crim. Ap. 2009). A defendant may withdraw his plea of guilty as a matter of right, without assigning a reason, until judgement has been pronounced. Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001). Once a plea agreement is accepted in open court the defendant has the right to specific performance or to withdraw their plea. Ex Parte De Leon, 400 S.W.3d 83,91 (Tex. Crim Ap. 2013). Statements made in failed plea negotiations are generally inadmissible in trial. TX. R. EVID, Rule 410. The role of the Judge is to review and accept or reject any plea bargain, they are neither party to nor mediator of the negotiations. The contract is between the Defendant and the State and does not bind the court. A presentence report is required in felony cases where probation is sought. 1 Tex. Code Crim. Pro. Ann. art. 42A.252. If the Judge rejects an agreed plea the defendant can withdraw the plea and renegotiate, withdraw and go to trial, or maintain their guilty plea and proceed with “open” sentencing. Tex. Code Crim. Pro. Ann. art. 26.13(a)(2)-(3). If the Court
Some Judges require the presentence report be done before entry of the plea, some will take the plea and set a separate date for sentencing to allow for the report to be completed.
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follows the plea agreement the Defendant has very limited rights on appeal. Tex. Code Crim. Pro. Ann. art. 26.13(a)(3). A defendant has a statutory, not constitutional, right to a jury to assess punishment. Barrow v. State, 207 S.W.3d 377, 380 (Tex.Crim.App.2006); Tex. Code Crim. Pro. Ann. art. 26.14. When a defendant waives their right to a jury trial this usually waives the right to have jury assess punishment. Tex. Code Crim. Pro. Ann. art. 1.13; Edwards v. State, 273 S.W.3d 919, 921 (Tex. App.—Houston [14th Dist.] 2009, no pet. However, a defendant can maintain their right to have a jury assess punishment after a plea of guilt. In re State ex rel. Mau, 560 S.w.3d 640, 645 (Tex. Crim, Ap. 2018). The waiver of a jury is subject to the consent and approval of the attorney representing the state. Tex. Code Crim. Pro. Ann. art. 1.13(a). Factors Many factors need to be considered in weighting an offer and type of plea. You will need to be able to explain the applicable alternatives and consequences. These factors include, but are not limited to: 1. Charge and Range of Punishment 2 a. Probation – who can give it 3 b. Parole eligibility – is it 3g 4 c. Affirmative findings – i. family violence 5
Tex. Penal Code 12.31 – 12.35. Regular probation (community supervision) is a conviction where a prison/jail sentence is set and suspended (probated) for a set time period, so long as the defendant complies with the conditions. Tex. Code Crim. Pro. Ann. art. 42A.001(a). Deferred adjudication community supervision is the acceptance of a guilty plea and deferral of the conviction for a set amount of time. Tex. Code Crim. Pro. Ann. art. 42A.101(a). If the defendant successfully complies with their conditions then the conviction is never entered. Tex. Code Crim. Pro. Ann. art. 42A.054. A negotiated plea can result in either regular or deferred adjudication probation. In some open pleas a Judge can grant either, but a jury can only grant regular probation. Tex. Code Crim. Pro. Ann. art. 42A.101-102. Which type of probation is possible is limited by the charge and criminal history. See: Deferred - Tex. Code Crim. Pro. Ann. art. 42A.053 Judge Ordered Community Supervision & 42A.054 limits on, eligibility 42A.102. Regular – Tex. Code Crim. Pro. Ann. art. 42A.055 Jury Recommended Community Supervision (requires application) & 42A.056 limits on. 4 Former Tex. Code Crim. Pro. Ann. art. 42.12 §3g, now Tex. Code Crim. Pro. Ann. art. 42A.054. 5 Tex. Code Crim. Pro. Ann. art. 42.013. 2 3
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2. 3. 4. 5.
ii. deadly weapon 6 iii. victim age 7 d. Collateral consequences – i. immigration ii. license – drivers or other iii. sex offender registration 8 e. Other i. hate crime 9 ii. controlled substance used to commit 10 f. Lesser Included 11 g. Possible to expunge 12 or non-disclose 13 Criminal History – enhancements 14 Jurisdiction a. Judges & DAs – b. Pretrial diversion options Discovery 15 Investigation
Effective Assistance Plea negotiations and guilty pleas are critical stages of a criminal proceeding that are included in the Sixth Amendment guarantee of effective assistance of counsel. Lee v. United States, 582 U.S. 357, 363 (2017) (citing Lafler v. Cooper, 566 U.S. 156, 165, (2012); Hill v. Lockhart, 474 U.S. 52, 59 (1985)); McMann v. Richardson, 397 U.S. 759, 771 (1970). The Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. at 58. Only the State can offer a plea bargain. The Defendant can accept, reject, or counter an offer. There is no right to an offer and no one can force the state to make one. Lafler, 566 U.S. at 170. A defense attorney’s failure to communicate to their client an offer from the State, or
Tex. Penal Code 12.42 – 12.43 1.07(a)(17), Polk v. State, 693 S.W.2d 391 (Tex. Crim. App. 1985). Tex. Code Crim. Pro. Ann. art. 42.015. 8 Tex. Code Crim. Pro. Ann. Ch. 62. 9 Tex. Code Crim. Pro. Ann. art. 42.014, Tex. Penal Code 12.47. 10 Tex. Code Crim. Pro. Ann. art. 42.012, Tex. Penal Code 12.29. 11 Tex. Penal Code 12.42 – 12.4312.44, 12.45, 15.01 12 Tex. Code Crim. Pro. Ann. Ch 55 & 55A. 13 Tex. Gov’t Code Ch 411. 14 Tex. Penal Code 12.42 – 12.43 15 Tex. Code Crim. Pro. Ann. 39.14 6 7
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communicate timely acceptance back to the State is ineffective assistance. Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013) (citing Missouri v. Frye, 566 U.S. 134, 145; Lafler v. Cooper, 566 U.S. at 165.); Tex. Disciplinary R. Prof’l Conduct 1.03 (a lawyer must keep his client “reasonably informed” of matters such as plea bargain offers). In order for the client to properly exercise their rights and make decisions, you must give them the information they need. This means explaining complex legal concepts in plain English. Failing to accurately explain the charges and the elements of the offense can result in an involuntary plea. Henderson v. Morgan, 426 U.S. 637, 637, 96 S.Ct. 2253, 2254 (1976); Bitterman v. State, 180 S.W.3d 139, 141 (Tex.Crim.App. 2005)(defendant’s waiver of rights pursuant to a plea bargain must be voluntary). A client is entitled to straightforward advice expressing the lawyer's honest assessment. Tex. Disciplinary R. Prof’l Conduct 2.01. This does not mean the client must agree with your advice. Once the decision is made by the client the attorney must abide by it. Tex. Disciplinary R. Prof’l Conduct 1.02(a)(3). It is best practice to document your communications with your client at every step. Conclusion There is not a sure-fire method to get the best deal. Much of it depends on factors outside of your control. Strive to be straight-forward in your dealings, know your stuff, and unafraid of hearings or trials. This will grow your reputation and negotiations will get easier.
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Texas Criminal Defense Lawyers Association Understanding Collateral Consequences
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Under the Palms, Over the Line: Understanding Collateral Consequences
Speaker:
Amanda I. Hernandez
Amanda Hernandez Law PLLC 909 NE Loop 410 Suite 500 San Antonio, TX 78209 210.369.4040 phone 210.369.4025 fax amanda@amandahernandezlaw.com email http://www.amandahernandezlaw.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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909 NE Loop 410, Suite 500 San Antonio, Texas 78209
210-369-4040 (Phone); 210-369-4025 (Fax) amanda@amandahernandezlaw.com
Under the Palms, Over the Line: Understanding Collateral Consequences By: Amanda I. Hernandez
TCDLA’s 39th Annual Rusty Duncan Advanced Criminal Law Seminar June 18, 2026; San Antonio, Texas Table of Contents
I. Introduction: What is a collateral consequence? ...................................................... 4 II. Why do collateral consequences matter? ............................................................... 4 III. Immigration-Related v. Non-Immigration Related Collateral Consequences .......... 5 A. Immigration-Related Consequences .............................................................................. 5 B. Non-Immigration Related Consequences ....................................................................... 6
IV. Parole Eligibility ..................................................................................................... 7 A. Capital Murder & The Death Penalty ............................................................................... 8 B. Offenses Not Eligible for Parole (Tex. Gov’t Code §508.145(a)) .......................................... 9 C. Additional LWOP Provisions ........................................................................................... 9 D. Offenses Eligible for Parole after 40 Years (Tex. Gov’t Code §508.145(b)) ........................ 10 E. Offenses eligible for parole after 35 years (Tex. Gov’t Code § 508.145(c)) ........................ 10 F. Offenses eligible for parole after 10 years (Tex. Gov’t Code §508.145(e)(1)) (89th Legislature) ...................................................................................................................... 12 G. Offenses eligible for parole after 5 years – Drug-Free Zones (Tex. Gov’t Code § 508.145(e)) ........................................................................................................................................ 12 H. Parole Eligibility for Certain Serious Offenses (Tex. Gov’t Code § 508.145(d)) ................. 12 1. Current “3g” offenses ....................................................................................................................... 13
I. All other cases (Tex. Gov’t. Code § 508.145(f)) ................................................................. 14 J. Medically Recommended Intensive Supervision (Tex. Gov’t Code § 508.146)................... 14
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K. Consecutive Felony Sentences (Tex. Gov’t Code § 508.150) ........................................... 14
V. Parole v. Mandatory Supervision ............................................................................ 15 A. Release to Mandatory Supervision (Tex. Gov’t. Code § 508.147) ..................................... 15 B. Inmates Not Eligible for Mandatory Supervision (Tex. Gov’t. Code § 508.149(a)) .............. 15
Understanding Collateral Consequences
C. Inmates Not Eligible for Mandatory Supervision Even When They Are (Tex. Gov’t. Code § 508.149(b)) ....................................................................................................................... 17 D. “Street Time” and how it relates to Parole (Tex. Gov’t. Code § 508.283) .......................... 17
VI. Sex Offender Registration: “The Modern-Day Scarlet Letter” ................................ 18 A. What does it mean to be a registered sex offender? ...................................................... 19 B. Who is required to register, where and when? ............................................................... 19 C. Texas Code of Criminal Procedure Chapter 62 .............................................................. 19 1. Qualifying Offenses (Tex. Code Crim. Proc. art. 62.001(5)(A)-(M))...................................................... 20 2. Sexually Violent Offenses (Tex. Code Crim. Proc. art. 62.001(6)) ....................................................... 21 3. Are there exemptions? ...................................................................................................................... 22 4. Is there early termination? ................................................................................................................ 22
C. Lifetime Registration v. 10-Year registration .................................................................. 22 1. Lifetime Registration Offenses (Tex. Code Crim. Proc. art. 62.101(a)) ................................................ 22 2. 10-Year Registration Offenses (Tex. Code Crim. Proc. art. 62.101(b) & (c)) ......................................... 23
D. Sex Offender Restrictions ............................................................................................ 24
VII. Felony Convictions ............................................................................................. 25 VIII. Driver’s Licenses Consequences ....................................................................... 26 A. Administrative License Revocation (ALR) – DWI Cases .................................................. 26 B. Occupational Driver’s Licenses (ODLs) ......................................................................... 27 C. Drug-Related Suspensions ........................................................................................... 27 D. Failure to Appear and Surcharge-Related Issues ........................................................... 27
IX. Practice Tips ........................................................................................................ 28 A. Identify Collateral Consequences Early ........................................................................ 28 B. Ask the Right Questions ............................................................................................... 28 C. Do Not Guess; Verify .................................................................................................... 28 D. Remember Collateral Consequences in Plea Negotiations............................................ 29 E. Clearly Communicate Risks to the Client ...................................................................... 29 F. Manage Client Expectations .......................................................................................... 29
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X. Conclusion ........................................................................................................... 29
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I. Introduction: What is a collateral consequence? The National Inventory of Collateral Consequences of Conviction defines “collateral consequences” as “legal and regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment, business and occupational licensing, housing, voting, education, and other rights, benefits, and opportunities.”1 Understanding Collateral Consequences
Collateral consequences vary widely in both purpose and scope. Some serve public safety or regulatory functions; for example, restricting firearm possession by individuals convicted of violent offenses, prohibiting those convicted of assault or abuse from working with vulnerable populations, or barring individuals convicted of fraud from positions of public trust. Other collateral consequences are more directly tied to the underlying offense itself, such as sex offender registration requirements. While courts have held that only certain collateral consequences rise to the level of constitutional concern, the practical reality is that these consequences often carry lifealtering effects that far exceed the direct punishment imposed by the court. For many clients, the true impact of a conviction is not measured in days of confinement, but in the long-term restrictions that follow them long after a case is closed. This paper is designed to: (1) provide an overview of some of the most significant collateral consequences under Texas law; (2) distinguish between immigration and nonimmigration consequences and the corresponding duties of defense counsel; (3) analyze parole eligibility and supervision structures that directly affect a client’s actual time served; and (4) highlight key areas, such as sex offender registration and felony consequences, where informed advice is critical to effective representation. Ultimately, this paper aims to equip criminal defense attorneys with the knowledge necessary to properly advise clients and make informed strategic decisions at every stage of a case.
II. Why do collateral consequences matter? The unfortunate reality is that many collateral consequences extend far beyond any logical connection to the underlying offense. Some are imposed without any regard to whether the restriction bears any relationship to the conduct, such as blanket employment disqualifications that prevent individuals with any felony conviction from obtaining occupational licenses in fields unrelated to the offense. Additionally, these consequences often last for life and are applied without consideration of the passage of time or evidence of rehabilitation, effectively disregarding an individual’s efforts to reintegrate and move forward after conviction. In 2023, the American Bar Association reported “Plea bargaining has become the primary way to resolve criminal cases in the United States, with nearly 98% of convictions
Nat’l Inventory of Collateral Consequences of Conviction (NICCC), Nat’l Reentry Res. Ctr., https://niccc.nationalreentryresourcecenter.org/ (last visited Apr. 24, 2026). 1
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nationwide currently coming from guilty pleas.”2 In the report, the ABA Plea Bargain Task Force noted “Trials have become rare legal artifacts in most U.S. jurisdictions, and even nonexistent in others.”
Understanding Collateral Consequences
The numbers alone make it clear that to be a good defense attorney, the lawyer needs to know and understand the collateral consequences of a plea before advising their clients on whether or not to accept or reject the same. Moreover, defense attorneys are constitutionally required to give effective assistance under Strickland v. Washington, 466 U.S. 668 (1984).
III. Immigration-Related v. Non-Immigration Related Collateral Consequences A. Immigration-Related Consequences In Texas, courts have historically treated most collateral consequences (such as punishment enhancements, employment difficulties following convictions, loss of licenses) as outside the core duty to advise, with one core exception: deportation consequences. In 2010, the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010). Following that decision, Texas courts recognize that defense counsel must advise noncitizen clients about immigration consequences of guilty pleas. When “the deportation consequence is truly clear,” counsel has “an equally clear” duty to give correct advice. Ex parte Juara, 643 S.W.3d 702, 713–14 (Tex. App.—Fort Worth 2021, pet. ref’d). The courts have affirmed that trial counsel renders deficient performance by failing to adequately warn a defendant that a guilty plea makes the defendant “subject to automatic deportation”. See Ex Parte Torres, 483 S.W.3d 35, 46 (Tex. Crim. App. 2016). However, when immigration law is “not succinct and straightforward as to the consequences of the entry of a guilty plea, a criminal defense attorney need do no more than advise a noncitizen defendant that pending criminal charges may carry a risk of adverse immigration consequences.” Ex parte Juara, 643 S.W.3d 702, 713 (Tex. App.—Fort Worth 2021, pet. ref’d) (external citations omitted). With regard to advice about the immigration consequences of a plea, the nature of the advice to be given is dependent on the certainty of the applicable immigration law. Padilla, 559 U.S. at 369. When deportation consequences are unclear or uncertain, such as when a lawful permanent resident is deportable but also eligible for cancellation of removal, counsel need only advise that charges “may carry a risk of adverse immigration consequences”. Ex Parte Rodriguez, 378 S.W.3d 486, 494 (Tex. App.—San Antonio 2012, pet. ref’d) (quoting Padilla, 559 U.S. at 368). But when federal immigration law clearly requires deportation following a guilty plea, “a failure by counsel to affirmatively and correctly advise a defendant regarding the clear deportation consequences of his plea will render counsel’s Am. Bar Ass’n, Plea Bargain Task Force Report Urges Fairer, More Transparent Criminal Justice System (Feb. 22, 2023), https://www.americanbar.org/news/abanews/aba-news-archives/2023/02/plea-bargain-taskforce/. 2
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performance constitutionally deficient”. Ex Parte Duque, 540 S.W.3d 136, 146 (Tex. App.— Houston [1st Dist.] 2017, no pet.) (quoting Padilla, 559 U.S. at 369). B. Non-Immigration Related Consequences
Understanding Collateral Consequences
Texas law distinguishes deportation from other collateral consequences. Under prePadilla law, which still governs most collateral consequences, “when defendant is fully advised of direct consequences of her plea, her ignorance of collateral consequence does not render plea involuntary”. Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing United States v. Long, 852 F.2d 975, 979–80 (7th Cir.1988)). Courts in Texas have consistently held that there are a number of direct consequences of a plea of guilty, such as the loss for a period of years of the right to vote and the right to possess firearms, ineligibility for certain professional licenses, etc., that do not necessarily render an otherwise voluntary plea involuntary. See e.g., Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (suggesting that the defendant's attorney’s failure to advise the defendant that his conviction might be used to enhance the defendant’s punishment for a future offense does not implicate the defendant's right to counsel under the Sixth Amendment); State v. Collazo, 264 S.W.3d 121, 128 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (the fact that defendant was unaware his conviction could prevent him from getting a peace officer's license did not undermine the voluntariness of his plea); Ex parte Dumitru, 850 S.W.2d 243 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (defendant's plea was not involuntary just because he did not know the sentence might be used in the future to enhance the penalty range if he committed another crime); Ex parte Nelson, No. 01-1400924-CR, 2015 Tex. App. LEXIS 6680, 2015 WL 3981577, at *15 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (mem. op., not designated for publication) (concluding the defendant's employment difficulties following his conviction “are not a direct consequence of his plea”); Ex parte Drinkard, No. 02-11-00369-CR, 2012 Tex. App. LEXIS 6623, 2012 WL 3207428, at *5 (Tex. App.—Fort Worth Aug. 9, 2012, no pet.) (mem. op., not designated for publication) (explaining the defendant does not have to know the crime to which he pleads guilty can be used to enhance a possible future sentence before he can enter into a knowing and voluntary plea); Morales v. State, No. 07-10-0351-CR, 2011 Tex. App. LEXIS 9736, 2011 WL 6183574, at *10 (Tex. App.—Amarillo Dec. 13, 2011, no pet.) (mem. op., not designated for publication) (“Ignorance of a collateral consequence does not render a plea involuntary.”). While the courts primarily treat these as “collateral” rather than “direct” consequences, meaning there is no automatic constitutional requirement that a lawyer advise about them, competent representation under professional standards may still include discussing major consequences; especially if they are severe and predictable. While the Rules of Professional Conduct do not contain a bright-line rule when it comes to advising clients about collateral consequences, they do require competent representation and effective communication. Under Rule 1.01, a lawyer must provide “competent and diligent representation.” That can include understanding and advising on consequences that are reasonably foreseeable and important to the client’s decision, 6
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especially in deciding whether or not to pursue a trial or take a deal. Under Rule 1.03, a lawyer must (1) keep the client reasonably informed, and (2) explain matters to the extent reasonably necessary for the client to make informed decisions. Under these rules, then, a defense lawyer risks an ethics problem if they fail to advise about major, predictable consequences that would affect a reasonable client’s decision, especially during plea negotiations.
IV. Parole Eligibility When an individual is deciding whether or not to accept a plea offer, they will obviously consider how much time they may actually spend in prison. The Texas Court of Criminal Appeals has made clear: When deciding whether to accept or reject a plea offer, a defendant will likely consider the actual minimum amount of time he will spend incarcerated. In order to properly consider his options, a defendant needs accurate information about the law concerning parole eligibility. Although we continue to recognize the distinction between direct and collateral consequences, we now hold that the question of whether parole eligibility forms an affirmative part or essential element of the plea agreement is not determinative of this Court's deficient-performance inquiry under Strickland. … The constitutionally appropriate level of reasonableness is defined by the practices and expectations of the legal community and prevailing professional norms therein. Strickland, supra, at 688, 104 S.Ct. 2052. In situations in which the law is not clear, counsel should advise a client that pending criminal charges may carry a risk of other serious consequences. When a serious consequence is truly clear, however, counsel has an equally clear duty to give correct advice. Both failure to provide correct information and providing incorrect information violate that duty. Ex Parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012). In Moussazadeh, Texas Court of Criminal Appeals held that defense counsel’s misinformation about parole eligibility constituted deficient performance because parole eligibility requirements were presumptively mandatory. Id. Determining parole eligibility, however, isn’t always an easy task. While the statutory framework appears straightforward, it contains various cross-references, exceptions, and legislative amendments that significantly impact how much time a client will actually serve. When someone is weighing whether or not to accept an offer, prison time is obviously one of the most important factors. Defense attorneys must therefore carefully analyze not only the charged offense, but also enhancements, specific statutory subsections, and, critically, the law in effect at the time of the offense.
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In Texas, parole and mandatory supervision eligibility are governed by the law in effect at the time the offense was committed. The Texas Board of Pardons and Paroles publishes Parole in Texas, which includes a 58-page appendix, “Parole and Mandatory Supervision Eligibility Chart”3, detailing eligibility criteria for offenses committed since January 1, 1996.
Understanding Collateral Consequences
This publication, available through the Texas Department of Criminal Justice website, does not yet (as of the date of this paper) incorporate changes from the 89th Legislature. The Board’s website4 also contains policies, directives, and other key guidance, making it a valuable resource for parole practitioners. Statutes governing parole matters can be found at Texas Government Code, Chapter 508, and Texas Administrative Code Title 37, Part 5. A. Capital Murder & The Death Penalty In Texas, if an individual is convicted of a capital felony, he or she may be subject to punishment by death, if the State sought such punishment. Under Texas Penal Code § 19.03, a person commits capital murder when they commit murder (as defined under Texas Penal Code § 19.02(b)(1)) and one of several aggravating circumstances is present. These include: •
•
• • •
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Victim status: Killing a known peace officer or firefighter acting in the lawful discharge of duties. Knowledge is presumed if the victim was in uniform or wearing a badge. Felony murder context: Intentional killing during the commission or attempted commission of specified felonies, including kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction/retaliation, or certain terroristic threats. Murder for hire: Killing for remuneration, promise of payment, or employing another to do so. Escape-related killings: Murder committed while escaping or attempting to escape from a penal institution. Murders by inmates: o Killing institutional employees or others to further gang/combination activity; o Killing while already incarcerated for murder or capital murder; o Killing while serving life or a lengthy sentence for certain serious offenses. Multiple victims: Killing more than one person, either in the same criminal transaction or as part of a common scheme or course of conduct. Child victims: Killing a child under 10, or a child aged 10–14. Judicial retaliation: Killing in retaliation for or based on the victim’s status as a judge or justice.
Because of the 2005 decision in Roper v. Simmons, 543 U.S. 551 (2005), persons under the age of 18 at the time of the offense cannot receive a sentence of death. There are Texas Bd. of Pardons & Paroles, https://www.tdcj.texas.gov/bpp/publications/PIT_English.pdf 4 www.tdcj.state.tx.us/bpp. 3
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also constitutional limitations. If the State does not seek death, LWOP is mandatory for adults convicted of capital murder. If the State does seek death, upon conviction, the jury must unanimously decide: (1) The person is likely to be a continuing threat to society (“future dangerousness”), and (2) There are not enough mitigating factors (like mental illness, background, etc.) to justify a lesser sentence. If the jury doesn’t agree on those, the sentence becomes LWOP instead. Understanding Collateral Consequences
B. Offenses Not Eligible for Parole (Tex. Gov’t Code §508.145(a)) Life without parole (LWOP) in Texas is also tied to the most serious offenses, with many sentences resulting from capital murder charges. Eligibility for parole is set out in Texas Government Code § 508.145. Under part (a), certain offenses categorically preclude parole eligibility. After the 89th Texas Legislative session, more offenses were added and became effective on September 1, 2025. A sentence of death, LWOP, or for any of the following result in the individual being ineligible for parole: 1. Continuous Trafficking of Persons (Texas Penal Code §20A.03) only if the offense is based partly or wholly on conduct under §20A.02(a)(5)–(8). 2. Continuous Sexual Abuse of a Young Child or Disabled Individual (Texas Penal Code §21.02). 3. Continuous Sexual Abuse (Texas Penal Code § 21.03) (became effective September 1, 2025). 4. Aggravated Sexual Assault (Texas Penal Code §22.021) only if the offense is punishable under Subsection (f), meaning the minimum imprisonment term was 25 years and the case involved: o A victim under age 6 at the time of the offense; or o A victim under 14 at the time of the offense with additional aggravating factors such as serious bodily injury, threats, use of a deadly weapon, trafficking-related conduct, or administration of impairing substances. 5. Illegal Reentry by Certain Aliens (Texas Penal Code §51.03) or Refusal to Comply with Order to Return to Foreign Nation (Texas Penal Code §51.04) (became effective September 1, 2025). 6. Criminal Attempt (Texas Penal Code § 15.01) only if punishable under section (e), an attempted capital murder of a peace officer under Section 19.03(a)(1) and punished as a first-degree felony (became effective September 1, 2025). 7. Trafficking of Persons (Texas Penal Code §20A.02(a)(5)–(8)), essentially involving an offense to traffic a child or disabled individual for forced labor or sexual exploitation, to benefit from or participate in such trafficking, or to engage in sexual conduct with a trafficked victim. These provisions apply regardless of whether the offender knew the victim’s age or disability status. C. Additional LWOP Provisions Although not contained within Texas Government Code § 508.145, practitioners must also be aware of the following provisions that can result in LWOP.
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1. Texas Penal Code §12.42(c)(4) – Repeat Offender Provision. This provision requires a mandatory sentence of life imprisonment without parole for certain repeat offenders. It applies when: o The defendant is over 18 at the time of the offense; o The current conviction is for Continuous Trafficking of Persons (Texas Penal Code § 20A.03) or another “sexually violent offense” (see Texas Code of Criminal Procedure Art. 62.001(6)); and o The defendant has a prior final conviction for the same type of trafficking offense, another sexually violent offense, or a substantially similar offense under the laws of another state. 2. Engaging in Organized Criminal Activity (Texas Penal Code § 71.02(b)(1)). The offense becomes a first-degree felony punishable by life imprisonment without parole if the defendant was 18 or older at the time, if the most serious offense is an aggravated sexual assault and if: o the victim was younger than 6; o the victim was younger than 14 and the assault involved particularly serious conduct described by Section 22.021(a)(2)(A); or o the victim was younger than 17 and suffered serious bodily injury as a result. D. Offenses Eligible for Parole after 40 Years (Tex. Gov’t Code §508.145(b)) Part (b) of Texas Government Code § 508.145 mandates that a person sentenced to life imprisonment for a capital felony under Section 12.31(a)(1) of the Texas Penal Code is not eligible for parole until they have served a full 40 years of actual calendar time in prison, and this period cannot be reduced by good conduct time or any other credits. In practical terms, this creates a fixed, mandatory minimum of 40 years that must be served day-for-day before the inmate can even be considered for parole, and even then, release is not guaranteed but remains entirely within the discretion of the parole board. E. Offenses eligible for parole after 35 years (Tex. Gov’t Code § 508.145(c)) Under Texas Penal Code § 12.42(c)(2), an inmate is serving an enhanced sentence as a repeat or habitual offender for certain serious felonies. Texas Government Code § 508.145(c) requires that they serve a minimum of 35 actual calendar years in prison before becoming eligible for parole, with no reduction for good conduct time. In practical terms, this creates a strict, day-for-day requirement (similar to capital cases but slightly shorter). Like the previous rule, this calculation does not include any good conduct time, meaning that credits for good behavior or program participation cannot reduce the 35-year requirement. As a result, parole eligibility is based strictly on time physically served in prison. Texas Penal Code Section 12.42(c)(2) applies when a defendant is convicted of a qualifying first-degree felony (generally involving serious sexual or sexually motivated conduct) and has a prior conviction for specified sexual or trafficking-related offenses. Qualifying current offenses include convictions for:
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Understanding Collateral Consequences
• • • •
Trafficking of Persons under Texas Penal Code § 20A.02(a)(7) or (8). These offenses essentially involve trafficking a child or disabled person into sexual abuse, exploitation, prostitution, or child pornography-related offenses, and also criminalizes benefiting from or participating in those activities or engaging in sexual conduct with the trafficked victim, regardless of whether the offender knew the victim’s age or disability. Indecency with a Child by Contact under Texas Penal Code § 21.11(a)(1). Aggravated Sexual Assault under Texas Penal Code § 22.021 or Sexual Assault under Texas Penal Code § 22.011. Aggravated Kidnapping under Texas Penal Code § 20.04(a)(4) if the offense was committed with intent to violate or abuse the victim sexually. Burglary of Habitation under Texas Penal Code § 30.02 if the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11 of the Texas Penal Code.
Texas Penal Code Section 12.42(c)(2) also requires that the defendant have a prior conviction for one of several enumerated offenses, including: • • •
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Sexual performance by a child (Texas Penal Code §43.25). Possession or promotion of child pornography (Texas Penal Code § 43.26). Obscenity (Texas Penal Code § 43.23) if punished under subsection (h); essentially involving obscene material showing sexual activity involving a real child under 18, a realistic image that appears to be a child, or a digitally created or altered image depicting an identifiable child. Trafficking of Persons (if under Texas Penal Code § 20A.02(a)(7) or (8)). Continuous Sexual Abuse of a Child or Disabled Individual (Texas Penal Code § 21.02) or Continuous Sexual Abuse (Texas Penal Code § 21.03). Indecency with a Child (Texas Penal Code § 21.11). Aggravated Sexual Assault (Texas Penal Code § 22.021) or Sexual Assault (Texas Penal Code § 22.011). Prohibited Sexual Conduct (Texas Penal Code § 25.02). Aggravated Kidnapping (if under Texas Penal Code § 20.04(a)(4) and the offense was committed with intent to violate or abuse the victim sexually). Burglary of Habitation (if under Texas Penal Code § 30.02 and the defendant committed the offense with the intent to commit a felony described by Subparagraph (i) or (ii) or a felony under Section 21.11 of the Texas Penal Code). Other substantially similar offenses under the laws of another jurisdiction.
When Section 12.42(c)(2) applies, the defendant typically receives a mandatory life sentence. As noted above, Under Texas Government Code § 508.145(c), such an individual is not eligible for parole until they have served 35 years of actual calendar time, without consideration of good conduct time.
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F. Offenses eligible for parole after 10 years (Tex. Gov’t Code §508.145(e)(1)) (89th Legislature) Part (e)(1) of Texas Government Code § 508.145 holds that an inmate serving a sentence for an offense punishable under § 49.09 (b-2)(2) of the Texas Penal Code is not eligible for release on parole until the actual calendar time served, without consideration of good conduct time, equals 10 years. Understanding Collateral Consequences
Texas Penal Code § 49.09 (b-2)(2) applies to a person convicted of an offense under Texas Penal Code § 49.08 (Intoxication Manslaughter) if the person has previously been convicted of an offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated, and at the time of the commission of the instant offense was in violation of Chapter 51. G. Offenses eligible for parole after 5 years – Drug-Free Zones (Tex. Gov’t Code § 508.145(e)) Part (e) of Texas Government Code § 508.145 applies to inmates whose sentences are enhanced under Section 481.134 of the Texas Health and Safety Code, commonly referred to as the “drug-free zone” statute. It provides that such individuals are not eligible for parole until they have served either five years of actual calendar time or the full term of their sentence, whichever is less. Importantly, this calculation does not include good conduct time, meaning that credits for good behavior or program participation cannot reduce the minimum time required. As a result, even though the underlying offense may vary, the enhancement triggers a mandatory period of incarceration before parole eligibility is permitted. H. Parole Eligibility for Certain Serious Offenses (Tex. Gov’t Code § 508.145(d)) Subsection (d) establishes the general parole eligibility framework for (1) individuals convicted of serious offenses commonly referred to as “3g offenses” under Texas Code of Criminal Procedure art. 42A.054; (2) cases involving affirmative findings such as the use of a deadly weapon; or (3) certain organized criminal activity under Texas Penal Code §§ 71.02 and 71.023. For individuals covered by this subsection, parole eligibility is determined by actual time served. Specifically, an inmate is not eligible for parole until the inmate has served one-half of the sentence or 30 years, whichever is less, but in no case less than two years. This calculation is based solely on calendar time served and does not include any good conduct time. Subsection (d)(3) imposes an even harsher rule in certain aggravated sexual assault cases under Texas Penal Code § 22.021 when coupled with specific habitual offender enhancements under Texas Penal Code § 12.42(c)(4). In those circumstances, the individual is not eligible for parole at all, effectively converting the sentence into life without parole. Finally, Subsection (d-1), added by the 2025 amendments, introduces a punitive tolling mechanism for delay between indictment and arrest: for certain serious offenses,
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including murder and sexual assault, each 12-month period that elapses before the defendant is arrested after indictment results in an additional three-year delay in parole eligibility, dramatically extending the time before the inmate can even be considered for release. 1. Current “3g” offenses Understanding Collateral Consequences
The current offenses found in Texas Code of Criminal Procedure art. 42A.054, commonly known as “3g offenses”, include: • • • • • • • •
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Criminal solicitation (Texas Penal Code § 15.03) only if punishable as a first-degree felony (i.e., the offense solicited is a capital offense). Murder (Texas Penal Code § 19.02) or Capital Murder (§ 19.03). Aggravated Kidnapping (Texas Penal Code §20.04). Trafficking of Persons (Texas Penal Code §20A.02) or Continuous Trafficking of Persons (Texas Penal Code § 20A.03). Continuous Sexual Abuse (Texas Penal Code §21.03). Indecency with a Child (Texas Penal Code § 21.11). Sexual Assault (Texas Penal Code § 22.011) or Aggravated Sexual Assault (Texas Penal Code § 22.021). Injury to a Child, Elderly Individual, or Disabled Individual (Texas Penal Code § 22.04(a)(1)) if: o (A) the offense is punishable as a felony of the first degree; and o (B) the victim of the offense is a child. Aggravated Robbery (Texas Penal Code § 29.03). Burglary, Section 30.02, Penal Code, if: o (A) the offense is punishable under Subsection (d) of that section; and o (B) the actor committed the offense with the intent to commit a felony under Section 21.02, 21.03, 21.11, 22.011, 22.021, or 25.02, Penal Code. Stalking (Texas Penal Code § 42.072). Aggravated Promotion of Prostitution (Texas Penal Code § 43.04) or Compelling Prostitution (Texas Penal Code § 43.05). Sexual Performance by a Child (Texas Penal Code Section 43.25). Possession or Promotion of Child Pornography (Texas Penal Code § 43.26). An offense under Texas Health and Safety Code Chapter 481 for which punishment is increased under: o (A) Section 481.140 of that code (Use of Child in Commission of Offense); or o (B) Section 481.134(c), (d), (e), or (f) of that code (Drug-free Zones), if it is shown that the defendant has been previously convicted of an offense for which punishment was increased under any of those subsections. Manufacture or Delivery of Substance in Penalty Group 1-B, Section 481.1123, Health and Safety Code, if the offense is punishable under Subsection (d), (e), or (f) of that section.
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I. All other cases (Tex. Gov’t. Code § 508.145(f))
Understanding Collateral Consequences
Subsection (f) establishes the default parole eligibility rule for inmates who are not subject to the stricter requirements outlined in other provisions. Under this subsection, an inmate becomes eligible for parole when the combination of actual time served and any accrued good conduct time equals one-fourth of the sentence imposed or 15 years, whichever is less. Unlike more restrictive subsections, this rule allows good conduct time to count toward parole eligibility, meaning that an inmate’s behavior and participation in prison programs can accelerate the date on which they may be considered for release. However, this provision applies only if no other statute imposes a longer or more restrictive minimum period of confinement. J. Medically Recommended Intensive Supervision (Tex. Gov’t Code § 508.146) Section 508.146 of the Texas Government Code allows certain inmates with serious medical or mental conditions to be released early under a special form of supervision known as medically recommended intensive supervision (MRIS). Eligible inmates include those who are elderly, terminally ill, physically or mentally disabled, or otherwise suffering from significant medical impairments. To qualify, a parole panel must determine, based on a medical evaluation, that the inmate does not pose a threat to public safety, and an individualized supervision plan must be approved. Release under this provision is highly conditional: the individual must remain under medical care and is subject to intensive supervision, such as electronic monitoring or placement in a medical facility. However, inmates sentenced to death, life without parole, or certain serious offenses may be excluded or subject to additional restrictions. Overall, this statute creates a limited exception to standard parole rules, allowing early release based on humanitarian and medical considerations rather than time served. K. Consecutive Felony Sentences (Tex. Gov’t Code § 508.150) Texas Government Code § 508.150 explains how parole eligibility is calculated when an inmate is serving consecutive (stacked) felony sentences under Article 42.08. Rather than treating the sentences as a single combined term, the parole board must evaluate each sentence separately and determine when the inmate would have been eligible for parole on each individual sentence if it stood alone. The statute also clarifies when each sentence in the series “ceases to operate.” A sentence ends either when the inmate has served its full calendar time or when the designated hypothetical parole eligibility date is reached, whichever occurs first. However, these calculations cannot be reused or “double-counted” for subsequent sentences, and the parole panel is expressly prohibited from granting release until the inmate becomes eligible on the final sentence in the sequence. In effect, the law prevents early release through aggregation and ensures that each consecutive sentence retains independent significance in determining overall parole eligibility.
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V. Parole v. Mandatory Supervision
Understanding Collateral Consequences
While “parole” is the discretionary release of an offender (by a Board of Pardons and Paroles decision) to serve the remainder of a sentence in the community under supervision, “mandatory supervision” is a legislatively mandated release of a prisoner to parole supervision when the combination of actual calendar time and good conduct time equal the sentence. Good conduct time is credited to an offender for participating in work and selfimprovement programs.5 A. Release to Mandatory Supervision (Tex. Gov’t. Code § 508.147) This section requires a parole panel to release an eligible inmate to mandatory supervision when the inmate’s actual time served plus accrued good conduct time equals the total sentence, unless an exception applies. An exception exists for certain intoxication offenses under Penal Code § 49.09(b2)(2): those inmates are not eligible for mandatory supervision until they have served at least 10 years of actual calendar time (without counting good conduct time) and otherwise meet standard eligibility requirements. An inmate released to mandatory supervision is legally treated as if released on parole, meaning the same conditions and supervision framework apply. Finally, before release, the state must make reasonable efforts to arrange for the inmate’s employment, housing, and general care to support reintegration. Under Texas Government Code § 508.148, the period of mandatory supervision is computed by subtracting from the term for which the inmate was sentenced the calendar time served on the sentence and the time served on mandatory supervision is computed as calendar time. B. Inmates Not Eligible for Mandatory Supervision (Tex. Gov’t. Code § 508.149(a)) Section 508.149 of the Texas Government Code establishes categorical exclusions from release to mandatory supervision, significantly limiting the otherwise automatic nature of such release. Under this provision, inmates are ineligible for mandatory supervision if they are currently serving a sentence for (or have previously been convicted of) certain serious offenses. These offenses currently include: 1. An offense for which the judgment contains an affirmative finding under Article 42A.054(c) or (d), Code of Criminal Procedure (an affirmative finding regarding the use or exhibition of a deadly weapon).
Texas Bd. of Pardons & Paroles, What Is Parole?. Tex. Dep’t of Crim. Just., https://www.tdcj.texas.gov/bpp/what_is_parole/parole.htm
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2. A first degree felony or a second degree felony under Texas Penal Code § 19.02 (Murder) or a capital felony under Texas Penal Code § 19.03 (Capital Murder). 3. A first degree felony or a second degree felony under Texas Penal Code § 20.04 (Aggravated Kidnapping). 4. An offense under Texas Penal Code § 21.11 (Indecency with a Child) or a felony under Texas Penal Code § 22.011 (Sexual Assault). 5. A first degree felony or a second degree felony under Texas Penal Code § 22.02 (Aggravated Assault) or a first degree felony under Texas Penal Code § 22.021, (Aggravated Sexual Assault). 6. A first degree felony under Texas Penal Code § 22.04 (Injury to a Child, Elderly Individual, or Disabled Individual) or under Texas Penal Code § 28.02 (Arson). 7. A second degree felony under Texas Penal Code § 29.02 (Robbery) or a first degree felony under Texas Penal Code § 29.03 (Aggravated Robbery) or under Texas Penal Code § Section 30.02 (Burglary). 8. A felony for which the punishment is increased under Texas Health and Safety Code § 481.134 (“Drug Free Zones”) or § 481.140 (“Use of Child in Commission of Offense”). 9. An offense under Texas Penal Code § 43.25 (Sexual Performance by a Child) or under Texas Penal Code § 21.02 (Continuous Sexual Abuse of a Young Child or Disabled Individual). 10. A first degree felony under Texas Penal Code § 15.03 (Criminal Solicitation). 11. An offense under Texas Penal Code § 43.05 (Compelling Prostitution), under Texas Penal Code § 20A.02 (Trafficking of Persons), or under Texas Penal Code § 20A.03 (Continuous Trafficking of Persons). 12. A first degree felony under Texas Penal Code § 71.02 (Engaging in Organized Criminal Activity) or § 71.023 (Directing Activities of Criminal Street Gangs or Foreign Terrorist Organizations). 13. An offense under Health and Safety Code § 481.1123 (knowingly manufacturing, delivering, or possessing with intent to deliver a controlled substance) if punished under Subsection (d), (e), or (f) of that section. 14. A second degree felony under Texas Penal Code § 22.01 (Assault) or an offense under Texas Penal Code § 22.01 punished under Subsection (b)(2), (7), or (8) of that section (effective September 1, 2025). 15. An offense under Texas Penal Code § 21.03 (Continuous Sexual Abuse) (effective September 1, 2025) or an offense under Texas Penal Code § 15.01 if punished under Subsection (e) of that section (involving attempted capital murder of a peace officer under Section 19.03(a)(1)) (effective September 1, 2025).
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Likewise, under part (a-1) of Texas Government Code § 508.149, an individual serving a sentence for an offense under Texas Penal Code § 51.03 (Illegal Reentry by Certain Aliens) or Texas Penal Code § 51.04 (Refusal to Comply With Order to Return to Foreign Nation) may not be released to mandatory supervision.
Understanding Collateral Consequences
C. Inmates Not Eligible for Mandatory Supervision Even When They Are (Tex. Gov’t. Code § 508.149(b)) In addition to the categorical exclusions set out in § 508.149(a), subsection (b) provides the parole panel with discretionary authority to deny release to mandatory supervision even when an inmate is otherwise eligible. Specifically, release may be denied if the panel determines both that the inmate’s accrued good conduct time does not accurately reflect the inmate’s potential for rehabilitation and that the inmate’s release would pose a danger to the public. If the parole panel makes a determination under this section, part (c) mandates they shall put in writing the reasons for the determination. D. “Street Time” and how it relates to Parole (Tex. Gov’t. Code § 508.283) The term “street time” refers to the period an individual spends released from custody while on parole or mandatory supervision. Although a client may believe this time is being credited toward completion of their sentence, that assumption is often incorrect, and can have significant consequences if supervision is later revoked. The governing statute is Texas Government Code § 508.283, which determines whether a person receives credit for time spent on parole after revocation. General Rule: When a person’s parole or mandatory supervision is revoked, the default rule is that they may be required to serve the remaining portion of their sentence in custody. The critical question is whether the time spent on parole (aka their “street time”) is credited toward that remaining sentence. Texas law creates two primary outcomes: 1. No Credit for Street Time (Forfeiture): For many offenses (particularly serious or aggravated offenses) an individual does not receive credit for time spent on parole if their supervision is revoked. In these cases, the time spent “on the street” is effectively erased, and the person must serve the remaining sentence as though the parole period did not occur. 2. Credit for Street Time (Limited Eligibility): For individuals who are eligible under § 508.283, some or all street time may be credited. Generally, this depends on the relationship between: •
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the amount of time remaining on the sentence at the time of release, and 17
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the amount of time successfully spent on parole before revocation.
If the time spent on parole exceeds the remaining portion of the sentence, the individual may receive credit for that time. However, this credit is not universally available and is excluded for certain categories of offenses.
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Example: Consider a client serving a 10-year sentence who is released on parole after 5 years and remains on parole for 3 years before revocation: If ineligible for street-time credit: The client may return to custody with approximately 5 years remaining, receiving no credit for the 3 years spent on parole. If eligible for credit: The 3 years on parole may be applied toward the sentence, reducing the remaining time to approximately 2 years.
VI. Sex Offender Registration: “The Modern-Day Scarlet Letter” I was watching a popular television show recently and one of the characters mentioned being a sex offender (long story short, in the show, the other character lied about being 22 when in fact was 17, sound familiar?). The other character retorts “so, you’re one of those red dots?” and he replies, “…the modern day scarlet letter.” Truer words may have never been spoken. Texas Code of Criminal Procedure Article 26.13(a)(5) explicitly requires that prior to accepting a plea of guilty or nolo contendere, “the court shall admonish the defendant of... the fact that the defendant will be required to meet the registration requirements of Chapter 62, if the defendant is convicted of or placed on deferred adjudication for an offense for which a person is subject to registration under that chapter”. Tex. Code Crim. Proc. art. 26.13. This portion of that statute demonstrates the legislature’s recognition that sex offender registration is an important consequence defendants must understand before pleading guilty. In Mitschke v. State, however, the Texas Court of Criminal Appeals held that “the requirement to register as a sex offender is a direct rather than a collateral consequence of a guilty plea” because “the consequence is definite and completely automatic”. Mitschke v. State, 129 S.W.3d 130, 133 (Tex. Crim. App. 2004). The court emphasized that “because the consequence (registration) is a non-punitive measure, failure to admonish does not necessarily render a plea involuntary”. Id. at 136. While courts have been reluctant to find pleas involuntary based solely on the lack of registration admonishments, affirmative misadvise of counsel may constitute deficient performance. In Ex parte Covey, the court noted “numerous courts have held that an
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attorney’s affirmative misadvice regarding a collateral matter may constitute deficient performance”. Ex parte Covey, No. PD-0145-09, 2010 WL 1253224, at *6 (Tex. Crim. App. Mar. 31, 2010) (unpublished). Effective defense lawyers must therefore advise clients about sex offender registration requirements before accepting guilty pleas to covered offenses. A. What does it mean to be a registered sex offender? Understanding Collateral Consequences
Being on the sex offender register means a person convicted of a qualifying sexual offense must legally publicly list personal information (including their home address, photo, and offense details) with DPS for 10 years to life. It involves regular, in-person reporting to authorities for years or life, with violations leading to new felony charges. Individuals on this list are frequently restricted on housing, employment, and internet usage. B. Who is required to register, where and when? Any person (1) with a “reportable conviction or adjudication,” (2) required to register as a condition of parole or release to mandatory supervision, (3) required to register as a condition of community supervision, or (4) is an “extrajurisdictional registrant” must register as a sex offender. A sex offender registers with the local law enforcement authority of the municipality (the office of the chief of police) where the offender resides. If the offender does not reside in a municipality, the offender registers with the local law enforcement authority of the county (the office of the sheriff) where the offender resides. Registration must be completed not later than the later of (1) the seventh day after the date the offender arrives in the municipality or county; or (2) the first date the local law enforcement authority of the municipality or county by policy allows the person to register. 6 C. Texas Code of Criminal Procedure Chapter 62 The governing law for sex offender registration in Texas is found in Chapter 62 of the Texas Code of Criminal Procedure. Registration requirements are offense-based, not labelbased, meaning the plea wording matters more than the charge title itself. Registration applies to (1) Reportable Texas convictions/adjudications; (2) Comparable out-of-state or federal convictions; and (3) Certain Juvenile Adjudications (with different rules). Defense lawyers should always analyze whether the specific statutory elements may trigger registration, not just whether it “sounds like” a registration case. It is of paramount importance to note that for sex offender registration purposes, deferred adjudication still triggers registration. This is something often misunderstood by Tex. Dep’t of Pub. Safety, Criminal History Records and Texas Sex Offender Registration Program FAQ (Oct. 14, 2020), https://www.dps.texas.gov/section/crime-records/faq/criminal-history-records-and-texas-sexoffender-registration-program-faq#Sex-offender. 6
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clients. Many sex offenses in Texas require registration despite a sentence of deferred adjudication. The Texas Code of Criminal Procedure makes clear that “Reportable conviction or adjudication” means a conviction or adjudication, including an adjudication of delinquent conduct or a deferred adjudication, that, regardless of the pendency of an appeal, is a conviction for or an adjudication for or based on one of the qualifying offenses. Tex. Code Crim. Proc. art. 62.001(5). 1. Qualifying Offenses (Tex. Code Crim. Proc. art. 62.001(5)(A)-(M)) The qualifying offenses for sex offender registration currently include the following: 1. A violation of Texas Penal Code §: • 21.02 (Continuous sexual abuse of young child or disabled individual) or 21.03 (Continuous sexual abuse). • 21.09 (Bestiality). • 21.11 (Indecency with a child). • 21.15 (Invasive visual recording). • 22.011 (Sexual assault), 22.021 (Aggravated sexual assault), or 25.02 (Prohibited sexual conduct). • 43.04 (Aggravated promotion of prostitution), 43.05 (Compelling prostitution), 43.25 (Sexual performance by a child), or 43.26 (Possession or promotion of child pornography). • 43.021 (Solicitation of Prostitution) if the offense is punishable as a felony of the second degree. • 20.04(a)(4) (Aggravated kidnapping) if the actor committed the offense or engaged in the conduct with intent to violate or abuse the victim sexually. • 30.02 (Burglary) if the offense or conduct is punishable under Subsection (d) of that section and the actor committed the offense or engaged in the conduct with intent to commit a felony listed in Paragraph (A) or (C). • 20.02 (Unlawful restraint), 20.03 (Kidnapping), or 20.04 (Aggravated kidnapping), if, as applicable: o (i) the judgment in the case contains an affirmative finding under Article 42.015; or o (ii) the order in the hearing or the papers in the case contain an affirmative finding that the victim or intended victim was younger than 17 years of age; • 33.021 (Online Solicitation of a Minor). • 20A.02(a)(3),(4),(7),or (8) (Trafficking of persons), or 20A.03 (Continuous trafficking of persons) if the offense is based partly or wholly on conduct that constitutes an offense under Section 20A.02(a)(3),(4),(7), or (8) of that code.
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• 15.032 (Child grooming) (effective September 1, 2025). 2. The second violation of Texas Penal Code § 21.08 (Indecent exposure) but not if the second violation results in a deferred adjudication. 3. An attempt, conspiracy, or solicitation, as defined by Chapter 15 of the Texas Penal Code, to commit an offense or engage in conduct listed in Paragraph (A), (B), (C), (D), (E), (K), or (L) of Texas Code of Criminal Procedure article 62.001. 4. A violation of the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice for or based on the violation of an offense containing elements that are substantially similar to the elements of an offense listed under Paragraph (A), (B), (B-1), (C), (D), (E), (G), (J), (K), (L), or (M) of Texas Code of Criminal Procedure article 62.001, but not if the violation results in a deferred adjudication. 5. The second violation of the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice for or based on the violation of an offense containing elements that are substantially similar to the elements of the offense of indecent exposure, but not if the second violation results in a deferred adjudication. 6. A violation of any law of this state for which the person has been civilly committed as a sexually violent predator under Chapter 841 of the Texas Health and Safety Code. (Effective September 1, 2025). 2. Sexually Violent Offenses (Tex. Code Crim. Proc. art. 62.001(6)) Texas Code of Criminal Procedure article 62.001 part (6) defines “sexually violent offenses” as follows: “Sexually violent offense” means any of the following offenses committed by a person 17 years of age or older: 1. An offense under Texas Penal Code § 21.02 (Continuous sexual abuse of young child or disabled individual), 21.03 (Continuous sexual abuse), 21.11(a)(1) (Indecency with a child), 22.011 (Sexual assault), 22.021 (Aggravated sexual assault), or 43.25 (Sexual performance by a child). 2. An offense under Texas Penal Code § 20.04(a)(4) (Aggravated kidnapping), if the defendant committed the offense with intent to violate or abuse the victim sexually. 3. An offense under Texas Penal Code § 30.02 (Burglary), if the offense is punishable under Subsection (d) of that section and the defendant committed the offense with intent to commit a felony listed in Paragraph (A) or (C) of Subdivision (5) of Texas Code of Criminal Procedure article 62.001. 4. An offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice if the offense contains elements that are
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substantially similar to the elements of an offense listed under Paragraph (A), (B), (C), or (D) of Texas Code of Criminal Procedure article 62.001. 3. Are there exemptions?
Understanding Collateral Consequences
Short answer, not really. If the offender is a juvenile, they may seek either a court order exempting them from registration or, alternatively, a court order classifying registration information as nonpublic. For adults, the exemption is extremely limited. Generally, an adult offender may ask a court for an exemption only if (1) the offenses resulted in a conviction or deferred adjudication community supervision for indecency with a child (Section 21.11, Penal Code) or sexual assault (Section 22.011, Penal Code); (2) the victim was at least 15 years of age and the offender was not more than four years older than the victim, at the time of the offense, and (3) the offense involved consensual conduct 7. 4. Is there early termination? Short answer: Maybe. Adult sex offenders may ask a court for an early termination of registration after the offender has received an individual risk assessment and by explaining how the reportable conviction or adjudication’s registration period exceeds the minimum required registration period under the federal law8. C. Lifetime Registration v. 10-Year registration In Texas, sex offender registration is usually broken down into either 10-year or lifetime registration. For ten year registration, it is important to remember that the clock usually starts after the discharge from supervision, not conviction. 1. Lifetime Registration Offenses (Tex. Code Crim. Proc. art. 62.101(a)) Texas Code of Criminal Procedure article 62.101 part (a) provides that a person will be subject to lifetime sex offender registration requirements if they the person has a reportable conviction (or deferred adjudication) for any of the following: 1. A sexually violent offense: • The following offenses committed by a person 17 years of age or older: • An offense under Texas Penal Code § 21.02 (Continuous sexual abuse of young child or disabled individual); 21.03 (Continuous sexual abuse); 21.11(a)(1) (Indecency with a child); 22.011 (Sexual assault); 22.021 (Aggravated sexual assault); 43.25 (Sexual performance by a child); 20.04(a)(4) (Aggravated kidnapping) if the defendant committed the offense with intent to violate or abuse the victim sexually); 30.02 (Burglary), if the offense is punishable under 7 8
See fn. 6 (DPS citation). See id.
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Subsection (d) of that section and the defendant committed the offense with intent to commit a felony listed in Paragraph (A) or (C) of Subdivision (5) of Texas Code of Criminal Procedure article 62.001; or • An offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice if the offense contains elements that are substantially similar to the elements of an offense listed under Paragraph (A), (B), (C), or (D) of Texas Code of Criminal Procedure article 62.001. 2. An offense under Texas Penal Code § 20A.02 (Trafficking of Persons) if under (a)(3), (4), (7), or (8); § 25.02 (Prohibited Sexual Conduct); 43.05 (Compelling prostitution) if under (a)(2) or (3); or § 43.26 (Possession or Promotion of Child Pornography). 3. An offense under Texas Penal Code § 20A.03 (Continuous Trafficking of Persons), if based partly or wholly on conduct that constitutes an offense under Section 20A.02(a)(3), (4), (7), or (8) of that code. 4. An offense under Texas Penal Code § 21.11(Indecency with a Child) (a)(2), if before or after the person is convicted or adjudicated for the offense under Texas Penal Code § 21.11(a)(2), the person receives or has received another reportable conviction or adjudication, other than an adjudication of delinquent conduct, for an offense or conduct that requires registration under Chapter 62. 5. An offense under Texas Penal Code § 20.02 (Unlawful Restraint), § 20.03 (Kidnapping), or § 20.04 (Aggravated Kidnapping) if: (A) the judgment in the case contains an affirmative finding under Article 42.015 or, for a deferred adjudication, the papers in the case contain an affirmative finding that the victim or intended victim was younger than 17 years of age; and (B) before or after the person is convicted or adjudicated for the offense under Texas Penal Code § 20.02, 20.03, or 20.04, the person receives or has received another reportable conviction or adjudication, other than an adjudication of delinquent conduct, for an offense or conduct that requires registration under Chapter 62. 6. An offense under Texas Penal Code § 43.23 (Obscenity) that is punishable under Subsection (h) of that section. 7. An offense for which the person has been civilly committed as a sexually violent predator under Chapter 841 of the Texas Health and Safety Code. 2. 10-Year Registration Offenses (Tex. Code Crim. Proc. art. 62.101(b) & (c)) Subsection (b) of Texas Code of Criminal Procedure article 62.101 applies to individuals whose duty to register arises from a case that was originally a juvenile matter but transferred to adult court under Family Code § 54.02. For these individuals, the duty to register ends on the 10th anniversary of the latest of three possible events: (1) release from civil commitment as a sexually violent predator, (2) release from a penal institution or
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discharge from community supervision, or (3) dismissal of the criminal proceedings and discharge by the court. The statute’s “whichever date is later” language is crucial: it effectively delays the start of the 10-year period until the individual has fully completed all forms of custody, supervision, or court involvement. As a result, even if a conviction occurred years earlier, the registration period will not begin to run until the person is entirely free from supervision or confinement, including any civil commitment. Subsection (c) extends this same structural framework to most other registrants whose offenses are not subject to lifetime registration. It distinguishes between juvenile adjudications and adult convictions or deferred adjudications, but applies the same “later of” rule in both contexts. For juvenile adjudications, the duty to register ends on the 10th anniversary of the later of either the date the disposition was entered or the date the individual completes the terms of that disposition. For adult convictions or deferred adjudications, the 10-year period begins only after the latest of the following: dismissal and discharge by the court, release from incarceration, or discharge from community supervision. For defense attorneys, the practical takeaway is that the registration period is functionally extended by any continued supervision, confinement, or post-conviction restraint. Clients often assume that a “10-year registration” begins at sentencing, but in reality, it typically begins much later (sometimes years later) after all conditions of the case have been satisfied. Understanding and clearly advising on this timeline is essential for accurate plea counseling and for managing client expectations about the true duration of registration obligations. D. Sex Offender Restrictions Individuals on the sex offender registry are subject to various conditions and restrictions. The Texas Sex Offender Registration Program does not, by itself, prohibit registered sex offenders from residing near or frequenting locations where children commonly gather. However, under Texas community supervision and parole laws, as well as applicable municipal ordinances, courts and supervising authorities may impose a “child safety zone.” A “child safety zone” restricts certain individuals from entering, remaining on, or coming within a specified distance of premises where children are known to congregate, such as schools, daycare facilities, and playgrounds. Violations of a child safety zone condition may result in sanctions, including revocation of probation or parole, and may also subject the individual to citation under applicable local ordinances.
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Similarly, the program does not, in itself, prohibit registered sex offenders from engaging in specific trades, occupations, or professions. However, separate state laws governing particular industries or licenses may independently restrict or bar individuals with certain convictions from employment in those fields. Accordingly, determining eligibility requires review of the statutes and regulations applicable to the specific trade or profession at issue. Additionally, Texas Code of Criminal Procedure article 62.063 imposes targeted employment restrictions for certain individuals convicted of sexually violent offenses. For offenses committed on or after September 1, 2013, where an affirmative finding establishes that the victim was younger than 14 years of age, a person with a reportable conviction for a sexually violent offense may not: • • • •
Operate or offer to operate a bus; Provide or offer to provide taxicab or limousine transportation services; Provide or offer to provide in-home services unless those services are supervised; or Operate or offer to operate an amusement ride.
See Tex. Code Crim. Proc. art. 62.063.
VII. Felony Convictions In Texas, a felony conviction carries significant and lasting consequences, even when a court does not impose a term of incarceration. Federal and state law imposes many restrictions on people who have been convicted of a felony, regardless on how long ago the conviction took place. Under the Texas Penal Code, a felony conviction becomes part of a person’s permanent criminal record, which can limit employment opportunities, restrict access to professional licenses, and create barriers to housing and educational opportunities. Individuals convicted of felonies may also lose certain civil rights, such as the right to possess firearms under federal law and under Texas Penal Code § 46.04, and may face ongoing supervision requirements or collateral consequences that extend well beyond the conclusion of the case. As a result, even in the absence of jail time, a felony conviction in Texas represents a serious legal outcome with broad and enduring impacts. Texas and federal laws may affect a person with a felony conviction’s ability to: • • • • •
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possess a firearm; obtain some professional licenses; obtain certain types of employment; apply for grants and financial aid; apply for public assistance programs;
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lawfully reside in the United States; and/or travel internationally.
Criminal Defense lawyers should note that the Texas State law library offers a ReEntry Resources for Ex-Offenders guide9 that may be beneficial to clients. Understanding Collateral Consequences
VIII. Driver’s Licenses Consequences Driver’s license consequences are among the most immediate and disruptive collateral consequences a client may face. For many individuals, the ability to drive directly impacts employment, childcare, and daily functioning. As a result, defense attorneys must understand when a criminal case may trigger a suspension and what options are available to mitigate that impact. A. Administrative License Revocation (ALR) – DWI Cases In Texas, a person arrested for Driving While Intoxicated (DWI) may face an Administrative License Revocation (ALR) separate from the criminal case. The ALR process is a civil administrative proceeding handled by the Texas Department of Public Safety (DPS). A suspension may occur if a person: • • •
Refuses to submit to a blood or breath test, or Provides a blood or breath test that registers a blood alcohol concentration (BAC) of 0.08% or more while driving a non-commercial motor vehicle, or Provides a blood or breath test that registers a blood alcohol concentration (BAC) of 0.04% or more while driving a commercial motor vehicle.
The length of suspension depends on the circumstances: • •
Refusal cases: typically 180 days (or longer with prior history)l Failure cases: typically 90 days (or longer with prior history). 10
Importantly, this suspension is independent of the outcome of the criminal case, meaning a client may lose their license even if the DWI charge is later dismissed. To challenge the suspension, the driver must request an ALR hearing within 15 days of receiving notice. Failure to timely request a hearing results in an automatic suspension.
Texas State Law Library, Reentry Resources for Former Prisoners, https://guides.sll.texas.gov/reentryresources (last visited Apr. 30, 2026). 10 Tex. Dep’t of Pub. Safety, Administrative License Revocation (ALR) Program (Sept. 29, 2020), https://www.dps.texas.gov/section/driver-license/administrative-license-revocation-alr-program. 9
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B. Occupational Driver’s Licenses (ODLs) When a person’s license is suspended, they may be eligible for an Occupational Driver’s License, which allows limited driving for work, school, and essential household duties. Courts have discretion to grant ODLs, often with restrictions such as: Understanding Collateral Consequences
• • •
Specific driving hours, Geographic limitations, and Installation of an ignition interlock device (in certain cases).
For many clients, obtaining an ODL is critical to maintaining employment and stability while the case is pending or during a period of suspension. C. Drug-Related Suspensions Certain drug offenses can result in automatic driver’s license consequences under Texas law. If a person is convicted of a drug or controlled substance offense: • •
•
Their driver’s license may be suspended for 90 days and they may be required to complete a 15-hour class in an authorized Drug Education Program. They must pay a $100 Reinstatement fee, in addition to any other outstanding fees owed; and they must obtain a Financial Responsibility Insurance Certificate (SR-22) from an authorized insurance company (an SR-22 must be maintained for two years from the date of conviction). If the person did not have a driver license at the time of the offense, they may be denied the issuance of a driver license for 90 days. This denial of issuance begins on the conviction date of the drug offense. 11
These consequences may apply even when the offense does not involve driving. Defense attorneys should be aware that these suspensions can arise solely from the conviction itself, making them an important consideration in plea negotiations. D. Failure to Appear and Surcharge-Related Issues Driver’s licenses may also be affected by: • • •
Failure to appear in court, Failure to pay fines or court costs, and Holds placed through DPS that prevent renewal. 12
Tex. Dep’t of Pub. Safety, Drug or Controlled Substance Offenses, https://www.dps.texas.gov/section/driver-license/drug-or-controlled-substance-offenses. 12 Tex. Dep’t of Pub. Safety, Failure to Appear/Failure to Pay Program (Sept. 15, 2020), https://www.dps.texas.gov/section/driver-license/failure-appearfailure-pay-program. 11
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IX. Practice Tips Understanding collateral consequences is only part of effective representation; the real value lies in how that knowledge is applied in practice. The following considerations may assist defense attorneys in advising clients and navigating cases where collateral consequences play a significant role: Understanding Collateral Consequences
A. Identify Collateral Consequences Early From the outset of representation, attorneys should identify any major collateral consequences that may apply, including: • • • • •
Immigration consequences, Sex offender registration, Parole eligibility, Driver’s license suspensions, and Employment or licensing restrictions.
Early identification allows counsel to incorporate these considerations into case strategy and plea negotiations. B. Ask the Right Questions Clients often do not realize what information is legally significant. Defense attorneys should ask targeted questions, including: • • • • •
Immigration status, Employment and professional licenses, Firearm ownership or eligibility, Family obligations (childcare, transportation needs), and Prior criminal history that may affect enhancements or parole eligibility.
These factors frequently determine which consequences matter most to the client. C. Do Not Guess; Verify Certain consequences, particularly parole eligibility and immigration outcomes, can be complex and highly fact-specific. When the law is unclear: • • •
Avoid providing definitive answers, Advise the client that consequences “may” apply, and Consult reliable sources or experts when necessary.
Providing incorrect advice can create both constitutional and ethical issues.
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D. Remember Collateral Consequences in Plea Negotiations Collateral consequences can and should be part of plea negotiations. For example:
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• • • •
Structuring pleas to avoid sex offender registration, Negotiating charges that reduce immigration consequences, Avoiding enhancements that significantly delay parole eligibility, and Considering alternatives that preserve occupational or licensing opportunities.
In many cases, these outcomes are equally as important to the client as their jail sentence. E. Clearly Communicate Risks to the Client As noted in this paper above, under the Texas Disciplinary Rules of Professional Conduct, attorneys must explain matters sufficiently for the client to make informed decisions. This includes: • • •
Explaining both known and potential consequences, Distinguishing between certain and uncertain outcomes, and Ensuring the client understands how a plea may affect their future.
Documenting these discussions can help protect both the client and defense counsel. F. Manage Client Expectations Clients often focus on immediate outcomes (such as avoiding jail) without understanding long-term consequences. Defense attorneys should: • • •
Reframe the discussion to include life after the case, Explain timelines (e.g., parole eligibility, registration duration), and Address common misconceptions (such as the belief that deferred adjudication eliminates all consequences).
If a consequence is unclear or evolving, it is safer to Advise that a risk exists, and encourage the client to consider that risk in their decision-making.
X. Conclusion Collateral consequences are no longer secondary considerations in criminal defense, they are now part of the advice that you give, and what your client chooses to make as their decision. Although the law draws a distinction between "direct" and "collateral" consequences, that distinction barely registers with a client living with the long-term fallout of a conviction. These additional penalties too often carry a more significant practical impact than the punishment that follows conviction, from immigration consequences to parole
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eligibility to sex offender registration to lifetime civil disability. This means that truly effective representation goes well beyond knowledge of the elements of an offense or the potential range of punishment.
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By recognizing, understanding, and communicating these consequences, defense attorneys not only comply with constitutional and ethical obligations, but also fulfill their role as true advocates in guiding clients through one of the most important decisions of their lives. I hope this paper will help you the next time you’re walking a client through these very important decisions. Keep up the good fight!
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Speaker:
Ethics in Criminal Defense
Topic: Ethics in Criminal Defense
Doug Gladden
Assistant Public Defender Appellate Division Harris County Public Defender's Office 1310 Prairie St., 4th Floor Houston, TX 77002 713-274-6700 Douglas.Gladden@hctx.net email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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PRESENTED AT
Ethics in Criminal Defense
TCDLA’s 39th Annual Rusty Duncan Advanced Criminal Law Course June 19, 2026 San Antonio, Texas
Ethics in Criminal Defense
Douglas R. Gladden Assistant Public Defender Appellate Division Harris County Public Defender’s Office 1310 Prairie St., 4th Floor Houston, TX 77002 713-274-6700 Douglas.Gladden@pdo.hctx.net
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Contents About the Author ........................................................................................ 4 1. Introduction: Legal Ethics & Criminal Defense............................................ 5 2. The Disciplinary Rules of Professional Conduct .......................................... 8 Preamble: A Lawyer’s Responsibilities 3. The Client-Lawyer Relationship ................................................................ 10 3.1. Competence & Diligence .................................................................. 10 Preamble: Terminology Rule 1.01. Competent and Diligent Representation Rule 1.16. Declining or Terminating Representation 3.2. Communication ................................................................................ 17 Rule 1.02. Scope and Objectives of Representation Ethics in Criminal Defense
Rule 1.03. Communication Rule 2.01. Advisor 3.3. Confidentiality ................................................................................. 25 Rule 1.05. Confidentiality of Information Tex. R. Evid. 503. Lawyer-Client Privilege Preamble: Scope Rule 1.18. Duties to Prospective Client 4. Advocacy .................................................................................................. 36 4.1. Duties to the Court ........................................................................... 36 Rule 3.01. Meritorious Claims and Contentions Rule 3.03. Candor Toward the Tribunal Tex. Code Crim. Proc. art. 1.052. Signed Pleadings of Defendant Rule 3.05. Maintaining Impartiality of Tribunal 4.2. Duty of Fairness ............................................................................... 46 Rule 3.04. Fairness in Adjudicatory Proceedings 4.3. Duties to Jurors and Third Persons................................................... 49 Rule 3.06. Maintaining Integrity of Jury System Tex. Code Crim. Proc. art. 35.29. Personal Information About Jurors Rule 4.01. Truthfulness in Statements to Others
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4.4. Dealing with Prosecutors .................................................................. 52 4.5. Prosecutors’ Discovery Obligations ................................................... 54 Rule 3.04. Fairness in Adjudicatory Proceedings Rule 3.09. Special Responsibilities of a Prosecutor Tex. Code Crim. Proc. art. 2A.101. General Duties of Attorneys Representing State Tex. Code Crim. Proc. art. 39.14. Discovery Tex. Gov’t Code § 41.111. Training Related to Prosecuting Attorney’s Duty to Disclose Exculpatory and Mitigating Evidence 5. Bonus: Conflicts of Interest ....................................................................... 62 Rule 1.06. Conflict of Interest: General Rule Ethics in Criminal Defense
Rule 1.08. Conflict of Interest: Prohibited Transactions Rule 1.09. Conflict of Interest: Former Client Rule 1.10. Imputation of Conflicts of Interest: General Rule Rule 1.11. Successive Government and Private Employment Rule 1.12. Adjudicatory Official or Law Clerk Rule 3.08. Lawyer as Witness Rule 6.05. Conflict of Interest Exceptions for Nonprofit and Limited Pro Bono Legal Services 6. Bonus: Fees and Advertising ..................................................................... 79 Rule 1.04. Fees Rule 1.15. Safekeeping Property Rule 5.04. Professional Independence of a Lawyer Rule 7.01. Communications Concerning a Lawyer’s Services Rule 7.02. Advertisements Rule 7.03. Solicitation and Other Prohibited Communications Rule 7.04. Filing Requirements for Advertisements and Solicitation Communications Rule 7.05. Communications Exempt from Filing Requirements Rule 7.06. Prohibited Employment
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About the Author Doug Gladden graduated from the Georgia Institute of Technology and the University of Georgia School of Law. He’s board certified in criminal appellate law by the Texas Board of Legal Specialization. From 2012–2022, Doug was an appellate prosecutor in Dallas County, where he handled nearly 150 direct appeals and presented 27 oral arguments. During his time in Dallas, Doug was embedded appellate counsel for several high-profile murder trials involving the Aryan Brotherhood and police officers. In 2016, Doug helped establish the annual Dallas County Expunction Expo, which has to date cleared over 2,000 arrest records. That same year, he was named Appellate Prosecutor of the Year by the Dallas County Criminal District Attorney. In 2020, Doug was named a Prosecutor of the Year by the Criminal Justice Section of the State Bar of Texas for his work in prosecuting the Dallas Police Officer who murdered Botham Jean. In 2021, Doug was the behind-the-scenes author of two state statutes: the Richard Miles Act and the Botham Jean Act. After leaving the DA’s Office, Doug spent two-and-a-half years in private practice. As a private defense attorney, Doug secured multiple trial acquittals, grand jury no bills, expunctions, nondisclosures, and even removal of a client from the Sex Offender Registry.
Ethics in Criminal Defense
Doug joined Harris County Public Defender’s Office in September 2024, where he serves as an Assistant Public Defender in the Appellate Division. Since joining the office, Doug has successfully obtained the reversal of a murder conviction, the reversal of a 75-year sentence in a murder case, and the deletion of thousands of dollars in illegally-assessed court costs. Doug serves on the Criminal Pattern Jury Charge Committee for the State Bar, and on the Rules Advisory Committee for the Court of Criminal Appeals. He is a frequent speaker at CLEs around the State, and he has appeared as a guest on the Texas Appellate Law Podcast. Outside of work, his wife and two kids tolerate his personal hobbies, which include reading, collecting classical music, and grilling. Doug would like to express his immense gratitude to Jani Maselli Wood, Michael Falkenberg, David Newell, Mark Bennett, Jeremy Rosenthal, Lori Ordiway, Michael Casillas, and John Creuzot.
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1. Introduction: Legal Ethics & Criminal Defense In 1989, State Bar President James Sales introduced the Bar to the proposed Texas Disciplinary Rules of Professional Conduct, which were set to go before all members in a referendum. 1 “‘Ethics,’” he wrote, “as the term is properly defined, embodies the moral choices individuals make when their conduct is not controlled by law.” He argued that mere “Ethical Considerations” are inadequate to govern lawyers in Texas. Instead, the Bar needed comprehensive “Disciplinary Rules,” which “are mandatory in nature” and “clearly delineate the minimum standard of conduct below which no lawyer may practice the art of law without being subject to disciplinary action.”2 Ethics in Criminal Defense
Sales’s Ethics–Rules dichotomy was effective: The referendum succeeded, and the Texas Disciplinary Rules of Professional Conduct replaced the Texas Code of Professional Responsibility on January 1, 1990. But what’s persuasive for a referendum is not always helpful for practitioners. “Legal ethics” is self-evidently more than extra-legal moral decision-making. Indeed, the idea that “legal ethics” could ever be exclusive of “law” is nonsensical in real life. This paper will therefore treat “legal ethics” differently. “Legal ethics,” as used in this paper, embodies the ways that lawyers, as regulated professionals, fulfill their legal and professional duties toward others. 3
James B. Sales, The Texas Disciplinary Rules of Professional Conduct: A Model to Replace the Outdated Texas Code of Professional Responsibility, 52 Tex. B.J. 388–91 (April 1989). 1
2
Id. at 388.
Cf. State Bar of Texas, Committee on Minimum Continuing Legal Education, Accreditation Standards for CLE Activities, effective June 1, 2021 (defining “Legal Ethics” to include “usages and customs among members of the legal profession, involving their legal and professional duties toward one another, toward clients, and toward the courts,” but not including “government or business ethics, individual religious or moral responsibilities, training in personal organizational skills, general office skills, time management, [or] leadership skills.”).
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This is a loaded concept. Lawyers are regulated in many ways—by the Texas Supreme Court, 4 by the United States and Texas Constitutions, by federal and state law, by local court rules, by local customs and norms, and by interpersonal relationships. Lawyers fulfill their duties in many ways—by action and by inaction, directly and vicariously, and individually and collectively. Lawyers have duties to many different people, groups, and even concepts—to clients, to the courts, to other lawyers, to the public, to the legal profession, and to the legal system as a whole. Defining “legal ethics” in terms of “duties” immediately reveals the main problem that lawyers face when considering the “ethics” of a given situation: What Ethics in Criminal Defense
happens when these various legal and professional duties conflict with one another? 5 This problem is especially acute in criminal cases, which are high-stakes, highconflict environments. In every case, the defendant’s liberty and reputation (if not also their life or property) are on the line, 6 while defense counsel and prosecutors bear unique and sometimes competing duties imposed by the Disciplinary Rules as well as the Rules of Appellate Procedure, the Rules of Evidence, the Code of Criminal Procedure, and the Texas and United States Constitutions. This paper is not intended to provide a comprehensive answer to this question, to resolve these dilemmas, or even to provide a complete catalogue of, or
The Supreme Court of Texas has statutory and inherent power to regulate the practice of law in the State of Texas. In re State Bar of Tex., 113 S.W.3d 730, 732 (Tex. 2003); The State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). 4
See Tex. Disciplinary Rules Prof’l Conduct Preamble ¶ 7 (“Virtually all difficult ethical problems arise from apparent conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interests.”).
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Shumate v. State, 649 S.W.3d 240, 244 (Tex. App.—Dallas 2021, no pet.) (“As a criminal appeal, this case involves the restriction of a person’s liberty, and, here specifically, because this is a sexual assault case, the need to accurately reflect when a person is required to register as a sex offender is a matter of public concern. These are not trivial matters.”).
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commentary on, criminal defense lawyers’ legal and professional duties towards others. 7 Instead, this paper will attempt to highlight some of the most important duties borne by lawyers who represent criminal defendants. 8 While this paper will mainly focus on pertinent provisions of the Texas Disciplinary Rules of Professional Conduct, it will also highlight significant duties that are stated or implied in other rules, relevant statutes, constitutional provisions, and case law.
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That is, in one sense, what the Rules are for. See Tex. Disciplinary Rules Prof’l Conduct Preamble ¶ 7 (“The Texas Disciplinary Rules of Professional Conduct prescribe terms for resolving such tensions. They do so by stating minimum standards of conduct below which no lawyer can fall without being subject to disciplinary action. Within the framework of these Rules many difficult issues of professional discretion can arise. The Rules and their Comments constitute a body of principles upon which the lawyer can rely for guidance in resolving such issues through the exercise of sensitive professional and moral judgment. In applying these rules, lawyers may find interpretive guidance in the principles developed in the Comments.”)
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Issues regarding conflicts of interest, fees, and advertising are incredibly complex, and a discussion of those issues is beyond the scope of what this paper can reasonably accommodate. I have included the pertinent rules for these matters, with some brief authority citations, at the end of this paper. Those sections are solely for reference. 8
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2. The Disciplinary Rules of Professional Conduct The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system. 9 For purposes of professional discipline, our duties and obligations are set out in the Texas Disciplinary Rules of Professional Conduct. 10 The Rules are imperatives, cast in the terms “shall” or “shall not.” They also include Comments, which “do not … add obligations,” but rather serve two purposes: 1) to permissively define “areas in which the lawyer has professional discretion”; and 2) to “illustrate or explain applications of the rules, in order to provide guidance for interpreting the Ethics in Criminal Defense
rules and for practicing in compliance with the spirit of the rules.” 11 The Rules’ Preamble sets out the core duties of lawyers that the rest of the Rules expound upon. These duties arise from a lawyer’s multiple roles as 1) a representative of clients, 2) an officer of the legal system, and 3) a public citizen: Preamble: A Lawyer’s Responsibilities 1. A lawyer is a representative of clients, an officer of the legal system[,] and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in the preservation of society. … A consequent obligation of lawyers is to maintain the highest standards of ethical conduct. 2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. … A lawyer acts as evaluator by examining a client’s affairs and reporting about them to the client or to others. 3. In all professional functions, a lawyer should zealously pursue clients’ interests within the bounds of the law. In doing so, a lawyer should be competent, prompt[,] and diligent. A 9
Matter of J.B.K., 931 S.W.2d 581, 583 (Tex. App.—El Paso 1996, no writ).
Tex. Disciplinary Rules Prof’l Conduct Preamble: Scope ¶ 10, R. 8.04(a)(1) (“A lawyer shall not … violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship….”).
10
11
Tex. Disciplinary Rules Prof’l Conduct Preamble: Scope ¶ 10.
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lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Texas Disciplinary Rules of Professional Conduct or other law. 4. A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. 5. As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.
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*
*
*
The first role—representative of clients—brings with it numerous duties arising from the client-lawyer relationship, including 1) competence & diligence, 2) communication, and 3) confidentiality. 12 The other two roles—officer of the legal system and public citizen—define the scope of a lawyer’s duties as an advocate for the client, including those duties that the lawyer owes 1) the court, 2) the judicial system itself, and 3) third persons, including opposing counsel, victims, witnesses, jurors, and the general public. ──────────♦──────────
See Tex. Comm. On Professional Ethics, Op. 709 (2026) (applying these three duties to unaffiliated appearance lawyers retained to appear in lieu of the lawyer of record, based on the principle that such lawyers owe the client the same duties as the retained lawyer). 12
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3. The Client-Lawyer Relationship Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. … From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. … These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. … 13 Ethics in Criminal Defense
A defendant in a criminal case has a constitutional and statutory right to counsel. 14 A criminal defense attorney must be a loyal and zealous advocate for his or her client. 15 3.1. Competence & Diligence As a loyal and zealous advocate for the client, a criminal defense lawyer must be competent to represent the client and diligent to see that representation through to its conclusion. One necessary facet of professional assistance is the investigation of the facts and law applicable to a case. 16 Counsel has a duty in every case to make a reasonable investigation or a reasonable decision that an investigation is
13
Strickland v. Washington, 466 U.S. 668, 687 (1984).
U.S. Const. Amend. VI; Tex. Const. art I, § 10; Tex. Code Crim. Proc. arts. 1.05, 1.051(a); Gideon v. Wainwright, 372 U.S. 335, 342–45 (1963). 14
15 Tex. Disciplinary Rules Prof’l Conduct R. 1.01 cmt. 6; see also Wood, Marsh, & Blackburn, Updated Performance Guidelines in Criminal Cases: Continuing Progress for Texas Criminal Justice, Guideline 1.1(A), 85 Tex. Bar. J. 272, 273 (2022); ABA Standards for Criminal Justice: Defense Function (4th Ed. 2017). 16
Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013).
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unnecessary. 17 Reasonable professional assistance includes matters of strategy, but “there is nothing strategic or tactical about ignorance.” 18 At the same time, constitutional effectiveness is merely the ethical floor for defense counsel. The Strickland test for effective assistance requires only “reasonably effective assistance.” 19 It does not establish performance standards or “specific guidelines” for counsel; instead, performance is measured by “prevailing professional norms.” 20 Counsel’s “overriding mission” is “vigorous advocacy of the defendant’s cause.” 21 The Rules set out the duty of competence and diligence in broad terms:
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Preamble: Terminology “Competent” or “Competence” denotes possession or the ability to timely acquire the legal knowledge, skill, and training reasonably necessary for the representation of the client.
Rule 1.01. Competent and Diligent Representation (a) A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence, unless: (1) another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter; or (2) the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances. (b) In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer; or (2) frequently fail to carry out completely the obligations that the lawyer owes to a client or clients. (c) As used in this Rule, “neglect” signifies inattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.
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Id. (citing Strickland v. Washington, 466 U.S. 668, 691 (1984)).
18
Pineda v. Craven, 424 F.2d 369, 372 (9th Cir. 1970).
19
Strickland v. Washington, 466 U.S. 668, 687 (1984).
20
Id. at 688.
21
Id. at 689.
11
Comments Accepting Employment 1. A lawyer generally should not accept or continue employment in any area of the law in which the lawyer is not and will not be prepared to render competent legal services. “Competence” is defined in Terminology as possession of the legal knowledge, skill, and training reasonably necessary for the representation. Competent representation contemplates appropriate application by the lawyer of that legal knowledge, skill and training, reasonable thoroughness in the study and analysis of the law and facts, and reasonable attentiveness to the responsibilities owed to the client. 2. In determining whether a matter is beyond a lawyer’s competence, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience in the field in question, the preparation and study the lawyer will be able to give the matter, and whether it is feasible either to refer the matter to or associate a lawyer of established competence in the field in question. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequences.
Ethics in Criminal Defense
3. A lawyer may not need to have special training or prior experience to accept employment to handle legal problems of a type with which the lawyer is unfamiliar. Although expertise in a particular field of law may be useful in some circumstances, the appropriate proficiency in many instances is that of a general practitioner. A newly admitted lawyer can be as competent in some matters as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. 4. A lawyer possessing the normal skill and training reasonably necessary for the representation of a client in an area of law is not subject to discipline for accepting employment in a matter in which, in order to represent the client properly, the lawyer must become more competent in regard to relevant legal knowledge by additional study and investigation. If the additional study and preparation will result in unusual delay or expense to the client, the lawyer should not accept employment except with the informed consent of the client. 5. A lawyer offered employment or employed in a matter beyond the lawyer’s competence generally must decline or withdraw from the employment or, with the prior informed consent of the client, associate a lawyer who is competent in the matter. Paragraph (a)(2) permits a lawyer, however, to give advice or assistance in an emergency in a matter even though the lawyer does not have the skill ordinarily required if referral to or consultation with another lawyer would be impractical and if the assistance is limited to that which is reasonably necessary in the circumstances. Competent and Diligent Representation 6. Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer. A lawyer’s workload should be controlled so that each matter can be handled with diligence and competence. As provided in paragraph (a), an incompetent lawyer is subject to discipline. Neglect 7. Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Under paragraph (b), a lawyer is subject to professional discipline for neglecting a particular legal matter as well as for frequent failures to carry out fully the obligations owed to one or more clients. A lawyer who acts in good faith is not subject to discipline, under those provisions for an isolated inadvertent or unskilled act or omission, tactical error, or error of judgment. Because delay can cause a client needless anxiety and
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undermine confidence in the lawyer’s trustworthiness, there is a duty to communicate reasonably with clients; see Rule 1.03. Maintaining Competence 8. Because of the vital role of lawyers in the legal process, each lawyer should strive to become and remain proficient and competent in the practice of law, including the benefits and risks associated with relevant technology. 22 To maintain the requisite knowledge and skill of a competent practitioner, a lawyer should engage in continuing study and education. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances. Isolated instances of faulty conduct or decision should be identified for purposes of additional study or instruction.
With respect to competence, the Rule—unlike the Strickland standard—is prospective: It emphasizes that a lawyer should not “accept or continue employment” beyond his competence. The focus is on whether the lawyer can carry out the legal representation, as opposed to whether the lawyer effectively
Ethics in Criminal Defense
carried out the representation. An important feature of this perspective is that lack of experience alone does not render counsel incompetent to provide adequate representation. 23 The question isn’t what a lawyer knows or doesn’t know, but rather what he can learn or get assistance on with the client’s consent. This is especially relevant in criminal cases, where lawyers may be appointed to cases outside their expertise. As long as the appointed lawyer is capable of learning the applicable law, procedures, and skills necessary to represent a criminal defendant, he may not refuse to serve based solely on the fact that he isn’t presently familiar with the law. 24
This is not a paper on AI or other technological devils that plague the legal profession. See Tex. Comm. On Professional Ethics, Op. 705 (2025) (opinion by the Professional Ethics Committee “in response to a request from the State Bar of Texas’s Taskforce on Responsible AI in the Law to provide a high-level overview of ethical issues that may be implicated by the use of generative AI in the practice of law”). 22
23 See Comment 3; see also Alvarez v. State, No. 04-23-00789-CR, 2024 WL 4280995, at *7 (Tex. App.—San Antonio Sept. 25, 2024, no pet.).
See Hawkins v. Comm’n for Lawyer Discipline, 988 S.W.2d 927 (Tex. App.—El Paso 1999, pet. denied) (upholding suspension for lawyer who abandoned his client in protest of having been appointed to a criminal case); see also In re Disciplinary Action against Hawkins, 834 N.W.2d 663 (Minn. 2013) (detailing Mr. Hawkins’ subsequent disbarment after the initial suspension); In re Disciplinary Action Against Hawkins, 2001 ND 55, 623 N.W.2d 431 (same). 24
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That being said, counsel who gives incompetent legal advice may be constitutionally ineffective. 25 As may be counsel who fails to object to “categorically inadmissible” evidence. 26 So too with counsel who fails to properly preserve error. 27 With respect to diligence, the Rule emphasizes non-neglect as opposed to expediency. 28 The key to diligence is attention. For example, counsel should timely file and respond to pleadings. 29 Rule 1.16. Declining or Terminating Representation 30 (a) A lawyer shall decline to represent a client or, where representation has commenced, shall withdraw, except as stated in paragraph (c), from the representation of a client, if:
Ethics in Criminal Defense
(1) the representation will result in violation of Rule 3.08, other applicable rules of professional conduct or other law; 31 (2) the lawyer’s physical, mental or psychological condition materially impairs the lawyer’s fitness to represent the client; or (3) the lawyer is discharged, with or without good cause. 32
See, e.g., Lafler v. Cooper, 566 U.S. 156162–3 (2012) (counsel performed deficiently when he advised defendant to reject a favorable plea bargain based on an incompetent belief that the State could not prove an element of the offense). 25
26
Dryer v. State, 674 S.W.3d 635 (Tex. App.—Houston [1st Dist.] 2023, pet. ref’d).
27
Jefferson v. State, 695 S.W.3d 23 (Tex. App.—Eastland 2024, pet. ref’d).
In 2019, a proposed change to Rule 1.01 that would have required lawyers to “act with reasonable diligence and promptness in representing a client” was rejected by the State Bar Board of Directors. 28
Allison v. Comm’n for Lawyer Discipline, 374 S.W.3d 520, 524–25 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Joyner v. Comm’n for Lawyer Discipline, 102 S.W.3d 344, 347–48 (Tex. App.—Dallas 2003, no pet.). 29
Rule 1.16 is former Rule 1.15 and is therefore often cited as such. It was renumbered as Rule 1.16 in 2024. See Supreme Court Misc. Docket No. 24-9054 (Aug. 27, 2024). 30
31 Crampton v. Comm’n for Lawyer Discipline, 545 S.W.3d 593, 604 (Tex. App.—El Paso 2016, pet. denied) (lawyer should have withdrawn once case was removed to federal court, where she was ineligible to practice). Courts should strike a balance between enforcement of this rule and the rule of client confidentiality by accepting “as sufficient” a lawyer’s word that “professional considerations require termination of the representation.” Matter of Marriage of Harrison, 557 S.W.3d 99, 116 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
The client’s decision to discharge the lawyer prevails over any rights the lawyer may have. Tex. Comm. on Professional Ethics, Op. 601 (2010). 32
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(b) Except as required by paragraph (a), a lawyer shall not withdraw from representing a client unless: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or with which the lawyer has fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services, including an obligation to pay the lawyer’s fee as agreed, and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.
Ethics in Criminal Defense
(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. 33 (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, 34 such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation. 35 Comments 1. A lawyer should not accept representation in a matter unless it can be performed competently, promptly, and without improper conflict of interest. See generally Rules 1.01, 1.06, 1.07, 1.08, and 1.09. Having accepted the representation, a lawyer normally should endeavor to handle the matter to completion. Nevertheless, in certain situations the lawyer must terminate the representation and in certain other situations the lawyer is permitted to withdraw. Mandatory Withdrawal 2. A lawyer ordinarily must decline employment if the employment will cause the lawyer to engage in conduct that the lawyer knows is illegal or that violates the Texas Disciplinary Rules of Professional Conduct. Rule
See Hawkins v. Comm’n for Lawyer Discipline, 988 S.W.2d 927 (Tex. App.—El Paso 1999, pet. denied). 33
See Ward v. State, 740 S.W.2d 794 (Tex. Crim. App. 1987) (appointed trial counsel who withdraws after conviction must still ensure that right to appeal is preserved).
34
“The client’s file belongs to the client,” and “a client owns the contents of his or her file.” In re McCann, 422 S.W.3d 701, 704–05 (Tex. Crim. App. 2013) (citing, among others, Burnett v. State, 642 S.W.2d 765, 769, n. 10 (Tex. Crim. App. 1983); In re George, 28 S.W.3d 511, 516 (Tex. 2000); Tex. Comm. On Professional Ethics, Op. 570 (2006); Tex. Comm. On Professional Ethics, Op. 395 (1979)). See also Tex. Comm. on Professional Ethics, Op. 657 (May 2016) (describing a lawyer’s duties to provide the file to a former criminal client); Tex. Comm. On Professional Ethics, Op. 627 (2013). 35
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1.16(a)(1); cf. Rules 1.02(c), 3.01, 3.02, 3.03, 3.04, 3.08, 4.01, and 8.04. Similarly, paragraph (a)(1) of this Rule requires a lawyer to withdraw from employment when the lawyer knows that the employment will result in a violation of a rule of professional conduct or other law. The lawyer is not obliged to decline or withdraw simply because the client suggests such a course of conduct; a client may have made such a suggestion in the ill-founded hope that a lawyer will not be constrained by a professional obligation. Cf. Rule 1.02(c) and (d). 3. When a lawyer has been appointed to represent a client and in certain other instances in litigation, withdrawal ordinarily requires approval of the appointing authority or presiding judge. See also Rule 6.01. Difficulty may be encountered if withdrawal is based on the client’s demand that the lawyer engage in unprofessional conduct. The tribunal may wish an explanation for the withdrawal, while the lawyer may be bound to keep confidential the facts that would constitute such an explanation. The lawyer’s statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient. See also Rule 1.06(e). Discharge 4. A client has the power to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services, and paragraph (a) of this Rule requires that the discharged lawyer withdraw. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances.
Ethics in Criminal Defense
5. Whether a client can discharge an appointed counsel depends on the applicable law. A client seeking to do so should be given full explanation of the consequences. In some instances the consequences may include a decision by the appointing authority or presiding judge that appointment of successor counsel is unjustified, thus requiring the client to represent himself. Client with Diminished Capacity 6. If a client lacks the legal capacity to discharge the lawyer, the lawyer may in some situations initiate proceedings for a conservatorship or similar protection of the client. See Rule 1.17. Optional Withdrawal 7. Paragraph (b) supplements paragraph (a) by permitting a lawyer to withdraw from representation in some certain additional circumstances. The lawyer has the option to withdraw if it can be accomplished without material adverse effect on the client’s interests. Withdrawal is also justified if the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent, for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. A lawyer is not required to discontinue the representation until the lawyer knows the conduct will be illegal or in violation of these rules, at which point the lawyer’s withdrawal is mandated by paragraph (a)(1). Withdrawal is also permitted if the lawyer’s services were misused in the past. The lawyer also may withdraw where the client insists on pursuing a repugnant or imprudent objective or one with which the lawyer has fundamental disagreement. A lawyer may withdraw if the client refuses, after being duly warned, to abide by the terms of an agreement relating to the representation, such as an agreement concerning fees or court costs or an agreement limiting the objectives of the representation. 8. Withdrawal permitted by paragraph (b)(2) through (7) is optional with the lawyer even though the withdrawal may have a material adverse effect upon the interests of the client. Assisting the Client Upon Withdrawal 9. In every instance of withdrawal and even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client. See paragraph (d). The lawyer may retain papers as security for a fee only to the extent permitted by law. 10. Other rules, in addition to Rule 1.16, require or suggest withdrawal in certain situations. See Rules 1.01, 1.05 Comment 22, 1.06(e) and 1.07(c), 1.12(c), 1.13(d), and 3.08(a).
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3.2. Communication Criminal defendants have the right to control some decisions in the case, including decisions that affect the exercise or waiver of fundamental constitutional rights. 36 Because of this, counsel must ensure that decisions of his client are made only after the client has been informed of relevant considerations. 37 Rule 1.02. Scope and Objectives of Representation (a) Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a client’s decisions: (1) concerning the objectives and general methods of representation; *
*
*
(3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.
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(b) A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation. (c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law. (d) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in substantial injury to the financial interests or property of another, the lawyer shall promptly make reasonable efforts under the circumstances to dissuade the client from committing the crime or fraud. (e) When a lawyer has confidential information clearly establishing that the lawyer’s client has committed a criminal or fraudulent act in the commission of which the lawyer’s services have been used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take corrective action. (f) When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.
36 See, e.g., McCoy v. Louisianna, 584 U.S. 414, 421–23 (2018); Rock v. Arkansas, 483 U.S. 44, 49 (1987); Nix v. Whiteside, 475 U.S. 157, 173 (1986); Jones v. Barnes, 463 U.S. 745, 751 (1983); Faretta v. California, 422 U.S. 806, 807 (1975); Boykin v. Alabama, 395 U.S. 238, 242–44 (1969); Rios v. State, 665 S.W.3d 467, 478 (Tex. Crim. App. 2022); Hobbs v. State, 298 S.W.3d 193, 197 (Tex. Crim. App. 2009).
Gallegos v. State, 756 S.W.2d 45, 48 (Tex. App.—San Antonio 1988, pet. ref’d); Ex parte Alaniz, 583 S.W.2d 380, 384 (Tex. Crim. App. 1979). 37
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Comments Scope of Representation 1. Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the objectives to be served by legal representation, within the limits imposed by law, the lawyer’s professional obligations, and the agreed scope of representation. Within those limits, a client also has a right to consult with the lawyer about the general methods to be used in pursuing those objectives. The lawyer should assume responsibility for the means by which the client’s objectives are best achieved. Thus, a lawyer has very broad discretion to determine technical and legal tactics, subject to the client’s wishes regarding such matters as the expense to be incurred and concern for third persons who might be adversely affected. 2. Except where prior communications have made it clear that a particular proposal would be unacceptable to the client, a lawyer is obligated to communicate any settlement offer to the client in a civil case; and a lawyer has a comparable responsibility with respect to a proposed plea bargain in a criminal case.
Ethics in Criminal Defense
3. A lawyer should consult with the client concerning any such proposal, and generally it is for the client to decide whether or not to accept it. This principle is subject to several exceptions or qualifications. First, in class actions a lawyer may recommend a settlement of the matter to the court over the objections of named plaintiffs in the case. Second, in insurance defense cases a lawyer’s ability to implement an insured client’s wishes with respect to settlement may be qualified by the contractual rights of the insurer under its policy. Finally, a lawyer’s normal deference to a client’s wishes concerning settlement may be abrogated if the client has validly relinquished to a third party any rights to pass upon settlement offers. Whether any such waiver is enforceable is a question largely beyond the scope of these rules. But see comment 5 below. A lawyer reasonably relying on any of these exceptions in not implementing a client’s desires concerning settlement is, however, not subject to discipline under this Rule. Limited Scope of Representation 4. The scope of representation provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined objective. Likewise, representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. Similarly, when a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. The scope within which the representation is undertaken also may exclude specific objectives or means, such as those that the lawyer or client regards as repugnant or imprudent. 5. An agreement concerning the scope of representation must accord with the Disciplinary Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.01, or to surrender the right to terminate the lawyer’s services or the right to settle or continue litigation that the lawyer might wish to handle differently. 6. Unless the representation is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s representation is limited to a specific matter or matters, the relationship terminates when the matter has been resolved. If a lawyer has represented a client over a substantial period in a variety of matters, the client may sometimes assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice to the contrary. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client but has not been specifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the possibility of appeal before relinquishing responsibility for the matter. Criminal, Fraudulent and Prohibited Transactions 7. A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client’s conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not knowingly assist
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a client in criminal or fraudulent conduct. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. 8. When a client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer may not reveal the client’s wrongdoing, except as permitted or required by Rule 1.05. However, the lawyer also must avoid furthering the client’s unlawful purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required. See Rule 1.16(a)(1). 9. Paragraph (c) is violated when a lawyer accepts a general retainer for legal services to an enterprise known to be unlawful. Paragraph (c) does not, however, preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. 10. The last clause of paragraph (c) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities.
Ethics in Criminal Defense
11. Paragraph (d) requires a lawyer in certain instances to use reasonable efforts to dissuade a client from committing a crime or fraud. If the services of the lawyer were used by the client in committing a crime or fraud, paragraph (e) requires the lawyer to use reasonable efforts to persuade the client to take corrective action.
This requires clear communication. At the outset of representation in a criminal case, counsel should fully address, in writing: • • • • • • • • • • • • •
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the objectives of the representation; the scope of the representation (i.e., specifically what is included); the limits of the representation (specifically what is not included); who the parties are (the client, and non-client payers); information that the lawyer’s responsibilities and the attorney-client privilege belong to the client only; who makes what decisions in the representation; how the client and attorney will communicate; the fee agreement (how much money for what services, when owed); how additional expenses will be handled; a statement that no guarantees or promises are being made; an explanation of discovery and inability to give it to the client; a statement regarding the file retention policy; and language from the State Bar regarding how the client can file a grievance. 38
Thanks to my colleague Anne Burhnam for this excellent list.
19
Communication doesn’t stop at intake; it carries on through the entire representation: Rule 1.03. Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comments
Ethics in Criminal Defense
1. The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued to the extent the client is willing and able to do so. For example, a lawyer negotiating on behalf of a client should provide the client with facts relevant to the matter, inform the client of communications from another party and take other reasonable steps to permit the client to make a decision regarding a serious offer from another party. A lawyer who receives from opposing counsel … a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. See Comment 2 to Rule 1.02. 2. Adequacy of communication depends in part on the kind of advice or assistance involved. For example, in negotiations where there is time to explain a proposal the lawyer should review all important provisions with the client before proceeding to an agreement. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might injure or coerce others. On the other hand a lawyer ordinarily cannot be expected to describe trial or negotiation strategy in detail. Moreover, in certain situations practical exigency may require a lawyer to act for a client without prior consultation. The guiding principle is that the lawyer should reasonably fulfill client expectations for information consistent with the duty to act in the client’s best interests, and the client’s overall requirements as to the character of representation. 3. Ordinarily, a lawyer should provide to the client information that would be appropriate for a comprehending and responsible adult. However, communicating such information may be impractical if the client is a child or suffers from diminished capacity; see paragraph 5 and Rule 1.17. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client. Withholding Information 4. In some circumstances, a lawyer may be justified in delaying transmission of information when the lawyer reasonably believes the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. Similarly, rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.04(d) sets forth the lawyer’s obligations with respect to such rules or orders. A lawyer may not, however, withhold information to serve the lawyer’s own interest or convenience. Client with Diminished Capacity 5. If a client appears to suffer from diminished capacity, a lawyer should communicate with any legal representative and seek to maintain reasonable communication with the client, insofar as possible. Even if the client suffers from diminished capacity, it may be possible to maintain some aspects of a normal attorneyclient relationship. The client may have the ability to understand, deliberate upon, and reach conclusions
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about some matters affecting the client’s own well-being. Children’s opinions regarding their own custody are given some weight. Regardless of whether a client suffers from diminished capacity, a client should always be treated with attention and respect. See also Rule 1.17 and Rule 1.05, Comment 17.
Rule 2.01. Advisor In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice. COMMENT: Scope of Advice 1. A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client’s morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.
Ethics in Criminal Defense
2. Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as costs or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. 3. A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer’s responsibility as advisor may include indicating that more may be involved than strictly legal considerations. 4. Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer’s advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts. Offering Advice 5. In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, duty to the client may require that the lawyer act if the client’s course of action is related to the representation. A lawyer ordinarily has no duty to initiate investigation of a client’s affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client’s interest.
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One significant part of the duty of communication is that counsel must convey and explain plea offers to the client. Failure to do so may be ineffective assistance. 39 See, e.g., Ex parte Wilson, 724 S.W. 2d 72, 74 (Tex. Crim. App. 1987) (counsel was ineffective for not conveying 13-year offer where client went to trial and got life, and later testified he would have taken the 13-year offer if he had known about it); State v. Williams, 83 S.W.3d 371, 374 —cont’d 39
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The Supreme Court has held that, “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” 40 One matter that implicates not only communication, but also competence and diligence—and which has recently seen increased attention in the Court of Criminal Appeals—is the failure of counsel after trial to advise clients about their right of appeal and to assist them in exercising that right. A quick recap of the applicable law: Trial counsel “has the duty, obligation[,] and responsibility to consult with and fully to advise his client” concerning: • the meaning and effect of the judgment rendered by the court; Ethics in Criminal Defense
• the client’s right to appeal from that judgment; • the necessity of giving notice of appeal and taking other steps to pursue an appeal; • counsel’s professional judgment as to possible grounds for appeal and their merit; and • the advantages and disadvantages of appeal. 41 Trial counsel’s responsibilities consist of the following process: 1) First, the attorney must ascertain whether the defendant wishes to appeal. a. The decision to appeal lies solely with the defendant, and the attorney’s duty is to advise him as to the matters described above. b. If the defendant does not wish to appeal, trial counsel’s representation ends. (Tex. App.—Corpus Christi–Edinburg 2002, no pet.) (counsel ineffective for failing to explain deferred adjudication offer); but see Harvey v. State 97 S.W.3d 162, 167 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (counsel could reasonably end plea negotiations if when the client had previously told counsel that the State’s offer was unacceptable). 40 Missouri v. Frye, 566 U.S. 134, 145 (2012) (counsel was ineffective for allowing offer to expire without advising the defendant or allowing him to consider it). 41
Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988).
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2) If the defendant decides to appeal, the attorney must ensure that written notice of appeal is filed with the trial court. Trial counsel has two options: a. He may sign the notice himself, in which case, he effectively “volunteers” to serve as appellate counsel. b. Alternatively, the defendant may file the notice pro se, which serves as “an indication that trial counsel does not wish to pursue his client’s appeal. A contemporaneous presentation of the pro se notice with a motion to withdraw by trial counsel serves as actual notice to the trial court of the defendant’s desire to appeal. 42 This duty ties back to competence and diligence. Once the defendant has decided Ethics in Criminal Defense
to appeal, trial counsel must ensure that a written notice of appeal is filed. 43 Trial counsel has this obligation even if: • he is unsure whether he will continue to represent the defendant; 44 • he has filed a motion to withdraw; 45 • he has filed a motion to withdraw and a timely motion for new trial; 46 42 Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (cleaned up). Be aware that if counsel does not withdraw, he will be presumed to have continued to represent the defendant during the motion-for-new-trial stage, during which the defendant continues to have a constitutional right to effective assistance of counsel. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007).
Ex parte Hampton, 688 S.W.3d 912 (Tex. Crim. App. 2024) (Slaughter, J., concurring). The requirement of written notice dates back to 1986; before then, the code of criminal procedure allowed for notice of appeal to be given orally in open court. 49 TEX. B.J. 566 (Rule 40(b)(1) (1986)); 1965 Code of Criminal Procedure art. 44.08(a).
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Even though this rule has existed for forty years, attorneys still violate it—at least five times since 2003, and most recently (that we know of) in 2024. See Gatlin v. State, No. 14-24-00451-CR, 2024 WL 3616766, at *1 (Tex. App.—Houston [14th Dist.] Aug. 1, 2024, no pet.) (mem. op., not designated for publication); Lawrence v. State, No. 05-10-00133-CR, 2010 WL 4119034, at *1 (Tex. App.—Dallas Oct. 21, 2010, no pet.) (mem. op., not designated for publication); Ethridge v. State, No. 12-09-00190-CR, 2009 WL 2370717, at *1–2 (Tex. App.—Tyler July 31, 2009, no pet.) (mem. op., not designated for publication); Lewis v. State, No. 07-03-0297-CR, 2003 WL 22455077, at *1 (Tex. App.—Amarillo Oct. 29, 2003, no pet.) (not designated for publication); Ex parte Taylor, 683 S.W.3d 423. 423–24 (Tex. Crim. App. 2024) (Slaughter, J. concurring).
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Ex parte Henderson, 707 S.W.3d 226 (Tex. Crim. App. 2024) (Slaughter, J., concurring).
45
Ex parte Shed, 691 S.W.3d 625 (Tex. Crim. App. 2024) (Slaughter, J., concurring).
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Ex parte Valles, 668 S.W.3d 373 (Tex. Crim. App. 2023) (Slaughter, J., concurring).
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• he has told the client “I don’t do appeals”; 47 • he made an oral notice of appeal; 48 • he has given the client “the necessary paperwork”; 49 • he has told the court coordinator that the client wants to appeal and that an appellate attorney should be appointed; 50 • he believes appellate counsel will be automatically appointed; 51 • the client has said he cannot afford counsel’s appeal fee; 52 • the client has already retained appellate counsel; 53 • the trial court has already said it will appoint appellate counsel; 54 • local practice is for appellate counsel to file the notice of appeal; 55 • appointed appellate counsel filed a timely motion for new trial; 56 or • the defendant has waived his right to appeal. 57 The buck stops with trial counsel, but appellate counsel must also be vigilant: Ethics in Criminal Defense
… a prudent appellate attorney should always ensure that the notice of appeal has, in fact, been timely filed. If appellate counsel is unsure whether the notice has been filed, she should check with trial counsel and/or the trial court. And if … appellate counsel knows or believes that trial counsel did not file a notice of appeal, and she takes on the responsibility of doing so herself, she should verify the applicable filing deadlines and comply with them. 58
47
Ex parte Warren, 667 S.W.3d 811 (Tex. Crim. App. 2023) (Slaughter, J., concurring).
48
Ex parte Taylor, 683 S.W.3d 423 (Tex. Crim. App. 2024) (Slaughter, J., concurring).
49
Ex parte Garton, 664 S.W.3d 865 (Tex. Crim. App. 2022) (Slaughter, J., concurring).
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Ex parte Prieto, 666 S.W.3d 631 (Tex. Crim. App. 2023) (Slaughter, J., concurring).
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Ex parte Gutierrez, 662 S.W.3d 494 (Tex. Crim. App. 2023) (Slaughter, J., concurring).
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Ex parte Marquezgonzalez, 675 S.W.3d 12 (Tex. Crim. App. 2023) (Slaughter, J., concurring).
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Ex parte Gutierrez, 673 S.W.3d 629 (Tex. Crim. App. 2023) (Slaughter, J., concurring).
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Ex parte Contreras, 707 S.W.3d 228 (Tex. Crim. App. Oct. 23, 2024) (Slaughter, J. concurring).
Ex parte Banks, 678 S.W.3d 11 (Tex. Crim. App. 2023) (Slaughter, J., concurring); Ex parte Manuel, 666 S.W.3d 657 (Tex. Crim. App. 2023) (Slaughter, J., concurring).
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Ex parte Joshua, 678 S.W.3d 8 (Tex. Crim. App. 2023) (Slaughter, J., concurring).
Garza v. Idaho, 586 U.S. 232, 237 (2019); Ex parte Lozano, 666 S.W.3d 578 (Tex. Crim. App. 2023) (Slaughter, J., concurring).
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Shed, 691 S.W.3d at 628 (Slaughter, J., concurring) (emphasis in original).
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3.3. Confidentiality A lawyer has a solemn obligation not to reveal privileged and other confidential client information, except as permitted or required in certain limited circumstances as provided in the rules. 59 Confidentiality is a paramount duty in the client-lawyer relationship. The Texas Disciplinary Rule of confidentiality is broader than the common law attorney-client privilege. Rule 1.05(a) makes confidential both “privileged information”—that is, information protected by the attorney-client privilege in the Rules of Evidence—and “unprivileged information”—which is “all [other] information relating to a client or furnished by the client … acquired by the lawyer Ethics in Criminal Defense
during the course of or by reason of the representation of the client.” 60 Rule 1.05. Confidentiality of Information (a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 503 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence 61 or by the principles of attorney-client privilege governed by Rule 501 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
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Duncan v. Bd. of Disciplinary Appeals, 898 S.W.2d 759, 761 (Tex. 1995).
See Morrison v. State, 575 S.W.3d 1, 24–28 (Tex. App.—Texarkana 2019, no pet.) (appointed counsel’s submission of detailed billing records that revealed confidential communications, strategy, and work product was both constitutionally deficient performance and a violation Rule 1.05); see also Tex. Comm. On Professional Ethics, Op. 559 (2005) (appointed lawyer may not furnish to a court in connection with obtaining payment for the lawyer’s services a statement containing a detailed description of the lawyer’s services, including the subject matter of records and documents obtained and reviewed, the subjects of legal research, and the identity of persons contacted and interviewed, unless the defendant consents to the disclosure of such confidential information after consultation about the consequences of the disclosure”). 60
This reference to bifurcated rules of civil and criminal evidence requires some explanation. Effective March 1, 1998, the Supreme Court and Court of Criminal Appeals enacted a single set of rules called the Texas Rules of Evidence that governs both civil and criminal proceedings. See Supreme Court Misc. Docket No. 98-9043 (Feb. 25, 1998), 61 Tex. B.J. 373. Accordingly, the reference to “Rule 5.03” is inaccurate and outdated. In 2025, the Supreme Court amended Rule 1.05 to fix similar outdated references to the civil rules of evidence and the federal rules of —cont’d 61
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(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly: (1) Reveal confidential information of a client or a former client to: (i) a person that the client has instructed is not to receive the information; or (ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm. 62 (2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultation. (3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.
evidence, but it ignored the criminal reference. See Supreme Court Misc. Docket No. 25-9012 (Mar. 7, 2025), 88 Tex. B.J. 384.
Ethics in Criminal Defense
Despite the outdated reference to the rule number, the continued reference to bifurcated rules is technically correct. As former CCA Judge Womack has observed: It is not exactly correct to say that the civil and criminal rules were merged. The Supreme Court has rulemaking power in the practice and procedure in civil actions. Tex. Gov’t Code § 22.004(a). The Court of Criminal Appeals has rulemaking power in the promul– gation of rules of evidence in the trial of criminal cases. Id., § 22.109(a). Neither court may make rules to govern both civil and criminal trials. In 1998 each court revised its set of rules by entering identical orders. Each set of rules is to be known and cited as the “Texas Rules of Evidence.” Paul Womack, Some More Notes and Comments to the 1998 Revision of Texas Rules of Criminal Evidence, 61 Tex. B.J. 549 n.1 (1998). See Tex. Comm. On Professional Ethics, Op. 673 (2018) (concluding that “informal lawyer-tolawyer consultation for the benefit of a client, whether the consultation occurs in an online discussion group, an in-person meeting, or otherwise,” must honor the duty of confidentiality, and that in such consultations, the lawyer “may not reveal confidential information protected by the lawyer-client privilege without the client’s express, informed consent,” while the lawyer “may not reveal unprivileged confidential information for the benefit of the client if the client has expressly instructed the lawyer not to do so”). 62
See also Tex. Comm. On Professional Ethics, Op. 705 (2025) (discussing issues of confidentiality arising from a lawyer’s use of generative artificial intelligence); Tex. Comm. On Professional Ethics, Op. 680 (2018) (discussing issues of confidentiality arising from a lawyer’s use of a cloudcomputing service); Tex. Comm. On Professional Ethics, Op. 648 (2015) (discussing whether a lawyer may communicate confidential information by email); Tex. Comm. On Professional Ethics, Op. 572 (2006) (discussing issues of confidentiality arising from a lawyer’s use of an independent contractor, such as a copy service). And see Tex. Comm. On Professional Ethics, Op. 662 (2016) (“a Texas lawyer may not publish a response to a former client’s negative review on the internet if the response reveals any confidential information, i.e., information protected by the lawyer-client privilege, or otherwise relating to a client or furnished by the client, or acquired by the lawyer during the course of or by reason of the representation of the client. The lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the Texas Disciplinary Rules of Professional Conduct.”).
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(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation. (c) A lawyer may reveal confidential information: (1) When the lawyer has been expressly authorized to do so in order to carry out the representation. (2) When the client consents after consultation. (3) To the client, the client’s representatives, or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client. (4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rules of Professional Conduct, or other law. (5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client. (6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associates based upon conduct involving the client or the representation of the client. (7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
Ethics in Criminal Defense
(8) To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used. (9) To secure legal advice about the lawyer’s compliance with these Rules. (10) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from dying by suicide. (d) A lawyer also may reveal unprivileged client information: (1) When impliedly authorized to do so in order to carry out the representation. (2) When the lawyer has reason to believe it is necessary to do so in order to: (i) carry out the representation effectively; (ii) defend the lawyer or the lawyer’s employees or associates against a claim of wrongful conduct; (iii) respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client. (e) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. (f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b).
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Comments Confidentiality Generally 1. Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidential information of one who has employed or sought to employ the lawyer. Free discussion should prevail between lawyer and client in order for the lawyer to be fully informed and for the client to obtain the full benefit of the legal system. The ethical obligation of the lawyer to protect the confidential information of the client not only facilitates the proper representation of the client but also encourages potential clients to seek early legal assistance. 2. Subject to the mandatory disclosure requirements of paragraphs (e) and (f) the lawyer generally should be required to maintain confidentiality of information acquired by the lawyer during the course of or by reason of the representation of the client. This principle involves an ethical obligation not to use the information to the detriment of the client or for the benefit of the lawyer or a third person. In regard to an evaluation of a matter affecting a client for use by a third person, see Rule 2.02.
Ethics in Criminal Defense
3. The principle of confidentiality is given effect not only in the Texas Disciplinary Rules of Professional Conduct but also in the law of evidence regarding the attorney-client privilege and in the law of agency. The attorney-client privilege, developed through many decades, provides the client a right to prevent certain confidential communications from being revealed by compulsion of law. Several sound exceptions to confidentiality have been developed in the evidence law of privilege. Exceptions exist in evidence law where the services of the lawyer were sought or used by a client in planning or committing a crime or fraud as well as where issues have arisen as to breach of duty by the lawyer or by the client to the other. 4. Rule 1.05 reinforces the principles of evidence law relating to the attorney-client privilege. Rule 1.05 also furnishes considerable protection to other information falling outside the scope of the privilege. Rule 1.05 extends ethical protection generally to unprivileged information relating to the client or furnished by the client during the course of or by reason of the representation of the client. In this respect Rule 1.05 accords with general fiduciary principles of agency. 5. The requirement of confidentiality applies to government lawyers who may disagree with the policy goals that their representation is designed to advance. Disclosure for Benefit of Client 6. A lawyer may be expressly authorized to make disclosures to carry out the representation and generally is recognized as having implied-in-fact authority to make disclosures about a client when appropriate in carrying out the representation to the extent that the client’s instructions do not limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion. The effect of Rule 1.05 is to require the lawyer to invoke, for the client, the attorney-client privilege when applicable; but if the court improperly denies the privilege, under paragraph (c)(4) the lawyer may testify as ordered by the court or may test the ruling as permitted by Rule 3.04(d). 7. In the course of a firm’s practice, lawyers may disclose to each other and to appropriate employees information relating to a client, unless the client has instructed that particular information be confined to specified lawyers. Sub-paragraphs (b)(1) and (c)(3) continue these practices concerning disclosure of confidential information within the firm. Use of Information 8. Following sound principles of agency law, subparagraphs (b)(2) and (4) subject a lawyer to discipline for using information relating to the representation in a manner disadvantageous to the client or beneficial to the lawyer or a third person, absent the informed consent of the client. The duty not to misuse client information continues after the client-lawyer relationship has terminated. Therefore, the lawyer is forbidden by subparagraph (b)(3) to use, in absence of the client’s informed consent, confidential information of the former client to the client’s disadvantage, unless the information is generally known.
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Discretionary Disclosure Adverse to Client 9. In becoming privy to information about a client, a lawyer may foresee that the client intends serious and perhaps irreparable harm. To the extent a lawyer is prohibited from making disclosure, the interests of the potential victim are sacrificed in favor of preserving the client’s information--usually unprivileged information--even though the client’s purpose is wrongful. On the other hand, a client who knows or believes that a lawyer is required or permitted to disclose a client’s wrongful purposes may be inhibited from revealing facts which would enable the lawyer to counsel effectively against wrongful action. Rule 1.05 thus involves balancing the interests of one group of potential victims against those of another. The criteria provided by the Rule are discussed below. 10. Rule 503(d)(1), Texas Rules of Civil Evidence (Tex.R.Civ.Evid.), and Rule 503(d)(1), Texas Rules of Criminal Evidence (Tex.R.Crim.Evid.), indicate the underlying public policy of furnishing no protection to client information where the client seeks or uses the services of the lawyer to aid in the commission of a crime or fraud. That public policy governs the dictates of Rule 1.05. Where the client is planning or engaging in criminal or fraudulent conduct or where the culpability of the lawyer’s conduct is involved, full protection of client information is not justified.
Ethics in Criminal Defense
11. Several other situations must be distinguished. First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See Rule 1.02(c). 63 As noted in the Comment to that Rule, there can be situations where the lawyer may have to reveal information relating to the representation in order to avoid assisting a client’s criminal or fraudulent conduct, and sub-paragraph (c)(4) permits doing so. A lawyer’s duty under Rule 3.03(a) not to use false or fabricated evidence is a special instance of the duty prescribed in Rule 1.02(c) to avoid assisting a client in criminal or fraudulent conduct, and sub-paragraph (c)(4) permits revealing information necessary to comply with Rule 3.03(a) or (b). The same is true of compliance with Rule 4.01. See also paragraph (f). 12. Second, the lawyer may have been innocently involved in past conduct by the client that was criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.02(c), because to “counsel or assist” criminal or fraudulent conduct requires knowing that the conduct is of that character. Since the lawyer’s services were made an instrument of the client’s crime or fraud, the lawyer has a legitimate interest both in rectifying the consequences of such conduct and in avoiding charges that the lawyer’s participation was culpable. Sub-paragraph (c)(6) and (8) give the lawyer professional discretion to reveal both unprivileged and privileged information in order to serve those interests. See paragraph (g). In view of Tex.R.Civ.Evid. Rule 503(d)(1), and Tex.R.Crim.Evid. 503(d)(1), however, rarely will such information be privileged. 13. Third, the lawyer may learn that a client intends prospective conduct that is criminal or fraudulent. The lawyer’s knowledge of the client’s purpose may enable the lawyer to prevent commission of the prospective crime or fraud. When the threatened injury is grave, the lawyer’s interest in preventing the harm may be more compelling than the interest in preserving confidentiality of information. As stated in sub-paragraph (c)(7), the lawyer has professional discretion, based on reasonable appearances, to reveal both privileged and unprivileged information in order to prevent the client’s commission of any criminal or fraudulent act. In some situations of this sort, disclosure is mandatory. See paragraph (e) and Comments 18-20. 14. The lawyer’s exercise of discretion under paragraphs (c) and (d) involves consideration of such factors as the magnitude, proximity, and likelihood of the contemplated wrong, the nature of the lawyer’s relationship with the client and with those who might be injured by the client, the lawyer’s own involvement in the transaction, and factors that may extenuate the client’s conduct in question. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer believes necessary to the purpose. Although preventive action is permitted by paragraphs (c) and (d), failure to take preventive action does not violate those paragraphs. But see paragraphs (e) and (f). Because these rules do not define standards of civil liability
“A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law.”
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of lawyers for professional conduct, paragraphs (c) and (d) do not create a duty on the lawyer to make any disclosure and no civil liability is intended to arise from the failure to make such disclosure. 15. A lawyer entitled to a fee necessarily must be permitted to prove the services rendered in an action to collect it, and this necessity is recognized by sub-paragraphs (c)(5) and (d)(2)(iv). This aspect of the rule, in regard to privileged information, expresses the principle that the beneficiary of a fiduciary relationship may not exploit the relationship to the detriment of the fiduciary. Any disclosure by the lawyer, however, should be as protective of the client’s interests as possible.
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Client with Diminished Capacity 17. When representing a client who may have diminished capacity, a lawyer should review Rule 1.17, which, under limited circumstances, permits a lawyer to disclose confidential information to protect the client’s interests. Mandatory Disclosure Adverse to Client 18. Rule 1.05(e) and (f) place upon a lawyer professional obligations in certain situations to make disclosure in order to prevent certain serious crimes by a client or to prevent involvement by the lawyer in a client’s crimes or frauds. Except when death or serious bodily harm is likely to result, a lawyer’s initial obligation is to attempt to dissuade the client from committing the crime or fraud or to persuade the client to take corrective action; see Rule 1.02(d) and (e).
Ethics in Criminal Defense
19. Because it is very difficult for a lawyer to know when a client’s criminal or fraudulent purpose actually will be carried out, the lawyer is required by paragraph (e) to act only if the lawyer has information “clearly establishing” the likelihood of such acts and consequences. If the information shows clearly that the client’s contemplated crime or fraud is likely to result in death or serious injury, the lawyer must seek to avoid those lamentable results by revealing information necessary to prevent the criminal or fraudulent act. When the threatened crime or fraud is likely to have the less serious result of substantial injury to the financial interests or property of another, the lawyer is not required to reveal preventive information but may do so in conformity to paragraph (c)(7). See also paragraph (f); Rule 1.02(d) and (e); and Rule 3.03(b) and (c). 20. Although a violation of paragraph (e) will subject a lawyer to disciplinary action, the lawyer’s decisions whether or how to act should not constitute grounds for discipline unless the lawyer’s conduct in the light of those decisions was unreasonable under all existing circumstances as they reasonably appeared to the lawyer. This construction necessarily follows from the fact that paragraph (e) bases the lawyer’s affirmative duty to act on how the situation “reasonably appears” to the lawyer, while that imposed by paragraph (f) arises only when a lawyer “knows” that the lawyer’s services have been misused by the client. See also Rule 3.03(b). Withdrawal 21. If the lawyer’s services will be used by the client in materially furthering a course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in Rule 1.16(a)(1). After withdrawal, a lawyer’s conduct continues to be governed by Rule 1.05. The lawyer’s duties of mandatory disclosure under paragraph (e) are not affected by termination of the relationship. If disclosure during the relationship was permissive, disclosure thereafter remains permissive under paragraphs (6), (7), and (8) if the further requirements of such paragraph are met. Neither this Rule nor Rule 1.16 prevents the lawyer from giving notice of the fact of withdrawal, and no rule forbids the lawyer to withdraw or disaffirm any opinion, document, affirmation, or the like. Other Rules 22. Various other Texas Disciplinary Rules of Professional Conduct permit or require a lawyer to disclose information relating to the representation. See Rules 1.07, 1.13, 1.16, 2.02, 3.03 and 4.01. In addition to these provisions, a lawyer may be obligated by other provisions of statutes or other law to give information about a client. Whether another provision of law supersedes Rule 1.05 is a matter of interpretation beyond the scope
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of these Rules, but sub-paragraph (c)(4) protects the lawyer from discipline who acts on reasonable belief as to the effect of such laws. Permitted Disclosure or Use When the Lawyer Seeks Legal Advice 23. A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s responsibility to comply with these Rules. In most situations, disclosing or using confidential information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure or use is not impliedly authorized, subparagraph (c)(9) allows such disclosure or use because of the importance of a lawyer’s compliance with these Rules. A lawyer who receives confidential information for the purpose of rendering legal advice to another lawyer or law firm under this Rule is subject to the same rules of conduct regarding disclosure or use of confidential information received in a confidential relationship.
Rule 1.05 incorporates by reference the lawyer-client evidentiary privilege: Tex. R. Evid. 503. Lawyer-Client Privilege (a) Definitions. In this rule:
Ethics in Criminal Defense
(1) A “client” is a person, public officer, or corporation, association, or other organization or entity--whether public or private--that: (A) is rendered professional legal services by a lawyer; or (B) consults a lawyer with a view to obtaining professional legal services from the lawyer. (2) A “client’s representative” is: (A) a person who has authority to obtain professional legal services for the client or to act for the client on the legal advice rendered; or (B) any other person who, to facilitate the rendition of professional legal services to the client, makes or receives a confidential communication while acting in the scope of employment for the client. (3) A “lawyer” is a person authorized, or who the client reasonably believes is authorized, to practice law in any state or nation. (4) A “lawyer’s representative” is: (A) one employed by the lawyer to assist in the rendition of professional legal services; or (B) an accountant who is reasonably necessary for the lawyer’s rendition of professional legal services. (5) A communication is “confidential” if not intended to be disclosed to third persons other than those: (A) to whom disclosure is made to further the rendition of professional legal services to the client; or (B) reasonably necessary to transmit the communication. (b) Rules of Privilege. (1) General Rule. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to facilitate the rendition of professional legal services to the client:
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(A) between the client or the client’s representative and the client’s lawyer or the lawyer’s representative; (B) between the client’s lawyer and the lawyer’s representative; (C) by the client, the client’s representative, the client’s lawyer, or the lawyer’s representative to a lawyer representing another party in a pending action or that lawyer’s representative, if the communications concern a matter of common interest in the pending action; (D) between the client’s representatives or between the client and the client’s representative; or (E) among lawyers and their representatives representing the same client. (2) Special Rule in a Criminal Case. In a criminal case, a client has a privilege to prevent a lawyer or lawyer’s representative from disclosing any other fact that came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship. (c) Who May Claim. The privilege may be claimed by: (1) the client; (2) the client’s guardian or conservator;
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(3) a deceased client’s personal representative; or (4) the successor, trustee, or similar representative of a corporation, association, or other organization or entity--whether or not in existence. The person who was the client’s lawyer or the lawyer’s representative when the communication was made may claim the privilege on the client’s behalf—and is presumed to have authority to do so. (d) Exceptions. This privilege does not apply: (1) Furtherance of Crime or Fraud. If the lawyer’s services were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud. (2) Claimants Through Same Deceased Client. If the communication is relevant to an issue between parties claiming through the same deceased client. (3) Breach of Duty By a Lawyer or Client. If the communication is relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer. (4) Document Attested By a Lawyer. If the communication is relevant to an issue concerning an attested document to which the lawyer is an attesting witness. (5) Joint Clients. If the communication: (A) is offered in an action between clients who retained or consulted a lawyer in common; (B) was made by any of the clients to the lawyer; and (C) is relevant to a matter of common interest between the clients.
Ruel 503 includes a “Special Rule in a Criminal Case,” which—in addition to the general privilege, extends the criminal client’s privilege to “any other fact that
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came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.” How broad is this special rule? The Dallas Court of Appeals has said “not so much,” concluding that, despite the rule’s broad language, it still applies only to “communications” between counsel and client. 64 This is a tortured reading of the rule, as it ignores the fact that there is a clear distinction between the general rule that protects confidential communications and the special rule that, by its plain terms, protects “any other fact.” Nevertheless, the Court of Criminal Appeals summarily affirmed the Dallas court’s opinion in a per curiam opinion that found the court’s reasoning “to be sound” and adopted it as the Court’s own opinion. 65 Ethics in Criminal Defense
The Texarkana Court of Appeals has applied the rule in a more commonsense manner, holding that the special rule did not protect an attorney’s personal observations made while in the courtroom, as what he saw was visible to “anyone present in the courtroom that day,” and so “were not facts of which he became aware solely by reason of the attorney-client relationship.” 66 The Court of Criminal Appeals hasn’t directly spoken on this issue again. In 2007, however, the Court twice opined on the scope of the rule in dicta. First, it said that “if anything, the use of the words ‘any other fact’ … indicates the intent to provide greater, not lesser, protection to the criminally accused.”67 Second, it said that attorney work product “falls under this special rule of privilege.” 68
Manning v. State, 766 S.W.2d 551 (Tex. App.—Dallas), aff’d, 773 S.W.2d 568 (Tex. Crim. App. 1989). 64
Manning v. State, 773 S.W.2d 568, 569 (Tex. Crim. App. 1989). Interestingly, four Judges only concurred in the result and did not join the per curiam opinion, for whatever that’s worth. Id. 65
66
Kay v. State, 340 S.W.3d 470, 474–75 (Tex. App.—Texarkana 2011, no pet.).
67
Mixon v. State, 224 S.W.3d 206, 209 (Tex. Crim. App. 2007).
Cameron v. State, 241 S.W.3d 15, 19–20 (Tex. Crim. App. 2007). The Court then held that, because the defendant had called his attorney to testify, he had waived any privilege and Rule 503 did not apply, so the only issue in the case was a question of relevance under Rule 401. Id. at 20.
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One final point on confidentiality: The duty of confidentiality, unlike most duties arising from the client-lawyer relationship, attaches before the client-lawyer relationship is established. 69 Preamble: Scope 12. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. For purposes of determining the lawyer’s authority and responsibility, individual circumstances and principles of substantive law external to these rules determine whether a client-lawyer relationship may be found to exist. But there are some duties, such as of that of confidentiality, that may attach before a client-lawyer relationship has been established.
Rule 1.18. Duties to Prospective Client 70
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(a) A person who consults with a lawyer in good faith about the possibility of forming a clientlawyer relationship with respect to a matter is a prospective client. A person who communicates with a lawyer for the purpose of disqualifying the lawyer, or for some other purpose that does not include a good faith intention to seek representation by the lawyer, is not a “prospective client” within the meaning of this Rule. (b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as these Rules would permit or require with respect to a client, or if the information has become generally known or would not be significantly harmful to the former prospective client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
69 Before Rule 1.18 was promulgated in 2024, both the appellate courts and the Committee on Professional Ethics had concluded that a lawyer owes a duty of confidentiality to prospective clients. See In re Gerry, 173 S.W.3d 901 (Tex. App.—Tyler 2005, no pet.); Tex. Comm. on Professional Ethics, Op. 691 (June 2021). 70
See Supreme Court Misc. Docket No. 24-9054 (Aug. 27, 2024).
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(i) the disqualified lawyer is timely screened from any participation in the matter and is not directly apportioned any part of the fee therefrom; and (ii) written notice is promptly given to the prospective client. Comments Client-Lawyer Relationship 1. Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in a lawyer’s custody, or rely on a lawyer’s advice. A lawyer’s consultations with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further.
Ethics in Criminal Defense
2. A person becomes a prospective client by consulting with a lawyer about the possibility of forming a clientlawyer relationship with respect to a matter. A communication by a person to a lawyer does not constitute a consultation unless the lawyer, either in person or through the lawyer’s advertising, specifically requests or invites the submission of information that is not generally known about a particular potential representation. A consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a clientlawyer relationship, and is thus not a “prospective client.” 3. It is often necessary for a prospective client to reveal information to the lawyer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is willing to undertake. Paragraph (b) prohibits the lawyer from using or revealing that information, with limited exceptions, even if the client or lawyer decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be. 4. In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial consultation to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-representation exists, the lawyer should so inform the prospective client or decline the representation. 5. A lawyer may condition a consultation with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. If the agreement expressly so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client. 6. Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter. 7. Under paragraph (c), the prohibition in this Rule is imputed to other lawyers, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers are timely screened and written notice is promptly given to the prospective client. Paragraph (d)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement. 8. For the duty of competence of a lawyer who gives assistance on the merits of a matter to a prospective client, see Rule 1.01. For a lawyer’s duties when a prospective client entrusts valuables or papers to the lawyer’s care, see Rule 1.15.
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4. Advocacy The role of attorneys in the criminal justice system subjects them to fiduciary obligations to the court and the parties. … The vigorous advocacy we demand of the legal profession is accepted because it takes place under the neutral, dispassionate control of the judicial system. 71 It is axiomatic that, as an integral part of our system of government, the legal system depends on the relationship between Bench and Bar. Lawyers … owe to the courts duties of scrupulous honesty, forthrightness, and the highest degree of ethical conduct. 72 4.1. Duties to the Court Ethics in Criminal Defense
In Strickland, we recognized counsel’s duty of loyalty and his “overarching duty to advocate the defendant’s cause.” Plainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. 73 Rule 3.01. Meritorious Claims and Contentions A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous. Comments 1. The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, affects the limits within which an advocate may proceed. … However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change. 2. All judicial systems prohibit, at a minimum, the filing of frivolous or knowingly false pleadings, motions or other papers with the court or the assertion in an adjudicatory proceeding of a knowingly false claim or defense. A filing or assertion is frivolous if it is made primarily for the purpose of harassing or maliciously injuring a person. It also is frivolous if the lawyer is unable either to make a good faith argument that the
71
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1057–58 (1991) (Kennedy, J., for plurality).
72
Matter of J.B.K., 931 S.W.2d 581, 583 (Tex. App.—El Paso 1996, no writ).
73
Nix v. Whiteside, 475 U.S. 157, 166 (1986).
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action taken is consistent with existing law or that it may be supported by a good faith argument for an extension, modification[,] or reversal of existing law. 3. A filing or contention is frivolous if it contains knowingly false statements of fact. It is not frivolous, however, merely because the facts have not been first substantiated fully or because the lawyer expects to develop vital evidence only by discovery. Neither is it frivolous even though the lawyer believes that the client’s position ultimately may not prevail. In addition, this Rule does not prohibit the use of a general denial or other pleading to the extent authorized by applicable rules of practice or procedure. Likewise, a lawyer for a defendant in any criminal proceeding or for the respondent in a proceeding that could result in commitment may so defend the proceeding as to require that every element of the case be established.
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Comment 3 articulates the constitutional tie-breaker for the criminal defense lawyer—at least through trial. 74 Because the State bears the burden of proof in a criminal case, and that burden may not be shifted to the defendant, 75 a criminal defense lawyer will not violate Rule 3.01 by holding the State to its burden, no Ethics in Criminal Defense
matter how strong the prosecution’s evidence may be. This tie-breaker is not unlimited, however. For example, it does not allow defense counsel to file wholly meritless pleadings solely for purposes of delay. In one case, counsel admitted on the record that he had “filed a motion to quash that, in his opinion, had no merit whatsoever,” in order “to facilitate an appeal” that he believed would “take a year or two. 76“ He did this “to delay imposition of appellant’s sentence to allow [the defendant], a professional truck driver, to see if anything could be done to prevent him from losing his commercial driver’s license as a result of the conviction.” While the court of appeals determined that that counsel was not ineffective, it criticized counsel’s conduct as “an abuse of the legal process” that “violate[d] the spirit and letter of disciplinary rule 3.01,” and the court referred the matter to the State Bar’s Office of General Counsel. 77
See McCoy v. Ct. of Appeals of Wis., 486 U.S. 429, 436 (1988) (noting that a convicted defendant has lost the presumption of innocence, and that while “trial counsel may remain silent and force the prosecutor to prove every element of the offense, counsel for an appellant cannot serve the client’s interest without asserting specific grounds for reversal”).
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75
Sandstrom v. Montana, 442 U.S. 510, 524 (1979).
76
Ex parte Lafon, 977 S.W.2d 865, 837 (Tex. App.—Dallas 1998, no pet.).
77
Id.
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Rule 3.03. Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; 78 (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; 79 or (5) offer or use evidence that the lawyer knows to be false. (b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.
Ethics in Criminal Defense
(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible. Comments 1. The advocate’s task is to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate’s duty of candor to the tribunal. Factual Representations by a Lawyer 2. An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. Compare Rule 3.01. However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or a representation of fact in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. … Misleading Legal Argument 3. Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but should recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(4), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.
78 See Sherman v. State, 12 S.W.3d 489 (Tex. App.—Dallas 1999, no pet.) (noting that since attorney had filed substantively defective notice of appeal on the same day she filed her brief, she necessarily had to have read the record and therefore knew that the conditions precedent to a valid appeal did not exist).
Johnson v. Lumpkin, 76 F.4th 1037 (5th Cir. 2023) (noting failure of counsel to cite binding precedents, even though same counsel had “raised the exact same arguments just three years ago”). 79
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Ex Parte Proceedings 4. Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of unprivileged material facts known to the lawyer if the lawyer reasonably believes the tribunal will not reach a just decision unless informed of those facts. Anticipated False Evidence 5. On occasion a lawyer may be asked to place into evidence testimony or other material that the lawyer knows to be false. Initially in such situations, a lawyer should urge the client or other person involved to not offer false or fabricated evidence. However, whether such evidence is provided by the client or by another person, the lawyer must refuse to offer it, regardless of the client’s wishes. As to a lawyer’s right to refuse to offer testimony or other evidence that the lawyer believes is false, see paragraph 15 of this Comment.
Ethics in Criminal Defense
6. If the request to place false testimony or other material into evidence came from the lawyer’s client, the lawyer also would be justified in seeking to withdraw from the case. See Rules 1.16(a)(1) and (b)(2), (4). If withdrawal is allowed by the tribunal, the lawyer may be authorized under Rule 1.05(c)(7) to reveal the reasons for that withdrawal to any other lawyer subsequently retained by the client in the matter; but normally that rule would not allow the lawyer to reveal that information to another person or to the tribunal. If the lawyer either chooses not to withdraw or is not allowed to do so by the tribunal, the lawyer should again urge the client not to offer false testimony or other evidence and advise the client of the steps the lawyer will take if such false evidence is offered. Even though the lawyer does not receive satisfactory assurances that the client or other witness will testify truthfully as to a particular matter, the lawyer may use that person as a witness as to other matters that the lawyer believes will not result in perjured testimony. Past False Evidence 7. It is possible, however, that a lawyer will place testimony or other material into evidence and only later learn of its falsity. When such testimony or other evidence is offered by the client, problems arise between the lawyer’s duty to keep the client’s revelations confidential and the lawyer’s duty of candor to the tribunal. Under this Rule, upon ascertaining that material testimony or other evidence is false, the lawyer must first seek to persuade the client to correct the false testimony or to withdraw the false evidence. If the persuasion is ineffective, the lawyer must take additional remedial measures.
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Perjury by a Criminal Defendant 9. Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that in such cases, as in others, the lawyer should seek to persuade the client to refrain from suborning or offering perjurious testimony or other false evidence, there has been dispute concerning the lawyer’s duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available. 10. The proper resolution of the lawyer’s dilemma in criminal cases is complicated by two considerations. The first is the substantial penalties that a criminal accused will face upon conviction, and the lawyer’s resulting reluctance to impair any defenses the accused wishes to offer on his own behalf having any possible basis in fact. The second is the right of a defendant to take the stand should he so desire, even over the objections of the lawyer. Consequently, in any criminal case where the accused either insists on testifying when the lawyer knows that the testimony is perjurious or else surprises the lawyer with such testimony at trial, the lawyer’s effort to rectify the situation can increase the likelihood of the client’s being convicted as well as opening the
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possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court. 11. Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer’s questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This solution, however, makes the advocate a knowing instrument of perjury. 12. The other resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take a reasonable remedial measure which may include revealing the client’s perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. False Evidence Not Introduced by the Lawyer
Ethics in Criminal Defense
13. A lawyer may have introduced the testimony of a client or other witness who testified truthfully under direct examination but who offered false testimony or other evidence during examination by another party. Although the lawyer should urge that the false evidence be corrected or withdrawn, the full range of obligation imposed by paragraphs (a)(5) and (b) of this Rule do not apply to such situations. A subsequent use of that false testimony or other evidence by the lawyer in support of the client’s case, however, would violate paragraph (a)(5). Duration of Obligation 14. The time limit on the obligation to rectify the presentation of false testimony or other evidence varies from case to case but continues as long as there is a reasonable possibility of taking corrective legal actions before a tribunal. Refusing to Offer Proof Believed to be False 15. A lawyer may refuse to offer evidence that the lawyer reasonably believes is untrustworthy, even if the lawyer does not know that the evidence is false. That discretion should be exercised cautiously, however, in order not to impair the legitimate interests of the client. Where a client wishes to have such suspect evidence introduced, generally the lawyer should do so and allow the finder of fact to assess its probative value. A lawyer’s obligations under paragraphs (a)(2), (a)(5) and (b) of this Rule are not triggered by the introduction of testimony or other evidence that is believed by the lawyer to be false, but not known to be so.
Tex. Code Crim. Proc. art. 1.052. Signed Pleadings of Defendant (a) A pleading, motion, and other paper filed for or on behalf of a defendant represented by an attorney must be signed by at least one attorney of record in the attorney’s name and state the attorney’s address. A defendant who is not represented by an attorney must sign any pleading, motion, or other paper filed for or on the defendant’s behalf and state the defendant’s address. (b) The signature of an attorney or a defendant constitutes a certificate by the attorney or defendant that the person has read the pleading, motion, or other paper and that to the best of the person’s knowledge, information, and belief formed after reasonable inquiry that the instrument is not groundless and brought in bad faith or groundless and brought for harassment, unnecessary delay, or other improper purpose. *
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(f) A court shall presume that a pleading, motion, or other paper is filed in good faith. Sanctions under this article may not be imposed except for good cause stated in the sanction order. (g) A plea of “not guilty” or “no contest” or “nolo contendere” does not constitute a violation of this article. An allegation that an event took place or occurred on or about a particular date does not constitute a violation of this article. (h) In this article, “groundless” means without basis in law or fact and not warranted by a good faith argument for the extension, modification, or reversal of existing law.
The truth-seeking nature of trial means that while defense counsel may hold the State to its burden, counsel may not misrepresent either the facts or the law to a court. 80 This duty of candor to the tribunal prohibits an attorney from:
Ethics in Criminal Defense
1) making false statements of material fact or law to the court, 2) failing to disclose a fact to the court when disclosure is necessary to avoid assisting a criminal or fraudulent act, 3) failing to disclose to the court in an ex parte proceeding any unprivileged fact that the court would need to make an informed decision, 4) failing to disclose controlling adverse authority, and 5) offering or using evidence the lawyer knows to be false. Particularly in criminal cases, the duty of candor to the court will sometimes appear to conflict with the duty of client confidentiality. The exceptions to the duty of confidentiality in Rule 1.05 make clear that when these apparent conflicts arise, the lawyer’s public duty to the court must prevail. I say “apparent conflict” because Rule 1.05 makes clear that if one of the exceptions apply, the lawyer is “permitted”
to
reveal
confidential
information—meaning
no
duty
of
confidentiality exists. 81 The duty not to offer or use false evidence is one of the most complex for a criminal lawyer. One the one hand, the Supreme Court has clearly settled one See Bond v. State, 176 S.W.3d 397, 401–02 n.3 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (excoriating appellate counsel for having “misrepresented the facts, distorted the record, and falsely accused the trial court of highly unprofessional and unethical conduct”).
80
See Tex. Comm. on Professional Ethics, Op. 473 (1992) (“the answer is clear” that disclosure is required when “necessary to avoid assisting a criminal or fraudulent act”). 81
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conflict arising from this duty: The constitutional right to counsel does not require an attorney to cooperate with a defendant in presenting perjured testimony at trial. 82 On the other hand, more than two-thirds of the comments to Rule 3.03 (comments 5–15) deal with false evidence, thereby acknowledging that many conflicts may still arise. 83 The comments address these conflicts within several dichotomies of false evidence: 1) evidence known to be false vs. evidence believed to be false, 2) evidence not yet offered vs. evidence already offered, and 3) evidence offered by a witness vs. evidence offered by the client. 1. A lawyer has an absolute duty not to offer or use evidence he knows to be Ethics in Criminal Defense
false, while he retains discretion whether to refuse to offer evidence that he merely reasonably believes to be untrustworthy. 84 In the latter situation, the comments resolve any conflict in favor of the “legitimate interests of the client,” and recommend that the lawyer “allow the finder of fact to assess [the] probative value” of the “suspect evidence.” 85 2. When a lawyer is asked to offer false evidence, but the lawyer has not yet offered it, the lawyer should first “urge the client or other person involved to not offer false or fabricated evidence.” 86 If push comes to shove, however, the lawyer must refuse to offer known false evidence, regardless of the client’s wishes. 87 The
82
Nix v. Whiteside, 475 U.S. 157, 172 (1986).
See also Nix, 475 U.S. at 177 (Brennan, J., concurring) (“the Court’s essay regarding what constitutes the correct response to a criminal client’s suggestion that he will perjure himself is pure discourse without force of law. … [T]hat issue is a thorny one … but it is not an issue presented by this case. Lawyers, judges, bar associations, students, and others should understand that the problem has not now been ‘decided.’”). 83
84
Compare comment 5 with comment 15.
85
Comment 15.
86
Comment 5.
87
Id.; see also Tex. Comm. on Professional Ethics, Op. 405 (1983).
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lawyer may also move to withdraw from the case. 88 The trial court has broad discretion, however, in deciding whether withdrawal is appropriate, especially if counsel has other ethical options available. 89 When a lawyer has already offered evidence and then learns that it is false, the rule requires that he “make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence.” 90 Then, if “such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.” 91 Even if the perjury comes from the client— who in a criminal case could suffer very real consequences from his attorney’s revelation—the Rule requires the lawyer to “take reasonable remedial measure Ethics in Criminal Defense
which may include revealing the client’s perjury.” 92 To allow otherwise would “make[] the advocate a knowing instrument of perjury.” 93 3. If anticipated false evidence would come from a witness other than the client, the lawyer may comply with his ethical duties without resorting to withdrawal, because the lawyer retains the prerogative, as a matter of trial strategy, to decide which witnesses to call. 94 Conversely, if it is the client who wishes to testify and do so falsely, the lawyer must abide by the client’s wishes. 95 Because the client’s constitutional right to testify does not include the right to testify falsely, 96 however, the lawyer retains the equal duty of taking reasonable
292
88
Comment 6.
89
Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d).
90
Rule 3.03(b).
91
Id.
92
Comment 12.
93
Comment 11.
94
Weisinger, 775 S.W.2d at 427.
95
See Rule 1.02(a)(3).
96
Nix v. Whiteside, 475 U.S. 157, 173 (1986).
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remedial measures. 97 Accordingly, it is possible that a lawyer may ethically refuse to call a client if the lawyer knows that the entirety of the client’s testimony would be false. 98 The lawyer must be cautious, however, because this conflict arises only when the lawyer knows—rather than merely believes—that the client is committing perjury. 99 Rule 3.05. Maintaining Impartiality of Tribunal A lawyer shall not: (a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;
Ethics in Criminal Defense
(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than: (1) in the course of official proceedings in the cause; (2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer; (3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer. (c) For purposes of this rule: (1) Matter has the meanings ascribed by it in Rule 1.11(f) of these Rules; (2) A matter is pending before a particular tribunal either when that entity has been selected to determine the matter or when it is reasonably foreseeable that that entity will be so selected. Comments Undue Influence 1. Many forms of improper influence upon tribunals are proscribed by criminal law or by applicable rules of practice or procedure. Others are specified in the Texas Code of Judicial Conduct. A lawyer is required to be familiar with, and to avoid contributing to a violation of, all such provisions. See also Rule 3.06.
*
97
*
*
Comment 12.
98 See United States v. Curtis, 742 F.2d 1070, 1075–76 (7th Cir. 1984) (holding that counsel’s refusal to call client who would have testified falsely “cannot be said to have violated [his] constitutional rights,” but also expressly declining to address “[w]hether counsel’s response to the situation conformed to professional standards”). 99
Comment 15.
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Ex Parte Contacts 3. Historically, ex parte contacts between a lawyer and a tribunal have been subjected to stringent control because of the potential for abuse such contacts present. For example, Canon 3A(4) of the Texas Code of Judicial Conduct prohibits many ex parte contacts with judicial officials. A lawyer in turn violates Rule 8.04(a)(6) by communicating with such an official in a manner that causes that official to violate Canon 3A(4). This rule maintains that traditional posture towards ex parte communications ….
*
*
*
5. For limitations on the circumstances and the manner in which lawyers may communicate or cause another to communicate with veniremen or jurors, see Rule 3.06.
Lawyers should not attempt, or encourage, ex parte communications with judges 100 or their staff. 101 Ever.
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Ex parte communications are prohibited because they are inconsistent with the right of every litigant to be heard and with maintaining an impartial judiciary. When a judge takes the side of one party, whether expressly or implicitly, the court creates an additional opponent in the courtroom for the other litigant. 102 In one recent case, an attorney (who is also a state representative) privately texted a Judge on the Court of Criminal Appeals, encouraging her to grant habeas relief in a high-profile case. 103 The Judge notified the Court’s General Counsel, who in turn notified the parties of the communication and informed everyone that “This Court sees this communication as a clear violation of Texas Disciplinary Rule of Professional Conduct 3.05.”104
See Ex parte Stephens, 664 S.W.3d 293, 301 (Tex. Crim. App. 2022) (Slaughter, J., dissenting from denial of rehearing) (noting that the Texas Attorney General and amici had “spurred hundreds, if not thousands, of individuals from across this state and other states to engage in attempts at impermissible ex parte communications with the Court”). 100
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101
Matter of J.B.K., 931 S.W.2d 581, 583–84 (Tex. App.—El Paso 1996, no writ).
102
Abdygapparova v. State, 243 S.W.3d 191, 208 (Tex. App.—San Antonio 2007, pet. ref’d).
103
Ex parte Roberson, No. WR-63,081-04 (Oct. 25, 2024, Letter).
104
Id.
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4.2. Duty of Fairness Rule 3.04. Fairness in Adjudicatory Proceedings A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act. (b) falsify evidence, counsel or assist a witness to testify falsely, or pay, offer to pay, or acquiesce in the offer or payment of compensation to a witness or other entity contingent upon the content of the testimony of the witness or the outcome of the case. But a lawyer may advance, guarantee, or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying; (2) reasonable compensation to a witness for his loss of time in attending or testifying; (3) a reasonable fee for the professional services of an expert witness.
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(c) except as stated in paragraph (d), in representing a client before a tribunal: (1) habitually violate an established rule of procedure or of evidence; (2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness; (3) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, except that a lawyer may argue on his analysis of the evidence and other permissible considerations for any position or conclusion with respect to the matters stated herein; (4) ask any question intended to degrade a witness or other person except where the lawyer reasonably believes that the question will lead to relevant and admissible evidence; or (5) engage in conduct intended to disrupt the proceedings. (d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules of or a ruling by a tribunal except for an open refusal based either on an assertion that no valid obligation exists or on the client’s willingness to accept any sanctions arising from such disobedience. (e) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information. Comments 1. The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedures, and the like.
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2. Documents and other evidence are often essential to establish a claim or defense. The right of a party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions, including Texas, makes it an offense to destroy material for the purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. See Texas Penal Code, §§ 37.09(a)(1), 37.10(a)(3). See also 18 U.S.C. §§ 1501-1515. Falsifying evidence is also generally a criminal offense. Id. §§ 37.09(a)(2), 37.10(a)(1), (2). Paragraph (a) of this Rule applies to evidentiary material generally, including computerized information. 3. Paragraph (c)(1) subjects a lawyer to discipline only for habitual abuses of procedural or evidentiary rules, including those relating to the discovery process. That position was adopted in order to employ the superior ability of the presiding tribunal to assess the merits of such disputes and to avoid inappropriate resort to disciplinary proceedings as a means of furthering tactical litigation objectives. A lawyer in good conscience should not engage in even a single intentional violation of those rules, however, and a lawyer may be subject to judicial sanctions for doing so. 4. Paragraph (c) restates the traditional Texas position regarding the proper role of argument and comment in litigation. The obligations imposed by that paragraph to avoid seeking to influence the outcome of a matter by introducing irrelevant or improper considerations into the deliberative process are important aspects of a lawyer’s duty to maintain the fairness and impartiality of adjudicatory proceedings.
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5. By the same token, the advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from abusive or disruptive conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a tribunal but should avoid reciprocation. 6. Paragraph (d) prohibits the practice of a lawyer not disclosing a client’s actual or intended noncompliance with a standing rule or particular ruling of an adjudicatory body or official to other concerned entities. It provides instead that a lawyer must openly acknowledge the client’s noncompliance. 7. Paragraph (d) also prohibits a lawyer from disobeying, or advising a client to disobey, any such obligations unless either of two circumstances exists. The first is the lawyer’s open refusal based on an assertion that no valid obligation exists. In order to assure due regard for formal rulings and standing rules of practice or procedure, the lawyer’s assertion in this regard should be based on a reasonable belief. The second circumstance is that a lawyer may acquiesce in a client’s position that the sanctions arising from noncompliance are preferable to the costs of compliance. This situation can arise in criminal cases, for example, where the court orders disclosure of the identity of an informant to the defendant and the government decides that it would prefer to allow the case to be dismissed rather than to make that disclosure. A lawyer should consult with a client about the likely consequences of any such act of disobedience should the client appear to be inclined to pursue that course; but the final decision in that regard rests with the client.
Rule 3.04 works in conjunction with many other rules, and the duties of fairness can conflict with other duties—particularly the duty of confidentiality. 105 Such a conflict arises when the client gives evidence to the lawyer that the lawyer is dutybound to disclose. One resolution to this conflict is that when defense counsel, in accordance with the Rules, reveals information detrimental to the client, it may
105
296
Henderson v. State, 962 S.W.2d 544, 555 (Tex. Crim. App. 1997).
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not be revealed to the jury that it was the defendant’s attorney who provided the information. 106 The Texas Committee on Professional Ethics has recently weighed in on this issue. The Committee addressed a situation in which: A lawyer represents a client who is in jail awaiting trial in a felony domestic violence case. While in jail, the defendant receives several letters from a victim in the case that contain relevant information. The defendant gives those letters to the lawyer, who takes the letters to his office for safekeeping. The lawyer does not reveal the existence of the letters until trial. The prosecuting attorney informally asks to inspect the letters, but the lawyer refuses. The lawyer continues to refuse to allow inspection of the letters until ordered to do so by the court after a hearing. 107
After a thorough discussion of Rule 3.04(a), consideration of current criminal discovery procedures, and case law from other jurisdictions, the Committee Ethics in Criminal Defense
concluded that: A lawyer who elects to take possession of tangible evidence from a client in a criminal matter may not conceal that evidence from a prosecuting attorney or obstruct access to that evidence if doing so would be “unlawful.” A lawyer’s conduct with regard to potentially relevant evidence is unlawful if it is prohibited by statute, court order, or Mandatory Disclosure Obligation, as defined above. In general, however, a Texas lawyer is not required to disclose ordinary tangible evidence in a criminal matter in the absence of a court order or agreement. The common law may impose a self-executing obligation of disclosure if a lawyer takes possession of Special Criminal Evidence, such as contraband, instrumentalities of a crime, or fruits of a crime. The precise scope of such an obligation is a question of substantive Texas law to be addressed by the courts. The failure to comply with a judicially recognized obligation of disclosure would be considered “unlawful” and would violate Rule 3.04(a). Under the facts stated in this opinion, a lawyer who obtains ordinary tangible evidence from an incarcerated client does not violate the Texas Disciplinary Rules of Professional Conduct by refusing to produce the evidence to the prosecuting attorney until ordered to do so. A lawyer is under no obligation to accept tangible evidence from a client charged with a crime. Assuming the lawyer does not believe the client will destroy the evidence if the lawyer refuses to accept it, and counsels the client regarding evidence preservation, the most prudent course may be to decline a client’s request to accept custody of evidence related to an alleged crime. 108 106
Id. at 555–58; Sanford v. State, 21 S.W.3d 337, 342–44 (Tex. App.—El Paso 2000, no pet.).
107
Tex. Comm. on Professional Ethics, Op. 690 (Oct. 2020).
108
Id.
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4.3. Duties to Jurors and Third Persons Rule 3.06. Maintaining Integrity of Jury System (a) A lawyer shall not: (1) conduct or cause another, by financial support or otherwise, to conduct a vexatious or harassing investigation of a venireman or juror; or (2) seek to influence a venireman or juror concerning the merits of a pending matter by means prohibited by law or applicable rules of practice or procedure. (b) Prior to discharge of the jury from further consideration of a matter, a lawyer connected therewith shall not communicate with or cause another to communicate with anyone he knows to be a member of the venire from which the jury will be selected or any juror or alternate juror, except in the course of official proceedings. (c) During the trial of a case, a lawyer not connected therewith shall not communicate with or cause another to communicate with a juror or alternate juror concerning the matter.
Ethics in Criminal Defense
(d) After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service. (e) All restrictions imposed by this Rule upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror. (f) A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge. (g) As used in this Rule, the terms “matter” and “pending” have the meanings specified in Rule 3.05(c). Comments 1. To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with veniremen prior to trial or with jurors during trial or on behalf of a lawyer connected with the case. Furthermore, a lawyer who is not connected with the case should not communicate with or cause another to communicate with a venireman or a juror about the case. After the trial, communication by a lawyer with jurors is not prohibited by this Rule so long as he refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases. Contacts with discharged jurors, however, are governed by procedural rules the violation of which could subject a lawyer to discipline under Rule 3.04. When an extrajudicial communication by a lawyer with a juror is permitted by law, it should be made considerately and with deference to the personal feelings of the juror. 2. Vexatious or harassing investigations of jurors seriously impair the effectiveness of our jury system. For this reason, a lawyer or anyone on his behalf who conducts an investigation of veniremen or jurors should act with circumspection and restraint. 3. Communications with or investigations of members of families of veniremen or jurors by a lawyer or by anyone on his behalf are subject to the restrictions imposed upon the lawyer with respect to his communications with or investigations of veniremen and jurors. 4. Because of the extremely serious nature of any actions that threaten the integrity of the jury system, a lawyer who learns of improper conduct by or towards a venireman, a juror, or a member of the family of either
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should make a prompt report to the court regarding such conduct. If such improper actions were taken by or on behalf of a lawyer, either the reporting lawyer or the court normally should initiate appropriate disciplinary proceedings. See Rules 1.05, 8.03, 8.04.
Rule 3.06 is not limited to seated and sworn jurors; it protects both veniremen and jurors. After trial, counsel seeking to investigate grounds for a motion for new trial or a writ of habeas corpus should be mindful of this rule before reaching out—or having an investigator reach out—to now-discharged jurors who served on the case. 109 Tex. Code Crim. Proc. art. 35.29. Personal Information About Jurors
Ethics in Criminal Defense
(a) Except as provided by Subsections (b) and (c), information collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror’s home address, home telephone number, social security number, driver’s license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel. (b) On application by a party in the trial, or on application by a bona fide member of the news media acting in such capacity, to the court for the disclosure of information described by Subsection (a), the court shall, on a showing of good cause, permit disclosure of the information sought. (c) The defense counsel may disclose information described by Subsection (a) to successor counsel representing the same defendant in a proceeding under Article 11.071 without application to the court or a showing of good cause.
Neither the State nor defense counsel should seek to obtain personal information about jurors without “good cause,” which must have a firm foundation and must be based on sworn testimony or other sufficient supportive evidence in the record. 110
See Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437–442 (Tex. 1998) (finding that Rule 3.06(d)’s prohibition on speech calculated to “harass” or “influence,” when properly construed, do not violate the First Amendment, but that the “embarrass” provision is unconstitutionally vague).
109
See Taylor v. State, 461 S.W.3d 223, 230–31 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d); see also Brown v. State, No. 02-22-00190-CR, 2023 WL 4779490, at *9 (Tex. App.—Fort Worth July 27, 2023, no pet.) (good cause requirement applies to the State as well as defense, but violation in improperly releasing information to the State is not reversible error on appeal). 110
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Rule 4.01. Truthfulness in Statements to Others In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client. Comments False Statements of Fact 1. Paragraph (a) of this Rule refers to statements of material fact. Whether a particular statement should be regarded as one of material fact can depend on the circumstances. For example, certain types of statements ordinarily are not taken as statements of material fact because they are viewed as matters of opinion or conjecture. Estimates of price or value placed on the subject of a transaction are in this category. Similarly, under generally accepted conventions in negotiation, a party’s supposed intentions as to an acceptable settlement of a claim may be viewed merely as negotiating positions rather than as accurate representation of material fact. ….
Ethics in Criminal Defense
2. A lawyer violates paragraph (a) of this Rule either by making a false statement of law or material fact or by incorporating or affirming such a statement made by another person. Such statements will violate this Rule, however, only if the lawyer knows they are false and intends thereby to mislead. As to a lawyer’s duty to decline or terminate representation in such situations, see Rule 1.16. Failure to Disclose a Material Fact 3. Paragraph (b) of this Rule also relates only to failures to disclose material facts. Generally, in the course of representing a client a lawyer has no duty to inform a third person of relevant or material facts, except as required by law or by applicable rules of practice or procedure, such as formal discovery. However, a lawyer must not allow fidelity to a client to become a vehicle for a criminal act or a fraud being perpetrated by that client. Consequently a lawyer must disclose a material fact to a third party if the lawyer knows that the client is perpetrating a crime or a fraud and the lawyer knows that disclosure is necessary to prevent the lawyer from becoming a party to that crime or fraud. Failure to disclose under such circumstances is misconduct only if the lawyer intends thereby to mislead. 4. When a lawyer discovers that a client has committed a criminal or fraudulent act in the course of which the lawyer’s services have been used, or that the client is committing or intends to commit any criminal or fraudulent act, other of these Rules require the lawyer to urge the client to take appropriate action. See Rules 1.02(d), (e), (f); 3.03(b). Since the disclosures called for by paragraph (b) of this Rule will be “necessary” only if the lawyer’s attempts to counsel his client not to commit the crime or fraud are unsuccessful, a lawyer is not authorized to make them without having first undertaken those other remedial actions. See also Rule 1.05. Fraud by a Client 5. A lawyer should never knowingly assist a client in the commission of a criminal act or a fraudulent act. See Rule 1.02(c). 6. This rule governs a lawyer’s conduct during “the course of representing a client.” If the lawyer has terminated representation prior to learning of a client’s intention to commit a criminal or fraudulent act, paragraph (b) of this Rule does not apply. See “Fraud” under TERMINOLOGY.
Defense lawyers may be tempted to engage in deception in order to “investigate” their clients’ cases. Don’t do it. Not only will such conduct violate Rule 4.01, quite often it will be illegal. For example, in one notable case from another jurisdiction,
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a defense lawyer was properly convicted of attempted possession of marijuana even though his intent in arranging the illegal drug buy from a state witness was to defend his client. 111 4.4. Dealing with Prosecutors The Court of Criminal Appeals has said: Prosecutors are still subject to the Rules of Professional Responsibility … a prosecutor who violates ethical rules is subject to the disciplining authority of the State Bar like any other attorney. Perhaps even more importantly … his violation of the rules will subject his cases to reversal on appeal when his unprofessional conduct results in a denial of due process to a defendant. 112 Ethics in Criminal Defense
But the Court has also clarified: The rules do not grant a defendant standing or some “systemic” right to complain about an opposing party’s alleged disciplinary rule violations that do not result in “actual prejudice” to the defendant. The rules should not be used as a tactical weapon to disqualify opposing counsel for their alleged disciplinary rule violations or to obtain a reversal of a conviction for alleged disciplinary rule violations by opposing counsel unless the defendant can show the alleged disciplinary rule violations by opposing counsel deprived him of a fair trial or otherwise affected his substantial rights. Based on the foregoing, it is unnecessary in cases like this to decide whether the State violated Rule 3.08. This is because if a defendant cannot show actual prejudice from an alleged disciplinary rule violation by the State, then he will not be entitled to relief on appeal. If a defendant can make the necessary showing of actual prejudice, then he will be entitled to relief on appeal. In either situation, it is unnecessary for trial and appellate courts to decide whether the State’s conduct violated a disciplinary rule. That is the domain of the State Bar. 113 111
Schalk v. State, 943 N.E.2d 427 (Ind. Ct. App. 2011).
112
State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 7 (Tex. Crim. App. 1990).
113
House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997) (cleaned up).
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Simply put: The Court leaves run-of-the-mill prosecutor misconduct to the disciplinary process of the State Bar. Because the Commission for Lawyer Discipline is part of the judicial branch, disciplinary proceedings against executive officials for the exercise of executive functions—such as a first assistant attorney general’s decision to file a lawsuit— violates the constitutional separation of powers. 114 Prosecutors, however, are officers in the judicial department. 115 Discipline of prosecutors, therefore, should pose no constitutional problems in Texas. Bar grievances against prosecutors have historically been “fairly uncommon” in Texas. 116 Such “underreporting” can have a variety of causes, but primarily it is Ethics in Criminal Defense
because “those in the best position to report misconduct namely, judges, other prosecutors, defense attorneys, and defendants—have strategic and political disincentives to do so.”117 In recent years, the Bar has noted that grievances against prosecutors have become “common.” 118 The exoneration of Michael Morton, along with the subsequent legislation bearing his name, has brought increased public attention to the problem of prosecutor misconduct in Texas. 119
114
Webster v. Comm’n for Lawyer Discipline, 704 S.W.3d 478 (Tex. 2024).
State v. Stephens, 663 S.W.3d 45, 48 (Tex. Crim. App. 2021); Saldano v. State, 70 S.W.3d 873, 876 (Tex. Crim. App. 2002); Tex. Const. art. V, § 21.
115
Laura Bayouth Popps, Prosecutorial Misconduct and the Role of Discipline Examining the Intersection Between Error and Ethics, 80 Tex. B.J. 430 (2017).
116
Id. (citing David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale Law Journal (2011)). 117
Id. (citing six disciplinary cases between 2013 and 2016 that resulted in sanctions against prosecutors).
118
119
302
Id.
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4.5. Prosecutors’ Discovery Obligations
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In Brady, this Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence. Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Moreover, the rule encompasses evidence “known only to police investigators and not to the prosecutor.” In order to comply with Brady, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.” 120 Prosecutors’ ethical duties with respect to favorable evidence are broader than their constitutional disclosure duties under Brady and its progeny. Rule 3.04. Fairness in Adjudicatory Proceedings A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act. *
*
*
Rule 3.09. Special Responsibilities of a Prosecutor 121 The prosecutor in a criminal case shall: (a) refrain from prosecuting or threatening to prosecute a charge that the prosecutor knows is not supported by probable cause;
120 Strickler v. Greene, 527 U.S. 263, 280–81 (1999) (cleaned up) (citing Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995)).
This rule was substantially modified in 2024, including the addition of subsections (f)–(h), modification of comment 1, and the addition of comments 7 and 8. See Supreme Court Misc. Docket No. 24-9054 (Aug. 27, 2024). 121
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(b) refrain from conducting or assisting in a custodial interrogation of an accused unless the prosecutor has made reasonable efforts to be assured that the accused has been advised of any right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; and (e) exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07. (f) When a prosecutor knows of new and credible information creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted, the prosecutor shall, unless a court authorizes delay, (1) if the conviction was obtained in the prosecutor’s jurisdiction:
Ethics in Criminal Defense
(i) promptly disclose that information to: (A) the defendant; (B) the defendant’s counsel, or if there is none, the indigent defense appointing authority in the jurisdiction, if one exists; (C) the tribunal in which the defendant’s conviction was obtained; and (D) a statewide entity that examines and litigates claims of actual innocence. (ii) if the defendant is not represented by counsel, or if unable to determine whether the defendant is represented by counsel, move the court in which the defendant was convicted to determine whether the defendant is indigent and thus entitled to the appointment of counsel. (iii) cooperate with the defendant’s counsel by providing all new information known to the prosecutor as required by the relevant law governing criminal discovery. (2) if the conviction was obtained in another jurisdiction, promptly disclose that information to the appropriate prosecutor in the jurisdiction where the conviction was obtained. (g) A prosecutor who concludes in good faith that information is not subject to disclosure under paragraph (f) does not violate this rule even if the prosecutor’s conclusion is subsequently determined to be erroneous. (h) In paragraph (f), unless the context indicates otherwise, “jurisdiction” means the legal authority to represent the government in criminal matters before the tribunal in which the defendant was convicted. Comments Source and Scope of Obligations 1. A prosecutor has the responsibility to see that justice is done, and not simply to be an advocate. A prosecutor should not initiate or exploit any violation of a suspect’s right to counsel, nor should he initiate or encourage efforts to obtain waivers of important pretrial, trial, or post-trial rights from unrepresented
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persons. A prosecutor is obliged by this rule to take reasonable measures to see that persons employed or controlled by him refrain from making extrajudicial statements that are prejudicial to the accused. … Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.04. In many instances, it may be appropriate for a prosecutor to inform his or her supervisor about information related to the duties set down by this Rule.
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4. Paragraph (c) does not apply to any person who has knowingly, intelligently and voluntarily waived the rights referred to therein in open court, nor does it apply to any person appearing pro se with the approval of the tribunal. Finally, that paragraph does not forbid a prosecutor from advising an unrepresented accused who has not stated he wishes to retain a lawyer and who is not entitled to appointed counsel and who has indicated in open court that he wishes to plead guilty to charges against him of his pre-trial, trial and posttrial rights, provided that the advice given is accurate; that it is undertaken with the knowledge and approval of the court; and that such a practice is not otherwise prohibited by law or applicable rules of practice or procedure. 5. The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest.
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7. Consistent with Rule 4.02(a), where a defendant is represented by counsel with respect to the matter at issue, prosecutors would satisfy their obligation to notify the defendant by notifying the defendant’s counsel. 8. The prosecutor’s disclosure obligations under paragraph (f) are commensurate with those created by other law.
As Laura Bayouth Popps has written: The purpose of the Brady decision was the “avoidance of an unfair trial to the accused,” not punishment for the misdeeds of a prosecutor. The aim of attorney discipline is inherently different. Whereas Brady is primarily focused on the potential harm to the defendant resulting from nondisclosure, Rule 3.09(d) considers the prosecutor’s behavior and intentions--whether he or she is abiding by his or her duty to seek justice and protect the integrity of the process. The ethics rules set a higher level of conduct to which a prosecutor must adhere, not the minimal acceptable standard of behavior necessary to avoid a due process violation. 122 Thus, Rule 3.09(d) is broader than Brady, and a prosecutor may be disciplined for knowingly failing to disclose evidence even if the evidence was not subject to
Laura Bayouth Popps, Prosecutorial Misconduct and the Role of Discipline Examining the Intersection Between Error and Ethics, 80 Tex. B.J. 430 (2017). 122
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disclosure under Brady’s “materiality” standard. 123 And, of course, a prosecutor may be disciplined under Rule 3.09(d) for failing to disclose exculpatory evidence. 124 Tex. Code Crim. Proc. art. 2A.101. General Duties of Attorneys Representing State (a) The primary duty of an attorney representing the state, including a special prosecutor, is not to convict but to see that justice is done. (b) An attorney representing the state, including a special prosecutor, may not suppress facts or conceal witnesses capable of establishing the innocence of the defendant.
Tex. Code Crim. Proc. art. 39.14. Discovery
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(a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state. (b) On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party. (c) If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. 123 Schultz v. Comm’n for Lawyer Discipline, No. 55649, 2015 WL 9855916 (Texas Bd. Disp. App. Dec. 17, 2015).
Sebesta v. Comm’n for Lawyer Discipline, No. 56406, 2016 WL 827324 (Texas Bd. Disp. App. Feb. 8, 2016). 124
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The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law. (d) In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but is not required to allow electronic duplication as described by Subsection (a). (e) Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless: (1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or (2) the documents, evidence, materials, or witness statements have already been publicly disclosed. 125
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(f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this article, the defendant may not be the agent for the attorney representing the defendant. 126 (g) Nothing in this article shall be interpreted to limit an attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver’s license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint. (h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged. (h-1) In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code. Notwithstanding any other provision of this article, if the state intends to use at a defendant’s trial testimony of a person to whom the defendant made a statement against the defendant’s interest while the person was imprisoned or confined in the same correctional facility as the defendant, the state shall disclose to the defendant any
See Love v. State, 600 S.W.3d 460 (Tex. App.—Fort Worth 2020, pet. ref’d) (trial court reversibly erred by disqualifying defense counsel who violated art. 39.14(e)).
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See Powell v. Hocker, 516 S.W.3d 488 (Tex. Crim. App. 2017).
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information in the possession, custody, or control of the state that is relevant to the person’s credibility, including: (1) the person’s complete criminal history, including any charges that were dismissed or reduced as part of a plea bargain; (2) any grant, promise, or offer of immunity from prosecution, reduction of sentence, or other leniency or special treatment, given by the state in exchange for the person’s testimony; and (3) information concerning other criminal cases in which the person has testified, or offered to testify, against a defendant with whom the person was imprisoned or confined, including any grant, promise, or offer as described by Subdivision (2) given by the state in exchange for the testimony. (i) The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article. (j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.
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(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court. (l) A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code. (m) To the extent of any conflict, this article prevails over Chapter 552, Government Code. (n) This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.
Tex. Gov’t Code § 41.111. Training Related to Prosecuting Attorney’s Duty to Disclose Exculpatory and Mitigating Evidence (a) Each attorney representing the state in the prosecution of felony and misdemeanor criminal offenses other than Class C misdemeanors shall complete a course of study relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal case. (b) The court of criminal appeals shall adopt rules relating to the training required by Subsection (a). In adopting the rules, the court shall consult with a statewide association of prosecuting attorneys in the development, provision, and documentation of the required training. (c) The rules must: (1) require that each attorney, within 180 days of assuming duties as an attorney representing the state described in Subsection (a), shall receive one hour of instruction relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal matter; (2) require additional training on a schedule or at a time as determined by the court; (3) provide that the required training be specific with respect to a prosecuting attorney’s duties regarding the disclosure of exculpatory and mitigating evidence in a criminal case, and must be consistent with case law and the Texas Disciplinary Rules of Professional Conduct; and
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(4) provide for a method of certifying the completion of the training described in Subdivisions (1) and (2).
The Michael Morton Act was “an overhaul of discovery in Texas,” and it makes “disclosure the rule and non-disclosure the exception.” 127 With respect to exculpatory, impeaching, and mitigating evidence,” it imposes on the State a “freestanding duty to disclose” that is “independent and continuing,” and for all other evidence, it requires the State to disclose “as soon as practicable” upon request with no showing of good cause and with no need “to secure a discretionary trial court order.” 128 The statute “removes procedural hurdles to obtaining discovery, broadens the categories of discoverable evidence, and expands the State’s obligation to disclose. 129 Ethics in Criminal Defense
Under “the plain text of Article 39.14, criminal defendants now have a general statutory right to discovery in Texas beyond the guarantees of due process.” 130 The purpose of the statute is to “ensure a more relevant evidence procedure” so that “[e]very defendant should have access to all the evidence relevant to his guilt or innocence, with adequate time to examine it.” 131 On the flip side, because the Michael Morton Act is not a waiver of sovereign immunity, an assistant district attorney can still be fired for disclosing exculpatory evidence contrary to the instructions of his supervisor, even when both the State Bar Ethics Hotline and the Texas Center for Legal Ethics advised him to disclose the information. 132
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Watkins v. State, 619 S.W.3d 265, 277 (Tex. Crim. App. 2021).
128
Id. at 277–78.
129
Id. at 278.
130
Id. at 291 (emphases added)
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State v. Heath, 696 S.W.3d 677, 698 (Tex. Crim. App. 2024).
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Hillman v. Nueces Cnty., 579 S.W.3d 354 (Tex. 2019).
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In 2019, the Fourteenth Court of Appeals held that Rule 3.09(d), as it then existed, did not impose a post-conviction duty of disclosure. 133 In 2024, the Supreme Court amended Rule 3.09, adding subsections (f)–(h) to address prosecutors’ post-conviction duties. 134 Newly added comment 8 makes clear that “The prosecutor’s disclosure obligations under paragraph (f) are commensurate with those created by other law.” The Michael Morton Act—art. 39.14—has no such limitation and, by its express terms, applies to post-conviction proceedings. 135
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Comm’n for Lawyer Discipline v. Hanna, 513 S.W.3d 175 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
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Misc. Docket No. 24-9054 (Aug. 27, 2024).
Tex. Code Crim. Proc. art. 39.14(h), (k); see also Hillman, 579 S.W.3d at 359 (“Prosecutors must disclose such information whenever they discover it, whether ‘before, during, or after trial.’”).
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5. Bonus: Conflicts of Interest Rule 1.06. Conflict of Interest: General Rule 136 (a) A lawyer shall not represent opposing parties to the same litigation. (b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: (1) involves a substantially related matter in which that person’s interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer’s firm; or (2) reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities to another client or to a third person or by the lawyer’s or law firm’s own interests. 137 (c) A lawyer may represent a client in the circumstances described in (b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and
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(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. 138 (d) A lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute. (e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules. (f) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.
See Wheat v. United States, 486 U.S. 153 (1988); Cuyler v. Sullivan, 446 U.S. 335 (1980); Bowen v. Carnes, 343 S.W.3d 805 (Tex. Crim. App. 2011).
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See Tex. Comm. On Professional Ethics, Op. 571 (2006) (defense lawyer may not advise client on plea agreement containing waiver of IAC claims if “the lawyer has a reasonable basis for concern that he may have rendered ineffective assistance to the defendant”); Tex. Comm. On Professional Ethics, Op. 535 (2000) (lawyer may not volunteer to participate in a court-sponsored “attorney of the day” program under which the lawyer receives a flat fee for limited consultation with a criminal defendant on one day only if the criminal defendant elects to enter a plea of guilty at the conclusion of the consultation); see also Tex. Comm. On Professional Ethics, Op. 541 (2002) (municipal judge with private practice may not represent criminal defendants whose cases involve municipal police officers appearing as adverse witnesses); Tex. Comm. On Professional Ethics, Op. 677 (2018) (same conflict applies to law partner of part-time municipal judge). 137
But see Haley v. Boles, 824 S.W.2d 796 (Tex. App.—Tyler 1992, no writ) (appointed counsel’s law partner was married to the district attorney, appointed client could not consent to conflict because an indigent defendant “does not participate in the selection of the lawyer assigned by the trial court to defend his rights and freedom”).
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Comments Loyalty to a Client 1. Loyalty is an essential element in the lawyer’s relationship to a client. An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined. If such a conflict arises after representation has been undertaken, the lawyer must take effective action to eliminate the conflict, including withdrawal if necessary to rectify the situation. See also Rule 1.17. When more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by this Rule and Rules 1.05 and 1.09. See also Rule 1.07(c). Under this Rule, any conflict that prevents a particular lawyer from undertaking or continuing a representation of a client also prevents any other lawyer who is or becomes a member of or an associate with that lawyer’s firm from doing so. See paragraph (f). 2. A fundamental principle recognized by paragraph (a) is that a lawyer may not represent opposing parties in litigation. The term “opposing parties” as used in this Rule contemplates a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party. Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially related matter unless that client’s fully informed consent is obtained and unless the lawyer reasonably believes that the lawyer’s representation will be reasonably protective of that client’s interests. Paragraphs (b) and (c) express that general concept.
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Conflicts in Litigation 3. Paragraph (a) prohibits representation of opposing parties in litigation. Simultaneous representation of parties whose interests in litigation are not actually directly adverse but where the potential for conflict exists, such as co-plaintiffs or co-defendants, is governed by paragraph (b). An impermissible conflict may exist or develop by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. On the other hand, common representation of persons having similar interests is proper if the risk of adverse effect is minimal and the requirements of paragraph (b) are met. Compare Rule 1.07 involving intermediation between clients. Conflict with Lawyer’s Own Interests 4. Loyalty to a client is impaired not only by the representation of opposing parties in situations within paragraphs (a) and (b)(1) but also in any situation when a lawyer may not be able to consider, recommend or carry out an appropriate course of action for one client because of the lawyer’s own interests or responsibilities to others. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (b)(2) addresses such situations. A potential possible conflict does not itself necessarily preclude the representation. The critical questions are the likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and adversely affect the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. It is for the client to decide whether the client wishes to accommodate the other interest involved. However, the client’s consent to the representation by the lawyer of another whose interests are directly adverse is insufficient unless the lawyer also believes that there will be no materially adverse effect upon the interests of either client. See paragraph (c). 5. The lawyer’s own interests should not be permitted to have adverse effect on representation of a client, even where paragraph (b)(2) is not violated. For example, a lawyer’s need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See Rules 1.01 and 1.04. If the probity of a lawyer’s own conduct in a transaction is in question, it may be difficult for the lawyer to give a client detached advice. A lawyer should not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest.
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Meaning of Directly Adverse 6. Within the meaning of Rule 1.06(b), the representation of one client is “directly adverse” to the representation of another client if the lawyer’s independent judgment on behalf of a client or the lawyer’s ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by the lawyer’s representation of, or responsibilities to, the other client. The dual representation also is directly adverse if the lawyer reasonably appears to be called upon to espouse adverse positions in the same matter or a related matter. On the other hand, simultaneous representation in unrelated matters of clients whose interests are only generally adverse, such as competing economic enterprises, does not constitute the representation of directly adverse interests. Even when neither paragraph (a) nor (b) is applicable, a lawyer should realize that a business rivalry or personal differences between two clients or potential clients may be so important to one or both that one or the other would consider it contrary to its interests to have the same lawyer as its rival even in unrelated matters; and in those situations a wise lawyer would forego the dual representation. Full Disclosure and Informed Consent
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7. A client under some circumstances may consent to representation notwithstanding a conflict or potential conflict. However, as indicated in paragraph (c)(1), when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved should not ask for such agreement or provide representation on the basis of the client’s consent. When more than one client is involved, the question of conflict must be resolved as to each client. Moreover, there may be circumstances where it is impossible to make the full disclosure necessary to obtain informed consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to permit the other client to make an informed decision, the lawyer cannot properly ask the latter to consent. 8. Disclosure and consent are not formalities. Disclosure sufficient for sophisticated clients may not be sufficient to permit less sophisticated clients to provide fully informed consent. While it is not required that the disclosure and consent be in writing, it would be prudent for the lawyer to provide potential dual clients with at least a written summary of the considerations disclosed.
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10. A lawyer may represent parties having antagonistic positions on a legal question that has arisen in different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court.
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Interest of Person Paying for a Lawyer’s Service 12. A lawyer may be paid from a source other than the client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty to the client. See Rule 1.08(e). …
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Conflict Charged by an Opposing Party 17. Raising questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. In litigation, a court may raise the question when there is reason to infer that the lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with great caution, however, for it can be misused as a technique of harassment. See Preamble: Scope. 18. Except when the absolute prohibition of this rule applies or in litigation when a court passes upon issues of conflicting interests in determining a question of disqualification of counsel, resolving questions of conflict of interests may require decisions by all affected clients as well as by the lawyer.
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Imputed Conflicts, Nonlawyer Employees, and Lawyers Formerly Employed in a Nonlawyer Role 19. A law firm is not prohibited from representing a client under paragraph (f) merely because a nonlawyer employee of the firm, such as a paralegal or legal secretary, has a conflict of interest arising from prior employment or some other source. Nor is a firm prohibited from representing a client merely because a lawyer of the firm has a conflict of interest arising from events that occurred before the person became a lawyer, such as work that the person did as a law clerk or intern. But the firm must ordinarily screen the person with the conflict from any personal participation in the matter to prevent the person’s communicating to others in the firm confidential information that the person and the firm have a legal duty to protect. See Rule 5.03; see also Model Rules Prof’l Conduct r. 1.10 cmt. 4 (Am. Bar Ass’n 1983); Restatement (Third) of the Law Governing Lawyers § 123 cmt. f (Am. Law Inst. 2000).
Rule 1.08. Conflict of Interest: Prohibited Transactions 139 (a) A lawyer shall not enter into a business transaction with a client, or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client, unless: (1) the terms of the transaction or acquisition are fair and reasonable to the client, and are fully disclosed and transmitted to the client in a writing that can be reasonably understood by the client;
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(2) the client either is represented in the transaction or acquisition by an independent lawyer of the client’s choice or the client is advised in writing to seek the advice of an independent lawyer of the client’s choice and is given a reasonable opportunity to seek that advice; and (3) the client thereafter provides informed consent in writing to the terms of the transaction or acquisition, and to the lawyer’s role in it, including whether the lawyer is representing the client in the transaction. (b) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as a parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee. (c) Prior to the conclusion of all aspects of the matter giving rise to the lawyer’s employment, a lawyer shall not make or negotiate an agreement with a client, prospective client, or former client giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
This rule was substantially modified in 2024, as were the comments to the rule. See Supreme Court Misc. Docket No. 24-9054 (Aug. 27, 2024).
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For discussion of this rule in its prior form, see Tex. Comm. On Professional Ethics, Op. 599 (2010) (lawyer who serves as bail bondsman for criminal client may not require client to agree that, if he fails to appear in court, the lawyer may enter a “no contest” plea on his behalf, as this “arrangement is a prohibited business transaction between lawyer and client that is not on terms fair and reasonable to the client, creates an impermissible conflict of interest for the lawyer, and impermissibly purports to eliminate the lawyer’s duty to consult with, and abide by the decision of, the client concerning the entry of a plea”); see also Tex. Comm. On Professional Ethics, Op. 624 (2013) (describing scenarios in which it is permissible for a lawyer to contract with the client to enter a plea of “guilty” or “no contest” on his behalf).
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(d) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation or administrative proceedings, except that: (1) a lawyer may advance or guarantee court costs, expenses of litigation or administrative proceedings, and reasonably necessary medical and living expenses, the repayment of which may be contingent on the outcome of the matter; and (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. (e) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client consents; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.05.
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(f) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement to guilty or nolo contendere pleas, unless each client has consented after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the nature and extent of the participation of each person in the settlement. (g) A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client with out first advising that person in writing that independent representation is appropriate in connection therewith. (h) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may: (1) acquire a lien granted by law to secure the lawyer’s fee or expenses; and (2) contract in a civil case with a client for a contingent fee that is permissible under Rule 1.04. (i) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member of or associated with that lawyer’s firm may engage in that conduct. (j) As used in this Rule, “business transactions” does not include standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others. Comments 140 *
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The comments I have included here were previously numbered 4–6 and 8. Their numbering is the only thing that changed in 2024.
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literary property from agreeing that the lawyer’s fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.04 and to paragraph (h) of this Rule. Person Paying for Lawyer’s Services 6. Paragraph (e) requires disclosure to the client of the fact that the lawyer’s services are being paid for by a third party. Such an arrangement must also conform to the requirements of Rule 1.05 concerning confidentiality and Rule 1.06 concerning conflict of interest. … Prospectively Limiting Liability 7. Paragraph (g) is not intended to apply to customary qualification and limitations in legal opinions and memoranda.
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Rule 1.09. Conflict of Interest: Former Client 141
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(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.05 and 1.09(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Rule 1.09 was completely replaced in 2024. See Supreme Court Misc. Docket No. 24-9054 (Aug. 27, 2024). The new rule focuses on whether the new matter is the same or “substantially related” to the prior representation and whether the new client’s interests are “materially adverse” to the former client, and it sharpens the focus on the protection of confidential information, making clear that conflicts turn not just on the subject matter of the representations but on whether the lawyer possesses information that could be used to the former client’s disadvantage. 141
For discussion of conflicts under the prior version of the rule, see Landers v. State, 256 S.W.3d 295 (Tex. Crim. App. 2008); State ex rel. Young v. Sixth Judicial Dist. Court of Appeals At Texarkana, 236 S.W.3d 207 (Tex. Crim. App. 2007).
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Comments 1. After termination of a client-lawyer relationship, a lawyer has certain continuing duties to the former client with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule … a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same matter. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter. Current and former government lawyers must comply with this Rule to the extent required by Rule 1.11. 2. The scope of a “matter” for purposes of this Rule depends on the facts of a particular situation or transaction. When a lawyer has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the former client. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
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3. Matters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential information obtained in the prior representation would materially advance the client’s position in the subsequent matter. … Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, knowledge of specific facts gained in a prior representation that are relevant to the matter in question ordinarily will preclude such a representation. A former client is not required to reveal the confidential information learned by the lawyer to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services. Lawyers Moving Between Firms 4. Paragraph (b) operates to disqualify a lawyer who has moved firms only when the lawyer has actual knowledge of information protected by Rules 1.05 and 1.09(c). Thus, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, the lawyer is not disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated association with the firm. 5. Application of paragraph (b) depends on a situation’s particular facts, aided by reasonable inferences, deductions, or presumptions about the way in which lawyers work together. A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer is privy to all information about all the firm’s clients. In contrast, another lawyer may have access to the files of only a limited number of clients and may not participate in discussions of the firm’s other clients; in the absence of information to the contrary, it should be inferred that such a lawyer is privy to information about the clients actually served but not those of the firm’s other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought. 6. A lawyer changing professional association has a continuing duty to preserve confidentiality of information about a former client. See Rules 1.05 and 1.09(c). 7. Paragraph (c) provides that information acquired by the lawyer while representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of the client. However, the fact that a
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lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client. 8. The provisions of this Rule are for the protection of former clients and can be waived if the client gives informed consent confirmed in writing under paragraphs (a) and (b). With regard to disqualification of a firm with which a lawyer is or was formerly associated. See Rule 1.10.
Rule 1.10. Imputation of Conflicts of Interest: General Rule 142 (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.06 or 1.09, unless: (1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or (2) the prohibition is based upon Rule 1.09(a) or (b), and arises out of the disqualified lawyer’s association with a prior firm, and: (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
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(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures. (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.05 and 1.09(c) that is material to the matter. (c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.06. (d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. Comments Principles of Imputed Disqualification 1. Paragraph (a)’s rule of imputed disqualification gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Paragraph (a) is premised on the idea that a firm of lawyers is essentially one lawyer for purposes of client loyalty and that a lawyer is vicariously bound by the obligation of loyalty owed by the other lawyers with whom the lawyer is associated. Paragraph (a)(1) operates only
Current Rule 1.10 was added in 2024. This addition resulted in former Rules 1.10 through 1.16 being renumbered as Rules 1.11 through 1.17. See Supreme Court Misc. Docket No. 24-9054 (Aug. 27, 2024). 142
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among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.09(b), 1.10(a)(2), and 1.10(b). 2. Paragraph (a) does not prohibit representation when client loyalty or protection of confidential information are not at issue. For example, if one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will not work on the case and that lawyer’s personal beliefs will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if one lawyer in a law firm owns a party adverse to the law firm’s client in a case, and others in the firm would be materially limited in their representation because of loyalty to that lawyer, the lawyer’s personal disqualification would be imputed to all others in the firm. 3. Paragraph (a) also does not prohibit representation by others in the law firm if the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation by others in the law firm if a lawyer is prohibited from involvement in a matter because of events that took place before that person became a lawyer, for example, work performed as a law student. 4. Paragraph (b) applies regardless of when the formerly associated lawyer represented the client. 5. Paragraph (c) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.06.
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6. Paragraph (a)(2) similarly removes imputation, but, unlike paragraph (c), it does so without requiring that there be informed consent by the former client. Instead, it requires that the procedures laid out in paragraphs (a)(2)(i)-(ii) be followed. Lawyers should be aware, however, that, even where screening mechanisms have been adopted, tribunals may consider additional factors in ruling upon motions to disqualify a lawyer from pending litigation. 7. Paragraph (a)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement. 8. The notice required by paragraph (a)(2)(ii) is intended to enable the former client to evaluate and comment upon the effectiveness of the screening procedures. 9. If a lawyer joins a private firm after representing the government, imputation is governed by Rule 1.11, not this Rule. 10. If a lawyer is prohibited from engaging in certain transactions under Rule 1.08, then Rule 1.08(i), not this Rule, determines whether that prohibition also applies to other lawyers associated with the personally prohibited lawyer’s firm.
Rule 1.11. Successive Government and Private Employment 143 (a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. (b) No lawyer in a firm with which a lawyer subject to paragraph (a) is associated may knowingly undertake or continue representation in such a matter unless: (1) The lawyer subject to paragraph (a) is screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is given with reasonable promptness to the appropriate government agency.
Rule 1.11 is former Rule 1.10 and is therefore often cited as such. It was renumbered as Rule 1.11 in 2024. See Supreme Court Misc. Docket No. 24-9054 (Aug. 27, 2024).
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(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows or should know is confidential government information about a person or other legal entity acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person or legal entity. (d) After learning that a lawyer in the firm is subject to paragraph (c) with respect to a particular matter, a firm may undertake or continue representation in that matter only if that disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom. (e) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not: 144 (1) Participate in a matter involving a private client when the lawyer had represented that client in the same matter while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter; or (2) Negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.
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(f) As used in this rule, the term “matter” does not include regulation-making or rule-making proceedings or assignments, but includes: (1) Any adjudicatory proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge accusation, arrest or other similar, particular transaction involving a specific party or parties; and (2) any other action or transaction covered by the conflict of interest rules of the appropriate government agency. (g) As used in this rule, the term “confidential government information” means information which has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public. (h) As used in this Rule, “Private Client” includes not only a private party but also a governmental agency if the lawyer is not a public officer or employee of that agency. (i) A lawyer who serves as a public officer or employee of one body politic after having served as a public officer of another body politic shall comply with paragraphs (a) and (c) as if the second body politic were a private client and with paragraph (e) as if the first body politic were a private client. Comments 1. This Rule prevents a lawyer from exploiting public office for the advantage of a private client. 2. A lawyer licensed or specially admitted in Texas and representing a government agency is subject to the Texas Disciplinary Rules of Professional Conduct, including the prohibition against representing adverse interests stated in Rule 1.06 and the protections afforded former clients in Rule 1.09. In addition, such a lawyer is subject to this Rule and to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under paragraph (a) of this Rule. 3. Where a public agency and a private client are represented in succession by a lawyer, the risk exists that power or discretion vested in public authority might be used for the special benefit of the private client. A
See Tex. Comm. On Professional Ethics, Op. 538 (2001) (describing circumstances in which a newly-elected prosecutor may and may not prosecute a former client). 144
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lawyer should not be in a position where benefit to a private client might affect performance of the lawyer’s professional functions on behalf of public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client’s adversary obtainable only through the lawyer’s government service. However, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to avoid imposing too severe a deterrent against entering public service. Although “screening” is not defined, the screening provisions contemplate that the screened lawyer has not furnished and will not furnish other lawyers with information relating to the matter, will not have access to the files pertaining to the matter, and will not participate in any way as a lawyer or adviser in the matter. 4. When the client of a lawyer in private practice is an agency of one government, that agency is a private client for purposes of this Rule. See paragraph (h). If the lawyer thereafter becomes an officer or employee of an agency of another government, as when a lawyer represents a city and subsequently is employed by a federal agency, the lawyer is subject to paragraph (e). A lawyer who has been a public officer or employee of one body politic and who becomes a public officer or employee of another body politic is subject to paragraphs (a), (c) and (e). See paragraph (i). Thus, paragraph (i) protects a governmental agency without regard to whether the lawyer was or becomes a private practitioner or a public officer or employee.
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5. Paragraphs (b)(1) and (d)(1) do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement. They prohibit directly relating the attorney’s compensation to the fee in the matter in which the lawyer is disqualified. 6. Paragraph (b)(2) does not require that a lawyer give notice to the governmental agency at a time when premature disclosure would injure the client; a requirement for premature disclosure might preclude engagement of the lawyer. such notice is, however, required to be given as soon as practicable in order that the government agency or affected person will have a reasonable opportunity to ascertain compliance with this Rule and to take appropriate action if necessary. 7. Paragraph (c) operates only when the lawyer in question has actual as opposed to imputed knowledge of the confidential government information. 8. Paragraphs (a) and (e) do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.06 and is not otherwise prohibited by law. 9. Paragraph (e)(1) does not disqualify other lawyers in the agency with which the lawyer in question has become associated. Although the rule does not require that the lawyer in question be screened from participation in the matter, the sound practice would be to screen the lawyer to the extent feasible. In any event, the lawyer in question must comply with Rule 1.05. 10. As used in paragraph (i), “one body politic” refers to one unit or level of government such as the federal government, a state government, a county, a city or a precinct. The term does not refer to different agencies within the same body politic or unit of government.
Rule 1.12. Adjudicatory Official or Law Clerk 145 (a) A lawyer shall not represent anyone in connection with a matter in which the lawyer has passed upon the merits or otherwise participated personally and substantially as an adjudicatory official or law clerk to an adjudicatory official, unless all parties to the proceeding consent after disclosure.
Rule 1.12 is former Rule 1.11 and is therefore often cited as such. It was renumbered as Rule 1.12 in 2024. See Supreme Court Misc. Docket No. 24-9054 (Aug. 27, 2024).
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(b) A lawyer who is an adjudicatory official shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a pending matter in which that official is participating personally and substantially. A lawyer serving as a law clerk to an adjudicatory official may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially, but only after the clerk has notified the adjudicatory official. (c) If paragraph (a) is applicable to a lawyer, no other lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: (1) the lawyer who is subject to paragraph (a) is screened from participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the other parties to the proceeding. Comments
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1. This Rule generally parallels Rule 1.11. The term “personally and substantially” signifies that a judge who was a member of a multi-member court and thereafter left judicial office to practice law is not prohibited from representing a client in a matter pending in the court but in which the former judge did not participate. So also the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in matters where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. Compare the Comments to Rule 1.11. 2. The term “Adjudicatory Official” includes not only judges but also comparable officials serving on tribunals, such as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, as well as lawyers who serve as part-time judges. Compliance provisions B(2) and C of the Texas Code of Judicial Conduct provide that a part-time judge or judge pro tempore may not “act as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto.” Although phrased differently from this rule, those provisions correspond in meaning. 3. Some law clerks have not been licensed as lawyers at the time they commence service as law clerks. Obviously, paragraph (b) cannot apply to a law clerk until the clerk has been licensed as a lawyer. Paragraph (a) applies, however, to a lawyer without regard to whether the lawyer had been licensed at the time of the service as a law clerk, and once that law clerk is licensed as a lawyer and joins a firm, paragraph (c) applies to the firm. 4. Paragraph (c) does not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement. It prohibits directly relating the lawyer’s compensation to the fee in the matter in which the lawyer is disqualified.
Rule 3.08. Lawyer as Witness 146 (a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless: (1) the testimony relates to an uncontested issue; For discussion of this rule, see Tex. Comm. On Professional Ethics, Op. 541 (2002) (municipal judge with private practice may not represent criminal defendants whose cases involve municipal police officers appearing as adverse witnesses); Tex. Comm. On Professional Ethics, Op. 677 (2018) (same conflict applies to law partner of part-time municipal judge). For application of this rule, see Williams v. State, 707 S.W.3d 233 (Tex. Crim. App. 2024); Powers v. State, 165 S.W.3d 357 (Tex. Crim. App. 2005); Ramon v. State, 159 S.W.3d 927 (Tex. —cont’d
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(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) the testimony relates to the nature and value of legal services rendered in the case; (4) the lawyer is a party to the action and is appearing pro se; or (5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer’s client, unless the client consents after full disclosure. (c) Without the client’s informed consent, a lawyer may not act as advocate in an adjudicatory proceeding in which another lawyer in the lawyer’s firm is prohibited by paragraphs (a) or (b) from serving as advocate. If the lawyer to be called as a witness could not also serve as an advocate under this Rule, that lawyer shall not take an active role before the tribunal in the presentation of the matter. Comments
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1. A lawyer who is considering accepting or continuing employment in a contemplated or pending adjudicatory proceeding in which that lawyer knows or believes that he or she may be a necessary witness is obligated by this Rule to consider the possible consequences of those dual roles for both the lawyer’s own client and for opposing parties. 2. One important variable in this context is the anticipated tenor of the lawyer’s testimony. If that testimony will be substantially adverse to the client, paragraphs (b) and (c) provide the governing standard. In other situations, paragraphs (a) and (c) control. 3. A lawyer who is considering both representing a client in an adjudicatory proceeding and serving as a witness in that proceeding may possess information pertinent to the representation that would be substantially adverse to the client were it to be disclosed. A lawyer who believes that he or she will be compelled to furnish testimony concerning such matters should not continue to act as an advocate for his or her client except with the client’s informed consent, because of the substantial likelihood that such adverse testimony would damage the lawyer’s ability to represent the client effectively. 4. In all other circumstances, the principal concern over allowing a lawyer to serve as both an advocate and witness for a client is the possible confusion that those dual roles could create for the finder of fact. Normally those dual roles are unlikely to create exceptional difficulties when the lawyer’s testimony is limited to the areas set out in sub-paragraphs (a)(1)-(4) of this Rule. If, however, the lawyer’s testimony concerns a controversial or contested matter, combining the roles of advocate and witness can unfairly prejudice the opposing party. A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof. 5. Paragraph (a)(1) recognizes that if the testimony will be uncontested, the ambiguities in the dual role are purely theoretical. Paragraph (a)(2) recognizes that similar considerations apply if a lawyer’s testimony relates solely to a matter of formality and there is no reason to believe that substantial opposing evidence will be offered. In each of those situations requiring the involvement of another lawyer would be a costly procedure that would serve no significant countervailing purpose. 6. Sub-paragraph (a)(3) recognizes that where the testimony concerns the extent and value of legal services rendered in the action in which the testimony is offered, permitting the lawyers to testify avoids the need for
Crim. App. 2004); Flores v. State, 155 S.W.3d 144 (Tex. Crim. App. 2004); Gonzalez v. State, 117 S.W.3d 831 (Tex. Crim. App. 2003).
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a second trial with new counsel to resolve that issue. Moreover, in such a situation the judge has firsthand knowledge of the matter in issue; hence, there is less dependence on the adversary process to test the credibility of the testimony. Sub-paragraph (a)(4) makes it clear that this Rule is not intended to affect a lawyer’s right to self representation. 7. Apart from these four exceptions, sub-paragraph (a)(5) recognizes an additional exception based upon a balancing of the interests of the client and those of the opposing party. In implementing this exception, it is relevant that one or both parties could reasonably foresee that the lawyer would probably be a witness. For example, sub-paragraph (a)(5) requires that a lawyer relying on that sub-paragraph as a basis for serving as both an advocate and a witness for a party give timely notification of that fact to opposing counsel. That requirement serves two purposes. First, it prevents the testifying lawyer from creating a “substantial hardship,” where none once existed, by virtue of a lengthy representation of the client in the matter at hand. Second, it puts opposing parties on notice of the situation, thus enabling them to make any desired response at the earliest opportunity. 8. This rule does not prohibit the lawyer who may or will be a witness from participating in the preparation of a matter for presentation to a tribunal. To minimize the possibility of unfair prejudice to an opposing party, however, the Rule prohibits any testifying lawyer who could not serve as an advocate from taking an active role before the tribunal in the presentation of the matter. See paragraph (c). Even in those situations, however, another lawyer in the testifying lawyer’s firm may act as an advocate, provided the client’s informed consent is obtained.
Ethics in Criminal Defense
9. Rule 3.08 sets out a disciplinary standard and is not well suited to use as a standard for procedural disqualification. As a disciplinary rule it serves two principal purposes. The first is to insure that a client’s case is not compromised by being represented by a lawyer who could be a more effective witness for the client by not also serving as an advocate. See paragraph (a). The second is to insure that a client is not burdened by counsel who may have to offer testimony that is substantially adverse to the client’s cause. See paragraph (b). 10. This Rule may furnish some guidance in those procedural disqualification disputes where the party seeking disqualification can demonstrate actual prejudice to itself resulting from the opposing lawyer’s service in the dual roles. However, it should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice. For example, a lawyer should not seek to disqualify an opposing lawyer under this Rule merely because the opposing lawyer’s dual roles may involve an improper conflict of interest with respect to the opposing lawyer’s client, for that is a matter to be resolved between lawyer and client or in a subsequent disciplinary proceeding. Likewise, a lawyer should not seek to disqualify an opposing lawyer by unnecessarily calling that lawyer as a witness. Such unintended applications of this Rule, if allowed, would subvert its true purpose by converting it into a mere tactical weapon in litigation.
Rule 6.05. Conflict of Interest Exceptions for Nonprofit and Limited Pro Bono Legal Services (a) The conflicts of interest limitations on representation in Rules 1.06, 1.07, and 1.09 do not prohibit a lawyer from providing, or offering to provide, limited pro bono legal services unless the lawyer knows, at the time the services are provided, that the lawyer would be prohibited by those limitations from providing the services. (b) Lawyers in a firm with a lawyer providing, or offering to provide, limited pro bono legal services shall not be prohibited by the imputation provisions of Rules 1.06, 1.07, and 1.09 from representing a client if that lawyer does not: (1) disclose confidential information of the pro bono client to the lawyers in the firm; or (2) maintain such information in a manner that would render it accessible to the lawyers in the firm.
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(c) The eligibility information that an applicant is required to provide when applying for free legal services or limited pro bono legal services from a program described in subparagraph (d)(1) by itself will not create a conflict of interest if: (1) the eligibility information is not material to the legal matter; or (2) the applicant’s provision of the eligibility information was conditioned on the applicant’s informed consent that providing this information would not by itself prohibit a representation of another client adverse to the applicant. (d) As used in this Rule, “limited pro bono legal services” means legal services that are: (1) provided through a pro bono or assisted pro se program sponsored by a court, bar association, accredited law school, or nonprofit legal services program; (2) short-term services such as legal advice or other brief assistance with pro se documents or transactions, provided either in person or by phone, hotline, internet, or video conferencing; and (3) provided without any expectation of extended representation of the limited assistance client or of receiving any legal fees in that matter. (e) As used in this Rule, a lawyer is not “in a firm” with other lawyers solely because the lawyer provides limited pro bono legal services with the other lawyers.
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COMMENT: 1. Nonprofit legal services organizations, courts, law schools, and bar associations have programs through which lawyers provide short-term limited legal services typically to help low-income persons address their legal problems without further representation by the lawyers. In these programs, such as legal-advice hotlines, advice-only clinics, disaster legal services, or programs providing guidance to self-represented litigants, a client-lawyer relationship is established, but there is no expectation that the relationship will continue beyond the limited consultation and there is no expectation that the lawyer will receive any compensation from the client for the services. These programs are normally operated under circumstances in which it is not feasible for a lawyer to check for conflicts of interest as is normally required before undertaking a representation. 2. Application of the conflict of interest rules has deterred lawyers from participating in these programs, preventing persons of limited means from obtaining much needed legal services. To facilitate the provision of free legal services to the public, this Rule creates narrow exceptions to the conflict of interest rules for limited pro bono legal services. These exceptions are justified because the limited and short-term nature of the legal services rendered in such programs reduces the risk that conflicts of interest will arise between clients represented through the program and other clients of the lawyer or the lawyer’s firm. Other than the limited exceptions set forth in this Rule, a lawyer remains subject to all applicable conflict of interest rules. Scope of Representation 3. A lawyer who provides services pursuant to this Rule should secure the client’s consent to the limited scope of the representation after explaining to the client what that means in the particular circumstance. See Rule 1.02(b). If a short-term limited representation would not be fully sufficient under the circumstances, the lawyer may offer advice to the client but should also advise the client of the need for further assistance of counsel. See Rule 1.03(b). Conflicts and the Lawyer Providing Limited Pro Bono Legal Services 4. Paragraph (a) exempts compliance with Rules 1.06, 1.07, and 1.09 for a lawyer providing limited pro bono legal services unless the lawyer actually knows that the representation presents a conflict of interest for the lawyer or for another lawyer in the lawyer’s firm. A lawyer providing limited pro bono legal services is not obligated to perform a conflicts check before undertaking the limited representation. If, after commencing a representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an
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ongoing basis or the lawyer charges a fee for the legal assistance, the exceptions provided by this Rule no longer apply. Imputation of Conflicts 5. Paragraph (b) provides that a conflict of interest arising from a lawyer’s representation covered by this Rule will not be imputed to the lawyers in the pro bono lawyer’s firm if the pro bono lawyer complies with subparagraphs (b)(1) and (2). 6. To prevent a conflict of interest arising from limited pro bono legal services from being imputed to the other lawyers in the firm, subparagraph (b)(1) requires that the pro bono lawyer not disclose to any lawyer in the firm any confidential information related to the pro bono representation. 7. Subparagraph (b)(2) covers the retention of documents or other memorialization of confidential information, such as the pro bono lawyer’s notes, whether in paper or electronic form. To prevent imputation, a pro bono lawyer who retains confidential information is required by subparagraph (b)(2) to segregate and store it in such a way that no other lawyer in the pro bono lawyer’s firm can access it, either physically or electronically. Eligibility Information
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8. Paragraph (c) recognizes the unusual and uniquely sensitive personal information that applicants for free legal assistance may be required to provide. Organizations that receive funding to provide free legal assistance to low-income clients are generally required, as a condition of their funding, to screen the applicants for eligibility and to document eligibility for services paid for by those funding sources. Unlike other lawyers, law firms, and legal departments, these organizations ask for confidential information to determine an applicant’s eligibility for free legal assistance and are required to maintain records of such eligibility determinations for potential audit by their funding sources. Required eligibility information typically includes income, asset values, marital status, citizenship or immigration status, and other facts the applicant may consider sensitive. 9. The first situation where the paragraph (c) exception is available is where none of the eligibility information is material to an issue in the legal matter. Alternatively, under subparagraph (c)(2), if the applicant provided confidential information after giving informed consent that the eligibility information would not prohibit the persons or entities identified in the consent from representing any other present or future client, then the eligibility information alone will not prohibit the representation. The lawyer should document the receipt of such informed consent, though a formal writing is not required. What constitutes informed consent is discussed in the comments to Rule 1.06. 10. Rule 1.05 continues to apply to the use or disclosure of all confidential information provided during an intake interview. Similarly, Rule 1.09 continues to apply to the representation of a person in a matter adverse to the applicant. Notably, Rule 1.05(c)(2) permits a lawyer to use or disclose information provided during an intake interview if the applicant consents after consultation to such use or disclosure, and Rule 1.09(a) excludes from its restrictions the representation of a person adverse to the applicant in the same or a substantially related matter if the applicant consents to such a representation. Limited Pro Bono Legal Service Programs 11. This Rule applies only to services offered through a program that meets one of the descriptions in subparagraph (d)(1), regardless of the nature and amount of support provided. Some programs may be jointly sponsored by more than one of the listed sponsor types. 12. The second element of “limited pro bono legal services,” set forth in subparagraph (d)(2), is designed to ensure that the services offered are so limited in time and scope that there is little risk that conflicts will arise between clients represented through the program and other clients of the lawyer or the lawyer’s firm. 13. The third element of the definition, set forth in subparagraph (d)(3), is that the services are offered and provided without any expectation of either extended representation or the collection of legal fees in the matter. Before agreeing to proceed in the representation beyond “limited pro bono legal services,” the lawyer should evaluate the potential conflicts of interest that may arise from the representation as with any other
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representation. Likewise, the exceptions in paragraphs (a) and (b) do not apply if the lawyer expects to collect any legal fees in the limited assistance matter. Firm 14. Lawyers are not deemed to be part of the same firm simply because they volunteer through the same pro bono program. Nor will the personal prohibition of a lawyer participating in a pro bono program be imputed to other lawyers participating in the program solely by reason of that volunteer connection.
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6. Bonus: Fees and Advertising Rule 1.04. Fees (a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable. 147 (b) Factors that may be considered in determining the reasonableness of a fee include, but not to the exclusion of other relevant factors, the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances;
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(6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. (c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. *
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(e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case. 148 (f) A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is: (i) in proportion to the professional services performed by each lawyer; or (ii) made between lawyers who assume joint responsibility for the representation; and (2) the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, including: See Tex. Comm. On Professional Ethics, Op. 611 (2011) (addressing the permissible scope of a “non-refundable retainer”); see also Tex. Comm. On Professional Ethics, Op. 701 (2024) (addressing permissible scope of a “subscription service fee” model). 147
This rule does not prohibit counties from paying court-appointed lawyers based on a fee schedule that authorizes fixed fees based on the stage at which the case is disposed of. Such a fee schedule is not a contingent fee, but instead “attempts to rationally relate the fees payable to the differences in the amount of time and effort required to represent the client in various dispositions of typical cases.” Tex. Comm. On Professional Ethics, Op. 636 (2013).
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(i) the identity of all lawyers or law firms who will participate in the fee-sharing agreement, and (ii) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and (iii) the share of the fee that each lawyer or law firm will receive or, if the division is based on the proportion of services performed, the basis on which the division will be made; and (3) the aggregate fee does not violate paragraph (a). (g) Every agreement that allows a lawyer or law firm to associate other counsel in the representation of a person, or to refer the person to other counsel for such representation, and that results in such an association with or referral to a different law firm or a lawyer in such a different firm, shall be confirmed by an arrangement conforming to paragraph (f). Consent by a client or a prospective client without knowledge of the information specified in subparagraph (f)(2) does not constitute a confirmation within the meaning of this rule. No attorney shall collect or seek to collect fees or expenses in connection with any such agreement that is not confirmed in that way, except for: (1) the reasonable value of legal services provided to that person; and (2) the reasonable and necessary expenses actually incurred on behalf of that person.
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(h) Paragraph (f) of this rule does not apply to payment to a former partner or associate pursuant to a separation or retirement agreement, or to a lawyer referral program certified by the State Bar of Texas in accordance with the Texas Lawyer Referral Service Quality Act, Tex. Occ. Code 952.001 et seq., or any amendments or recodifications thereof. Comments 1. A lawyer in good conscience should not charge or collect more than a reasonable fee, although he may charge less or no fee at all. The determination of the reasonableness of a fee, or of the range of reasonableness, can be a difficult question, and a standard of “reasonableness” is too vague and uncertain to be an appropriate standard in a disciplinary action. For this reason, paragraph (a) adopts, for disciplinary purposes only, a clearer standard: the lawyer is subject to discipline for an illegal fee or an unconscionable fee. Paragraph (a) defines an unconscionable fee in terms of the reasonableness of the fee but in a way to eliminate factual disputes as to the fee’s reasonableness. The Rule’s “unconscionable” standard, however, does not preclude use of the “reasonableness” standard of paragraph (b) in other settings. Basis or Rate of Fee 2. When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. If, however, the basis or rate of fee being charged to a regularly represented client differs from the understanding that has evolved, the lawyer should so advise the client. In a new client-lawyer relationship, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, in order to identity the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding, and when the lawyer has not regularly represented the client it is preferable for the basis or rate of the fee to be communicated to the client in writing. Furnishing the client with a simple memorandum or a copy of the lawyer’s customary fee schedule is sufficient if the basis or rate of the fee is set forth. In the case of a contingent fee, a written agreement is mandatory.
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Types of Fees 3. Historically lawyers have determined what fees to charge by a variety of methods. Commonly employed are percentage fees and contingent fees (which may vary in accordance with the amount at stake or recovered), hourly rates, and flat fee arrangements, or combinations thereof. 4. The determination of a proper fee requires consideration of the interests of both client and lawyer. The determination of reasonableness requires consideration of all relevant circumstances, including those stated in paragraph (b). Obviously, in a particular situation not all of the factors listed in paragraph (b) may be relevant and factors not listed could be relevant. The fees of a lawyer will vary according to many factors, including the time required, the lawyer’s experience, ability and reputation, the nature of the employment, the responsibility involved, and the results obtained. 5. When there is a doubt whether a particular fee arrangement is consistent with the client’s best interest, the lawyer should discuss with the client alternative bases for the fee and explain their implications. 6. Once a fee arrangement is agreed to, a lawyer should not handle the matter so as to further the lawyer’s financial interests to the detriment of the client. For example, a lawyer should not abuse a fee arrangement based primarily on hourly charges by using wasteful procedures. Unconscionable Fees
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7. Two principal circumstances combine to make it difficult to determine whether a particular fee is unconscionable within the disciplinary test provided by paragraph (a) of this Rule. The first is the subjectivity of a number of the factors relied on to determine the reasonableness of fees under paragraph (b). Because those factors do not permit more than an approximation of a range of fees that might be found reasonable in any given case, there is a corresponding degree of uncertainty in determining whether a given fee is unconscionable. Secondly, fee arrangements normally are made at the outset of representation, a time when many uncertainties and contingencies exist, while claims of unconscionability are made in hindsight when the contingencies have been resolved. The “unconscionability” standard adopts that difference in perspective and requires that a lawyer be given the benefit of any such uncertainties for disciplinary purposes only. Except in very unusual situations, therefore, the circumstances at the time a fee arrangement is made should control in determining a question of unconscionability. 8. Two factors in otherwise borderline cases might indicate a fee may be unconscionable. The first is overreaching by a lawyer, particularly of a client who was unusually susceptible to such overreaching. The second is a failure of the lawyer to give at the outset a clear and accurate explanation of how a fee was to be calculated. For example, a fee arrangement negotiated at arm’s length with an experienced business client would rarely be subject to question. On the other hand, a fee arrangement with an uneducated or unsophisticated individual having no prior experience in such matters should be more carefully scrutinized for overreaching. While the fact that a client was at a marked disadvantage in bargaining with a lawyer over fees will not make a fee unconscionable, application of the disciplinary test may require some consideration of the personal circumstances of the individuals involved.
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Division of Fees 10. A division of fees is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fees facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring or associating lawyer initially retained by the client and a trial specialist, but it applies in all cases in which two or more lawyers are representing a single client in the same matter, and without regard to whether litigation is involved. Paragraph (f) permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes joint responsibility for the representation.
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12. A division of a fee based on the proportion of services rendered by two or more lawyers contemplates that each lawyer is performing substantial legal services on behalf of the client with respect to the matter. In
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particular, it requires that each lawyer who participates in the fee have performed services beyond those involved in initially seeking to acquire and being engaged by the client. There must be a reasonable correlation between the amount or value of services rendered and responsibility assumed, and the share of the fee to be received. However, if each participating lawyer performs substantial legal services on behalf of the client, the agreed division should control even though the division is not directly proportional to actual work performed. If a division of fee is to be based on the proportion of services rendered, the arrangement may provide that the allocation not be made until the end of the representation. When the allocation is deferred until the end of the representation, the terms of the arrangement must include the basis by which the division will be made.
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13. Joint responsibility for the representation entails ethical and perhaps financial responsibility for the representation. The ethical responsibility assumed requires that a referring or associating lawyer make reasonable efforts to assure adequacy of representation and to provide adequate client communication. Adequacy of representation requires that the referring or associating lawyer conduct a reasonable investigation of the client’s legal matter and refer the matter to a lawyer whom the referring or associating lawyer reasonably believes is competent to handle it. See Rule 1.01. Adequate attorney-client communication requires that a referring or associating lawyer monitor the matter throughout the representation and ensure that the client is informed of those matters that come to that lawyer’s attention and that a reasonable lawyer would believe the client should be aware. See Rule 1.03. Attending all depositions and hearings or requiring that copies of all pleadings and correspondence be provided a referring or associating lawyer is not necessary in order to meet the monitoring requirement proposed by this rule. These types of activities may increase the transactional costs, which ultimately the client will bear and unless some benefit will be derived by the client, they should be avoided. The monitoring requirement is only that the referring lawyer be reasonably informed of the matter, respond to client questions, and assist the handling lawyer when necessary. Any referral or association of other counsel should be made based solely on the client’s best interest. 14. In the aggregate, the minimum activities that must be undertaken by referring or associating lawyers pursuant to an arrangement for a division of fees are substantially greater than those assumed by a lawyer who forwarded a matter to other counsel, undertook no ongoing obligations with respect to it, and yet received a portion of the handling lawyer’s fee once the matter was concluded, as was permitted under the prior version of this rule. Whether such activities, or any additional activities that a lawyer might agree to undertake, suffice to make one lawyer participating in such an arrangement responsible for the professional misconduct of another lawyer who is participating in it and, if so, to what extent, are intended to be resolved by Texas Civil Practice and Remedies Code, ch. 33, or other applicable law. 15. A client must consent in writing to the terms of the arrangement prior to the time of the association or referral proposed. For this consent to be effective, the client must have been advised of at least the key features of that arrangement. Those essential terms, which are specified in subparagraph (f)(2), are 1) the identity of all lawyers or law firms who will participate in the fee-sharing agreement, 2) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and 3) the share of the fee that each lawyer or law firm will receive or the basis on which the division will be made if the division is based on proportion of service performed. Consent by a client or prospective client to the referral to or association of other counsel, made prior to any actual such referral or association, but without knowledge of the information specified in subparagraph (f)(2) does not constitute sufficient client confirmation within the meaning of this rule. The referring or associating lawyer or any other lawyer who employs another lawyer to assist in the representation has the primary duty to ensure full disclosure and compliance with this rule. 16. Paragraph (g) facilitates the enforcement of the requirements of paragraph (f). It does so by providing that agreements that authorize an attorney either to refer a person’s case to another lawyer, or to associate other counsel in the handling of a client’s case, and that actually result in such a referral or association with counsel in a different law firm from the one entering into the agreement, must be confirmed by an arrangement between the person and the lawyers involved that conforms to paragraph (f). As noted there, that arrangement must be presented to and agreed to by the person before the referral or association between the lawyers involved occurs. See subparagraph (f)(2). Because paragraph (g) refers to the party whose matter is involved as a “person” rather than as a “client,” it is not possible to evade its requirements by having a
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referring lawyer not formally enter into an attorney-client relationship with the person involved before referring that person’s matter to other counsel. Paragraph (g) does provide, however, for recovery in quantum meruit in instances where its requirements are not met. See subparagraphs (g)(1) and (g)(2).P 17. What should be done with any otherwise agreed-to fee that is forfeited in whole or in part due to a lawyer’s failure to comply with paragraph (g) is not resolved by these rules. 18. Subparagraph (f)(3) requires that the aggregate fee charged to clients in connection with a given matter by all of the lawyers involved meet the standards of paragraph (a)--that is, not be unconscionable. Fee Disputes and Determinations 19. If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer’s fee, for example, in representation of an executor or administrator, or when a class or a person is entitled to recover a reasonable attorney’s fee as part of the measure of damages. All involved lawyers should comply with any prescribed procedures.
Rule 1.15. Safekeeping Property 149
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(a) A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Such funds shall be kept in a separate account, designated as a “trust” or “escrow” account, maintained in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. Other client property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (c) When in the course of representation a lawyer is in possession of funds or other property in which both the lawyer and other person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. All funds in a trust or escrow account shall be disbursed only to those persons entitled to receive them by virtue of the representation or by law. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separated by the lawyer until the dispute is resolved, and the undisputed portion shall be distributed appropriately. Comments 1. A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property which is the property of clients or third persons should be kept separate form the lawyer’s business and personal property and, if monies, in one or more trust accounts. Separate trust
Rule 1.15 is former Rule 1.14 and is therefore often cited as such. It was renumbered as Rule 1.15 in 2024. See Supreme Court Misc. Docket No. 24-9054 (Aug. 27, 2024). Important citations to former Rule 1.15 (such as those in In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013)) should be read as citing Rule 1.16. 149
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accounts may be warranted when administering estate monies or acting in similar fiduciary capacities. Paragraph (a) requires that complete records of the funds and other property be maintained. 2. Lawyers often receive funds from third parties from which the lawyer’s fee will be paid. These funds should be deposited into a lawyer’s trust account. If there is risk that the client may divert the funds without paying the fee, the lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a client into accepting the lawyer’s contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds should be promptly distributed to those entitled to receive them by virtue of the representation. A lawyer should not use even that portion of trust account funds due to the lawyer to make direct payment to general creditors of the lawyer of the lawyer’s firm, because such a course of dealing increases the risk that all the assets of that account will be viewed as the lawyer’s property rather than that of clients, and thus as available to satisfy the claims of such creditors. When a lawyer receives from a client monies that constitute a prepayment of a fee and that belongs to the client until the services are rendered, the lawyer should handle the fund in accordance with paragraph (c). After advising the client that the service has been rendered and the fee earned, and in the absence of a dispute, the lawyer may withdraw the fund from the separate account. Paragraph (c) does not prohibit participation in an IOLTA or similar program.
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3. Third parties, such as client’s creditors, may have just claims against funds or other property in a lawyer’s custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party. 4. The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal service. For example, a lawyer who serves as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction. 5. The “client’s security fund” in Texas provides a means through the collective efforts of the bar to reimburse persons who have lost money or property as a result of dishonest conduct of a lawyer.
Rule 5.04. Professional Independence of a Lawyer (a) A lawyer or law firm shall not share or promise to share legal fees with a non-lawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate, or a lawful court order, may provide for the payment of money, over a reasonable period of time, to the lawyer’s estate to or for the benefit of the lawyer’s heirs or personal representatives, beneficiaries, or former spouse, after the lawyer’s death or as otherwise provided by law or court order. (2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and (3) a lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. (b) A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
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(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. Comments 1. The provisions of Rule 5.04(a) express traditional limitations on sharing legal fees with nonlawyers. The principal reasons for these limitations are to prevent solicitation by lay persons of clients for lawyers and to avoid encouraging or assisting nonlawyers in the practice of law. See Rules 5.04(d), 5.05 and 7.03. The same reasons support Rule 5.04(b).
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2. The exceptions stated in Rule 5.04(a) involve situations where the sharing of legal fees with a nonlawyer is not likely to encourage improper solicitation or unauthorized practice of law. For example, it is appropriate for a law firm agreement to provide for the payment of money after the death of a lawyer, or after the establishment of a guardianship for an incapacitated lawyer, to the estate of or to a trust created by the lawyer. A court order, such as a divorce decree, may provide, when appropriate, for the division of legal fees with a nonlawyer. Likewise, the inclusion of a secretary or nonlawyer office administrator in a retirement plan to which the law firm contributes a portion of its profits or legal fees is proper because this division of legal fees is unlikely to encourage improper solicitation or unauthorized practice of law. 3. Rule 5.04(a) forbids only the sharing of legal fees with a nonlawyer and does not necessarily mandate that employees by paid only on the basis of a fixed salary. Thus, the payment of an annual or other bonus does not constitute the sharing of legal fees if the bonus is neither based on a percentage of the law firm’s profits or on a percentage of particular legal fees nor is given as a reward for conduct forbidden to lawyers. Similarly, the division between lawyer and client of the proceeds of a settlement judgment or other award in which both damages and attorney fees have been included does not constitute an improper sharing of legal fees with a nonlawyer. Reimbursement by a lawyer made to a bona fide or pro bono legal services entity for its reasonable expenses in connection with the matter referred to or being handled by the lawyer does not constitute a division of legal fees within the meaning of Rule 5.04. 4. Because the lawyer-client relationship is a personal relationship in which the client generally must trust the lawyer to exercise appropriate professional judgment on the client’s behalf, Rule 5.04(c) provides that a lawyer shall not permit improper interference with the exercise of the lawyer’s professional judgment solely on behalf of the client. The lawyer’s professional judgment should be exercised only for the benefit of the client, free of compromising influences and loyalties. Therefore, under Rule 5.04(c) a person who recommends, employs, or pays the lawyer to render legal services for another cannot be permitted to interfere with the lawyer’s professional relationship with that client. Similarly, neither the lawyer’s personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute the lawyer’s loyalty to the client. 5. Because a lawyer must always be free to exercise professional judgment without regard to the interests or motives of a third person, the lawyer who is employed or paid by one to represent another should guard constantly against erosion of the lawyer’s professional judgment. The lawyer should recognize that a person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of the lawyer. The lawyer should be watchful that such persons or organizations are not seeking to further their own economic, political, or social goals without regard to the lawyer’s responsibility to the client. Moreover, a lawyer employed by an organization is required by Rule 5.04(c) to decline to accept direction of the lawyer’s professional judgment from any nonlawyer in the organization. 6. Rule 5.04(d) forbids a lawyer to practice with or in the form of a professional corporation or association in certain specific situations where erosion of the lawyer’s professional independence may be threatened. The
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danger of erosion of the lawyer’s professional independence sometimes may exist when a lawyer practices with associations or organizations not covered by Rule 5.04(d). For example, various types of legal aid offices are administered by boards of directors composed of lawyers and nonlawyers, and a lawyer should not accept or continue employment with such an organization unless the board sets only broad policies and does not interfere in the relationship of the lawyer and the individual client that the lawyer serves. See Rule 1.14. Whenever a lawyer is employed by an organization, a written agreement that defines the relationship between the lawyer and the organization and that provides for the lawyer’s professional independence is desirable since it may serve to prevent misunderstanding as to their respective roles.
Rule 7.01. Communications Concerning a Lawyer’s Services 150 (a) A lawyer shall not make or sponsor a false or misleading communication about the qualifications or services of a lawyer or law firm. Information about legal services must be truthful and nondeceptive. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. A statement is misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation, or if the statement is substantially likely to create unjustified expectations about the results the lawyer can achieve.
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(b) This Rule governs all communications about a lawyer’s services, including advertisements and solicitation communications. 151 For purposes of Rules 7.01 to 7.06: (1) An “advertisement” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to members of the public in general, which offers or promotes legal services under circumstances where the lawyer neither knows nor reasonably should know that the recipients need legal services in particular matters. (2) A “solicitation communication” is a communication substantially motivated by pecuniary gain that is made by or on behalf of a lawyer to a specific person who has not sought the lawyer’s advice or services, which reasonably can be understood as offering to provide legal services that the lawyer knows or reasonably should know the person needs in a particular matter. (c) Lawyers may practice law under a trade name that is not false or misleading. A law firm name may include the names of current members of the firm and of deceased or retired members of the firm, or of a predecessor firm, if there has been a succession in the firm identity. The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. A law firm with an office in more than one jurisdiction may use the same name or other professional designation in each 150 Curtis v. Comm’n for Lawyer Discipline, 20 S.W.3d 227, 234 (Tex. App.—Houston [14th Dist.] 2000, no pet.). The purpose of the rule against false and misleading communications about lawyer qualifications is to protect the public from deceptive advertising, which is a substantial government interest. Rodgers v. Comm’n for Lawyer Discipline, 151 S.W.3d 602, 612 (Tex. App.—Fort Worth 2004, pet. denied) (citing Edenfield v. Fane, 507 U.S. 761, 768 (1993)).
See Tex. Comm. On Professional Ethics, Op. 685 (2020) (concluding that “a Texas lawyer may ask current and former clients to post favorable star ratings and online reviews about the lawyer,” but also that the lawyer “must not … encourage anyone to make false or misleading statements or statements that the person has no factual basis for making,” and if the lawyer becomes aware of such statements, “the lawyer should take reasonable steps to see that such statements are corrected or removed”). 151
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jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (d) A statement or disclaimer required by these Rules shall be sufficiently clear that it can reasonably be understood by an ordinary person and made in each language used in the communication. A statement that a language is spoken or understood does not require a statement or disclaimer in that language. (e) A lawyer shall not state or imply that the lawyer can achieve results in the representation by unlawful use of violence or means that violate these Rules or other law. (f) A lawyer may state or imply that the lawyer practices in a partnership or other business entity only when that is accurate. 152 (g) If a lawyer who advertises the amount of a verdict secured on behalf of a client knows that the verdict was later reduced or reversed, or that the case was settled for a lesser amount, the lawyer must state in each advertisement of the verdict, with equal or greater prominence, the amount of money that was ultimately received by the client. Comments
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1. This Rule governs all communications about a lawyer’s services, including firm names, letterhead, and professional designations. Whatever means are used to make known a lawyer’s services, statements about them must be truthful and not misleading. As subsequent provisions make clear, some rules apply only to “advertisements” or “solicitation communications.” A statement about a lawyer’s services falls within those categories only if it was “substantially motivated by pecuniary gain,” which means that pecuniary gain was a substantial factor in the making of the statement. Misleading Truthful Statements 2. Misleading truthful statements are prohibited by this Rule. For example, a truthful statement is misleading if presented in a way that creates a substantial likelihood that a reasonable person would believe the lawyer’s communication requires that person to take further action when, in fact, no action is required. Use of Actors 3. The use of an actor to portray a lawyer in a commercial is misleading if there is a substantial likelihood that a reasonable person will conclude that the actor is the lawyer who is offering to provide legal services. Whether a disclaimer--such as a statement that the depiction is a “dramatization” or shows an “actor portraying a lawyer”--is sufficient to make the use of an actor not misleading depends on a careful assessment of the relevant facts and circumstances, including whether the disclaimer is conspicuous and clear. Similar issues arise with respect to actors portraying clients in commercials. Such a communication is misleading if there is a substantial likelihood that a reasonable person will reach erroneous conclusions based on the dramatization.
See Tex. Comm. On Professional Ethics, Op. 661 (2016) (discussing, under previous version of the rule, the permissible scope of using a competitor’s name as a keyword in search-engine optimization); Tex. Comm. On Professional Ethics, Op. 478 (1991) (concluding that associated attorneys who are not in a partnership must disclaim partnership status); see also Tex. Comm. On Professional Ethics, Op. 509 (1994) (concluding that the “use of individuals’ names separated only by commas suggests to the general public a professional relationship”); Tex. Comm. On Professional Ethics, Op. 591 (2010) (multiple firms may not “advertise cooperatively using the name of one of the three law firms followed by the word ‘Group.’”). 152
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Intent to Refer Prospective Clients to Another Firm 4. A communication offering legal services is misleading if, at the time a lawyer makes the communication, the lawyer knows or reasonably should know, but fails to disclose, that a prospective client responding to the communication is likely to be referred to a lawyer in another firm. Unjustified Expectations 5. A communication is misleading if there is a substantial likelihood that it will create unjustified expectations on the part of prospective clients about the results that can be achieved. A communication that truthfully reports results obtained by a lawyer on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Depending on the facts and circumstances, the inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to mislead the public. Required Statements and Disclaimers 6. A statement or disclaimer required by these Rules must be presented clearly and conspicuously such that it is likely to be noticed and reasonably understood by an ordinary person. In radio, television, and Internet advertisements, verbal statements must be spoken in a manner that their content is easily intelligible, and written statements must appear in a size and font, and for a sufficient length of time, that a viewer can easily see and read the statements.
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Unsubstantiated Claims and Comparisons 7. An unsubstantiated claim about a lawyer’s or law firm’s services or fees, or an unsubstantiated comparison of the lawyer’s or law firm’s services or fees with those of other lawyers or law firms, may be misleading if presented with such specificity as to lead a reasonable person to conclude that the comparison or claim can be substantiated. Public Education Activities 8. As used in these Rules, the terms “advertisement” and “solicitation communication” do not include statements made by a lawyer that are not substantially motivated by pecuniary gain. Thus, communications which merely inform members of the public about their legal rights and about legal services that are available from public or charitable legal-service organizations, or similar non-profit entities, are permissible, provided they are not misleading. These types of statements may be made in a variety of ways, including community legal education sessions, know-your-rights brochures, public service announcements on television and radio, billboards, information posted on organizational social media sites, and outreach to low-income groups in the community, such as in migrant labor housing camps, domestic violence shelters, disaster resource centers, and dilapidated apartment complexes. Web Presence 9. A lawyer or law firm may be designated by a distinctive website address, e-mail address, social media username or comparable professional designation that is not misleading and does not otherwise violate these Rules. Past Success and Results 10. A communication about legal services may be misleading because it omits an important fact or tells only part of the truth. A lawyer who knows that an advertised verdict was later reduced or reversed, or never collected, or that the case was settled for a lesser amount, must disclose the amount actually received by the client with equal or greater prominence to avoid creating unjustified expectations on the part of potential clients. A lawyer may claim credit for a prior judgement or settlement only if the lawyer played a substantial role in obtaining that result. This standard is satisfied if the lawyer served as lead counsel or was primarily responsible for the settlement. In other cases, whether the standard is met depends on the facts. A lawyer who did not play a substantial role in obtaining an advertised judgment or settlement is subject to discipline for misrepresenting the lawyer’s experience and, in some cases, for creating unjustified expectations about the results the lawyer can achieve.
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Related Rules 11. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.04(a)(3); see also Rule 8.04(a)(5) (prohibiting communications stating or implying an ability to improperly influence a government agency or official).
Rule 7.02. Advertisements (a) An advertisement of legal services shall publish the name of a lawyer who is responsible for the content of the advertisement and identify the lawyer’s primary practice location. (b) A lawyer who advertises may communicate that the lawyer does or does not practice in particular fields of law, but shall not include a statement that the lawyer has been certified or designated by an organization as possessing special competence or a statement that the lawyer is a member of an organization the name of which implies that its members possess special competence, except that: (1) a lawyer who has been awarded a Certificate of Special Competence by the Texas Board of Legal Specialization in the area so advertised, may state with respect to each such area, “Board Certified, area of specialization -- Texas Board of Legal Specialization”; and
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(2) a lawyer who is a member of an organization the name of which implies that its members possess special competence, or who has been certified or designated by an organization as possessing special competence in a field of practice, may include a factually accurate, non-misleading statement of such membership or certification, but only if that organization has been accredited by the Texas Board of Legal Specialization as a bona fide organization that admits to membership or grants certification only on the basis of published criteria which the Texas Board of Legal Specialization has established as required for such certification. (c) If an advertisement by a lawyer discloses a willingness to render services on a contingent fee basis, the advertisement must state whether the client will be obligated to pay for other expenses, such as the costs of litigation. (d) A lawyer who advertises a specific fee or range of fees for an identified service shall conform to the advertised fee or range of fees for the period during which the advertisement is reasonably expected to be in circulation or otherwise expected to be effective in attracting clients, unless the advertisement specifies a shorter period. However, a lawyer is not bound to conform to the advertised fee or range of fees for a period of more than one year after the date of publication, unless the lawyer has expressly promised to do so. Comments 1. These Rules permit the dissemination of information that is not false or misleading about a lawyer’s or law firm’s name, address, e-mail address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language abilities; names of references and, with their consent, names of clients regularly represented; and other similar information that might invite the attention of those seeking legal assistance. Communications about Fields of Practice 2. Lawyers often benefit from associating with other lawyers for the development of practice areas. Thus, practitioners have established associations, organizations, institutes, councils, and practice groups to promote, discuss, and develop areas of the law, and to advance continuing education and skills development. While such activities are generally encouraged, participating lawyers must refrain from creating or using designations, titles, or certifications which are false or misleading. A lawyer shall not advertise that the lawyer
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is a member of an organization whose name implies that members possess special competence, unless the organization meets the standards of Rule 7.02(b). Merely stating a designated class of membership, such as Associate, Master, Barrister, Diplomate, or Advocate, does not, in itself, imply special competence violative of these Rules. 3. Paragraph (b) of this Rule permits a lawyer to communicate that the lawyer practices, focuses, or concentrates in particular areas of law. Such communications are subject to the “false and misleading” standard applied by Rule 7.01 to communications concerning a lawyer’s services and must be objectively based on the lawyer’s experience, specialized training, or education in the area of practice. 4. The Patent and Trademark Office has a long-established policy of designating lawyers practicing before the Office. The designation of Admiralty practice also has a long historical tradition associated with maritime commerce and the federal courts. A lawyer’s communications about these practice areas are not prohibited by this Rule. Certified Specialist 5. This Rule permits a lawyer to state that the lawyer is certified as a specialist in a field of law if such certification is granted by the Texas Board of Legal Specialization or by an organization that applies standards of experience, knowledge and proficiency to ensure that a lawyer’s recognition as a specialist is meaningful and reliable, if the organization is accredited by the Texas Board of Legal Specialization. To ensure that consumers can obtain access to useful information about an organization granting certification, the name of the certifying organization must be included in any communication regarding the certification.
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Rule 7.03. Solicitation and Other Prohibited Communications (a) The following definitions apply to this Rule: (1) “Regulated telephone, social media, or other electronic contact” means telephone, social media, or electronic communication initiated by a lawyer, or by a person acting on behalf of a lawyer, that involves communication in a live or electronically interactive manner. (2) A lawyer “solicits” employment by making a “solicitation communication,” as that term is defined in Rule 7.01(b)(2). (b) A lawyer shall not solicit through in-person contact, or through regulated telephone, social media, or other electronic contact, professional employment from a non-client, unless the target of the solicitation is: (1) another lawyer; (2) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or (3) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters. (c) A lawyer shall not send, deliver, or transmit, or knowingly permit or cause another person to send, deliver, or transmit, a communication that involves coercion, duress, overreaching, intimidation, or undue influence. (d) A lawyer shall not send, deliver, or transmit, or knowingly permit or cause another person to send, deliver, or transmit, a solicitation communication to a prospective client, if: (1) the communication is misleadingly designed to resemble a legal pleading or other legal document; or (2) the communication is not plainly marked or clearly designated an “ADVERTISEMENT” unless the target of the communication is: (i) another lawyer;
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(ii) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or (iii) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters. (e) A lawyer shall not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting or referring prospective clients for professional employment, except nominal gifts given as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services. (1) This Rule does not prohibit a lawyer from paying reasonable fees for advertising and public relations services or the usual charges of a lawyer referral service that meets the requirements of Texas law. (2) A lawyer may refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if: (i) the reciprocal referral agreement is not exclusive; (ii) clients are informed of the existence and nature of the agreement; and
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(iii) the lawyer exercises independent professional judgment in making referrals. (f) A lawyer shall not, for the purpose of securing employment, pay, give, advance, or offer to pay, give, or advance anything of value to a prospective client, other than actual litigation expenses and other financial assistance permitted by Rule 1.08(d), or ordinary social hospitality of nominal value. (g) This Rule does not prohibit communications authorized by law, such as notice to members of a class in class action litigation. Comments Solicitation by Public and Charitable Legal Services Organizations 1. Rule 7.01 provides that a “‘solicitation communication’ is a communication substantially motivated by pecuniary gain.” Therefore, the ban on solicitation imposed by paragraph (b) of this Rule does not apply to the activities of lawyers working for public or charitable legal services organizations. Communications Directed to the Public or Requested 2. A lawyer’s communication is not a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is made in response to a request for information, including an electronic search for information. The terms “advertisement” and “solicitation communication” are defined in Rule 7.01(b). The Risk of Overreaching 3. A potential for overreaching exists when a lawyer, seeking pecuniary gain, solicits a person known to be in need of legal services via in-person or regulated telephone, social media, or other electronic contact. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon an immediate response. The situation is fraught with the possibility of undue influence, intimidation, and overreaching. 4. The potential for overreaching that is inherent in in-person or regulated telephone, social media, or other electronic contact justifies their prohibition, since lawyers have alternative means of conveying necessary information. In particular, communications can be sent by regular mail or e-mail, or by other means that do not involve communication in a live or electronically interactive manner. These forms of communications
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make it possible for the public to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, with minimal risk of overwhelming a person’s judgment. 5. The contents of live person-to-person contact can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading. Targeted Mail Solicitation 6. Regular mail or e-mail targeted to a person that offers to provide legal services that the lawyer knows or reasonably should know the person needs in a particular matter is a solicitation communication within the meaning of Rule 7.01(b)(2), but is not prohibited by subsection (b) of this Rule. Unlike in-person and electronically interactive communication by “regulated telephone, social media, or other electronic contact,” regular mail and e-mail can easily be ignored, set aside, or reconsidered. There is a diminished likelihood of overreaching because no lawyer is physically present and there is evidence in tangible or electronic form of what was communicated. See Shapero v. Kentucky B. Ass’n, 486 U.S. 466 (1988). Personal, Family, Business, and Professional Relationships
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7. There is a substantially reduced likelihood that a lawyer would engage in overreaching against a former client, a person with whom the lawyer has a close personal, family, business or professional relationship, or in situations in which the lawyer is motivated by considerations other than pecuniary gain. Nor is there a serious potential for overreaching when the person contacted is a lawyer or is known to routinely use the type of legal services involved for business purposes. Examples include persons who routinely hire outside counsel to represent an entity; entrepreneurs who regularly engage business, employment law, or intellectual property lawyers; small business proprietors who routinely hire lawyers for lease or contract issues; and other people who routinely retain lawyers for business transactions or formations. Constitutionally Protected Activities 8. Paragraph (b) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee, or trade organizations whose purposes include providing or recommending legal services to their members or beneficiaries. See In re Primus, 436 U.S. 412 (1978). Group and Prepaid Legal Services Plans 9. This Rule does not prohibit a lawyer from contacting representatives of organizations or entities that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries, or other third parties. Such communications may provide information about the availability and terms of a plan which the lawyer or lawyer’s firm is willing to offer. This form of communication is not directed to persons who are seeking legal services for themselves. Rather, it is usually addressed to a fiduciary seeking a supplier of legal services for others, who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the information transmitted is functionally similar to the types of advertisements permitted by these Rules. Designation as an Advertisement 10. For purposes of paragraph (d)(2) of this Rule, a communication is rebuttably presumed to be “plainly marked or clearly designated an ‘ADVERTISEMENT’” if: (a) in the case of a letter transmitted in an envelope, both the outside of the envelope and the first page of the letter state the word “ADVERTISEMENT” in bold face all-capital letters that are 3/8” high on a uncluttered background; (b) in the case of an e-mail message, the first word in the subject line is “ADVERTISEMENT” in all capital letters; and (c) in the case of a text message or message on social media, the first word in the message is “ADVERTISEMENT” in all capital letters. Paying Others to Recommend a Lawyer 11. This Rule allows a lawyer to pay for advertising and communications, including the usual costs of printed or online directory listings or advertisements, television and radio airtime, domain-name registrations, sponsorship fees, and group advertising. A lawyer may compensate employees, agents, and vendors who are engaged to provide marketing or client development services, such as publicists, public-relations personnel,
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business-development staff, television and radio station employees or spokespersons, and website designers. 12. This Rule permits lawyers to give nominal gifts as an expression of appreciation to a person for recommending the lawyer’s services or referring a prospective client. The gift may not be more than a token item as might be given for holidays, or other ordinary social hospitality. A gift is prohibited if offered or given in consideration of any promise, agreement, or understanding that such a gift would be forthcoming or that referrals would be made or encouraged in the future. 13. A lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rule 5.04(a) (division of fees with nonlawyers) and Rule 5.04(c) (nonlawyer interference with the professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.01 (communications concerning a lawyer’s services). To comply with Rule 7.01, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.03 (duties of lawyers and law firms with respect to the conduct of nonlawyers); Rule 8.04(a)(1) (duty to avoid violating the Rules through the acts of another). Charges of and Referrals by a Legal Services Plan or Lawyer Referral Service
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14. A lawyer may pay the usual charges of a legal services plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Qualified referral services are consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. 15. A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. Legal service plans and lawyer referral services may communicate with the public, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead the public to think that it was a lawyer referral service sponsored by a state agency or bar association. Reciprocal Referral Arrangements 16. A lawyer does not violate paragraph (e) of this Rule by agreeing to refer clients to another lawyer or nonlawyer professional, so long as the reciprocal referral agreement is not exclusive, the client is informed of the referral agreement, and the lawyer exercises independent professional judgment in making the referral. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these Rules. A lawyer should not enter into a reciprocal referral agreement with another lawyer that includes a division of fees without determining that the agreement complies with Rule 1.04(f). Meals or Entertainment for Prospective Clients 17. This Rule does not prohibit a lawyer from paying for a meal or entertainment for a prospective client that has a nominal value or amounts to ordinary social hospitality.
Rule 7.04. Filing Requirements for Advertisements and Solicitation Communications (a) Except as exempt under Rule 7.05, a lawyer shall file with the Advertising Review Committee, State Bar of Texas, no later than ten (10) days after the date of dissemination of
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an advertisement of legal services, or ten (10) days after the date of a solicitation communication sent by any means: (1) a copy of the advertisement or solicitation communication (including packaging if applicable) in the form in which it appeared or will appear upon dissemination; (2) a completed lawyer advertising and solicitation communication application; and (3) payment to the State Bar of Texas of a fee authorized by the Board of Directors. (b) If requested by the Advertising Review Committee, a lawyer shall promptly submit information to substantiate statements or representations made or implied in an advertisement or solicitation communication.
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(c) A lawyer who desires to secure pre-approval of an advertisement or solicitation communication may submit to the Advertising Review Committee, not fewer than thirty (30) days prior to the date of first dissemination, the material specified in paragraph (a), except that in the case of an advertisement or solicitation communication that has not yet been produced, the documentation will consist of a proposed text, production script, or other description, including details about the illustrations, actions, events, scenes, and background sounds that will be depicted. A finding of noncompliance by the Advertising Review Committee is not binding in a disciplinary proceeding or action, but a finding of compliance is binding in favor of the submitting lawyer as to all materials submitted for preapproval if the lawyer fairly and accurately described the advertisement or solicitation communication that was later produced. A finding of compliance is admissible evidence if offered by a party. Comments 1. The Advertising Review Committee shall report to the appropriate disciplinary authority any lawyer whom, based on filings with the Committee, it reasonably believes disseminated a communication that violates Rules 7.01, 7.02, or 7.03, or otherwise engaged in conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. See Rule 8.03(a). Multiple Solicitation Communications 2. Paragraph (a) does not require that a lawyer submit a copy of each written solicitation letter a lawyer sends. If the same form letter is sent to several persons, only a representative sample of each form letter, along with a representative sample of the envelopes used to mail the letters, need be filed. Requests for Additional Information 3. Paragraph (b) does not empower the Advertising Review Committee to seek information from a lawyer to substantiate statements or representations made or implied in communications about legal services that were not substantially motivated by pecuniary gain.
Rule 7.05. Communications Exempt from Filing Requirements The following communications are exempt from the filing requirements of Rule 7.04 unless they fail to comply with Rules 7.01, 7.02, and 7.03: (a) any communication of a bona fide nonprofit legal aid organization that is used to educate members of the public about the law or to promote the availability of free or reduced-fee legal services; (b) information and links posted on a law firm website, except the contents of the website homepage, unless that information is otherwise exempt from filing; (c) a listing or entry in a regularly published law list;
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(d) an announcement card stating new or changed associations, new offices, or similar changes relating to a lawyer or law firm, or a business card; (e) a professional newsletter in any media that it is sent, delivered, or transmitted only to: (1) existing or former clients; (2) other lawyers or professionals; (3) persons known by the lawyer to be experienced users of the type of legal services involved for business matters; (4) members of a nonprofit organization which has requested that members receive the newsletter; or (5) persons who have asked to receive the newsletter; (f) a solicitation communication directed by a lawyer to: (1) another lawyer; (2) a person who has a family, close personal, or prior business or professional relationship with the lawyer; or
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(3) a person who is known by the lawyer to be an experienced user of the type of legal services involved for business matters; (g) a communication in social media or other media, which does not expressly offer legal services, and that: (1) is primarily informational, educational, political, or artistic in nature, or made for entertainment purposes; or (2) consists primarily of the type of information commonly found on the professional resumes of lawyers; (h) an advertisement that: (1) identifies a lawyer or a firm as a contributor or sponsor of a charitable, community, or public interest program, activity, or event; and (2) contains no information about the lawyers or firm other than names of the lawyers or firm or both, location of the law offices, contact information, and the fact of the contribution or sponsorship; (i) communications that contain only the following types of information: (1) the name of the law firm and any lawyer in the law firm, office addresses, electronic addresses, social media names and addresses, telephone numbers, office and telephone service hours, telecopier numbers, and a designation of the profession, such as “attorney,” “lawyer,” “law office,” or “firm;” (2) the areas of law in which lawyers in the firm practice, concentrate, specialize, or intend to practice; (3) the admission of a lawyer in the law firm to the State Bar of Texas or the bar of any court or jurisdiction; (4) the educational background of the lawyer; (5) technical and professional licenses granted by this state and other recognized licensing authorities; (6) foreign language abilities;
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(7) areas of law in which a lawyer is certified by the Texas Board of Legal Specialization or by an organization that is accredited by the Texas Board of Legal Specialization; (8) identification of prepaid or group legal service plans in which the lawyer participates; (9) the acceptance or nonacceptance of credit cards; (10) fees charged for an initial consultation or routine legal services; (11) identification of a lawyer or a law firm as a contributor or sponsor of a charitable, community, or public interest program, activity or event; (12) any disclosure or statement required by these Rules; and (13) any other information specified in orders promulgated by the Supreme Court of Texas. Comments 1. This Rule exempts certain types of communications from the filing requirements of Rule 7.04. Communications that were not substantially motivated by pecuniary gain do not need to be filed. Website-Related Filings
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2. While the entire website of a lawyer or law firm must be compliant with Rules 7.01 and 7.02, the only material on the website that may need to be filed pursuant to this Rule is the contents of the homepage. However, even a homepage does not need to be filed if the contents of the homepage are exempt from filing under the provisions of this Rule. Under Rule 7.04(c), a lawyer may voluntarily seek pre-approval of any material that is part of the lawyer’s website.
Rule 7.06. Prohibited Employment (a) A lawyer shall not accept or continue employment in a matter when that employment was procured by conduct prohibited by Rules 7.01 through 7.03, 8.04(a)(2), or 8.04(a)(9), engaged in by that lawyer personally or by another person whom the lawyer ordered, encouraged, or knowingly permitted to engage in such conduct. (b) A lawyer shall not accept or continue employment in a matter when the lawyer knows or reasonably should know that employment was procured by conduct prohibited by Rules 7.01 through 7.03, 8.04(a)(2), or 8.04(a)(9), engaged in by another person or entity that is a shareholder, partner, or member of, an associate in, or of counsel to that lawyer’s firm; or by any other person whom the foregoing persons or entities ordered, encouraged, or knowingly permitted to engage in such conduct. (c) A lawyer who has not violated paragraph (a) or (b) in accepting employment in a matter shall not continue employment in that matter once the lawyer knows or reasonably should know that the person procuring the lawyer’s employment in the matter engaged in, or ordered, encouraged, or knowingly permitted another to engage in, conduct prohibited by Rules 7.01 through 7.03, 8.04(a)(2), or 8.04(a)(9) in connection with the matter unless nothing of value is given thereafter in return for that employment. Comments 1. This Rule deals with three different situations: personal disqualification, imputed disqualification, and referral-related payments.
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Personal Disqualification 2. Paragraph (a) addresses situations where the lawyer in question has violated the specified advertising rules or other provisions dealing with serious crimes and barratry. The Rule makes clear that the offending lawyer cannot accept or continue to provide representation. This prohibition also applies if the lawyer ordered, encouraged, or knowingly permitted another to violate the Rules in question. Imputed Disqualification 3. Second, paragraph (b) addresses whether other lawyers in a firm can provide representation if a person or entity in the firm has violated the specified advertising rules or other provisions dealing with serious crimes and barratry, or has ordered, encouraged, or knowingly permitted another to engage in such conduct. The Rule clearly indicates that the other lawyers cannot provide representation if they knew or reasonably should have known that the employment was procured by conduct prohibited by the stated Rules. This effectively means that, in such cases, the disqualification that arises from a violation of the advertising rules and other specified provisions is imputed to other members of the firm. Restriction on Referral-Related Payments
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4. Paragraph (c) deals with situations where a lawyer knows or reasonably should know that a case referred to the lawyer or the lawyer’s law firm was procured by violation of the advertising rules or other specified provisions. The Rule makes clear that, even if the lawyer’s conduct did not violate paragraph (a) or (b), the lawyer can continue to provide representation only if the lawyer does not pay anything of value, such as a referral fee, to the person making the referral.
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: AI Tools for Lawyers
Sean Hightower
AI Tools for Lawyers
Speaker:
Hightower, Franklin, & James 115 South St Nacogdoches, TX 75961 936.560.3300 phone 936.560.5600 fax seanhightower@yahoo.com email http://www.thegoodlawyer.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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AI Tools for Lawyers – A Practical Guide Artificial intelligence (“AI”) is transforming the legal industry at a remarkable pace and now plays a practical, everyday role in law firms across the globe. Whether automating routine tasks, conducting advanced legal research, or enhancing client services, AI has the potential to reshape how legal professionals operate. However, with numerous AI platforms and tools available, selecting the right solution for your law firm can feel overwhelming. This guide aims to simplify that decision and provide a brief overview of popular GenAI tools used by attorneys.
Benefits and Uses We will begin with looking at some of the benefits of AI in your practice: •
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Increased Efficiency: AI tools can significantly enhance the efficiency of legal practices by automating routine tasks and expediting otherwise complex processes. For example, AI-powered document review systems can analyze vast volumes of information in a fraction of the time it would take a human, freeing up time to focus on other tasks. Improved Accuracy: The precision of AI tools in handling data and performing analyses is unparalleled. AI systems can meticulously organize and manage critical and voluminous documents (such a medical records or voluminous expert reports). Cost Savings: By automating labor-intensive tasks, AI tools contribute to significant cost savings for law firms. The reduction in "man hours" required for tasks like document review and data analysis allows firms to allocate resources more effectively. Enhanced Research Capabilities: AI-powered research tools, such as Westlaw Co-Counsel and Filevine, provide attorneys with advanced capabilities to conduct comprehensive legal research. These tools can quickly sift through extensive legal databases to identify relevant case law, statutes, and legal precedents, empowering attorneys with the information needed to build compelling arguments. Additionally, AI systems can assist in generating helpful information for aspects of cases such as demand letters, which are crucial in settlement negotiations. Better Client Service: AI tools enhance client service by improving communication and responsiveness. For example, AI systems can track communications, ensuring that follow-ups and action items are noted for future tasks. This proactive approach to case management can simplify tasks and improve client relationships. Practical Applications: AI tools can be used to assist in the performance of tasks common to most law practices. For instance, AI-powered systems can 1
assist in scheduling and managing deadlines, reducing the risk of missed deadlines, and ensuring compliance with court requirements.
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The specific areas where AI appears to be making the largest impact in the legal field: • Legal Research: AI can swiftly scan extensive case law databases, statutes, and regulations. These tools can pinpoint the most relevant results based on context, thereby saving hours of manual effort. Advanced AI can even identify patterns and suggest related issues that a manual search might miss. • Document Review: Discovery is among the most time-consuming aspects of litigation. AI tools can efficiently classify, tag, and extract key information from thousands of documents. Predictive coding and Technology Assisted Review (TAR) alleviate the burden on attorneys while enhancing accuracy. Some platforms also offer sentiment analysis and redaction automation. • Contract Review and Analysis: AI platforms can analyze contracts to highlight missing clauses, pinpoint risks, and ensure regulatory compliance. These tools assist attorneys in reducing review time from hours to minutes and support things like version comparisons and clause libraries. • Litigation Prediction: AI tools leverage data analytics to predict litigation outcomes, judge behaviors, and opposing counsel strategies. This enhances strategy development and client counseling by enabling firms to tailor arguments, set settlement expectations, and determine venue decisions based on datadriven insights. • Client Communication and Intake: Chatbots and virtual assistants can handle client inquiries, schedule appointments, and collect initial information. Several tools are specifically designed for legal applications and can integrate with systems to enhance client onboarding and ensure consistent engagement. • Billing and Time Tracking: AI can automate time entry, suggest billing codes, and identify billing inefficiencies. Several tools offer AI-driven timekeeping features that automatically track time spent on calls, emails, and document editing, ensuring more accurate and complete billing.
Strategy for Use of AI A successful AI adoption strategy starts with clearly understanding your firm's unique needs. Some important factors you may consider: •
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Practice Area: Different legal practices require different AI functionalities. For example, personal injury attorneys may focus on client intake and case management, while intellectual property firms may prioritize document search and pattern recognition for prior art. Employment law firms might benefit from compliance monitoring and real estate attorneys from automated deed and title reviews. Firm Size and Structure: A solo attorney or small firm may prefer cloud-based, low-cost solutions that require minimal IT support, while a large firm with an IT department might invest in a robust on-premises AI platform with advanced 2 349
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analytics, user permissions management, and multi-office integration. Case Volume and Complexity: High-volume firms will benefit more from automation and document analysis tools that reduce manual labor and human error. Complex litigation firms might prioritize advanced legal analytics and collaborative features to support multi-lawyer teams working on high-stakes cases.
Client Expectations: Are your clients demanding faster turnarounds or more detailed analytics? Tech-savvy clients may expect online portals, real-time updates, and transparency in billing, all of which AI-driven solutions can support or enhance. Budget Constraints: Determine how much your firm can invest in financial resources and personnel training. Account for the upfront costs of licenses or subscriptions and long-term expenses related to maintenance, upgrades, and user training.
When comparing AI platforms, keep an eye on these key capabilities: • •
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AI Tools for Lawyers
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Customizability: Your platform should adapt to your firm's workflows, not vice versa. Data Security and Compliance: Ensure the platform meets strict data protection standards. Features like role-based access, audit trails, and encryption should be standard. User Experience: Choose platforms with an intuitive interface and clear user documentation. Consider platforms that provide visual workflows, searchable help centers, and embedded support tools to reduce training time. Scalability: Ensure the platform can grow as your firm expands. It should be able to accommodate more users, larger data sets, and additional functionalities without a performance drop.
Additionally, key evaluation criteria should include: •
•
•
•
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Industry Experience: Does the vendor specialize in legal tech? Have they worked with firms like yours? Look for vendors who demonstrate domain-specific knowledge and an understanding of legal workflows. Client Reviews and References: Look for third-party reviews, testimonials, and case studies that address performance and customer satisfaction. Peer feedback is often the most reliable predictor of vendor success. Customer Support: Evaluate training, onboarding resources, and technical support availability. Live chat, helpdesk tickets, and dedicated account managers can make a big difference during implementation and troubleshooting. Contract Terms: Avoid long-term lock-ins, automatic renewals, or unclear pricing structures. Flexible, short-term contracts are often preferable during initial deployment. Trial Period: Insist on a pilot program. Run the platform through real-world scenarios to evaluate ease of use, output accuracy, and compatibility with firm processes.
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AI Tools Virtually every tool or platform listed offers not only demonstrations, but free trials. This offers practitioners the ability to evaluate each of the tools for themselves without committing to a long-term obligation. We provide an overview of options below to get you started depending on your needs:
1. Case Management Tools 2nd Chair.ai - 2nd Chair allows users to upload all its files to a system that can analyze the documents, prepare summaries, and accelerate the identification of facts within those documents. 2nd Chair also provides legal research help and allows users to see the sources of its answers.
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Clio Duo – Clio’s cloud-based legal practice management platform centralizes law firm operations and offers GenAI add-ons. Clio Duo embeds within Clio Manage, allowing users to access GenAI and machine learning within their Clio database. Powered by Microsoft Azure OpenAI GPT-4, Clio Duo summarizes documents, drafting e-mails and letters, and helps prioritize workflows.
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Filevine - Filevine automates financial data extraction, labeling, and categorization. It tracks billable hours and invoices, and analyzes lead data from online forms, social media, and referrals. Filevine’s ImmigrationAI feature lets attorneys quickly identify relevant forms, autofill them with client data, and provide translations in over 170 languages. Filevine’s Demands AI creates documents such as custom demand letters by analyzing case details and relevant legal precedents. Filevine’s Sidebar AI uses a virtual AI legal assistant to provide real-time support.
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LEAP - LEAP tracks and records billable hours. LEAP’s time analytics can help identify areas to optimize time management. LEAP’s AI assistant, LawY, addresses legal questions by analyzing case law. LEAP’s Document Generator (LawY) uses historical cases and built-in templates to automate document creation including correspondence and templates.
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MyCase - MyCase automates document generation, email drafting, and data extraction. It also analyzes context and legal precedents to create affidavits, contracts, and other documents. MyCase’s GenAI-enhanced search helps locate and retrieve important case information. MyCase also seeks to improve workflow by automatically creating tasks and events based on information extracted from uploaded documents.
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Smokeball - Smokeball automates billable hours tracking to generate detailed time entries. If given access, Smokeball can scan e-mail inboxes to save emails and attachments to their related cases. Smokeball also provides detailed
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financial analytics for particular clients and matters. Smokeball can also help automatize intake processes and legal form creation. •
CosmoLex - CosmoLex is cloud-based law practice management software that integrates trust and business accounting, time tracking, billing, email & document management, and tasks & calendaring, in a single application. CosmoLex offers features like an interactive GenAI chatbot for real-time case questions, automated document drafting, and searchable medical chronologies and case timelines. However, CosmoLex is primarily a billing and accounting platform.
2. Case Outcome Prediction Tool •
Lex Machina - Lex Machina uses AI technology to provide case predictions. Lex Machina, offered by LexisNexis, pitches itself as providing predictions regarding the outcome of cases based on the history of the court, judge(s), lawyers, and parties involved in the matter. Lex Machina identifies the prior cases it relies on and provides visualizations to help attorneys more easily understand the information presented.
AI Tools for Lawyers
3. Contract Analysis and Management Tools •
Diligen - Diligen is a machine learning contract analysis tool. Diligen can match due diligence documents with contractual provisions, find specific provisions across agreements and provide contract summaries. Diligen enables automated contract drafting and clause identification. Diligen is compatible with Clio and can run its analyses on documents in a Clio system.
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Ironclad - Ironclad is a contract management system. Ironclad allows companies to manage their contracts throughout the entire contract cycle from drafting to expiration. Ironclad uses AI to data tag contracts, suggest redlines, flag unallowed clauses, and create a dashboard contract reporting. Ironclad offers a GenAI assistant, Jurist, capable of drafting contracts, contract clauses, redlines, and performing research on your contract database as well as legal and regulatory resources. Ironclad also offers a prompt library to help users new to GenAI to quickly become proficient.
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Kira Systems - Kira Systems is a machine learning contract analysis tool. Kira Systems, offered by Litera, uses machine learning to identify, extract, and analyze contractual clauses. Kira Systems can also compare data from documents with contract provisions. Kira Systems’ marketing focuses largely on analyzing contracts as part of the due diligence process.
4. E-Discovery Tools •
Everlaw - Everlaw is an e-discovery platform that integrates AI into its research and case preparation platform to identify documents through analytics and counterarguments. Everlaw’s Storybuilder uses machine learning and GenAI to 5
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develop timelines and organize the story of the parties’ dispute. Everlaw can also summarize key documents and create draft communications with verifiable citations to documents. •
Relativity - Relativity uses generative AI for efficient document review during the research process. Relativity uses machine learning to narrow the scope of documents that need human review before production. It also can help identify the most important documents that have been produced by opposing counsel. Relativity is also a leader in providing analytics and visualizations of discovery documents.
5. Legal Research Tools Bloomberg Law – Bloomberg Law uses GenAI and machine learning to provide immediate results for queries against both case documents and legal sources. Using machine learning, Bloomberg’s Smart Code pulls case extracts interpreting both federal and state law. Among its features, it ranks each case discussion as strong, moderate, or weak to streamline research. Bloomberg also offers a Brief Analyzer which automatically checks citations, searches cited case law, and can suggest related authorities.
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Harvey AI - Harvey AI is a GenAI-powered legal research tool that operates as a chatbot. HarveyAI is built on OpenAI technology. However, Harvey AI also uses a separate legal database to improve its research answers. and a law firm’s own work products and templates to specifically support legal work. Harvey AI also allows users and firms to upload historical case documents which its service will scan as part of its legal research and document analysis. Harvey AI is designed to assist firms with contract analysis, due diligence, litigation, and regulatory compliance.
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Lexis+ - Lexis+ uses GenAI to search its databases, improving its search functionality. Lexis+ also offers a powerful document analysis tool that allows users to upload briefs which are then analyzed for additional authority supporting the arguments raised or authority that contradicts or may weaken those arguments. Lexis+ also offers litigation analytics, showing prior results from your particular jurisdiction and judge.
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vLex fastcase - Vincent AI’s vLex uses GenAI search against a database containing case law, legislative information, law journals, and other secondary sources. vLex will also summarize documents, including legal documents such as contracts. For litigators, vLex uses GenAI to build timelines and suggest arguments. vLex is powered by legal sources from all fifty states and seventeen countries.
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Westlaw Edge - Westlaw Edge uses GenAI trained on Westlaw’s KeyCites to help ensure attorneys collect the accurate sources during the research process. Westlaw Edge analyzes briefs generating a report indicating authority that may
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have been missed in research or which contradicts the authority cited by opposing counsel.
6. Legal Specific LLMs •
CoCounsel – CoCounsel is a large language model powered by OpenAI. This product is made available by Westlaw/Thomson Reuters but is compatible with other legal service software platforms as well. This AI legal assistant tool is knowledgeable, reliable, and secure enough to support the practice of law. Cocounsel operates similarly to other LLMs but it was trained for the law. Importantly, while Cocounsel is powered by OpenAI, it has a dedicated server that does not (currently) allow OpenAI to train on the uploaded data.
7. Virtual Receptionists Smith.ai - Smith.ai is a virtual receptionist. While AI technology is not able to replace attorneys, it can replace or limit the burden on existing staff. Although the “virtual receptionist” is an actual human, Smith.ai uses AI with its chatbot features to decide how to log and route calls. Both the receptionist and chat features integrate with Clio.
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Preservation of Error in the Trial of a Texas Criminal Case or Some Might Say “Let the Games Begin”
Speaker:
Mac Secrest
1545 Heights Blvd, Ste. 800 Houston, TX 77008 713.757.0679 phone 713.650.1602 fax mac@bennettandsecrestlaw.com email http://www.macsecrestlaw.com/ website
Preservation Of Error 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Preservation of Error in the trial of a Texas Criminal Case or Some Might Say “Let the Games Begin”
Presented and Written by: George McCall Secrest, Jr. BENNETT & SECREST, PLLC 1545 Heights Boulevard, Suite 800 Houston, Texas 77008 www.macsecrestlaw.com
39th Annual Rusty Duncan ADVANCED CRIMINAL LAW COURSE SAN ANTONIO, TX
Preservation Of Error
2026
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TABLE OF CONTENTS (A)
Introduction–The Basic Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 T.R.A.P. 33.1. Preservation; How Shown. . . . . . . . . . . . . . . . . . . . . . . . . . 2 Tex. R. Evid. 103. Rulings on Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Tex. R. Evid. Rule 104. Preliminary Questions.. . . . . . . . . . . . . . . . . . . . . . 4
(B)
Strategic considerations in gaining a tactical advantage while preserving error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(C)
General propositions to consider regarding preservation of error . . . . . . . . . . 8 Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d. 262 (Tex. Crim. App. 1997) and its progeny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(D)
Mechanics of Objecting and Preserving error–Obligation to object under the Texas Rules of Appellate Procedure 33.1; Its contours, requirements and limitations in conjunction with Tex. R. Evid. 103(e).. . . . . . . . . . . . . . . . . . 11
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Public policy considerations respecting preservation of error rules. . . . . . . . 11 Formulating and identifying claims of error.. . . . . . . . . . . . . . . . . . . . . . . . 13 Requirement of specificity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Timeliness of objection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Securing an adverse ruling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Objections must be on the record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 “Splitting hairs” should be avoided when determining procedural default. . . . 22 Repeating objections (obligation to continue to object). . . . . . . . . . . . . . . . 23 Doctrine of Curative Admissibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Running objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Request for hearing or inquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Erroneously excluded evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 The Oblivious trial judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 “No objection” waiver rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Invited Error–. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Tex. R. Evid. 103 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Fundamental Error (Tex. R. Evid. 103(e).. . . . . . . . . . . . . . . . . . . . . . . . . 35
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Miscellaneous additional preservation rules to consider. . . . . . . . . . . . . . . . 37 (E)
Application of Preservation of error rules to Various Aspects of trial proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 (1) (2) (3) (4) (5) (6)
(7) (8) (9)
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(10) (11) (12) (13) (14) (15) (16) (17)
Indictments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Motions to Suppress. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Indigent defendant’s right to 10 days to prepare for trial. . . . . . . . . . 43 Voir Dire and Jury selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Opening statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Admission and exclusion of evidence at trial. . . . . . . . . . . . . . . . . . . 47 (Credibility/Confrontation Issues). . . . . . . . . . . . . . . . . . . . . . . . . . 48 (Voluminous Documents/Exhibits/Testimony of Witness on more than One Subject). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 (Erroneous exclusion of evidence). . . . . . . . . . . . . . . . . . . . . . . . . . 51 Expert witness testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Legal sufficiency of the evidence (Motions for Directed Verdict). . . . 52 Jury Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Unobjected to jury instruction error (“Almanza error”). . . . . . . . . . . 54 Limiting Instructions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Jury arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Jury notes, trial court responses thereto, and verdicts. . . . . . . . . . . . 57 Judgments and sentences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Motions for New trial/arrest in judgement.. . . . . . . . . . . . . . . . . . . . 59 Double jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Unconstitutional statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Statute of Limitation Defenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
F)
Preservation rules cut both ways and apply to the Sovereign as an Appellant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
(G)
Appellee’s Burden or Duty to Raise and Present Issues in the Trial Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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Preservation of Error in the trial of a Texas Criminal case or Some Might Say “Let the Games Begin”1 (A)
Introduction–The Basic Rules “Litigants [are] not required by Rule 52(a) [now T.R.A.P. 33.1] to do more for the preservation of their complaints on appeal than they must do at trial to secure benefits of the law to which they are entitled.” Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993).
Sound simple enough? Not really. Tex. R. App. Proc. 33.1 and Tex. R. Evid. 103 set out what is required in order to preserve issues raised at trial for appellate review; however, the interpretation and application of these rules are not always administered consistently and uniformly by appellate courts. That being said, the Fifth Circuit has declined to find that Texas’ contemporaneous objection rule “is inherently discretionary or applied so arbitrarily that it does not constitute an adequate state procedural basis for rejecting on appeal a Texas defendant’s federal constitutional contentions.” Dix and Schmolesky, Texas Practice, Criminal Practice and Procedure, Vol. 43A § 53:2 at p. 953 [hereinafter cited as “Dix”],2 citing, Amos v. Scott, 61 F.3d 333, 338-46 (5th Cir. 1995). Preservation Of Error
According to Colonel Google, this phrase was first uttered in ancient Greece in 776 BC. Funny how some things never change. 1
It is essential for all serious criminal law practitioners to familiarize themselves with the 6 volume treatise of Dix and Schmolesky–the preeminent authorities on Texas Criminal Procedure. I never leave home without it. Their tome has been instrumental in the drafting of this paper. 2
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T.R.A.P. 33.1. Preservation; How Shown
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(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal. (b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court. (c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal. (d) Sufficiency of Evidence Complaints in Civil Nonjury Cases. In a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence--including a complaint that the damages found by the court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of fact--may be made for the first time on appeal in the complaining party's brief. A thorough understanding of T.R.A.P. 33.1 (hereinafter Rule 33.1) and T.R. Evid. 103(a) is essential for any trial or appellate lawyer. It is essential for trial
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lawyers to know in order to “secure benefits of the law to which they are entitled” by adequately requesting such relief prior to, during, and after the conclusion of trial. If such relief is not forthcoming, it is essential to know in order to “perfect” or “preserve” error for appeal. In turn, it is essential for appellate lawyers to know because not all errors need to be “preserved” or “perfected” at trial as a condition precedent to litigating the same successfully on appeal. Tex. R. App. Pro. 33.1 is not the exclusive source of law for the duty to preserve error for review of issues on appeal and does not apply to the review on appeal of all forms of error. For example, Tex. Code of Crim. Pro. art. 1.14(b) pertains to error preservation of defects, error, or irregularity of form or substance in an indictment or criminal information. Art. 36.14 deals with the trial court’s charge to the jury and the manner for litigants to request or object to jury instructions. It has been interpreted to eschew error preservation in circumstances where the trial court’s instructions results in egregious harm to the defendant. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). Preservation Of Error
Tex. R. Evid. 103. Rulings on Evidence (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and 3 361
(B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. (b) Not Needing to Renew an Objection. When the court hears a party's objections outside the presence of the jury and rules that evidence is admissible, a party need not renew an objection to preserve a claim of error for appeal. (c) Court's Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court must allow a party to make an offer of proof as soon as practicable. In a jury trial, the court must allow a party to make the offer outside the jury's presence and before the court reads its charge to the jury. At a party's request, the court must direct that an offer of proof be made in question-and-answer form. Or the court may do so on its own. (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. (e) Taking Notice of Fundamental Error in Criminal Cases. In criminal cases, a court may take notice of a fundamental error affecting a substantial right, even if the claim of error was not properly preserved. (Emphasis added.) Tex. R. Evid. Rule 104. Preliminary Questions
Preservation Of Error
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. (c) Conducting a Hearing So That the Jury Cannot Hear It. The court 4 362
must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession in a criminal case; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires. (d) Cross-Examining a Defendant in a Criminal Case. By testifying outside the jury's hearing on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case. (e) Evidence Relevant to Weight and Credibility. This rule does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. (B)
Strategic considerations in gaining a tactical advantage while preserving error Requesting pretrial hearings in order to determine whether a witness is qualified, a privilege exists, or evidence is admissible. (Examination of State witnesses either before trial or during trial but outside the presence of the jury prior to their testimony) Practice Tip: As for strategic considerations, trial counsel may serve her
client exceptionally well in many circumstances by raising issues and litigating the same prior to the commencement of trial, or at least outside the presence of the jury before such evidence ultimately makes its way into the jury box. Tex. R. Evid. Preservation Of Error
103(a), 104(a) and (c), and 705(b), are excellent vehicles to employ in order to gain insight into the likely testimony of witnesses, especially experts, by testing the witness’ opinions and having them disclose the “underlying facts or data” upon which their opinions are based, outside the presence of the jury, prior to the prosecution 5 363
eliciting their testimony in the presence of the jury. Such proceedings can and should be used to test whether particular evidence is admissible (and this goes far beyond merely attempting to suppress evidence on constitutional or statutory grounds.) In addition, and of particular importance with respect to principles of error preservation, Rule 103(b) provides that once objections are lodged during a preliminary hearing outside the presence of the jury and the trial court rules on the same, there is no requirement to continue to object thereafter. (A hearing occurring at a bench conference qualifies as a hearing conducted outside the presence of the jury for purposes of Rule 103(a). Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005)). I frequently will state for the record that in light of the trial court overruling my objection or denying my request for relief that I will forego continuing lodging objections to the matter at trial but that I am not “waiving” or “forfeiting” the error by relying on my objection during the preliminary or pretrial hearing. Depending on the circumstances, once the matter is preserved, you may or may not want to object Preservation Of Error
to the same in the presence of the jury. In addition, I will often ask the trial court on the record whether she understands my objection or whether I need to explain it more clearly. I have never had a trial court (or prosecutor) want to hear more from me and inevitably I am told that the court understands the objection. This will normally nip 6 364
in the bud spurious contentions raised by the prosecution on appeal that the objection was not specific enough, too general, or somehow incomplete. But again, everything here is “context”. Appellate courts will review written pleadings, cases cited by the parties and the court, as well as comments made by court participants to get a sense of what the issue was that was being discussed that resulted in the erroneous exclusion or inclusion of evidence complained about on appeal. See Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009). Rule 104 proceedings basically give you a chance to take the deposition of the adverse witness prior to your cross-examination in the presence of the jury. Surprise is minimized, discovery is enhanced, and effective cross-examination is honed and maximized–the Triple Crown of winning trial advocacy. As Rule 104(a) reflects, preliminary questions “about whether a witness is qualified, a privilege exists, or evidence is admissible” must be decided by the trial court. Relevancy determinations predicated on whether a fact exists must be established by sufficient proof “that the fact does exist.” Rule 104(b). Of particular import is Rule 104(c)’s requirement that Preservation Of Error
these preliminary hearings MUST be conducted outside the presence of the jury (or at least where they can’t initially hear the testimony) if: “(1) the hearing involves the admissibility of a confession in a criminal case; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires.” 7 365
In tandem, Rule 705(b) which addresses “Voir Dire Examination of an Expert About the Underlying Facts or Data”, provides that “[b]efore an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may– or in a criminal case must –be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.” Every effort should be made by defense counsel to secure these hearings as often and early as possible. (C)
General propositions to consider regarding preservation of error Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d. 262 (Tex. Crim. App. 1997) and its progeny
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Traditionally in American jurisprudence there are an “array of rules which are optional with the litigants. As a general proposition, the judge is deemed an ‘institutional referee’ and only enforces the rules ‘when asked by the litigant for whose benefit the rule exists.’ Whether the issue has to be preserved ‘turns on the nature of the right allegedly infringed.’ Not all error needs to be ‘preserved’. ‘Systemic’ and ‘waivable’ error are a different specie than that of ‘forfeitable’ error. Systemic error addresses “rights that are widely considered so fundamental to the proper functioning of our adjudicatory process that they cannot be forfeited by inaction alone. These are considered absolute rights.” Marin v. State, supra. These rights are to be observed even without partisan request and cannot lawfully be avoided even with partisan consent. Examples include jurisdiction over the defendant,3 jurisdiction of the
Davis v. State, 956 S.W.2d 555 (Tex. Crim. App. 1997) (See this opinion for a thorough discussion of “jurisdictional matters” with respect to lack of authority of judicial authorities based on constitutional or statutory disqualification grounds.) 3
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subject matter, “a penal statute’s being in compliance with the Separation of Powers section of the state constitution”, see Aldrich v. State, 104 S.W.3d 890 (Tex. Crim. App. 2003); and Dunbar v. State, 297 S.W.3d 777 (Tex. Crim. App. 1977); the right to a neutral and detached judge. Aviles v. State, 333 S.W.3d 661 (Tex. App.–Houston [1st Dist. 2010); Mumprey v. State, 509 S.W.3d 565 (Tex. App.–Texarkana 2016, pet. ref’d); Arizona v. Fulminante, 499 U.S. 279, 309–10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); and ex post facto violations. Leppert v. State, 908 S.W.2d 217 (Tex. Crim. App. 1995).4 As can be seen, these rights are quite limited in number.
Preservation Of Error
There are other rights that are not “systemic” but are so basic and essential that they are not “forfeitable”–they cannot be surrendered by mere inaction alone. Rather, they are “waivable” if the waiver is affirmatively, plainly, freely, and intelligently made. Marin v. State, supra. “The trial judge has an independent duty to implement these rights absent any request unless there is an effective express waiver.” Garza v. State, 435 S.W.3d 258 (Tex. Crim. App. 2014). For example, there is no requirement to object to trial court’s failure to appoint qualified interpreter for defendant’s hearing impairment. Jaimes v. State, 611 S.W.3d 78 (Tex. App.–Houston [14th . Dist.] 2020); other examples include the right to trial by jury. Hernandez v. State, 683 S.W.3d 586 (Tex. App.–Dallas 2024); the right to assistance of counsel; right of indigent defendant to 10 days to prepare for trial. Marin v. State, supra; failure to comply with art. 46.02 of Code of Criminal Procedure which mandates exclusion of an accused’s incriminating statements made during competency examination. Houston v. State, 490 S.W.2d 851 (Tex. Crim. App. 1973); statutory requirements for guilty pleas pursuant to art 1.15 and 26.13 of the Code of Criminal Procedure. Lopez v. State, 708 S.W.2d 446 (Tex. Crim. App. 1986), disapproved on other grounds. Messer v. State, 729 S.W.2d 694 (Tex. Crim. App.1986); and Bessey v. State, 239 S.W.3d 809 (Tex. Crim. App. 2007). But see art. 26.13 (h) The Court of Criminal Appeals has rejected the notion that unobjected to error even if egregious is cognizable on appeal without preservation below. Proenza v. State, 541 S.W.3d 786 (Tex. Crim. App. 2017). See discussion, infra, dealing with the distinctly different matter of “fundamental error”. 4
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pertaining to faulty admonishments as to sex registration requirements; •
(Aguirre v. State,___S.W.3d___, 2026 WL 468009 (Tex. App.–Houston [14 t h Dist.], February 19, 2026) (Trial court’s quantification during jury selection as to what “beyond a reasonable doubt” represents–a confidence amounting to a mere “60 percent”–that was unobjected to by defense counsel held to be cognizable for first time on appeal. Appellant’s complaint that the comment violated Due Process by lessening the State’s burden of proof was categorized as a category two “waivable-only” error and found not to be harmless beyond a reasonable doubt. The Court distinguishes Proenza v. State by characterizing the error as not being a “forfeitable” one.) In order to constitute an express waiver, it must amount to an “intentional relinquishment or abandonment of a known right or privilege.” Birdsong v. State, 82 S.W.3d 538 (Tex. App.–Austin 2002)(Fifth Amendment right not to testify is a waivable right; defendant was not required to object to preserve error that the State erred in calling him to the witness stand during the punishment phase of his trial.) Note: (Court found that although no objection was required to have been made, that his testimony was given knowingly, voluntarily, and intelligently where defendant was represented by counsel who did not object and defendant answered questions “openly, freely, and without hesitation.”)
Preservation Of Error
•
The third class of error–and the most predominant and usual one encountered in criminal litigation–is that of “forfeited” error. By not timely, specifically, and continually objecting (and by not receiving an adverse ruling) these errors are “forfeited”. A procedural bar exists because counsel did not “perfect” the error by “preserving” it below. Many rights of the criminal defendant, including some if not most constitutional rights, are in this category and can be forfeited by inaction. As Marin explains, the concept of “forfeiture and procedural default” are synonymous. Both refer to the loss of a claim or right for failure to insist upon it by objection, request, motion, or some other behavior calculated to exercise the right in a manner comprehensible to the system’s impartial representative, usually the trial judge. The trial 10
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judge has no duty unless requested to enforce forfeitable rights.5 That being said, appellate opinions are riddled with improper and inaccurate nomenclature that speak in terms of “waiver” of error when, in fact, the court actually means that the party “forfeited” the error;
(D)
•
Rule 33.1's preservation requirements do not apply to rights falling within the first two categories–“systemic” and “waivable”;
•
Because preservation of error is a systemic requirement, all intermediate (first-tier) appellate courts may not reverse a judgment or conviction without first addressing issues of error preservation.) Gipson v. State, 383 S.W.3d 152, 159 (Tex. Crim. App. 2012). If an intermediate court fails to address preservation of error, the Court of Criminal Appeals will gladly do so. Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020). Purported lack of preservation may be raised at any time. Moore v. State, 295 S.W3d 329, 333 (Tex. Crim. App. 2009);
•
Even if error is presented and properly preserved does not mean that “reversible” error is presented. Most errors–in fact the vast majority of errors including constitutional law violations–are subject to a “harmless error” determination. See T.R.A.P. 44.2. Failure to identify harm suffered by introduction of extraneous offense evidence constitutes forfeiture of error. Wilson v. State, 473 S.W.3d 889 (Tex. App.–Houston [1st . Dist.] 2015);
Mechanics of Objecting and Preserving error–Obligation to object under the Texas Rules of Appellate Procedure 33.1; Its contours, requirements and limitations in conjunction with Tex. R. Evid. 103(e). Public policy considerations respecting preservation of error rules Preservation Of Error
The general rule is that a party must make a timely, specific objection to the alleged error and obtain a ruling from the trial court. Pena v. State, 285 S.W.3d 459,
5
Hughes v. State, 691 S.W.3d 504 (Tex. Crim. App. 2024). 11 369
463-64 (Tex. Crim. App. 2009). The public policy rationale as to why error needs to be preserved is basically to give both the proponent’s adversary and the trial court notice of the problem and a chance to duly correct it. Zillender v. State, 557 S.W.2d 515 (Tex. Crim. App. 1977).
(In theory, that may be laudatory; in practice, it
frequently is utter bullshit. Even if the proper objection had been made at the time, it would have likely been futile because the trial court clearly was going to do what she did in the first place–overrule your objection. And, why in the world do we have to remind the prosecutor what is and is not admissible and what the proper predicate to be utilized is and is not when admitting evidence deleterious to our client? We know that far too often judges and prosecutors work as a team and it should be readily apparent that had an objection been lodged (or a more precise objection made), the result would have inevitably been the same.) The “rub” comes in applying preservation of error rules in such a way that they serve to conserve resources both at trial and on appeal by requiring sufficient objections in order to bring problems to the attention of the trial court and your adversary at a time when those problems can Preservation Of Error
be remedied and ameliorated, and yet not insist on such a rigid application “when [error preservation] objectives would not be furthered by requiring preservation.” Dix, supra, at 955. Bear in mind that in some circumstances federal constitutional considerations 12 370
place limits on application of State preservation of error requirements. State defendants seeking habeas relief in federal court
for the vindication of federal
constitutional rights typically are required to have complied with State procedural requirements regarding preservation of error; the waiver or forfeiture of the error in State court proceedings constitutes an “independent state ground” which forecloses review of the claim in federal court. If, however, the “enforcement of a state procedural requirement so little serves to advance legitimate state interests”, federal courts will look through the procedural default and address the substantive merits of the claim. Henry v. Mississippi, 379 U.S. 443 (1965). This rule, however, has been held applicable only in a “small category of cases....” Lee v. Kemna, 534 U.S. 362 (2002). Professor Dix has posited that Texas appellate courts should be mindful of the fact that at least in theory Federal courts can sometimes pierce the application of preservation of error rules when reviewing federal constitutional claims on federal habeas and, therefore, should interpret preservation of error rules in such a way as not to foreclose review of the substantive merits of the claim on state review. Dix, at 958Preservation Of Error
959. Formulating and identifying claims of error Professor Dix has written extensively on the subject of trial court error and the preservation of that error and offers the following insightful commentary: 13 371
Formulations of claims of error are best approached on the assumption that only the trial judge can commit error. Further, error can, as a general rule, be committed only when the trial judge refuses a request for action or takes action over objection. In some situations, however, procedural or substantive law requires that the judge act without request of a party. If that is the case, the trial judge has a duty to act sua sponte and thus can commit error by failing to act regardless of whether a party has requested action.6 A claim of error should carefully identify the action of the trial judge of which the appellant wishes to complain. Argument in support, then, should focus upon the judge’s obligation under the law to have acted otherwise. Preservation of error analysis should focus upon whether the appellant adequately called to the trial court’s attention the appellant’s claim that the judge should act otherwise. Dix, supra, at 961. In any event, you must bring the matter to the trial court’s attention either in writing or orally. Motions suppress need to be in writing. Objections to jury charges can be in writing or made orally if dictated to the court reporter in the presence of the prosecutor. Art. 36.14. Merely filing a written document with the clerk will not get you very far. You have an affirmative duty to bring the matter to the trial court’s attention and preferably do so on the record. DeBlanc v. State, 799 S.W.2d 701 (Tex.
Preservation Of Error
Crim. App. 1990).
In such situations, there is no requirement to preserve error for review on appeal. Aldrich v . State, 53 S.W.3d 460, 477 (Tex. App.–Dallas 2001), aff’d 104 S.W.3d 890 (Tex. Crim. App. 2003) (Richter J., dissenting). 6
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Requirement of specificity Franco v. State, 339 S.W.3d 793 (Tex. App.–Amarillo 2011) (objection on grounds that testimony constituted a “conclusion” was not specific enough without more to support ground of error on appeal that the testimony constituted improper bolstering);
•
Ex parte Martinez, 330 S.W.3d 891 (Tex. Crim. App. 2011) (objection to two gang-related photographs did not preserve error as to other gangrelated evidence);
•
Paredes v. State, 129 S.W.3d 530 (Tex. App. 2004) (pretrial ruling excluding admissibility of written statements of witnesses did not excuse objecting to the trial testimony of those witnesses);
•
Anzualda v. State, 114 S.W.3d 741 (Tex. App.–Corpus Christi 2003) (objection on basis of hearsay was insufficient to support ground of error predicated on attorney-client privilege);
•
Long v. State, 800 S.W.2d 545 (Tex. Crim. App. 1990) (Generally, objection on ground of “hearsay” is sufficient. Once lodged and sustained, the proponent of the evidence is duty bound to establish admissibility pursuant to an exception to the hearsay rule);
•
Rivas v. State, 275 S.W.3d 880 (Tex. Crim. App. 2009) (No requirement to specifically identify a rule of evidence if the objection otherwise is sufficient to identify the nature of the claim);
•
Gallups v. State, 151 S.W.3d 196 (Tex. Crim. App. 2004) (No requirement (at least in that case) to rely on specific statutory requirement in raising warrantless entry into residence to make an arrest);
•
Lovill v. State, 319 S.W.3d 687 (Tex. Crim. App. 2009) (Where claim is a novel one or raises atypical or rarely urged issue invocation of applicable federal and State constitutional grounds should be urged);
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•
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Preservation Of Error
•
Carmona v. State, 941 S.W.2d 949 (Tex. Crim. App. 1997) (objections relating to violations or deprivations of attorney client privilege and attorney work product privilege must be made as to each privilege in order to raise both on appeal);
•
Thompson v. State, 4 S.W.3d 884 (Tex. App.–Houston [1st . Dist.] 1999) (objection that defendant did not receive proper notice of extraneous offense did not preserve for review contention on appeal that the evidence was legally (and factually) insufficient to show that he committed the extraneous offense);
•
Martinez v. State, 22 S.W.3d 504 (Tex. Crim. App. 2000) (objection on basis of hearsay, lack of personal knowledge, and confrontation was insufficient to preserve error on appeal based on witness’s qualifications as an expert);
•
Clark v. State, 365 S.W.3d 333, 339-40 (Tex. Crim. App. 2012) (record inadequate to demonstrate that the trial court understood evidentiary objections to be a constitutional due process complaint and hence due process complaint was forfeited);
•
Broxton v. State, 909 S.W.2d. 912, 918 (Tex. Crim. App. 1995) (“An objection stating one legal theory [at trial] may not be used to support a different legal theory on appeal”);
•
Ortego v. State,___S.W.3d___, 2026 WL 995048 (Tex. App.–Houston [1st Dist.] April 14, 2026) (Appellant raised Art. I, Section 9 of the Texas Constitution and Code of Criminal Procedure Article 1.09 on appeal but in trial court only relied on Fourth Amendment cases. “The appellant forfeited any argument that these state laws offer greater or different protections than the Fourth Amendment by not raising a specific argument in the trial court”); see also Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009);
•
Perez v. State, 464 S.W.3d 34 (Tex. App.–Houston [1st . Dist.], 2015) (Raising unconstitutionality of Transportation Code section 724.012(b) for first time on appeal based on trial objections that warrantless blood 16
374
draw violated the Fourth Amendment did not preserve issue); Cofield v. State, 891 S.W.2d 952 (Tex. Crim. App. 1994) (objection on ground of “hearsay” was sufficient (and “identifying challenged evidence as hearsay should generally be regarded as a sufficiently specific objection”) where defendant objected to admissibility of codefendant’s statement to the police immediately after his arrest and the prosecutor responded that evidence was admissible as a declaration against penal interest. Based on the objection and the prosecutor’s response, it was obvious to all that the evidence was being offered as an exception to the hearsay rule and once the matter was preserved by defense counsel, the State had the burden to demonstrate that the evidence was admissible pursuant to an exception to the hearsay rule);
•
Langston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) (“Identifying challenge to evidence as hearsay should be regarded by courts of all levels as a sufficiently specific objection, except under the most unusual circumstances”);
•
Blackburn v. State, 820 S.W.2d 824 (Tex. App.–Waco 1991)(Objection of “irrelevant” was sufficient to preserve review of error in admitting evidence where test of relevancy prescribed by rule was not met);
•
Etheridge v. State, 903 S.W.2d. 1 (Tex. Crim. App. 1994) (“Although the better practice is to object under Rule 404(b), an objection that evidence is irrelevant generally is sufficient to preserve error under Rule 404(b)”);
•
Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993) (Proper form of objection to Rule 404(b) issue is that “the evidence is offered to prove an extraneous uncharged offense not within the permissible scope of 404(b) and is offered to show that appellant is a criminal generally”);
•
Jenkins v. State, 912 S.W.2d 793 (Tex. Crim. App. 1993) (objection on basis of failure to lay a “proper predicate” was insufficient to preserve error. Counsel must specify how the predicate was deficient);
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•
17 375
Preservation Of Error
•
McGinn v. State, 961 S.W.2d 161 (Tex. Crim. App. 1998) (where rule provides a right to a hearing upon request, objection to the substance of the testimony that would be subject to such a hearing does not preserve error regarding the trial court’s failure to conduct a hearing. (Tex. R. Evid. 601 does not expressly impose a duty on the trial court to conduct an inquiry into the competency of a child witness on the court’s own motion));
•
Rawlings v. State, 874 S.W.2d 740 (Tex. App.–Ft. Worth 1994) (Courts of Appeal look to substance of objection or motion to determine effect with regard to preservation of error and not label used by the trial court or defense counsel);
•
Johnson v. State, 878 S.W.2d 164 (Tex. Crim. App. 1994) (Because some evidence may be admissible for one purpose and not for another, in some circumstances, the grounds for objection are not present until after the evidence has been admitted. Consequently, the proper time for an objection may not arise until after the evidence has been admitted. A complaint is not waived as to evidence which is properly admitted but for which the ground of inadmissibility later arises);
•
McGary v. State, 750 S.W.2d 782 (Tex. Crim. App. 1988) (objection that prosecution failed to lay proper predicate for impeachment by prior inconsistent statements was sufficient to alert trial court that the admissibility of the statement was being questioned as well);
•
Shaw v. State, 329 S.W.3d 645 (Tex. App.–Houston [14th Dist.] 2010 (see discussion in footnote 2 regarding whether an objection on the basis of “relevance” properly preserves error with respect to both Tex. R.Evid. 401 and 702);
•
Jones v. State, 833 S.W2d 118 (Tex. Crim. App. 1992) (Presumably, when a party objects under a specific case or code section, without otherwise praying for a remedy, he intends the remedy set forth in that particular provision);
18 376
•
Gilley v. State, 418 S.W.3d 114 (Tex. Crim. App. 2014) (Objection on basis of Sixth Amendment to the United States Constitution and Art. I, Section 10 of the Texas Constitution without more was insufficient to invoke the denial of the right to counsel regarding trial court’s inchambers examination of a child witness);
•
Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012) (Objection on state procedural grounds did not adequately preserve constitutional grounds; more specificity is required as to constitutional grounds “because it can have such heavy implications on appeal.”)
Timeliness of objection Wright v. State, 374 S.W.3d. 564 (Tex. App.–Houston [14th Dist.] 2012) (Must be made as soon as ground for objection becomes apparent. The failure to object until after the objectionable question has been asked and answered, absent a legitimate reason that would justify the delay, constitutes a waiver of the error);
•
Aguilar v. State, 26 S.W3d 901 (Tex. Crim. App. 2000)(“It is fundamental that a specific objection to inadmissible evidence be urged at the first opportunity in order to be considered timely. The proper objection must be made as soon as the grounds of objection become apparent. Alternatively, appellant must show a reason for delaying his objection”);
•
Castaneda v. State, 852 S.W.2d 291 (Tex. App.–San Antonio 1993) (Alleged error preserved for appellate review even though objection did not come until after exhibit was admitted into evidence where trial court reconsidered exhibit’s admissibility based on defendant’s objection);
•
Taylor v. State, 863 S.W.2d 737 (Tex. Crim. App. 1993) (Additional issues raised in subsequent memorandum of law filed 50 days after suppression hearing was conducted that trial court stated he had read before denying motion to suppress was timely presented);
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•
19 377
Preservation Of Error
•
Daugherty v. State, 260 S.W.3d 161 (Tex. Crim. App. 2008) (Objecting in advance of admission of evidence is not sufficient to preserve error);
•
Lackey v. State, 364 S.W.3d 837 (Tex. Crim. App. 2012) (Timeliness requirement relaxed in proceedings before a judge as opposed to a jury);
•
Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002)(Defense counsel must be provided sufficient time to review evidence before being required to formulate and lodge objection to the same);
•
Garza v. State, 126 S.W.3d 79 (Tex. Crim. App. 2004) (Trial court carrying motion to suppress with the case and indicating it would address it during trial after jury heard the evidence relieved defense counsel from obligation to object during elicitation of testimony regarding the same where objection was lodged when State sought to offer physical evidence obtained from search);
•
Thornton v. State, 986 S.W.2d 615 (Tex. Crim. App. 1999) (Motions for severance of charges must be made prior to jury selection);
•
Aguilar v. State, 26 S.W.3d 901 (Tex. Crim. App. 2000) (Motions for severance of co-defendants do not have to be made pretrial; often it will not be apparent until trial that evidence offered by the State against one co-defendant may be prejudicial to another co-defendant. Such a motion is timely “if made at the first opportunity or as soon as the grounds for prejudice become apparent or should have become apparent”);
•
Neal v. State, 150 S.W.3d 169 (Tex. Crim. App. 2004) (“A motion to set aside, dismiss, or quash an indictment should be made at the first opportunity...and must be presented to the trial court prior to an announcement that the party is ready for trial”);
•
Azeez v. State, 248 S.W.3d 182 (Tex. Crim. App. 2008) (In pari materia claims do not have to raised pretrial and can be raised during trial once evidence is admitted which makes clear viability of such claim);
20 378
•
Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996) (Motion to strike testimony is subject to timeliness requirements);
•
Hallmark v. State, 541 S.W.3d 167 (Tex. Crim. App. 2017) (Objection to trial court injecting himself into plea discussions must be made at time of entry of plea and not at sentencing);
Securing an adverse ruling Pena v. State, 285 S.W.3d 459, 463-64 (Tex. Crim. App. 2009) (If the trial court sustains the objection, further relief must be sought by moving for a curative instruction or admonition for the jury to disregard. If that request is granted, then move for a mistrial in order to secure an adverse ruling. When that request is denied, error has been perfected);
•
Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995) (An adverse ruling must be obtained; however, a court’s ruling on a complaint or objection can be impliedly rather than expressly made. A trial court’s ruling on a matter need not be expressly stated if its actions or other statements otherwise unquestionably indicate a ruling);
•
Sauceda v. State, 129 S.W.3d 116 (Tex. Crim. App. 116 (Tex. Crim. App. 2004)(An implied ruling can be inferred from the trial court’s failure to contradict counsel. A judge’s silence, in combination with the statements she made immediately before the interruption can be sufficient to constitute an implicit ruling);
•
Sirls v. State, 579 S.W.3d 651 (Tex. App.–Houston [14th District] 2019) (Implicit ruling discernable from trial court’s docket entries, certification of defendant’s right to appeal, and other documentation in the record);
•
Smith v. State, 499 S.W.3d 1 (Tex. Crim. App. 2016) (See this case for a discussion of the danger of “carrying” evidence/issue with the trial. In any event, if a trial court overrules a relevancy objection believing that the evidence will be connected up later in trial and it becomes apparent that the State cannot connect the evidence up, it is incumbent upon
Preservation Of Error
•
21 379
defense counsel to subsequently move to strike the evidence in order to preserve error. Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992), overruled on other grounds, Bluntson v. State, 728 S.W.3d 87 (Tex. Crim. App. 2025). Objections must be on the record •
Birdsong v. State, 82 S.W.3d 538 (Tex. App.–Austin 2002) (Record must show that complaint was presented to the trial court and pursued to an adverse ruling.)
Preservation Of Error
“Splitting hairs” should be avoided when determining procedural default •
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992); and Keeter v. State, 175 S.W.3d 756 (Tex. Crim. App. 2005) (Eschewing hyper-technical examination of error preservation);
•
Everitt v. State, 407 S.W.3d. 259 (Tex. Crim. App. 2013) (“Magical” or “talismanic” words do not have to be uttered);
•
Bryant v. State, 391 S.W.3d 86 (Tex. Crim. App. 2012) (Parties should not be required to “read some special script to make their wishes known” in order to get the appellate court to reach the merits of their complaints);
•
Mosley v. State, 931 .W.2d 670 (Tex. App.–Houston [14th Dist.] 1996) (“Straightforward communication in plain English will always suffice”);
•
State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) (Failure to utter the phrase “I object” is not required if from context of trial record it is clear that defense counsel was objecting);
•
Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996) and Sanchez v. State, 906 S.W.2d 176 (Tex. App.–Ft. Worth 1995) (Imprecise or general objections are sufficient if the objection was obvious to the trial court and opposing counsel); 22
380
Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) (Trial counsel has a duty to “let the trial judge know what he wants, why he thinks he’s entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it”);
•
Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012) (“[F]or a complaint to be obvious without having been explicitly stated and still satisfy the purposes of the contemporaneous objection rule, there must have been statements or actions on the record that clearly indicate what the judge and opposing counsel understood the argument to be” (Id.) Constitutional complaints should be spelled out with greater specificity because “constitutional error is subject to a much stricter harm analysis on appeal.” (Id.)
•
Darcy v. State, 488 S.W.3d 325 (Tex. Crim. App. 2016) (No duty to object until defense counsel “knows” an error occurred);
•
Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010) (No duty to object when defense counsel could not reasonably be expected to have known that the testimony was false at the time it was made);
•
Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 2013) (No opportunity to object does not result in a forfeiture of error);
•
Starks v. State, 252 S.W.3d 704 (Tex. App.–Amarillo 2008) (If objectionable event occurred before a party could reasonable have foreseen it, the failure to object will not preclude review on appeal);
•
Hardeman v. State, 1 S.W.3d 689 (Tex. Crim. App. 1999) (Error preservation “is not an inflexible concept.”)
Preservation Of Error
•
Repeating objections (obligation to continue to object) •
Rogers v. State, 853 S.W.2d 29 (Tex. Crim. App. 1993) (As a general rule, a party must object each time an objectionable event occurs. Error 23 381
regarding improperly admitted evidence is waived if that same evidence is brought in later by the defendant or by the State without objection); and Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999); •
Meek v. State,___S.W.3d___, 2026 WL 815307 (Tex. App.–Beaumont March 25, 2026) (Failure to object each time prosecutor referred to complainant as “victim” resulted in forfeiture of complaint on appeal);
•
Walker v. State, 180 S.W.3d 829 (Tex. App.–Houston [14th Dist.] 2005) (However, if the trial court has just overruled a valid objection as to the same testimony, a defendant need not constantly repeat the objection; failure to object after every question or to obtain ruling after one objection, did not preclude review on appeal where defense counsel repeatedly objected to confrontation issues raised by police detective’s testimony.)
Doctrine of Curative Admissibility Any error committed by the admission of evidence is cured by the introduction of the same evidence elsewhere in the trial without objection. Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993). Sometimes in an effort to defend your client and in light of the trial court’s erroneous ruling you may be compelled to delve into the same subject matter later in the trial. You can thwart application of the doctrine of “curative admissibility” by announcing to the trial court that in light of the trial Preservation Of Error
court’s action in overruling your objection you are forced to delve into the subject matter in order to meet, destroy, or explain the evidence that was previously objected to. By doing so, you will not be “estopped” from complaining about the initial erroneous ruling by the trial court which compelled you to go into this subject matter. 24 382
•
Kelly v. State, 321 S.W.3d 583 (Tex. App.–Houston [14th Dist.] 2010) (Error is not waived when the evidence is brought in later in an effort to meet, rebut, destroy, deny, or explain the improperly admitted evidence);
•
Leday v. State, 983 S.W.2d 713, 718-19 (Tex. Crim. App. 1998) (“An exception to the rule of waiver is that the defendant's testimony, which constituted other evidence of the fact that was proved over the defendant's objection, was impelled by the State's introduction of evidence that was obtained in violation of the law. See Sweeten v. State, 693 S.W.2d 454 (Tex.Cr.App.1985); Thomas v. State, 572 S.W.2d 507 (Tex.Cr.App.1978). The reason for this exception is that if the defendant's decision to testify was made in order to overcome the impact of such evidence, the testimony is tainted by the same illegality as was the prosecution's evidence. Sweeten v. State, 693 S.W.2d at 457 (quoting Harrison v. United States, 392 U.S. 219, 223, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968)); Thomas v. State, 572 S.W.2d at 516 (same). .. To remove itself from this exception, the State has the burden to show that its illegal action did not impel the defendant's testimony. Sweeten v. State, 693 S.W.2d at 458–59; Sherlock v. State, 632 S.W.2d 604, 606–07 (Tex.Cr.App.1982)). The other exception which is applicable to this case is that the harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy, or explain it by introducing rebutting evidence. Thomas v. State, 572 S.W.2d at 512. This exception appeared in our law over a century ago. Leday v. State, supra, at 719.”)
Running objections •
Preservation Of Error
Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989) (While appropriate in some circumstances, defense counsel “should take pains to make sure” that it does not encompass too broad a reach of subject matter over too broad a time or over different witnesses”); But see Ford v. State, 919 S.W.2d 107 (Tex. Crim. App. 1996) (holding that a running objection was effective that covered “all witnesses, if they testify to the same type of matter.”) Even if a running objection is granted, objection is still required of course to testimony that deals with a different subject 25 383
than that covered by the running objection. (Newton v. State, 1992 WL 175742 (Tex. Crim. App. 1992). Request for hearing or inquiry •
Some issues deal not with the substantive merits of the objection but rather with the trial court not following the requisite procedure in resolving the issue. An objection to the substance of particular testimony does not preserve for appellate review the trial court’s failure to follow proper procedure in ultimately deciding whether the substantive objection had merit. For example, an objection that the trial court did not make a proper and adequate inquiry into the competency of a child witness to testify about circumstances occurring when the child was three or four years old is not preserved when no request for a competency hearing was ever requested. McGinn v. State, 961 S.W.2d 161 (Tex. Crim. App. 1998);
•
The same holds true with respect to an argument asserted on appeal that the trial court erred in not conducting a T.R. EVID. 705(a) hearing in order to determine the underlying facts or data on which the testimony was based when no request at trial was made for a hearing. (Cates v. State, 72 S.W.3d 681 (Tex. App.–Tyler 2001);
•
The rule is otherwise when the substantive law requires a hearing or inquiry to be conducted when the matter is brought to the attention of the trial court as in the case of the defendant’s competency or the voluntariness of the accused confession. (McGinn v. State, supra); and Tex. Code Crim. Proc. art. 38.22, Section 6).
Preservation Of Error
Erroneously excluded evidence In the vast majority of circumstances, error occurs due to the erroneous admission at trial of inadmissible evidence. Evidence which violates a constitutional or statutory provision or a rule of evidence falls into this category. Occasionally,
26 384
however, error befalls the accused due to the trial court’s erroneous exclusion of evidence. This may result in depriving the jury of relevant information germane to a defensive issue or evidence which is admissible to impeach or discredit a witness for example. Defense counsel must preserve the issue by not only timely and specifically objecting to the trial court’s action and receiving a ruling but by also affirmatively establishing for the record just what the substance of the excluded evidence was. If an exhibit is ruled to be inadmissible, the exhibit must be introduced into the record for appellate purposes only in order to put appellate courts on notice as to what was improperly excluded. If a question is not allowed to be answered or a particular line of questioning is not allowed to be pursued, the record needs to reflect what the anticipated answer(s) would have been had defense counsel been permitted to elicit the response.7 A Bill of Exception must be made by either examining the witness outside the presence of the jury on the record or by making a proffer of what the anticipated testimony would be. Defense counsel can state for the record what she Preservation Of Error
expects the witness to testify to if done in good faith and if permitted to do so by the trial court; however, the trial court can insist that the testimony be spread upon the If the trial court rules that “an entire subject matter” is off limits, then answers to the questions need not be made of record to preserve error. Stults v. State, 23 S.W.3d 198, 204 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d. 7
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record by “Q and A.” Tatum v. State, 798 S.W.2d 569 (Tex. Crim. App. 1990). In any event, the offer of proof must be specific8 and even if the trial court opines that the proffer is sufficient, defense counsel must make a specific enough proffer to satisfy the appellate court. Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009). If the excluded cross-examination pertains to credibility matters such as bias, malice, ill-feeling, prejudice, or animus of the witness directed toward the defendant, the record does not have to reflect what the answers to the questions would have been. Koehler v. State, 679 S.W.2d 6 (Tex. Crim. App. 1984). See also, Hurd v. State, 725 S.W.2d 249 (Tex. Crim. App. 1987); and Recer v. State, 821 S.W.2d 715, 717 (Tex. App. –Houston [14th Dist.] 1991) (Defendant “must merely establish on what general subject matter she desired to examine the witness during crossexamination and, if challenged, show on the record why such should be admitted into evidence.”) There is no requirement that the defendant establish to the trial court that the cross-examination would affirmatively establish the facts sought to be proved. Spain v. State, 585 S.W2d 705 (Tex. Crim. App. 1979). Preservation Of Error
If the trial court excludes some but not all of the proffered evidence, objection
Proffer that proposed testimony would establish that officer did not have probable cause to effectuate arrest was insufficient; defense counsel must provide at least a concise statement “regarding the content of the testimony he proposed to elicit from the witness.” Love v. State, 861 S.W.2d 899 (Tex. Crim. App. 1993). 8
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must be made to that which was excluded and an offer of proof must be made to demonstrate what was excluded. Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992), overruled on other grounds, Maxwell v. State, 485 S.W.3d 196 (Tex. Crim. App. 2001). The denial of the right to make an offer of proof does not result in automatic reversible error; rather, the normal procedure would be to abate the appeal and remand the matter back to the trial court for the conducting of a hearing. Spence v. State, 758 S.W.2d 597 (Tex. Crim. App. 1988). Practice Tip: I can testify better than most witnesses so a lawyer’s proffer is usually superior than attempting to cross-examine the witness for purposes of perfecting a bill. Be aware that a statement by a lawyer of an event occurring in the courtroom which is made for purposes of the record and recorded by the court reporter and unquestioned and unqualified by the trial court or prosecutor in whose presence the statement was made, establishes the occurrence of the event for purposes of the record. Thielman v. State, 187 S.W.3d 455 (Tex. Crim. App. 2005). The Oblivious trial judge Rougeau v. State, 738 S.W.2d 651 (Tex. Crim. App. 1987), overruled on other grounds, Harris v. State, 784 S.W.2d 5 (Tex. Crim. App. 1989) (There is authority that error can be preserved notwithstanding a failure to object when the record adequately reflects prior specific and timely objections to the same matter and “the trial court is oblivious to the contention of the defense.” “To require a defense attorney to repeatedly object, after the record makes clear that the trial judge’s ruling is, so to
Preservation Of Error
•
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speak, written in stone, would place an unwarranted burden on his shoulders.”) Note: Professor Dix wisely cautions that practitioners should be leery of this legal precept: Perhaps trial judges will sometimes make sufficiently clear by rejecting an initial objection that further objections will be futile. However, in the absence of this exceptionally reliable basis for futility, the likelihood that trial judges will be persuaded by objections, or appellate review will be facilitated by them, is high enough that they are required. Dix at 970. See also, Graham v. State, 710 S.W.2d 588 (Tex. Crim. App. 1986).
Preservation Of Error
“No objection” waiver rule •
Thomas v. State, 408 S.W.3d 877 (Tex. Crim. App. 2013) (Application of the “no objection” rule–a later statement of “no objection” serves to waive previous objection is “context-dependent. The appellate court should not focus exclusively on the statement itself, in isolation, but should consider it in the context of the entirety of the record. If the record as a whole plainly demonstrates that the defendant did not intend, nor did the trial court construe, his ‘no objection’ statement to constitute an abandonment of a claim of error that he had earlier preserved for appeal, then the appellate court should not regard the claim as “waived,” but should resolve it on the merits”);
•
Taylor v. State, 82 S.W.3d 134 (Tex. App.–San Antonio 2002)) (Stating “no further objections” implicitly references the pretrial motion to suppress and does not constitute an abandonment of the earlier objection);
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•
Stairhime v. State, 463 S.W.3d 902 (Tex. Crim. App. 902 (Tex. Crim. App. 2015) (Stating “none” or “no, your honor” to a trial court’s inquiry of whether there was an objection to the seating of the jury, or to the panel, or to the jury selected at the conclusion of jury selection does not constitute a waiver of any previously preserved claim of error occurring during voir dire proceedings);
•
Hyer v. State, 335 S.W.3d 859 (Tex. App.–Amarillo 2011) (Stating “all right” after trial court denied request to make a final argument did not constitute an abandonment of the objection. “[S]aying ‘all right’ in reply to such an unexplained denial of a constitutional right may well evince surprise under circumstances of being taken aback, as opposed to approval of the trial court’s decision to forego final argument”);
•
Tucker v. State, 990 S.W.2d 261 (Tex. Crim. App. 1999) (Saying “Okay” after the trial court refused defense counsel’s request to make an opening statement, and then stating “[i]n that case, we’ll call our first witness”, did not constitute a waiver of the request (and right) to make an opening statement);
•
Holmes v. State, 248 S.W.3d 194 (Tex. Crim. App. 2008) (Waiver of right to complain on appeal of violation of art. 38.23 by stating “no objection” did not preclude defendant from requesting and receiving a jury instruction under art 38.23 if raised by the evidence).
Practice Tip: In these circumstances, consider suggesting on the record outside the presence of the jury that when the State offers the objected to evidence that the trial court admit it without inquiring of you whether you object and that such Preservation Of Error
action will not be considered a forfeiture of your previously advanced and overruled motion. Or, approach the bench and lodge your objection at that point, or lodge the following objection in the presence of the jury: “Your Honor, we have no additional
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objections to raise besides those previously made.” Invited Error– •
Heidelberg v. State, 36 S.W.3d 668 (Tex. App.–Houston [14th Dist.] 2001) (If a party requests or moves the court to make an erroneous ruling, and the court rules in accordance with the request or motion, the requesting party may not take advantage of the error on appeal. This does not constitute a waiver of the error but rather an estoppel; the exclusion from an appellate court’s consideration of those actions requested of the trial court by the complaining party.)
Preservation Of Error
Note: Professor Dix observes that “a critical result of this difference in conceptualization (between waiver and estoppel) is that matters not subject to waiver may nevertheless be unavailable to a convicted defendant because of invited error.” Dix at 971. See Dean, infra. •
Wappler v. State, 138 S.W.3d. 331 (Tex. Crim. App. 2004) (Invited error, unlike waiver, must be based on action occurring before trial court’s error);
•
Barnett v. State, 189 S.W.3d 272 (Tex. Crim. App. 2006) (Invited error is limited to situations where the party invited the specific action claimed as error);
•
Arroyo v. State, 117 S.W.3d 795 (Tex. Crim. App. 2003) (State estopped from arguing defendant failed to lay proper predicate (proving identity of out-of-court declarant for purposes of impeachment by admitting prior convictions) where State provided defense counsel rap sheets which established identity and connected prior convictions to the untestifying witness. “A party may be estopped from asserting a claim that is inconsistent with that party’s prior conduct”;
•
Deen v. State, 509 S.W.3d 345, 348 n.6 (Tex. Crim. App. 2017) (“Absolute statutory requirements that are not waivable or forfeitable under Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), may nevertheless be subject to estoppel”); 32
390
•
Cary v. State, 507 S.W.3d 750 (Tex. Crim. App. 2016) Doctrine of invited error inapplicable unless party induced the trial court action’s that is later complained of);
•
Ex parte Heilman, 456 S.W.3d 159 (Tex. Crim. App. 2015) (Doctrine of invited error or estoppel inapplicable if the trial court lacked jurisdiction).
Tex. R. Evid. 103 (b) •
Medrano v. State, 67 S.W.3d 892 (Tex. Crim. App. 2002) (Holding that State’s right to appeal a Motion to Suppress is not limited to only evidence which was allegedly illegally obtained, but rather is “appropriately used to raise any claim ‘that certain evidence should not be admitted at trial for a constitutional, statutory, evidentiary or procedural reason.’ ” Dix, at 1097, quoting Medrano, at 901.) Therefore, “a pretrial motion to suppress anticipated evidence for any constitutional, statutory, evidentiary or procedural reason and a pretrial order overruling that motion will preserve the contention made for appellate review.” Dix, at 1097);
•
Geuder v. State, 115 S.W.3d 11 (Tex. Crim. App. 2003) (Timely and specific objection which was ruled upon in Rule 103 hearing preserved Rule 609(f) (impeachment of witness with prior conviction) complaint at trial).
Practice Tip: Please note that Rule 103(b) does not apply to Motions in Limine. When a trial court grants a motion in limine, the ultimate ruling on the merits Preservation Of Error
of the motions is deferred until a later time when more information has been spread upon the record and the trial court is in a better position to understand the factual and legal underpinnings of the argument. When the Motion in Limine is granted, the trial
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court is ruling that the matter is simply not to be raised in the presence of the jury until further notice. The limine movant must still object if her adversary goes into the supposedly forbidden subject in apparent derogation of the previous order of the court. As Professor Dix has explained, a Motion in Limine defines error; it does not preserve error. “A trial court’s ruling that does not even purport to address the merits of a party’s request or complaint cannot erroneously resolve those issues.” Dix, at 1091. (It may, however, “assist in making a later and timely objection sufficient. If a trial objection is not by its explicit terms sufficiently specific, it may make reference to adequately specific contentions made in the motion in limine. Thus, by incorporation, the motion in limine may provide otherwise lacking specificity.” Dix, at 1092.)9 Be aware that Courts look to the substance of the motion and not just how it is styled. A “motion in limine” may, in fact, be treated as a motion to exclude and the denying of the same can preserve error on appeal depending upon what the motion actually seeks to accomplish and how it was presented below. Brewer v. State,
Preservation Of Error
2011 WL 5881612 (Tex. Crim. App. 2011).
The granting of the State’s Motion in Limine preventing defense counsel, for example, from propounding certain questions to a witness, will not preserve error unless defense counsel objects to the ruling sufficiently pursuant to T.R.A.P. 33.1, and it is clear that the trial court’s ruling is a final disposition of the matter. Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1991), overruled on other grounds, Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002). 9
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So why file the Motion in Limine in the first place? Because it may possibly establish that the prosecution cannot lay the proper predicate as a condition precedent to admitting the evidence/testimony and thwart the State from being able to go into extraneous/prejudicial testimony/evidence. Secondly, it may provide you the opportunity for a hearing outside the presence of the jury where even if the trial court allows the prosecutor to delve into the subject matter in the presence of the jury, you will get a peak underneath the sovereign’s skirt as to just how bad or weak the evidence/testimony will be which may present you with ideas on how to crossexamine the witness later in the presence of the jury. Third, if the motion in limine has been granted and the order is subsequently violated–in those scenarios where the trial court maintains its ruling that the subject matter of the motion is still off limits–not only have you managed to engineer the circumstances where the trial court is going to be pissed off at the State but also a mistrial may be in order, or an appellate court may determine that prosecutorial misconduct has occurred which is found not to be harmless. Tate v. State, 762 Preservation Of Error
S.W.2d 678 (Tex. App.–Houston [1st Dist.] 1988). Fundamental Error (Tex. R. Evid. 103(e) A “fundamental error” may be noticed by an appellate court in a criminal case even if the matter was not preserved at trial–even if no objection was lodged below–if 35 393
the error “affects a substantial right”. Obviously, those occasions where that occurs will be very few and far between. But be aware that there is a procedural vehicle available on appeal for the review of particularly egregious errors occurring at trial even when those errors have not been properly preserved. For a thorough discussion of fundamental error and specifically an analysis of Blue and the “[c]onceptual basis for and rationale of fundamental error” Professor Dix has offered an excellent and
Preservation Of Error
insightful overview. Dix, Section 53:135. •
Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (Plurality opinion) (Judge’s comment in presence of venire which tainted the defendant’s presumption of innocence deemed “fundamental error” requiring no objection);
•
Drake v. State, 465 S.W.3d 759 (Tex. App.–Houston [14th Dist.] 2015) (Arrest of prospective juror in the presence of the venire who was a Jehovah’s witness and stated his religion prevented him from observing child pornography in a prosecution for sexual performance of a child (along with improper comments about religion made by the trial court) deemed fundamental error even in the absence of any objection being lodged at trial in that it effectively thwarted a full and robust voir dire. The error was deemed “so egregious and created such harm” that the accused did not receive a fair trial. The Court determined that “the judge’s actions and remarks cut off the vital flow of information from the jury to the court in such a way that it prevented Drake from having a fair and impartial trial.” There is a presumption that prospective jurors truthfully answer questions during voir dire; “[h]owever, this presumption does not apply when jurors are given reason to fear reprisals for truthful responses.” The Court further found that the error defied harm analysis and that the appellant did “not need to point to specific prejudice.”)
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Miscellaneous additional preservation rules to consider “DeGarmo” doctrine overruled –Jacobson v. State, 398 S.W.3d 195 (Tex. Crim. App. 2013)–a defendant who testifies at punishment phase and admits guilt does not forfeit the right to complain of errors occurring during the guilt/innocence phase of the trial;
•
The heretofore recognized ability to raise an issue for the first time on appeal where the right was not previously recognized, Black v. State, 816 S.W.2d 350 (Tex. Crim. App. 1991), has been effectively eviscerated by the Court of Criminal Appeals. Sanchez v. State, 120 S.W.3d 359 (Tex Crim. App. 2003);
•
Duty to object is not relieved by reliance on the “law of the case doctrine.” Retrial means new objections must be made. Robison v. State, 888 S.W.2d 473 (Tex. Crim. App. 1994);
•
A claim of trial court error may be raised for the first time on appeal only to the limited extent that the error was neither preventable by timely objection nor curable by timely motion for instruction to disregard. (Starks v. State, 252 S.W.3d 704 (Tex. App.–Amarillo 2008);
•
Error preservation requirements are applicable to habeas proceedings with equal force as they are to direct appeals. Garza v. State, 435 S.W3d 258, 261-262 (Tex. Crim. App. 2014); Ex parte Marascio, 471 S.W.3d 832, 836 (Tex. Crim. App. 2015) (“Generally, all of the reasons that support the need for a matter to have been raised at trial when the matter is relied upon in direct appeal apply equally or more forcefully when a matter is relied upon in postconviction habeas corpus. Most likely, then, if a matter is one that could be relied upon on appeal only if the defendant called it to the attention of the trial judge in a timely manner and requested appropriate relief, similar action will be held necessary to “preserve” the matter for consideration on habeas corpus.... The nature of collateral attack, moreover, suggests that even a more stringent standard than is applied on direct appeal might at least sometimes be appropriate in the habeas corpus context. Like the result of forfeiture by inaction in the trial court, this Court will not review the
Preservation Of Error
•
37 395
Preservation Of Error
merits of a habeas corpus claim if an applicant had the opportunity to raise the issue on appeal. .... [P]rocedural-default principles will only prevent the review of record claims and those that, by their nature, typically afford a litigant an adequate forum for relief. Marin and error-preservation issues are generally inapplicable to a number of cognizable claims on habeas, including actual innocence, ineffective assistance of counsel, Brady claims, and other claims that require or are based on subsequent record development. The treatment of these types of claims remains untouched by such a holding); •
Anticipatory rulings and preservation of error. A legal quagmire exists in the area of obtaining anticipatory rulings and then being able to raise those claims on appeal. For example, if a trial court rules that certain prior convictions would be admissible for impeachment if the accused testifies, does the defendant have to actually testify, thereafter be impeached with the same, object and have that objection overruled, in order to raise the issue on appeal? Yes. State v Jackson, 992 S.W. 2d 469 (Tex. Crim. App. 1999). See discussion in Dix, supra, at § 53:3953:40; and Luce v. United States, 469 U.S. 38 (1984);
•
Objections lodged by a co-defendant normally will not enure to benefit of your client; there is a duty to personally object or to adopt a codefendant’s objection. Hinojosa v. State, 433 S.W.3d 742 (Tex. App.–San Antonio 2014); but see Haley v. State, 113 S.W.3d 801 (Tex. App.–Austin 2003, aff’d after review on other grounds, 173 S.W.3d 510 (Tex. Crim. App. 2005) (referring to adopting objections as a “dubious practice”);
•
“A counsel's statement about an occurrence in the courtroom, which was made for the purposes of the record, recorded by the court reporter, undisputed by the opposing counsel, and unquestioned and unqualified by the judge in whose presence the statement was made, establishes the occurrence for purposes of the appellate record. . . .Such a statement, when made in open court without being contradicted or disputed by either opposing counsel or the trial court, provides some evidence of the 38
396
fact of occurrence that is being asserted. At the very least, the assertion alerts the trial court that there may be a controversy over whether such an event occurred. The assertion does not, however, conclusively prove that the event occurred. The weight of the assertion is increased if the assertion about the alleged event is made contemporaneously to the event, thus giving opposing counsel and the trial court the opportunity to observe the event. If the asserted event is not the focus of attention at the time it occurs, it is all the more incumbent upon the objecting party to make a contemporaneous objection. The weight of the contemporaneous assertion may similarly increase if a description of a non-oral event is entered into the record without objection. If the circumstances warrant, the assertion may be supported by a bystander's bill. An uncontroverted assertion by counsel about an event, particularly a non-contemporaneous assertion, may be taken as true only if: (1) the event could not have happened without being noticed; and (2) the assertion is of the sort that would provoke a denial by opposing counsel if it were not true. If these two conditions are met, the opposing party may be held to have adoptively admitted the assertion, and the assertion will be accepted as both true and sufficient to preserve an issue for appellate review.” Thieleman v. State, 187 S.W.3d 455, 457–58 (Tex. Crim. App. 2005) •
Misjoinder of offenses may or may not be able to be raised for the first time on appeal in light of enactment of art. 1.14(b) of the Code of Criminal Procedure. See and compare Tullos v. State, 1991 WL 127355 (Tex. App.–Houston [14th Dist.] 1991), pet. ref’d.; with Nolte v. State, 854 S.w.2d 394 (Tex. App.–Austin 1993), pet. ref’d.
Practice Tip: I have rarely experienced a trial court refusing to allow adoption Preservation Of Error
of objections lodged by co-defendants’ especially in federal court. This is a preliminary matter that should be raised pretrial.
In multiple-defendant
cases–which is typical in federal court–I file a pretrial motion requesting
39 397
permission to adopt all objections lodged by counsel for co-defendants unless I specifically opt out at the time of the objection.
Preservation Of Error
(E)
Application of Preservation of error rules to Various Aspects of trial proceedings (1)
Indictments
•
Tex. Code Crim. Proc. Ann. art. 1.14 (b) If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding. Nothing in this article prohibits a trial court from requiring that an objection to an indictment or information be made at an earlier time in compliance with Article 28.01 of this code. See Studer v. State, 799 S.W2d 263 (Tex. Crim. App. 1990);
•
Failure to allege a culpable mental state in an accusatory pleading may not be raised on appeal if not preserved by motion to quash. “The right to be charged by an instrument that is free of defects, errors, and omissions is neither a ‘systemic’ requirement nor a ‘waivable’ right.” Sanchez v. State, 120 S.W.3d 359, 367 (Tex. Crim. App. 2003);
(2)
Motions to Suppress
•
Generic motions to suppress which alleged every possible way of suppressing all of the evidence in the case failed to preserve contention that certain evidence was tainted by the defendant’s illegal arrest. Johnson v. State, 263 S.W.3d 287(Tex. App.–Houston [1st . Dist.] 2007, pet. dismissed as untimely filed;
•
Invoking Fourth Amendment, art I. § 9 of Texas Constitution, and art 38.23 in pretrial motion to suppress was insufficient to justify reversal based on violation of Chapter 14 of the Code of Criminal Procedure. 40
398
Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006); Raising federal constitutional claim only in trial court precludes reliance on State constitutional law on appeal. Ford v. State, 477 S.W.3d 321 (Tex. Crim. App. 2015), rev’d on other grounds, Holder v. State, 595 S.W.3d 691 (Tex. Crim. App. 2020); but by making separate argument below on State constitutional grounds preserves issue on appeal. Fleming v. State, 341 S.W.3d 415 (Tex. Crim. App. 2011);
•
Even where both Federal and State constitutional law provisions are invoked in an objection, defense counsel is precluded from arguing on appeal that State constitutional provision provides more protection than federal counterpart unless that argument is made at trial. “[B]y failing to distinguish the rights and protections afforded under the Texas due course of law provision from those provided under the Fourteenth Amendment before the trial judge in this context, Pena failed to preserve his complaint that the due course of law provides greater protection for appellate review.” Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009);
•
Complaint that “they did not Mirandize him on tape” was deemed insufficient to apprise trial court in suppression hearing that defense counsel was complaining about violation of art. 38.22, Section 3(a)(2), as opposed to Miranda v. Arizona violation. “In light of his clearly and persistently articulated constitutional argument, and the lack of a statutory reference...., the appellant’s reference to the videotape is most likely part of his argument that the police had violated his rights under the United States and Texas Constitution by failing to Mirandize him at any point during his custodial interrogation.” Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009). The Court held that “[a] complaint that could, in isolation, could be read to express more than one legal argument will generally not preserve all potentially relevant arguments on appeal. Only when there are clear contextual clues indicating that the party was, in fact, making a particular argument will that argument be preserved”;
Preservation Of Error
•
41 399
Preservation Of Error
•
Trial objection to illegally seized evidence does not need to specifically invoke Tex. Code Crim. Pro. art. 38.23. Rance v. State, 815 S.W.2d 633 (Tex. Crim. App. 1991);
•
Objections to evidence derived from arrest and search may be made for the first time at trial and need not be made in pretrial motions to suppress. Morales v. State, 951 S.W.2d 59 (Tex. App.–Corpus Christi 1997). But see Tex. Code Crim. Proc. art. 28.10;
•
Objections based on hearsay and improper predicate was insufficient to preserve violation of Miranda v. Arizona predicate for failure to include admonition of the right to remain silent. Earhart v. State, 823 S.W2d 607 (Tex. Crim. App. 1991); rev’d on other grounds, 509 U.S. 917 (1993);
•
Objection at trial that defendant was not warned before a statement was taken from him did not preserve claim on appeal that the statement was not recorded. Braddock v. State, 5 S.W.3d 748 (Tex. App.–Texarkana 1999);
•
Testimony was elicited that “appellant was not in custody. The officer also testified that appellant freely and voluntarily agreed to talk. Once this testimony was given, appellant had an obligation to at least allege to the trial court that he was in custody, or that his confession was not freely given because of coercion or some other specific reason, in order to raise the issue of voluntariness. Because appellant merely requested a hearing without making either of those allegations, the trial court was justified in concluding that the issue of voluntariness had not been raised because the army officer's testimony established that the confession was voluntary, and appellant gave the trial court no reason to believe otherwise.” Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996);
•
“Though the general rule would require appellant to object and obtain a ruling at the earliest opportunity, the specific pre-trial comments made by the judge in this case essentially directed appellant to wait until all the evidence was presented before he obtained any ruling from the 42
400
judge. From these comments, it is clear that any additional attempt by appellant to object or obtain a ruling during the testimony of the officers would have been futile, because the judge had already told appellant that he would not rule on the motion until the jury had heard the evidence. Appellant was reasonable to interpret those comments as an instruction to seek a ruling at the conclusion of the State's presentation of evidence, and not sooner. Garza v. State, 126 S.W.3d 79, 84–85 (Tex. Crim. App. 2004); T.R.A.P. 31(a)(2)(a) permits appellate courts to find implicit ruling by trial courts on motion to suppress. Montez v. State, 195 S.W.3d 101 (Tex. Crim. App. 2006);
•
State may raise lack of standing for the first time on appeal although appellate courts may consider matter forfeited and are not obligated to address it. Kothe v. State, 152 S.W.3d 54 (Tex. Crim. App. 2004);
•
Objection to confession made at the end of the hearing on basis not mentioned in two written motions to suppress was too imprecise to put the trial court and the State on notice of contention. Vasquez v. State, 483 S.W.3d 550 (Tex. Crim. App. 2016);
•
Issues raised in supplemental motion to suppress and resolved in supplemental suppression hearing properly preserved for appellate review. Ortega v. State,____S.W.3d____, 2026 WL 995048 (Tex. App.–Houston [1st . Dist.] April 14, 2026.)
(3)
Indigent defendant’s right to 10 days to prepare for trial
•
Indigent defendant has a mandatory statutory right to 10 days to prepare for trial unless waived in writing or in open court on the record; failure to object absent a valid waiver does not preclude raising the issue for the first time on appeal. Marin v. State, supra;
Preservation Of Error
•
43 401
Preservation Of Error
(4)
Voir Dire and Jury selection
•
The voir dire must be recorded in order to preserve for review improprieties occurring during the same. Villarreal v. State, 617 S.W.2d 703 (Tex, Crim. App. 1981);
•
Objection to State’s motion to shuffle was timely even though it was not made until after the motion was granted. Chappell v. State, 850 S.W.2d 508 (Tex. Crim. App. 1993);
•
Improper comments made by the prosecutor or judge must be objected to and the objection overruled; then a request to have the trial court instruct the jury to disregard must be made. Mendoza v. State, 552 S.W.2d 444 (Tex. Crim. App. 1977). If the request is granted and the panel is instructed to disregard, defense counsel must then move to quash the panel. Hogan v. State, 496 S.W.2d 594 (Tex. Crim. App. 1973). All peremptory challenges must then be exhausted. Hammett v. State, 578 S.W.2d 699 (Tex. Crim. App. 1979);
•
Improper limitation on time for voir dire imposed by trial court must appear in the record and timely objected to and a request for additional time must be made. Little v. State, 758 S.W.2d 551 (Tex. Crim. App. 1988); Guerra v. State, 760 S.W.2d 681 (Tex. App.–Corpus Christi, 1998). Defense counsel must state for the record (or proffer for admission a list of questions) that she would have asked had sufficient time been afforded to conduct the voir dire. Dhillon v. State, 138 S.W.3d 583 (Tex. App.–Houston [14th Dist.], 2004). Bill of exception as to questions defense counsel would have asked had more time been provided was untimely when made after jury was sworn and other venire members had left the court room;
•
Improper limitation imposed by the trial court precluding defense counsel from asking a specific question is preserved by the record establishing what the question was that counsel sought to propound. Nunfio v. State, 808 S.W.2d 482 (Tex. Crim. App. 1981), overruled on other grounds, Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002);
44 402
•
“Because the objection, the request for an instruction to the jury, and the motion for mistrial seek judicial remedies of decreasing desirability for events of decreasing frequency, the traditional and preferred procedure for a party to voice its complaint has been to seek them in sequence—that is, (1) to object when it is possible, (2) to request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was not sufficient. However, this sequence is not essential to preserve complaints for appellate review. The essential requirement is a timely, specific request that the trial court refuses. In most instances, an objection will prevent the occurrence of the prejudicial event, and the failure to make a timely, specific objection prevents appellate review. If an objectionable event occurs before a party could reasonably have foreseen it, the omission of objection will not prevent appellate review. The reasons are clear. It is not possible to make a timely objection to an unforeseeable occurrence, and an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Similarly, the request for an instruction that the jury disregard an objectionable occurrence is essential only when the such an instruction could have had the desired effect, which is to enable the continuation of the trial by a impartial jury. The party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been ‘cured’ by such an instruction. But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal. Faced with incurable harm, a defendant is entitled to a mistrial and if denied one, will prevail on appeal. Preservation Of Error
Accordingly, when a party's first action is to move for mistrial, as this appellant's was, the scope of appellate review is limited to the question whether the trial court erred in not taking the most serious action of ending the trial; in other words, an event that could have been prevented by timely objection or cured by instruction to the jury will not lead an appellate court to reverse a judgment on an appeal by the party who did 45 403
Preservation Of Error
not request these lesser remedies in the trial court. Limited as this scope of appellate review may be, such an appellate review is available to such a party.” Young v. State, 137 S.W.3d 65, 69–70 (Tex. Crim. App. 2004); •
Improper denial of a defense challenge for cause is preserved by lodging a timely and specific challenge which is denied; the use of a defense peremptory challenge to remove the challenged juror; the exhaustion of all peremptory challenges; a request for additional peremptory challenge which is denied; and an assertion on the record by defense counsel that had he not been forced to use a peremptory challenge to remove the offending juror after the challenge for cause was denied that he would have used a peremptory challenge to excuse a juror who was seated who was objectionable. Homan v. State, 662 S.W.2d 372 (Tex. Crim. App. 1984). Harm is demonstrated by following the rules of error preservation. Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001);
•
Improper granting of State challenge for cause requires that the State exhaust all of its peremptory challenges (and in effect, received an “extra” one due to the trial court’s erroneous ruling). But to demonstrate harm, defense counsel must establish that the defendant was deprived of a “lawfully constituted jury.” Jones v. State, 982 S.W.2d 386 (Tex. Crim. App. 2001);
•
Urging legal basis for relief in trial court does not preclude reliance on analytical tool in establishing claim on appeal. Defendant sought to rely on comparative analysis of prospective jurors struck on alleged equal protection grounds although this was not presented to trial court below. Young v. State, 826 S.W.2d 141 (Tex. Crim. App. 1991);
•
Objection to comment made by prosecutor during jury selection was forfeited by later accepting juror without objection. “[I]n accepting the venire member as a juror without objection, we are forced to conclude that defense counsel must have been satisfied that the alleged error was harmless or cured. Powell v. State, 897 S.W.2d 307, 313 (Tex. Crim. App. 1994), overruled on other grounds by Prystash v. State, 3 S.W.3d 522 (Tex. Crim. App. 1999);
46 404
Failure to administer oath to jury can be raised for the first time on appeal. Howard v. State, 192 S. W. 770 (Tex. Crim. App. 1917).
(5)
Opening statements
•
Defense counsel asking judge if he could make an opening statement before State called its first witness and trial court responding that he could do so when it came time to put on his evidence was held to be an insufficient request for specific action by the trial court. Dunn v. State, 819 S.W.2d 510 (Tex. Crim. App. 1991);
•
No requirement to object to evidence mentioned by State during opening statement (because opening statement does not qualify as evidence) and therefore no forfeiture of claim by waiting to object until the exhibit is offered into evidence. Morales v. State, 951 S.W.2d 59 (Tex. App.–Corpus Christi 1997).
(6)
Admission and exclusion of evidence at trial
•
Objection must be lodged at time testimony is elicited regarding allegedly seized item of evidence; waiting to object until item is actually offered into evidence comes too late because the grounds for objection were apparent at time of testimony. Stults v. State, 23 S.W.3d 198 (Tex. App.–Houston [14th Dist. 2000], pet. ref’d.);
•
Objection on basis of “bolstering” is insufficient to preserve error in light of fact that improper bolstering can raise a host of separate issues. Rivas v. State, 275 S.W.3d 880 (Tex. Crim. App. 2009);
•
Objection based on hearsay that is sustained requires proponent of evidence to proffer “with reasonable specificity an applicable exception to the rule excluding hearsay.” Estrada v. State, 313 S.W.3d 274 (Tex. Crim. App. 2010);
•
If evidence is admitted initially but not ultimately “connected up”, it is incumbent upon the defendant to renew his objection and move to strike the evidence from the record. Fuller v. State, 829 S.W.2d 191 (Tex.
Preservation Of Error
•
47 405
Crim. App. 1992), overruled on other grounds by Riley v. State, 889 S.W.2d 290, 301 (Tex. Crim. App. 1993).
Preservation Of Error
(Credibility/Confrontation Issues) •
To raise Confrontation Clause issue on appeal an objection at trial must be predicated on Confrontation Clause. Perry v. State, 236 S.W.3d 859 (Tex. App.–Texarkana 2007);
•
When a defendant's objection encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error.” Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005);
•
“Sepulveda wanted to ask Castaneda about her continuing to operate ‘illegal gambling” in violation of her pretrial diversion conditions, which counsel argued was relevant to Castaneda's ‘credibility.’... Sepulveda ‘did not cite to any rules of evidence, cases, or constitutional provisions,’ and ‘did not argue that the Confrontation Clause demanded admission of the evidence.’ Because the trial court never had the opportunity to consider that rationale in evaluating whether to admit the evidence, we conclude Sepulveda did not preserve error on Confrontation Clause grounds. (Sepulveda v. State, No. 13-24-00467-CR, 2026 WL 302634, at *2 (Tex. App. Feb. 5, 2026);
•
Objection to the testimony of a witness must be made at the time of the offending testimony; however, if the question propounded is itself improper, objection must be made before the witness answers the question. Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. 2008). This standard has been rightly characterized as “both demanding and unforgiving.” Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.–Houston [14th Dist.] 203, pet. ref’d.)
48 406
(Voluminous Documents/Exhibits/Testimony of Witness on more than One Subject) “When exhibit contains both admissible and inadmissible evidence, objection must refer specifically to challenged material to apprise trial court of the exact objection.” Sonnier v. State, 913 S.W.2d 511 (Tex. Crim. App. 1995);
•
Exclusion of evidence which is partially admissible and partially inadmissible does not present error unless the admissible evidence was specifically offered. Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992), overruled on other grounds, Maxwell v. State, 509 S.W.3d 917 (Tex. Crim. App. 2001);
•
Trial court in face of global “hearsay” objection was not required to cull through entire document and exclude that which came within that description. Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994);
•
It was obvious from the appellant’s objections that he believed that the entirety of his cell phone records (including the records of his text messages) were objectionable–due to the absence of a search warrant. Although not all of the cell phone records were subject to the Warrant requirement, this should not deprive appellant of his ability to complain on appeal of those parts which are subject to the Fourth Amendment warrant requirement. Once appellant pointed out that the cell phone records were obtained without a warrant, it was the State’s obligation to establish that the State’s acquisition was nonetheless “reasonable” for Fourth Amendment purposes. It was not up to appellant to identify which of the portions of the records were obtained unreasonably; they were all presumptively obtained unreasonably because they were all obtained in the absence of a warrant. Rather it was the State’s burden to establish which portions may have been obtained reasonably even though obtained without a warrant. Love v. State, 543 S.W.3d 835, 840 (Tex. Crim. App. 2016), abrogated by Holder v. State, 639 S.W.3d 704 (Tex. Crim. App. 2022);
Preservation Of Error
•
49 407
•
Objection to audio tape regarding references therein to extraneous offenses presented nothing to review on appeal because objection failed to specifically reference allegedly offending phrases. Whitaker v. State, 286 S.W.3d 355 (Tex. Crim. App. 2009);
•
Offers of proof–in this case, statements contained in videotape allegedly admissible to impeach witness–must point specifically to relevant material and those statements must be extracted from other inadmissible statements. Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002);
•
(Vera v. State,___S.W.3d___, No. 03-24-00445-CR (Tex. App.–Corpus Christi April 30, 2026) (Expert witness testimony proffered for more than one purpose was not preserved where defense counsel did not “segregate and separately offer” admissible testimony from inadmissible testimony. Evidence regarding defendant’s intoxication was clearly inadmissible but “fight-or-flight testimony was possibly admissible.” “[U]nder Texas law, neither the trial court nor an appellate court is required to independently address admissible and inadmissible portions of testimony where, as here, the offering party failed to segregate and separately offer those portions at trial.”)
Practice Tip: With respect to medical records, it is essential to go through each page and identify offending entries. For example, hospital records generally qualify as “records of a regularly conducted activity” pursuant to Tex. R. Evid. 803(6); however, they frequently are replete with gratuitous entries/statements that are hearsay (within hearsay) and do not otherwise qualify for admission pursuant to Preservation Of Error
Rule 803(4)–Statements Made for Medical Diagnosis or Treatment.
This can
additionally raise possible confrontation problems. I suggest that you go identify those entries which are adverse to your theory of
50 408
defense and be prepared to object to their admissibility prior to admission–preferably prior to trial. Merely declaring that the exhibit contains inadmissible hearsay or entries that cannot be confronted without specifically identifying the same will get you nowhere. I go through the records and flag the offending entries and make a copy of that page. I then attach to a Motion in Limine each copied page and the requested redaction and group the offending entries by topic such as “hearsay-not excluded as an exception pursuant to Rule 803(4).” In a rather recent dead baby case we tried, the hospital records were replete with gratuitous statements made by hospital social workers that our client “appeared like he didn’t care”; “was acting inappropriate”, etc. We identified each such statement and provided a pretrial brief arguing that these “opinions” were not admissible pursuant to Rules 701 and 702. Ultimately, we reached an agreement with the State that the witnesses would not be allowed to proffer such opinions to the jury. But had the agreement not been reached and had the State attempted to offer those particular records into evidence, we would have preserved error for appellate review by isolating the objectionable entries and Preservation Of Error
specifically objecting to them as being inadmissible notwithstanding the fact that the vast majority of the hospital records were otherwise admissible. (Erroneous exclusion of evidence) •
Notwithstanding the trial court’s assurance that a proffer need not be 51 409
made, it was still incumbent on defense counsel to make an offer of what the intended evidence would have been to preserve error for appeal. Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009);
Preservation Of Error
Objections by State to admissibility of the entirety of a video recording sought to be admitted by defendant to impeach witness with prior inconsistent statements may require defendant in order to preserve error to offer discrete sections of edited video recording which showed only admissible portions of witness’ prior statements and excluded statements that were otherwise inadmissible. Willover v. State, 38 S.W.3d 672, 682 (Tex. App.–Houston [1st . Dist.- 2001], rev’d on other grounds, 70 S.W.3d 841 (Tex. Crim. App. 2002); •
Evidence offered for only a limited purpose must be specifically identified and the rationale for limited admissibility must be clear from the record. Jones v. State, 843 S.W.2d 487 (Tex. Crim. App. 1992).
(7)
Expert witness testimony
•
The three requirements of expert witness testimony commonly referred to as (1) qualification; (2) reliability; and (3) relevance, raise distinct questions and issues and an objection on one of these bases does not preserve error as to the others. An objection based on “expert testimony” without identifying one of the above does not preserve error for review. Objections based on “Daubert” or Rule 702 without more may be insufficient to preserve error. Id. Shaw v. State, 329 S.W.3d 645 (Tex. App.–Houston [14th Dist.] 2010);
•
Objection based on “unreliability” is not specific enough; the opponent to identify which aspect of reliability is being challenged. Null v. State, 690 S.W.3d 305 (Tex. Crim. 2024).
(8)
Legal sufficiency of the evidence (Motions for Directed Verdict)
•
No objection to legal sufficiency is required to be made at trial in order to raise the same on appeal. Moore v. State, 371 S.W.3d 221 (Tex. Crim. App. 2012). 52
410
(9)
Jury Instructions
Practice Tip:
The practitioner must familiarize herself with articles
36.14–36.16 of the Code of Criminal Procedure which address jury charge requests/preservation.
The jury charge should be the beginning of your trial
preparation, not the end of it. Hone in on what the constituent elements of the charged offense are to learn precisely what the prosecution must prove in order to secure a guilty verdict.
Consider applicable lesser-included offenses as well as
defenses and affirmative defenses that may be pertinent to the defense of the accusation. Not only will this guide your preparation of the defense, it will educate you as to what kind of evidence will have to be adduced in order to be entitled to the specially requested jury instruction. Specifically object to any and everything that constitutes a misstatement of applicable law, an improper comment on the evidence, or fails to include provisions of law that have been raised by the evidence and are applicable to the litigation. Prepare your own rendition of what you think the charge should say or include. This Preservation Of Error
is especially important in cases where unique legal issues are presented such as the concept of “causation” in intoxication manslaughter and felony murder prosecutions or where fact questions are raised for resolution by the jury in article 38.23 of the
53 411
Code of Criminal Procedure circumstances.
Even an inartfully drafted specially
requested jury instruction will preserve error as long as the trial court is on reasonable notice as to what you are requesting. Stone v. State, 703 S.W.2d 652 (Tex. Crim. App. 1986); and Francis v. State, 36 S.W3d 121 (Tex. Crim. App. 2000). The time to be dreaming up objections and specially requested instructions is not while the jury has been retired to the jury room before the commencement of final argument. •
A request for an “accident instruction” was not sufficient to preserve claim on appeal that trial court erred in not providing an instruction on the requirement of a “voluntary act.” Rogers v. State, 105 S.W.3d 630 (Tex. Crim. App. 2003);
Preservation Of Error
Unobjected to jury instruction error (“Almanza10 error”) •
Art. 36.19 sets out the manner in which jury charge error is reviewed on appeal. Initially, the appellate court must determine whether error exists in the charge. If so, it must determine whether sufficient harm was caused by the error to require reversal. The degree of harm necessary for reversal depends on whether an objection was made to the charge. If an objection was made and overruled, reversal is required unless the error was harmless. “Any harm, regardless of degree, is sufficient to require reversal.” If the error was not preserved, to require reversal “egregious harm” must be demonstrated. Errors which result in egregious harm are those which affect “the very basis of the case,” deprive the defendant of a “valuable right,” or “vitally affect a defensive theory.” Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996);
•
“This degree of harm, sufficiently serious to be called ‘egregious,’ is present whenever a reviewing court finds that the case for conviction or punishment was actually made clearly and significantly more persuasive
10
686 S.W.2d 157 (Tex. Crim. App. 1985). 54
412
by the error.” Saunders v. State, 817 S.W.2d 42, 43 (Tex. Cr. App. 1993); •
“An affirmative denial of objection, as in this case, shall be deemed equivalent to a failure to object. An appellant may raise such unobjected-to charge error on appeal, but may not obtain a reversal for such error unless it resulted in egregious harm.” Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004).
(10) Limiting Instructions •
Failure to request limiting instruction at the time the evidence is admitted relieves the trial court of any obligation to later limit the use of the evidence in the jury charge. Once evidence has been admitted without a limiting instruction, it becomes part of the general evidence and may be considered by the jury for all purposes. McGowan v. State, 375 F/3d 244, 251 (Tex. App.–Houston [14th Dist] 2012); Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007);
•
Defendant’s request for a limiting instruction regarding extraneous offenses “when the time is appropriate” was not specific enough to make clear that the request was for an instruction at the time the evidence was admitted. Wilson v. State, 7 S.W.3d 136 (Tex. Crim. App. 1999).
(11) Jury arguments •
Preservation Of Error
Typical sequence for preservation is not always required. Archie v. State, 221 S.W.3d 695 (Tex. Crim. App. 2007); but typically, “as a general rule, (and this applies to other forms of error such as improper statements made by the prosecutor or the judge) preservation of error requires that the appellant have made requests for all appropriate relief from the trial court and have pressed all those requests to adverse rulings.” Dix, at 1065. Defense counsel typically “must ask, in progression, for increasingly rigorous relief until the trial court denies a request. This requires, again speaking generally, that counsel object, request an instruction to the jury directing it to disregard the improper action, and finally move for a mistrial. In most cases, the claim of error 55 413
Preservation Of Error
on appeal will be the trial court’s action in overruling the motion for new trial.” Id. at 1065-1066; •
Unobjected to jury argument may be reversed in absence of objection if argument was so prejudicial that an instruction to disregard could not have cured the harm. Garcia v. State, 880 S.W.2d 497 (Tex. App.–Corpus Christi 1994);
•
Unobjected to imprudent judicial comments may not be challenged on appeal unless they are fundamentally erroneous. Moreno v. State, 900 S.W.2d. 357 (Tex. App.–Texarkana 1995);
•
Racially charged jury argument even if egregious must be preserved by timely objection. Hernandez v. State, 538 S.W.3d 619 (Tex. Crim. App. 2018);
•
Without requesting curative instruction, improper comment on failure to testify not preserved by moving for a mistrial. Brewer v. State, 367 S.W.3d. 251 (Tex. Crim. App. 2012);
•
Objection to improper statement made during jury argument does not necessarily have to be met with an objection occurring between the end of one sentence and the beginning of the next. Denton v. State, 896 S.W.2d 580 (Tex. App.–Ft. Worth 1995), overruled on other grounds, 920 S.W.2d 311 (Tex. Crim. App. 1996);
•
Objection to trial court not providing sufficient time for final argument requires defense counsel stating for the record what he would have argued had he had been provided additional time. Madry v. State, 200 S.W.3d 766 (Tex. App.–Houston [14th Dist.] 2006, pet. ref’d.);
•
Objection to the trial court limiting substance of what can be argued requires defense counsel to state for the record what the proposed argument would be. Sneed v. State, 209 S.W.3d 782 (Tex. App.–Texarkana 2006, pet. ref’d.).
56 414
(12) Jury notes, trial court responses thereto, and verdicts •
Objections to accuracy of court reporter “read back” must be made at time error is apparent and normally that will be at the very time of the read back itself. Hollins v. State, 805 S.W.2d 471 (Tex. Crim. App. 1991);
•
Errors in jury verdict addressable based on motion for mistrial under circumstances presented. Cook v. State, 390 S.W.3d 363 (Tex. Crim. App. 2013).
(13) Judgments and sentences “The right to be sentenced by a judge who considers the full range of punishment is a category two right under Marin v. State, 851 S.W.2d. 275 (Tex. Crim. App. 1993)” and is not subject to procedural default. Jacobs v. State, 720 S.W.3d 217 (Tex. App.–Eastland 2025; Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014) (“A court’s arbitrary refusal to consider the entire range of punishment constitutes a denial of due process”);
•
“In the absence of a defendant’s effective waiver, a judge has an independent duty both to identify the correct statute under which a defendant is to be sentenced and the range of punishment it carries and to consider the entire range of punishment in sentencing a defendant irrespective of a defendant’s request that he do so.” Jacobs v. State, supra, quoting, Ray v. State, No. 14-22-0286-CR, 2023 WL 4571960 at 3 (Tex. App.–Houston [14th Dist.] July 18, 2023);
•
Claims asserting trial court imposed impermissible conditions of probation were forfeited by not objecting at time of their imposition and raising the same for the first time on appeal. Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999);
•
Where condition of probation was imposed after in court proceedings, defendant could raise complaint for the first time on appeal. Dansby v. State, 448 S.W.3d 441, 452 (Tex. Crim. App. 2014);
Preservation Of Error
•
57 415
•
Same result as to imposition of court costs not entered in open court. London v. State, 490 S.W.3d 503 (Tex. Crim. App. 2016);
•
Fundamental error is committed by trial court’s imposition of condition of probation which required defendant to leave the country despite defendant’s failure to object in the trial court. Gutierrez v. State, 380 S.W.3d 167, 175–76 (Tex. Crim. App. 2012). As the Court reasoned,
Preservation Of Error
We are not inclined to read Speth so categorically as to hold that a defendant may not complain for the first time on appeal of a condition of probation which violates an absolute prohibition as envisioned by Marin. This is not to say that a defendant will not forfeit many, if not most, appellate complaints—even most constitutional complaints—about particular conditions of community supervision by failing to object at trial, or that he will not effectively waive any constitutional or statutory waiver-only right that might be violated by a condition of community supervision he has agreed to follow in his contractual relationship with the trial court. But he cannot agree to submit to a condition of community supervision that the criminal justice system simply finds intolerable and which is therefore, by definition, not even an option available to the parties. •
Defendant’s failure to object to requirement that he pay fine as a condition of probation even though jury’s verdict clearly stated that fine was to be probated and not paid, did not result in waiver of issue; defendant is not barred from raising defect of sentence for first time on appeal. Martinez v. State, 874 S.W.2d 267 (Tex. App.–Houston [14 t h Dist.] 1994);
•
Raising objection to trial court failing to allow defendant to submit evidence in mitigation of punishment where trial court revoked defendant’s probation, adjudicated defendant guilty, assessed punishment, and then promptly left bench, in motion for new trial was timely. Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992). See and compare to Pearson v. State, 994 S.W.2d 176 (Tex. Crim. App. 1999); 58
416
•
Objection to restitution order could be raised for the first time on appeal where it was entered after oral pronouncement of sentence and overruling motion for new trial and, therefore, defendant had been afforded no opportunity to object. Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014).
(14) Motions for New trial/arrest in judgement Claims forfeited at trial may not be resurrected by urging them in a motion for new trial. Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006);
•
As a general rule, a motion for new trial must be used and is the proper vehicle to “adduce facts not in the record” for appellate review. (T.R.A.P. 21.1);
•
A motion for new trial must be utilized in some circumstances to overcome the presumption of regularity of the proceedings and to otherwise make the record reflect what did or did not occur at trial that is not reflected in the trial record. Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986);
•
Claims of jury misconduct and improper jury separation must be raised in a motion for new trial if not otherwise reflected in the trial record. The key is to raise the claim and put the trial court on notice and provide the State an opportunity to contest the same and/or show lack of harm. Harris v. State, 738 S.W.2d 207 (Tex. Crim. App. 1986); Harvey v. State, 201 S.W.2d 42 (Tex. Crim. App. 1947);
•
Alleged violation of Brady v. Maryland was not preserved in motion for new trial where “[t]he appellant did not mention Brady in his motion or during the hearing on the motion, and did not include any Brady -related cases in his post-hearing submission. And a Brady claim requires that the defendant show by a preponderance of the evidence that evidence was withheld, that it was favorable to the defense, and that the evidence was material.” Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005);
Preservation Of Error
•
59 417
•
Matters brought to attention of trial court orally in hearing on motion for new trial that was not contained in written motion for new trial could form basis of complaint on appeal where enlarged matter was brought to the attention of trial court and the State, and the State did not object and stood mute during the hearing. Clarke v. State, 270 S.W.3d 573 (Tex. Crim. App. 2008).
(15) Double jeopardy •
Courts may review unpreserved double-jeopardy claims when (1) the undisputed facts demonstrate that the double-jeopardy violation is clearly apparent on the face of the record; and (2) enforcement of usual rules of procedural default serves no legitimate state interests. Steels v. State, 170 S.W.3d 765 (Tex. App.–Waco 2005); Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000);
•
Defendant has burden of producing evidence in support of allegation of former jeopardy; however, where proceedings are before same court and judge, these rules are relaxed. Where defendant did not produce evidence in support of the claim but “State did not object to the format of the hearing or the manner in which the Court made its findings”, the issue is preserved. Rules of preservation “are not arid rituals of meaningless form.” Hill v. State, 90 S.W.3d 308, 311–12 (Tex. Crim. App. 2002).
Preservation Of Error
(16) Unconstitutional statutes •
“[A] defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute.” Karenev v. State, 281 S.W.3d. 428 (Tex. Crim. App. 2009); both facial and “as applied” challenges, must be made at trial;
•
Defendant could raise facially unconstitutional claim for first time on PDR even though not raised at trial or on direct appeal in light of fact that statute has already been declared unconstitutional. Smith v. State, 463 S.W.3d 902 (Tex. Crim. App. 2015); Curry v. State, 910 S.W.2d 490 (Tex. Crim. App. 1995); 60
418
•
Argument that application of statute to accused would violate his right not to be subject to retroactive legislation was viewed “as an applied” challenge that needed to be raised and preserved in the trial court. Reynolds v. State, 423 S.W.3d 377 (Tex. Crim. App. 2014).
(17) Statute of Limitation Defenses •
F)
Statute of limitation defense that prosecution is time-barred is forfeited if not raised in the trial court. Harber v. State, 594 S.W.3d 438 (Tex. App. 2019).
Preservation rules cut both ways and apply to the Sovereign as an Appellant “ ‘Raise it or waive it’ forfeiture rule applies equally to goose11 and gander, State and defendant.” Martinez v. State, 91 S.W3d 331, 336 (Tex. Crim. App. 2002);
•
State defaulted claim that trial court erred in granting motion to suppress by raising alternative theories after the trial court ruled against it and no rehearing was held. State v. Huddleston, 164 S.W.3d 711 (Tex. App.–Austin 2005);
•
When State is appellant on appeal involving motion to suppress, it must have preserved each theory on which suppression could have been denied by raising theory in trial court. State v. Cantwell, 85 S.W.3d 849 (Tex,. App.–Waco 2002);
•
State failed to preserve issue of the applicability of art. 20.17(b) governing grand jury duties and powers to defendant who was not subpoenaed to appear before the grand jury by failing to raise issue in
Preservation Of Error
•
Colonel Google informs us that the idiom first appears in John Ray’s Collection of English Proverbs in the year 1670 and the original iteration apparently was “What’s sauce for the goose is sauce for the gander.” I, for one, did not know that a “gander” is a male goose and a female goose is called, well, a “goose”. Go figure. 11
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trial court. State v. Martinez, 92 S.W.3d 10 (Tex. App.–El Paso 2001); reversed on other grounds, 91 S.W3d 331, 336 (Tex. Crim. App. 2002);
(G)
•
State could not raise defendant’s purported lack of standing for first time on appeal when it did not prevail below; had it prevailed below, standing could be raised for the first time on appeal. State v. Klima, 910 S.W.2d 15 (Tex. App.–Waco 1995) But see State v. Esparza below;
•
State precluded from arguing for first time on appeal that district court had no power to refer matter to magistrate by failing to object below to district court’s order appointing a magistrate to resolve the issue. (Janecka v. State, 823 S.W.2d 232(Tex. Crim. App. 1992);
•
State’s concession of issue below prevented it from arguing error on appeal. Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002).
Appellee’s Burden or Duty to Raise and Present Issues in the Trial Court Be aware that although the phrase “what’s good for the goose is good for the
gander” sounds nice, in the practice of law it is not always applied equally to defendants and the State. Application of the Calloway12 rule is an area where that maxim may prove elusive. In Calloway, the Court of Criminal Appeals basically held that a trial court’s decision will be upheld on appeal on the basis of any applicable theory of law even if that theory was not relied upon by the trial court. (Distinguish Preservation Of Error
this from typical rules of procedural default which preclude reversal on appeal based on grounds not articulated and ruled upon below.)13 Although the trial court stated 12
743 S.W.2d 645 (Tex. Crim. App. 1988).
In Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002), the Court explained that rules of procedural default which preclude raising claims on appeal not advanced below because “the 13
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the wrong legal test in overruling defendant’s objection, ultimately its decision was correct on a different legal basis and, therefore, both the State and the appellate court could rely on the correct theory of law on appeal. “[I]t is well established that the mere fact that a correct ruling is given the wrong reason will not result in a reversal. If the decision is correct on any theory of law applicable to the case it will not be disturbed.” Id. at 651-52. (Emphasis added.) As Professor Dix observed, it appears that an appellate court may properly sustain a trial court’s ruling “on a theory not only uninvoked by the trial court but also that was never considered by the parties or presented to the trial court.” Id. at 1108. (Emphasis added.) This was made even clearer by the Court of Criminal Appeals in Rhodes v. State, 945 S.W.2d. 115 (Tex. Crim. App. 1997) wherein the Court affirmed a trial court’s overruling of a motion to suppress on a legal basis and theory never argued below. The Court was oblivious to whether application of such a rule may be unfair to the appellant where appellate courts rely on legal contentions “never passed on by the trial court.” Dix, at 1109. Not addressed, much less decided by the Court, was Preservation Of Error
“whether an appellate court can properly decide on a theory not argued to the trial trial court did not have an opportunity to rule upon and upon which the non-appealing party did not have an opportunity to develop a complete factual record” are not ordinarily “present when an appellate court affirms a trial court’s decision on a legal theory not presented to the trial court.” Because of this, “ ‘[o]rdinary notions of procedural default’ do not require a prevailing party [the appellee] to list or verbalize ‘in the trial court every possible basis for upholding’ its decision.” Note: In my view, it is difficult to articulate just how wrong that conclusion is in many cases. 63 421
court or whether such a theory is one ‘applicable to the case.’ ” Id. Professor Dix posits that Rhodes is arguably limited to those claims where appellant makes no argument that he was prejudiced by the appellate court’s reliance on matters not addressed below. He asserts that appellant’s may be entitled to a remand for an opportunity to have the trial court determine whether its ruling was predicated on the basis now articulated by the appellate court on appeal. (I got a feeling I know what will happen virtually 100% of the time upon any remand to the trial court.) In any event, pursuant to Rhodes, “an appellee in defending a trial court action effectively is freed from any obligation to present a ‘theory’ to the trial court as a precondition to reliance upon it during appeal. Id. The legal landscape has not always been consistent in this area of the law. In Alexander v. State, 866 S.W.2d 1 (Tex. Crim. App. 1993), the Court held that the Calloway rule was inapplicable to a Batson claim where the State
raised the
purported untimeliness of the defendant’s objection for the first time on appeal. In Sedani v. State, 848 S.W.2d 314, 319 (Tex. App.–Houston [1st . Dist] 1993) (Motion Preservation Of Error
for Rehearing En Banc), the Court reasoned that “the issue is not whether the decision is correct on any theory of law, but whether it is correct on any theory of law applicable to the case.” (Emphasis in original). The State did not raise at trial the issue it relied upon on appeal; in fact, both the State and the trial court relied on 64 422
“totally different grounds” at trial. Id. As Justice Cohen held, none of the authorities upon which the Calloway case relied “allows the State to invent a new theory on appeal totally unrelated to what it argued in the trial court.” Id. “The State should not get to keep its theories of the case a secret, while the courts require the defendant to reveal his in open court so that the State may rebut them.” Id. at 320. He observed that if the State was allowed to raise new theories for the first time on appeal, the defendant who requests it should be entitled to a remand in order for the fact finder to have “additional facts which would affect the result.” Id . Writing for the majority, he declined the State’s invitation to “have us rule against appellant based on a theory never mentioned in the trial court, without giving appellant the right to be heard.” Id. at 3. In Tamayo v. State, 924 S.W.2d 213, 215 (Tex. App.–Beaumont 1996), the Court of Appeals refused to rely on possible application of Tex. Code Crim. Proc. 28.01 to affirm trial court’s erroneous ruling that motion to quash had not been timely presented before the day of trial when art. 28.01 had not been mentioned or discussed Preservation Of Error
below by the trial court or the prosecutor. Because art. 28.01 permits matters not timely raised before the hearing to be considered “for good cause shown”, by not invoking its application below, the defendant was deprived of an opportunity “to escape the statutory penalty by showing good cause.” Dix at 1115. 65 423
In Sunbury v. State, 88 S.W.3d 229, 235 (Tex. Crim. App. 2002), the trial court’s exclusion of evidence at the punishment phase without articulating a basis therefore, did not permit affirmance of the ruling on the basis of Rule 403 where ‘[t]he trial judge did not exercise his discretion under Rule 403 and did not weigh probative value against any Rule 403 counterfactors.” And yet, in Corbin v. State, 85 S.W3d 272 (Tex. Crim. App. 2002), the majority of the Court had little difficulty in affirming the trial court’s rejection of the defendant’s motion to suppress on a legal basis–community caretaking authority of the police–that was not advanced by the State below.
Because the trial court entered no oral or written findings and
conclusions, a majority of the Court relied on “implicit findings of fact” that the trial court could have made to justify denying the defendant’s motion to suppress.14 Judge Cochran concurred only and took the majority to task for resolving the issue on a basis not raised below. Id. at 281. See also, Armendariz v. State, 123 S.w.3d 401 (Tex. Crim. App. 2003) wherein the Court upheld the trial court’s ruling on a motion to suppress without considering whether the defendant had been afforded a fair and Preservation Of Error
adequate opportunity below to address the underlying factual issues. Professor Dix, reasons that “Rule 33.1 can be read as applying to both This case provides a good example as to why appellants should request that the trial court enter findings on the record (and better yet, draft proposed findings for the court’s signature) especially when they have prevailed below.) 14
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appellees and appellants. It should be so read ...[and] it should require the State, when it opposes as trial a request affirmatively made by the defendant, to assert in that opposition any argument it may later wish to offer if the defendant’s request is denied and he appeals.” Id. at 1111. (Emphasis in original). In fact, the Calloway rule can be reconciled and harmonized with the obligation of appellees to raise all matters in the trial court “by regarding only those theories raised in the trial court as ‘applicable to the case.’ Only those theories so raised are, under Calloway, available for appellate consideration.” Id. This viewpoint has been accepted by the Court of Criminal Appeals. In State v. Copeland, 501 S.W3d 610, 612-13 (Tex. Crim. App. 2016), the Court held that in reviewing a ruling on a motion to suppress, it will be upheld if it is correct under “any theory of law applicable to the case”, even if the trial court did not rely on that theory in making its ruling.” The Court specifically stated that a “ ‘ theory of law’ is applicable to the case if the theory was presented at trial in such a manner that the appellant was fairly called upon to present evidence on the issue.” Id. (Emphasis Preservation Of Error
added.) “Whether a ‘theory of law’ is applicable to a case does not turn on the completeness of the trial court’s findings. Rather, the only question is whether that theory of law was litigated at the trial-court level.” Id. (Since the issue in question was litigated below, the State procedurally faulted by failing to advance it on 67 425
appeal.)15 The cabining of an expansive application of Crawford and recognition of how the rule can unfairly treat appellants (in this case the State) was recognized by the Court in State v. Esparza, 413 S.W.3d 81, 90 (Tex. Crim. App. 2013). After the trial court granted the defendant’s motion to suppress, “[f]or the first time on appeal,...the appellee began to argue that there was yet another theory of law applicable to the case that would justify the trial court's ruling on his motion to suppress: that the breath-test results could be excluded because the State failed to establish their scientific reliability under Rule 702 of the Texas Rules of Evidence.” The Court of Appeals held that the new theory advanced on appeal had been procedurally defaulted because it was not a theory relied on at the trial court level. Id. The Court of Criminal Appeals agreed:
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Sometimes appellants can also be deprived of an adequate opportunity ‘to develop a complete factual record’ with respect to an alternative legal theory, and it would be incongruous with our justification in Hailey to treat a purported alternative legal theory as truly law ‘applicable to the case’ under those circumstances. If the alternative legal theory that an appellee proffers for the first time on appeal as a basis to affirm a trial court's otherwise faulty judgment turns upon the production of predicate facts by the appellant that he was never fairly
Copeland illustrates that not only is it incumbent on appellees to raise issues at trial in order to use them in their arsenal on appeal in defending the trial court’s rulings, but appellees must also raise those issues on appeal in support of their arguments or run the risk of procedurally defaulting them. 15
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called upon to adduce during the course of the proceedings below, then application of the Calloway rule to affirm that otherwise faulty judgment works a manifest injustice. An appellee's alternative legal theory should not be considered ‘law applicable to the case’ under these circumstances, and this is so regardless of whether the appellee was the defendant or the State at the trial court level. Id. Professor Dix asserts that the Calloway rule should especially be inapplicable in those circumstances “where the State defends a trial court’s action on the basis of an analysis containing limitations, qualifications, and exceptions” that were not raised below and explored on the record. Id. at 1115. There is authority for the proposition that actions by litigants below –“assertions, concessions, and acquiescence”–can result in the loss of ability to advance certain arguments on appeal because those actions “lulled the appellant into a reasonable belief that further action on his part was unnecessary to make his strongest case for victory at the trial level and to preserve error on appeal.” Dix at 1116-17. Lack of “standing” may be raised for the first time on appeal by the State to thwart a trial court’s granting of a motion to suppress. Wilson v. State, 692 S.W.2d 661 (Tex. Crim. App. 1984). However, the State may forfeit its right to do so if Preservation Of Error
through “assertions, concessions or acquiescence”,16 it lulls defendant into reasonable belief that standing is not in issue. More must be done, however, than simply not Hawkins v. State, ____S.W.3d____, 2026 WL 995291(Tex. App.–Houston [14th Dist.] April 14, 2026). 16
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raising the issue below. Practice Tip: You will infrequently prevail below in motions to suppress and more infrequently will your client be an “appellee”. However, do not rest on your temporary laurels when you do manage to prevail below. Make sure that you cover
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the following bases: 1.
Articulate every plausible basis upon which you rely in urging the granting of relief from the trial court. Again, written memoranda of law will serve your client well in these circumstances. It does not matter that the trial court actually grants relief on every basis that you advance. What does matter is that the record is clear that both the trial court and the State were on notice as to what your arguments and assertions were;
2.
Remember that as the proponent of a motion to suppress, you have the burden of production at the very least and maybe the burden of persuasion depending upon the nature of your claim. If you are required to produce evidence, make sure you make an adequate record or explain on the record why you cannot;
3.
Guard against “implied” or phantom findings on appeal by getting the trial court to state on the record or in writing what the findings are. Since you have prevailed below, most trial courts are responsive to having the prevailing party draft proposed findings of fact and conclusions of law for initial consideration. It is additional work for you but you can make sure that the necessary findings are made by the trial court if you assist in drafting them. If the trial court enters its own findings or adopts proposed findings submitted by the State, guard against erroneous findings or conclusions that are not supported by the facts or the law by lodging an objection to the same.
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Conclusion Remain forever vigilant at trial and on appeal because both the State and appellate courts will bend over backwards to assert and find that your error has somehow escaped effective review on appeal due to want of preservation. Although the public policy considerations respecting the contemporaneous objection rule and other preservation of error principles are in most circumstances generally valid in theory, the application of those rules to real life situations that unfold rapidly and often unpredictably during the course of trial while literally in the heat of battle, all too often result in the jettisoning of otherwise meritorious grounds of error on appellate review. All too frequently, appellate dispositions are based on the technical application of preservation of error rules in circumstances that serve little practical purpose. That is to say, the truth is the State in fact had more than adequate notice at trial of the deficiency or complaint that was being made and the trial court was obviously hell-bent on ruling the way she did regardless of what incantation of words were uttered or not by defense counsel. The result is the devolution of serious claims Preservation Of Error
on appeal in rulings that champion “form” over “substance”, and eviscerate constitutional, statutory, and common law rights and principles with the citizen accused being left without any meaningful judicial recourse.
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39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Ethical Social Media Investigation
Speaker:
Miles Brissette
Law Offices of Gill & Brissette 3663 Airport Freeway Fort Worth, TX 76111 817.803.6918 phone 817.554.1534 fax miles@gillbrissette.com email http://www.gillbrissette.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Texas Criminal Defense Lawyers Association
Ethical Social Media Investigation
ETHICAL SOCIAL MEDIA INVESTIGATION Methodology, Authority, and Admissibility for Today’s Texas Criminal Defense Practitioner Open Source Intelligence (OSINT)
Contents I. II.
Executive Summary and Scope Threshold Question: Who May Lawfully Conduct the Investigation
III.
Phase One: Identification and Public-Records Pre-Search
IV. V.
Phase Two: Platform Mapping, Username Resolution, and Tooling Phase Three: Activity Analysis and Temporal Correlation
VI.
Constitutional Limitations on Counterpart Government Investigation
VII.
Statutory Limitations: The Stored Communications Act and Texas Computer-Crime Statutes
VIII. IX.
Texas Ethics: The No-Contact Rule, Truthfulness, and “False Friending” Authentication and Admissibility Under TEXAS RULE OF EVIDENCE 901: Tienda v. State
X.
Documentation, Preservation, and Chain of Custody
XI.
Operational Workflow Checklist
XII.
How Law Enforcement Locates Suspect Accounts, and Why It Matters to the Defense
XIII.
Conclusion Appendix A: Index of Authorities
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I. Executive Summary and Scope - OSINT This paper is a practitioner's guide. It's written for seasoned criminal defense attorneys and the licensed investigators and paralegals who work with them. It does not rehearse first principles. The defense team's task: locate a target's social-media presence, identify the platforms and personas in use, characterize the cadence and content of activity, and preserve the result in a form that survives cross-examination, suppression motions, and Rule 901 challenge. The paper is organized around three phases (foundation, platform mapping, activity analysis), three boundary regimes (constitutional, statutory, ethical), and one authentication doctrine (Tienda v. State). It closes with an operational workflow checklist and a comparative discussion of how law enforcement locates the same accounts, because every step of the State's playbook is the predicate for the defense's crossexamination of the State's version of events.
II. Threshold Question: Who May Lawfully Conduct the Investigation Before a single search is run, the team must resolve who is doing the running. In Texas, conducting an investigation “to obtain or furnish information about a person's identity, habits, conduct, business, occupation, knowledge, [or] efficiency” for compensation generally requires a license under Chapter 1702 of the TEXAS OCCUPATIONS CODE (the Private Security Act). The statute contains exemptions, the most relevant being a person regularly employed by an attorney who performs investigations exclusively in connection with the firm's matters. That exemption is narrow and fact bound. ▸ TEXAS OCCUPATIONS CODE CHAPTER 1702 (Private Security) — https://statutes.capitol.texas.gov/Docs/OC/htm/OC.1702.htm
The practical implications for the defense team are three:
1. Counsel may, of course, perform investigative work directly without a Chapter 1702 license. The license requirement attaches to non-attorneys. 2. A paralegal who systematically gathers OSINT for a client matter on behalf of a firm should do so under direct attorney supervision, with the work product protected as work product and attorney-client communications where applicable. 3. A non-licensed third-party freelancer hired to “find someone's social media” exposes the firm to a Chapter 1702 violation, an evidentiary spoliation challenge, and potential disqualification arguments.
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III. Phase One: Identification and Public-Records Pre-Search Effective platform searches are downstream of identification work. The investigator should first build a structured identity dossier from public records and subscriber database sources before ever entering a username field on a social platform.
Identity dossier elements •
Full legal name, prior legal names, and judicially recognized aliases.
•
All addresses associated with the subject for the relevant period (used to reconcile platformclaimed locations with reality).
•
Email addresses and phone numbers historically tied to the subject (the strongest cross-platform identifiers).
•
Employers, professional associations, schools, and military service (each generates platform breadcrumbs).
•
Date of birth and immediate family identifiers (used for tagged-photo cross confirmation).
Permitted Tooling Licensed investigators properly retained by counsel may use commercial aggregators including LexisNexis Public Records, Thomson Reuters CLEAR, Accurint (LexisNexis), TLOxp (TransUnion), and Westlaw PeopleMap, subject to each vendor's permissible-use certification under the Driver's Privacy Protection Act, the Gramm-Leach-Bliley Act, and the Fair Credit Reporting Act. Counsel should confirm, in writing, that the vendor's permissible-use code on the engagement covers “litigation” or “legal compliance” and not employment or insurance, which require different certifications.
IV. Phase Two: Platform Mapping, Username Resolution, and Tooling Once the identity dossier is built, the investigator moves to platform-by-platform searches. Two principles govern this phase: (1) every search and result must be reproducible, and (2) every observed item must be captured at observation time, because social-media content is volatile and routinely deleted, edited, or made private without notice.
Platforms by category
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Wide-reach social networks: Facebook, Instagram, X (Twitter), TikTok, Snapchat, BeReal, Threads.
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Professional and identity-tied: LinkedIn, About.me, employer team pages, alumni directories.
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Interest-driven and pseudonymous: Reddit, Discord, Telegram public channels, YouTube, Twitch.
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Long-tail and legacy: MySpace archives, defunct profiles preserved on the Internet Archive, dating-platform public profiles where lawfully visible.
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Tooling for Platform Mapping and Username Resolution What follows is a curated, defense-relevant tooling layer. Each tool was selected because it (a) queries only public endpoints or operates against material the subject has voluntarily exposed to the public, (b) leaves a reproducible audit trail consistent with the “passive review” line of authority discussed in Section VIII, and (c) supports the Tienda authentication standard discussed in Section IX. Tools that don't meet all three criteria are noted but not adopted as core.
1. Google Dorks (advanced search operators) “Google Dorking” refers to the disciplined use of Google's published advanced search operators to surface platform-indexed material that ordinary keyword search will not. It belongs first in the workflow because it has zero ethics exposure, zero statutory exposure, and full reproducibility. Every query is captured by URL and can be re-run by opposing counsel or a fact-finder. A few high-yield patterns: •
site:facebook.com "John Q. Doe" "Fort Worth": restrict to one platform, exact-match the name and locality.
•
site:instagram.com "@suspectedhandle": confirm or refute a handle's presence on a specific platform.
•
"john.q.doe@gmail.com": the email itself is the strongest cross-platform identifier; quoted-string search across the open web routinely surfaces forum posts, breach disclosures, and profile pages.
•
site:linkedin.com/in "Acme Corp" "Fort Worth": narrow LinkedIn to a single employer and locality.
•
"@suspectedhandle" -site:twitter.com -site:x.com: find the same handle on platforms other than X.
•
site:web.archive.org "@suspectedhandle": locate archived snapshots of profiles or posts that may have been deleted or made private.
Operator reference is documented publicly by Google. Investigators should preserve the full query string and the URL of the results page at observation time, because Google's index isn't a stable record.
2. Maltego (link analysis and graph visualization) Maltego is a commercial OSINT platform that performs link analysis across email addresses, phone numbers, domains, social-media handles, and breach data through a system of “transforms” that query public data sources and visualize the resulting relationships as a graph. The Community Edition is free and adequate for most defense work; commercial editions integrate paid data sources. The defense use case is exactly what Maltego was designed for. Take one confirmed identifier (an email, a phone number, a confirmed handle) and map outward to the constellation of associated identifiers and accounts. The graph output is also a useful exhibit for the defense investigator's report. ▸ Maltego (vendor documentation) — https://www.maltego.com/
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3. Sherlock and WhatsMyName (cross-platform username enumeration) Subjects reuse handles. The single most productive technique in modern OSINT is to take one confirmed handle from one platform and run it across hundreds of others using publicly available usernameenumeration tools. Sherlock is an open-source command-line utility that checks a username against several hundred sites. WhatsMyName is a maintained data set with a hosted web front end that performs the same function with a different and overlapping coverage list. Both query only public endpoints; neither authenticates against any account; both produce hit lists the investigator must then manually verify, because a hit on a generic username isn't confirmation that the same human owns both accounts. Their use is consistent with the “passive review” rule of Section VIII. ▸ Sherlock Project (open source) — https://github.com/sherlock-project/sherlock ▸ WhatsMyName (open source / hosted) — https://whatsmyname.app/
4. Hunchly (forensic-grade capture during OSINT browsing)
Hunchly is a browser extension and case-management tool purpose-built for OSINT investigators. As the investigator browses, Hunchly captures the full HTML of every page visited, screenshots, hashes the captures, timestamps them, and builds a chronological case record. It's widely used by federal agents, statelevel investigators, and licensed PIs precisely because it produces capture packages designed to satisfy authentication standards like Tienda. Hunchly is mentioned again in Section X (Documentation) because it bridges the gap between identification and preservation: the moment the investigator finds the account, the capture has already happened. ▸ Hunchly (vendor documentation) — https://www.hunch.ly/
5. Wayback Machine and archive.today (historical-state retrieval) The Internet Archive's Wayback Machine and the independent archive.today service both index historical snapshots of public web pages, including social-media profile pages where the platform hasn't blocked indexing. Where a profile, post, or photograph has been deleted, edited, or made private after the alleged offense date, an archived snapshot may be the difference between a destroyed defense exhibit and a preserved one. Defense investigators should query both services for every confirmed handle and profile URL, because their crawl coverage is non-overlapping. Each service's snapshot URL is itself stable and citable. ▸ Internet Archive (Wayback Machine) — https://web.archive.org/ ▸ archive.today — https://archive.ph/
Tools mentioned but not central
Two additional tools are sometimes used by defense investigators and are addressed here for completeness. theHarvester is a reconnaissance utility built primarily for penetration testing. It harvests emails, subdomains, hosts, and employee names tied to a domain. It has marginal utility when the subject operates a personal domain or is identified with a domain-bearing employer, and essentially none for the typical
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“find this person's social media” workup. Shodan indexes internet-connected devices and services and is the right tool when the target of investigation is infrastructure (a server, an IoT deployment, an exposed database). It's the wrong tool when the target is a natural person's social-media presence; including it as a core tool would suggest a use case the tool doesn't actually serve. Shodan does have a defense-relevant edge case (disputing State infrastructure attribution in network-intrusion or device-based offense cases), but that's a separate inquiry.
Reverse-image search as a seed technique Reverse-image search of a confirmed profile photograph (Google Lens, TinEye, Yandex) routinely surfaces additional platforms where the same image is in use. Photographs of the subject obtained through proper public-records channels (an arrest photograph, a public license-bureau image where lawfully accessible, or a publicly posted family photograph) may all serve as the seed. Yandex's image-similarity engine has historically outperformed Google's on faces; running the same seed across all three engines is good practice.
OSINT Framework as a reference index OSINT Framework (osintframework.com), maintained by Justin Nordine, is a curated mind-map index of OSINT resources organized by category: usernames, email addresses, social networks, archives, and dozens more. It's worth knowing about, but it's a reference index, not an investigative tool. It performs no queries; it links to tools that do. Several of the tools above (Sherlock, WhatsMyName, the Wayback Machine) appear among its links. Defense investigators may find it useful as an orienting starting page when scoping an unfamiliar category of platform, but two caveats apply. First, inclusion on the framework isn't a vetting stamp; the linked tools must still be evaluated against the three criteria above. Second, the link list ages unevenly; some categories are well-maintained, others link to abandoned projects or services that have materially changed. ▸ OSINT Framework — https://osintframework.com/
V. Phase Three: Activity Analysis and Temporal Correlation Once the constellation of accounts is mapped, the analytical question becomes: what was the subject doing, when, and from where? In a criminal defense posture, the most common high-value findings are (a) timestamped posts inconsistent with the State's version of events or sequence-of-events narrative, (b) geotagged content placing the subject at a location relevant to the indictment, (c) communications with witnesses that bear on credibility, and (d) prior-consistent statements supporting a defense theory. The State has the State's version of events, and that's the version against which social-media activity is viewed.
Categorical observations to capture for each account Field
Capture Standard
Profile URL
Full canonical URL, captured at observation time.
Display name & handle
Both, including any historical changes visible.
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Account creation date
Where platform discloses; otherwise note as unavailable.
Privacy posture
Public, friends-only, or private, at the moment of observation.
Activity cadence
Posts per day/week, last-active date, gaps in activity.
Geotagged content
Photo EXIF, check-ins, location tags. Note both presence and absence.
Network connections
Friends/followers/connections relevant to the defense theory.
Cross-platform identifiers
Email, phone, linked accounts surfaced through profile fields.
Posts relevant to chronology
Each preserved with URL, hash, full-page capture, UTC time.
VI. Constitutional Limitations on Counterpart Government Investigation Defense counsel must understand the constitutional limits that bind the State's investigation in order to attack the State's exhibits. Two Supreme Court decisions are foundational. In Riley v. California, the Court unanimously held that the search-incident-to-arrest doctrine doesn't authorize warrantless search of the digital contents of a cell phone seized from an arrestee. The privacy interests in modern smartphones are categorically different from those in physical containers. In Carpenter v. United States, the Court held that the Government's acquisition of historical cell-site location information (CSLI) from a wireless carrier is a Fourth Amendment search, generally requiring a warrant supported by probable cause. Both decisions matter to social-media investigation because the State's typical method of confirming defendant ownership of an account (extracting logged-in social applications from a seized device, or correlating CSLI to platform-disclosed location data) depends on these intrusions. Where the State's account-attribution evidence flows from an unlawful Riley / Carpenter intrusion, the social-media exhibit is a candidate for fruit-of-the-poisonous-tree suppression.
VII. Statutory Limitations: The Stored Communications Act and Texas Computer-Crime Statutes The Stored Communications Act (Title II of the Electronic Communications Privacy Act of 1986) regulates both government access and provider disclosure of electronically stored communications. 18 U.S.C. § 2701 criminalizes unauthorized access to a facility through which an electronic communication service is provided. Section 2702 sets out the provider’s non-disclosure obligations and their exceptions. Section 2703 sets out the standards by which the government may compel disclosure (subpoena, § 2703(d) order, or warrant, depending on the category of information sought). On the Texas side, PENAL CODE § 33.02 criminalizes “Breach of Computer Security”: knowingly accessing a computer, computer network, or computer system without the effective consent of the owner. The statute is broad on its face and has been applied to access of social-media accounts beyond the scope of consent,
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including by former intimates and spurned employees. A defense investigator who, in the course of “investigating,” logs into a target's account using shared, retained, or guessed credentials commits a § 33.02 offense and contaminates the entire investigation. ▸ 18 U.S.C. § 2701 (unauthorized access to stored communications) — https://www.law.cornell.edu/uscode/text/18/2701
▸ 18 U.S.C. § 2702 (voluntary disclosure by provider; exceptions) — https://www.law.cornell.edu/uscode/text/18/2702
▸ 18 U.S.C. § 2703 (required disclosure of customer communications or records) — https://www.law.cornell.edu/uscode/text/18/2703
▸ TEX. PENAL CODE § 33.02 (Breach of Computer Security) — https://statutes.capitol.texas.gov/Docs/PE/htm/PE.33.htm
VIII. Texas Ethics: The No-Contact Rule, Truthfulness, and “False Friending” Three TEXAS DISCIPLINARY RULES govern social-media investigation: Rule 4.01 (truthfulness in statements to others), Rule 4.02 (communication with one represented by counsel), and Rule 8.04 (misconduct, including conduct involving dishonesty, fraud, or misrepresentation). The State Bar of Texas Professional Ethics Committee addressed the application of these rules to social-media investigation in Opinion 671. ▸ State Bar of Texas Professional Ethics Committee, Opinion 671 (March 2018) — https://www.legalethicstexas.com/resources/opinions/opinion-671/
Opinion 671's holdings, in summary: a lawyer (or a non-lawyer assistant or investigator acting at the lawyer's direction) may passively review the public portions of a person's social-media presence, including a represented person's, without violating Rule 4.02. A lawyer or agent may not, however, send a friend or follow request, accept a follow request strategically extended, or otherwise engage with a represented person's restricted profile under a true or pretextual identity, because doing so is either a Rule 4.02 communication with a represented person or a Rule 4.01/8.04 deception.
ABA Formal Opinion 466 (Persuasive Authority) While not binding in Texas, ABA Formal Opinion 466 is the most-cited national authority on lawyer review of juror and witness internet presence. It draws the same passive/active line: a lawyer may passively review a person's public social-media presence, but may not (and may not direct an agent to) send an access request to a restricted profile. Notably, the ABA concluded that an automatic notification generated by the platform when the lawyer views a public profile (e.g., “so-and-so viewed your LinkedIn”) isn't a communication from the lawyer. ▸ ABA Standing Committee on Ethics & Professional Responsibility, Formal Opinion 466 (Apr. 24, 2014) —
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https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_ final_04_23_14.pdf
The defense-investigation rule of thumb that survives both Opinion 671 and Opinion 466: if the content is visible to a stranger walking past the digital storefront, you may look. If you must knock on the door, identify yourself, ask to be let in, or pretend to be someone else to be let in, you must not.
IX. Authentication and Admissibility Under TEXAS RULE OF EVIDENCE 901: Tienda v. State Even when the methodology is unimpeachable, the captured material is worthless at trial if it can't be authenticated. TEXAS RULE OF EVIDENCE 901(a) requires the proponent to produce “evidence sufficient to support a finding that the item is what the proponent claims it is.” The TEXAS RULES OF EVIDENCE are maintained by the Supreme Court of Texas. ▸ TEXAS RULES OF EVIDENCE (current rules, including Article IX on Authentication), Texas Judicial Branch — https://www.txcourts.gov/rules-forms/rules-standards/
Tienda v. State: The Texas Standard for Social-Media Authentication The leading Texas decision on social-media authentication is Tienda v. State, decided by a unanimous Court of Criminal Appeals in 2012. The State sought to introduce content from three MySpace profiles allegedly belonging to the defendant. The Court held that the trial court had not abused its discretion in admitting the profile evidence. The State had presented sufficient circumstantial evidence: photographs depicting the defendant's distinctive tattoos and accessories, references to the victim's death and funeral music, references to the defendant's gang affiliation, and messages reflecting facts uniquely consistent with the defendant's circumstances. That evidence supported a rational jury's finding that the defendant created and maintained the profiles. Tienda is referred to nationally as articulating the “Texas approach,” a permissive, jury-deferential standard that allows authentication through circumstantial evidence.
Defense Use of Tienda: Shield and Sword Defense counsel must operate Tienda from both directions. As a shield, Tienda fixes the floor the State must clear before its proffered Facebook screenshots, Instagram DMs, or TikTok uploads reach the jury; counsel should object whenever the State's circumstantial-authentication showing is thin. As a sword, Tienda permits defense counsel to introduce the defendant's own exculpatory social-media content where the same circumstantial showing can be marshaled, but only where the defense investigation has captured the metadata, URL, capture-time hash, and contextual indicia at acquisition.
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X. Documentation, Preservation, and Chain of Custody Authentication is won or lost at the moment of capture, not at the bench. Defense investigators should adopt a protocol that produces, for every observed artifact: (i) the canonical URL; (ii) a tool-generated full-page capture with embedded source HTML; (iii) a SHA-256 hash of the capture; (iv) the UTC timestamp of capture; (v) the examiner's identity; and (vi) a contemporaneous note describing the search path that produced the artifact. Specialized tools produce capture packages designed to satisfy Tienda-grade authentication. These include Hunchly (covered in Section IV), Page Vault, X1 Social Discovery, and FAW (Forensic Acquisition of Websites). Where such tools aren't available, two browsers operated by separate examiners, with synchronized screen-capture and time-stamped hash logs, will generally suffice.
XI. Operational Workflow Checklist 4. Confirm investigator licensing status (Tex. Occ. Code Ch. 1702) before engaging any non-firm personnel. 5. Build the identity dossier from public-records and licensed aggregator data with documented permissible-use codes. 6. Run Google Dorks across each major platform using name, handle, email, and locality combinations; preserve query strings and result URLs. 7. Run Sherlock and WhatsMyName against every confirmed handle to enumerate cross-platform presence; manually verify each hit. 8. Use Maltego to graph relationships between confirmed identifiers; preserve the graph as an exhibit. 9. Map platforms passively; never send a friend or follow request to a represented person, and never use a pretextual identity. 10. For each platform, capture profile URL, handle, creation date (where visible), privacy posture, and activity cadence with a forensic-grade tool (Hunchly, Page Vault, X1, or FAW). 11. Query the Wayback Machine and archive.today for every profile URL and relevant post URL to recover historical state. 12. For each relevant post, preserve URL, full-page capture, source HTML, hash, UTC time, and examiner identity. 13. Catalog network connections relevant to the defense theory; note represented persons and quarantine those accounts from any further direct interaction. 14. Cross-reference platform-disclosed locations and times against the State's chronology; flag inconsistencies for follow-up. 15. Consider whether platform-held content beyond what's publicly visible is needed and, if so, evaluate consented user-driven download (Facebook “Download Your Information,” Google Takeout, X data archive) before any subpoena strategy.
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16. Where a subpoena is necessary, evaluate the Stored Communications Act limits (18 U.S.C. § 2702) and prepare for the provider's anticipated motion to quash.
XII. How Law Enforcement Locates Suspect Accounts, and Why It Matters to the Defense Understanding the State's playbook is the predicate for cross-examining its result. Federal, state, and local law-enforcement agencies (the FBI's Cyber Division, DPS's Computer Information Technology and Electronic Crime (CITE) Unit, and local high-tech crime task forces) typically combine the following techniques after a critical incident, in roughly the following order: •
Real-time monitoring of public posts during and immediately after the event, often with platformprovided emergency-disclosure procedures under 18 U.S.C. § 2702(b)(8) and § 2702(c)(4).
•
Subpoena to identified email or phone-number providers for subscriber records under 18 U.S.C. § 2703(c)(2), then trace those identifiers across platforms.
•
§ 2703(d) court orders for non-content metadata (login IPs, registration data, friend lists) at a “specific and articulable facts” standard.
•
Search warrants (Rule 41 / TEX. CODE CRIM. PROC. Ch. 18) for content, after Carpenter and Riley raised the standard for digital intrusions of a certain scope.
•
Forensic extraction from a lawfully seized device post-warrant under Riley, typically with Cellebrite or GrayKey, which often surface logged-in social applications without further provider process.
•
Open-source intelligence run in parallel: the same Google-Dork patterns, Maltego graphs, Sherlock/WhatsMyName enumerations, and Wayback-Machine retrievals available to the defense, plus reverse-image searches and review of associates' public posts.
Defense counsel should reverse-engineer this sequence in every case where social media evidence is in the State's exhibit list. Each step has a paper trail. Each paper trail is discoverable. Each step has a recognized constitutional, statutory, or evidentiary failure mode.
XIII. Conclusion Social media investigations are disciplined public-records research projects applied to a medium that's unusually rich, unusually volatile, and unusually well-regulated. The defense team that masters Tienda's authentication standard, respects the Stored Communications Act, the Texas computer-crime statutes, and the disciplinary rules, and builds capture grade records from the first observation forward will produce evidence that survives challenge, will identify suppressible material in the State's case, and will avoid the disciplinary, civil, and criminal exposure that has ended other practitioners' careers.
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Appendix A: Index of Authorities Cases ▸ Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) — https://caselaw.findlaw.com/court/txcourt-of-criminal-appeals/1593701.html
▸ Carpenter v. United States, 585 U.S. 296 (2018) — https://www.law.cornell.edu/supremecourt/text/16402
▸ Riley v. California, 573 U.S. 373 (2014) — https://www.law.cornell.edu/supremecourt/text/13-132
Federal Statutes
▸ 18 U.S.C. § 2701: Unauthorized access to stored communications — https://www.law.cornell.edu/uscode/text/18/2701
▸ 18 U.S.C. § 2702: Voluntary disclosure of customer communications or records (and exceptions) — https://www.law.cornell.edu/uscode/text/18/2702 ▸ 18 U.S.C. § 2703: Required disclosure of customer communications or records — https://www.law.cornell.edu/uscode/text/18/2703
Texas Statutes and Rules ▸ TEX. OCCUPATIONS CODE CH. 1702: Private Security — https://statutes.capitol.texas.gov/Docs/OC/htm/OC.1702.htm
▸ TEX. PENAL CODE § 33.02: Breach of Computer Security — https://statutes.capitol.texas.gov/Docs/PE/htm/PE.33.htm
▸ TEX. CODE CRIM. PROC. CH. 18: Search Warrants — https://statutes.capitol.texas.gov/Docs/CR/htm/CR.18.htm
▸ TEXAS RULES OF EVIDENCE (Article IX: Authentication and Identification) — https://www.txcourts.gov/rules-forms/rules-standards/
▸ TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT (Rules 4.01, 4.02, 8.04) —
https://www.legalethicstexas.com/resources/rules/texas-disciplinary-rules-of-professional-conduct/
Ethics Opinions ▸ State Bar of Texas Professional Ethics Committee, Opinion 671 (March 2018) — https://www.legalethicstexas.com/resources/opinions/opinion-671/
▸ ABA Standing Committee on Ethics & Professional Responsibility, Formal Opinion 466 (Apr. 24, 2014) —
https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_466_ final_04_23_14.pdf
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Tooling References ▸ Maltego — https://www.maltego.com/
▸ Sherlock Project — https://github.com/sherlock-project/sherlock ▸ WhatsMyName — https://whatsmyname.app/ ▸ Hunchly — https://www.hunch.ly/
▸ Internet Archive (Wayback Machine) — https://web.archive.org/ ▸ archive.today — https://archive.ph/
▸ OSINT Framework (reference index, not a tool) — https://osintframework.com/
D. Miles Brissette Miles@GillBrissette.com
The Law Offices of Gill & Brissette (Not a Partnership)
Third Chair Digital Forensics LLC Third Chair Technologies LLC Third Chair Investigations LLC
817-803-6918 www.GillBrissette.com
3663 Airport Freeway Fort Worth, Texas 76111
3663 Airport Freeway Fort Worth, Texas 76111
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D. Miles Brissette, CFVT Miles@ThirdChair.com
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817-953-3385 www.ThirdChair.com
Texas Criminal Defense Lawyers Association
Making Law: Solving Old Problems
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Making Law: Solving Old Problems
Speaker:
Mark Bennett
Institute for Advanced Criminal Law Studies 917 Franklin St Fl 4 Houston, TX 77002 713.224.1747 phone MB@iacls.org email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Making Law: Solving Old Problems Mark W. Bennett Institute for Advanced Criminal Law Studies Making Law: Solving Old Problems
Houston, Texas Rusty Duncan Advanced Criminal Law Course San Antonio, Texas June 2026
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I. Introduc�on The appellate courts don’t know what they are doing. The lawyers arguing before them don’t know what they are doing. Prosecutors don’t Making Law: Solving Old Problems
know. Defense lawyers don’t know. Nobody knows what they’re doing. Nobody has ever known what they’re doing. I sure don’t know what I’m doing; I treat that admission as permission. If nobody has ever known what they were doing, then everything that has come before is subject to challenge. We might learn things about the law that nobody else has known before. You will think of arguments that someone has surely made before, and you will not find a case where those arguments have been made. This paper is permission—encouragement even—to trust that you have new ideas that nobody has had before, arguments that nobody has made. You have to be a little bit arrogant. You have to believe that (despite knowing nothing) you can have ideas nobody has had before. You have to go looking for angles nobody has tried. You have to know that an argument is not wrong just because nobody seems to have tried it. The argument that has not been made is not wrong, because it has not been made. The rule that has stood unchallenged for fifty years has not been confirmed by fifty years of examination; it has been laundered by fifty years of repetition.
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This paper proceeds from a simple premise: Texas criminal law is settled only when the Court of Criminal Appeals has rejected your specific argument, if even then. Making Law: Solving Old Problems
A court of appeals opinion does not settle a legal question. A broad holding does not foreclose every argument the court never considered. Rules that have gone unchallenged for decades may actually be unsettled law that nobody has bothered to settle. Eight examples follow, organized around the strategy described in Section 3. Each involves an argument that I think wins, and has been hiding in plain sight. Each has been available for years. In one case, for a century. The only thing that has been missing is the lawyer who decided to make the argument. II. The Problem: Setled Law That Isn’t Setled 1.
Cookie-Cutter Practice and the Problem of Opinion Laundering Most criminal appeals are losers. If they aren’t outright Anders cases, there was nothing to preserve at trial, and the only error preserved is harmless. Most criminal appellate lawyers practice the same way. We read the record, identify the objections, find the things that didn’t need to be preserved, look up the case law, and write the brief. That brief reports what the courts have said; it does not examine whether what the courts have said is correct.
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A harmful proposition of law appears in one early case: call that the root case. The next generation of cases cites the root case. The generation after that cites those cases. By the fourth generation, 42 cases appear to stand Making Law: Solving Old Problems
for the proposition, with extensive cross-support in each, and every new lawyer looking at the issue finds those 42 cases and concludes the law is settled. I call this opinion laundering. The question is analyzed once, if at all, but with generations of interlocking citations to other cases that cite each other and the root case, the courts make it appear that the opinion has more support than that one case. The root case may have held something narrower. It may have been about a different question entirely. The root case was probably decided when everything was different. Nobody checks, because everyone else has agreed that the root is correct, and it’s a little bit arrogant to presume that everyone else is wrong. We find winning arguments by being a little bit arrogant, and reversing the opinion-laundering process. Trace the proposition back to its root. Read what the root case actually said. Figure out why it doesn’t apply to this situation, or why it was wrong then, or why it’s wrong now. Opinion laundering is the ordinary product of lawyers not doing this archaeology. A case is cited for what it is assumed to say. The next lawyer finds the citing case and assumes the same. Nobody returns to the source.
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2.
What ‘Settled’ Means We know that an unpublished court of appeals opinion is not binding precedent. A published opinion is not binding in other districts. But
Making Law: Solving Old Problems
consider this: An otherwise-binding published court of appeals opinion from your district that did not address your specific argument is not binding precedent against that argument. Even a Court of Criminal Appeals opinion does not settle an argument the court never considered. The law is “settled,” for our purposes, only when the Court of Criminal Appeals has rejected the specific argument we intend to make, on facts like ours, after full briefing on the point. Those conditions are often unmet. 1 None of the arguments in this paper have been rejected yet; most have barely been made. 3.
You don’t have to go looking for new arguments. Once you accept that nothing is settled, new arguments appear where you weren’t looking for them. Two lines of cases show what that looks like.
3.1.
From Lo to Earl Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), established a model for facial challenges to speech-restricting statutes. After Lo, we brought facial challenges to Texas Penal Code section 42.07(a)(7)—the electronic harassment statute—and lost, and filed PDRs, and lost. The Court of
1. The Court of Criminal Appeals has little patience for relitigation of settled questions. But it has a different appetite for genuinely new questions. Frame the petition for discretionary review to show the court that the issue is interesting and important. 450
5
Criminal Appeals closed the door definitively in Ex parte Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), and Ex parte Sanders, 663 S.W.3d 197 (Tex. Crim. App. 2022), holding that section 42.07(a)(7) “does not implicate” the Making Law: Solving Old Problems
First Amendment because the statute could theoretically be violated by sending non-speech such as gibberish. That holding is wrong on its face. No other court has ever upheld a statute that restricts “communications” on grounds that it does not implicate the First Amendment. The Supreme Court’s decision a year after Barton and Sanders in Counterman v. Colorado, 600 U.S. 66 (2023), assumed without question that an electronic-harassment statute implicates the First Amendment, and imposed a subjective mental-state requirement to provide breathing space for protected speech. The Texas court’s premise vanished. Then the Court of Criminal Appeals itself, in Owens v. State, 728 S.W.3d 155 (Tex. Crim. App. 2025), recognized that a section 42.07(a)(7) prosecution might turn on the content of speech and trigger First Amendment scrutiny. Owens contradicts the premise of Barton and Sanders. The Court of Criminal Appeals’ “doesn’t implicate” position in Barton and Sanders is indefensible, but it’s likely going to take the Supreme Court to tell them so.2
2. We have to go through the Court of Criminal Appeals—offer them an opportunity to fix their First Amendment Jurisprudence—to get to the Supreme Court anyway. 6
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Earl v. State, 2025 WL 1773011 (Tex. App.—Austin 2025, pet. ref’d), discussed at length in Section 10 below, is the clean SCOTUS vehicle for attacking that position. The cert petition was filed April 30, 2026. Making Law: Solving Old Problems
An iterative strategy survives—and even exploits—losses. Lo provided the model. Barton and Sanders forced the Court of Criminal Appeals to overturn the statute or take an untenable position. Owens showed the contradiction. Earl is the Supreme Court vehicle. If the Court declines to hear Earl, there will be other cert petitions. The lawyer who would have stopped at Barton loses. The lawyer who keeps going might win. 3.2.
From Lo to Williams, Solis, and Johnson The second illustration of finding new solutions starts at the same place. Ex parte Lo generated the facial-overbreadth model. Then Ex parte Couch, 678 S.W.3d 1 (Tex. Crim. App. 2023)—another facial-overbreadth case— reached the Court of Criminal Appeals, which reversed for the court of appeals to determine whether the facial challenge was cognizable. Preparing for oral argument in Couch, I had an insight that has nothing to do with overbreadth: Texas courts of appeals systematically confuse “manner or means” with “element.” The various statutory methods of committing an offense are most often distinct elements, as a matter of grammar, statute, and constitutional law; treating them as interchangeable manner-or-means lets the State plead them in a single paragraph, and avoid the consequences of distinct-element treatment, chief among them the requirement of jury unanimity.
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The insight came too late for Couch itself. The challenged statute was the money-laundering statute, Texas Penal Code section 34.02. The methods were pled in a single count, so knocking out one method by facial challenge Making Law: Solving Old Problems
would not have removed any count of the indictment. The facial challenge to the “intend to finance or invest funds intended to further a crime” method—a thought crime—was therefore not cognizable on pretrial habeas. (Compare Ex parte Hammons, the companion case argued the same day and consolidated in Couch, 678 S.W.3d 1 (Tex. Crim. App. 2023), where the challenged method had its own count and the facial challenge was cognizable.) The first application of the insight that Courts of Appeals are confused about manners versus elements—that nobody knows what they’re doing with regard to that question—is unanimity in the aggravated promotion of prostitution statute. Texas Penal Code section 43.04(a) lists six methods of aggravated promotion of prostitution: own, invest in, finance, control, supervise, manage. Each verb is a distinct element describing a different essential fact. The jury has to be instructed so that it must agree on which one (or more) the State proved. Williams v. State, 720 S.W.3d 454 (Tex. App.—San Antonio 2025, pet. granted)—discussed in Section 11 below—is the case in which I noticed the problem. We’ve been bouncing back and forth between the CCA and the Fourth Court; the State’s second PDR was granted on January 15, 2026 and has been briefed.
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The second application of the same insight is unanimity in the murder statute. Texas Penal Code section 19.02(b)(1) (intentional murder) and section 19.02(b)(2) (intent to cause serious bodily injury + act clearly Making Law: Solving Old Problems
dangerous to human life that causes death) are separate offenses requiring unanimity, not manner-or-means of one offense. Every Texas court of appeals has held otherwise, citing Aguirre v. State, 732 S.W.2d 320 (Tex. Crim. App. 1987), as if it had decided the question. Aguirre did not settle the question. Solis v. State, 2025 WL 2673645 (Tex. App.—Houston [14th Dist.] 2025, pet. ref’d)—discussed in Section 8 below—was a recent attempt to correct the misreading; the Court of Criminal Appeals refused review January 15, 2026. The next vehicle is still needed. Trial lawyers have started to preserve it, and appellate lawyers have started to brief it, but not always cleanly. Remember: keep trying. The third application of the elements-not-manners insight is mens rea. The penalty-group classification in a controlled-substance offense is an element the jury must find, not just a label for the drug. “Knowingly” must reach it. Johnson v. State, 2026 WL 508801 (Tex. App.—Dallas 2026, pet. filed)—discussed in Section 4 below—is the vehicle. The Dallas Court of Appeals affirmed; the PDR is pending as PD-0174-26 (filed March 13, 2026). In each of these three examples, what should be an element is treated as something less, letting the State avoid an element’s consequences. Ramos v. Louisiana requires a unanimous jury convinced beyond a reasonable doubt. The doctrinal consequences sort into two buckets — juror unanimity
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for Williams and Solis under Apprendi and Ramos, mens rea extension for Johnson under Flores-Figueroa and McFadden. There are others. The error is the same: failing to require proof beyond a reasonable doubt of
3.3.
Making Law: Solving Old Problems
something in the statute. How to Use the Strategy There are three steps. First, take your own idea seriously. When you find a doctrinal question that has been answered without analysis, the answer is open. Second, find the path. A single case will not always produce the win. Lo did not produce Earl directly; it produced a model that, through Barton and Sanders and Counterman, eventually produced Earl. The path is rarely short. It requires patience and persistence. These are years-long projects. Owens came a dozen years after we started litigating the First Amendment unconstitutionality of the electronic-harassment statute. Third, write for textualist and originalist judges. The current Court of Criminal Appeals is receptive to arguments grounded in the text and original meaning of the Texas Constitution. Articulate your argument in those terms. Cite the framers’ treatises. Cite the early cases. Show the genealogy. The originalist judge who reads your brief sees the same text, the same history, the same logic that you do. Judge Yeary has written to that effect more than once. In Holder v. State, 595 S.W.3d 691, 705 (Tex. Crim. App. 2020) (Yeary, J., concurring): “The Texas Constitution means what it means, and that 10
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meaning does not vary on the whim of a majority of Justices sitting at any given moment on the United States Supreme Court.” Five years later, in Navarro v. State, 726 S.W.3d 436, 459 (Tex. Crim. App. Making Law: Solving Old Problems
2025) (Yeary, J., concurring, joined by Schenck, P.J.): “the judges of this country and of this state need to enforce less stare decisis and more recte decide,” which he glossed in a footnote as “make the right decision.” 4. 4.1.
The Jury Charge That Doesn’t Track the Statute The Manner-or-Means Insight, Applied to Drug Cases Under the federal Controlled Substances Act, “It shall be unlawful for any person knowingly or intentionally to possess [or manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense] a controlled substance.” 21 U.S.C. § 844. “Knowingly” reaches “a controlled substance”—the defendant has to know that the substance is some controlled substance. Under the Texas statute, by contrast, the offense is to (for example) “knowingly or intentionally possesses a controlled substance listed in Penalty Group 1 or 1-B.” “Knowingly” reaches not only “controlled substance,” but also (for example) “in Penalty Group 1 or 1-B.” Grammatically, for the same reason the federal defendant has to know that the substance is a controlled substance, the state defendant has to know that the substance is one of those in that penalty group.
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4.2.
The Missing Element The State Bar’s pattern jury charge does not agree, and every controlledsubstance jury charge for the last fifty years is probably wrong. The application paragraph of the standard charge reads: the defendant is guilty Making Law: Solving Old Problems
if he “knowingly possessed a controlled substance, namely, [drug name].” The statute reads: a person commits an offense if he “knowingly … possesses a controlled substance listed in Penalty Group 1 or 1-B.”3 “Listed in Penalty Group 1-B” is missing from the standard charge. The penalty-group classification is a fact that “knowingly” reaches; the jury must find that the defendant knew the identity of the substance (as one in the penalty group). A defendant who thought he had a drug in Penalty Group 3 did not “knowingly possess a controlled substance in Penalty Group 1-B”, and did not commit the crime defined by the Legislature. The standard charge does not permit the jury to acquit a defendant on such grounds. 4.3.
The Case That Surfaced the Problem The argument surfaced recently in a Dallas Court of Appeals case involving a defendant who was carrying (allegedly possessing with intent to deliver) fentanyl, but whose defense was that he believed he was carrying
3. Tex. Health & Safety Code § 481.115(a), (d) (possession of controlled substance in Penalty Group 1-B). The same statutory structure applies to delivery and manufacture offenses. 12
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Xanax instead. 4 The charge required the jury to find that the defendant knowingly possessed a controlled substance, and to find that the substance was fentanyl, but did not require the jury to find that the defendant Making Law: Solving Old Problems
knowingly possessed a controlled substance in Penalty Group 1-B. The charge left “Penalty Group 1-B” out of the application paragraph. The effect was that the jury could not consider the defense. The trial lawyer saw the problem—that his client’s defense was that he did not know what he had—but the jury charge did not support the argument. The application paragraph did not track the statute. The jury saw the issue, and asked: Does he have to have known that the substance was fentanyl? A charge that tracks the statute would have required the jury to find that the defendant knew he possessed a substance in the relevant penalty group. The standard charge let the jury convict without answering that question. 4.4.
The Authority Three lines of authority support the argument. First, Flores-Figueroa v. United States, 556 U.S. 646 (2009), holds that “knowingly” modifies the entire object of the offense, not just the conduct. 5 When the Legislature
4. Johnson v. State, No. 05-24-01019-CR, 2026 WL 508801 (Tex. App.—Dallas Feb. 23, 2026, pet. filed) (No. PD-0174-26). The Court of Criminal Appeals has not yet acted on the petition. 5. Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009) (“[A]s a matter of ordinary English grammar, [knowingly] is most naturally read as applying to all the subsequently listed elements of the crime.”). 458
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attaches a circumstance to the offense definition, “knowingly” reaches it. The penalty-group classification is such a circumstance. Second, the jury charge must track the statute. When a contested Making Law: Solving Old Problems
element (the knowledge element was contested in Johnson) is missing from the application paragraph, that omission constitutes egregious harm: reversible without preservation. Third, the Court of Criminal Appeals has said twice—albeit in dicta—that knowing extends to the identify of the substance. In White v. State, 509 S.W.3d 307 (Tex. Crim. App. 2017), the court stated that the defendant must be “aware that he is delivering a Penalty Group 1 substance to be guilty.” In Blackman v. State, 350 S.W.3d 588 (Tex. Crim. App. 2011), the court said the State must prove the defendant “knew that this was cocaine.” Both formulations state the element in specific-substance terms. The Dallas Court of Appeals reads the statute differently but grammar—and the Court of Criminal Appeals’ dicta—say the Dallas court is wrong. The Supreme Court applied the same rule to the federal drug statute in McFadden v. United States, 576 U.S. 186, 192 (2015): “[T]he word ‘knowingly’ applies not just to the statute’s verbs but also to the object of those verbs.” The federal statute, however, ends with “a controlled substance.” The object of the verb is “a controlled substance.” Section 481.1123(a) of the Texas Health and Safety Code ends with “a controlled substance listed in Penalty Group 1-B”; that is the object of the verb, and “knowingly” must reach it. 14
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4.5.
Scope, and the Murder Parallel The jury-charge problem extends to every penalty-group-specific offense in the Health and Safety Code. Every delivery charge, every manufacture
Making Law: Solving Old Problems
charge, every possession charge that specifies a drug name without specifying the penalty group has the same defect. The same pattern appears in murder cases. See Section 8 below. 5.
The Elimination of Reasonable-Hypothesis Review In 1983, the Court of Criminal Appeals abolished a Texas-specific protection for criminal defendants in circumstantial-evidence cases: the reasonablehypothesis-of-innocence standard. Hankins v. State, 646 S.W.2d 191 (Tex. Crim. App. 1983), dispensed with the reasonable-hypothesis-of-innocence jury charge, the cautionary instruction telling the jury that to convict on circumstantial evidence, it must exclude every reasonable hypothesis of innocence consistent with the proven facts. After Hankins, juries were no longer instructed on that rule, displacing a Texas standard dating back to 1876 and beyond. Our argument here is that the Hankins abolition was beyond the court’s power.
5.1.
The Common-Law Pedigree The reasonable-hypothesis standard for circumstantial evidence has a long common-law pedigree. The English source is Hodge’s Case, 2 Lewin 227, 168 Eng. Rep. 1136 (Cromp. Assizes 1838), where Baron Alderson instructed the jury that on circumstantial evidence the inculpatory facts must be incompatible with the prisoner’s innocence and incapable of
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explanation upon any other reasonable hypothesis than that of his guilt.6 The American writers picked it up. William Wills, in his Essay on the Principles of Circumstantial Evidence 149 (1838)—the leading English text Making Law: Solving Old Problems
on circumstantial evidence—articulated the rule. Thomas Starkie, in his Practical Treatise on the Law of Evidence 838 (9th Am. ed. 1869), endorsed it. Simon Greenleaf, in 3 Treatise on the Law of Evidence § 137 (2d ed. 1846), adopted it, citing Hodge’s Case. Francis Wharton’s 1874 Treatise on the Criminal Law of the United States—while critical of the rule as sometimes overstated—identified Wills and Starkie as the two text writers who had advanced it. By 1876, the standard was settled common law. Joel Prentiss Bishop’s 1880 Commentaries on the Law of Criminal Procedure—published only four years after the Texas Constitution—captured it precisely: It matters not how clearly the circumstances point to guilt, still, if they are reasonably explainable on a theory which excludes guilt, they cannot satisfy the jury beyond a reasonable doubt that the defendant is guilty, hence they will be insufficient. It would be too strong to say that they must exclude every possible hypothesis but guilt; “reasonable” is the word. Bishop, Commentaries on the Law of Criminal Procedure I § 1077.
6. This was before due course of law, but after due process (1791). So if the Supreme Court adopted due process with the Fifth Amendment, that process may not have included “eliminate reasonable hypotheses,” but when Texas adopted due course of law with article 1, section 19, that course of law surely included that rule. 16
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And as the test of sufficiency:
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The test of the sufficiency of this evidence is, therefore, that the facts which the jury accept as proved can be reasonably accounted for on no hypothesis which excludes the defendant’s guilt, that with the theory of his guilt they are harmonious and consistent, and that they point to it so clearly and distinctly as to satisfy the jury of it beyond a reasonable doubt. Id. § 1079. Bishop cited Hodge’s Case as the foundation. He also cited two cases from the Texas Court of Appeals, then four years old: Black v. State, 1 Tex. App. 368 (Tex. App. 1876), and Hampton v. State, 1 Tex. App. 652 (Tex. App. 1877). The Texas appellate courts were applying the standard from the moment they began publishing. 5.2.
The Texas Constitution adopted the common law. The framers of the Texas Constitution of 1876 were lawyers who had spent their careers practicing under the common law of circumstantial evidence—under Hodge’s Case, Greenleaf, Starkie, and the early American applications. They knew that the State had to exclude every reasonable hypothesis of innocence to convict on circumstantial evidence. They wrote that body of common law into the Texas Constitution by adopting due course of law in article I, section 19. The “due course of law” formulation was deliberate. The federal Constitution uses “due process of law.” Texas chose different words in 1876. At that point there was a body of federal “due process” caselaw that didn’t include the common law. The framers were not adopting the federal
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abstraction. They were adopting the actual due course of the common law—the procedure that English and American courts had been using to try criminal cases for centuries. That common law included the reasonable-
5.3.
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hypothesis standard for circumstantial evidence. The Texas Application The new Texas Court of Appeals—the Court of Criminal Appeals’ predecessor, created by the same Constitution of 1876 that adopted the common law—began applying the reasonable-hypothesis standard immediately. Black v. State, 1 Tex. App. 368 (Tex. App. 1876), and Hampton v. State, 1 Tex. App. 652 (Tex. App. 1877)—both in volume 1—applied the rule. Bishop’s 1880 treatise cited them as authority. The line continued unbroken through the Court of Appeals (1876–1891), the modern Court of Criminal Appeals (1891 onward), and the long sequence of pre-Hankins cases applying the standard—until Hankins abolished it in 1983. What the court took away was a protection with deep roots. The question is whether the court had the power to take it away at all. 5.4.
The Constitutional Argument The Texas Constitution’s due-course-of-law provision, in article I, section 19, adopted the common law of criminal procedure as it existed in 1876. As far as current criminal procedure has diverged from that common law, it is unconstitutional under the Texas Constitution. The Court of Criminal Appeals interprets the Constitution, but cannot change it. If the reasonable-hypothesis-of-innocence standard was part of 18
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the common law of criminal procedure that the Texas Constitution adopted in 1876, then it is a constitutional standard that the Court of Criminal Appeals cannot—whether by rulemaking or by caselaw—abrogate. Making Law: Solving Old Problems
Hankins was not authorized by legislative amendment to any statute. If the standard it abolished was constitutional, Hankins was void. 5.5.
Hankins’s Justification (and Why It’s Wrong) Hankins asserted three reasons for abolishing the cautionary instruction. First, the federal trend: Holland v. United States, 348 U.S. 121 (1954), 7 and a long list of state courts had abolished similar instructions. Second, direct and circumstantial evidence are equally probative; there is no reason to treat one with greater caution than the other. Third, the cautionary instruction “serves only to distract jurors from examining the proper standard of proof as the primary focus of their deliberations.”8 All three reasons fail as a matter of constitutional structure. The federal-trend argument is irrelevant to a Texas constitutional question. The Texas Constitution of 1876 adopted the common law of criminal procedure as it then existed. The cautionary instruction was part of
7. This was during the 1944–91 dark ages of Texas constitutional law, before the Court of Criminal Appeals in Heitman announced that the Texas Constitution would no longer be interpreted in lockstep with the United States Constitution. 8. This is actually just one reason, because Holland made the equality and distraction arguments. Opinion laundering again: cite Holland, then pretend that its arguments are your own. 464
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that common law, as the subsections above demonstrate. What other states later did with their evidentiary instructions does not bear on what the Texas Constitution permits. Making Law: Solving Old Problems
The equal-probative-weight argument confuses two questions. The first is whether circumstantial evidence is weaker than direct evidence; it is not. The second is whether the manner of inference from circumstantial evidence is different from credibility-evaluation of direct evidence; it is. The cautionary instruction does not say circumstantial evidence is weaker. It says inference from circumstantial evidence requires excluding reasonable hypotheses of innocence. That is a procedural rule for evaluating inferences, not a claim about evidentiary weight. Wigmore—whom Hankins cited—said circumstantial evidence has “its special dangers and its special advantages.” The cautionary instruction addresses the special dangers. The distraction argument answers itself. The cautionary instruction does not distract from the reasonable-doubt standard; it operationalizes it for circumstantial cases. If circumstantial proof is reasonably explicable on a theory of innocence, then by definition there is a reasonable doubt. The cautionary instruction is the application. Hankins is itself a Dark-Ages decision. The opinion’s reasoning rests on Holland and a roster of state courts that had dropped their instructions; there is no Texas constitutional analysis. Hankins decided what to do with a Texas cautionary instruction by counting which other jurisdictions had dropped theirs. 20
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But even if all three rationales were sound, none answered the constitutional question. Hankins treated the abolition as a matter of evidentiary policy and joined the federal trend by court rule. That was the Making Law: Solving Old Problems
wrong question. If the cautionary instruction was constitutionally adopted in 1876, the court could no more abolish it by court rule than it could amend the Constitution by court rule. Bishop, Hodge’s Case, Wills, Starkie, Greenleaf, Black, Hampton, and the unbroken Texas line establish that it was. 5.6.
Practical Consequence If the reasonable-hypothesis standard survives as constitutional common law, every circumstantial-evidence conviction is reviewable under it—not just the ones tried after some prospective ruling. The argument is hard. It requires historical research, careful briefing, and a court willing to engage with originalist reasoning. But the current Court of Criminal Appeals has shown that willingness. More on that below.
6. 6.1.
The Texas Constitution After 1991 The Dark Ages: 1944–1991 For roughly half a century—from approximately 1944 to 1991—the Court of Criminal Appeals interpreted the Texas Constitution by following the United States Supreme Court.9 When the Supreme Court decided what the
9. Crowell v. State, 147 Tex.Crim. 299, 180 S.W.2d 343 (Tex. Crim. App. 1944) (the first case to hold that article I, section 9 of the Texas Constitution and the Fourth Amendment are ‘in all material aspects, the same,’ 180 S.W.2d 466
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Fourth Amendment meant, the CCA adopted the same result for the Texas search-and-seizure provision. When the Supreme Court defined the scope of jury trial rights, the CCA followed. The Texas Constitution had its own Making Law: Solving Old Problems
text; the Court of Criminal Appeals did not much care. In 1991, the court changed course. In Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991), the court held that it would no longer be bound by federal precedent when interpreting the Texas Constitution’s search-andseizure provision. It would look at the Texas Constitution independently: as its own document, with its own text, its own history, and its own meaning. 10 That should have been a revolution. Thirty years of federal constitutional decisions that the court had adopted wholesale were suddenly open to reconsideration. The Texas Constitution could provide more protection than the federal floor. Defense lawyers had a new tool. They did not use it. Court after court noted that the defendant had argued the Texas Constitution provided greater protection, but had
at 346; quoted in Brown v. State, 657 S.W.2d 797 (Tex. Crim. App. 1983); see Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991) (overturning this practice)). 10. Heitman v. State, 815 S.W.2d 681, 682 (Tex. Crim. App. 1991) (“when analyzing and interpreting search and seizure provision of the Texas Constitution, Court of Criminal Appeals will not be bound by United States Supreme Court decisions addressing the comparable Fourth Amendment issue”). 22
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provided no argument, no analysis, and no authority. The observation was accurate. The lawyers had walked up to the open door and turned around. 6.2.
What ‘Due Course of Law’ Means
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The “due course of law” formulation in the Texas Constitution of 1876, discussed in Section 5 above, adopted the common law of criminal procedure as it existed at the founding. The consequence: wherever current Texas criminal procedure has diverged from the common law of 1876, it is unconstitutional under the Texas Constitution. Only the Legislature can change it. And even the Legislature cannot go below the constitutional floor. 6.3.
The Research Methodology Finding the common law of 1876 Texas criminal procedure is straightforward work, with three major sources: • Pre-1900 Texas appellate opinions. Westlaw’s date restriction DA(bef 1900) retrieves them. The opinions from the Republic-era and early statehood courts describe the law those courts understood themselves to be applying: as the common law. • Founding-era treatises. The lawyers who wrote the Texas Constitution were trained on treatises. Starkie on Evidence, Greenleaf on Evidence, Bishop on Criminal Law, Wharton’s Criminal Evidence. These are available through HeinOnline and similar services. They describe the common law of criminal procedure as it was understood in the mid-nineteenth century.
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• English and early American cases. The common law did not stop at the Texas border. English cases and cases from the older states are relevant to what the 1876 framers understood the law to be. The Primary Example: Terry v. Ohio Does Not Belong in Texas Constitutional Law
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6.4.
The primary test case for the Texas constitutional argument is the detention. Texas courts recognize a category of police-citizen encounter called a “detention”—a restriction of liberty less than an arrest, supported by reasonable suspicion rather than probable cause. That framework comes directly from the United States Supreme Court’s decision in Terry v. Ohio, 392 U.S. 1 (1968). It has no independent Texas constitutional pedigree. The CCA adopted it during the dark ages, wholesale, from federal law. The common law of criminal procedure did not recognize a category of police-citizen encounter between a consensual encounter and an arrest. The distinction was binary: either you were arrested or you were free to go. An arrest required probable cause. A sub-arrest detention requiring only reasonable suspicion is a federal common-law innovation foreign to Texas constitutional law. The common-law definition of arrest, unbroken from at least 1619 to 1853, supports the binary. Blackstone, Commentaries 286 (1769), defined arrest as “the apprehending or restraining of one’s person, in order to be forthcoming to answer an alleged or suspected crime.” Archbold, Practice, Pleading, and Procedure in Criminal Cases 21 (1853), repeated the 24
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definition almost verbatim twenty-three years before the Texas Constitution. See also Dalton, The Country Justice, Arrest, and Imprisonment (1619) (carrying the same definition back two centuries earlier, to the Making Law: Solving Old Problems
Statute of Winchester era); Burn, Justice of the Peace, Arrest (1845) (same definition, contemporaneous with the Republic of Texas’s adoption of the common law). Each treatise treats restraint of liberty as the trigger. None recognizes a sub-restraint category. Consider the etymology. “Arrest” means to stop. “Detain” means to hold. You cannot hold what you have not stopped; logically, a detention requires an arrest. At common law, therefore, there was no such thing as a detention that was not an arrest. And an arrest required probable cause. The “reasonable suspicion” standard that Terry v. Ohio created is a departure from the common law. If the Texas Constitution of 1876 adopted the common law, and the common law required probable cause for any seizure of the person, then Texas constitutional law does not authorize the reasonable-suspicion detention that Texas courts have been applying for fifty years. The argument has never been made. 6.5.
A Vehicle: Roberts v. State Roberts v. State—pending in the Fourteenth Court of Appeals, cause 14-2500061-CR—is one vehicle. The case has three legal layers. Roberts came to the Brazoria County jail to visit someone. Detention staff prevented him from leaving and conducted a search, more extensive
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than a patdown but less than a full strip. The trial court denied suppression. The State defended on Terry-frisk and jail-administration grounds—both rooted in federal Fourth Amendment doctrine. Neither rests on Texas Making Law: Solving Old Problems
constitutional analysis. The legal layers are independent. Each is sufficient by itself. First, statutory. Texas Code of Criminal Procedure article 14.03(a)(1) requires that a warrantless arrest rest on probable cause that the person has committed an offense or breached the peace. 11 There is no “detention” between consensual encounter and arrest in the Texas statute. A peace officer who restrains a person’s liberty has either made an arrest (probable cause required) or has not (the person is free to go). The Brazoria County deputies prevented Roberts from leaving. By the statute, that was an arrest. They had no probable cause. Second, constitutional. Article I, section 9 of the Texas Constitution required probable cause for the seizure of the person at common law in 1876, as Section 5 above demonstrates. The 1876 Constitution adopted that common law. Texas’s subsequent adoption of the Terry framework, in Milton v. State, 549 S.W.2d 190 (Tex. Crim. App. 1977), was a dark-ages import from federal Fourth Amendment jurisprudence. Milton did not
11. Tex. Const. art. I, § 9; Tex. Code Crim. Proc. art. 14.03(a)(1) (a peace officer may arrest without a warrant only when the person is found in a “suspicious place” and under circumstances that reasonably show the person has committed an offense, or has otherwise breached the peace). 26
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survive Heitman in any principled sense. Judge Yeary has signaled the same direction in concurring opinions. Third, structural. Article 15.22 of the Code of Criminal Procedure Making Law: Solving Old Problems
provides that a person is arrested when he has been actually placed under restraint or taken into custody by an officer arresting without a warrant. That definition is binary. The Court of Criminal Appeals has called it “legislatively obsolete” for failing to distinguish between custodial arrests and temporary detentions. State v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008). That is faithless to the Legislature’s language. The statute is not obsolete; it is dormant. If Terry is wrong about the existence of a sub-arrest detention, article 15.22 does what it always did: defines any restraint of liberty as an arrest, requiring probable cause. Texas adopted Terry by judicial fiat during the dark period; the adoption rests on no Texas constitutional analysis at all. Roberts therefore might present the textualist and originalist Court of Criminal Appeals—through the Fourteenth Court of Appeals—with three independent grounds to hold that Texas constitutional law does not authorize the sub-arrest detention. There are probably better cases for the argument—it was not perfectly preserved in the trial court, and we win on other grounds—but the briefing is done. 6.6.
The Moment This argument has never had a better moment.
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The current Court of Criminal Appeals has at least four judges willing to overrule precedent that contradicts statutory or constitutional text. Judge Yeary is the leading voice, though he writes mostly in concurrence and Making Law: Solving Old Problems
dissent, and his originalism has so far been more aspirational than enacted. Presiding Judge Schenck signed Yeary’s recte decide concurrence in Navarro—the right decision should override stare decisis. Judge Finley has called the Court’s felony-murder jurisprudence “unsupported by the plain text of the statute,” tracing the rule to Blackstone and “early common law” and asking the Court to reexamine. Fraser v. State, 726 S.W.3d 253, 274–77 (Tex. Crim. App. 2025) (Finley, J., concurring). Judge Parker authored the Navarro majority overruling Bowen. State v. Barber, 2026 WL 1073627 (Tex. Crim. App. Apr. 16, 2026), is the most recent data point. Judge Finley concurred to defend a plain-text reading of “and” in article 18.067 of the Code of Criminal Procedure against Presiding Judge Schenck’s pragmatic dissent. Finley’s textualism produced the majority. Schenck dissented. So the four are not in lockstep—Parker and Finley pushed back on Yeary’s reading in Joe v. State, 726 S.W.3d 482, 489–90 (Tex. Crim. App. 2025) (Parker, J., concurring, joined by Finley, J.)—but they share some willingness to overrule wrong precedent on text grounds. Judge Yeary is the most committed to the broader Texas-Constitution-as1876-common-law framing; he should be encouraged, and the others 28
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should be invited there by the strength of the historical and textual argument. Most appellate lawyers see a CCA composed of political conservatives Making Law: Solving Old Problems
and conclude they cannot win. That is backward. The Scalia-Thomas type of judge, for a criminal defendant, has been a boon. Scalia’s originalism produced Crawford, Apprendi, Blakely, and Booker. Originalism applied to the Texas Constitution of 1876 produces this argument. Use the willingness to overrule; make the case on text and history. 6.7.
Preservation The Texas Constitution objection requires ridiculous specificity to preserve: • Name the Texas Constitution. • Name the specific provision—article I, section 9 for search and seizure; article I, section 19 for due course of law. • Articulate the distinction from the federal analog. • Explain that the Texas Constitution provides independent protection. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). You do not have to be right. A Texas Constitution objection that appellate counsel cannot develop is better than no objection at all. If you do not make the objection, the argument does not exist on appeal. If you make it, appellate counsel has something to work with—even if that something is an imperfect objection, it is a preserved objection. Think of the due-course-of-law provision as a Swiss Army knife. On any criminal-procedure challenge—suppression, charge, sufficiency—add the
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Texas Constitution. Argue that due course of law incorporates the common law and that the common law was more favorable to the defense. You may not win at trial. You give appellate counsel the record to win on appeal. Riley v. State: The Contested Element Omitted from the Application Paragraph
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7.
Riley v. State—appeal of the trial court’s denial of an Article 11.072 habeas application, pending in the Eighth Court of Appeals, cause 08-2600030-CR—is the vehicle for the Ramos + Apprendi framework applied to a contested element omitted from the application paragraph.12 The facts. Riley was charged under Texas Penal Code section 43.02(c1)(2)(A) (solicitation of prostitution with a child). The statute requires the State to prove both that the defendant offered to pay a fee and that the defendant agrees to engage in sexual conduct with a person younger than eighteen. The “agrees” element distinguishes the second-degree felony from the misdemeanor. Trial counsel argued that there was no agreement and the State was required to prove one. The trial court included “agrees” in the abstract paragraph of the jury charge, but omitted it from the application paragraph. The jury was authorized to convict on a finding that
12. Riley v. State, No. 03-23-00137-CR, 2025 Tex. App. LEXIS 1052 (Tex. App.— Austin Feb. 21, 2025, pet. ref’d) (not designated for publication); PDR refused, No. PD-0163-25 (Tex. Crim. App. July 2, 2025); 11.072 habeas denied; appeal of denial pending, No. 08-26-00030-CR (Tex. App.—El Paso 2026). 30
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Riley “knowingly offered a fee” to a person under eighteen. The element the defense had contested was never put to the jury. The Court of Criminal Appeals decided Alkayyali v. State, 713 S.W.3d 780 Making Law: Solving Old Problems
(Tex. Crim. App. 2025), in 2025: where a contested element is omitted from the application paragraph, the omission is egregious harm per se. Reversal is required without preservation. Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012), explains the doctrine: an application paragraph must specify all conditions for conviction; the boilerplate “bearing in mind the foregoing instructions” does not cure the omission of a contested element. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984), sets the egregious-harm framework. The Apprendi/Ramos overlay reinforces the result. Apprendi v. New Jersey, 530 U.S. 466 (2000), requires every fact that increases the level of punishment to be submitted to the jury and proved beyond a reasonable doubt. Ramos v. Louisiana, 590 U.S. 83 (2020), requires the jury to be unanimous on every element. The “agrees” statutory element distinguishes a misdemeanor from a second-degree felony—it is the fact that raises the level of punishment. It must be submitted to the jury and unanimously found. It was not. Riley is the rule applied. It’s a lot like Johnson: the trial court did not put the contested element to the jury because the trial court did not think it was properly contested.
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7.1.
Schad and the Means-Versus-Element Line Schad v. Arizona, 501 U.S. 624 (1991), held that the Sixth Amendment does not require juror unanimity on the alternative means by which an offense is committed. The plurality treated premeditated murder and felony murder Making Law: Solving Old Problems
as morally-equivalent alternative means and held the jury did not have to agree on which. The State will cite Schad in any case raising the unanimity arguments in this paper. Nine years after Schad, Apprendi v. New Jersey, 530 U.S. 466 (2000), clarified the rule. After Apprendi, the line between means and element is the line between facts that may be left out of the State’s burden (facts which, proved, do not increase the punishment range) and facts that must be submitted to the jury and proved beyond a reasonable doubt (facts which, proved, do). The penalty-group classification in a Texas controlledsubstance case is essential to conviction of a controlled-substance offense in that penalty group. The “agrees” element in Texas Penal Code section 43.02(c-1)(2)(A) is essential to conviction of solicitation of a child rather than the misdemeanor variant. Sections 19.02(b)(1) and (b)(2) describe different essential facts that distinguish one offense from another. None of these are means in the sense that Schad’s plurality used the term; they are elements. 7.2.
Why the Best Lawyers Missed It Why have the best criminal appellate lawyers in Texas not made these arguments? The answer is that good lawyers are insufficiently arrogant; 32
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they assume that other lawyers have had the same ideas and had good reasons to reject them—that if the idea had been a good one, someone would have made it and lost. That assumption is wrong. The absence of a Making Law: Solving Old Problems
published opinion rejecting the argument is evidence that nobody has made it, but not that it has been considered and properly rejected. The best lawyers, in other words, are practicing the same cookie-cutter law as everyone else. They have just made the cookies more carefully. 8.
Criminal Trespass: Without the Effective Consent of Whom? Criminal trespass under Texas Penal Code section 30.05 is a small example. It belongs here because the small example proves the same point as the larger ones: the State systematically narrows statutory text to make conviction easier, and nobody objects. The statute makes it an offense to enter or remain on or in property of another “without effective consent.”13 That element is satisfied only when no one with authority to consent has consented. It is not satisfied when one authorized person has refused consent and another authorized person has given it. If two roommates jointly possess an apartment and one tells you to leave but the other says you can stay, the second roommate’s consent makes your remaining lawful. The statute says so.
13. Tex. Penal Code § 30.05(a) (a person commits an offense if the person enters or remains on or in property of another “without effective consent”). 478
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The standard charge in Harris County and elsewhere does not say so. It alleges that the defendant entered or remained “without the effective consent of [a specific named person].” Substituting one person’s name for Making Law: Solving Old Problems
the statutory “effective consent” narrows the offense. It transforms a defense based on consent from any authorized person into a defense based on consent only from the named person. The standard charge writes a different statute than the Legislature wrote. The remedy is the remedy in every section of this paper. Object on the record. Cite the statutory text. Cite article I, section 19 of the Texas Constitution and the due-course-of-law incorporation of the common law. Argue that the standard charge does not track the statute. The objection costs nothing. The error will rarely be preserved because criminal-trespass cases are rarely tried. This is the manner-or-means insight applied to a misdemeanor statute. The trespass charge does at the small-stakes end what Williams, Solis, and Johnson do at the felony end: it substitutes one fact (a named person’s refusal of consent) for the statutory element (the absence of any authorized consent). No vehicle has reached the Court of Criminal Appeals, because criminal trespass charges get dismissed instead of tried. That makes the trial lawyer’s job the whole job here. Preserve the objection on the right facts—two or more authorized persons could have given consent, the State is relying on only one—and the PDR will follow when a properly preserved conviction holds up long enough for appellate review. 34
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9.
Murder Unanimity: Aguirre Doesn't Hold What Courts Say It Holds This is the unanimity consequence of the manner-or-means insight. Texas Penal Code section 19.02(b) defines two offenses. Section 19.02(b)(1) is
Making Law: Solving Old Problems
intentional murder: the defendant intentionally or knowingly causes the death of an individual. Under section 19.02(b)(2) the defendant intends to cause serious bodily injury, commits an act clearly dangerous to human life, and that act causes death. The mental states are different. The conduct elements are different. The two are not interchangeable manner-or-means of one offense. They are separate offenses. The jury must be unanimous on which one was committed. Every Texas court of appeals has held otherwise. Each court treats sections 19.02(b)(1) and (b)(2) as alternative ways of committing the same offense—manner-or-means rather than separate offenses—and so does not require unanimity on which subsection the jury found. The error is uniform. The reasoning in each case traces back to one citation: Aguirre v. State, as if Aguirre had decided the question. Aguirre did not decide the unanimity question. The case involved a murder prosecution in which the defendant fired a shotgun through the door of his ex-wife’s house, killing his daughter Elizabeth, who was inside. The indictment charged Elizabeth’s death in two paragraphs: one alleging intentional/knowing murder under section 19.02(a)(1); the other alleging felony murder under section 19.02(a)(3) with criminal mischief as the predicate. The court held that the doctrine of merger did not bar the
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felony-murder prosecution; that intent to kill the ex-wife transferred to the actual killing of the daughter for purposes of section 19.02(a)(1); and that the judgment properly described the jury’s findings. Every court of appeals Making Law: Solving Old Problems
that has cited Aguirre for the unanimity proposition has read it wrong. What Aguirre decided, relevant to the jury charge, was the generalverdict question. The court held that the indictment “did not allege different offenses but only alleged different ways of committing the same offense,” and so approved a general verdict form. Aguirre, 732 S.W.2d at 326. Whether the jurors had to unanimously agree on which theory was a question that was not before the court. The courts of appeals citing Aguirre for the unanimity proposition pull the “same offense” language out of its general-verdict context and use it to answer a question Aguirre did not reach. Two doctrinal frames are sometimes confused with the unanimity question. The conjunctive-or-disjunctive-pleading question asks whether an indictment that joins multiple statutory methods with “and” allows the State to prove any one of them. The general-verdict question asks whether the jury must specify which theory it accepted or may return an unspecified “guilty.” The unanimity question asks whether sections 19.02(b)(1) and 19.02(b)(2) are separate offenses. If they are, the jury must agree on which one was committed, but they don’t have to tell us (in a special verdict) which they chose.
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Solis v. State was a recent attempt to correct the intermediate courts’ misreading of Aguirre. The trial court instructed the jury that it could convict if it found either subsection, without requiring unanimity on which. Making Law: Solving Old Problems
The Fourteenth Court of Appeals affirmed, citing the same line of cases that traces back to a misread Aguirre. The Court of Criminal Appeals refused review on January 15, 2026. The next vehicle is still needed. 14 Apprendi v. New Jersey, 530 U.S. 466 (2000), defined elements (things that must be proven to the factfinder) as any fact (except, possibly, the fact of a prior conviction) that increases the range of punishment. Ramos v. Louisiana, 590 U.S. 83 (2020), requires the jury to be unanimous on every element. Texas Penal Code section 19.02(b)(1) requires the State to prove knowingly causing death. Section 19.02(b)(2) requires the State to prove intent to cause serious bodily injury. The two are not the same elements— you can knowingly cause death without intending to cause serious bodily injury, and of course you can intend to cause serious bodily injury without knowingly causing death. The jury must agree on which set was proved. 10.
First Amendment Overbreadth After Counterman The Lo → Barton → Earl genealogy described in Section 3 above ends here. Texas Penal Code section 42.07(a)(7)—the electronic harassment statute— criminalizes “repeated electronic communications” sent with intent to “harass, annoy, alarm, abuse, torment, embarrass, or offend” another.
14. Solis v. State, No. 14-23-00789-CR, 2025 WL 2673645 (Tex. App.—Houston [14th Dist.] Sept. 18, 2025, pet. ref'd Jan. 15, 2026). 482
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After the Court of Criminal Appeals foreclosed Texas remedies in Barton and Sanders, the question moved to the Supreme Court. Earl v. State is the vehicle. 15 The “Does Not Implicate” Move
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10.1.
The Court of Criminal Appeals in Barton and Sanders held that section 42.07(a)(7) “does not implicate” the First Amendment. The reasoning: because the statute could theoretically be violated by sending non-speech such as gibberish or computer code, the entire statute regulates nonspeech conduct. That reasoning is found nowhere in the Supreme Court’s First Amendment cases. The Supreme Court has held that legislatures cannot create new categories of unprotected speech by relabeling speech as non-speech. United States v. Stevens, 559 U.S. 460, 472 (2010), is explicit: legislatures may not unilaterally declare a category of expression unprotected. The overbreadth doctrine polices statutes that regulate “a substantial amount of protected speech relative to their plainly legitimate sweep,” even if they also cover non-speech. United States v. Hansen, 599 U.S. 762, 769–70 (2023). Barton and Sanders stand Stevens and Hansen on their heads. United States v. Alvarez, 567 U.S. 709 (2012), makes the same point. Alvarez held that even false statements are constitutionally protected
15. Earl v. State, No. 03-23-00427-CR, 2025 WL 1773011 (Tex. App.—Austin June 27, 2025); PDR refused, Earl v. State, No. PD-0519-25 (Tex. Crim. App. Jan. 15, 2026); cert. petition filed Earl v. Texas, No. ___ (U.S. Apr. 30, 2026). 38
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unless they fit a recognized unprotected category. If lies enjoy First Amendment protection, true statements expressing disfavored intent cannot become “non-speech” by judicial fiat. And Reed v. Town of Gilbert, Making Law: Solving Old Problems
576 U.S. 155 (2015), holds that a statute is content-based if it defines regulated speech by its (objective) function or its (subjective) purpose. Section 42.07(a)(7) defines regulated speech by its function (emotional reactions like annoy, embarrass, alarm) and its purpose (intent to produce them). It is the paradigm of content-based regulation. 10.2.
Counterman removed the premise. Counterman v. Colorado, 600 U.S. 66 (2023), addressed a harassment-style statute that criminalized repeated communications causing serious emotional distress. The Court did not ask whether the statute “implicated” the First Amendment. It assumed the statute did and imposed a subjective mens rea requirement to provide “breathing space” for protected speech. The Court’s assumption is incompatible with the Barton/Sanders premise that section 42.07(a)(7) does not implicate the First Amendment. A statute that doesn’t implicate the First Amendment requires no mens rea fix to protect speech. Counterman required one.
10.3.
Owens illustrates it. On June 4, 2025—after the Third Court of Appeals decided Earl but before the Court of Criminal Appeals refused review—the Court of Criminal Appeals decided Owens v. State. The court reversed a section 42.07(a)(7) conviction because, as the court itself put it, the messages themselves are
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speech, and the prosecution was based on the appellant’s speech, not his action. 16 The court applied First Amendment scrutiny to a section 42.07(a)(7) prosecution and reversed. Making Law: Solving Old Problems
That sentence is irreconcilable with Barton and Sanders. A statute that “does not implicate” the First Amendment requires no First Amendment scrutiny. Owens applied strict scrutiny. The Court of Criminal Appeals contradicted itself on the page. The contradiction is the Court’s problem, not Earl’s. Owens established that the electronic-harassment statute implicates the First Amendment; we’re just haggling over the price. 10.4.
Why Earl Is the Vehicle The Supreme Court denied review of Barton and Sanders after the State responded that the case was not Supreme Court-final, even though it was Texas-final, because neither defendant had yet been convicted (the procedural posture was in pretrial habeas). Earl’s prosecution is final. He pleaded no contest after preserving the constitutional question, accepted twelve months of deferred adjudication, and lost on direct appeal. Earl combines four ingredients that Barton/Sanders lacked: a final conviction; Counterman as intervening Supreme Court authority; the Court of Criminal Appeals’s own self-contradiction in Owens; and an emerging circuit split on parallel federal cyberstalking statutes (the Third and First
16 Owens v. State, 728 S.W.3d 155, 167 (Tex. Crim. App. 2025) (“[s]ending messages is an act, but the messages themselves are speech, and the prosecution in this case was based on Appellant’s speech, not his action”). 40
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Circuits narrowly construe to avoid overbreadth; the Ninth and Fourth Circuits echo the Barton/Sanders “non-speech conduct” framework). Judge McClure noted he would have granted PDR in Earl. The cert Making Law: Solving Old Problems
petition was filed April 30, 2026. The odds of a grant are always slim, but Earl shows the formula. 11.
Section 43.04(a)’s six methods are distinct offenses requiring unanimity. This is the unanimity consequence of the manner-or-means insight, applied to a different statute. Texas Penal Code section 43.04(a) makes it an offense to knowingly “own, invest in, finance, control, supervise, or manage” a prostitution enterprise: six methods. In ordinary speech, the six are not interchangeable—to “own” a business is not to “supervise” it; to “finance” it is not to “manage” it. You can do any one of them without doing any of the others. They are distinct verbs describing different essential facts. The jury must agree on which one (or more) the State proved. Williams v. State, 720 S.W.3d 454 (Tex. App.—San Antonio 2025, pet. granted), is the case in which I noticed the problem. Williams was indicted under all six methods of section 43.04(a). The State did not identify its theory until opening statement. The State’s PDR was granted on January 15, 2026, and the case is now pending in the Court of Criminal Appeals on issues not addressed in this paper. The broader unanimity argument was not preserved below.
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The next vehicle, with unanimity preserved at trial, takes the broader argument. The federal-constitutional layer is the same as in Solis (Section 8 below). Each of section 43.04(a)’s six methods describes a different Making Law: Solving Old Problems
essential fact: owning a prostitution enterprise is not the same fact as financing one or supervising one. The State must prove which method it relied on; the jury must agree on which. The State’s response will be Schad v. Arizona, 501 U.S. 624 (1991), and the argument that the six methods are alternative means of one offense. Section 7 addresses Schad and explains why Apprendi controls. The connection to the manner-or-means insight is direct. Texas courts treat undefined statutory terms as manner-or-means of one offense rather than as distinct elements requiring distinct treatment. They make the same mistake in section 43.04(a) (Williams) and in section 19.02(b) (Solis, Section 8 above), and a different version of the same mistake in penalty-group classifications (Johnson, Section 4 above). These are three of many downstream errors from a single doctrinal confusion. III. Conclusion The arguments in this paper are live arguments that can be made in trial courts today, preserved for the courts of appeals, and taken to the Court of Criminal Appeals. Some will win. Others will lay the groundwork for arguments that win later.
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The trial lawyer’s job is to preserve. Name the Texas Constitution. Name the provision. Argue that the charge does not track the statute. Argue that the penalty-group classification is an element the jury must find Making Law: Solving Old Problems
unanimously. You do not have to be right. You have to be on the record. The appellate lawyer’s job is to develop. Look at what the trial court preserved. Trace every harmful proposition back to its root case. Read the root case. Ask whether it says what the citing cases say it says. Often it does not. The impact-litigation lawyer’s job is to find the right cases and push them to the Court of Criminal Appeals. Not every case is the right vehicle. The facts have to present the issue squarely. The error has to be preserved. The court of appeals has to have addressed it. When all three conditions are met, file the PDR. The game belongs to the lawyers who show up with new solutions to old problems. Eight old problems are identified above. The solutions are in the common law, in the text of the Texas Constitution, and in decisions of the United States Supreme Court that Texas practitioners have not yet followed through. The solutions have been available for years. Nobody has shown up with them. Make that change.
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Speaker:
From Chatbots to AI Systems
Topic: From Chatbots to AI Systems: Competence and Judgment in the Future of Texas Criminal Defense Felix Valenzuela
Valenzuela Law Firm 701 Magoffin Ave El Paso, TX 79901 915.209.2719 phone 915.493.2404 fax felix@valenzuela-law.com email https://www.valenzuela-law.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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From Chatbots to AI Systems: Competence and Judgment in the Future of Texas Criminal Defense Felix Valenzuela felix@valenzuela-law.com
From Chatbots to AI Systems
INTRODUCTION Artificial intelligence is no longer a future issue for Texas lawyers. It is already inside the practice of law. Lawyers use it to research, draft, summarize, organize, communicate, and manage files. Clients use it before they call a lawyer. Courts are sanctioning lawyers who misuse it. Prosecutors, investigators, and law enforcement agencies increasingly rely on digital systems that generate, store, sort, and interpret evidence. Criminal defense lawyers now practice in that environment. The 2026 State Bar of Texas AI in the Practice of Law Survey confirms the point. In 2024, 30% of surveyed Texas attorneys reported using AI in their practice. By 2026, that number had more than doubled to 62%. That change did not occur over a generation. It happened in two years. But adoption has not produced confidence. Only 9% of respondents described themselves as “extremely confident” in evaluating whether an AI-generated document is accurate. Forty percent said they were not at all confident or only slightly confident. Half of respondents reported that their firm or employer has no official AI policy, and nearly half of AI users reported that their employer does not provide AI training. That is the central problem. Texas lawyers are using AI faster than building the competence, policies, and workflows needed to use it safely. Criminal defense lawyers face a sharper version of this problem. The same survey found that criminal law is the only listed practice area with AI adoption below 50%, at 47%. That low adoption rate exists despite criminal defense becoming one of the most dataheavy areas of practice. A modern defense file may include body-worn camera footage, dash camera footage, jail calls, 911 audio, surveillance video, phone extractions, Cellebrite reports, text messages, social media records, Google location data, cell-site location information, forensic lab records, photographs, search warrants, returns, officer narratives, and prosecutor-portal disclosures. The mismatch is dangerous. Criminal defense lawyers are slower to adopt AI, but the work itself increasingly demands tools capable of handling volume, complexity, and speed. This paper argues that Texas criminal defense lawyers should stop thinking about AI as a single tool and start thinking about it as part of a defense system. A tool answers a prompt. A system changes the workflow. A tool may summarize a police report. A system tracks discovery, identifies missing materials, links summaries to sources, flags contradictions, prepares witness outlines, supports motion practice, and preserves human review at every stage. The thesis is simple: AI is already here. The lawyers who benefit from it will not be the ones who trust it blindly or reject it reflexively. They will be the lawyers who build systems around verification, confidentiality, supervision, and judgment.
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THE COMPETENCE GAP IN TEXAS The debate over artificial intelligence in law has already moved past the threshold question of adoption. Texas lawyers are using AI now. The more urgent question is whether lawyers are using it competently. The 2026 State Bar of Texas AI in the Practice of Law Survey supplies the clearest current snapshot of that problem. The survey was conducted electronically from January 13 to February 10, 2026, using a stratified random sample of 30,000 Texas attorneys. A total of 1,554 members responded, producing a margin of error of plus or minus two percent. The survey also notes that respondents skewed older, more experienced, and more likely to be solo practitioners than the overall Texas attorney population. That matters because those groups tend to adopt AI at lower rates, which means the survey may understate AI use across the profession. Even with that likely understatement, the adoption curve is striking. In 2024, only 30% of surveyed Texas lawyers reported using AI in their practice. By 2026, that figure had risen to 62%. In two years, AI moved from minority use to majority use among Texas lawyers. Corporate and in-house counsel reported the highest adoption rate, at 87%. Private practitioners, who make up the largest segment of Texas lawyers, reported 63% adoption. Large firms led the adoption curve, with firms of more than 60 attorneys reporting 87% use. Solo practitioners lagged at 54%, but even among solos, more than half reported using AI in practice. Criminal law remains the outlier. The survey found that criminal law was the only listed practice area with an AI adoption rate below 50%, at 47%. That figure should concern the defense bar. Criminal defense lawyers face some of the most data-intensive and timesensitive litigation in the profession: body-worn camera footage, jail calls, Cellebrite extractions, social media records, surveillance videos, forensic reports, police reports, DPS lab materials, and electronically produced discovery from prosecutor portals. Yet the lawyers who practice in this environment report the lowest adoption rate in the state. This gap creates a practical problem. Criminal defense lawyers may be slower to adopt AI, but the cases themselves are not becoming slower, smaller, or simpler. Discovery volume continues to expand. Prosecutors increasingly disclose evidence through digital portals. Police agencies generate video, audio, geolocation data, and forensic reports as routine parts of even ordinary prosecutions. A misdemeanor DWI or assault case may now contain more digital evidence than a serious felony case did a generation ago. The lawyer who does not use technological tools must still meet the same duties of investigation, review, communication, and advocacy. The survey shows that Texas lawyers understand the stakes but lack confidence in their own ability to manage them. Only 9% of respondents described themselves as “extremely confident” in evaluating whether an AI-generated document is accurate. Forty percent reported that they were either “not at all confident” or only “slightly confident.” That is the heart of the competence gap: lawyers are using AI, but many do not trust their ability to evaluate what AI produces. This problem is not confined to occasional users. The survey shows that lawyers use AI for core legal work. Legal research remained the most common AI use, at 53%. Drafting
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legal documents reached 40%. Legal document management reached 38%. Summarizing text or audio reached 34%. Discovery use rose from 15% in 2024 to 27% in 2026. These are not peripheral tasks. They sit near the center of legal representation. If a lawyer uses AI to summarize a police report, draft a motion, identify authority, review discovery, or organize case documents, the lawyer must be able to evaluate accuracy, completeness, and risk. The same survey shows that institutional safeguards have not kept pace with use. Half of respondents reported that their firm or employer has no official AI policy. Only 47% of AI users reported that their employer provides AI training, while 46% said their employer does not. The result is predictable: lawyers and staff are experimenting with powerful tools without consistent rules for confidentiality, verification, supervision, billing, or disclosure. The open-ended comments confirm this diagnosis. Respondents repeatedly described AI as useful but dangerous without human oversight. The most common generalcomment theme was that AI is a tool requiring attorney review. Other recurring themes included ethical concerns, hallucinated cases, privacy, privilege, sanctions, and worry that AI may erode independent legal judgment. On the “AI needs” question, the most requested improvement was reliable legal research with accurate citations and hallucination-free outputs. Lawyers are not asking only for more tools. They are asking for trust, structure, and guidance. The survey also shows that AI is no longer merely an internal law-office issue. Fortythree percent of respondents reported that clients raise AI-related topics at least sometimes, and 17% said clients do so often or very often. Clients now arrive with AIgenerated summaries, AI-generated legal theories, AI-generated questions, and sometimes AI-generated misunderstandings. For criminal defense lawyers, this creates a new communication burden. The lawyer must not only evaluate the State’s evidence and the client’s facts; the lawyer must also correct false confidence created by consumer AI tools. A client may believe that ChatGPT has found a defense, a statute, or a sentencing rule. The lawyer must explain why that output may be incomplete, jurisdictionally wrong, outdated, or invented. For Texas criminal defense, the lesson is straightforward: the profession does not need another abstract debate over whether AI should exist. It needs a competence framework. That framework must address when AI helps, when it harms, how to protect client information, how to verify outputs, how to supervise staff use, and how to integrate AI into actual defense workflows. The danger is not simply that a lawyer may cite a fake case. That danger is real, but it is only the most visible failure. The deeper danger is unstructured reliance: using AI without knowing what problem the tool is solving, what data it is processing, what risk it creates, or what human review must follow. The lawyer who treats AI as an answer machine risks incompetence. The lawyer who treats AI as a supervised system for organizing information, testing arguments, and improving preparation can use it as a legitimate tool of defense. The competence gap, then, is not a gap between lawyers who use AI and lawyers who do not. It is a gap between lawyers who use AI casually and lawyers who use it deliberately.
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TEXAS LAW ALREADY GOVERNS AI The Texas Professional Ethics Committee’s Opinion 705, issued in February 2025, makes the point directly: generative AI raises ethical issues under the Texas Disciplinary Rules of Professional Conduct, but those issues fit within familiar duties. Lawyers must understand the technology before using it, protect client information, verify AI-generated work, and avoid billing for time they did not actually spend. For Texas criminal defense lawyers, four rules matter most: Rule 1.01, Rule 1.05, Rule 3.03, and Rule 5.03. A. Rule 1.01: Competence Includes Technological Competence Rule 1.01 prohibits a lawyer from accepting or continuing a matter that the lawyer knows or should know is beyond the lawyer’s competence. Comment 8 adds the modern technology component: lawyers should remain competent in the practice of law, including the benefits and risks associated with relevant technology. The State Bar’s published rules make that obligation explicit. Opinion 705 applies that principle to generative AI. It does not say that Texas lawyers must use AI. To the contrary, the opinion recognizes that Rule 1.01 “almost certainly does not require” AI use for any particular purpose at this stage. But if a lawyer chooses to use AI, the lawyer must have a reasonable and current understanding of the technology. That means the lawyer must understand hallucinations, incomplete or inaccurate data, tool limitations, and the risk that client information may be exposed through prompts or uploads. That standard is practical, not technical. Rule 1.01 does not require criminal defense lawyers to become computer scientists. It requires them to understand enough to use the tool safely. A lawyer using AI to summarize offense reports, compare witness statements, draft a suppression motion, or analyze body-camera transcripts must know what the tool can do, what it cannot do, and where it can fail. In criminal practice, technological competence has become broader than AI. Lawyers already face Cellebrite extractions, GPS records, license-plate reader data, jail calls, social media warrants, cloud data, text-message dumps, body-worn cameras, and forensic databases. AI sits on top of that environment. It may help manage the volume, but it also increases the need for disciplined review. The competent lawyer does not simply ask AI for an answer. The competent lawyer decides whether AI is appropriate for the task, supplies bounded instructions, checks the output, and remains responsible for the result. B. Rule 1.05: Confidentiality Applies to Prompts, Uploads, and Workflows Rule 1.05 defines confidential information broadly. It includes privileged information and unprivileged client information—meaning information relating to the client or furnished by the client during the representation. That broad definition matters in AI work because prompts are not neutral. When a lawyer asks a model to draft a bond motion, summarize a police report, evaluate impeachment material, or generate cross-examination questions, the lawyer may disclose facts, client statements, legal theories, mental impressions, witness names, or case strategy. Opinion 705 recognizes this risk. It warns that many generative AI tools invite a conversation in which the lawyer explains relevant facts, legal theories, and arguments;
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those exchanges may expose privileged mental impressions or confidential client information. For criminal defense lawyers, this means consumer AI tools should not receive identifiable case information unless the lawyer has confirmed adequate privacy protections and satisfied any consent requirement. A safer workflow may involve redaction, anonymization, enterprise tools with contractual protections, local models, or systems designed for legal confidentiality. The key point is not the brand of tool. The key point is the lawyer’s decision process. C. Rule 3.03: Candor Requires Verification Rule 3.03 prohibits a lawyer from knowingly making a false statement of material fact or law to a tribunal. AI-generated cases, quotes, record references, and legal propositions therefore create immediate candor risks. A hallucinated citation is not harmless because it came from software. Once the lawyer signs and files the document, the lawyer owns it. Opinion 705 states the rule plainly: a lawyer’s failure to verify AI outputs can implicate Rule 1.01, Rule 3.01, Rule 3.03, and Rule 3.04. It adds that AI-generated outputs may serve as a starting point, but lawyers must analyze them for accuracy and quality. The lawyer’s duty is not merely to remove obviously false material; the lawyer remains responsible for ensuring that the filing is accurate and supports the client’s interests. Texas courts and federal courts applying Texas disciplinary principles have already confronted this problem. In Ex parte Lee, 673 S.W.3d 755 (Tex. App.—Waco 2023, no pet.), a criminal appeal involving denial of a bail-reduction habeas application, the Waco Court of Appeals found that the appellant’s brief cited cases that did not exist in the Southwest Reporter and lacked record citations. The court declined to issue a show-cause order or report counsel to the State Bar, but it expressly noted that the argument section appeared possibly AI-generated and reproduced Judge Brantley Starr’s certification language requiring AI-generated legal analysis, citations, and quotations to be checked by a human using traditional legal databases. Ex parte Lee should matter to every Texas criminal defense lawyer. It was not a civil discovery fight. It was a criminal case. The court affirmed the denial of relief after concluding that the briefing was inadequate. The practical harm was not only embarrassment or sanctions exposure. The practical harm was lost advocacy. Texas disciplinary machinery has also begun to respond. In In re Matthew Brett, 2025 WL 3164939, the Texas Board of Disciplinary Appeals considered reciprocal discipline arising from a federal sanction order against a Texas-licensed lawyer who used ChatGPT to generate case citations and failed to verify them through Westlaw or PACER. The proceeding mapped the misconduct to Texas Rule 3.03(a)(1) and Rule 8.04(a)(3). The Fifth Circuit has now stated the governing principle in unmistakable terms. In Fletcher v. Experian Information Solutions, Inc., 168 F.4th 231 (5th Cir. 2026), the court sanctioned a lawyer who filed an appellate brief drafted at least in substantial part with generative AI and not checked for accuracy. The brief contained fabricated quotations and serious misrepresentations. The Fifth Circuit held that lawyers who use generative AI must ensure that generated legal propositions and authority are trustworthy. The court also
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rejected ignorance as an excuse, noting that if such an excuse ever existed, it no longer does. The verification rule is therefore simple: no citation, quotation, legal proposition, factual assertion, transcript reference, or record summary generated by AI should enter a filing unless a lawyer or trained human reviewer verifies it against the actual source. D. Rule 5.03: Lawyers Must Supervise AI Use by Staff, Associates, and Systems Rule 5.03 governs responsibilities regarding nonlawyer assistants. It requires a lawyer with direct supervisory authority over a nonlawyer to make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations. It also permits discipline when the lawyer orders, encourages, permits, or fails to remediate misconduct by a nonlawyer in circumstances covered by the rule. AI is not literally a paralegal, investigator, associate, or legal assistant. But the supervisory principle applies. When a lawyer delegates work to a tool, vendor, contractor, staff member, or associate using AI, the lawyer must supervise the process and verify the product. The lawyer cannot avoid responsibility by saying that the output came from software. Texas federal cases already reflect that view. In Shelton v. Parkland Health, No. 3:24CV-2190-L-BW, 2025 WL 3141108 (N.D. Tex. Nov. 10, 2025), the Northern District of Texas reprimanded a supervising attorney after a newly licensed associate filed a brief containing nonexistent AI-generated citations. The supervising attorney reportedly did not know that the associate had used generative AI, but the court found that she was at least negligent for accepting a draft from a new lawyer without checking the legal citations, especially given the proliferation of generative AI tools. The court also noted that she had not cautioned the associate about AI use or created a policy governing it. That lesson applies directly to criminal defense firms. If staff use AI to summarize discovery, draft client letters, prepare witness chronologies, review jail calls, or organize exhibits, the lawyer must set boundaries. A firm that has no AI policy, no confidentiality protocol, and no verification process invites preventable mistakes. Rule 5.03 does not require hostility toward AI. It requires supervision. E. The Practical Rule: Verify, Protect, Supervise Texas law already supplies the framework. Rule 1.01 requires technological competence. Rule 1.05 requires protection of client information. Rule 3.03 requires candor and verification. Rule 5.03 requires supervision. Opinion 705 ties those duties directly to generative AI, and recent cases show that courts will enforce them. For Texas criminal defense lawyers, the practical rule is: Verify the output. Protect the data. Supervise the workflow. That framework should guide every AI use in the defense practice. AI may assist with discovery review, office management, transcript summaries, motion drafts, client communication, and trial preparation. But the lawyer must remain the decision-maker. The lawyer signs the pleading. The lawyer protects the client’s confidences. The lawyer decides what to file, what to argue, and what not to trust.
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AI IN TEXAS CRIMINAL DEFENSE The highest-value uses in Texas criminal defense are not usually “write my motion” uses. They are discovery-intelligence uses. A lawyer can use AI-assisted workflows to summarize offense reports, create witness chronologies, compare reports against video transcripts, flag contradictions, organize discovery by source, extract dates and names, identify missing records, prepare client-facing summaries, draft issue lists, and generate cross-examination outlines. These tasks do not replace legal judgment. They help the lawyer see the case sooner and more completely. A sound criminal-defense workflow might begin with intake and discovery mapping. The lawyer or staff identifies each category of discovery: reports, video, audio, forensic material, electronic extractions, photographs, medical records, and court documents. AIassisted tools can help summarize each category, but the lawyer should require sourcelinked outputs. A useful summary should point back to the page, timestamp, exhibit, or file that supports the statement. Without that source link, the output may help brainstorming, but it should not guide litigation decisions. The next layer is contradiction analysis. AI can compare an officer’s report to bodycamera transcripts, compare witness statements to one another, or identify timeline conflicts across documents. This is particularly useful in suppression work. The lawyer can ask: What did the officer say justified the stop? What does the video show? When did the detention begin? When did questioning shift? When did consent occur? Who searched what, and under what claimed authority? AI can help surface those questions faster. The lawyer must still decide which questions matter legally and tactically. A third layer is trial preparation. AI can help convert raw discovery into crossexamination topics, impeachment charts, voir dire themes, and exhibit lists. But criminal defense lawyers should avoid confusing generated questions with trial strategy. AI tends to over-question. It often fails to understand when a point has been made, when silence helps more than another question, or when the witness’s answer helps the defense emotionally even if it hurts factually. Trial judgment remains human. A fourth layer is office management. Criminal defense practices often suffer from fragmented information: email, Dropbox, Clio, MyCase, prosecutor portals, investigator notes, PDFs, jail-call platforms, and text messages with clients or families. AI-assisted office systems can reduce that fragmentation by helping staff locate files, summarize communications, draft routine letters, prepare task lists, and track missing discovery. These uses may create large gains without touching legal research or court filings. They also reduce the risk that an important item sits unnoticed in a portal or inbox. Criminal defense lawyers should also expect AI-generated material from clients. The State Bar survey found that 43% of respondents report clients raise AI-related topics at least sometimes, with 17% saying clients do so often or very often. In criminal practice, that may mean clients bring AI-generated legal theories, proposed questions, “research” about punishment ranges, or explanations of constitutional law that are wrong. The lawyer must address that material carefully. Dismissing it outright may damage trust; accepting it uncritically may damage the case. The better response is to explain that AI can help identify questions but cannot substitute for jurisdiction-specific legal analysis.
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The lesson from Ex parte Lee and the discovery reality is therefore balanced. AI can harm a criminal case when a lawyer files unverified output, relies on nonexistent authority, or allows the tool to replace legal reasoning. But AI can help a criminal case when it assists with organization, source-linked review, contradiction detection, timeline building, and preparation. Texas criminal defense lawyers should not use AI to avoid hard work. They should use it to find the hard work faster.
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DIGITAL EVIDENCE AND THE NEW COMPETENCE STANDARD The competence problem in criminal defense is no longer limited to knowing statutes, rules, and trial tactics. Competence now includes the ability to recognize, obtain, review, challenge, and explain digital evidence. AI matters because it arrives at the same moment that criminal discovery has become overwhelmingly digital. A generation ago, the defense file was mostly paper: offense reports, witness statements, lab reports, photographs, and handwritten notes. Today, the file often includes body-worn camera footage, dash camera footage, jail calls, Cellebrite extractions, Google location data, GPS records, license-plate reader hits, surveillance video, social media warrants, screenshots, cloud records, search histories, forensic downloads, and prosecutor-portal productions. The lawyer who cannot manage that information risks missing the case. AI does not eliminate that duty. It heightens it. The more powerful the tools become, the less defensible it becomes to ignore available methods for reviewing large volumes of evidence. At the same time, AI creates new risks if the lawyer uses it without understanding the source data, the limitations of the tool, and the need for verification. A. Cell Phone Data Cell phones now serve as diaries, maps, file cabinets, cameras, communication logs, and location trackers. In criminal cases, they often contain the State’s strongest evidence and the defense’s best impeachment material. A phone extraction may include text messages, call logs, location artifacts, photographs, videos, app data, deleted material, browser history, cloud-sync records, contact lists, and metadata. Texas courts have increasingly treated some phone-extraction evidence as routine. In Villareal-Garcia v. State, 671 S.W.3d 791 (Tex. App.—Dallas 2023, no pet.), the Dallas Court of Appeals adopted the reasoning of Wright v. State, 618 S.W.3d 887 (Tex. App.—Fort Worth 2021, no pet.), concluding that expert testimony was not required to establish the reliability of Cellebrite software for extracting text messages; authentication under Texas Rule of Evidence 901 could suffice where the process involved copying data from a phone to a computer. That should not make defense lawyers complacent. The admissibility of an extraction is not the same as the reliability of every interpretation drawn from it. A Cellebrite report may accurately extract data but still leave important questions unresolved. What search authority permitted the extraction? Did the warrant limit the search by offense, date range, application, or data type? Did the analyst perform a full filesystem extraction, logical extraction, advanced logical extraction, or manual review? Were deleted artifacts recovered? Were time zones converted correctly? Did the report
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distinguish sent messages from received messages, opened messages from stored messages, or synchronized cloud records from locally stored records? The defense lawyer must understand enough to ask those questions. AI-assisted tools can help summarize extraction reports, organize messages by date, identify participants, cluster themes, and flag inconsistencies. But the lawyer must still inspect the underlying extraction, compare the report against the warrant, and decide whether to retain a digital-forensics expert. The danger is not merely that AI may summarize a phone incorrectly. The deeper danger is that a lawyer may never learn what the phone actually contains. B. CSLI, Geofence Warrants, and Location Data Location evidence has become one of the most contested areas of criminal litigation. Traditional historical cell-site location information (CSLI), Google location-history data, GPS data, and geofence warrants all raise different legal and technical questions. The defense lawyer must identify what kind of location data the State has, how the State obtained it, what legal process supported it, and what the data can actually prove. The Fifth Circuit and the Texas Court of Criminal Appeals have taken different paths on geofence warrants. In United States v. Smith, 110 F.4th 817, 821 (5th Cir. 2024), cert. denied, 146 S. Ct. 356, 223 L. Ed. 2d 191 (2025), the Fifth Circuit reviewed convictions based partly on evidence obtained through a Google geofence warrant. The court held that the geofence warrant at issue violated the Fourth Amendment, but it applied the good-faith exception and affirmed the denial of suppression. In Wells v. State, 675 S.W.3d 814 (Tex. App.—Dallas 2023), aff'd, 714 S.W.3d 614 (Tex. Crim. App. 2025), the Texas Court of Criminal Appeals reached a different result on the warrant before it. The court held that the geofence warrant was supported by probable cause and satisfied the Fourth Amendment’s particularity requirement because it was sufficiently limited in time, location, and scope. This split illustrates why digital-evidence competence is now constitutional competence. A lawyer who sees “Google location data” in discovery cannot treat it as a generic exhibit. The lawyer must ask: • Was this historical CSLI, GPS data, Google location history, or geofence data? • Did the State obtain it by warrant, subpoena, court order, consent, or another process? • Did the warrant describe the place to be searched and the data to be seized with sufficient particularity? • Did the warrant create a dragnet over innocent users? • Does the good-faith exception apply? • Did the State receive additional identifying data after the first return? • Were the defense and court given the full warrant process, including returns and communications with the provider? AI can help organize the warrant materials and generate issue lists, but it cannot decide whether a geofence warrant is constitutionally defective. That requires legal judgment, technical understanding, and source-specific review.
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C. Forensic Tools and Machine-Generated Evidence Criminal defense lawyers must also understand that many forensic outputs are now machine-generated, software-assisted, or algorithmically mediated. Cellebrite reports, DNA interpretation tools, breath-test records, probabilistic genotyping outputs, firearm databases, license-plate reader systems, facial-recognition leads, and location-analysis maps all depend on systems that may appear objective because they come from machines. The defense must resist that appearance. A machine-generated report may still depend on human assumptions, software settings, database quality, calibration, training data, collection methods, chain of custody, and interpretation. A map built from location data may look precise while concealing uncertainty. A phone report may look complete while omitting encrypted app data. A forensic dashboard may look neutral while reflecting choices about what to search, what to extract, and what to display. The Texas and Fifth Circuit research results identify several recent cases involving digital evidence, including CSLI, Google location data, Cellebrite extractions, DNA reliability, and forensic-software outputs. The recurring theme is that courts often admit digital evidence when the proponent can authenticate the process, but that admission does not eliminate the defense lawyer’s duty to test scope, reliability, interpretation, and prejudice. AI can support that work by helping the lawyer build checklists, compare forensic reports, summarize technical records, and identify missing foundational materials. But AI cannot substitute for a defense theory. The lawyer must decide whether the best challenge is suppression, authentication, Rule 702 reliability, confrontation, chain of custody, Rule 403, discovery violation, or cross-examination. D. Discovery Duties Under Article 39.14 The digital-evidence problem also intersects with Texas discovery law. Article 39.14, as amended by the Michael Morton Act, broadened the State’s disclosure obligations. In Watkins v. State, 619 S.W.3d 265, 269 (Tex. Crim. App. 2021), the Court of Criminal Appeals described the Michael Morton Act as a complete overhaul of Texas criminal discovery that removed procedural hurdles, broadened discoverable evidence, and expanded the State’s obligation to disclose. The defense lawyer must therefore make discovery demands that account for digital systems. A generic request for “all discovery” may be insufficient in practice. The lawyer should request the full extraction, native files where available, underlying reports, audit logs, warrants, returns, search terms, lab notes, photographs, metadata, chain-of-custody records, and any communications with third-party providers. AI can help track what has been produced and what remains missing. But the lawyer must know what to ask for. E. Ineffective Assistance and the Failure to Investigate Digital Evidence The final issue is ineffective assistance of counsel. Courts have not yet held that criminal defense lawyers must use AI. At this stage, Texas ethics guidance does not require AI use for any particular task. But as criminal cases become more data-heavy, failure to investigate digital evidence can support ineffective-assistance claims under ordinary Strickland v. Washington, 466 U.S. 668 (1984), principles.
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The relevant question will not be, “Did counsel use AI?” The question will be whether counsel conducted a reasonable investigation under the circumstances. If the State’s theory depends on cell phone data, CSLI, geofence returns, forensic extractions, or electronic communications, competent counsel must understand that evidence well enough to evaluate it, challenge it, or retain help. The research results identify recent ineffective-assistance and digital-evidence cases in which courts considered failures to investigate or challenge cell phone evidence, forensic reports, and technology-based proof. AI may become part of that reasonableness analysis indirectly. A lawyer who receives hundreds of hours of body camera footage, thousands of pages of extraction reports, or massive discovery dumps may not be able to review everything manually within the available time and budget. AI-assisted review can help prioritize, summarize, and flag issues. If affordable and secure tools exist, a lawyer may eventually need to explain why those tools were not used—or why a different method of review was adequate. That point should be stated carefully. AI does not define competence. Judgment does. But judgment now requires technological awareness. A lawyer who blindly uses AI risks sanctions and bad advocacy. A lawyer who blindly refuses all technological assistance may miss evidence that a competent defense team would have found. The new competence standard is therefore not “use AI.” It is this: understand the digital evidence, use appropriate tools to review it, protect the client’s information, verify the output, and make strategic decisions based on human judgment. FROM TOOLS TO SYSTEMS Most lawyers begin using AI the same way they begin using any new technology: they try a tool. They open ChatGPT, Claude, Copilot, CoCounsel, Gemini, or another platform and ask it to draft, summarize, or research. That is a natural starting point, but it is not where the durable value lies. The durable value lies in systems. A tool performs a task. A system changes how the lawyer practices. A tool answers a prompt. A system ingests discovery, organizes it, tags it, summarizes it, links every summary to a source, identifies missing materials, creates a timeline, generates issue lists, and supports trial preparation. A tool helps once. A system improves the case continuously. This distinction matters in criminal defense because the work is not isolated. A single fact may matter at intake, bond, investigation, plea negotiation, suppression, trial, sentencing, and appeal. If a lawyer uses AI only as a drafting assistant, the lawyer may save time on a motion. If the lawyer builds a system, the lawyer may improve the entire representation. The 2026 State Bar survey confirms that Texas lawyers are moving in this direction, even if many have not yet named it. Lawyers reported using AI for legal document management, non-legal document management, summarizing text or audio, discovery, drafting, and legal research. Respondents repeatedly asked for tools that can summarize large records, analyze discovery, build timelines, manage documents, automate workflows, and operate securely.
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That is not a request for better chatbots. It is a request for systems. A. Workflows Over Prompts Prompting remains important. A lawyer must still ask clear questions, provide context, define the desired output, and specify the audience. But prompting alone is fragile. A prompt lives in the moment. A workflow repeats. A criminal-defense workflow should answer predictable questions: • What comes into the office? • Where does it go? • Who reviews it? • How does the firm know what is missing? • How does the lawyer find important facts later? • How does the lawyer verify AI-generated work? • How does the lawyer convert discovery review into advocacy? The lawyer who answers those questions has built a system. The lawyer who only asks AI to “summarize this report” has not. A good workflow begins before AI touches anything. The firm should decide what kinds of information may be uploaded to which tools, what information must be redacted, what information requires client consent, and who may use each platform. The firm should also decide which tasks AI may assist with and which tasks remain lawyer-only. A policy does not need to be long, but it must be clear. That point is especially important because half of surveyed Texas lawyers reported that their firm or employer has no official AI policy. A basic criminal-defense AI policy can divide tasks into three categories. First, lowrisk tasks: grammar, formatting, generic checklists, nonconfidential brainstorming, and administrative templates. Second, controlled tasks: discovery summaries, timeline creation, draft witness outlines, and legal issue lists, all requiring source-linked verification. Third, restricted tasks: legal research for court filings, confidential client data in public tools, expert analysis, plea advice, trial strategy, and anything submitted to a court without lawyer review. This structure gives staff permission to use AI where it helps while preventing casual misuse where it harms. B. Discovery Pipelines Discovery is the natural center of AI use in criminal defense. It is also where systems deliver the greatest benefit. A discovery pipeline is a repeatable process for converting chaotic evidence into usable case intelligence. It does not require a particular vendor or platform. It requires disciplined steps. The first step is intake. When discovery arrives, the firm should log the source, date received, file type, producing agency, and category. The categories should be practical: offense reports, supplemental reports, body camera, dash camera, 911 audio, jail calls, lab reports, medical records, warrants, returns, phone extractions, photographs, surveillance video, criminal history, and court filings. This inventory matters because lawyers cannot analyze what they cannot track. The second step is preservation and access. Digital discovery should be stored in a structured folder system or case-management environment. File names should be
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standardized. Duplicate files should be identified. Passwords, portal links, expiration dates, and download deadlines should be tracked. Many discovery problems are not legal problems at first; they are file-management failures. The third step is extraction. Text should be extracted from PDFs where possible. Audio and video should be transcribed where appropriate. Large reports should be converted into searchable form. Phone extractions should be separated by artifact type: messages, calls, images, videos, locations, app data, and deleted items if available. AI performs better when the input is organized. The fourth step is summarization. AI can summarize reports, transcripts, and records, but the output should be constrained. A useful summary should identify the source, page, timestamp, or file name supporting each important statement. A summary without source references may be useful for orientation, but it should not support a motion, cross-examination, or plea recommendation. The fifth step is issue detection. Once the materials are searchable and summarized, AI-assisted workflows can help identify contradictions, missing evidence, constitutional issues, evidentiary problems, and investigation leads. For example: • the offense report says consent occurred before the search, but the bodycamera transcript suggests the search began earlier; • the officer describes a traffic violation that the video does not show; • the lab report refers to a submission form that has not been produced; • the warrant return lists a phone extraction, but the extraction report is missing; • a witness statement conflicts with a later recorded interview; • the jail calls mention a person who does not appear in the police reports. These are not final conclusions. They are leads. The lawyer must verify them. The sixth step is advocacy conversion. The pipeline should produce usable work product: suppression issue lists, cross-examination outlines, witness charts, impeachment logs, exhibit lists, plea-negotiation memos, sentencing themes, and client summaries. A discovery pipeline fails if it creates attractive summaries but does not improve advocacy. C. Source-Linked Work Product The most important design principle is source-linking. Every meaningful AIgenerated factual assertion should connect back to the evidence. For criminal defense, source-linked work product may look like this: • “Officer Smith activated emergency lights at 10:42:13 p.m. — Body Cam 1, 00:03:12.” • “Client denied consent twice before officer opened the passenger door — Body Cam 2, 00:08:41–00:09:10.” • “Lab report identifies Item 4 as tested, but property receipt lists Item 4 as sealed separately — Lab Report p. 3; Property Receipt p. 2.” • “Witness Martinez first described the suspect as wearing a black hoodie, later as a gray jacket — 911 Call 00:02:14; Recorded Statement p. 6.”
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This practice protects the lawyer from hallucinations and improves trial preparation. It also makes the system useful under pressure. When the lawyer needs to challenge a witness, argue suppression, or explain a fact to the client, the source is already attached. D. The Lawyer as System Designer AI shifts part of the lawyer’s role from task performer to system designer. That does not reduce the lawyer’s importance. It increases it. The system reflects the lawyer’s judgment about what matters. A generic AI tool may summarize everything equally. A defense system prioritizes facts that matter to liberty: probable cause, reasonable suspicion, voluntariness, consent, identity, chain of custody, scientific reliability, impeachment, mitigation, and punishment exposure. A generic tool may produce long narrative summaries. A defense system produces issue-focused outputs that help the lawyer decide what to do next. This is why criminal-defense AI should be built around defense questions, not software features. The relevant questions include: • What facts help the State? • What facts help the defense? • What facts are missing? • What facts are inconsistent? • What facts affect admissibility? • What facts affect punishment? • What facts affect negotiation leverage? • What facts affect the client’s story? A system that answers those questions will outlast any particular model. E. Avoiding Automation Without Judgment A discovery pipeline should never become an automated substitute for case review. AI can compress the time needed to find patterns, but it cannot decide whether a pattern matters. It can identify a contradiction, but it cannot know whether using that contradiction will help or harm the defense. It can draft cross-examination questions, but it cannot sense when a jury has heard enough. It can summarize mitigation records, but it cannot know which fact will cause a judge to see the client differently. That is the correct boundary. AI should handle volume, repetition, sorting, and firstpass synthesis. The lawyer should handle judgment, strategy, credibility, ethics, and persuasion. The lawyers who gain the most from AI will not be the lawyers who chase every new tool. They will be the lawyers who build stable workflows around enduring defense tasks. Tools will change. Models will change. Vendors will change. The core work of criminal defense will not: investigate the facts, understand the law, protect the client, challenge the State, and tell the client’s story with force and accuracy. PRACTICAL GUARDRAILS The best AI policy is not a ban. It is a set of practical guardrails that allows lawyers to capture legitimate efficiency gains while preserving the duties that define the profession. For Texas criminal defense lawyers, those guardrails should focus on three questions: 1. Can the output be verified? Page 14 of 18
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Is client information protected? Who is responsible for supervising the workflow? These questions convert the ethical rules into daily practice. They also address the central problem shown by the 2026 State Bar survey: Texas lawyers are using AI faster than firms are adopting policies and training. Half of respondents reported that their firm or employer has no official AI policy, and nearly half of AI users reported that their employer provides no AI training. A. Verification: AI Is Not a Source of Truth The first guardrail is verification. AI can generate leads, summaries, drafts, and issue lists. It cannot serve as the final source of truth. Texas Opinion 705 states the rule directly: lawyers should verify the accuracy of any responses received from generative AI, and they remain responsible for submitted work regardless of who—or what—performed the original research or drafting. The opinion also warns that failure to verify AI output may implicate Rules 1.01, 3.01, 3.03, and 3.04. For legal authority, verification means more than confirming that a case name exists. A lawyer must confirm: • the case exists; • the citation is correct; • the quotation appears in the case; • the cited proposition accurately reflects the holding; • the procedural posture matters in the same way; • the case remains good law; • the jurisdiction fits the argument. This matters because newer AI errors are more subtle than fake cases. In Fletcher v. Experian Information Solutions, Inc., 168 F.4th 231 (5th Cir. 2026), the Fifth Circuit found that counsel’s brief contained fabricated quotations and serious misrepresentations, even where some authorities were real. The court sanctioned counsel and held that lawyers using generative AI must ensure that generated propositions and authority are trustworthy. For factual assertions, verification means every important AI-generated statement should connect to the record. A discovery summary should identify the police report page, body-camera timestamp, lab-report section, jail-call timestamp, or exhibit number supporting the statement. A cross-examination outline should identify the source for each impeachment point. A suppression issue list should identify the exact fact, source, and legal relevance. A practical rule for criminal defense work is simple: No AI-generated fact enters a motion, plea analysis, trial outline, client letter, or court argument unless a human verifies it against the source. The verification process should be visible. If staff or AI summarizes discovery, the work product should include source references. If AI drafts a motion, the lawyer should check every case and every record cite before filing. If AI identifies contradictions, the lawyer should review the actual reports, video, or transcript. If AI summarizes a witness statement, the lawyer should read the underlying statement before using it in court. A useful verification protocol can be short:
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2. 3.
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Legal research: verify in Westlaw, Lexis, Fastcase, official statutes, or another reliable legal source. • Discovery summaries: verify against native discovery, transcript, timestamp, or page number. • Quotes: copy from the original source, not from AI. • Translations/transcripts: spot-check against audio or obtain qualified review where accuracy matters. • Final filings: require lawyer review before filing. The rule is not “never use AI.” The rule is “never outsource truth.” B. Confidentiality: Treat Prompts Like Disclosures The second guardrail is confidentiality. Lawyers often focus on uploaded documents, but prompts themselves can disclose confidential information. A prompt may reveal the client’s name, facts, criminal history, strategy, mental impressions, plea posture, mitigation theory, immigration consequences, or witness information. Rule 1.05 defines confidential information broadly. It includes privileged information and unprivileged client information, meaning information relating to the client or furnished by the client during the representation. Opinion 705 warns that generative AI tools often invite lawyers to explain facts, legal theories, and arguments in prompts, which may expose privileged mental impressions or other confidential information. The risk becomes greater when a tool stores prompts, uses inputs for model training, shares data with vendors, or lacks clear contractual protections. Opinion 705 specifically warns that self-learning AI systems may store and incorporate user inputs into datasets and may later reveal confidential information to others. The opinion states that if the lawyer is not reasonably satisfied that the program will protect confidential information, the lawyer should not input confidential information without client consultation and consent. Criminal defense lawyers should treat AI platforms in tiers: Tier One: Public or generic use: This includes grammar, formatting, general brainstorming, non-case-specific hypotheticals, and administrative templates that contain no confidential information. These uses present lower confidentiality risk. Tier Two: Redacted or anonymized case use: This includes summaries or issue spotting where names, identifying details, addresses, dates of birth, cause numbers, witness identifiers, and sensitive facts have been removed or altered. This is safer, but not risk-free. A unique fact pattern can still identify a client. Tier Three: Confidential case-data use: This includes discovery uploads, client statements, jail calls, psychological records, immigration information, medical records, phone extractions, juvenile records, and litigation strategy. These materials should only be used with tools that the lawyer has evaluated for confidentiality, data retention, training use, security, and contractual protection. In some cases, the lawyer should also obtain informed client consent. Opinion 705 identifies practical precautions: understand how the technology works, review or renegotiate terms of service, learn about data-security protections, and train lawyers and staff on proper use while protecting client information. That is the minimum standard for any firm using AI with case-specific criminal defense material. •
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A criminal defense AI policy should therefore prohibit staff from uploading confidential case material into unapproved consumer AI tools. It should also require lawyers and staff to document which tools may be used, for what tasks, and under what data restrictions. The policy should address especially sensitive categories: medical records, mental-health records, juvenile information, CPS records, immigration history, victim information, sealed materials, protective-order discovery, and confidential informants. C. Supervision: Every AI Workflow Needs a Human Owner The third guardrail is supervision. AI should never operate in a law office without a responsible human attached to the task. Rule 5.03 governs lawyers’ responsibilities regarding nonlawyer assistants. AI is not literally a paralegal, but the supervisory analogy is useful. Opinion 705 makes that analogy expressly: lawyers relying on generative AI for research, drafting, and communication face many of the same risks as lawyers relying on inexperienced or overconfident nonlawyer assistants. That lesson applies to criminal defense firms of every size. A solo lawyer must supervise personal AI use. A small firm must supervise staff and contract workers. A public defender or appointed-counsel team must supervise investigators, mitigation specialists, interns, paralegals, and lawyers who may use AI on shared cases. A lawyer cannot disclaim responsibility by saying, “My assistant used it,” “The client sent it,” “The associate drafted it,” or “The AI generated it.” A workable supervision policy should identify: • approved tools; • prohibited tools; • tasks AI may assist with; • tasks AI may not perform; • what client data may be entered; • how outputs must be labeled; • who must review each category of output; • how citations and facts must be verified; • when client consent is needed; • when court disclosure rules apply; • how AI expenses and time are billed. The policy need not be long. A one-page rule is better than an unwritten understanding. The policy should also require training. Staff should know, at a minimum, that AI can hallucinate, that public tools may create confidentiality risks, that AI output must be source-checked, and that no AI-generated legal authority should be filed unless a lawyer verifies it. D. A Minimal AI Use Checklist A Texas criminal defense lawyer can reduce most AI risk by asking six questions before using any AI-generated output: 1. What task is AI performing? 2. What information did we give it? 3. Does that information include client confidential information?
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4. 5. 6.
What source verifies the output? Who reviewed it? Will this be shown to a client, opposing counsel, court, judge, or jury? If the answer to the last question is yes, the review standard must be higher. Anything filed in court must be treated as lawyer-certified work. Anything shown to a client must be accurate enough not to mislead. Anything used at trial must be grounded in admissible evidence or a good-faith basis for questioning. These guardrails do not slow AI adoption. They make adoption sustainable. The lawyers who benefit most from AI will not be the lawyers who trust it most. They will be the lawyers who build systems that verify outputs, protect confidences, and keep human judgment in control.
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CONCLUSION The future of Texas criminal defense will not turn on which lawyer knows the most prompts or subscribes to the newest platform. Tools will change too quickly for that. Models will improve, interfaces will disappear, vendors will consolidate, and today’s impressive feature will become tomorrow’s baseline. The durable advantage will belong to lawyers who combine sound judgment with disciplined systems. The practice of criminal defense has always depended on asymmetry. The State usually has more resources, more investigators, more agents, more data, and more institutional memory. Defense lawyers respond with strategy, skepticism, creativity, preparation, and trust. AI can help close parts of that resource gap. It can help a solo lawyer review discovery more like a team. It can help appointed counsel find contradictions buried in hours of video. It can help a lawyer convert scattered information into a coherent theory. It can help a lawyer spend less time searching for the case and more time understanding the client. The next standard of competent criminal defense will not be manual practice with occasional AI assistance. It will be judgment-centered practice supported by reliable systems. Lawyers who build those systems will not merely work faster. They will see more, miss less, and advocate with greater precision.
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Jury Charges
Speaker:
Anne Burnham
Co-Author:
Elizabeth Berry
Co-Author:
Janet Burnett
Jury Charges
Harris County Public Defender’s Office 1310 Prairie 4th Floor Suite 400 Houston, TX 77002 713.274.6907 phone anne.burnham@pdo.hctx.net email
Chief Public Defender Concho Valley Public Defender’s Office 113 Beauregard Ave. San Angelo, TX. 76903 (325) 229-4732 phone eberry@cvpdo.org email
Attorney at Law 105 S. Ridge Court Georgetown, TX. 78628 (915)479-2581 phone Jburnett1025@gmail.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Texas Criminal Defense Lawyers Association
Jury Charges Elizabeth Berry Chief Public Defender Concho Valley Public Defender’s Office 113 Beauregard Ave. San Angelo, TX. 76903 (325) 229-4732 eberry@cvpdo.org Janet Burnett Attorney at Law 105 S. Ridge Court Georgetown, TX. 78628 (915)479-2581 Jburnett1025@gmail.com Jury Charges
With 2025-2026 Updates By: Anne More Burnham Assistant Public Defender Harris County Public Defender’s Office 1310 Prairie, 13th Floor Houston, Texas 77002 (713) 274-6700 Anne.burnham@pdo.hctx.net
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AUTHORS Elizabeth Berry is currently the Chief Public Defender for the Concho Valley Public Defender’s Office, with offices in San Angelo and Abilene. The office covers eleven rural counties in West Texas, and has a staff of approximately 35, including lawyers, investigators, social workers, peer navigators, and front office staff. Elizabeth’s 30-plus-year legal career has focused on helping people. She has fulfilled that mission in her work as a public defender, private criminal defense practitioner, district judge, visiting judge, and prosecutor. Ms. Berry is a graduate of the University of Texas and the University of Houston Law School. She taught classes at the undergraduate, graduate and law school levels, and coached law school mock trial teams. Her passion for teaching has fueled her to train lawyers, students, and judges throughout her career. She has been Board Certified in Criminal Law since 1999 and co-authored Texas Criminal Jury Charges with Judge George Gallagher since 2005. Although she has tried many interesting jury trials, her favorite part of being a lawyer is the personal connection she has made with coworkers, fellow attorneys, clients, and their families. Janet Burnett is a board-certified criminal defense lawyer in private practice in Georgetown, Texas. Her business (rent-a-nerd) provides legal research and writing support to Jury Charges
attorneys across the country. She also does court appointed (and occasionally even retained) appellate work. Janet is a frequent lecturer at CLE programs. She does a free-of-cost newsletter to anyone interested with an email account on recent updates in the criminal law. If you are interested email her at jburnett1025@gmail.com.
CONTRIBUTOR With gratitude to the original authors of this paper for permitting its continued use and revision, Anne Burnham substantively updated this paper with cases from 2025-2026 for this presentation. Anne currently serves as an Assistant Public Defender with the Harris County Public Defender’s Office. She has been a member of TCDLA since 1999, serves on the TCDLA Board of Directors, is an Associate Editor of The Voice for The Defense, and a committee chair of TCDLA’s Law Student Committee. She writes and speaks on various issues related to the practice of criminal law.
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TABLE OF CONTENTS TABLE OF CONTENTS
iii
INDEX OF AUTHORITIES
v
I.
Jury Charge
1
II.
Error Preservation
2
III.
Trial court’s duty to instruct sua sponte
3
A. Age Affecting Criminal Responsibility
3
B. Accomplice Witness
3
C. Other corroboration required: Solicitation
5
D. Other corroboration required: Jailhouse Snitch
5
IV.
Abstract Paragraph
5
A.
5
Jury instruction must be supported by the evidence
V.
Application paragraph authorizes the conviction
5
VI.
Extraneous
6
VII.
Concurrent Causation
6
VIII.
Lesser-included offenses
8
A. 37.09(1) and Cognate pleadings
9
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B. The cognate-pleadings test does not apply to the manslaughter exclusion in the felonymurder statute 10 C. First Step. What can be deduced from an indictment? Functional Equivalence
10
D. Element vs. Manner and Means
13
E.
13
37.09(3) Less Culpable Mental State
F. Second Step. Is there evidence in the record from which the jury could find the defendant guilty only of the lesser-included-offense? 14 G. Rational Alternative
14
H. A factual dispute can raise a lesser
15
I.
Deadly weapons
15
J.
Serious bodily injury
16
K. Second Step does not apply to the State.
16
L. Transitional instructions between the greater and the lesser offense and between the lesserincluded offenses 17 M. Lie-Between lesser-included offenses IX. Defensive issues 512
17 18
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A. Trial court has a duty to charge a defensive issue correctly
18
B. Justification Defenses
18
C. Voluntariness
19
D. Confession and Avoidance
19
E. Necessity
20
F. Self-Defense
21
1. Multiple Assailants
21
2. Apparent Danger
22
3. Statutory Presumption of the reasonable belief as to the necessity of the use of deadly force 22 4. Limitations on Self-Defense
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A. Retreat
23
B. Provoking the Difficulty
24
C. Innocent Bystander
25 25
H. Texas Penal Code § 9.34: Protection of Life or Health
26
I.
Medical Care
26
J.
General Defenses to Criminal Responsibility
26
1. Mistake of Fact
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Mistake-of-fact instructions are appropriate in:
27
2.Involuntary Intoxication
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Limiting Instructions
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A.
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X.
Issue: Limiting Instructions and Tex.Code Crim.Proc. 38.27
XI.
Sudden Passion
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XII.
Ineffective Assistance and Jury Charges
30
XIII. 38.23
31
XIV. Statements and confessions
31
XV. Unanimity
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XVI. Comment on the Weight of the Evidence
34
XVII. Culpable Mental States
35
A.
Culpable Mental States and the application paragraph
36
B.
Determining what elements the culpable mental state applies to
37
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G. Consent as defense to assault
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XVIII.
Abuse of Discretion Standard of Review
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XIX.
Almanza
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A.
Some Harm
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B.
Egregious harm
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C.
Constitutional Error: Harmless Beyond a Reasonable Doubt
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INDEX OF AUTHORITIES Cases
Jury Charges
Alcoser v. State, No. PD-0166-20, 2022 WL 947580 (Tex. Crim. App. March 30, 2022) (not yet published) 37 Alkayyali v. State, 713 S.W.3d 780 (Tex. Crim. App. 2025) 40-42 Almanza v. State, 724 S.W.2d 805 (1986) 35,36 Alonzo v. State, 353 S. W. 3d 778 (Tex. Crim. App. 2011) 18 Apprendi v. New Jersey, 530 U. S. 466 (2000) 38 Arline v. State, 721 S. W. 2d 348 (Tex. Crim. App. 1986) 37 Ash v. State, 533 S. W. 3d 878 (Tex. Crim. App. 2017) 4 Barrera v. State, 982 S. W. 2d 415 (Tex. Crim. App. 1998) 18 Beck v. Alabama, 447 U. S. 625 (1980) 7 Beggs v. State, 597 S. W. 2d 375 (Tex. Crim. App. 1980) 6,26 Bell v. State, 635 S. W. 3d 641 (Tex. Crim. App. 2021) 37 Benavides v. State, 763 S.W.2d 587 (Tex.App.—Corpus Christi 1988, pet.ref’d) 17 Bennett v. State, 235 S. W. 3d 241 (Tex. Crim. App. 2007) 2-3 Bien v. State, 550 S.W.3d 180 (Tex. Crim. App. 2018) 14 Biggins v. State, 824 S.W.2d 179 (Tex. Crim. App. 1992) 6 Blake v. State, 971 S. W. 2d 451 (Tex. Crim. App. 1998) 4,5 Boushey v. State, 804 S.W.2d 148 (Tex. App. – Corpus Christi 1991, pet. ref’d) cert. denied Boushey v. Texas, 502 U. S. 912 (1991) Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005) Brazelton v. State, 947 S.W.2d 644 (Tex. App. – Fort Worth 1997, no pet.). Brunson v. State, 764 S.W.2d 888 (Tex. App. – Austin 1989, pet. ref’d) Bufkin v. State, 207 S.W. d 779 (Tex. Crim. App. 2006) Burd v. State, 404 S.W.3d 64 (Tex. App. – Houston [1st Dist.] 2013, no pet.) Burnett v. State, 541 S.W.3d 77 (Tex. Crim. App. 2017) Burnett v. State, 88 S.W. d 633 (Tex. Crim. App. 2002) Casanova v. State, 383 S.W.3d 530 (Tex. Crim. App. 2012) Cavazos v. State, 382 S.W. d 377 (Tex. Crim. App. 2012) Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013) Chambers v. State, 663 S.W.3d 1 (Tex.Crim.App. 2022) Chapman v. State, 921 S.W. d 694 (Tex. Crim. App. 1996)(en banc). Chavez v. State, 666 S.W.3d 772 (Tex.Crim.App. 2023) 514
v
21 18 20,21 24 25,35 18 5,6 36 37 10,13,14 27 31 2 15
Cocke v. State, 201 S.W.3d 744 (Tex. Crim. App. 2006) Colorado v. Connelly, 479 U.S. 157 (1986)
4 31
vi
Jury Charges
Contreras v. State, 312 S.W.3d 566, 576 (Tex. Crim. App. 2010) cert. denied, Contreras v. Texas, 131 S.Ct. 427 (2010) 18,32 Cooper v. State, 430 S.W.3d 426, 427 (Tex. Crim. App. 2014) 33-34 Cook v. State, 884 S.W.2d 485 (Tex.Crim.App. 1994) 35-36 Cornet v. State, 417 S.W.3d 446 (Tex. Crim. App. 2013) 26, 39 Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) 32 Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) 5 Cuevas v. State, No. PD-0144-25, 2026 WL 899833 (Tex. Crim. App. Apr. 2, 2026 22-23 Curry v. State, 622 S.W.3d 302 (Tex. Crim. App. 2019) 27 Cyr v. State, 308 S.W. d 19 (Tex. App. – San Antonio 2009 – no pet.) 4,7 Davis v. State, 313 S.W.3d 317 (Tex.Crim.App. 2010) 32,33 De La Torres v. State, 583 S.W. d 613 (Tex. Crim. App. 2019) 34 Delgado v. State, 235 S.W. d 244 (Tex. Crim. App. 2007) 1,2,6,9,28 Dickey v. State, 22 S.W.3d 490 (Tex. Crim. App. 1999) 22 Dirck v. State, 579 S.W.2d 198 (Tex. Crim. App. 1979) 25 th Distefano v. State, 532 S.W.3d 25 (Tex.App.—Houston [14 Dist.] 2016, pet.ref’d) 28 Do v. State, 634 S. W. 3d 883 (Tex. Crim. App. 2021) 38,42 Doyle v. State, 631 S.W.2d 732 (Tex.Crim.App. 1982) 36 Drichas v. State, 175 S.W.3d 795 (Tex.Crim.App 2005) 16 Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) 5 th Dugar v. State, 464 S.W.3d 811 (Tex. App. – Houston [14 Dist.] 2015, pet. ref’d) 25 Elizondo v. State, 487 S.W. d 185 (Tex. Crim. App. 2016) 24 Engel v. State, 630 S.W.3d 192 (Tex. Crim. App. – Eastland 2020, no pet.) 24 Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009) 11-12 Ex parte Amador, 326 S.W.3d 202 (Tex. Crim. App. 2010) 14 Ex parte Moreno, 245 S.W.3d 419, 430 (Tex. Crim. App. 2008) 2 Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) 9-10,13 Farmer v. State, 411 S.W.3d 901 (Tex. Crim. App. 2013) 19 Farrakhan v. State, 247 S. W. 3d 720 (Tex. Crim. App. 2008) 1112 Ferrel v. State, 55 S. W. 3d 586 (Tex. Crim. App. 2001) 16 Flores v. State, 620 S.W.3d 154 (Tex. Crim. App. 2021) 16 Floyd v. State, 714 S.W.3d 9 (Tex. Crim. App. 2024) 33-34 Forest v. State, 989 S. W. 2d 365 (Tex. Crim. App. 1999) 15 Francis v. State, 36 S. W. 3d 121 (Tex. Crim. App. 2000) 2,33 Franks v. State, 688 S. W. 2d 863 (Tex. Crim. App. 1985) 21 Fraser v. State, 583 S. W. 3d 564 (Tex. Crim. App. 2019) 9-11 Gamino v. State, 537 S. W. 3d 507 (Tex. Crim. App. 2017) 20 Gasper v. State, 327 S. W. 3d 349 (Tex. App. – Texarkana 2010, no pet.) 35 Gelinas v. State, 398 S. W. 3d 703 (Tex. Crim. App. 2013) 36,38 Glover v. United States, 531 U. S. 198 (2001) 30 Goad v. State, 354 S. W. 3d 443 (Tex. Crim. App. 2011) 14 Gonzalez v. State, 610 S. W. 3d 22 (Tex. Crim. App. 2020) 8 Granger v. State, 3 S. W. 3d 36 (Tex. Crim. App. 1999) 19 Green v. State, 476 S. W. 3d 440 (Tex. Crim. App. 2015) 33 Grey v. State, 298 S. W. 3d 644 (Tex. Crim. App. 2009) 16,17 515
Jury Charges
Hall v. State, 225 S. W. 3d 524 (Tex. Crim. App. 2007) 9 Hamel v. State, 916 S. W. 2d 491 (Tex. Crim. App. 1996) 18,22,31 Hammock v. State, 46 S.W.3d 889 (Tex.Crim.App. 2001) 27 Hart v. State, 667 S.W.3d 774 (Tex.Crim.App. 2023) 30 Hernandez v. State, 631 S. W. 3d 120 (Tex. Crim. App. 2021) 8 Hicks v. State, 372 S. W. 3d 649 (Tex. Crim. App. 2012) 8,13 Hudson v. State, 394 S. W. 3d 522 (Tex. Crim. App. 2013) 17 Hughes v. State, 897 S. W. 2d 285 (Tex. Crim. App. 1994) 6 Humphries v. State, 615 S. W. 2d 737 (Tex. Crim. App. 1981) 8 In the Matter of D.L., 656 S. W. 2d 181 (Tex. App. – San Antonio 1983, no pet.) 25 Jacobsen v. State, 325 S.W.3d 733 (Tex.App.—Austin 2010, no pet.) 34 Jennings v. State, 302 S. W. 3d 306 (Tex. Crim. App. 2010) 2 Johnson aka Kimp v. State, 509 S.W.3d 320 (Tex.Crim.App. 2017) 16 Jordan v. State, 593 S. W. 3d 340 (Tex. Crim. App. 2020) 22 Jourdan v. State, 428 S.W.3d 86 (Tex.Crim.App. 2014) 32 Keeble v. United States, 412 U. S. 205 (1973) 7 th Kenny v. State, 292 S. W. 3d 89 (Tex. App. – Houston [14 Dist.] 2008, pet. ref’d) 25 Kihega v. State, 392 S.W.3d 828 (Tex.App.—Texarkana 2013, no pet.) 17 Kirsch v. State, 357 S. W. 3d 645 (Tex. Crim. App. 2012) 33,34,36 Kuhn v. State, 393 S. W. 3d 519 (Tex. App. – Austin 2013, pet. ref’d) 36 Lane v. State, 151 S.W.3d 188 (Tex.Crim.App. 2004) 16 Lennox v. State, 730 S.W.3d 425 (Tex. Crim. App. 2026), reh'g denied (Mar. 12, 2026) 3,42 Lang v. State, 664 S.W.3d 155 (Tex.Crim.App. 2022) 10 Leza v. State, 351 S. W. 3d 344 (Tex. Crim. App. 2011) 32 Lopez v. State, 343 S. W. 3d 137 (Tex. Crim. App. 2011) 29 Louis v. State, 393 S. W. 3d 246 (Tex. Crim. App. 2012) 26 Loving v. State, 401 S.w.3d 642 (Tex.Crim.App. 2013) 33 Lozano v. State, S. W. 3d 25 (Tex. Crim. App. 2022) 38 Lynch v. State, 643 S. W. 2d 737 (Tex. Crim. App. 1983) 26 Maciel v. State, 631 S. W. 3d 720 (Tex. Crim. App. 2021) 18,19,21 Maciel v. State, 689 S.W.3d 609 (Tex. Crim. App. 2024) 21,39 Malik v. State, 953 S. W. 2d 234 (Tex. Crim. App. 1997) 36 Marshall v. State, 479 S. W. 3d 840 (Tex. Crim. App. 2016) 36,37 Martinez v. State, 775 S. W. 2d 645 (Tex. Crim. App. 1989) 18 Matthews v. State, 708 S. W. 2d 835 (Tex. Crim. App. 1986) 23 McKithan v. State, 324 S. W. 3d 582 (Tex. Crim. App. 2010) 12 McQueen v. State, 781 S.W.2d 600 (Tex.Crim.App. 1989) 35 Medina v. State, 7 S. W. 3d 633 (Tex. Crim. App. 1999) 3 Mendenhall v. State, 77 S. W. 3d 815 (Tex. Crim. App. 2002) 27 Mendez v. State, 545 S. W. 3d 548 (Tex. Crim. App. 2018) 18,30 Miranda v. Arizona, 384 U. S. 436 (1966) 32 Mitchell v. State, 543 S. W. 2d 637 (Tex. Crim. App. 1976) 11-12 Morales v. State, 357 S W 3d 1 (Tex. Crim. App. 2011) 22,23 Neder v. United States, 527 U. S. 1 (1999) 38 Nelson v. State, 149 S.W.3d 206 (Tex.App.—Fort Worth 2004) 27 Nicholson v. State, 682 S.W.3d 238, 245 (Tex. Crim. App. 2024) 37 Niles v. State, 555 S.W.3d 562 (Tex.Crim.App. 2018) 36 O’Brien v. State, 544 S.W.3d 376 (Tex.Crim.App. 2018) 34 516
vii
viii
Jury Charges
Okonkwo v. State, 398 S. W. 3d 689 (Tex. Crim. App. 2013) 26 Ortega v. State, 207 S.W.3d 911 (Tex.App.—Corpus Christi 2006) 12 Oursbourne v. State, 259 S. W. 3d 159 (Tex. Crim. App. 2008) 31 Paredas v. State, 129 S. W. 3d 530 (Tex. Crim. App. 2004) 4 Peavy v. State, 248 S. W. 3d 455 (Tex. App. – Austin 2008, no pet.) 27 Pennington v. State, 54 S. W. 3d 852 (Tex. App. – Fort Worth 2001, pet. ref’d) 20 Phillips v. State, 463 S.W.3d 59 (Tex.Crim.App. 2015) 5 Plummer v. State, 410 S. W. 3d 855 (Tex. Crim. App. 2000) 15 Posey v. State, 966 S. W. 2d 57 (Tex. Crim. App. 1998) 3,18 Price v. State, 457 S.W.3d 437 (Tex.Crim.App. 2015) 34 Pruett v. State, 510 S.W.3d 925 (Tex.Crim.App. 2017 15 Ramos v. State, 636 S.W.3d 646 (Tex.Crim.App. 2021) 34 Rankin v. State, 974 S.W.2d 707 (Tex.Crim.App. 1996), modified on other grounds 974 S.W.2d 707 (Tex.Crim.App. 1998) 28 Rice v. State, 333 S.W.3d 140 (Tex. Crim. App. 2011) 12 Rivera v. State, 948 S. W. 2d 365 (Tex. App. – Beaumont 1997, no pet.) 19,20 Robbins v. State, 717 S. W. 2d 348 (Tex. Crim. App. 1986) 6 Robinson v. State, 377 S. W. 3d 712 (Tex. Crim. App. 2012) 31 Rodriguez v. State, 629 S. W. 3d 229 (Tex. Crim. App. 2021) 19,27 Roy v. State, 509 S. W. 3d 315 (Tex. Crim. App. 2017) 13,14 Ruffins v. State, 666 S.W.3d 636 (Tex.Crim.App. 2023) 3 Safian v. State, 543 S.W.3d 216 (Tex.Crim.App. 2018) 14 Salazar v. State, 284 S. W. 3d 874 (Tex. Crim. App. 2009) 11 Sanchez v. State, 418 S. W. 3d 302 (Tex. App. – Fort Worth 2013, pet. ref’d) 19 Sands v. State, 64 S.W.3d 488 (Tex.App.—Texarkana 2001, no pet.) 27 Sanders v. State, 632 S. W. 2d 346 (Tex. Crim. App. 1982). 22 Sandoval v. State, 665 S.W.3d 496 (Tex.Crim.App. 2022) 17 Schneckcloth v. Bustamonte, 412 U. S. 218 (1973) 31 Serrano v. State, 636 S. W. 3d 717 (Tex. App. – Fort Worth 2021 – pet. ref’d) 10,11,14 Simms v. State, 629 S. W. 3d 128 (Tex. Crim. App. 2021) 12 Smith v. State, 332 S. W. 3d 425 (Tex. Crim. App. 2011) 4 Smith v. State, 676 S. W. 2d 584 (Tex. Crim. App. 1984)(en banc) 19 Smith v. State, 965 S. W. 2d 509 (Tex. Crim. App. 1998) 24 th Sparks v. State, 177 S. W. 3d 127 (Tex. App. – Houston [14 Dist.] 2005, no pet.) 25 State v. Meru, 414 S. W. 3d 159 (Tex. Crim. App. 2013) 11 State v. Ramos, 479 S.W.3d 500 (Tex.App.—El Paso 2015, no pet.) 17 Stefanoff v. State, 78 S. W. 3d 496 (Tex. App. – Austin 2002, pet. ref’d). 21 Storr v. State, 126 S. W. 3d 647 (Tex. App. – Houston [14th Dist.] 2004, pet. ref’d) 30 Sweed v. State, 351 S. W. 3d 63 (Tex. Crim. App. 2011). 8,15 Taylor v. State, 332 S. W. 3d 425 (Tex. Crim. App. 2011). 3 Thompson v. State, 236 S. W. 3d 787 (Tex. Crim. App. 2007) 26 Tolbert v. State, 306 S.W.3d 776 (Tex.Crim.App. 2010) 8 st Tran v. State, 870 S.W.2d 654 (Tex.App.—Houston [1 Dist.] 1994—no pet. 3 Trevino v. State, 100 S. W. 3d 232 (Tex. Crim. App. 2003) 29 Vasquez v. State, 389 S. W. 3d 361 (Tex. Crim. App. 2012) 6,35 Vasquez v. State, 830 S. W. 2d 948 (Tex. Crim. App. 1992) 30 Vega v. State, 394 S. W. 3d 514 (Tex. Crim. App. 2013) 18 Vick v. State, 991 S.W.2d 830 (Tex.Crim.App. 1999) 33 517
Villa v. State, 417 S. W. 3d 455 (Tex. Crim. App. 2014) Vogt v. State, 421 S. W. 3d 233 (Tex. App. – San Antonio 2013, pet. ref’d) Wade v. State, 663 S.W.3d 175 (Tex.Crim.App. 2022) Walters v. State, 247 S. W. 3d 204 (Tex. Crim. App. 2007) Warner v. State, 245 S. W. 3d 458 (Tex. Crim. App. 2008) Washington v. State, 152 S. W. 3d 209 (Tex. App. – Amarillo 2004, no pet.) Wesley v. State, 605 S.W.3d 909 (Tex.App.—Houston [14th Dist.] 2020, no pet.) Williams v. State, 547 S. W. 2d 18 (1977) Williams v. State, No. 03-22-00652-CR, 2024 WL 3165325 (Tex.App.—Austin, June 26, 2024, no pet.)(not yet published) Woodard v. State, 322 S. W. 3d 648 (Tex. Crim. App. 2011). Woodfox v. State, 742 S. W. 2d 408 (Tex. Crim. App. 1987) Wooten v. State, 400 S. W. 3d 601 (Tex. Crim. App. 2013) Wortham v. State, 412 S. W. 3d 552 (Tex. Crim. App. 2013) Young v. State, 341 S. W. 3d 417 (Tex. Crim. App. 2011) Yzaguirre v. State, 394 S.W.3d 526 (Tex.Crim.App. 2013)
26,30 1 15,16 33 36 21 34 6
Zamora v. State, 411 S.W.3d 504 (Tex. Crim. App. 2013)
3, 30
12 3 20 29 9 32 14
Jury Charges
Texas Code of Criminal Procedure Tex. Code Crim. Proc. Art. 36.14 Tex. Code Crim. Proc. Art. 36.15 Tex. Code Crim. Proc. Art. 37.07 Tex. Code Crim. Proc. Art. 37.09 Tex. Code Crim. Proc. Art. 37.14 Tex. Code Crim. Proc. Art. 38.075 Tex. Code Crim. Proc. Art. 38.14 Tex. Code Crim. Proc. Art. 38.22 Tex. Code Crim. Proc. Art. 38.23
1,2,3,5,33,34 2 28 7,8,10,13 17 5 3,5 31 30,31
Tex. Code Crim. Proc. Art. 38.37
28,29
Texas Penal Code Tex. Penal Code §1.07(a)(17)(B) Tex. Penal Code § 2.05 (b) Tex. Penal Code § 6.01(a) Tex. Penal Code § 6.03 Tex. Penal Code § 6.04 Tex. Penal Code §8.02 Tex. Penal Code §8.07(b) Tex. Penal Code § 9.05 Tex. Penal Code § 9.22 Tex. Penal Code § 9.31 Tex. Penal Code § 9.32 Tex. Penal Code § 9.34 Tex. Penal Code § 12.42 (d) Tex. Penal Code § 15.03(b) 518
16 22 19 34 6 26 3 24,25 20 21,22 21,22,23 25 37 5
ix
Tex. Penal Code § 19.02 Tex. Penal Code §19.03(b)(3)
29 10
Jury Charges
x
519
Tex. Penal Code § 21.02 Tex. Penal Code § 22.01 Tex. Penal Code § 22.011(d) Tex. Penal Code § 22.02 (a)(3) Tex. Penal Code § 22.021(d) Tex. Penal Code § 22.06 Tex. Penal Code § 49.07
34 25 25 12 25 25 13
Texas Rules of Evidence Tex. R. Evid. 803(24)
5
Treatises 42 George E. Dix and Robert O. Dawson, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 36.47 (1995, supp. 1998) Wayne R. LaFave and Austin W. Scott, CRIMINAL LAW § 5.4(a) (2d ed. 1986, supp. 1983)
20 20
Constitutional Provisions
Jury Charges
Fifth Amendment of the United States Constitution TEX. CONST. ART. I § 10
520
xi
19, 20 20
I.
Jury Charge Art. 36.14. CHARGE OF COURT. Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts, and in no event shall it be necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge, as herein provided. The requirement that the objections to the court's charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state's counsel, before the reading of the court's charge to the jury. Compliance with the provisions of this Article is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof. In no event shall it be necessary for the defendant to except to the action of the court in over-ruling defendant's exceptions or objections to the charge. Tex. Code Crim. Proc. Art. 36.14 (emphasis added). The trial judge is ultimately responsible for the accuracy of the jury charge and the
accompanying instructions.1 This is a duty to act without any request or objections from the Jury Charges
parties.2 The jury charge is the means by which a judge instructs the jurors on the applicable law. Vogt v. State, 421 S. W. 3d 233, 238-239 (Tex. App. – San Antonio 2013, pet. ref’d). The trial judge must ensure that all of the law that is applicable to the criminal offense that is set out in the indictment or information is incorporated into the jury charge as well as: •
General admonishments;
•
The presumption of innocence;
•
Proof beyond a reasonable doubt;
•
Unanimity of the verdict.3
1
Delgado v. State, 235 S. W. 3d 244, 249 (Tex. Crim. App. 2007). Delgado, 235 S. W. 3d at p. 249. 3 Delgado, 235 S. W. 3d at p. 249. 2
1
521
The purpose of the jury charge, of course, is to inform the jury of the applicable law and guide them in its application to the case. It is not the function of the charge merely to avoid misleading or confusing the jury, it is the function of the charge to lead and prevent confusion. Delgado v. State, 235 S. W. 3d 244, 249 (Tex. Crim. App. 2007). The verdict form is part of the jury charge. Jennings v. State, 302 S. W. 3d 306 (Tex. Crim. App. 2010). II.
Error Preservation Art. 36.15. REQUESTED SPECIAL CHARGES. Before the court reads his charge to the jury, counsel on both sides shall have a reasonable time to present written instructions and ask that they be given to the jury. The requirement that the instructions be in writing is complied with if the instructions are dictated to the court reporter in the presence of the court and the state's counsel, before the reading of the court's charge to the jury. The court shall give or refuse these charges. The defendant may, by a special requested instruction, call the trial court's attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court's charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses….
Jury Charges
When the defendant has leveled objections to the charge or has requested instructions or both, and the court thereafter modifies his charge and rewrites the same and in so doing does not respond to objections or requested charges, or any of them, then the objections or requested charges shall not be deemed to have been waived by the party making or requesting the same, but shall be deemed to continue to have been urged by the party making or requesting the same unless the contrary is shown by the record; no exception by the defendant to the action of the court shall be necessary or required in order to preserve for review the error claimed in the charge. Tex. Code Crim. Proc. Art. 36.15 (emphasis added). The proposed and/or specially requested charge must either be dictated into the record or submitted in writing. Tex. Code Crim. Proc. 36.14 and 36.15. A requested instruction, coupled with statements to the trial judge can be sufficient to apprise the trial judge of the objections and preserve error. Chapman v. State, 921 S. W. 2d 694, 695 (Tex. Crim. App. 1996)(en banc). A defendant’s requested jury instruction need not be flawless, or even correct, in order to call the trial court’s attention to a deficiency in the charge and thereby preserve error. Ex parte Moreno, 245 S. W. 3d 419, 430 (Tex. Crim. App. 2008). The same concept applies to errors in the charge. Francis v. State, 36 S. W. 3d 121, 123 (Tex. Crim. App. 2000). The proposed charge must clearly identify the relief requested, although “magic words” are not required. For example, a request for a defensive charge on self-defense would not alert the court to a request for a charge on defense of a third person. Bennett v. State, 235 S. W. 3d 241, 243
522
2
(Tex. Crim. App. 2007). But, be aware that if you are actively involved in the preparation of the jury charge you might waive all unpreserved error contained therein. Woodard v. State, 322 S. W. 3d 648 (Tex. Crim. App. 2011). Even if defense counsel did not invite error in jury instruction on corroboration of accomplice-witness testimony because error was already in instruction, defendant was judicially estopped from complaining on appeal, based on claim of error being inconsistent with counsel’s prior conduct. Ruffins v. State, 666 S. W. 3d 636 (Tex. Crim. App. 2023). More recently, in Lennox v. State, a forgery case, the court addressed the issue of an omitted portion of the charge pertaining to the § 32.21(e-1) language requiring the jury to determine that the forgery was committed “to obtain or attempt to obtain property or services” and to apply the corresponding value ladder that determines the offense grade. Lennox v. State, 730 S.W.3d 425 (Tex. Crim. App. 2026), reh'g denied (Mar. 12, 2026). The State contended Lennox failed to object or request the charge and therefore it was not preserved. Relying on State v. Green, 682 S.W.3d 253, 275 (Tex. Crim. App. 2024), the Lennox Court held preservation was not required: [a] preservation analysis was not necessary because Green held that subsection (e-1) was an element of the offense if raised at trial. A trial court must instruct on offense elements even absent objection because they are law applicable to the case. Lennox, 730 S.W.3d at 428–29. Further, the Lennox Court held the court of appeals correctly found the omission of subsection (e-1) from the charge was egregiously harmful in that it foreclosed the possibility of a misdemeanor conviction and punishment range. Id., at 430. Trial court’s duty to instruct sua sponte
Jury Charges
III.
A. Age Affecting Criminal Responsibility A court has a duty to sua sponte instruct the jury on age affecting criminal responsibility under Tex. Penal Code § 8.07(b). A jury charge is erroneous if it presents the jury with a much broader chronological perimeter than is permitted by law. Taylor v. State, 332 S. W. 3d 483, 489 (Tex. Crim. App. 2011). B. Accomplice Witness In Texas, a conviction cannot be secured upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc. Art. 38.14. When the evidence permits a rational juror to infer that the witness is a party to the crime in question, it also raises a fact issue as to whether the individual is an accomplice witness and the jury should be so charged. Medina v. State, 7 S. W. 3d 633, 642 (Tex. Crim. App. 1999). The trial court has a duty to sua sponte give an accomplice witness instruction when raised
3
523
by the evidence. It is the law applicable to the case. Posey v. State, 966 S. W. 2d 57, 62 (Tex. Crim. App. 1998); Tex. Code Crim. Proc. Art. 36.14. The definition of accomplice is broad enough to address co-conspirator liability. Zamora v. State, 411 S. W. 3d 504, 506 (Tex. Crim. App. 2013). The purpose of the accomplice witness rule is to ensure that a jury does not consider accomplice evidence unless the jury finds both that the that the accomplice is telling the truth and that other evidence corroborates the accomplice. Tran v. State, 870 S. W. 2d 654, 658-659 (Tex. App. – Houston [1st Dist.] 1994 – no pet.). A proper charge would instruct the jury to disregard the testimony unless the jury believed that it was corroborated. Id. A person is an accomplice if she could be prosecuted for the same offense as the defendant, or a lesser-included-offense. Accomplice witness testimony implicating another person should be viewed with caution. Accomplices have incentives to lie. An accomplice participates before, during, or after the commission of the crime. Blake v. State, 971 S. W. 2d 451 (Tex. Crim. App. 1998). To be entitled to an instruction that a witness was an accomplice as a matter of law, the evidence must leave no doubt that a witness is indeed an accomplice as a matter of law. It is not enough that he was indicted for the same charge, the charge was dismissed, and he testified against her - without concrete evidence that State dismissed the charge in exchange for testimony. Smith v. State, 332 S. W. 3d 425 (Tex. Crim. App. 2011). Jury Charges
A witness is an accomplice as a matter of law: •
If the witness has been charged with the same offense as the defendant or a lesser-included,
•
If the State charges a witness with the same offense but dismisses the charges in exchange for testimony against the defendant,
•
When the evidence is uncontradicted or so one-sided that no reasonable juror could conclude that the witness was not an accomplice.4 The defendant has the right to an accomplice witness instruction if the issue is raised by
the evidence, whether that evidence is weak or strong, unimpeached, or contradicted, and regardless of what the trial court may think about the credibility of the evidence. Cocke v. State, 201 S. W. 3d 744 (Tex. Crim. App. 2006).
4
Ash v. State, 533 S. W. 3d 878 (Tex. Crim. App. 2017); see also Paredas v. State, 129 S. W. 3d 530, 536 (Tex. Crim. App. 2004); and Cyr v. State, 308 S. W. 3d 19, 24-25 (Tex. App. – San Antonio 2009 – no pet.). 524
4
If the evidence presented by the parties is conflicting and it remains unclear whether the witness is an accomplice, the trial court should allow the jury to decide whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term “accomplice.” Druery v. State, 225 S. W. 3d 491, 498 (Tex. Crim. App. 2007). The juvenile exception to the accomplice witness rule has been abolished. Blake v. State, 971 S. W. 2d 425 (Tex. Crim. App. 1998). All credit to John Wright, who recently suggested that use of the term “accomplice” is a comment on the weight of the evidence since it conveys to the jury that the defendant and the witness conspired and worked together to accomplish a task. Even though the term is defined in caselaw, it is not defined in the Penal Code or Code of Criminal Procedure. The term “blameworthy participant” is a less inflammatory definition that also comes from caselaw. See Blake, supra. Alternatively, request that the witness be referred to just by name in the charge. C. Other corroboration required: Solicitation Under Tex. Penal Code § 15.03 (b), a person may not be convicted on the uncorroborated testimony of the person allegedly solicited and unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor’s intent that the other person act on the solicitation. D. Other corroboration required: Jailhouse Snitch Under Tex. Code Crim. Proc. Art. 38.075, the testimony of a jailhouse witness must be Jury Charges
corroborated. The trial court has a duty to so instruct the jury even without a request. Phillips v. State, 463 S. W. 3d 59, 65 (Tex. Crim. App. 2015). A statement made by a defendant may be interpreted as being against that defendant’s interest under 38.075(a), even though such statement may not be legally sufficient, on its own, to corroborate accomplice witness testimony under Tex. Code Crim. Proc. 38.14. Id. Further, nothing in 38.075(a) expressly limits its application to statements against interest that are admissible under Tex. R. Evid. 803 (24). Id. IV.
Abstract Paragraph Abstract paragraphs serve as a glossary to help the jury understand the meaning of concepts
and terms used in the application paragraphs of the charge. Crenshaw v. State, 378 S. W. 3d 460, 466 (Tex. Crim. App. 2012). A. Jury instruction must be supported by the evidence It is error to charge the jury on the full statutory definition of intoxication when the
5
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evidence only supported intoxication by alcohol. Burnett v. State, 541 S. W.3d 77, 84 (Tex. Crim. App. 2017). The trial court must submit to the jury only the portions of the statutory definition of “intoxicated” that are supported by the evidence. Id. A jury charge is erroneous if the definition of intoxication includes a controlled substance, a dangerous drug, or any other substance in the body when the evidence does not support those things. Id. V.
Application paragraph authorizes the conviction It is the responsibility of the trial court to deliver to the jury a written charge setting forth
the law applicable to the case. Tex. Code Crim. Proc. 36.14. Part of that duty includes applying the law to the facts of the case. Burnett v. State, 541 S. W. 3d 77 (Tex. Crim. App. 2017). Application paragraphs apply the pertinent penal law, abstract definitions, and general legal principles to the particular facts and the indictment allegations. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). The failure of the charge to apply the law to the facts is calculated to injure the rights of the defendant. It deprives him of a neutral and unbiased application of the law, leaving that function to the partisan advocacy of opposing counsel in argument. Williams v. State, 547 S. W. 2d 18 (1977). The complete failure to apply the law to the facts of the case is reversible error, even without an objection. Beggs v. State, 597 S. W. 2d 375, 379 (Tex. Crim. App. 1980). The charge must be tailored to the facts presented at the trial. Burnett v. State, 541 S. W. Jury Charges
3d 77 (Tex. Crim. App. 2017). To convict a defendant as a party, the law of parties must be incorporated into the jury charge’s application paragraph, even if the jury charge contains an abstract instruction on the law of parties. Biggins v. State, 824 S.W.2d 179 (Tex.Crim.App. 1992). VI.
Extraneous A trial court is not required to sua sponte include a reasonable doubt instruction in the jury
charge when the State offers evidence of extraneous offenses at the guilt stage of trial; it must be requested. Delgado v. State, 235 S. W. 3d 244 (Tex. Crim. App. 2007). VII.
Concurrent Causation Tex. Penal Code § 6.04 (a) prescribes a narrow set of circumstances in which a defendant
would be entitled to a concurrent causation instruction. It is confined to those circumstances in which “the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.” A criminal defendant remains liable if her conduct was either sufficient 526
6
to have caused the result alone regardless of the concurrent cause, or both causes together were sufficient to cause the result. Robbins v. State, 717 S. W. 2d 348, 351 (Tex. Crim. App. 1986). Under Tex. Penal Code § 6.04, a defendant is entitled to an instruction on concurrent causation when she shows: 1. An agency in addition to the actor was a but-for cause of the result charged, and 2. Some evidence demonstrates her conduct is clearly insufficient to cause the harm and the other, concurrent cause is clearly sufficient to cause the harm.5 A concurrent causation instruction is not appropriate to just deny culpability. Cyr v. State, 665 S W 3d 551 (Tex. Crim. App. 2022). When “but-for” Appellant’s failure to act to protect her child, the child would not have suffered horrific abuse, she was not entitled to a concurrent causation instruction. Id. The harm would not have occurred, if instead of asking the child’s father “to stop hurting the child,” she had removed the children, alerted law enforcement, or otherwise taken action to prevent harm. Id. Appellant’s awareness of the ongoing abuse was provided for in the nature of the offense and is unrelated to causality insofar as it merely contests mental culpability. Id. The jury was required to find the perpetrator’s actions a foreseeable consequence of Appellant’s omission in the recklessness definition. Id.
Jury Charges
5
Hughes v. State, 897 S. W. 2d 285, 297 (Tex. Crim. App. 1994).
7
527
VIII. Lesser-included offenses [I]t is now beyond dispute that the defendant is entitled to an instruction on a lesserincluded offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater . . .Where one of the elements of the offense charged remains in doubt, but the defendant is guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. Keeble v. United States, 412 U. S. 205, 208 (1973). The unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason – its belief that the defendant is guilty of some serious crime and should be punished. Beck v. Alabama, 447 U. S. 625, 642 (1980).
Jury Charges
Vernon's Ann.Texas C.C.P. Art. 37.09 Art. 37.09. Lesser included offense An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.
528
8
If neither side requests a lesser-included instruction, the trial court is not required to submit one.6 A lesser-included-offense is not law applicable to the case absent a request by the defense for its inclusion in the jury charge. Tolbert v. State, 306 S. W. 3d 776, 781 (Tex. Crim. App. 2010). Tex. Code Crim. Proc. Art. 37.09 focuses only on the defendant’s culpability, his conduct, or the harm caused.7 Differences in the level, range, or manner of punishment are irrelevant to that determination.8 Under the plain language of the statute, a lesser-included offense does not require a lesser punishment range.9 It is the jury’s role, not the court’s, to determine whether there is sufficient evidence to support a lesser-included-offense. Sweed v. State, 351 S. W. 3d 63, 69 (Tex. Crim. App. 2011). The trial court is authorized to sua sponte instruct the jury on any lesser-included-offense raised by the evidence. Humphries v. State, 615 S. W. 2d 737, 738 (Tex. Crim. App. 1981). Erroneously including recklessness in the jury charge application paragraph which tracked the statutory language for aggravated assault rather than the indictment was a mere formatting defect because a lesser-included-offense could have been submitted. Gonzalez v. State, 610 S. W. 3d 22 (Tex. Crim. App. 2020). The error would have been avoided if reckless aggravated assault had been included as a stand-alone lesser-included offense. Id A separate offense – even if it is a lesser offense – is not a lesser-included-offense. Hernandez v. State, 631 S. W. 3d 120 (Tex. Crim. App. 2021). A. 37.09(1) and Cognate pleadings Jury Charges
An offense is a lesser-included offense of another offense, under Article 37.09 (1) of the Code of Criminal Procedure, if the indictment for the greater-inclusive offense either: 1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all the elements of the lesser-included may be deduced. Both statutory elements and any descriptive averments alleged in the indictment for the greater-inclusive offense should be compared to the statutory elements of the lesser offense. If a descriptive averment in the indictment for the greater offense is identical to an element of the lesser offense, or if an element of the greater offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense, this should be factored into the lesser-included-offense analysis in asking whether all of the 6
Delgado, 235 S. W. 3d 244, 250 (Tex. Crim. App. 2007). Hicks v. State, 372 S. W. 3d 649, 654 (Tex. Crim. App. 2012). 8 Id. 9 Hicks at pp. 654-655. 7
9
529
elements of the lesser offense are contained within the allegations of the greater offense. Ex parte Watson, 306 S. W. 3d 259, 273 (Tex. Crim. App. 2009). [Emphasis supplied]. Under the cognate-pleadings test, the statutory elements of an offense and non-statutory allegations in the indictment combine to describe what the defendant is charged with. Fraser v. State, 583 S. W. 3d 564, 567-568 (Tex. Crim. App. 2019). Consequently, as long as all of the elements of a purported lesser-included-offense are contained (or deducible from what is contained) in the indictment, then the purported lesser-included-offense can be said to be a lesserincluded of the indicted offense. Id. This allows a defendant a broader ability to obtain the submission of a lesser-included-offense than if he were limited to the statutory elements of the charged offense. Id. The cognate-pleadings test allows a court to look to non-statutory elements only for the charged offense. Id. Lesser offenses are examined only for their statutory elements. Id. Under the “cognate pleadings” approach to determining lesser-included offenses, “the elements and the facts alleged in the charging instrument are used to find lesser-included offenses, therefore, the elements of the lesser offense do not have to be plead [in the indictment charging the greater inclusive offense] if they can be deduced from the facts contained in the indictment.”10 In Hall, aggravated assault was found not to be a lesser-included-offense of murder in that case. The determination should be made by comparing the elements of the greater offense, as the state Jury Charges
has pled it in the indictment, with the elements of the statute that defines the lesser offense. Hall, at p. 531. [Emphasis supplied]. When the greater offense may be committed in more than one manner, the manner that the State alleges will determine the availability of the lesser-included offenses. Id. The evidence presented at trial is not considered in determining what constitutes a lesser-included offense. Only the charging instrument is considered. A defendant is entitled to the lesser only where the proof for the charged offense includes the proof necessary to establish the lesser-included-offense. Wortham v. State, 412 S. W. 3d 552, 557 (Tex. Crim. App. 2013). In Wortham, the defendant was entitled to a lesser-included instruction on reckless and criminally negligent injury to a child because his statement to the detective negated the culpable mental states of intentional and knowing. 10
530
Hall v. State, 225 S. W. 3d 524 (Tex. Crim. App. 2007).
10
B. The cognate-pleadings test does not apply to the manslaughter exclusion in the felonymurder statute A person commits an offense if he: commits or attempts to commit a felony other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Tex. Penal Code § 19.02 (b) (3). In assessing whether a particular felony is a lesser-included-offense of manslaughter for the purpose of the felony-murder statute’s manslaughter exclusion, a court must consider the offense of manslaughter only by its statutory elements. Fraser v. State, 583 S. W. 3d 564 (Tex. Crim. App. 2019). Because the victim’s status as a child is necessarily an element of injury to a child and child endangerment, and that element is not within (or deducible from) the statutory elements of manslaughter, the offenses of injury to a child and child endangerment are never lesserincluded-offenses for purposes of the felony-murder statute’s manslaughter exclusion. Id. C. First Step. What can be deduced from an indictment? Functional Equivalence The first step in the lesser-included offense analysis which asks – are the elements of the lesser-included-offense included within the proof necessary to establish the charged offense’s elements - is a legal question and so does not depend on the trial evidence.11 If there are allegations in the indictment that are not identical to the elements of the lesser offense, the functionalJury Charges
equivalence test is applied to determine whether the elements of the lesser offense are functionally the same or less than those required to prove the charged offense. Cavazos v. State, 382 S. W. 3d 377, 383-384 (Tex. Crim. App. 2012). When utilizing functional equivalence, the court examines the elements of the lesser offense and decides whether they are functionally the same or less than required to prove the charged offense. Lang v. State, 664 S. W. 3d 155, 164 (Tex. Crim. App. 2022). The requested lesser offense must meet the requirements of at least one of the four types of lesser offenses described in Tex. Code Of Crim. Proc. Art. 37.09. Under Tex. Code Crim. Proc. 37.09 (1), an offense is a lesser-included offense if the indictment for the greater offense either –
11
Serrano v. State, 636 S. W. 3d 717, 721 (Tex. App. – Fort Worth 2021 – pet. ref’d).
10
531
1. Alleges all the lesser-included elements, or 2. Alleges elements plus facts (including descriptive averments, such as non-statutory manner and means that are meant only to provide notice) from which the lesser-included offense elements can be deduced.12 Then the greater offense’s statutory elements (and any other descriptive averments alleged in the indictment) are compared to the lesser-offense’s statutory elements.13 The elements of the lesser-included offense do not have to be pleaded in the indictment if they can be deduced from the facts alleged in the indictment. State v. Meru, 414 S. W.3d 159, 162 (Tex. Crim. App. 2013). The functional-equivalence concept can be employed in the lesserincluded-offense analysis. Id. [Emphasis supplied.] Appellate courts rely on common experience and societal norms to interpret what can be deduced from an indictment.14 Assault by committing bodily injury is a lesser-included-offense of aggravated assault by inflicting bodily injury but not of aggravated assault by threat with a deadly weapon.15 Criminal trespass may not be a lesser-included-offense of burglary of a habitation. Meru, supra. Criminal trespass would qualify as a lesser-included offense if the indictment alleges facts that include the full-body entry into the habitation by the defendant. A defendant who committed a full-body entry and wants the opportunity for an instruction on criminal trespass can file a motion to quash the indictment for lack of particularity. This would force the State to refile the indictment, specifying the type of entry it alleges the defendant committed and allow either party to request an instruction Jury Charges
on criminal trespass. State v. Meru, 414 S. W. 3d 159, 164 (Tex. Crim. App. 2013). A habitation inherently provides notice that entry is forbidden. An indictment’s allegation of habitation is functionally equivalent to an allegation that notice that entry into the habitation is forbidden establishing an element of criminal trespass. Salazar v. State, 284 S. W. 3d 874, 878 (Tex. Crim. App. 2009). Statutory definitions can be part of the assessment of whether there is a lesser-includedoffense. Indecency with a child may be a lesser-included-offense of aggravated sexual assault of a child, if predicated upon the same act. Evans v. State, 299 S. W. 3d 138, 143 (Tex. Crim. App. 12
Serrano at pp. 721-722. Id. 14 Farrakhan v. State, 247 S. W. 3d 720 (Tex. Crim. App. 2008); Rice v. State, 333 s. W. 3d140 (Tex. Crim. App. 2011). 15 Mitchell v. State, 543 S. W. 2d 637 (Tex. Crim. App. 1976). 13
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11
2009). The definition of sexual contact required for an indecency conviction contains the language with intent to arouse or gratify the sexual desire of any person, but that is implied in the higher offense.. Id. An allegation of physical force and violence is not functionally equivalent to an allegation of physical contact. McKithan v. State, 324 S. W. 3d 582 (Tex. Crim. App. 2010). Also, in McKithan, causing bodily injury by kicking is not functionally equivalent to an allegation that the defendant would know or should have reasonably believed that the complainant would regard this contact as offensive or provocative, so the defendant was not entitled to a lesser on a Class C under Tex. Penal Code § 22.02 (a)(3). The offense of fleeing or attempting to elude law enforcement was not a lesser-includedoffense of evading detention by use of a motor vehicle. Farrakhan v. State, 247 S. W. 3d 720 (Tex. Crim. App. 2008). Reckless driving was not a lesser-included-offense of aggravated assault with a deadly weapon, i.e., a motor vehicle as alleged in the indictment. Rice v. State, 333 S. W. 3d 140 (Tex. Crim. App. 2011). Resisting arrest can be a lesser included instruction of assault on a public servant. Ortega v. State, 207 S. W. 3d 911 (Tex. App. – Corpus Christi-Edinburg – 2006). Manslaughter and criminally negligent homicide were not lesser-included-offenses of felony murder. Williams v. State, No.03-22-00652-CR, 2024 WL 3165325 (Tex. App. – Austin June 26, 2024 – no pet.)(not yet published). Because the mental states in the charging instrument did not relate to Appellant’s mental state regarding “causing death” but rather the act that caused death and Jury Charges
to the commission of the felony, manslaughter and criminally negligent homicide both include an element not included in the offense charged – a mental state for causing the resulting death. Id. Trial court’s refusal to instruct on deadly conduct as a lesser-included offense to aggravated assault violated Appellant’s right to have a valid lesser-included offense submitted to the jury for consideration. Simms v. State, 629 S. W. 3d 218(Tex. Crim. App. 2021). If the jury had believed Appellant’s testimony that he was speeding but that the actual cause of the accident was his falling asleep or passing out, then it could have rationally found him guilty of deadly conduct for his reckless speeding prior to losing consciousness, but not guilty of aggravated assault because the act of causing the victim’s serious bodily injury (by veering into oncoming traffic) was committed unconsciously and involuntarily. Id.
12
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D. Element vs. Manner and Means The use of language in an indictment that is not required by the statute does not transform such language into additional elements of the charged offense. Ex parte Watson, 306 S. W. 3d 259, 264 (Tex. Crim. App. 2009). In Watson, failure-to-yield right of way was found not to be a lesserincluded-offense of intoxication assault (even though failure to yield right of way was alleged in the indictment). This is because the facts required to prove the lesser-included-offense of failure to yield right of way include several elements that are not the same as, or less than, those required to establish the alleged greater offense of intoxication assault. While the use of language in the indictment might be helpful in providing notice to appellant and later in proving to the jury how appellant was supposed to have caused the bodily injury in question, it does not increase or change the number of elements for the greater offense beyond that defined in the statute itself. Watson, at pp. 264-265. The intoxication assault statute merely requires a showing that the defendant caused serious bodily injury to another by reason of his intoxicated state. Tex. Penal Code § 49.07. Thus, the particular manner in which the injury was caused is not an element of the intoxication-assault offense and descriptive language in the indictment (pertaining to the type of accident or mistake involved) is not considered in the first step of the lesser-included-offense analysis. Watson, at 265. E. 37.09(3) Less Culpable Mental State Proof of a higher level of culpability constitutes proof of a lower level of culpability.16 In Jury Charges
Hicks, defendant’s testimony that he accidently shot the victim raised evidence to support the lesser-included-offense of reckless aggravated assault. The State was entitled to have the jury so charged. Manslaughter can be a lesser-included-offense of murder. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App 2012). Causing death while consciously disregarding a risk that death will occur differs from intending to cause serious bodily injury with a resulting death only in the respect that a less culpable mental state establishes its commission. Id. Defendant’s inability to remember causing the death of a passenger in another car after losing consciousness while driving did not bar him from an instruction on manslaughter as a lesser-included-offense. Roy v. State, 509 S. W. 3d 315 (Tex. Crim. App. 2017).
16
534
Hicks v. State, 372 S. W. 3d 649, 653 (Tex. Crim. App. 2012).
13
As a matter of law, deadly conduct is a lesser-included-offense of aggravated assault alleged by the use or exhibition of a motor vehicle as a deadly weapon. Safian v. State, 543 S. W. 3d 216 (Tex. Crim. App. 2018). The elements of attempted capital murder are functionally equivalent to the elements of solicitation of capital murder. Bien v. State, 550 S. W. 3d 180 (Tex. Crim. App. 2018). Indecent exposure is a lesser-included-offense of indecency with a child by exposure. Ex parte Amador, 326 S. W. 3d 202 (Tex. Crim. App. 2010). F. Second Step. Is there evidence in the record from which the jury could find the defendant guilty only of the lesser-included-offense?17 An instruction on a lesser-included offense is required only when there is some admitted evidence directly germane to that offense.18 An instruction is required if more than a scintilla of evidence establishes that the lesser-included offense is a valid, rational alternative to the charged offense. Id. All of the evidence is considered without regard to the evidence’s credibility or potential contradictions or conflicts. Id. Although little evidence is needed to trigger an instruction, the relevant evidence must affirmatively raise the lesser-included-offense and rebut or negate an element of the greater offense. Id. All of the evidence admitted at trial is considered, not just the evidence presented by the defendant. Goad v. State, 354 S. W. 3d 443, 446 (Tex. Crim. App. 2011). Inclusion of the law of parties in the abstract paragraph is to be considered in determining whether evidence warranted jury instruction on lesser included offense. Yzaguirre v. State, 394 S. W. 3d 526, 528 (Tex. Crim. App. 2013). Jury Charges
G. Rational Alternative There are two ways that the evidence may indicate that the defendant is guilty only of the lesser-included offense: (1) Evidence may have been raised that refutes or negates other evidence establishing the greater offense, or (2) The evidence presented on whatever the contested issue is, may be subject to two different interpretations, in which case the jury should be instructed on both inferences.19
17
Serrano v. State, 636 S. W. 3d 717, 721 (Tex. App. – Fort Worth 2021 – pet. ref’d). Roy v. State, 509 S. W. 3d 315, 317 (Tex. Crim. App. 2017). 19 Cavazos v. State, 382 S. W. 3d 377, 385 (Tex. Crim. App. 2012). 18
14
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In determining whether a defendant is entitled to an instruction on a lesser-included-offense the issue is not whether a rational jury could have found the defendant guilty only of the greater offense, but rather a jury could have reasonably interpreted the record in such a way that it could find the defendant guilty only of the lesser-included-offense. Wade v. State, 663 S. W. 3d 175, 190 (Tex. Crim. App. 2022). H. A factual dispute or conflicting interpretations can raise a lesser-included-offense When the evidence raising the lesser-included offense casts doubt upon the greater offense, it provides the fact finder with a rational alternative of voting for the lesser-included-offense.20 The standard that there must be some evidence directly germane to the lesser-included-offense may be established if some evidence refutes or negates other evidence establishing the greater offense or if the evidence presented is subject to different interpretations. Sweed v. State, 351 S. W. 3d 63, 68 (Tex. Crim. App. 2009). [Emphasis supplied]. The “guilty only” requirement of Step Two is met if there is affirmative evidence of a factual dispute that raises the lesser offense and rebuts or negates other evidence establishing the greater offense. Chavez v. State, 666 S. W. 3d 772, 776 (Tex. Crim. App. 2023). It does not matter if the factual dispute is based on direct or circumstantial evidence so long as a rational jury could interpret the record in a way in which it could find the evidence guilty only of the lesser included offense. Id. However, the mere disbelief of evidence is insufficient – the disbelief of evidence is not evidence. Id. A not guilty plea is not evidence. Id. Jury Charges
I. Deadly weapons The definition of a deadly weapon includes any instrument that threatens or causes serious bodily injury, even when the instrument is not inherently or intentionally deadly. Plummer v. State, 410 S. W. 3d 855, 858 (Tex. Crim. App. 2000). When someone ignites combustible material to intentionally burn down a house in a residential neighborhood, a deadly weapon finding may appropriately attach to the arson conviction when the fire is capable of causing death or serious bodily injury. Pruett v. State, 510 S. W. 3d 925, 929 (Tex. Crim. App. 2017). The instrument in question must be analyzed according to its inherently dangerous capability during the crime and without any windfall delivered through the deeds of third-party Good Samaritans. Id.
20
536
Forest v. State, 989 S. W. 2d 365, 367 (Tex. Crim. App. 1999).
15
The State was not required to present evidence establishing that Appellant actually intended to use the drill to cause serious bodily injury or death, but it was at least required, under Tex. Penal Code § 1.07 (a)(17)(B), to present some minimal evidence that the defendant intended a violent use of the drill – one that would be at least capable of causing serious bodily injury or death. Flores v. State, 620 S. W. 3d 154,160 (Tex. Crim. App. 2021). Therefore, cordless drill wrapped in plastic with sleeve placed over drill bit that defendant pretended was a gun was not a deadly weapon for basis of elevating second-degree robbery to first-degree aggravated robbery. Id. A motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury. Drichas v. State, 175 S. W. 3d 795 (Tex. Crim. App. 2005). If an object, including a hand or a foot, does actual damage, it can be considered a deadly weapon. Lane v. State, 151 S. W. 3d 188, 192 (Tex. Crim. App. 2004). A butter knife can be a deadly weapon. Johnson a/k/a Kimp v. State, 509 S. W. 3d 320, 323 (Tex. Crim. App. 2017). It is easy to see how a jury might not be willing to find that a person’s hand is a deadly weapon, despite all of the evidence in favor of that proposition. Grey v. State, 298 S. W. 3d 644, 650 (Tex. Crim. App. 2009). Evidence that deadly force was not used is raised by evidence that the alleged deadly weapon was not capable of causing death or serious bodily injury in the manner of its use or intended use. Ferrel v. State, 55 S. W. 3d 586, 591-592 (Tex. Crim. App. 2001). J. Serious bodily injury There was more than a scintilla of evidence from which the jury could have rationally Jury Charges
doubted that Appellant caused serious bodily injury by biting off the victim’s earlobe. Appellant’s lay opinion testimony negating the seriousness of the injury, combined with other evidence supporting his defensive theory, amounted to more than a scintilla of evidence that could have provided the jury with a valid, rational alternative to the greater offense of aggravated assault. Therefore, the trial court erred in denying Appellant’s lesser-included-offense of assault. Wade v. State, 663 S. W. 3d 175 (Tex. Crim. App. 2022). K. Second Step does not apply to the State. When requested by the State, submission of a lesser-included-offense does not require some evidence in the record that would permit a jury rationally to find that the defendant, if guilty, is guilty only of the lesser offense. Grey v. State, 298 S. W. 3d 644 (Tex. Crim. App. 2009). If the State can abandon the charged offense in favor of a lesser-included offense, there is no logical
16
537
reason why the State could not abandon its unqualified pursuit of the charged offense in favor of a qualified pursuit that includes the prosecution of a lesser-included-offense in the alternative. Grey at p. 650. But convicting a defendant on an unindicted, lesser-but-not-included offense is a due process violation and reversal was mandated. State v. Ramos, 479 S. W. 3d 500, 509 (Tex. App. – El Paso 2015, no pet.). L. Transitional instructions between the greater and the lesser offense and between the lesser included offenses When greater and lesser grades of an offense are charged, the court must upon the defendant’s request give the jury the benefit of the doubt instruction that, if the evidence leaves a reasonable doubt of the grade or degree of the offense, such doubt should be resolved in favor of the defendant. Benavides v. State, 763 S. W. 2d 587, 589 (Tex. App. – Corpus Christi 1988, pet. ref’d). A defendant is entitled to a jury instruction giving him the benefit of a reasonable doubt between the greater and the lesser-included-offenses. Kihega v. State, 392 S.W.3d 828, 835 (Tex. App. –Texarkana 2013,no pet.). Where an offense consists of different degrees, a charge giving the defendant the benefit of a reasonable doubt between the degrees would be proper and it would be error to refuse such a charge when requested. Id. In Texas, a jury must be required to agree on an acquittal of the greater offense before it can return a conviction on a lesser-included-offense.21 This is because a conviction on a lesserJury Charges
included-offense constitutes an acquittal of the greater offense – absent a jurisdictional defect. Tex. Code Crim. Proc. 37.14. M. Lie-Between lesser-included offenses A defendant is not entitled to a jury instruction on a lesser-included-offense if the evidence on which the defendant is relying raises another offense that “lies between” the requested and charged offenses. Hudson v. State, 394 S. W. 3d 522 (Tex. Crim. App. 2013).
21
538
Sandoval v. State, 665 S. W. 3d 496, 537 (Tex. Crim. App. 2022).
17
IX.
Defensive issues The evidence at trial must be viewed in the light most favorable to the submission of a
defensive instruction.22 A defendant is entitled to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of how the trial court views the credibility of the defense.23 A defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true. Maciel, at p.723. In ascertaining whether an individual is entitled to a defensive instruction, a reasonable person test is used. Martinez v. State, 775 S. W. 2d 645, 647 (Tex. Crim. App. 1989). The courts have no duty to instruct the jury on unrequested defensive issues. Posey v. State, 966 S. W. 2d 57 (Tex. Crim. App. 2007). Posey is not applied when the trial court submits the issue, but it contains errors. Vega v. State, 394 S. W. 3d 514, 519-520 (Tex. Crim. App. 2013). The separate defenses are independent. A defendant is entitled to the submission of every defensive issue raised by the evidence, even if the defense may be inconsistent with other defenses. Hamel v. State, 916 S. W. 2d 491, 493 (Tex. Crim. App. 1996). The submission of one defense does not foreclose the availability of another defense. Bowen v. State, 162 S. W. 3d 226, 230 (Tex. Crim. App. 2005). It is error to fail to instruct the jury on the applicability of a defensive issue to a lesser-included-offense. Burd v. State, 404 S. W. 3d 64, 70 (Tex. App. – Houston [1st Dist.] 2013, no pet.). Trial court has a duty to charge a defensive issue correctly
Jury Charges
A.
A judge has a duty to instruct correctly when the court sua sponte instructs on a defensive issue. Mendez v. State, 545 S. W. 3d 548 (Tex. Crim. App. 2018). Having undertaken to charge the jury on the defensive issue, the trial court signals that is the law applicable to the case, and any flaw on the charge amounts to an error in the charge. Barrera v. State, 982 S. W. 2d 415, 416 (Tex. Crim. App. 1998). B.
Justification defenses Justification defenses are not limited to intentional or knowing crimes. Alonzo v. State, 353
S. W. 3d 778 (Tex. Crim. App. 2011). 22
Contreras v. State, 312 S. W. 3d 566, 576 (Tex. Crim. App. 2010) cert. denied, Contreras v. Texas, 131 S. Ct. 427 (2010). 23 Maciel v. State, 631 S. W. 3d 720, 723 (Tex. Crim. App. 2021).
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C.
Voluntariness Before criminal responsibility may be imposed, the actor’s conduct must include either a
voluntary act or an omission when the defendant was capable of action. Farmer v. State, 411 S. W. 3d 901, 905-906 (Tex. Crim. App. 2013). Tex. Penal Code 6.01 (a), refers only to one’s own physical body movements and that movement is considered involuntary only if that movement is the nonvolitional result of someone else’s act, was set in motion by some independent non-human force, was caused by a physical reflex or convulsion, or was the product of unconsciousness, hypnosis, or other nonvolitional impetus. Id. Ergo, mistakenly taking the wrong prescription medicine, when it was known he was taking a prescription medicine, and was prescribed medications with intoxicating effects, was insufficient to entitle a defendant to a jury-charge instruction on voluntariness. Id. D.
Confession and Avoidance Confession and avoidance is a judicially imposed requirement that requires defendants who
assert a justification defense to admit, or at a minimum to not deny, the charged conduct. Rodriguez v. State, 629 S. W. 3d 229, 231 (Tex. Crim. App. 2021). Logically, one cannot both justify and deny conduct. Id. The evidence need not unequivocally show that the defendant engaged in the conduct. Id. A court has a duty to look at the evidence in the light most favorable to the requested instruction. Rodriguez at p. 233. The jury should be responsible for gauging the credibility and veracity of the defensive evidence. Granger v. State, 3 S. W. 3d 36, 40 (Tex. Crim. App. 1999). Jury Charges
Consequently, in a case of conflicting evidence and competing inferences, the instruction should be given. Rodriguez v. State, 629 S. W. 3d 229, 233 (Tex. Crim. App. 2021). The confession-and-avoidance doctrine does not require an explicit admission from the defendant that she committed the crime. Maciel v. State, 631 S. W. 3d 720, 725 (Tex. Crim. App. 2021). A defendant’s defensive evidence, not an outright admission, must admit to the conduct. Id A defendant can impliedly admit the charged offense through the eyewitnesses ’testimony. Sanchez v. State, 418 S. W. 3d 302, 309 (Tex. App. – Fort Worth 2013 – pet. ref’d). The testimony of witnesses other than the defendant can raise a defensive issue. The only issue is whether, if that testimony is believed, the defensive issue is raised. Smith v. State, 676 S. W. 2d 584, 587 (Tex. Crim. App. 1984)(en banc). A jury instruction may contain defensive instructions despite the fact that the defendant did not testify in order to preserve the Fifth Amendment right against self-incrimination. Rivera v.
540
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State, 948 S. W. 2d 365, 371 (Tex. App. – Beaumont 1997, no pet.). A defendant is not required to concede the State’s version of events to obtain an instruction. Gamino v. State, 537 S. W. 3d 507, 512 (Tex. Crim. App. 2017). Predicating a defendant’s right to a jury instruction suggests a mild form of compulsion implicating TEX. CONST. ART. I § 10 and the Fifth Amendment of the United States Constitution. Woodfox v. State, 742 S. W. 2d 408, 410 (Tex. Crim. App. 1987). The evidence to support these defenses can even be raised by the cross-examination of a State’s witness. Rivera v. State, 948 S.W. 2d 365, 370-371 (Tex. App. – Beaumont 1997 – no pet.). E. Necessity The defense of necessity is a justification for engaging in conduct that otherwise would be criminal conduct. 42 George E. Dix and Robert O. Dawson, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 36.47 (1995, supp. 1998). If the harm which will result from compliance with the law is greater than harm which will result from the violation of it, then the defendant is justified in his conduct. Wayne R. LaFave and Austin W. Scott, CRIMINAL LAW § 5.4(a) (2d ed. 1986, supp. 1983). Tex. Penal Code § 9.22 provides for the necessity defense when: •
The actor reasonably believes the conduct is necessary to avoid imminent harm,
•
The desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the
•
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conduct, A legislative purpose to exclude the justification claimed for the conduct does not otherwise appear. The defendant must present evidence that she reasonably believed that a specific harm was imminent. Pennington v. State, 54 S. W. 3d 852, 857 (Tex. App. – Fort Worth 2001, pet. ref’d). The unavailability of legal alternatives is not a requirement of the defense of necessity; it may be relevant not only as to the reasonableness of the actor’s conduct, but also as to whether the conduct was immediately necessary and whether harm was imminent. Pennington, pp. 857-859. A defendant’s belief that the conduct was immediately necessary to avoid imminent harm may be deemed unreasonable as a matter of law, if undisputed facts demonstrate a complete absence of immediate necessity or imminent harm. Brazelton v. State, 947 S. W. 2d 644, 648-649 (Tex. App.
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– Fort Worth 1997, no pet.). When criminal conduct is no longer necessary to avoid imminent harm, the necessity defense evaporates. For the harm to be imminent, there must be an emergency situation requiring an immediate action or a split-second decision – this situation is viewed from the standpoint of the accused. Washington v. State, 152 S. W. 3d 209, 212 (Tex. App. – Amarillo 2004, no pet.). A defendant must next establish facts indicating a reasonable belief that the criminal conduct was immediately necessary to avoid the imminent harm. Stefanoff v. State, 78 S. W. 3d 496, 501 (Tex. App. – Austin 2002, pet. ref’d). If the harm avoided was clearly greater than the harm actually caused (that is, the offense), the actor’s conduct causing the offense is justified and he is exonerated. Boushey v. State, 804 S. W. 2d 148, 151 (Tex. App. – Corpus Christi-Edinburg 1991, pet. ref’d) cert. denied Boushey v. Texas, 502 U. S. 912 (1991). Necessity is a confession and avoidance defense. Appellant’s admission (in a DWI case) that she was trying to move the vehicle, even if the vehicle didn’t “go”, satisfies the confession-andavoidance requirement, regardless of Appellant’s personal definition of whether or not she legally “operated” the vehicle. The Court held it was error to deny Maciel a jury instruction on necessity when she testified that her brother got sick when driving and she tried to get the car out of the middle of the road to the closest parking lot, and remanded to the intermediate court for a harm analysis. Maciel v. State, 631 S. W. 3d 720 (Tex. Crim. App. 2021). Because the court of appeals Jury Charges
erred on remand in reevaluating whether Maciel was entitled to the necessity defense, and erroneously decided she was not entitled to, the Court of Criminal Appeals granted PDR. Maciel v. State, 689 S.W.3d 609, 614 (Tex. Crim. App. 2024)(holding that as previously held by the Court in Maciel, 631 S.W.3d 720, Maciel was entitled to a necessity instruction). Further, Maciel need only show “some harm,” which the Court held was satisfied. Id. F. Self-Defense Tex. Penal Code §§ 9.31 and 9.32 provide for the defensive issues of self-defense. A person may be justified in using force against another when he reasonably believes it to be immediately necessary to protect oneself from the other person’s use or attempted use of force. Deadly force is justified when immediately necessary to protect against the use or attempted use of unlawful deadly force. 1. Multiple Assailants The rule of multiple assailants is essentially an application of the law of parties to the 542
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defendant’s assailants. Dickey v. State, 22 S. W. 3d 490, 493 (Tex. Crim. App. 1999)(Keller J. concurring). When the evidence, viewed from the defendant’s standpoint shows an attack or threatened attack by more than one assailant, the defendant is entitled to a multiple assailant’s instruction. Franks v. State, 688 S. W. 2d 863, 868 (Tex. Crim. App. 1985). Even though the deceased did not personally attack, defendant may be entitled to a multiple assailant’s instruction. Sanders v. State, 632 S. W. 2d 346 (Tex. Crim. App. 1982). If there is evidence of more assailants than one, the charge must inform the jury that the accused can defend against either, and it is error to require the jury to believe or find that there was more than one assailant attacking the accused. Jordan v. State, 593 S. W. 3d 340 (Tex. Crim. App. 2020). The issue is whether Appellant had a reasonable apprehension of actual or apparent danger from a group of assailants that included the individual hurt. Id. F2. Apparent Danger The evidence does not have to show that the victim was actually using or attempting to use unlawful deadly force because a person has the right to defend himself from apparent danger as he reasonably apprehends it. Hamel v. State, 916 S. W. 2d 491, 493 (Tex. Crim. App. 1996). F3. Statutory Presumption of the reasonable belief as to the necessity of the use of deadly force In 2007, the legislature added provisions to the self-defense statute that allow a person to Jury Charges
stand his ground, and added a presumption that his conduct was reasonable in certain circumstances. Morales v. State, 357 S. W. 3d 1, 7 (Tex. Crim. App. 2011). Tex. Penal Code § 2.05 (b), requires a presumption that favors the defendant be submitted to the jury if there is sufficient evidence of the facts that give rise to the presumption unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact. This is commonly referred to as the “Castle Doctrine” and the presumption is found in Texas Penal Code § 9.31(a). Recently, in Cuevas v. State, the Court grappled with an objected-to erroneously included instruction on the presumption-of-reasonableness. Cuevas v. State, No. PD-0144-25, 2026 WL 899833 (Tex. Crim. App. Apr. 2, 2026)(to be published). The court of appeals had found that it was error for the presumption of reasonableness instruction to be included in the charge, but that its inclusion was harmless. The Court of Criminal Appeals agreed that the presumption of reasonableness instruction was not raised by the evidence, and therefore it was not the law
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applicable to the case and it was error to include in the charge. Because it was objected to, the Court of Criminal Appeals applied the Almanza factors to determine the error was harmful. Cuevas, 2026 WL 899833, at *7 (holding “in the context of Almanza, ‘the presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred.’”). The Cuevas Court found the error to be harmful in light of the State’s repeated erroneous arguments: “But there is one way to misuse the presumption-of-reasonableness instruction that could cause serious harm: if the presumption were conflated with the ability to act in self-defense at all, that misconstruction could be devastating to a defendant's self-defense claim. As we shall see in discussing other factors, the prosecutor in the present case repeatedly advocated this misconstruction to the jury.” Id. F4. Limitations on Self-Defense a.
Retreat
Before 2007, the self-defense statute imposed a requirement that “a reasonable person in the actor’s situation would not have retreated.” Tex. Penal Code § 9.32 (a)(2) (West 2006). This retreat provision was deleted in 2007. In 2007, the legislature made significant amendments to the selfdefense statute, including provisions that allow a person, under certain circumstances, to stand his ground while defending himself, and that, under certain circumstances create a presumption that Jury Charges
the defendant’s conduct was reasonable. Morales v. State, 357 S. W. 3d 1, 2, 4-5 (Tex. Crim. App. 2011). When certain provisions apply – the finder of fact may not consider whether the actor failed to retreat, Tex. Penal Code § 9.32 (c) (deadly force) : •
A person who has a right to be present at the location,
•
Who has not provoked the person against who deadly force was used,
•
Who is not engaged in criminal activity at the time deadly force is used,
•
is not required to retreat before using deadly force as described by this section.
Also with the 2007 amendments, the Legislature added provisions that required the jury to presume that deadly force was reasonable under certain circumstances. Morales v. State, 357 S W 3d 1, 6 (Tex. Crim. App. 2011). Under Texas Penal Code § 9.32 (d), the belief that deadly force is presumed to be reasonable when the actor knew (or had reason to believe) that the person against whom deadly force is used and in such case the failure to retreat may not be considered: • 544
unlawfully and forcefully entered occupied home, vehicle, or business/employment.
23
•
Attempted to remove the actor from above,
•
Committed (or attempted to commit) aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
In situations where the Legislature has not specifically negated a duty to retreat, the prosecutor can argue the failure to retreat as a relevant factor in determining the defendant’s mental state and the reasonableness of the conduct, but the jury cannot be instructed regarding retreat because such instruction would be a comment on the weight of the evidence. Morales v. State, 357 S. W. 3d 1, 6 (Tex. Crim. App. 2011). No language in the current self-defense statute calls for determining, as a general matter, whether a duty to retreat exists. Id. [Emphasis supplied]. b.
Provoking the Difficulty
This is one of the most misunderstood concepts in self-defense law. It actually is rarely raised by the evidence and is often inappropriately included in the jury charge – unfairly gutting the accused’s right to self-defense. If the facts do not support giving the charge on provoking the difficulty, then the provocation instruction must not be submitted to the jury. Including it in the jury charge would constitute an unwarranted limitation on the right of self-defense. Matthews v. State, 708 S. W. 2d 835, 837 (Tex. Crim. App. 1986). Even though a person does an act, even a wrongful act, which does indeed provoke an attack by another, if he had no intent that the act would have such an effect as part of a larger plan of doing the victim harm, he does not lose his right to self-defense. Elizondo v. State, 487 S. W. 3d 185 (Tex. Crim. App. 2016). Jury Charges
An instruction on provocation should only be given when there is sufficient evidence from which a rational jury could find every element of provocation beyond a reasonable doubt. Smith v. State, 965 S. W. 2d 509 (Tex. Crim. App. 1998). There is a three-prong test for the State to be entitled to this limitation on self-defense. An instruction on provocation should only be given when there is sufficient evidence from which a rational jury could find every element of provocation beyond a reasonable doubt. A. The defendant did the act or used some words that provoked the attack on him, B. That such acts or words were reasonably calculated to provoke the attack, and C. That the act was done or the words used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other. Id. The inclusion of the provoking-the-difficulty charge, if it is unsupported by the facts, constitutes an unwarranted limitation on the right of self-defense and is trial error. Engel v. State, 630 S. W. 3d 192, 199 (Tex. Crim. App. – Eastland 2020, no pet.).
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The issue of provoking the difficulty does not arise if the evidence is merely conflicting as to who made the first attack. Dirck v. State, 579 S. W. 2d 198, 203 (Tex. Crim. App. 1979). There has to be evidence raised from which a rational jury could find beyond a reasonable doubt that the Appellant possessed an intent to provoke so that he would have the guise of self-defense as a pretext for harming the complainant. Elizondo v. State, 487 S. W. 3d 185, 201 (Tex. Crim. App. 2016). It is inconceivable that a defendant would orchestrate a set of events to kill someone he did not know, so this limitation is generally inapplicable to scenarios in which the decedent is a stranger. Id. When given, the provocation instruction should make clear that it is the State’s burden to prove provocation beyond a reasonable doubt. Id. c.
Innocent Bystander
Even though an actor is justified in using force or deadly force under Texas Penal Code §9.05, if he recklessly kills or injures a bystander, the Chapter Nine justification is unavailable. The provision was intended to narrow the scope of certain justification defenses in a prosecution for the reckless injury or killing of an innocent person. Brunson v. State, 764 S. W. 2d 888, 891 (Tex. App. – Austin 1989, pet. ref’d). When the evidence raises the issue whether an innocent third person was killed recklessly during a defendant’s use of self-defense, the trial court must first charge the jury on the law of appellant’s right to self-defense and then further charge the jury on the limitation concerning the reckless injury or death of an innocent third person. Sparks v. State, 177 S. W. 3d 127 (Tex. App. – Houston [14th Dist.] 2005 – no pet.). A jury must make a finding Jury Charges
of reckless action first and be given the opportunity to express its reasonable doubt to restrict the right of self-defense in a given situation. In the Matter of D.L., 656 S. W. 2d 181, 183 (Tex. App. – San Antonio 1983, no pet.) (Butts J. concurring). If an instruction applying § 9.05 is improperly given it would authorize conviction for conduct that does not constitute a criminal offense. Id. But even assuming that the complainant was an innocent third person, his bystander status alone would not preclude the giving of a self-defense instruction. Dugar v. State, 464 S. W. 3d 811, 819 (Tex. App. – Houston [14th Dist.] 2015, pet. ref’d). Whether a person acts recklessly is a determination that can only be made by the finder of fact. Id. G.
Consent as defense to assault
Consent is not an element of assault; it is set up as a defense under Tex. Penal Code § 22.06. The complaining witness’s effective consent is a defense to prosecution under Tex. Penal Code § 22.01 (assault) if the conduct did not threaten or inflict serious bodily injury. Where the complainant testified as to an incident of “love bites,” the defendant was entitled to have the jury 546
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instructed on the defense of consent. The “love bites” incident satisfied the elements of assault that were outlined in the submitted jury instructions. Bufkin v. State, 207 S. W. 3d 779, 784 (Tex. Crim. App. 2006). H.
Texas Penal Code § 9.34: Protection of Life or Health
Under Texas Penal Code § 9.34, a person is justified in using force, but not deadly force, when and to the degree he reasonably believes that the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself. Both this defense and the defense of necessity share the common element of “immediate necessity.” Kenny v. State, 292 S. W. 3d 89, 100 (Tex. App. – Houston [14th Dist.] 2008, pet. ref’d). I. Medical Care It is a defense to the prosecution of Sexual Assault of a Child (Texas Penal Code §22.011(d)) and Aggravated Sexual Assault of a Child (Texas Penal Code §22.021(d)) that the conduct constituted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor. In Cornet v. State, 359 S. W. 3d 217 (Tex. Crim. App. 2012), it was error to fail to instruct the jury on the medical care defense to digital penetration. It is not limited to parents or medical professionsls in the Code.
•
It is the nature of the conduct, not the nature of the actor.
•
It can also be raised by “mere” inspections. Cornet at p. 221-223.
Jury Charges
•
The medical care defense is a confession and avoidance defense. Villa v. State, 417 S.W.3d 455 (Tex.Crim.App. 2013). Counsel’s single failure to request such an instruction on the issue can render him ineffective. There can be no conceivable reason not to request an instruction that would allow the jury to give effect to the sole defense. Villa v. State, 417 S. W. 3d 455 (Tex. Crim. App. 2013). J.
General Defenses to Criminal Responsibility 1.
Mistake of Fact
Tex. Penal Code §8.02, provides for a mistake of fact instruction – it is a defense that the defendant through mistake formed a reasonable belief about something if that negated the kind of culpability required for the offense. A transferred intent provision in the jury charge, Tex. Penal Code § 6.04 (b), triggers entitlement to a mistake of fact instruction. Thompson v. State, 236 S. W. 3d 787 (Tex. Crim. App. 2007). A mistake-of-fact instruction is needed to negate the transferred
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intent instruction if the jury believed that the Appellant had a reasonable mistaken belief about the type of injury that he was inflicting in an injury to a child prosecution. Louis v. State, 393 S. W. 3d 246 (Tex. Crim. App. 2012). Mistake-of-fact instructions are appropriate in: •
Injury to a child – temperature of the water. Beggs v. State, 597 S. W. 2d 375 (Tex. Crim. App. 1980).
•
Forgery. Okonkwo v. State, 398 S. W. 3d 689 (Tex. Crim. App. 2013). But be aware that a mistake of fact instruction can, in certain circumstances, lower the state’s burden of proof because the mistake must be reasonable. Id.
•
Unauthorized use of motor vehicle prosecutions. Lynch v. State, 643 S. W. 2d 737 (Tex. Crim. App. 1983) (en banc). In cases where the charge covers the culpable mental state involving the act, but does not cover attendant circumstances such as the mistaken belief that a third party who gave consent for the use of the vehicle was the owner of the vehicle, it is error to fail to give a mistake of fact instruction. Sands v. State, 64 S. W. 3d 488, 496 (Tex. App. – Texarkana 2001, no pet.).
•
FTSRA prosecution. If there is evidence from which a jury could conclude that the Appellant reasonably believed that he was not involved in an accident that injured or killed someone, or that he reasonably believed that he was not involved in an accident that was reasonably likely to injure or kill someone. Curry v. State, 622 S. W. 3d 302 (Tex. Crim.
Jury Charges
App. 2019). A person is not entitled to a mistake-of-fact instruction on strict liability offenses such as practicing law without permission from the State Bar. Celis v. State, 416 S. W. 3d 419 (Tex. Crim. App. 2013). A mistake-of-fact instruction was not warranted in a trial for aggravated assault since even if defendant reasonably believed that his actions would cause only “simple” bodily injury, his mistake about the severity of the victim’s injuries did not negate any elemental culpable mental state. Rodriguez v. State, 538 S. W. 3d 623, 631 (Tex. Crim. App. 2018). In a prosecution for aggravated assault, the State need only prove that the defendant harbored a culpable mental state as to the underlying assault. Id. 2.
Involuntary Intoxication
Involuntary intoxication is a defense to criminal culpability when it is shown that: 1. The accused has exercised no independent action or volition in taking the intoxicant, and 548
27
2. As a result of a severe mental defect caused by involuntary intoxication did not know his conduct was wrong. Mendenhall v. State, 77 S. W. 3d 815, 818 (Tex. Crim. App. 2002). Speculation that maybe someone put something in her wine does not support a involuntary intoxication charge. Peavy v. State, 248 S. W. 3d 455, 462-463 (Tex. App. – Austin 2008, no pet.). Involuntary intoxication is no defense in an intoxication offense. Nelson v. State, 149 S. W. 3d 206, 211 (Tex. App. – Fort Worth 2004) X.
Limiting Instructions If a defendant does not request a limiting instruction under Tex. R. Evid. 105 at the time
the evidence is admitted, then the trial court has no obligation to limit the use of that evidence later in the jury charge. Hammock v. State, 46 S. W. 3d 889, 894 (Tex. Crim. App. 2001). The decision of whether to request a limiting instruction concerning the proper use of certain evidence, including extraneous offenses, may be a matter of trial strategy and the trial court has no duty to give any limiting instruction sua sponte on the use of extraneous offenses or the burden of proof on those offenses in the guilt-phase jury charge.24 Limiting instructions curb the improper use of evidence.25 The jury must not be allowed to convict the appellant for the extraneous offense.26 During the punishment phase Tex. Code of Criminal Procedure 37.07 is “the law applicable” to all non-capital punishment proceedings.27 The trial court must sua sponte instruct Jury Charges
the jury at the punishment phase concerning that law, including the fact that the State must prove any extraneous offense beyond a reasonable doubt.28 A.
Issue: Limiting instructions and Tex. Code of Crim. Proc. 38.37 Just as there are differing types of sexual assault offenses, there are differing reasons in
those cases for admission of extraneous offenses. The Code of Criminal Procedure allows admission of extraneous acts in cases of certain (primarily child sex offenses). However, there are two separate reasons (aka limiting language) for admission contained in Section 1 vs. Section 2. 24
Delgado, supra at p. 254. Rankin v. State, 974 S. W. 2d 707, 712 (Tex. Crim. App. 1996), modified on other grounds, 974 S. W. 2d 707 (Tex. Crim. App. 1998). 26 Distefano v. State, 532 S. W. 3d 25, 39 (Tex. App. – Houston [14th Dist.] 2016, pet. ref’d). 27 Delgado, supra at p. 252. 28 Id. 25
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Sec. 1: (b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including: (1) the state of mind of the defendant and the child; and (2) the previous and subsequent relationship between the defendant and the child. Vs. Sec. 2: (b) Notwithstanding Rules 404 and 405, Texas Rules of Evidence, and subject to Section 2-a, evidence that the defendant has committed a separate offense described by Subsection (a)(1) or (2) may be admitted in the trial of an alleged offense described by Subsection (a)(1) or (2) for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Tex. Code Crim. Proc. Art. 38.37. By the plain reading of the statute, Tex. Code Crim. Proc. Art. 38.37 § 1 (b) would apply to offenses involving the same complainant as opposed to Tex. Code Crim. Proc. Art. 38.37 § 2 (b), which would refer to offenses involving a different complainant. This should result in different limiting instructions. Extraneous offenses involving a different complainant are admissible as propensity evidence whereas with the same complainant are admissible to show the state of mind of the defendant and the complainant and the previous and subsequent relationship between the defendant Jury Charges
and the child. It is our opinion that the limiting instruction (both oral and written) should be tailored accordingly, based on the type of extraneous witnesses. XI. Sudden Passion Sudden Passion is a punishment stage instruction. Tex. Penal Code § 19.02 (d). To justify a jury instruction on sudden passion, the record must at least minimally support an inference that: 1) The defendant acted under the immediate influence of a passion such as terror, anger, rage, or resentment; 2) His sudden passion was induced by some provocation by the deceased or another acting with him, which provocation would commonly produce such a passion in a person of ordinary temper; 3) He committed the murder before regaining his capacity for cool reflection; and 550
29
4) A causal connection existed between the provocation, passion, and homicide. Wooten v. State, 400 S. W. 3d 601 (Tex. Crim. App. 2013). A jury’s rejection of self-defense at the guilt-innocence phase does not preclude submission of a sudden passion issue at the punishment phase. Trevino v. State, 100 S. W. 3d 232, 242-243 (Tex. Crim. App. 2003). XII. Ineffective Assistance and Jury Charges The reviewing court can find counsel is ineffective when no reasonable trial strategy could justify counsel’s acts or omissions. Lopez v. State, 343 S. W. 3d 137, 143 (Tex. Crim. App. 2011). Jury charges are one area where ineffective assistance of counsel can be established on direct appeal without a record setting forth trial counsel’s strategy (or appreciable lack thereof). Counsel’s failure to obtain punishment-phase instruction on voluntary safe release of victim was found to be ineffective. Storr v. State, 126 S. W. 3d 647, 653 (Tex. App. – Houston [14th Dist.] 2004 – pet. ref’d). It is inconceivable that there is a trial strategy for not requesting an instruction that would reduce the range of punishment. Storr at p. 653. The failure to seek an instruction on necessity was not an acceptable trial strategy. Vasquez v. State, 830 S. W. 2d 948, 950 n. 3 (Tex. Crim. App. 1992). No imaginable strategic motivation for trial counsel’s failure to request a medical care defensive instruction. Villa v. State, 417 S. W. 3d 455, 463 (Tex. Crim. App. 2014). There is no conceivable defensive strategy under which a Jury Charges
defendant would desire a self-defense acquittal for the offense of murder and yet have no need or desire for a self-defense acquittal for a lesser-included-offense. Mendez v. State, 545 S. W. 3d 548, 556 (Tex. Crim. App. 2018). It is difficult to envision that any competent attorney would reasonably forego an accomplice witness instruction based on his theory of the case. Zamora v. State, 411 S. W. 3d 504, 506 (Tex. Crim. App. 2013). The review must focus on the evidence supporting the instruction rather than the evidence not supporting it. Storr at p. 653. If an increased prison term flows from an error, prejudice has been established. Glover v. United States, 531 U. S. 198, 200 (2001). However, see the recent Texas Court of Criminal Appeals case of Hart v. State, 667 S. W. 3d 774, 782 (Tex. Crim. App. 2023). It appears to call the foregoing holdings into question. It found that counsel’s decision to forego a sudden passion instruction, which would have reduced the range of punishment might be the result of a reasonable trial strategy. Id.
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XIII. 38.23 Under Tex. Code Crim. Proc. 38.23, if the evidence raises a fact issue as to whether the evidence to be used against a defendant was obtained unlawfully the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard such evidence. The trial court has a duty to give a 38.23 instruction sua sponte if three conditions are met: 1) Evidence heard by the jury raises an issue of fact; 2) The evidence on that fact is affirmatively contested; and 3) The contested factual issue is material to the lawfulness of the challenged conduct. Oursbourne v. State, 259 S. W. 3d 159, 173-174 (Tex. Crim. App. 2008). There has to be a fact issue. A legal question does not entitle a defendant to a 38.23 instruction. For example, what would a reasonable officer believe? Hamal v. State, 390 S. W. 3d 302 (Tex. Crim. App. 2012). If there is a dispute about whether a police officer was genuinely mistaken, or was not telling the truth, or about a material historical fact upon which his assertion of probable cause or reasonable suspicion hinges, an instruction under 38.23 would certainly be appropriate. Robinson v. State, 377 S. W. 3d 712 (Tex. Crim. App. 2012). Issues regarding the officer’s credibility – as well as a conflict between the officer’s testimony both on redirect and cross examination, photographs, and dash cam videos - created a factual dispute entitling Appellant to a 38.23 instruction. Chambers v. State, 663 S. W. 3d 1 (Tex. Jury Charges
Crim. App. 2022). No matter when the photographs were taken, they still raise a fact issue about what the officer could see, which raises a question about whether he was mistaken or being truthful. Id. If a defendant raises a fact issue regarding whether a traffic stop violated the Constitution or the laws of the United States or Texas, the trial court should instruct the jury to disregard any evidence it finds was unconstitutionally or illegally obtained. Chambers v. State, 663 S. W. 3d 1, 4 (Tex. Crim. App. 2022). XIV. Statements and confessions Texas law provides for jury instructions on three different types of “voluntariness issues”: 1) A general instruction on voluntariness under Tex. Code Crim. Proc. 38.22§ 6; 2) A warnings instruction under Tex. Code Crim. Proc. 38.22 § 7; and 3) A specific voluntariness instruction for constitutional due process claims under Tex. Code Crim. Proc. 38.23. 552
31
A statement is obtained in violation of constitutional due process only if the statement is causally related to coercive governmental misconduct. Colorado v. Connelly, 479 U. S. 157, 163164 (1986). Coercive government misconduct renders a confession involuntary if the defendant’s will has been overborne and his capacity for self-determination critically impaired. Schneckcloth v. Bustamonte, 412 U. S. 218, 225-226 (1973). The requested instruction must include a requirement (before excluding the confession from consideration) that the jury find that the issue believed to make the confession involuntary reduced the appellant to such a condition of physical and mental impairment such as to render such admission, if any, not wholly voluntary. Contreras v. State, 312 S. W. 3d 566, 576 (Tex. Crim. App. 2010), cert. denied, Contreras v. Texas, 131 S. Ct. 427 (2010). The failure of law enforcement to honor the invocation of rights under Miranda29 is not itself a violation of the United States Constitution and cannot be the basis for the invocation of 38.23. Id. XV.
Unanimity
Double jeopardy and jury unanimity strands of jurisprudence are intertwined. Davis v. State, 313 S. W. 3d 317, 342 (Tex. Crim. App. 2010). Even when the State is not required to elect it is the trial court’s responsibility to craft a charge to ensure that the jury’s verdict will be unanimous based on the specific evidence presented in the case. Cosio v. State, 353 S. W. 3d 766 (Tex. Crim. App. 2011). •
Jury Charges
Non-unanimity may occur when: The State presents evidence demonstrating the repetition of the same criminal conduct, but the actual results of the conduct differed; •
Defendant committed the charged offense on multiple but separate occasions;
•
The State charges one offense and presents evidence of an offense that was committed at a different time, and that violated a different provision of the same criminal statute. Id.
Jury is not required to be unanimous, in a sex offender registration case, on whether defendant failed to report the change of address before or after the move. Young v. State, 341 S. W. 3d 417 (Tex. Crim. App. 2011). The jury is not required to be unanimous as to whether the defendant is guilty as a party or as the principal. Leza v. State, 351 S. W. 3d 344 (Tex. Crim. App. 2011).
29
Miranda v. Arizona, 384 U. S. 436 (1966).
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A defendant is entitled to a unanimous jury verdict. It is error to submit to the jury two separate offenses in the disjunctive. Francis v. State, 36 S. W. 3d 121, 125 (Tex. Crim. App. 2000). A jury is not required to reach unanimity with respect to whether the defendant penetrated with his penis or his finger. Jourdan v. State, 428 S. W. 3d 86 (Tex. Crim. App. 2014). Nonconsensual penetration of a single orifice of the same victim during the same transaction constitutes but one offense, regardless of the various manner and means by which the penetration occurs. Jourdan v. State, 428 S. W. 3d 86 (Tex. Crim. App. 2014). Double jeopardy protections do not preclude prosecution on charge of aggravated sexual assault by causing child victim’s sexual organ to contact defendant’s mouth after acquittal on separate offense of aggravated sexual assault by penetrating victim’s female sexual organ by defendant’s sexual organ during same criminal transaction. Vick v. State, 991 S. W. 2d 830, 833 (Tex. Crim. App. 1999). The commission of each prohibited act determines how many convictions may be had for a particular course of conduct. Loving v. State, 401 S. W. 3d 642, 649 (Tex. Crim. App. 2013). Nothing prohibits a single capital murder indictment from containing alternate underlying offenses that are the same statutory offense but with a different victim or different methods of commission, so long as the same victim is alleged with respect to the predicate murder. Davis v. State, 313 S. W. 3d 317 (Tex. Crim. App. 2010). Jury Charges
Most recently, in Floyd v. State, 714 S.W.3d 9, 10 (Tex. Crim. App. 2024), reh'g denied (Jan. 22, 2025), the Court addressed a jury unanimity issue presented by the holding of the intermediate court of appeals of whether aggravated robbery by threat and aggravated robbery bodily injury are different methods of committing a single offense and therefore do not require a special jury unanimity instruction. Id, at 12. (granting review on its own motion, the court held the court of appeals did not err in holding that the charge did not have to include a special unanimity instruction). In so holding, the Court reiterated that ‘[o]ur double jeopardy jurisprudence is ‘closely intertwined’ with our jury-unanimity jurisprudence” relied on its earlier opinion in Cooper v. State, 430 S.W.3d 426, 427 (Tex. Crim. App. 2014) wherein the Court held separate convictions for both aggravated robbery by causing bodily injury and aggravated robbery by threat to the same victims in a single robbery violated double jeopardy. Id. (citing Cooper, supra, and holding these alternate theories or manner and means are the same for double jeopardy and therefore the same for jury unanimity as well). Further, in Floyd, the Court took the opportunity to provide the rationale behind 554
33
the holding in Cooper and explained the unique gravamen of the offense of robbery, an assaultive offense, hinges on the unit of prosecution for robbery, i.e., the victim. Id. (explaining “the gravamen of robbery offenses, including aggravated robbery, is the defendant's assaultive conduct against each victim.”). XVI. Comment on the Weight of the Evidence Special, non-statutory instructions, even when they relate to statutory offenses or defenses, generally have no place in the jury charge. Walters v. State, 247 S. W. 3d 204, 211 (Tex. Crim. App. 2007). Generally, neither the State nor the defense is entitled to a special instruction if that instruction: 1. Is not grounded in the Penal Code; 2. Is covered by the general charge to the jury; and 3. Focuses the jury’s attention on a specific type of evidence that may support an element of an offense or a defense. Id. An instruction that essentially echoes witness testimony is exactly the type of instruction that constitutes a comment on the weight of the evidence. Green v. State, 476 S. W. 3d 440 (Tex. Crim. App. 2015). The trial court should not defined terms that are undefined in the applicable statute, like “penetration” and “female sexual organ.” Id. Definitions for terms that are not statutorily defined are not considered to be the application law under Tex. Code Crim. Proc. 36.14. It is impermissible for the court to define those terms in Jury Charges
the jury instructions. Non-statutory instructions, even when they are neutral and related to statutory offenses or defenses, generally have no place in the jury charge. Walters v. State, 247 S. W. 3d 204, 214 (Tex. Crim. App. 2007). A jury instruction defining the word “operate” in a DWI prosecution was not warranted. Kirsch v State, 357 S. W. 3d 645, 652 (Tex. Crim. App. 2012). The Penal Code does not define the word “operating”. Kirsch v. State, 357 S. W. 3d 645 (Tex. Crim. App. 2012). Failure to preserve error is not a proper basis to decline to address whether the trial court improperly commented on the weight of the evidence. Id. Despite the legal accuracy of the definition of “operating”, it improperly singles out a specific type of evidence and tells the jury that it might infer an element of the crime from that evidence. Id. The jury should have been free to assign that term any meaning which is acceptable in common parlance. Id. In a drug possession case, a proposed joint possession instruction and mere presence instruction constitute improper comments on the weight of the evidence and should not be included
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in the jury charge. De La Torres v. State, 583 S. W. 3d 613 (Tex. Crim. App. 2019). To ensure compliance with Tex. Code Crim. Proc. 36.14, a trial court should avoid including non-statutory instructions in the charge because such instructions frequently constitute impermissible comments on the weight of the evidence. Id. XVII. Culpable mental states. Tex. Penal Code § 6.03 sets out the culpable mental states (intentionally, knowingly, recklessly, and criminal negligently), and the conduct elements, (nature of the conduct, result of the conduct, and the circumstances surrounding the conduct).30 The scope of culpable mental states is limited by the type of offense.31 In order to constitute a crime, the act must be accompanied by the mens rea.32 Tex. Penal Code § 21.02 defines the offense of continuing sexual abuse in terms of multiple violations of other penal laws.33“ In a jury charge, the language in regard to the culpable mental state must be tailored to the conduct elements of the offense.”34 When specific acts are criminalized because of their very nature, a culpable mental state must apply to committing the act itself.35 Sexual intercourse is not an inherently culpable act.36 Continuous sexual abuse of a child does not have a result-of-conduct element and it is not a result-of-conduct type of offense.37 A trial court errs when, in the jury charge, it fails to limit the language in regard to the applicable culpable mental state to the appropriate conduct element.38 Jury Charges
Where otherwise innocent behavior is criminalized because of the circumstances under which it is done, a culpable mental state is required to those surrounding circumstances.39 Without the requirement that an actor be aware of the circumstances surrounding his conduct, the offense is effectively a strict liability offense.40 30
Cook v. State, 884 S. W. 2d 485, 487 (Tex. Crim. App. 1994). Price v. State, 457 S. W. 3d 437, 441 (Tex. Crim. App. 2015). 32 Cook v. State, at p. 487. 33 Jacobsen v. State, 325 S. W. 3d 733, 738 (Tex. App. – Austin 2010, no pet.). 34 O’Brien v. State, 544 S. W. 3d 376, 386 (Tex. Crim. App. 2018). 35 Wesley v. State, 605 S. W. 3d 909, 917 (Tex. App. – Houston [14th Dist.] 2020, no pet.). 36 Ramos v. State, 636 S. W. 3d 646, 657 (Tex. Crim. App. 2021). 37 Id. 38 Holloway, 621 S.W.3d at p. 757. 39 McQueen v. State, 781 S. W. 2d 600, 603 (Tex. Crim. App. 1989). 40 McQueen at p. 604 referring to cases with a culpable mental state of circumstances surrounding the conduct. 31
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A. Culpable mental states and the application paragraph An application paragraph that omits the culpable mental state, will render that charge fundamentally defective and require reversal - even if the trial court’s charge to the jury properly includes the alleged culpable mental state in the abstract or definitional part of the charge.41 To hold otherwise, “could lead to the destruction of our jury system.”42 Because the application paragraph specifies the factual circumstances under which the jury should convict or acquit, it is the heart and soul of the jury charge.43 Pending on PDR now: There are four culpable mental states defined in the Penal Code: intent, knowledge, recklessness, and criminal negligence. TEX. PENAL CODE ANN. § 6.03. The scope of those culpable mental states is limited by the type of offense, which, as explained in Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994), depends on the “conduct element.” Id. There are three conduct elements: (1) nature of conduct; (2) result of conduct; and (3) the circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). The Court of Criminal Appeals has granted the State’s PDR in Jaimes v. State, 708 S.W.3d 279, 285 (Tex. App. - Amarillo 2024, pet. granted), and indecency with a child case, where the court of appeals reversed and remanded for charge error and “some harm,” finding the trial court had erroneously included the full statutory definitions of “intentionally” and “knowingly” in the charge without tailoring them to the nature of conduct. The Court has granted PDR to determine if Cook Jury Charges
v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) should be …overruled to the extent it holds that failing to limit the mental state definitions to the right conduct-element is error even when the jury charge otherwise leaves no doubt what the mental state requires? The Court also granted review of the following question: Should failure to limit the abstract definition result in some harm in the absence of anyone telling jurors they could convict on something less than the offense requires?
41
Doyle v. State, 631 S. W. 2d 732, 737 (Tex. Crim. App. 1982) (op. on rehearing). Id. 43 Vasquez v. State, 389 S. W. 3d 361, 367 (Tex. Crim. App. 2012). 42
36
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B.
Determining what elements the culpable mental state applies to: In Nicholson v. State, the Court recently addressed what elements the culpable mental state
applies to in the Evading Arrest or Detention statute. Nicholson v. State, 682 S.W.3d 238, 242 (Tex. Crim. App. 2024). The applicable statute, Tex. Penal Code § 38.04(a) provides: A person commits an offense if he intentionally flees from a person he knows is a peace officer or federal special investigator attempting lawfully to arrest or detain him. Id. Specifically, the question addressed by the Court was “…whether the person must know that the law enforcement officer is attempting to lawfully arrest or detain him.” Id., at 242. The Court noted the text of the statute was ambiguous because there were several interpretations as to how the word “knows” distributes throughout the sentence. Id., at 24243. Therefore, the court explained it was necessary to look to the legislative intent. In this regard, the Court held it would lead to absurd results if the defendant was required to know that the attempted arrest was lawful. Therefore, the Court held that a person need only know that the detaining or arresting officer is a peace officer. Id. Because the jury charge failed to include the element that Nicholson knew the officer was attempting to arrest him, he was egregiously harmed such that reversing his conviction or evasion of arrest was necessary. Id., at 245. XVIII. Abuse of Discretion Standard of Review Jury Charges
The review of jury charges is subject to an abuse of discretion standard of review. Gasper v. State, 327 S. W. 3d 349, 355 (Tex. App. – Texarkana 2010 – no pet.). The evidence is reviewed in the light most favorable to the defense. Bufkin v. State, 207 S. W. 3d 779, 781 (Tex. Crim. App. 2006). XIX.
Almanza The plurality should take the time to look at the inequality of Almanza and overrule it. Analysis under Almanza has resulted in uneven rulings because the factors used to distinguish between harm and egregious harm are difficult to decipher. The worse feature of the Almanza harm analysis is that it is so unfair to defendants, especially in light of how we treat the State in similar situations. The State does not have to show egregious harm, or even some harm, the State does not have to show harm at all under Malik v. State, 953 S. W. 2d 234 (Tex. Crim. App. 1997), the State was bestowed with the hypothetically correct jury charge. Malik created the hypothetically correct jury charge so that the State does not suffer when there is an erroneous jury instruction, so why should the defendant be treated differently and be given the almost impossible task of showing egregious harm from the same
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error. It would be more equitable to do away with the enigma of Almanza and treat all jury charge error under the ‘some harm’ standard. Gelinas v. State, 398 S. W. 3d 703, 713-714 (Tex. Crim. App. 2013) (Meyers, J. dissenting). For further criticisms of Almanza, please see Judge Newell’s concurrence in Do v. State, 634 S. W. 3d 883 (Tex. Crim. App. 2021) (Newell J concurring) stating: •
No other area of the law in which the party’s preservation of error dictates the character of error at issue such that it changes the applicable standard of harm.
•
Almanza gets it backwards.
•
At no point should the preservation of a particular complaint determine the character of the error at issue and the standard of harm associated with that error. Appellate courts review potential jury charge error in a two-step process. It must first be
determined if the charge is erroneous. If it is, the level of harm is contingent on whether the error was preserved. Kirsch v. State, 357 S. W. 3d 645, 649 (Tex. Crim. App. 2012). When error is preserved by timely objection, the record must only show “some harm” to mandate reversal, unobjected to jury charge error requires reversal only if it resulted in “egregious harm.” Kuhn v. State, 393 S. W. 3d 519, 524 (Tex. App. – Austin 2013, pet. ref’d). Neither party bears the burden to show harm. Marshall v. State, 479 S. W. 3d 840, 843 (Tex. Crim. App, 2016). Under Almanza harm is shown by reviewing: Jury Charges
(1) The entire jury charge; (2) The state of the evidence; (3) The jury arguments; and (4) If applicable, any other relevant information as revealed by the record as a whole. There is no burden of proof on appeal to show harm. Warner v. State, 245 S. W. 3d 458, 464 (Tex. Crim. App. 2008). If there is grave doubt as to harmlessness, the reviewing court must reverse. Burnett v. State, 88 S. W. 3d 633, 637-638 (Tex. Crim. App. 2002). The failure to include a jury instruction on an element of the offense included within the charging instrument amounts to jury charge error subject to a harm analysis. Niles v. State, 555 S. W. 3d 562 (Tex. Crim. App. 2018). The omission of an element of an offense is not like the giving of a defective “reasonable doubt” instruction. Id. Only the latter vitiates all of the jury’s findings and produces consequences that are necessarily unquantifiable and indeterminate. Id. If a punishment-phase jury charge fails to properly track the language in the habitual-offender statute, under Tex. Penal Code § 12.42 (d), by mis-stating the statute’s sentencing requirement, the
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resulting error should be treated as jury-charge error and subject to a harm analysis. Bell v. State, 635 S. W. 3d 641 (Tex. Crim. App. 2021). The absence of a defensive instruction in a confession-and-avoidance defense is generally harmful because its omission leaves the jury without a vehicle by which to acquit a defendant who has admitted to all of the elements of the offense. Cornet v. State, 417 S. W.3d 446, 451 (Tex. Crim. App. 2013). A. Some Harm “Some harm” means actual harm and not merely a theoretical complaint. Cornet v. State, 417 S. W. 3d 446, 449 (Tex. Crim. App. 2013). Some harm means any harm regardless of degree. Arline v. State, 721 S. W. 2d 348, 351 (Tex. Crim. App. 1986). Recently, the Court of Criminal Appeals applied the four Almanza factors to the erroneous denial of a necessity instruction. Maciel v. State, 689 S.W.3d 609, 614 (Tex. Crim. App. 2024). Looking at factor number one, the entirety of the jury charge, the Court held it weighed in favor of finding some harm in that the charge did not instruct on any justification defenses, and only asked the jury to consider whether Maciel was guilty of driving while intoxicated without determining whether Maciel’s intoxicated driving was legally justified by necessity. Id., at 616. The second factor, the state of the evidence, also weighed in favor of finding harm because much Jury Charges
of the evidence concerned the fact Maciel operated the vehicle “for the sole purpose of attempting to safely move it from the middle of the road.” Id., at 617. In considering the arguments of the parties, the court noted necessity was not argued by counsel for the obvious reason that no necessity instruction was given. However, Maciel did ask the jury to consider justification in her argument: “Even if you do believe that [Appellant operated the vehicle], you can also still consider the motive. She wasn't trying to operate the vehicle to drive it. She was trying to operate the vehicle to get it off the road. That matters. It should matter. It does matter.” Id., at 618. Considering all the factors the Court held the denial of the necessity charge amounted to some harm, and that “[w]hile reasonable minds may differ, it was for the jury, not the trial court, to decide whether Appellant reasonably believed that operating the vehicle while intoxicated was immediately necessary to avoid imminent danger.” Id., at 619.
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B. Egregious harm Egregious error affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Marshall v. State, 479 S. W. 3d 840 (Tex. Crim. App. 2016). It is a difficult standard to meet. Id. See e.g., Gelinas v. State, 398 S. W. 3d 703 (Tex. Crim. App. 2013)(it is not enough to show egregious harm that the jury charge states the exact opposite of what the law is); Lozano v. State, S. W. 3d 25 (Tex. Crim. App. 2022)(Appellant was not egregiously harmed by erroneous self-defense instructions when he was not entitled to deadly force and self-defense instructions.). A jury charge sufficiently required the jury to find bodily injury by requiring it to find impeding normal breathing as that is per se bodily injury. Id. A record that demonstrates that jury charge error resulted in egregious harm will, a fortiori, also demonstrate that the error resulted in at least some harm. Casanova v. State, 383 S. W. 3d 530, 540 (Tex. Crim. App. 2012). More recently, in Alkayyali v. State, 713 S.W.3d 780 (Tex. Crim. App. 2025), the Court found egregious harm where the application paragraph of the jury charge failed to instruct the jury on the causation element of a murder charge. Alkayyali was charged with the murder of his wife under Texas Penal Code 19.02(b)(1) and 19.02(b)(2). The recently wedded Alkayyali and his wife started having problems in their marriage when Moussa arrived in Texas from Jordan. They had an argument and agreed to divorce – but Moussa was screaming during the argument and Alkayyali tried to cover her mouth. The next morning, they argued again it became physical. He pushed her Jury Charges
and she screamed. When he tried to cover her mouth, she bit him and they both fell to the floor. He tried to cover her mouth again and she fainted. Id., at 786. The State’s theory was that Alkayyali strangled and smother Moussa causing her death. Alkayyali presented evidence Moussa suffered from a cardiovascular defect called a ventricular septal defect, also known as a “hole in the heart,” which can cause fainting. Alkayalli argued Moussa’s death was a terrible and tragic accident caused by her heart defect -- and pointed to Moussa’s numerous fainting spells after her heart surgery. Alkayyali’s defense was he did not intend to cause his wife’s death, and if the jury believed him, it would have been forced to move from 19.02(b)(1) to consideration of murder per 19.02(b)(2). Problematically, the application paragraph regarding 19.02(b)(2) omitted the essential element “causes the death of,” thereby “authoriz[ing] the jury to convict the defendant of murder without determining if his actions went beyond committing an act clearly dangerous to human life…” Alkayyali, 713 S.W.3d at 791. Specifically, this charge provided: or if you find from the evidence beyond a reasonable doubt that the Defendant, Tareq Alkayyali, on or about the 28th day of May, 2019, in the County of Tarrant, State of
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Texas, did then and there intentionally, with the intent to cause serious bodily injury to Wasam Moussa, commit an act clearly dangerous to human life, namely, by impeding the normal breathing or circulation of the blood of Wasam Moussa by applying pressure to her throat or neck with his hand or arm or by blocking her nose or mouth with his hand or hands, then you will find the Defendant guilty of the offense of murder. Id. Accordingly, the jury could convict for the offense of murder simply by finding Alkayyali’s conduct was an act clearly dangerous to human life without deciding whether Appellant caused the wife’s death. Because causation was contested at trial, the court held this gutted Alkayyali’s defense. The jury could have convicted Alkayyali without deciding causation under one theory of murder. Therefore, in that the charge failed to require the State to prove every element of the offense of murder beyond a reasonable doubt, it amounted to egregious harm requiring reversal. Id., at 794. Judge Yeary, joined by Presiding Judge Schenck concurred in the reversal, but his reasoning was broader than the Court’s in that he argued a jury charge that allows for conviction without requiring a finding of every constituent element of the offense is structural and waivable-only error that compromises the very right to a trial by jury. Alkayyali, at 797 (Yeary, J., concurring)(citing his dissent in Niles, 555 S.W.3d at 577, n.13 (Tex. Crim. App. 2018)(Yeary, j., dissenting) contending Art.1, Section 15, of the Texas Constitution proclaims that “[t]he right of trial by jury shall remain inviolate,” and the instant charge error is structural error for state constitutional Jury Charges
purposes.). Judge Finley dissented, agreeing the charge presented error, but applying Almanza’s four factors to find Alkayyali was not egregiously harmed, as required by the fact he did not object to the charge. Alkayyali, at 804 (Tex. Crim. App. 2025). One takeaway from Judge Finley’s dissent is his conclusion, which should serve as a cautionary signal that some judges may be less willing to reverse for unobjected-to charge error: …Moreover, I am hesitant to find egregious harm in a situation like this because it may incentivize future defense attorneys to not object to similar jury charge errors. Had the error been objected to, I would join the plurality opinion… Id., at 809. Judge Parker also dissented, and not only disputed a finding of egregious harm, but the very existence of charge error. Departing from traditional jury charge jurisprudence, Judge Parker favored a more common sense reading of the charge and less formalistic review of the application paragraph. See Id., at 811 (Parker, J., dissenting)(contending that given the state’s comments “and 562
41
what people know about murder in general, the jury must have understood that the State had to prove causation.”). While Alkayyali shows Almanza is still alive, it is worth noting the Court was deeply divided and practitioners should be alert to potential shifting in application of the Court’s jury charge error jurisprudence. More recently, in Lennox v. State, the Court granted the State’s PDR to determine if the court of appeals applied the correct standard of review for the charge error. Lennox v. State, 730 S.W.3d 425, 426 (Tex. Crim. App. 2026), reh'g denied (Mar. 12, 2026). The erroneously omitted charge in Lennox pertained to the § 32.21(e-1) language requiring the jury to determine that the forgery was committed “to obtain or attempt to obtain property or services” and to apply the corresponding value ladder that determines the offense grade. Id. The Court held the court of appeals applied the correct standard of review because the evidence raised subsection (e-1) and that its omission from the jury charge was egregiously harmful because it foreclosed the possibility of a misdemeanor conviction and punishment range. Id. at 430. C. Constitutional Error: Harmless Beyond a Reasonable Doubt There is a right to a jury trial for any fact, other than a prior conviction, that increases the penalty for a crime. Apprendi v. New Jersey, 530 U. S. 466, 476 (2000). But the denial of a federal constitutional right to a jury trial on a single element of the offense is not structural error. Neder v. United States, 527 U. S. 1, 8-15 (1999). In Do v. State, 634 S. W. 3d 883 (Tex. Crim. App. 2021), Jury Charges
it was assumed without deciding that a .15 blood alcohol was an element of a first time DWI misdemeanor elevating it to a Class A misdemeanor. It was also assumed without deciding that it was constitutional error to fail to submit that to the jury in the charge. However, because the record showed that the test results were uncontroverted and indicated that the defense could not in fact controvert those results, any error in failing to submit the .15 allegation to the jury was harmless beyond a reasonable doubt. Id.
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Jury Charges
Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Significant Decisions United States Supreme Court & The Court Of Criminal Appeals From July 2025 - May 2026
Speaker:
Hon. David Newell Court of Criminal Appeals PO Box 12308 Austin, TX 78711 713.204.7292 phone David.Newell@txcourts.gov email
Anna J. Sherman Briefing Attorney Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 (512) 463-1570 phone
Co-Author:
Tiffany Talamantez Staff Attorney Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 (512) 463-1570 phone
Significant Decisions
Co-Author:
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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SIGNIFICANT DECISIONS UNITED STATES SUPREME COURT AND THE COURT OF CRIMINAL APPEALS FROM JULY 2025 THRU MAY 2026
HON. DAVID C. NEWELL JUDGE, PLACE 9 Court of Criminal Appeals Paper prepared by Anna J. Sherman Briefing Attorney and Significant Decisions
Tiffany Talamantez Staff Attorney
Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 (512) 463-1570 566
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
Acknowledgement This paper was largely drafted by my law clerk, Anna Sherman, and my staff attorney, Tiffany Talamantez. I cannot begin to thank Ms. Talamantez for all the work she’s done on this paper and for me over the years. She is such a brilliant, insightful, and articulate attorney. I was always so lucky to have worked with her as she is one of those people who always made me smarter. Ms. Sherman is brilliant in her own right and took up the challenge of helping with this paper when Ms. Talamantez was fortunate enough to move on to a better employment opportunity within the Court. Ms. Sherman’s work ethic is unparallelled and she has certainly kept me on my toes. Anything useful in this paper comes from these two remarkable women.
Significant Decisions
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U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
Table of Contents I.
INTRODUCTION ..............................................................................................................................................................1
II.
SEARCH AND SEIZURE .................................................................................................................................................1 A.
REASONABLE SUSPICION .......................................................................................................................................................1 Driving slowly on a dirt road at night, even in an area known for criminal activity, without additional specific facts connecting the driver to criminal conduct, is insufficient to establish reasonable suspicion for a lawful detention. ......1 2. Officer had reasonable suspicion to detain driver of vehicle after passengers fled vehicle upon officer’s arrival at dispatched address and driver of the vehicle began to back out of the parking space with the rear door of his car still open. .................................................................................................................................................................................2 B. DOG SNIFF - A DRUG-DETECTION DOG'S REPEATED PHYSICAL INTRUSION OF ITS NOSE INTO A VEHICLE'S INTERIOR THROUGH AN OPEN WINDOW DURING AN OPEN-AIR SNIFF CONSTITUTES A SEARCH UNDER THE FOURTH AMENDMENT REQUIRING PROBABLE CAUSE. .................................................................................................................................................................. 3 C. THE FOURTH AMENDMENT STILL ALLOWS POLICE OFFICERS TO ENTER A HOME WITHOUT A WARRANT IF THEY HAVE AN “OBJECTIVELY REASONABLE BASIS FOR BELIEVING” THAT SOMEONE INSIDE NEEDS EMERGENCY ASSISTANCE, BUT THEY STILL CAN ONLY ENTER TO THE EXTENT REASONABLY NECESSARY TO ADDRESS THE EMERGENCY. ...................................... 4 D. WARRANTLESS ARREST.........................................................................................................................................................6 1. Exigent Circumstances are not required to uphold a warrantless arrest of a suspect found in a suspicious place. ........6 2. An officer must be present at the scene of an offense as the offense is being committed in order to make an arrest under the “presence or view” exception to the arrest warrant requirement under Article 14.03(d) of the Code of Criminal Procedure. .........................................................................................................................................................6 E. SEARCH WARRANTS - TO ESTABLISH A SUFFICIENT NEXUS BETWEEN THE OFFENSE AND THE ELECTRONIC DEVICE TO BE SEARCHED, A SEARCH WARRANT AFFIDAVIT MUST DO MORE THAN STATE THE AFFIANT’S BELIEF THAT ELECTRONIC DEVICES OFTEN OR “COMMONLY” CONTAIN EVIDENCE OF CRIMES......................................................................................... 7 1.
III.
PROCEDURE .....................................................................................................................................................................8
A.
A TEXAS ETHICS COMMISSION (TEC) REFERRAL FOR PROSECUTION, AND EXHAUSTION OF THE TEC’S REMEDIES, ARE NOT
A PREREQUISITE TO THE CRIMINAL PROSECUTION OF CAMPAIGN LAW VIOLATIONS. .............................................................. 8
B.
A TRIAL COURT ABUSES ITS DISCRETION BY DISMISSING A PROSECUTION WITH PREJUDICE FOR PROSECUTORIAL
VINDICTIVENESS BECAUSE DISMISSAL OF THE INDICTMENT WAS NOT NECESSARY TO NEUTRALIZE THE TAINT OF THE UNCONSTITUTIONAL ACTION. ................................................................................................................................................. 9
SIXTH AMENDMENT............................................................................................................................................................. 10 A defendant's Sixth Amendment right to counsel terminates once the charges against the defendant are dismissed so long as the charges are not dismissed to circumvent Sixth Amendment protections. ..................................................... 10 2. The Sixth Amendment tolerates screening in child-abuse cases only if a court hears evidence and issues a casespecific finding of necessity. ........................................................................................................................................... 10 3. A trial court's policy requiring all witnesses to wear surgical masks during testimony in 2023, without making casespecific findings of necessity, violated the defendant's Sixth Amendment right to confrontation. .................................. 11 4. Trial court’s denial of capital murder defendant’s request to withdraw a waiver of counsel right before closing argument did not violate the defendant’s Sixth Amendment right to counsel; request for counsel was made for purely dilatory purposes. ........................................................................................................................................................... 12 5. A defendant’s Sixth Amendment right to counsel was not violated when a judge ordered sua sponte that he could confer with his defense counsel about everything except his ongoing testimony during an overnight recess. ............... 12 D. PROSECUTOR’S COMMENTS DURING CLOSING ARGUMENT THAT THE DEFENDANT BELIEVED THE MURDER VICTIM WAS “SCARY BECAUSE HE WAS A HISPANIC GUY” AND THE “DEFENDANT’S OWN PREJUDICES CONTRIBUTED TO HIS FEAR OF THE VICTIM WERE NEITHER A COMMENT ON THE EVIDENCE NOR A RESPONSE TO OPPOSING COUNSEL. ....................................... 14 E. TEX. CODE CRIM. PROC. ART. 42A.751 WHICH REQUIRES THE STATE TO PROVE THAT A DEFENDANT HAS THE ABILITY TO
Significant Decisions
C.
1.
PAY HIS COMMUNITY SUPERVISION FEES AND COURT COSTS APPLIES ONLY WHEN NONPAYMENT IS THE SOLE ALLEGATION PURSUED BY THE STATE AT A REVOCATION HEARING. ......................................................................................................... 14
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U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026 F.
G.
THE UNITED STATES CONSTITUTION’S DOUBLE JEOPARDY CLAUSE PROHIBITS A DEFENDANT FROM RECEIVING TWO
CONVICTIONS FOR A SINGLE ACT THAT VIOLATES TWO CLOSELY RELATED FEDERAL FIREARM OFFENSES, 18 U.S.C.
§ 924(C)(1)(A)(I) AND 18 U.S.C. § 924(J). .......................................................................................................................... 15 RESTITUTION IMPOSED UNDER THE MANDATORY VICTIMS RESTITUTION ACT OF 1996 (MVRA) CONSTITUTES CRIMINAL PUNISHMENT FOR PURPOSES OF THE EX POST FACTO CLAUSE............................................................................................... 16
IV. EVIDENCE - THE TOTALITY OF THE CIRCUMSTANCES CAN SUPPORT AN INFERENCE OF VOLUNTARY WAIVER OF MIRANDA RIGHTS, EVEN IF AN EXPLICIT WAIVER IS NOT OBTAINED. ............... 17 V.
OFFENSES ....................................................................................................................................................................... 17 A.
B. C.
D. VI. A. B.
CAPITAL MURDER - UNDER THE TEXAS PENAL CODE, THE DEFINITION OF "INDIVIDUAL" FOR KIDNAPPING AS A PREDICATE FOR CAPITAL MURDER IS LIMITED TO A HUMAN BEING WHO HAS BEEN BORN AND IS ALIVE, NOTWITHSTANDING THE BROADER DEFINITION IN § 1.07(A)(26) THAT INCLUDES UNBORN CHILDREN. ...................................................................... 17 FELONY MURDER – PROVIDING BENADRYL TO INFANT IS “AN ACT CLEARLY DANGEROUS TO HUMAN LIFE” TO SUPPORT CONVICTION FOR FELONY MURDER BASED UPON INJURY TO A CHILD. .................................................................................. 18 INJURY TO A CHILD BY OMISSION - A DUTY FROM THE HEALTH AND SAFETY CODE THAT REQUIRES A DANGEROUS DOG OWNER TO, AMONG OTHER THINGS, RESTRAIN THE DOG OR DELIVER THE DOG TO ANIMAL CONTROL, MAY SERVE AS THE STATUTORY DUTY TO ACT FOR PURPOSES OF THE INJURY OF OFFENSE TO A CHILD BY OMISSION. ........................................ 19 CARGO THEFT - THE CARGO THEFT STATUTE REQUIRES PROOF OF CONDUCT DISTINCT FROM THE THEFT ITSELF SO BACKING A TRUCK TO A TRAILER IS MERELY ATTEMPTED THEFT. ........................................................................................................ 20 JURY INSTRUCTIONS .................................................................................................................................................. 21 A DEFENDANT WHO RESISTS ARREST BEFORE AN OFFICER USES ALLEGEDLY EXCESSIVE FORCE CANNOT CLAIM NECESSITY AS A DEFENSE TO THAT UNLAWFUL USE OF FORCE. .............................................................................................................. 21 IN CAPITAL MURDER PROSECUTIONS UNDER TEXAS PENAL CODE SECTION 19.03(A)(7)(B), A JURY CHARGE MAY DISJUNCTIVELY ALLEGE DIFFERENT CAPITAL MURDER THEORIES WITH RESPECT TO THE SAME PREDICATE VICTIM, AND THE JURY DOES NOT NEED TO BE UNANIMOUS ON THE SPECIFIC AGGRAVATING MURDERS AS LONG AS THEY UNANIMOUSLY
C.
VII.
AGREE ON THE ELEMENTS OF THE CAPITAL MURDER CHARGE. ............................................................................................. 22
THE INCLUSION OF A PRESUMPTION-OF-REASONABLENESS JURY INSTRUCTION REGARDING SELF-DEFENSE WAS HARMFUL IN LIGHT OF THE PROSECUTOR’S ARGUMENTS CONFLATING THE PRESUMPTION OF REASONABLENESS WITH THE AVAILABILITY OF SELF-DEFENSE. ................................................................................................................................................................ 23 APPEALS .......................................................................................................................................................................... 23
A.
AGGRAVATED SEXUAL ASSAULT TO REFLECT THAT THE VICTIM WAS UNDER THE AGE OF SIX BECAUSE THE PARTIES AGREED. ............................................................................................................................................................................... 27
VIII.
HABEAS CORPUS .......................................................................................................................................................... 28
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JURISDICTION ....................................................................................................................................................................... 23 1. A trial court loses jurisdiction over a criminal case once the appellate record is filed, and it cannot act further in the case unless jurisdiction is returned by mandate from the appellate court. .................................................................... 23 2. A court of appeals in Texas lacks jurisdiction to address the merits of DNA appeal if the Appellant fails to properly file a motion for extension under the requirements of Rule 4.6 of the Texas Rules of Appellate Procedure. ................. 24 B. COURT OF APPEALS ERRED IN HOLDING THAT ERROR WAS CONSTITUTIONALLY HARMFUL SIMPLY BECAUSE THE STATE FAILED TO ADDRESS HARM IN ITS BRIEF; REVIEWING COURTS HAVE AN INDEPENDENT DUTY TO ADDRESS HARM. ............... 25 C. IF YOUR ATTORNEY GIVES UP AT PUNISHMENT AND YOU CAN’T MEET THE STRICKLAND STANDARD FOR INEFFECTIVE ASSISTANCE ON DIRECT APPEAL, CAN YOU STILL MEET THE CHRONIC STANDARD FOR DENIAL OF COUNSEL? WAIT FOR THE WRIT. ................................................................................................................................................................................... 25 D. APPELLATE COURTS MUST ADHERE TO THE PRINCIPLE OF PARTY PRESENTATION, MEANING COURTS SHOULD DECIDE ONLY THE CLAIMS THAT THE PARTIES HAVE ACTUALLY RAISED AND ARGUED. ............................................................................. 26 E. ANDERS BRIEF – A COURT OF APPEALS MUST ENTER A FORMAL WRITTEN ORDER SPECIFYING THE PROCEDURE TO BE FOLLOWED TO ENSURE ACCESS TO THE RECORD, AND IT MUST MONITOR THE SITUATION TO ENSURE COMPLIANCE BEFORE RULING ON THE VALIDITY OF THE ANDERS BRIEF AND THE MOTION TO WITHDRAW. ............................................................. 26 F. JUDGMENTS NUNC PRO TUNC – COURT REMANDED CASE FOR TRIAL COURT TO MODIFY JUDGMENT FOR SUPER
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026 A. B. C.
EVIDENCE THAT EXCEEDS THE SCOPE OF REMANDED CLAIMS IN A POST-CONVICTION APPLICATION FOR A WRIT OF HABEAS
CORPUS WILL NOT BE CONSIDERED. ..................................................................................................................................... 28
THE COURT OF CRIMINAL APPEALS REMANDED DAVID LEONARD WOOD’S SUBSEQUENT WRIT CLAIMS INCLUDING HIS
CLAIMS OF ACTUAL INNOCENCE. .......................................................................................................................................... 30
APPLICANT WAS ENTITLED TO A MERITS REVIEW OF SUBSEQUENT WRIT APPLICATION CLAIM THAT TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO INVESTIGATE AND PRESENT MITIGATION EVIDENCE PURSUANT TO SPECIAL STATUTORY
D. E. F. G.
IX. A. B.
CAPITAL PUNISHMENT ISSUE. ............................................................................................................................................... 31
A DISTRICT COURT, IN HABEAS, DOES NOT ENJOY SUBJECT MATTER JURISDICTION OVER METHOD-OF-EXECUTION CLAIM IN
A CONSTITUTIONAL WRIT. .................................................................................................................................................... 32
THE COURT OF CRIMINAL APPEALS RE-OPENED ROBERT LESLIE ROBERSON’S HABEAS CORPUS APPLICATION ON ITS OWN
INITIATIVE IN LIGHT OF EX PARTE ROARK. ............................................................................................................................ 32
A STATUTE FOUND TO BE UNCONSTITUTIONAL CAN BE RETROACTIVELY APPLIED TO GRANT RELIEF TO INDIVIDUALS WHOSE CONVICTIONS BECAME FINAL BEFORE THE STATUTE WAS DECLARED UNCONSTITUTIONAL . . . FOR NOW? ........................... 34 A COMBINATION OF CLASS C COMPLAINTS FOR VIOLATION OF MUNICIPAL ORDINANCES, CONVICTIONS FOR THOSE VIOLATIONS, AND APPELLATE BONDS TO APPEAL THOSE CONVICTIONS CONSTITUTED “RESTRAINT” FOR PURPOSES OF PRETRIAL HABEAS APPLICATIONS......................................................................................................................................... 35 FEDERAL LAW .............................................................................................................................................................. 35 THE SENTENCING REFORM ACT DOES NOT AUTHORIZE A RULE AUTOMATICALLY EXTENDING A DEFENDANT’S TERM OF SUPERVISED RELEASE WHEN THE DEFENDANT ABSCONDS. ................................................................................................... 35 1983 LAWSUITS - A CONSTITUTIONAL RIGHT IS CONSIDERED "CLEARLY ESTABLISHED" FOR PURPOSES OF QUALIFIED IMMUNITY WHEN IT IS SUFFICIENTLY CLEAR THAT EVERY REASONABLE OFFICIAL WOULD HAVE UNDERSTOOD THAT WHAT
Significant Decisions
THEY ARE DOING VIOLATES THAT RIGHT. ............................................................................................................................. 36
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U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
SCOTUS/CCA Update
II. SEARCH AND SEIZURE A. Reasonable Suspicion
Significant Decisions from July 2025 to January 2026 I.
1. Driving slowly on a dirt road at night, even in an area known for criminal activity, without additional specific facts connecting the driver to criminal conduct, is insufficient to establish reasonable suspicion for a lawful detention. Officer Garcia responded to a 9-1-1 call about a suspicious truck that appeared to be a Chevrolet Silverado driving slowly in a rural area known for human trafficking. He arrived 30 minutes after the call and observed Israel Hernandez’s pickup truck on a dirt road; it was the only vehicle in the area. No traffic violations were observed, and the vehicle did not match the description from the 9-1-1 call in that it was not a Silverado. Officer Garcia activated his emergency lights to initiate a stop; Hernandez continued driving slowly until reaching a gate. Garcia claimed the area was known for human trafficking incidents.
INTRODUCTION
This paper covers the published opinions issued by the Court of Criminal Appeals between July 3, 2025, and May1, 2026. It also includes the significant criminal cases from the United States Supreme Court that have broad applicability, issued between October 1, 2025, and May 1, 2026. If you feel that a particular case was overlooked, please email me through Nichole Reedy at nichole.reedy@txcourts.gov and we’ll do our best to fix any perceived error. The paper is updated throughout the various terms so if you would like the final version of the paper, please remember to email Nichole Reedy and she will put you on the list to get it when we finish it.
Hernandez finally stopped so that he could open the gate at the entrance of his brother’s property. Officer Garcia approached Hernandez with his firearm drawn. Hernandez identified himself but had no ID on him. An argument ensued that resulted in Officer Garcia tasing Hernandez.
Additionally, we’ve included hyperlinks to the location where you can read the opinion on the web. If they don’t work, that doesn’t mean me or my staff acting have volunteered to be an IT help desk. Neither I nor Nichole would have any idea how to help you. So, if it doesn’t work for you, I apologize, but I hope you get something useful from the summaries. OH! And I almost forgot, note that United States Supreme Court cases are all one file. So, if a particular Justice files a side opinion, there is no separate hyperlink to it. You have to scroll down from the majority opinion. I know it’s a pain. Eventually SCOTUS will catch up.
The State charged Hernandez with evading arrest or detention in a motor vehicle. Hernandez did not file a motion to suppress but instead moved for instructed verdict, which the trial court denied. The jury ultimately found Hernandez guilty of evading arrest or detention Appellant appealed.
The Court of Criminal Appeals reversed. Hernandez v. State, 727 S.W.3d 83 (Tex. Crim. App. 1
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Significant Decisions
The Thirteenth Court of Appeals (Corpus Christi) affirmed, holding that there was sufficiently detailed and reliable information to satisfy the standard for reasonable suspicion for detention. The court explained that Officer Garcia observed Hernandez driving a truck (though not a Chevrolet Silverado as described in the 9-1-1 call) and that the truck was the only vehicle in a very rural area. The truck was also in the vicinity and in close proximity to the mailbox of the 9-1-1 caller. Finally, the court of appeals noted that there had been many incidents of human smuggling in that area.
Oh! And I want to clarify that the Court of Criminal Appeals has more and more resorted to publishing orders that have published side opinions. There is a danger in reporting that there is a published order that says nothing because it is easier for readers to credit what is written in published side opinions as an implied holding or decision. To avoid this, I will not report on those cases unless I can see some jurisprudential significance that might be helpful to the bench and bar.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
Dec. 19, 2025) (6:1:3). Writing for the Court, Judge Finley reasoned that the evidence was insufficient to establish reasonable suspicion for a lawful detention. The Court noted that driving slowly on a dirt road at night, even in an area known for criminal activity, without additional specific facts still failed to connect the driver to any criminal activity. The Court distinguished the case from Derischweiler v. State, 348 S.W.3d 906 (Tex. Crim. App. 2011) by noting that in that situation there were more facts to raise suspicion and connect the suspect to criminal activity. The Court contrasted that case with Martinez v. State, 348 S.W.3d 919 (Tex. Crim. App. 2011) in which the Court held that a 9-1-1 call describing someone picking up bicycles and putting them into a pickup truck did not give rise to reasonable suspicion.
to is that the “suspicion” in the Court’s view was really just conclusory and wasn’t based upon specific facts to link the suspect to possible criminal activity. Driving slow late at night even in a high crime area isn’t apparently specific enough. Another aspect to the case that deserves consideration is how to apply the Guzman standard when reasonable suspicion is an element of the offense. The Court noted that it had already answered that question in Long v. State, 535 S.W.3d 511 (Tex. Crim. App. 2017). Under that case, the Court looks at the facts in the light most favorable to the jury’s verdict but answers the legal question of whether those facts give rise to reasonable suspicion de novo. Judge Yeary’s dissent plays a little fast and loose with that standard by suggesting that it’s a mixed question of law and fact. But in doing so he ignores that the Court resolved all factual conflicts and credibility determinations in favor of the jury’s verdict and still held as a matter of law that none of those facts were connected to criminal activity. Because otherwise, driving slow late at night would be enough for a traffic stop.]
Judge McClure filed a concurring opinion. The concurrence emphasized the unique nature of the statute requiring the jury to determine the lawfulness of the detention as an element of the offense. McClure suggested trial judges should carefully evaluate the sufficiency of evidence on this element when ruling on motions for directed verdict.
2. Officer had reasonable suspicion to detain driver of vehicle after passengers fled vehicle upon officer’s arrival at dispatched address and driver of the vehicle began to back out of the parking space with the rear door of his car still open. D.C. Metropolitan Police Officer Clifford Vanterpool received a radio dispatch call directing him to check out a suspicious vehicle at a specific address. Officer Vanterpool reached the apartment building at that address around 2:00 a.m. As he turned his marked police vehicle into the parking lot, he saw two people immediately flee from a car, “unprovoked,” after “police had not done anything other than simply pull up.” The runners left open at least one of the car doors. The driver then began to back out of the parking space, rear door still open. Officer Vanterpool decided to investigate. He parked directly behind the car, left his own vehicle, ordered the driver, R. W., to put his hands up, and drew his service weapon. The juvenile defendant, R.W., was adjudicated delinquent on several counts: unauthorized use of a motor vehicle, felony receipt of stolen property, unlawful entry of a motor vehicle, and operating a vehicle without a permit. R.W. filed a motion to suppress evidence that was allegedly obtained as the fruit of an unlawful investigatory stop.
Presiding Judge Schenck filed a dissenting opinion. The dissent argued that the Court should defer to the jury’s implicit factual determinations that gave rise to reasonable suspicion. Alternatively, he would have held that the community caretaking doctrine could justify the stop.
Significant Decisions
Judge Yeary filed a dissenting opinion. Judge Yeary questioned the majority's application of de novo review and emphasized the jury's role in determining reasonable suspicion. Judge Parker also filed a dissenting opinion in which Judge Yeary joined. Judge Parker argued that the totality of the circumstances, including the 911 call, Hernandez’s proximity to the caller's residence, and Officer Garcia's knowledge of human smuggling in the area, provided sufficient reasonable suspicion. [Commentary: I would ordinarily discuss this case under “Offenses” because the question of reasonable suspicion arises as an element of the offense. But I put it here because it is more likely to be cited in the context of search and seizure. What this comes down
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U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
vehicle's interior through an open window during an open-air sniff constitutes a search under the Fourth Amendment requiring probable cause. A DPS Trooper stopped Courtney Organ for speeding. During the stop, the trooper was unable to if there was an odor of marijuana in the vehicle, but he believed it was possible there was a very, very slight odor of it. He requested a K-9 unit based upon this and the possibility that the odor of marijuana could have been masked by the overwhelming smell of cigarillo smoke and food. The K-9 officer arrived and conducted an open-air sniff with his drug-detection dog, Jaks. During the sniff, Jaks stuck his nose through an open passenger window into the vehicle's interior three separate times during an open-air sniff. The dog alerted to the presence of contraband only after these intrusions. Based on the alert, officers searched the vehicle and found Etizolam pills even though the dog was not trained to detect Etizolam. The trial court granted the defendant's motion to suppress the evidence seized during the search, finding that the search was unconstitutional. The State appealed.
D.C. Superior Court denied the motion. After a bench trial, R.W. was assigned to one year of probation with conditions. R.W. appealed. The D.C. Court of Appeals vacated and remanded the case, holding that Officer Vanterpool, by stopping R. W. without reasonable suspicion, violated the Fourth Amendment. In its analysis, the court determined that the trial court had erred by considering two factors: the radio dispatch call and the flight of R.W.'s companions. It excised those factors from the analysis and concluded that, without more, the remaining facts (the late hour and the car's movement) did not give rise to reasonable suspicion. D.C. sought certiorari from the Supreme Court of the United States. In a per curiam opinion, the Supreme Court of the United States reversed, holding that Officer Vanterpool clearly had reasonable suspicion to stop R.W. D.C. v. R.W., 146 S. Ct. 1069 (April 20, 2026) (Per Curiam). The Supreme Court based its holding on several converging factors: a late-night dispatch call about a suspicious vehicle, the unprovoked flight of two passengers the moment police pulled into the parking lot, and R.W.'s own behavior in backing out of the parking space with a rear car door still open, rather than pausing to investigate why his passengers had suddenly run away. Justice Sotomayor voted to deny the petition for a writ of certiorari. Justice Jackson filed a dissenting opinion, arguing that the D.C. Court of Appeals correctly applied a factor-by-factor approach to assess reasonable suspicion, which Justice Jackson says is necessary for clarity and legal development. She commented on the Supreme Court's intervention as unnecessary, suggesting that the lower court's decision did not warrant correction, even if it used poor word choice in describing its analysis. [Commentary: Does this case mean Hernandez v. State discussed above might be worth taking up by the State? Or are there more specific facts in this case versus Hernandez?] B. Dog Sniff - A drug-detection dog's repeated physical intrusion of its nose into a
3
The Court of Criminal Appeals affirmed the judgment of the court of appeals upholding the trial court's order granting Appellee's motion to suppress evidence. State v. Organ, 726 S.W.3d 346 (Tex. Crim. App. Oct. 30, 2025) (7:1:1). Writing for the Court, Judge Newell explained that, under the physicalintrusion theory from Jones and Jardines, a vehicle is a constitutionally protected "effect," and when the dog's nose entered the vehicle to obtain information after
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Significant Decisions
The Fourteenth Court of Appeals upheld the trial court's order granting the Appellee's motion to suppress evidence seized during the search. The court of appeals concluded that the drug-detection dog's repeated physical intrusion into the interior of the vehicle during an open-air sniff for contraband amounted to a Fourth Amendment search conducted without probable cause, and therefore, the evidence must be suppressed. The court reasoned that the physical intrusion of the dog's nose into the vehicle's interior constituted a search under the Fourth Amendment, applying the physicalintrusion theory from United States v. Jones and Florida v. Jardines, and that such an intrusion into a constitutionally protected "effect" (the vehicle) required probable cause. The State sought discretionary review.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
being prompted by his handler, this amounted to a physical intrusion into a protected area. Here, after being prompted repeatedly by his handler to “check here,” the dog intruded its nose into the vehicle's interior three times before alerting, and the alert that led to the search and discovery of contraband occurred only after these intrusions. In reaching this decision, the Court rejected arguments that no common-law trespass occurred. According to the Court, a defendant does not need to show a perfect 18th Century analog to establish a Fourth Amendment violation. Further, the Court rejected the State’s argument that the dog’s intrusion was not a search but an instinctive response by the dog. According to the Court, a Fourth Amendment violation cannot turn on the state of mind of the drug-sniffing dog.
marijuana, but no marijuana was found. The Trooper’s testimony regarding odor of marijuana barely supported prolonging the stop for a dog-sniff in the first place. And the only drugs the dog allegedly alerted to were pills he was not trained to detect. But on the other hand, Presiding Judge Schenck points out that a number of federal circuit courts have (at least prior to Jardines) held that when a dog acts like a dog rather than a drug-detection device there is no search when the dog enters a vehicle. One case, in particular, State v. Mumford, 14 N.W.3d 346 (Iowa 2024) reached the opposite conclusion from Texas on similar facts. The United States Supreme Court denied cert in that case, however. Mumford v. Iowa, 146 S.Ct. 92 (Oct. 6, 2025). Is this a “bad facts make bad law” situation? Perhaps the State will take this case up from Texas.]
Judge Parker filed a concurring opinion. Judge Parker agreed with the Court that the intrusion of a drug-detection dog's nose through an open window of a car is the sort of intrusion that could implicate the protections of the Fourth Amendment. However, Judge Parker argued that a single, unexpected intrusion by a dog would not trigger Fourth Amendment protections. Judge Parker suggested that any intrusion into the interior of the vehicle by a dog is an "intrusion" that constitutes a search if the handler can fairly be held responsible for the intrusion.
C. The Fourth Amendment still allows police officers to enter a home without a warrant if they have an “objectively reasonable basis for believing” that someone inside needs emergency assistance, but they still can only enter to the extent reasonably necessary to address the emergency. Montana Officers responded to a situation involving an individual (Case) known to have mental-health and alcohol-abuse problems, who had previously discussed suicide. On the day in question, Case, apparently inebriated, threatened to kill himself, mentioned preparing a suicide note, and possibly cocked or fired a gun. The officers knocked on the doors and yelled into an open window but got no response. They could see an empty handgun holster and something that looked like a suicide note inside, and they ultimately decided to enter the home to render emergency aid. As they were searching the house, Case threw open a closet curtain and appeared from behind it, holding a “black object” which looked like a gun. Fearing he was about to be shot, one officer fired his own rifle and hit Case in the abdomen. (Police found a handgun in a laundry basket next to the place where Case had stood.)
Significant Decisions
Presiding Judge Schenck filed a dissenting opinion. The dissent would find no violation of the Fourth Amendment because the dissent believes that Jaks was not commanded, cued, or otherwise prompted by his handler to cross the threshold of the open window. [Commentary: The Court actually included pictures of just how far Jaks’s head got into the vehicle and embedded a link to the video of the stop. Here is the link: https://pbvideo.vids.io/videos/109bdeb21e1fe7c29a/pd0841-24-organ-exhibit.
The State charged Case with assaulting a police officer. Case moved to suppress all evidence obtained from the home entry. The trial court denied the motion, and a jury found Case guilty. The trial court found that the officers had an objectively reasonable basis for believing that their intervention was needed to prevent serious harm and that Case needed emergency aid.
I leave it up to you to assess the level of the dog’s intrusion as the opinion may not exactly do it justice. Additionally, consider whether this was an unforced error by the State in appealing the trial court’s suppression in this case. The dog was trained to detect
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U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
Therefore, the warrantless entry did not violate the Fourth Amendment. Case appealed.
Justice Sotomayor filed a concurring opinion. The concurrence joined the Court’s opinion but wrote separately to underscore the unique considerations that law enforcement and courts should bear in mind when assessing whether there is an “objectively reasonable basis to believe” that a person experiencing a mentalhealth crisis needs law enforcement to “render emergency assistance.” She noted that police presence can sometimes escalate situations, increasing danger to both the occupant and officers, especially given the prevalence of firearms in American households. Justice Sotomayor referenced studies showing that individuals with serious mental-health conditions are disproportionately likely to be injured or killed during police interactions, and suggested that, in some circumstances, it may be more reasonable for officers to attempt de-escalation techniques—such as communicating from a distance, involving family or mental-health professionals, or using specialized crisis intervention teams—before entering a home without a warrant.
On appeal, a divided Montana Supreme Court upheld the trial court’s ruling that the officers’ entry was lawful. The majority analyzed the issue under its “community caretaker doctrine.” It noted that a recent Fourth Amendment decision of the Supreme Court, Caniglia v. Strom, 593 U. S. 194, 198 (2021), had rejected a “community caretaking rule” allowing a warrantless home entry even absent a “need to render emergency assistance” to an occupant. But the Montana court thought its community-caretaker doctrine survived that holding because it demanded such an emergency. The court rejected Case’s alternative standard: that a police officer must have “probable cause to believe” the occupant in need of emergency aid.
Justice Gorsuch also filed a concurring opinion. Justice Gorsuch agreed with the Court’s holding, but questioned the underlying justification for this exception, asserting that it is not based merely on the subjective reasonableness of the Justices, but is instead rooted in longstanding common law principles. He poses that at common law, both private citizens and officers were generally permitted to enter another’s property to avert serious physical harm, with property rights yielding to concerns for human safety. With that, he says the adequacy of the actor’s judgment, rather than a post-hoc assessment of necessity, was the standard. Justice Gorsuch underscored that the Fourth Amendment’s protections are grounded in the common law, not in shifting judicial notions of “reasonable expectations of privacy.” [Commentary: This isn’t exactly a surprising opinion, but what to do with the holding that probable cause is not required? Is there a quantum of proof that supports this standard of “objectively reasonable basis.” Justice Sotomayor, in her concurrence, slyly notes that the Montana Supreme Court seems to have, in her view, erroneously applied a “reasonable suspicion” standard. She regarded that standard as lower than the 5
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Significant Decisions
The United States Supreme Court affirmed. Case v. Montana, 146 S.Ct. 500 (Jan. 14, 2026) (9:0). Writing for the Court, Justice Kagan reasoned that police officers may enter a home without a warrant if they have an objectively reasonable basis for believing that someone inside needs emergency assistance. The Court reiterated that the Court had held as much in Brigham City v. Stuart, 126 S.Ct. 1943 (2006). The Court also explained that this standard does not require probable cause for the intrusion, as would typically be required when investigating a crime; rather, it is sufficient if officers have an objectively reasonable basis for believing that their intervention is needed to prevent serious harm or provide emergency aid. Here, the officers knew first-hand that the petitioner suffered from mental-health and alcohol-abuse problems, had previously talked about committing suicide, and, upon arrival at the petitioner’s house, learned that he had threatened to kill himself, spoke of preparing a suicide note, and possibly cocked or even shot a gun. In reaching this decision, the Court emphasized that the justification for what would otherwise be an illegal warrantless entry is the need to protect or preserve life or avoid serious injury, and that the officers’ actions must be reasonable in both their decision to enter and their manner of entry. But the Court is careful to observe that this exception to the warrant requirement only permits entry to the extent reasonably necessary to address the emergency.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
appeals arguably erred when it reached its opinion by not following caselaw as it existed at the time, which suggested exigent circumstances were required, the court of appeals correctly interpreted the statute at issue. There was no challenge to the court of appeals’ determination that Newton’s house was a suspicious place.
“objectively reasonable basis” standard. So is “objectively reasonable basis” more or less onerous than a probable cause standard? Perhaps the more helpful thing to note is that this entry based upon “reasonableness” is tied to some very concrete facts suggesting an emergency and the scope of the entry is limited to the emergency justification. When viewed in this light, the need to rely upon probable cause or even reasonable suspicion becomes almost a matter of semantics. Rather than probable cause to believe a crime is afoot, the officer must essentially be able to show objectively that facts show there was such an emergency that they needed to enter the home without a warrant. And, like an administrative stop or search or even an investigative detention, the intrusion is limited in scope by the facts giving rise to the intrusion. But given that this standard has a different label, I would not be surprised if there’s further litigation regarding the quantum of evidence necessary to satisfy it beyond just saying “objective reasonableness.”]
Judge Keel concurred without opinion. 2. An officer must be present at the scene of an offense as the offense is being committed in order to make an arrest under the “presence or view” exception to the arrest warrant requirement under Article 14.03(d) of the Code of Criminal Procedure. Grady Jack Barber was involved in a motor vehicle crash after consuming alcohol, resulting in the death of another driver. Barber was transported to a hospital in Harris County, and a police officer from Liberty County, Officer Ibarra, arrived at the crash scene 40 minutes later. Officer Ibarra did not witness the crash or observe Barber at the scene, but he obtained a search warrant for Barber's blood based on a probable-cause affidavit. The warrant was executed at the hospital, and Barber's blood was drawn and tested. Barber was indicted for intoxication manslaughter and filed a motion to suppress the blood test results, arguing that the warrant was invalidly executed because Officer Ibarra was not authorized to make an arrest in Harris County, as the offense did not occur in his presence or view. The trial court granted the motion to suppress. State appealed.
D. Warrantless Arrest
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1. Exigent Circumstances are not required to uphold a warrantless arrest of a suspect found in a suspicious place. Christopher Lynn Newton was arrested without a warrant after an officer followed tire marks from the scene of a one-vehicle collision to a damaged truck parked outside of a residence. When Newton came out of the residence, the officer noticed signs of intoxication. The trial court held the arrest was unlawful because no exigent circumstances existed to justify the arrest.
The Beaumont Court of Appeals reversed and remanded, relying on State v. Woodard, 341 S.W.3d 404 (Tex. Crim. App. 2011). The court reasoned that Article 14.03(d) did not require the police officer to see the offense or even be in the vicinity when the offense was committed. Based on this reasoning, the court concluded that Officer Ibarra could consider all the information he knew before the arrest to determine whether there was sufficient information for him to believe Barber committed the offense. Defendant petitioned for discretionary review.
The court of appeals reversed concluding that Article 14.03(a)(1), which permits the warrantless arrest of persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony . . . beach of the peace, or offense under Section 49.02, does not have an exigency requirement. The Court of Criminal Appeals affirmed. State v. Newton, 721 S.W.3d 339 (Tex. Crim. App. July 30, 2025) (8:1:0). Writing for the Court, Judge Walker noted the court of appeals reached the same conclusion reached by the Court recently in Armstrong v. State, namely that Article 14.03(a)(1) does not have an exigency requirement. Thus, even if the court of
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The Court of Criminal Appeals of Texas reversed and remanded the case. State v. Barber, 2026 WL 1073627 (Tex. Crim. App. Apr. 16, 2026)(6:1:3). Writing for the Court, Judge Parker explained that 6
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
addressing the suppression of blood evidence, which he believes should not be excluded. He contends that Article 18.067 should not be interpreted to require both conditions for executing a warrant, and even if there was an error, it does not warrant suppression under Article 38.23 due to the good-faith exception. In Part II(B), which Judge Keel joined, the Presiding Judge argued that the Court misinterpreted Article 18.067, contending that the statute's two subparagraphs should be read as separate sources of authority, not as conjunctive requirements, and that the statute should facilitate rather than hinder the execution of warrants.
these offenses were not committed in the officer's presence or view because the officer arrived at the scene 40 minutes after the crash and did not witness Barber operating the vehicle or being intoxicated at the scene. The Court disavowed its previous decision in Woodard, which had been interpreted to allow warrantless arrests based on probable cause for offenses not committed in the officer's presence or view. The Court found this interpretation to be incorrect and contrary to the plain language of the statute. The Court emphasized that the statutory language should be interpreted literally, and this excludes officers who did not perceive the offense through their senses and did not arrive at the scene until after the offense was complete. Addressing the "collective knowledge" doctrine, the Court found no evidence that any other officer witnessed the offense in their presence or view, and it declined to extend this doctrine to include observations by non-lawenforcement civilians.
E. Search Warrants - To establish a sufficient nexus between the offense and the electronic device to be searched, a search warrant affidavit must do more than state the affiant’s belief that electronic devices often or “commonly” contain evidence of crimes. This case appears in two different places because there are two issues. This summary focuses on the search issue. Marian Fraser was charged with the felony murder of C.F.,1 a four-month-old, at Fraser’s Waco day care. Frasier found the four-month-old victim, C.F., unresponsive during a nap. Her efforts to resuscitate her failed. Toxicology tests revealed a toxic level of diphenhydramine in C.F.’s blood (Benadryl). Additionally, high levels of diphenhydramine were present in C.F.’s skeletal muscle and urine. The level of diphenylamine far exceeded the therapeutic dose recommended for adults. Further, C.F.’s doctor testified that administering diphenhydramine was an act clearly dangerous to human life. Fraser was solely responsible for preparing bottles of formula that were used to feed the infants.
Judge Yeary filed a concurring opinion. Yeary concurred with the Court's opinion but suggested that on remand, the court of appeals should consider whether the appellee has standing to invoke the protections of Article 38.23(a), the statutory exclusionary rule, which prohibits the admission of evidence obtained in violation of the law. He noted that the trial court had granted the motion to suppress based on the officer's lack of authority to execute the search warrant, and he anticipated that the court of appeals might find the officer acted in good faith reliance on the warrant.
Police also sought a search warrant based upon the investigating detective’s belief that evidence would be found on Fraser’s phone. The warrant was supported by the detective’s belief that evidence on Fraser’s phone might reveal that Frasier searched the internet after the victim’s death for side effects of diphenhydramine and that she sent messages to others about the victim’s death. The search of the phone revealed that four days after the victim’s death, Fraser told her daughter via text to move medications (including Benadryl) from the playroom cabinet to a closet before a state licensing board inspector could
Presiding Judge Schenck filed a dissenting opinion in which Judge Richardson joined, and Judge Keel joined as to Part II(B), arguing that the Court’s decision focuses on arrest powers rather than 7
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Judge Finley also filed a concurring opinion, emphasizing the principle of party presentation, which dictates that courts should decide cases based on the issues framed by the parties rather than introducing new issues. He responded to the dissent’s suggestion that the Court should address issues not raised by the parties, arguing that these were not necessary to resolve the question of whether the offense occurred within Officer Ibarra's "presence or view."
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
Judge Yeary filed a concurring and dissenting opinion in which Judge Parker and Presiding Judge Schenck joined. Judge Yeary agreed with the majority’s conclusion on the defendant’s sufficiency of the evidence claim but disagreed with the Court’s conclusion on the Fourth Amendment issue, arguing that the search warrant affidavits provided a sufficient basis for probable cause and criticized the Court's reliance on State v. Baldwin.
visit the house. Additionally, Fraser also texted one of the other parents whose child attended the day care to see if police had reached out and to remind the parent that she, Fraser, did not give medicine. A jury convicted Fraser of felony murder based upon the underlying offense of injury to a child.
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The Amarillo Court of Appeals affirmed the conviction. The court of appeals held that the trial court did not abuse its discretion when it admitted the text messages between Fraser and her daughter just days after C.F.’s death. The court of appeals concluded that the affidavit contained sufficient particularized facts supporting a search of Fraser’s devices which would be likely to produce evidence in the investigation’ of C.F.’s death. Fraser sought discretionary review.
Judge Parker also filed a concurring and dissenting opinion. Judge Parker also dissented on the Fourth Amendment issue, finding a sufficient nexus between the electronic devices and the offense based on the nature of the crime and Fraser’s role as a caregiver. Judge Parker joined the Court on the remaining issues.
On the question of the admissibility of the text messages, the Court held that the probable cause affidavits accompanying the warrants to seize and search the electronic devices both lack a sufficient nexus between the offense and the electronic devices searched. Fraser v. State, 726 S.W.3d 253 (Tex. Crim. App. Sept. 3, 2025) (6:3:0). Writing for the Court, Judge Finley reasoned that the conclusory language in the search warrant affidavit did not sufficiently support the search warrant. Relying upon Baldwin v. State, 664 S.W.3d 122 (Tex. Crim. App. 2022), the Court explained that the boilerplate language used in the affidavit amounted to mere speculation and lacked specific facts to justify the warrant. Moreover, the Court observed that the lengthy recitation of the facts supporting the commission of the office failed to provide a “nexus” between the offense and the item to be searched. Nothing in the warrant stated facts and circumstances to provide probable cause that searching Fraser’s telephone would be likely to produce evidence of certain criminal activity.
[Commentary: The Court was unanimous as to Parts I, II, and IV, and the opinion of the Court. This was the sufficiency of the evidence to support the conviction. As to the search issue (Parts III and V), Judge Finley wrote the majority, and he was joined by Judges Richardson, Newell, Keel, Walker, and McClure. With regard to the search issue, the search warrant merely asserted that the detective believed evidence would be there, but he did not have any specific facts to support that belief. The Court compared the case to the warrant affidavit in Baldwin to note that it was considerably less detailed that the one in Baldwin. So even if Baldwin is later overturned, this case may still remain good law.] III. PROCEDURE A. A Texas Ethics Commission (TEC) referral for prosecution, and exhaustion of the TEC’s remedies, are not a prerequisite to the criminal prosecution of campaign law violations. Robbie Gail Charette was indicted for campaign law violations. In a pretrial writ of habeas corpus, she alleged the complaint against her should be quashed and dismissed as void because the TEC had exclusive authority to investigate the allegations and imitate a prosecution by referral. The trial court denied habeas relief and the court of appeals affirmed concluding that the district court had jurisdiction over the offenses alleged. The Court of Criminal Appeals disagreed concluding that the trial court lacked jurisdiction absent
Judge Finley filed a concurring opinion. Judge Finley agreed that under our current jurisprudence, the evidence is sufficient to support Fraser’s conviction for felony murder. However, Judge Finley expressed skepticism about the current interpretation of the felony murder statute and advocating for a reexamination of its application to assaultive offenses.
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[Commentary: Both the statute and the make up of the Court changed after the original opinion in this case.]
a TEC referral for prosecution. A motion for rehearing was filed by the State. On rehearing, the Court of Criminal Appeals withdrew its opinion and affirmed the court of appeals. Writing for the Court, Presiding Judge Schenck held that exhaustion of the TEC civil process was not a prerequisite to criminal prosecution. Ex parte Charette, 721 S.W.3d 411 (Tex. Crim. App. Aug. 20, 2025) (5:3:1). The Court affirmed its earlier determination that the claim raised was cognizable in pretrial habeas given that the claim alleged the prosecution itself would impermissibly interfere with duties assigned to the executive branch. As to the merits, the Court found that allowing criminal prosecutions to proceed without TEC referral would not interferes with TEC’s civil investigations. TEC’s enforcement power is clear but, the Court reasoned, it is not clear that it is exclusive. Rather, the statutory provisions granting TEC authority are consistent with parallel criminal enforcement. That the TEC has the authority to refer a matter for prosecution does not establish that such a referral is a precondition to prosecution. The Court acknowledged that the Legislature has enacted a retroactive amendment to the Government Code indicating that civil or administrative remedies are not, unless expressly provided, a prerequisite to vesting a trial court with subject matter jurisdiction. Tex. Gov’t Code § 23.002. The Court found it need not address any retroactivity issues because of its conclusion that the referral was not a prerequisite.
B. A trial court abuses its discretion by dismissing a prosecution with prejudice for prosecutorial vindictiveness because dismissal of the indictment was not necessary to neutralize the taint of the unconstitutional action. Ivan Gabaldon was initially indicted for murder for the killing of Juan Flores. One month before his trial, the State had not provided him with a copy of his statement to the police or allowed him to inspect physical evidence. After he sought dismissal on speedy trial grounds the State dismissed the murder charge and reindicted Gabaldon for capital murder with the intent to seek the death penalty. Gabaldon filed a motion to dismiss claiming prosecutorial vindictiveness. The trial court found that the State’s reindictment was unconstitutionally vindictive and dismissed the case with prejudice. The State appealed. The El Paso Court of Appeals affirmed the trial court. The court of appeals held the trial court did not abuse its discretion because dismissing the indictment with prejudice was necessary to neutralize the taint of the State’s egregious conduct. The court reasoned that allowing the State to reindict Gabaldon for murder would be giving the State exactly what it sought when it retaliated: a continuance of the murder prosecution. The State sought discretionary review.
Judge McClure concurred with opinion. Judge Walker dissented without opinion.
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The Court of Criminal Appeals reversed the court of appeals and modified the trial court’s dismissal to be without prejudice. State v. Gabaldon, 727 S.W.3d 1 (Tex. Crim. App. Sept. 3, 2025) (5:2:2). Writing for the Court, Judge Richardson explained that trial judge’s dismissal with prejudice was unjustified, but it limited the State to re-indict the defendant only on the original charge of murder or other lesser-included offense. The Court first looked to see if there was evidence supporting prosecutorial vindictiveness in the record. There was. The Court concluded that the State, “at least in part,” retaliated against the defendant by elevating the charge to capital murder for exercising his legal right to a speedy trial. However, the Court weighed the factors for speedy trial violations and determined that Gabaldon’s right to speedy trial was not actually
Judge Richardson, joined by Judge Newell, filed a concurring opinion. The concurrence noted that the Court originally and correctly required procedural exhaustion by the TEC or referral by the TEC before potential criminal charges could be filed. But given the Legislatures amendment to the Government Code, which applies retroactively, Judges Richardson and Newell concurred in the result only concluding the amendment does not raise any ex post facto concerns.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
accident, which led to her being re-indicted in 2020 on the same charges. McDonald filed a motion to suppress the statements she made during the 2018 questioning, arguing that her Sixth Amendment right to counsel was violated. The trial court granted the motion to suppress, but the State appealed.
violated. Nevertheless, the Court held that the trial court’s authority to dismiss only extended to dismissing the capital-murder charge, but it lacked the authority to dismiss the entire case with prejudice. Presiding Judge Schenck filed a concurring opinion. Schenck disagreed with the majority’s finding of an abuse of discretion by the lower court. However, Schenck agreed that dismissal at this stage was extreme and inappropriate. Schenck argued that the proper analysis of a prosecutorial vindictiveness claim should be two-fold: first, the Court should determine whether the finding of vindictiveness was clearly erroneous; and second, whether the trial court abused its discretion in ordering dismissal or any other remedy. Schenck would remand so that the trial court may fashion another remedy, including removal of the district attorney from the case and substitution of either the Attorney General or a neighboring district attorney, or any other means he or she believes is necessary to maintain the integrity of the judiciary.
The court of appeals held that McDonald's right to counsel, which had attached in 2007, remained in effect at the time of her questioning in 2018. The court based its reasoning on several factors: (1) the original right to counsel attached in 2007 when McDonald was first charged, (2) she remained represented by counsel after the charges were no-billed, (3) the attorney-client relationship remained intact, and (4) the renewed investigation was ongoing and known to the officers. The court further rejected the State's claim that McDonald's Sixth Amendment right expired merely by the passage of time. State petitioned for discretionary review. The Court of Criminal Appeals of Texas reversed. State v. McDonald, 2026 WL 1025753 (Tex. Crim. App. Apr. 16, 2026)(8:1:0). The Court held that McDonald's Sixth Amendment right to counsel did indeed terminate after the grand jury no-billed the charges in 2008, as the right to counsel is case-specific and does not persist once charges are no longer pending. Writing for the Court, Judge McClure explained that there was no evidence that the State had dismissed the charges to continue investigating and circumvent McDonald's right to counsel. Additionally, McClure noted that the Court determined that the detectives did not engage in impermissible trickery or coercion during the 2018 questioning.
Judge Yeary concurred without opinion.
Significant Decisions
Judge Finley, joined by Judge Keel, filed a dissenting opinion. Judge Finley argued that the prosecutorial vindictiveness facts in this case were worse than those in United States v. Morrison. Consequently, the Morrison framework supports affirming the court of appeals. According to Judge Finley, the State violated the Gabaldon’s due process rights by seeking the death penalty as a result of the denial of continuance on the murder charge. He would have affirmed the court of appeals’ conclusion that dismissing the indictment with prejudice was necessary to neutralize the taint of the State’s egregious conduct.
Judge Finley joined except as to Part I(iii).
C. Sixth Amendment
Judge Newell concurred.
1. A defendant's Sixth Amendment right to counsel terminates once the charges against the defendant are dismissed so long as the charges are not dismissed to circumvent Sixth Amendment protections. Amanda McDonald was initially charged in 2007 with intoxication manslaughter and failure to stop and render aid following a fatal car accident. After these charges were no-billed by a grand jury in 2008, the case was dismissed. Ten years later, in 2018, police re-approached McDonald to question her about the
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2. The Sixth Amendment tolerates screening in child-abuse cases only if a court hears evidence and issues a case-specific finding of necessity. In May 2020, A.G.C. spent a weekend visiting her father, Jeffrey Pitts. After returning home, A.G.C. reported to her mother that she had been sexually abused, leading to criminal charges against Pitts. At trial, the State moved to place a screen between A.G.C. and Pitts 10
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
and Craig. Screening half of a face, see below, is a bit more of a challenge.]
during her testimony, relying on a Mississippi statute that mandates such screening for child witnesses in abuse cases. Pitts objected, arguing that the statute’s mandatory terms could not override the Sixth Amendment’s requirements. The trial court granted the State’s motion to use a screen, reasoning that the statute appeared to be mandatory and expressing concerns about its ability to declare the statute unconstitutional or not follow it. The court did not make a case-specific finding of necessity, instead relying solely on the statute. Defendant appealed.
3. A trial court's policy requiring all witnesses to wear surgical masks during testimony in 2023, without making case-specific findings of necessity, violated the defendant's Sixth Amendment right to confrontation. During Champagne Smith's 2023 trial in Harris County, the trial court required all people, including witnesses, to wear surgical masks throughout the proceedings. Smith's counsel objected to this requirement on Sixth Amendment grounds, arguing that the masks inhibited the jury's ability to assess witness demeanor and credibility. The trial court overruled the objection without making case-specific findings of necessity. The trial occurred after mask mandates were no longer required by the Supreme Court of Texas and after the Governor issued an executive order prohibiting any surgical mask requirements.
The Mississippi Court of Appeals held that the trial court did not err in allowing the use of a screen to separate the child witness from the defendant during testimony, relying on Mississippi’s mandatory statute, Miss. Code Ann. § 99-43-101(2)(g) (2020). This statute provides child witnesses the right to such screening in child-abuse cases. The court reasoned that the statute’s mandatory terms provided sufficient authority for the use of the screen, and the court did not require a case-specific finding of necessity as outlined in Coy v. Iowa and Maryland v. Craig.
Smith appealed and the Fourteenth Court of Appeals reversed and remanded Appellant's conviction. According to the Court, Smith’s constitutional right to confrontation was violated by the trial court's mask mandate. The State sought discretionary review. The Court of Criminal Appeals reversed the judgment of the court of appeals and remanded the case for the lower court to determine whether the Confrontation Clause violation was harmless. Smith v. State, 726 S.W.3d 466 (Tex. Crim. App. Nov. 20, 2025) (6:0:3). Writing for the Court, Judge Walker reasoned that the trial court's policy requiring all witnesses to wear surgical masks during testimony in 2023, after mask mandates were no longer required by the Supreme Court of Texas and were prohibited by executive order, without making case-specific findings of necessity, violated the defendant's Sixth Amendment right to confrontation. The Court noted that surgical masks significantly impeded the ability to view facial expressions by covering both the nose and mouth, which affected multiple elements of confrontation, including the observation of demeanor by the trier of fact. In reaching this decision, the Court relied on U.S. Supreme Court and Texas precedent, including Maryland v. Craig, Coy v. Iowa, Romero v. State, and Finley v. State, to determine that the right to face-to-
[Commentary: This case almost reads like the Court is irritated with Mississippi and not just because spelling the State makes you sing a song in your head. That’s because this case really is answered by both Coy 11
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The United States Supreme Court reversed. Pitts v. Mississippi, 145 S.Ct. 413 (Nov. 24, 2025) (Per curiam). Writing for the Court, Justice Curiam explained that the trial court failed to follow the procedures and make the findings required by Supreme Court precedent before screening a child witness from the defendant at a trial on child-abuse charges. The Court held that the lower court’s reliance on a state statute, without a case-specific necessity determination, violated the defendant's Sixth Amendment right to face-to-face confrontation. The Court also rejected the State’s argument that there was a hearing with evidence and case-specific findings because the State represented to the trial court that the child’s guardian believed it would be difficult for her to testify face to face with her father. According to the Court, this fell short of the procedures required under Coy v. Iowa, 487 U.S. 1012 and Maryland v Craig, 497 U.S. 836 (1990).
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
face confrontation circumstances.
was
violated
under
attempt to withdraw his waiver of counsel was made for the purpose of delay. The trial court also relied upon Solis’s pattern of dilatory conduct throughout the trial as support for the denial of the request.
these
Presiding Judge Schenck filed a dissenting opinion in which Judges Yeary and McClure joined. The dissent would have held that the mask requirement did not amount to a deprivation of the physical presence element in this case and Appellant's confrontation rights were not violated. Presiding Judge Schenck reasoned that the physical face-to-face component of the Confrontation Clause was not denied in this case.
The Court of Criminal Appeals affirmed the conviction. The Court held that the evidence was legally sufficient to support the conviction for capital murder as well as the jury’s finding that Solis would be a future danger. The Court also held that the trial court did not abuse its discretion in denying Solis’s request to withdraw his previous waiver of counsel. Solis v. State, 726 S.W.3d 394 (Tex. Crim. App. Oct. 30, 2025) (9:3:0). Writing for the Court, Judge Finley reasoned that Solis’s attempt to withdraw his waiver of counsel was dilatory. Solis had previously insisted that his appointed attorneys be dismissed and then later argued that discovery materials provided to them were inadmissible because it had not been provided to him personally. He filed three motions for continuance including one immediately after the trial court granted his request to proceed pro se, and two others during the case-in-chief. Solis complained that he could not prepare for trial because he lacked access to pens even though he did have access to pens.
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[Commentary: The Court is still recovering from COVID. But the interesting thing here is that the Court could rely upon its holding in Romero v. State, 173 S.W.3d 502 (Tex. Crim. App. 2005). In that case, a witness testified in disguise by wearing a cap, pulling it down over his forehead and turning his collar up to cover his mouth, jaw, and the lower half of his nose. While this covered nearly all of his face, you can see how this seems similar to a possible surgical mask. Still, we may not have seen the last of this case if the court of appeals holds the error harmful. Exit question: Would Deadpool’s mask violate the Confrontation Clause?]
Presiding Judge Schenck joined the opinion except for Part VII, which were constitutional challenges to Article 37.071. In that portion of the opinion, the Court held that not only were his arguments on this point not preserved, but they have also been previously rejected by the Court.
4. Trial court’s denial of capital murder defendant’s request to withdraw a waiver of counsel right before closing argument did not violate the defendant’s Sixth Amendment right to counsel; request for counsel was made for purely dilatory purposes. Robert Solis shot and killed Harris County Sheriff's Deputy Sandeep Dhaliwal during a traffic stop. Fearing he was going back to jail for a parole violation, Solis charged Dhaliwal with a loaded gun while Dhaliwal’s back was turned to Solis. Dhaliwal raised his hands in submission after Solis pressed him against the patrol car, but Solis shot Dhaliwal in the head at close range. The entire crime was caught on video. The jury convicted Solis of capital murder and answered the special issue in am a manner that authorized the trial court to sentence Solis to death.
Judge Yeary joined the opinion except for Part IV, which was the part of the opinion addressing the waiver of counsel. Judge Walker concurred. 5. A defendant’s Sixth Amendment right to counsel was not violated when a judge ordered sua sponte that he could confer with his defense counsel about everything except his ongoing testimony during an overnight recess. David Villarreal was on trial for murder and was the only defense witness. He testified that he stabbed the victim in self-defense while the victim was trying to choke him to death. During Villarreal's direct testimony, a 24-hour overnight recess occurred. Before this recess, the trial judge instructed
Prior to trial, Solis waived his right to counsel and chose to represent himself. On the cusp of closing arguments in the guilt phase of trial, Solis attempted to withdraw his prior waiver of his right to counsel. The trial court denied Solis’s request, finding that his
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prohibiting Villarreal's lawyers from managing his ongoing testimony during a mid-testimony overnight recess did not violate his Sixth Amendment right to counsel. Villarreal v. Tex., 146 S. Ct. 756 (2026)(7:2:0). Writing for the Court, Justice Jackson explained that when a defendant takes the stand as a witness he assumes the position of a witness with attendant criticisms and burdens. One burden is that Courts may limit advice from counsel aimed at influencing the testimony in light of the testimony already given. In Geders v. United States, 96 S.Ct. 1330 (1976) the Court had held that a complete conferral ban during an overnight recess violated the Sixth Amendment because it interfered with the defendant’s right to counsel. However, in Perry v. Leeke, 109 S.Ct. 594 (1989) the Court held that a trial court’s order prohibiting conferral between a defendant and his lawyer during a fifteen-minute recess in the middle of testimony did not violate the Sixth Amendment. Given these two cases, the Court reasoned that the Sixth Amendment does not forbid limitations on conferral that might protect the truthseeking function of the trial. So, while a defendant has a constitutional right to consult with counsel on matters beyond their testimony, discussion of the testimony itself during such a recess is not protected, as it could shape future testimony and undermine the trial's integrity.
Villarreal's attorneys not to "manage" his testimony during the break. The judge clarified that Villarreal was not prohibited from talking to his attorneys and recognized his constitutional right to confer with them about certain topics, such as possible sentencing issues. Villarreal's lawyers objected to this order under the Sixth Amendment but indicated that they understood the scope of the order. Villarreal resumed his testimony 24 hours later and was subsequently convicted of murder, receiving a 60-year sentence. At no point did Villarreal or his attorneys suggest that the qualified conferral order had inhibited any conversation they wished to have. Villarreal appealed. The San Antonio Court of Appeals affirmed the conviction, reasoning that the conferral order was an effort to preserve the truth-seeking function of the trial. The court emphasized that while the trial court could not prohibit all communication between Villarreal and his counsel, it could limit discussions specifically about his testimony. Villarreal's attorneys confirmed their understanding of the court's instructions, and the court concluded that the trial court did not abuse its discretion in this matter. Villarreal filed a petition for discretionary review to the Texas Court of Criminal Appeals.
Justice Alito filed a concurring opinion, agreeing that the trial court did not violate Villarreal's Sixth Amendment rights, and sets out the framework under which courts should analyze limitations on communications between a criminal defendant and his attorney during a break in the defendant's testimony. He outlines that while a defendant may consult with counsel about matters other than testimony during an overnight break, any efforts to shape the defendant's ongoing testimony are improper, as they would undermine the truth-seeking function of the trial. Justice Thomas also filed an opinion concurring in the judgment, in which Justice Gorsuch joined. Justice Thomas concurs in judgment only and does join the Court's opinion because it opines on hypothetical situations not before the Court and needlessly expands the Supreme Court’s precedents.
The Supreme Court of the United States affirmed the lower courts' decisions, holding that the order 13
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The Texas Court of Criminal Appeals affirmed Villarreal's conviction. Writing for the Court, Judge Richardson explained that the order was a permissible exercise of the trial court's discretion because it only restricted discussions of Villarreal's ongoing testimony and nothing else. Villarreal v. State, 707 S.W.3d 138 (Tex. Crim. App. 2024), cert. granted, 145 S. Ct. 1897, 221 L. Ed. 2d 645 (2025) and aff'd, 146 S. Ct. 756 (2026). The court emphasized that the trial judge's order was limited to restricting discussions about the defendant's ongoing testimony, while allowing discussions on all other aspects of the criminal proceeding. Further, the Court noted that there was no evidence in the record suggesting that the defendant and his counsel were unable to confer on constitutionally permissible matters during the overnight recess. Villarreal filed a petition for certiorari to the Supreme Court of the United States.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
D. Prosecutor’s comments during closing argument that the defendant believed the murder victim was “scary because he was a Hispanic guy” and the “defendant’s own prejudices contributed to his fear of the victim were neither a comment on the evidence nor a response to opposing counsel. Hipolito Desoto drove his motorcycle to William Travis Kitchens’s auto shop. Desoto walked in, and a couple of minutes later Kitchens shot him. The encounter was recorded on surveillance video, but there was no audio. Testimony at trial established that Desoto came looking for a machinist, but Kitchens said he couldn’t help Desoto. Desoto used vulgar language and indicated that he or “they” would beat Kitchens’s “ass” or “fuck [him] up”?
also a reasonable response to Kitchens’s defensive issue that he acted under the influence of sudden passion. Kitchens sought discretionary review. The Court of Criminal Appeals reversed. The Court held that the trial court erred in overruling the defense objection to the prosecutor’s closing-argument comment that the defendant harbored prejudice against Hispanics. Kitchens v. State, 721 S.W.3d 467 (Tex. Crim. App. Sept. 3, 2025) (8:0:1). In an opinion written by Judge Parker, the Court held that the comment was not a reasonable deduction from the evidence. The Court explained that no testimony suggested that Kitchens harbored any racial motivations and the prosecutor’s statements were not a basis for drawing reasonable deductions from the evidence. The Court noted that a reasonable deduction from the evidence must be more than mere speculation. The Court also held that the argument could not be justified as a response to trial counsel’s statements. According to the Court, even when a response to defense counsel is warranted, a prosecutor may not stray beyond the scope of the invitation. Here, defense counsel had questioned the venire during voir dire regarding “banditos” and had referred to the victim as an “outlaw biker” but this did not open the door for the prosecution to argue the defendant harbored prejudice against Hispanics. The Court held that the prosecutor exceeded the scope of the invitation in defense counsel’s argument.
Prior to trial, the State sought a motion in limine regarding one of the stickers on the victim’s motorbike. Defense counsel claimed the initials “SYLB” on the sticker stood for “Support Your Local Bandidos.” The trial court allowed defense counsel to show a close up of the stickers, but he was prohibited from eliciting testimony about their meaning. During voir dire, defense counsel questioned the venire what the potential jurors thought about the word “bandito.” But the testimony elicited during the trial never suggested that the Kitchens harbored any racial animosity.
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During closing argument, defense counsel referred to the victim as an “outlaw biker.” In rebuttal, the prosecutor suggested that Kitchens was “prejudiced” and found the victim to be “scary” because the victim was Hispanic. At this comment, defense counsel objected. Defense counsel argued during a bench conference that injecting this race-based comment into trial violated the Fifth and Eighth Amendments. The trial court overruled the objection. Kitchens appealed.
Presiding Judge Schenck filed a dissenting opinion. Presiding Judge Schenck recognized that statements about racial prejudice might violate due process. However, he believed that the trial court did not abuse its discretion in allowing the argument. E. Tex. Code Crim. Proc. Art. 42A.751 which requires the State to prove that a defendant has the ability to pay his community supervision fees and court costs applies only when nonpayment is the sole allegation pursued by the State at a revocation hearing. Latora Brimzy pleaded guilty to misdemeanor assault on a family member in exchange for one year of deferred-adjudication community supervision. The State moved to adjudicate her guilt alleging she had committed a new offense, failed to participate in anger management training, and failed to pay community
The First Court of Appeals reversed and remanded for a new punishment trial due to the failure to submit a “sudden passion” instruction. Regarding the State’s comments during argument, the court of appeals held that the State’s arguments were a reasonable inference from that evidence. The court of appeals also explained that the prosecutor did not belabor the references to Desoto’s race, mentioning it just twice in its closing argument, in addition to repeating multiple aspects of Kitchens’s own evidence regarding Desoto’s appearance. Further, the court held the argument was
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receiving two convictions for a single act that violates two closely related federal firearm offenses, 18 U.S.C. § 924(c)(1)(A)(i) and 18 U.S.C. § 924(j). Dwayne Barrett committed a series of robberies between August 2011 and January 2012. During one robbery, Barrett's accomplice shot and killed Gamar Dafalla. Barrett was convicted on seven counts, including Hobbs Act robbery (Count 5), using a firearm during a crime of violence under § 924(c)(1)(A)(i) (Count 6), and causing death during a § 924(c) violation under § 924(j) (Count 7). The District Court merged Counts 6 and 7 for sentencing, imposing a total of 50 years in prison. The Second Circuit later vacated Barrett's sentence and remanded for resentencing, instructing the District Court to impose separate convictions and sentences for Counts 6 and 7.
supervision fees. At the hearing, the State abandoned the new offense allegation but pursued the failure-topay allegations and the failure to participate in anger management training allegation. The trial court adjudicated her guilty based solely upon the failure-topay allegation. The Fourteenth Court of Appeals sustained the appellant's claim that the trial court abused its discretion by adjudicating her guilt because the State did not meet its statutory burden of proof under the failure-to-pay statute. The court of appeals concluded that Article 42A.751(i) imposes a burden on the State in all cases in which nonpayment is "the sole ground supporting revocation." The court reasoned that restricting the statute's application to cases in which nonpayment is the sole ground alleged would be absurd because it would permit the State to avoid application of the statute by simply alleging additional grounds beyond nonpayment—regardless of merit. The State sought discretionary review.
The United States Court of Appeals for the Second Circuit held that separate convictions and sentences could be imposed for both using a firearm during the commission of a crime of violence in violation of 18 USCS § 924(c)(1)(A)(i) (count six) and for causing death in violation of 18 USCS § 924(j)(1) (count seven), even when both charges arose from a single act. The court of appeals reasoned that both statutory provisions could support separate convictions and consecutive sentences for the same conduct. The defendant sought discretionary review.
Judges Richardson, concurred in the result.
Newell,
and
The United States Supreme Court held that Congress did not clearly authorize convictions under both 18 U.S.C. § 924(c) and (j) for a single act that violates both provisions—therefore, one act that violates both may spawn only one conviction. Barrett v. United States, 146 S.Ct. 482 (Jan. 14, 2026) (9:4:1:0). Writing for the Court, Justice Jackson explained that § 924(j) (punishing fatal use of a firearm) is a lesser-included offense of § 924(c) (punishing firearm use in crimes of violence/drug trafficking). Further, Congress failed to provide a clear statement authorizing cumulative punishments for the same act. The Court held that only one conviction is permitted for a single act violating both provisions.
McClure
Justice Gorsuch filed a concurring opinion in part. He agreed with the Court's holding that only one conviction can stand, but he also addressed the distinction between successive and concurrent
Judge Walker dissented. F. The United States Constitution’s double jeopardy clause prohibits a defendant from 15
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The Court of Criminal Appeals reversed the judgment of the court of appeals and reinstated the trial court's order adjudicating Appellant's guilt. Brimzy v. State, 726 S.W.3d 379 (Tex. Crim. App. Oct. 30, 2025) (5:3:1). Writing for the Court, Judge Yeary reasoned that Tex. Code Crim. Proc. Art. 42A.751 applies only when nonpayment is the sole allegation pursued by the State in a revocation hearing. The Court noted that the plain meaning of "alleged only" in the statute limits its application to cases where nonpayment is the exclusive ground alleged and pursued, and that prior interpretations expanding the statute's reach were based on obiter dicta and not binding. Here, because the State's motion to adjudicate included and pursued additional grounds beyond nonpayment, Article 42A.751(i) did not impose an additional burden on the State to prove Appellant's ability to pay, even though the trial court ultimately adjudicated guilt solely on the nonpayment ground.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
court reasoned that the MVRA's restitution provisions are not punitive but compensatory.
prosecutions, noting that the Court's precedent has sometimes treated the Double Jeopardy Clause differently in these contexts. Justice Gorsuch explained that in successive prosecutions, the Blockburger test is applied strictly, but in concurrent prosecutions, it has sometimes been treated as a presumption that can be overcome by clear congressional intent. Justice Gorsuch questioned the logic of allowing Congress to authorize multiple convictions for the same offense in concurrent prosecutions when such a result is constitutionally barred in successive prosecutions. He suggested that the constitutional phrase "the same offence" should have a consistent meaning in both contexts.
The United States Supreme Court unanimously reversed the judgment of the Eighth Circuit and remanded the case. Ellingburg v. United States, 146 S.Ct. 564 (Jan. 20, 2026) (9:2:0). Writing for the Court, Justice Kavanaugh explained that whether a law violates the Ex Post Facto Clause depends on whether it imposes a criminal or penal sanction, as opposed to a civil remedy. The Court noted that the statutory text and structure of the MVRA make clear that restitution is criminal punishment, as it is labeled a penalty, imposed only upon criminal conviction, ordered at sentencing, and codified within the criminal code. The Court distinguished MVRA restitution from civil regulatory schemes, emphasizing that the features of the MVRA make it clear that restitution is criminal punishment.
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[Commentary: The opinion was mostly unanimous except for Part IV-C. Only four justices joined this part, Justices Sotomayor, Kagan, and Chief Justice Roberts. This portion only dealt with legislative history of the two statues and whether that history suggested an intent by the Legislature to overcome Blockburger and impose multiple punishments for the same conduct. That portion notes that even the legislative history was silent on that point. And because only four judges agreed with it, that portion of the opinion is only a plurality. An additional note, Justice Gorsuch’s take on multiple-punishment double jeopardy seems to be at odds with former Presiding Judge Keller’s take in Ex parte White, 688 S.W.3d 916 (Tex. Crim. App. 2024).]
Justice Thomas filed a concurring opinion which Justice Gorsuch joined. Both Justices joined the Court’s opinion in full because it correctly applied the Court’s precedent. However, Justice Thomas wrote separately to clarify the foundation of that precedent. He emphasized that the Ex Post Facto Clauses, as established in Calder v. Bull (1798), were originally understood to forbid only those retroactive laws that impose punishment for a crime. He noted that "punishment for a crime" at the time referred to any coercive penalty for a public wrong, not just those labeled as criminal by the legislature. He critiqued the Court’s modern approach, which uses multifactor tests that focus on legislative labeling and structure to determine whether a law is criminal or civil. Justice Thomas argued that this approach is historically unfounded and unnecessarily complex, allowing legislatures to evade constitutional protections through semantics. According to Justice Thomas, the proper inquiry should be whether a law imposes a coercive penalty to redress a public wrong, regardless of whether it is labeled as civil or criminal. He asserted that the Ex Post Facto Clauses should apply to any retroactive law that imposes punishment for a public wrong, even if the law is nominally civil. He explained that the distinction should be based on whether the law is enforced by the sovereign to redress a sovereign
G. Restitution imposed under the Mandatory Victims Restitution Act of 1996 (MVRA) constitutes criminal punishment for purposes of the Ex Post Facto Clause. The MVRA requires defendants convicted of certain federal crimes to pay monetary restitution to victims. Petitioner Holsey Ellingburg committed his crime before the enactment of the MVRA but was sentenced under the MVRA and ordered to pay $7,567.25 in restitution. Ellingburg challenged his continued restitution obligation on the grounds that applying the MVRA retroactively violated the Ex Post Facto Clause. The District Court's rejected that argument. So did the United States Court of Appeals for the Eighth Circuit. The court of appeals held that restitution under the MVRA is not criminal punishment subject to the Ex Post Facto Clause. The
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officers. The Court upheld the use of the peremptory strikes in light of the expressed distrust of police officers. Additionally, the Court considered a claim that alternate jurors were present with the jurors during deliberations and that this violated his right to a twelveperson jury. Judge Yeary concurred with this part of the opinion but joined the rest. On this ground the Court applied its decision in Becerra v. State, 685 S.W.3d 120 (Tex. Crim. App. 2024) to hold that even though it was error for the alternate jurors to be with the jury during deliberations, any error was harmless because they did not otherwise participate in deliberations. McKane also argued that Art. 37.071 was unconstitutional because it allowed for a less than unanimous verdict on the mitigation issue. The Court noted it has rejected this objection to the 10-12 rule many times. The Court also rejected McKane’s arguments that the failure to define “personal moral culpability of the defendant” and “sufficient mitigating circumstances” in the mitigation special issue violate the Constitution. The Court noted it had rejected similar challenges before.]
injury (public wrong), as opposed to being enforced by a private party to vindicate private rights. IV. EVIDENCE - The totality of the circumstances can support an inference of voluntary waiver of Miranda rights, even if an explicit waiver is not obtained. Otis Tyrone McKane shot and killed Detective Benjamin Macroni in the head while Macroni was in a patrol car. McKane was arrested by a SWAT team the following day. At the police station, homicide detectives interviewed McKane. The lead detective read McKane his Miranda warnings. McKane acknowledged he had been read his rights, and he understood them, but he was never asked if he was voluntarily waiving them. McKane admitted to shooting the officer. Later, he spontaneously told the officers transporting him to the detention center that he was glad he shot the detective and that it felt good to do it. He also repeated this statement to a detention guard at the magistrate’s office during booking. McKane filed a motion to suppress on the ground that he had not voluntarily waived his rights, but the trial court denied it. A jury convicted McKane of capital murder, and he was sentenced to death.
V. OFFENSES
[Commentary: This is a capital murder case so there were a few different issues in the case, but this is not an exceptional case. I’ve singled out the only issue that seems like it might be significant. There was also a Batson issue. During jury selection, the State used a peremptory strike against an African American venireperson who had expressed distrust of police
The Court of Criminal Appeals affirmed Parker's conviction for capital murder and sentence of death. Parker v. State, 727 S.W.3d 38 (Tex. Crim. App. 17
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A. Capital Murder - Under the Texas Penal Code, the definition of "individual" for kidnapping as a predicate for capital murder is limited to a human being who has been born and is alive, notwithstanding the broader definition in § 1.07(a)(26) that includes unborn children. Taylor Parker, who had undergone a hysterectomy and could not have children, faked a pregnancy to maintain her relationship with her boyfriend. Then, Parker went to Reagan Hancock's home and murdered her, inflicting 113 sharp force injuries and 39 blunt force injuries. Parker performed a crude C-section to remove Reagan's unborn child, Braxlynn. Parker was stopped by a state trooper while driving with the baby, who was not breathing. Paramedics were able to restore Braxlynn's heartbeat, but she was later pronounced dead. The State charged Parker with capital murder and sought the death penalty. A jury convicted Parker of capital murder, and the trial court sentenced her to death after the requisite findings.
The Court of Criminal Appeals affirmed. McKane v. State, 726 S.W.3d 413 (Tex. Crim. App. Oct. 30, 2025) (9:1:0). Writing for the Court, Judge McClure reasoned that the totality of the circumstances supported an inference that the Appellant voluntarily, knowingly, and intelligently waived his Miranda rights, even though police did not explicitly ask if he was waiving those rights. The Court noted that Appellant was read his rights, stated he understood them, and engaged in a conversational interview after being told he was arrested for capital murder. In reaching this decision, the Court considered the conduct of the police during the arrest and interrogation, the absence of excessive force or threats, and Appellant’s own words and actions indicating understanding and willingness to speak.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
Nov. 6, 2025) (8:1:0). Writing for the Court, Judge Finley reasoned that sufficient evidence supported the jury's finding that Braxlynn was "born and is alive" at the time of the kidnapping, based on paramedic testimony that they restored her heartbeat (which would be impossible for a stillborn), medical testimony regarding the baby's viability, and testimony that Parker told another inmate the baby was alive after the C-section. The Court noted the critical statutory distinction between the general Penal Code definition of "individual," which includes unborn children, and the kidnapping statute's narrower definition, which requires the victim to be "born and is alive." Here, the evidence was found sufficient to show that Braxlynn met this definition at the relevant time.
unresponsive during a nap. Her efforts to resuscitate her failed. Toxicology tests revealed a toxic level of diphenhydramine in C.F.’s blood (Benadryl). Additionally, high levels of diphenhydramine were present in C.F.’s skeletal muscle and urine. The level of diphenylamine far exceeded the therapeutic dose recommended for adults. Further, C.F.’s doctor testified that administering diphenhydramine was an act clearly dangerous to human life. Fraser was solely responsible for preparing bottles of formula that were used to feed the infants. Police also sought a search warrant based upon the investigating detective’s belief that evidence would be found on Fraser’s phone. The warrant was supported by the detective’s belief that evidence on Fraser’s phone might reveal that Frasier searched the internet after the victim’s death for side effects of diphenhydramine and that she sent messages to others about the victim’s death. The search of the phone revealed that four days after the victim’s death, Fraser told her daughter via text to move medications (including Benadryl) from the playroom cabinet to a closet before a state licensing board inspector could visit the house. Additionally, Fraser also texted one of the other parents whose child attended the day care to see if police had reached out and to remind the parent that she, Fraser, did not give medicine. A jury convicted Fraser of felony murder based upon the underlying offense of injury to a child.
Judge Walker filed a concurring opinion in which Presiding Judge Schenck and Judges Richardson and Parker joined. Judge Walker agreed with the Court’s holding on the merits but wrote separately to state that in the Penal Code, unborn children are individuals and therefore people too. Judge Walker highlighted an important distinction within the Penal Code regarding the two definitions for what constitutes an “individual.” Judge Walker emphasized the importance of statutory construction, particularly the use of the term "notwithstanding" in the kidnapping statute, which overrides the broader definition found elsewhere in the Penal Code. Judge Keel concurred without opinion.
The Amarillo Court of Appeals affirmed the conviction. The court of appeals held that administering diphenhydramine to a four-month-old child was “an act clearly dangerous to human life.” Though the exact time and manner of the administration of the diphenhydramine was hotly contested, the court of appeals held the evidence was legally sufficient.
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[Commentary: This is a horrible crime. I would not be surprised if the legislature looks at this and corrects the inconsistency between the definition of an “individual” for kidnapping and the definition of “individual” for capital murder.] B. Felony Murder – Providing Benadryl to infant is “an act clearly dangerous to human life” to support conviction for felony murder based upon injury to a child. This case appears in two different places because there are two issues, one a search issue and one a sufficiency issue. This summary focuses on the sufficiency issue. Marian Fraser was charged with the felony murder of C.F.,1 a four-month-old, at Fraser’s Waco day care. Frasier found the four-month-old victim, C.F.,
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The Court of Criminal Appeals agreed that the evidence was legally sufficient. Fraser v. State, 726 S.W.3d 253 (Tex. Crim. App. Sept. 3, 2025) (6:3:0). Writing for the Court, Judge Finley explained that the evidence was sufficient for a jury to believe that Fraser gave the victim diphenhydramine at such levels that it amounted to “an act clearly dangerous to human life.” A jury could have believed that the fatal dose was administered the morning the child died. Further, even
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
C. Injury to a Child By Omission - A duty from the Health and Safety Code that requires a dangerous dog owner to, among other things, restrain the dog or deliver the dog to animal control, may serve as the statutory duty to act for purposes of the injury of offense to a child by omission. Ray Lee Cockrell’s dogs attacked a neighbor’s horse. He received a dangerous dog notification, pursuant to the Health and Safety Code. Cockrell’s property contained a fence, but the fence proved insufficient to contain the dogs and the dogs continued to attack people and other animals in the neighborhood. In one such instance, the dogs attacked a child walking in the neighborhood causing serious injuries. The State charged Cockrell with injury to a child by omission. In the indictment, the State alleged that Cockrell had violated a duty imposed upon owners of dangerous dogs found in §822.042 of the Health and Safety Code. This statute requires owners of a dangerous dog to do four things within 30 days after learning he or she owns a dangerous dog: 1) register the dangerous dog with the animal control authority; 2) restrain the dangerous dog at all times on a leash or in a secure enclosure; 3) obtain liability insurance coverage to cover damages resulting from an attack by the dangerous dog; and 4) comply with applicable municipal or county regulations. However, under §822.042(b), a person can simply choose not to comply with this section by turning the dog over within 30 days of learning he or she owns a dangerous dog. Under the State’s theory, Cockrell violated this duty by failing to keep the dog in a secure enclosure. A jury convicted Cockrell and sentenced him to thirty-five years imprisonment.
though everyone denied administering medicine, the only one responsible for preparing the bottles of formula was Fraser. Judge Finley filed a concurring opinion. Judge Finley agreed that under our current jurisprudence, the evidence is sufficient to support Fraser’s conviction for felony murder. However, Judge Finley expressed skepticism about the current interpretation of the felony murder statute and advocating for a reexamination of its application to assaultive offenses. Judge Yeary filed a concurring and dissenting opinion in which Judge Parker and Presiding Judge Schenck joined. Judge Yeary agreed with the majority’s conclusion on the defendant’s sufficiency of the evidence claim but disagreed with the Court’s conclusion on the Fourth Amendment issue, arguing that the search warrant affidavits provided a sufficient basis for probable cause and criticized the Court's reliance on State v. Baldwin. Judge Parker also filed a concurring and dissenting opinion. Judge Parker also dissented on the Fourth Amendment issue, finding a sufficient nexus between the electronic devices and the offense based on the nature of the crime and Fraser’s role as a caregiver. Judge Parker joined the Court on the remaining issues.
The Sixth Court of Appeals reversed and entered a judgment of acquittal. According to the court of appeals, injury to a child by omission requires that an actor has a legal or statutory duty to act, or the actor has assumed care, custody, or control of the child. Tex. Penal Code § 22.04(b). The court of appeals concluded that the State neither alleged nor proved this statutory element. In so holding, it disagreed with the State’s position that a statute outside of the Family Code could supply the required duty. The State sought discretionary review.
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The Court of Criminal Appeals reversed the Court of Appeals. Cockrell v. State, 721 S.W.3d 448 (Tex.
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[Commentary: The Court was unanimous as to Parts I, II, and IV, and the opinion of the Court. This was the sufficiency of the evidence to support the conviction. As to the search issue (Parts III and V), Judge Finley wrote the majority, and he was joined by Judges Richardson, Newell, Keel, Walker, and McClure. Regarding the sufficiency issue, the Court is unanimous. The tricky thing is that the Court holds that the jury could have believed there was a single massive dose of diphenhydramine, but most court watchers might instinctively think this was a buildup of Benadryl over time to manage the baby’s sleep. Still, the uncontested evidence was that Fraser prepared the bottles not the other workers at the day care, which is why the Court ultimately held that the evidence was legally sufficient. And no one seemed to have any appetite to bring back the “merger doctrine” despite Judge Finley’s request.]
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
Crim. App. Aug. 20, 2025) (5:1:3). Writing for the Court, Judge Yeary explained that Section 822.042(a) contains the word “shall,” which imposes a duty and, in context, requires dangerous dog owners to restrain their dogs or, in the event they fail to do so, to turn them over to animal control. It was not determinative that the State did not allege Cockrell failed to relinquish the dogs because the duty to restrain was mandatory and, in any event, that argument goes only to the sufficiency of the pleadings. Regardless, the Court found a mandatory duty to act and held that duty could be imported into the injury to a child offense. As to that holding, the Court reasoned that the plain text of the offense statute does not impose any limitation on what statutory duties may suffice. The Court disagreed with the Court of Appeals’ conclusion that this hold leads to absurd results. The duty owed, the Court explained, need not be owed to a particular person, all that is required is a corresponding duty to act.
[Commentary: The Court’s analysis about importing duties from outside the Penal Code is a little closer than the Court let’s on. It’s not simply a matter that the general statute regarding acts and omissions in Chapter 6 refers to a “law.” The Court reasons that § 6.01(c) states “that an omission constitutes an offense if a law provides a duty to perform to act.” The Court paraphrases this section which actually reads “a person who omits to perform an act does not commit an offense unless a law as defined by Section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act.” Cockrell argued that the Health and Safety Code duty for owners of dangers dogs couldn’t be used for injury to a child because it doesn’t create an offense and because an owner of a dangerous dog can choose to comply with either the four requirements under subsection (a) or turn the dog over to animal control under subsection (b). The Court relies heavily on the mandatory language in subsection (a) without considering the mandatory language in (b) and the fact that both subsections contemplate action by the dog owner within the same 30-day time frame. At the risk of baking your noodle, but if a defendant has 30 days to comply with the requirements in subsection (a) as well as subsection (b) then he has not failed to comply with subsection (a) until 30 days have passed. So, if he complies with subsection (b) and takes the dog to animal control, he has not violated subsection (a). Contrary to the Court’s assertion, subsection (b) isn’t a failsafe not non-compliance with subsection (a) because it takes place at the same time under the statute. Seems pretty alternative rather than mandatory.]
Judge Richardson concurred with opinion in the result only.
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Judge McClure, joined by Judge Keel, filed a concurring opinion. The concurrence agreed with the Court’s plain language analysis but cautioned that “troubling consequences” could arise from importing a countless number of statutory duties into the criminal code absent clear notice. Although the concurrence finds the rule of lenity not at issue, it notes criminal laws should be written with precision and invites the Legislature to clearly state the specific conduct it intends to punish. Judge Finley, joined by Judges Newell and Walker, filed a dissenting opinion. According to Judge Finley, the history of the offense of injury doesn’t contain any indication that the duties conceived of could be something not familial or care oriented. The dissent concludes that the duties imported into the injury to a child by omission penal code are those between the act and a specific individual or class of individuals; in other words, to establish criminal liability some type of duty needs to be directed owed by the actor to the complainant. The statute does not cover, however, situations in which a defendant unforeseeably causes injury to a victim whom he owed no duty.
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D. Cargo Theft - The cargo theft statute requires proof of conduct distinct from the theft itself so backing a truck to a trailer is merely attempted theft. Daryl Joe entered the premises of Corsicana Bedding and backed his semi-truck up to a trailer containing mattresses. He connected his truck to the trailer simply by backing up to the trailer. However, he was confronted before he attached the brake lines or raise the levers. These two steps were necessary to move the trailer. The Appellant was not authorized to take the trailer and entered without a gate code. He claimed he was dispatched by Clifford Lewis, 20
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
dissent disagreed with the Court’s construction of the Organized Retail Theft statute in Lang and further argued that the Court's reliance on Lang in this case was misplaced. Judge Keel also filed a dissenting opinion. Judge Keel agreed with the court of appeals and argued that the Appellant conducted an activity by attempting to connect the brake lines and lights. This, according to her, satisfied the statutory requirements for cargo theft.
who denied involvement. The trial court convicted Joe of cargo theft. Joe appealed, arguing that under Tex. Penal Code §31.18(b)(1), the cargo theft statute required a showing that a person conducted an activity in which he possessed stolen cargo. According to Joe, he never conducted an activity to possess stolen cargo because backing the truck up did not convert the cargo into stolen cargo because he couldn’t haul it away. The court of appeals disagreed, holding that Joe stole the cargo when he backed his truck under the trailer and connected the two. Further, the court of appeals explained that Joe conducted an activity in which he possessed the stolen cargo when he attempted to hook up the brake lines and lights. Joe sought discretionary review.
VI. JURY INSTRUCTIONS A. A defendant who resists arrest before an officer uses allegedly excessive force cannot claim necessity as a defense to that unlawful use of force. Police responded to three 911 hang-up calls from an upholstery business. Police found Jeremiah Navarro’s mother covered in transmission fluid. Navarro appeared outside and called his mother a black widow and a drug dealer before retreating to the office. Police repeatedly commanded Navarro to “come out of there,” but Navarro refused. The State charged Jeremiah Navarro with assault on a public servant for biting Officer Turner. Navarro resisted officers' attempts to arrest him. According to Navarro, police came inside holding a taser and handcuffs and told him to come outside and talk. Navarro refused and sat in a chair smoking a cigarette. Officer Brian Turner tried to drag Navarro out based upon Navarro’s refusal. Audio of the incident reveals that there was a back-and-forth about putting down the lighter Navarro was apparently holding and Navarro expressing concern that “you’re going to blow us up.” Officer Turner tased Navarro after both men fell on the floor. According to Navarro, Officer Turner was able to cuff one of his hands, but Navarro continued to struggle against attempts to cuff the other hand. Navarro claimed to have difficulty breathing because the officer was on top of him, so he bit a large chunk of flesh out of the officer’s arm. Navarro stated he did not believe it was the officer’s intent to cut off his breathing.
Judge Parker filed a concurring opinion- in which Judge Finley joined, emphasizing that Lang does not preclude a conviction for a lone actor if they engage in an activity beyond the theft itself. Judge Yeary filed a dissenting opinion. Judge Yeary agreed with Judge Keel that the evidence was legally sufficient to support Appellant’s conviction for cargo theft. The
The State charged Navarro with resisting arrest. During the trial, Navarro requested a jury instruction on necessity. The trial court denied Navarro's request for a necessity defense instruction but included selfdefense in the jury charge. The First Court of Appeals 21
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The Court of Criminal Appeals reversed and remanded for consideration of whether the judgment should be reformed to any lesser included offense. Joe v. State, 726 S.W.3d 482 (Tex. Crim. App. Nov. 20, 2025) (7:0:2). Writing for the Court, Judge McClure explained that Joe’s actions of backing his truck to the trailer and attempting to connect it were inherent in the theft itself and did not constitute a separate "activity" required by the cargo theft statute, making the evidence insufficient to support a conviction for cargo theft. The Court noted that the cargo theft statute's language is nearly identical to the organized retail theft statute previously interpreted in Lang v. State. The Court applied the same interpretation requiring proof of conduct distinct from the theft itself. Here, the appellant's conduct did not satisfy the "activity" element because it was not distinct from the acts inherent in stealing the cargo. In reaching this decision, the Court explained that the cargo theft statute is ambiguous, like the organized retail theft statute, and rejected distinguishing the statutes based on their titles, emphasizing that titles do not limit or expand statutory meaning.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
appeals’ decision below. Therefore, the dissent argued, that the question surrounding Bowen was not properly before the Court.
held that Appellant was not entitled to the necessity defense because it was undisputed that he provoked the difficulty.
Judge Richardson concurred.
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The Court of Criminal Appeals affirmed the judgment of the court of appeals, though for different reasons than those articulated by that court. Navarro v. State, 726 S.W.3d 436 (Tex. Crim. App. Nov. 6, 2025) (5:1:3). Writing for the Court, Judge Parker reasoned the necessity defense only applies “if a legislative purpose to exclude the justification for the claimed conduct does not otherwise plainly appear.” According to the Court, the resisting-arrest exclusion in the self-defense statute constitutes a plainly appearing legislative purpose to exclude justification under the necessity defense. In other words, because self-defense doesn’t apply to resisting, the legislature intended it not to apply to necessity. So, a defendant who resists arrest before an officer uses allegedly excessive force cannot claim necessity as a defense. The Court noted that because the appellant admittedly resisted arrest before the officer allegedly impeded his breathing, he fell within the resisting-arrest exclusion and could not claim either self-defense or necessity as justification for his conduct. In reaching this decision, the Court overruled Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005) finding it flawed for failing to conduct a proper statutory construction analysis and for contradicting the plain language of the relevant statutes.
[Commentary: Instead of considering whether this defendant was not entitled to a necessity defense, the State Prosecuting Attorney’s office argued that categorically no defendant facing an unlawful use of force has a necessity defense. The Court agreed and overturned precedent to the contrary to reach the result. But as alluded to in the summary, a legislative intent to limit the applicability of self-defense in resisting cases doesn’t necessarily translate to a limitation on other defenses. But your mileage may vary.] B. In capital murder prosecutions under Texas Penal Code Section 19.03(a)(7)(B), a jury charge may disjunctively allege different capital murder theories with respect to the same predicate victim, and the jury does not need to be unanimous on the specific aggravating murders as long as they unanimously agree on the elements of the capital murder charge. In October 2021, William George Davis, a cardiovascular intensive care unit (CVICU) nurse at Christus Mother Frances Hospital in Tyler, Texas, was convicted of capital murder for the deaths of Christopher Greenaway and one or more of John Lafferty, Ronald Clark, and Joseph Kalina during different criminal transactions but pursuant to the same scheme or course of conduct. The scheme involved Davis deliberately injecting large amounts of air into the patients' arteries, causing severe strokes. Davis was not formally assigned to the victims' care but was the only nurse whose shifts coincided with the victims' sudden downturns. He was sentenced to death. Direct appeal to the Court of Criminal Appeals is automatic.
Judge Yeary filed a concurring opinion in which Presiding Judge Schneck joined. Judge Yeary agreed with the judgment of the Court and joined all except Part II(C)(1) of its opinion. Judge Yeary disagreed with Part II(C)(1) to the extent that it continues to suggest the Court is constrained from overruling erroneous precedent unless the Court first considers all the various factors the Court enumerates.
The Court of Criminal Appeals held there was no reversible error in the trial court's proceedings and affirmed the conviction and death sentence. Davis v. State, 2026 WL 692433 (Tex. Crim. App. Mar. 12, 2026)(9:0). Writing for a unanimous Court, Judge Richardson explained that under Texas law, a jury must reach a unanimous verdict on the elements of the crime, but not necessarily on the specific manner or means of committing the crime. Davis argued that the jury should have been instructed to unanimously agree
Judge Walker filed a dissenting opinion in which Judges Newell and McClure joined. The dissent emphasized that the Court granted review to determine whether the Appellant was entitled to a necessity instruction even though he may have “provoked the difficulty.” Judge Walker noted that rather than focus on that question, the Court goes out of its way to overrule Bowen when neither party asked the Court to revisit Bowen, and Bowen played no role in the court of
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not applicable when the evidence conclusively establishes that the defendant was engaged in criminal activity at the time he used deadly force. The Court held that the prosecutor repeatedly misstated the law by conflating the presumption of reasonableness with the ability to claim self-defense, which was compounded by the trial judge's rulings that favored the State's misstatements. The court found that these instances led to the jury being misled about the availability of selfdefense.
on the identity of the victims of the non-predicate offenses. The Court held that the jury charge properly set out a single offense of capital murder with different theories alleged disjunctively, and thus Davis received the unanimous verdict guaranteed under Texas law. [Commentary: There were many more issues raised in this opinion, but this was the one that seemed the most significant. But I have included a link to the opinion so you can decide for yourself and satisfy any curiosity you might have.]
Judge McClure filed a concurring opinion in which Judge Walker joined. McClure emphasized that the prosecutor's misstatements regarding self-defense law were pivotal in determining that the jury charge error caused harm to the Cuevas. He highlighted a specific slide shown to the jury that incorrectly stated the law, asserting that the ongoing commission of a crime merely eliminates the presumption of reasonableness rather than precluding a self-defense claim entirely. McClure argued that these misstatements, compounded by the trial court's rulings favoring the State, effectively twisted the presumption of reasonableness into a total bar against the Cuevas’ self-defense claim.
C. The inclusion of a presumption-ofreasonableness jury instruction regarding selfdefense was harmful in light of the prosecutor’s arguments conflating the presumption of reasonableness with the availability of self-defense. In July 2017, Victor Hugo Cuevas and his friend Milton Egbe arrived on motorcycles at a shopping center parking lot, where Cuevas intended to sell marijuana to Osiekhuemen Omobhude (Ose). During the transaction, Ose allegedly threatened Cuevas with a gun, leading Cuevas to shoot Ose multiple times as Ose drove away. Ose later died from gunshot wounds. Cuevas and Egbe were seen on security footage appearing to celebrate after the incident. At trial, Cuevas claimed self-defense, asserting that Ose had robbed and threatened him. The State argued that Cuevas intended to kill Ose during a drug deal gone wrong. The trial court included a presumption-ofreasonableness instruction in the jury charge. The jury found Cuevas guilty of murder, but during sentencing, they determined he acted under sudden passion, sentencing him to 18 years in prison. Cuevas appealed.
Judge Keel also concurred.
On appeal, Cuevas argued that the jury instruction erroneously contained an instruction on a presumption of reasonableness regarding Cuevas’s right of selfdefense. The court of appeals agreed that this was error, but held it was harmless. The Court of Criminal Appeals of Texas reversed the conviction and remanded for a new trial. Cuevas v. State, 2026 WL 899833 (Tex. Crim. App. Apr. 2, 2026)(5:2:1:3). The Court noted that the only issue before it was harm not whether the instruction itself was error so the Court assumed the instruction was erroneous. Writing for the Court, Judge Parker emphasized that the presumption of reasonableness is
VII. APPEALS A. Jurisdiction
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1. A trial court loses jurisdiction over a criminal case once the appellate record is filed, and it cannot act further in the case unless jurisdiction is returned by mandate from the appellate court. Wade Thomson was convicted of ten counts of
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Judge Yeary filed a dissenting opinion in which Judge Finley joined, and Presiding Judge Schenck joined as to part 6. Yeary argued that the Court erred in reversing the conviction based on the jury charge, as he believes there was likely no error in the charge itself. He contends that the trial court's inclusion of the presumption-of-reasonableness instruction was not erroneous because the evidence did not conclusively show that the Cuevas was engaged in criminal activity at the time he used force, and any error was more related to the prosecutor's misstatements of the law rather than the jury charge.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
that allowed courts to suspend procedures and deadlines could not and did not create jurisdiction after it was lost.
possession of child pornography on May 20, 2020. Notice of appeal was filed on May 21, 2020. The 30day deadline for filing a motion for new trial expired on June 19, 2020, with no motion filed. On July 13, 2020, the State disclosed new Brady impeachment evidence against the arresting officer. The appellate record was filed on July 14-15, 2020. Thomson filed an untimely motion for new trial on July 15, 2020, after the trial court had lost jurisdiction (instead of waiting to file a writ). The trial court recognized it had lost jurisdiction and took no further action on the motion. The First Court of Appeals abated the appeal and remanded for a hearing on the untimely motion for new trial, relying on the COVID-19 Emergency Order that allowed suspension of procedures and deadlines. The trial court, on remand, denied the motion for new trial. The trial court held that it had lost jurisdiction over Thomson's case by the time the new Brady information came to light and therefore could not act on the untimely motion for new trial. Both parties appealed.
Judge Yeary concurred in the result. [Commentary: Why did I sign any of those emergency COVID orders? I’m so dumb. Hopefully this puts the final nail in the coffin of attempts to expand court authority under emergency situations.] 2. A court of appeals in Texas lacks jurisdiction to address the merits of DNA appeal if the Appellant fails to properly file a motion for extension under the requirements of Rule 4.6 of the Texas Rules of Appellate Procedure. Luzalbert Hernandez was convicted of engaging in organized criminal activity and aggravated assault with a deadly weapon. He filed three Chapter 64 motions seeking post-conviction DNA testing on one of the deadly weapons, a golf club. The trial court denied the motions because identity was not an issue and exculpatory DNA testing would not have changed the outcome of the trial. Unfortunately, the trial court failed to notify Hernandez of the rulings until the deadline to file a notice of appeal had passed. Hernandez then pursued two motions to extend time to file his notice of appeal—one under the rule specific to appealing denial of DNA testing, and the other under the rule that applies generally to criminal appeals.
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The First Court of Appeals reversed and remanded the case for new trial and held that the trial court abused its discretion in denying Thomson's motion for new trial based on newly discovered Brady evidence. The court of appeals reasoned that, in light of the State's post-trial disclosure of previously undiscovered impeachment evidence, the trial court should have granted Thomson's motion for new trial, even though the motion was filed after the 30-day deadline. Both parties sought discretionary review. The Court of Criminal Appeals reversed the judgment of the First Court of Appeals and remanded the case. Thomson v. State, 727 S.W.3d 200 (Tex. Crim. App. Dec. 10, 2025) (8:1:0). Writing for the Court, Judge Richardson explained that the court of appeals exceeded its authority by abating Thomson's appeal for consideration of an untimely motion for new trial. Abatement is only proper to correct a trial court’s action or failure to act under Rule 44.4 of the Rules of Appellate procedure. Here, there was no erroneous trial court action to correct, as the trial court correctly recognized it had lost jurisdiction. The Court also noted that the trial court's power to act is limited by its retention of jurisdiction or statutory authority over the matter. Here, the trial court had lost jurisdiction over Thomson's case by the time the new Brady information came to light. Further, the emergency COVID orders
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The Thirteenth Court of Appeals affirmed the first two denials. The court of appeals dismissed Appellant’s general motion for extension of time to file notice of appeal while the DNA-specific motion for extension was pending in the trial court. Appellant sought discretionary review of the dismissal. The Court of Criminal Appeals affirmed the judgment of the court of appeals. Hernandez v. State, 726 S.W.3d 285 (Tex. Crim. App. Sept. 24, 2025) (9:0). Judge Keel delivered the opinion for a unanimous Court. The Court held that Appellant’s notice of appeal and motion for extension of time under Rules 26.2 and 26.3 were untimely because they were filed more than 15 days after the original deadline. Meanwhile, the Court also held that Appellant’s Rule 4.6 motion for extension of time did not serve as a notice of appeal to invoke the appellate court’s 24
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courts also have an independent obligation to determine whether constitutional error is harmless.
jurisdiction because it did not meet the “sworn” requirement. Both of Appellant’s efforts to invoke the court of appeals’ jurisdiction were ineffective.
Presiding Judge Schenck filed a dissenting opinion in which Judges Yeary and McClure joined. The dissenters would have held that the mask requirement did not amount to a deprivation of the physical presence element in this case and Appellant's confrontation rights were not violated. Because the dissenters did not believe there was error, they did address the Court’s holding regarding harm except in a footnote. There, the dissenters essentially agreed with the Court that reviewing courts must make a determination regarding the harm associated with a particular error.
[Commentary: So, the Court actually created Rule 4.6 of the Texas Rules of Appellate Procedure to cover exactly this situation. Unfortunately, Hernandez did not follow all the requirements of that rule to pursue his appeal. Note to practitioners, read that rule and swear to the motion for extension to you validly represent to the court of appeals the fact of notice.] B. Court of appeals erred in holding that error was constitutionally harmful simply because the State failed to address harm in its brief; reviewing courts have an independent duty to address harm. During Champagne Smith's 2023 trial in Harris County, the trial court required all persons, including witnesses, to wear surgical masks throughout the proceedings. Smith complained on appeal that this violated the Confrontation Clause. The merits of Smith’s appeal on that issue are discussed above under Procedure; G. Sixth Amendment.
C. If your attorney gives up at punishment and you can’t meet the Strickland standard for ineffective assistance on direct appeal, can you still meet the Chronic standard for denial of counsel? Wait for the writ. Larry Jackson’s attorney requested a mitigation expert, but the trial court did not give him one. So Larry Jackson’s attorney stated he could not represent his counsel and did the bare minimum. The Fourteenth Court of Appeals held that on direct appeal Jackson’s ineffective assistance claim failed under Strickland. The Court granted Appellant's petition for discretionary review to determine whether the court of appeals erred in finding that the Appellant failed to satisfy the Strickland test for an ineffective assistance of counsel claim and in finding that the record lacked any showing for the need for the requested expert. After examining the record and briefs the Court concluded that the decision to grant review was improvident. Jackson v. State, 2025 WL 3692183 (Tex. Crim. App. Dec. 19, 2025) (Per Curiam).
The Fourteenth Court of Appeals agreed with Smith that there was constitutional error. However, when it turned to analyze harm, the court of appeals noted that the State has the burden to prove that error is harmless beyond a reasonable doubt. The court of appeals further noted that the State failed to substantively address the issue of harm in its appellate brief. Because of this deficiency in the briefing the court of appeals held that the error was not harmless beyond a reasonable doubt. The State sought discretionary review.
Presiding Judge Schenck filed a concurring opinion (2025 WL 3708329). The concurrence joined the Court in dismissing Appellant's petition for discretionary review as improvidently granted; however, believes that factual questions remain to be answered before the Court can make a final determination relative to counsel's possible rationale. Judge Finley filed a dissenting opinion (2025 WL 3708329) in which Judges Richardson, Yeary, and Parker joined. Judge Finley addressed the distinction between claims of ineffective assistance of counsel 25
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The Court of Criminal Appeals reversed the judgment of the court of appeals and remanded the case for the lower court to determine whether the Confrontation Clause violation was harmless. Smith v. State, 726 S.W.3d 466 (Tex. Crim. App. Nov. 20, 2025) (6:0:3). Writing for the Court, Judge Walker explained that a reviewing court has an independent duty to consider whether a particular error resulted in harm. The Court noted cases that couched harm in terms of a burden but further noted that the State is not even required to file a brief. According to the Court, even if the State could be said to have a “burden” to show harmlessness for constitutional error, reviewing
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
concluding that the state court’s application of the Strickland standard for ineffective assistance of counsel was not objectively unreasonable. Sweeney appealed.
under Strickland v. Washington and United States v. Cronic. The dissent argued this is a Cronic case. Finley compared the present case to Cannon v. State. In Cannon, trial counsel similarly refused to participate during the punishment phase after being denied funds for a mitigation specialist and a continuance. The dissent argued that counsel declined to make objections, present evidence, or make arguments, effectively abandoning the role of advocate and causing the trial to lose its adversarial character. The dissent concluded that, under Cronic and Cannon, trial counsel's conduct constituted a complete failure to provide meaningful adversarial testing during the punishment phase, warranting a presumption of prejudice and a new punishment trial.
The Fourth Circuit Court of Appeals held that Sweeney’s trial was marred by a “combination of extraordinary failures from juror to judge to attorney” that deprived Sweeney of his right to be confronted with the witnesses against him and his right to trial by an impartial jury. Based on this reasoning, the Fourth Circuit granted postconviction relief and ordered a new trial, even though this claim had not been asserted by Sweeney nor addressed by the State. State sought discretionary review. The United States Supreme Court, in a per curiam opinion, reversed the Fourth Circuit’s judgment and held that the Fourth Circuit erred by granting postconviction relief on a claim that the petitioner never asserted and that the State did not have the opportunity to address. Clark v. Sweeney, 146 S.Ct. 410 (Nov. 24, 2025) (Per Curiam). This "radical transformation" of the Petitioner’s ineffectiveassistance claim was deemed an abuse of discretion and a departure from the adversarial system. The Court emphasized that courts "call balls and strikes"; they do not get a turn at bat. The case was remanded for the court of appeals to consider the merits of the claim actually raised, consistent with the party-presentation principle.
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[Commentary: This is an unpublished order dismissing a petition for discretion as improvidently granted. But the two side opinions are published (and are found in different places on Westlaw so I provided the Westlaw cite, good luck with that one Westlaw). None of this is precedent, assuming judges are constraint to follow precedent they disagree with. Nevertheless, this does demonstrate as many other cases have that it is extremely difficult to prevail on a claim of ineffective assistance or perhaps even a denial of counsel without record development. Jackon is more likely to find success on an eventual writ application.] D. Appellate courts must adhere to the principle of party presentation, meaning courts should decide only the claims that the parties have actually raised and argued. A Maryland jury convicted Jeremiah Sweeney of second-degree murder and other crimes after a shooting incident. During the trial, after the State rested its case, Juror 4 independently visited the crime scene and later informed the jury about his visit. The jury reported this to the court. The parties agreed to dismiss Juror 4 and continue deliberations with the remaining eleven jurors. Sweeney’s convictions were affirmed on direct appeal. Sweeney sought postconviction relief in state court, arguing that his trial counsel was ineffective for not seeking to voir dire the entire jury to determine if other jurors were tainted by Juror 4’s actions. The state court denied relief. Sweeney filed a federal habeas petition on the same ineffective-assistance claim, which was also denied by the District Court,
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[Commentary: What does this suggest about some members of the Court of Criminal Appeals trying to reach out and lift a mandate on an opinion that is not part of the case before the Court? Or what about when the parties all agree that relief should be granted in habeas? Would trying to take control of the parties to get them to do the Court’s bidding run afoul of the principles described in this opinion? I suppose this is just navel gazing on my part because I can already hear the argument that this is a federal appellate case so it isn’t binding on how state courts handle their business, particularly with writs.]
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E. Anders brief – A court of appeals must enter a formal written order specifying the procedure to be followed to ensure access to the record, and it must monitor the situation to ensure compliance before ruling on the validity of the
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Anders brief and the motion to withdraw. James Russell Smith was convicted of robbery. Smith appealed, and after his court-appointed attorney filed an Anders brief stating there were no arguable grounds for reversal, and a motion to withdraw as counsel, Smith filed a pro se brief. Smith then filed motions for an extension of time and for access to the appellate record to respond to the Anders brief. Although his appellate counsel sent a letter stating that the records were provided via USB, there was no evidence that Smith had access to a computer to view the records, and he consistently claimed he never received access to the trial transcript.
judgment nunc pro tunc was granted by the Court of Criminal Appeals. The Court of Criminal Appeals reversed, remanded the cause, and ordered the trial court to modify the judgement of conviction for Count I to show “PC 22.021(a)(2)(B), (f)(1)” in the “Statute for Offense” box. Tucker v. State, 2026 WL 387436 (Tex. Crim. App. Feb. 12, 2026)(4:3:2). Writing for the Court, Presiding Judge Schenck explained that after the court of appeals decided this case and after this Court granted review, this Court held the under six-years-old provision is an element of the offense. See Gutierrez v. State, 710 S.W.3d 804, 809 (Tex. Crim. App. 2025). The Court emphasized that the parties agree the State is entitled to relief. Given Tucker’s concession, the Court did not decide whether subsection (f)(1) must be included in the judgment’s “Statute for Offense” box.
The Court of Criminal Appeals of Texas vacated the judgment of the court of appeals and remanded the case. Smith v. State, 2026 WL 1025855 (Tex. Crim. App. Apr. 16, 2026)(Per curiam). Writing for the Court, the Court of Criminal Appeals held that the court of appeals failed in its duty to ensure that Smith had access to the appellate record, which is necessary for an indigent appellant to file a response to an Anders brief. The Court emphasized that the appellate court must enter a formal written order specifying the procedure for record access and ensure that the appellant has an opportunity to review the record before ruling on the Anders brief and counsel’s motion to withdraw.
Judge Newell concurred. Judge Finley and Judge Parker concurred.
F. Judgments Nunc Pro Tunc – Court remanded case for trial court to modify judgment for super aggravated sexual assault to reflect that the victim was under the age of six because the parties agreed. Michael Tucker was convicted of super-aggravated sexual assault of a child under a predecessor statute, which mandated a minimum term of confinement of twenty-five years without eligibility for parole because the victim was under six years old at the time of the offense. Tucker appealed. While Tucker’s appeal was pending in the Austin Court of Appeals, the State requested a judgment nunc pro tunc to reflect that the victim was under six years old by adding subsection (f)(1) in the “Statute for Offense” box. The court of appeals held there was no error in the judgment to modify because Section 22.021(f)(1) is not an element of the offense but a punishment issue. The State's petition for discretionary review challenging the denial of its request for a
Judge Walker dissented. [Commentary: Judge Newell actually wrote a concurring opinion but it was not published. He noted that there was no legal requirement that the particular box be filled out the way the State requested. The fact that the Court could not reach consensus on a nunc pro tunc may say something about how hard it is for the Court to actually move cases. I simultaneously wish I 27
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Judge Yeary filed a dissenting opinion. Yeary disagrees that the Court can avoid deciding “whether the notation [of the complete statute the defendant has been convicted of violating, including every applicable subsection] must be included [on the line provided for that information by the Office of Court Administration’s form for] the judgment of conviction.” Next, Yeary also cannot join the Court’s ultimate disposition of the case because he does not understand the point of remanding this cause to the trial court to modify the judgment of conviction. His preferred disposition would be to point out that the part of the court of appeals’ opinion that suggests that Subsection 22.021(f)(1) is not an element of the offense but a punishment issue, then summarily remand the cause to the court of appeals.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
caused by a slap or punch. He argued new evidence established that the autopsy findings do not support a diagnosis of smothering and instead are more consistent with the cause of death being positional asphyxia or a sudden cardiac event caused by preexisting conditions. In the third claim, pursuant to Article 11.073, he alleged that post-conviction the ME stated that the cause of death was positional asphyxia. In support of this claim, he attached an affidavit from habeas counsel concerning a meeting she had with the ME during which the ME made that statement. In addition, he provided affidavits from three experts indicating that there was no direct evidence of positional asphyxia, there was evidence the victim had an enlarged heart, coronary artery disease, and may have presented risk for a cardiac arrhythmia, and that the findings did not preclude asphyxia as a cause or significant contributor to death but that the findings do not establish smothering. The first and third claims were remanded to the trial court for resolution. The habeas court held three live hearings and ultimately recommended that relief be granted on both claims over the State’s objection that the Applicant’s factual claims exceed the scope of the writ application.
could say more about this case and wish I didn’t have to say anything at all.] VIII.
HABEAS CORPUS
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A. Evidence that exceeds the scope of remanded claims in a post-conviction application for a writ of habeas corpus will not be considered. Tilon Lashon Carter was convicted of murdering James Tolin during the course of a robbery and sentenced to death. The victim was found lying face down on the floor with his hands and ankles bound and a piece of duct tape, partially folded over, also stuck to the side of his mouth. He had two obvious injuries to his head and a hammer with blood on the handle was found nearby. In two statements, Carter admitted to participating in the robbery and admitted, among other things, to duct taping the victim’s hands and feet. Carter’s conviction and sentence were affirmed on appeal and his first post-conviction application for writ of habeas corpus was denied. Carter filed a subsequent writ application and two of the claims raised were remanded to the trial court for a review of the merits. In those two claims, Carter alleged his due process rights were violated by the State’s presentation of false or misleading testimony by the Medical Examiner and new, previously unavailable scientific evidence, established that he would not have been convicted had the evidence been presented at trial. The ME testified about the victim’s injuries at trial at trial including that the victim suffered blunt force trauma to his head but no injury to the skull or brain, an upper lip injury was “a very classical and typical injury” of smothering, and the ME concluded that the cause of death was “smothering with positional asphyxia.” The ME testified that while he could not be certain whether the death was caused by smothering or positional asphyxia, he could definitively say that the victim died an asphyxia death at the hands of another human being.
The Court of Criminal Appeals filed and set the writ to consider two issues: (1) Did any of the evidence presented and admitted at the evidentiary hearing exceed the scope of the claims as Applicant phrased and argued them in his application (2) If so, should we consider any such evidence. Ex parte Carter, 721 S.W.3d 341 (Tex. Crim. App. July 30, 2025) (5:0:4). In an opinion written by Judge Finley, the Court held that much of the evidence presented and considered on remand exceeded the scope of the claims raised. After limiting review to the facts germane to the claims raised in the application, the Court held that relief was not warranted. The Court explained that, on remand, the trial court should have limited its inquiry to whether the evidence Carter alleged was false or misleading in his first claim was false or misleading and whether the ME did, in fact, recant his trial testimony as alleged in the third claim. The Court held that evidence including the ME’s handwritten autopsy notes, which revealed the existence of a pacemaker in the victim, was outside of the scope of claims on remand. Further, that evidence was admitted at trial through the victim’s daughter.
In Carter’s writ application, he alleged that newly discovered evidence directly contradicted the ME’s testimony. Specifically, in his first claim, he alleged the ME falsely testified that the autopsy findings supported a determination that an intentional act caused the victim’s death and that the lip injuries clearly established smothering, which could not have been
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Excluding the erroneously considered evidence, the Court concluded that the ME’s testimony was not false or misleading. Rather, the Court held that there was no evidence that the ME contradicted himself (other than habeas counsel’s affidavit) rather, he was consistent that there were two competing causes of death. A difference in opinion between the ME and habeas experts is inadequate to render the testimony false or misleading. Alternatively, even if the ME’s testimony was false, the Court found it was not material considering the ample evidence of Applicant’s intent to kill and that the indictment alleged three separate manner and means and the ME’s testimony, if false, only negated one of the three. Because there was no properly considered evidence that the ME changed his testimony, the Court concluded the Article 11.073 claim must also fail. Judge Walker, joined by Judges Richardson, Newell, filed a dissenting opinion. The dissent concluded that the evidence discarded by the majority was relevant and probative of Carter’s claim and that the trial court committed no error in admitting it. Considering the first claim, that the ME created the false impression that the autopsy established an intentional smothering, the dissent would find that Carter was entitled to present new evidence relevant to showing the ME was false and misleading. As to claim three, the dissent would find Carter was entitled to present evidence relevant to showing the ME’s current opinion on the cause of death contradicted his trial testimony. The dissent noted writ applicants are not required to allege every fact or piece of evidence
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relevant to their claims. Rather, it is the role of habeas courts to determine what the factual issues are and what items are to be used to resolve those issues. The Court of Criminal Appeals acts as the “ultimate factfinder,” which encompasses review rather than edit of the record. Considering the excluded evidence, the dissent found that the pacemaker, although known to Applicant at trial, was not the basis of a claim in the subsequent writ application. Instead, the evidence concerning the pacemaker was being used to support the claim that the ME testified falsely and misleadingly by failing to mention it at trial. Likewise, the characterization of injuries as contusions or abrasions, while not the basis of a claim (that could have been raised in the first writ), serve the same purpose, e.g., to show how the death occurred and new evidence from a habeas expert in the form of an experiment he conducted was relevant to undermining the ME’s theory of how the duct tape on the victim’s face . This was relevant to showing the victim died from a combination of consequences from stress and this preexisting condition rather than intentional smothering. The dissent found new scientific evidence concerning the lip marks undermined the ME’s testimony that the marks were evidence of a “classical” case of smothering. The dissent concluded that the majority erred not to consider habeas expert testimony, which was relevant and probative of the false evidence claim. As to the affidavit from habeas counsel, the dissent notes that the substance of the affidavit was admitted via counsel’s testimony without objection. Thus, through counsel and the ME, in habeas hearings, the habeas court properly heard and considered their testimony and was free to give said testimony due weight considering the posture of each witness. As to the merits, the dissent would hold that the ME’s smothering conclusion was refuted by new scientific evidence and expert opinion. The ME’s testimony left the jury with a false impression that the victim was definitively smothered based on his testimony that the patterned lip marks were indicative of a “classical” case of smothering. In sum, the dissent found that the evidence presented at trial and in post-conviction, present two very different depictions of the cause of death. The ME’s testimony was also material, throughout the State’s closing it focused on the ME’s testimony that this was a classic case of smothering and there is reasonable likelihood that the false evidence
Next, the Court explained that the habeas court erred to admit and consider the affidavit from habeas counsel concerning the ME’s alleged recantation because it contained double hearsay. Similarly, the Court decided that it need not consider that the ME referred to specific injuries at trial as “bruises” or “contusions” when they were actually “abrasions” because they were accurately described in the autopsy report. Carter had this information before trial, yet he did not raise any claim related to the discrepancy in his first writ; thus, the Court concluded the evidence was procedurally barred. Likewise, the Court explained that the habeas court erred to consider an expert’s experiment conducted in response to a hypothetical line of questioning of the ME at trial.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
an independent actual innocence claim borne out of the Texas Constitution’s protection against the deprivation of life. The dissent would have such claims reviewed under a preponderance of the evidence standard rather than the clearly and convincing standard created by the Court in Ex parte Elizondo. The dissent looked to the Texas Constitution’s guarantee of the right of an effectual writ of habeas corpus, the prohibition on cruel and unusual punishment, and the freedom from deprivation of life without due course of law. The dissent reasoned that because the writ in the federal constitution is considered a privilege potentially subject to a suspension, the framers of the Texas Constitution would not have expected federal habeas or the federal prohibition on cruel and unusual punishments, which had not yet been applied to the States, to supply the rule of decision in Texas courts considering habeas claims. The dissent argued that both Constitutions are relevant but would not defer solely to the U.S. Constitution. The dissent did not believe that there is any statutory bar to consideration of the merits of Wood’s claims or consideration more generally of actual innocence claims pursuant to the Texas Constitution. In considering the applicable standard set out in Elizondo, the dissent concluded, at least in the capital setting, that the Texas Constitution’s protection of the interest in life at least demands the preponderance of the evidence standard.
affected the judgment of the jury. Finally, as to the 11.073 claim, the dissent concluded that Carter established the ME objectively changed his opinion on the cause of death from a trial opinion that this was a “classical” case of smothering that may have involved positional asphyxia to a conclusion that the cause of death was positional asphyxia with the possibility of smothering. In light of the new evidence concerning the ME’s current opinion, the dissent concluded that it was more likely that not that Carter would not have been convicted. Judge McClure dissented without opinion. [Commentary: So, a petition for a writ of certiorari was filed alleging that the exclusion of this evidence from consideration violates fundamental fairness. The United States Supreme Court denied it.]
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B. The Court of Criminal Appeals remanded David Leonard Wood’s subsequent writ claims including his claims of actual innocence. David Leonard Wood was convicted of capital murder and sentenced to death. The conviction and sentence were affirmed on direct appeal and the Court of Criminal Appeals denied habeas relief on his initial and first subsequent writ of habeas corpus applications. In the instant writ application, Wood raised several challenges to his conviction including, among others, actual innocence. In a per curiam opinion, the Court of Criminal Appeals determined that the subsequent writ application should be remanded to the trial court for development of the writ’s claims. Ex parte Wood, 2025 WL 2148862 (Tex. Crim. App. July 30, 2025) (π).
Judge Yeary filed a dissenting opinion in which Judge Parker joined. He took issue with the remand order’s returning the claims for further development without determining whether the Section 5 prohibition on subsequent writ applications has been overcome. The dissent saw a legislatively imposed gatekeeping responsibility in making this determination that the Court usurps. The dissent noted that, to date, the Court has never invoked provisions of the Texas Constitution as authority for granting relief but, if the Court were to do so, Judge Yeary sees no basis for imposing a less rigorous standard. More directly, the dissent believed it highly unlikely that the framers of the Texas Constitution would even recognize a bare actual innocence claim. Rather, Judge Yeary sees habeas corpus review as almost certainly being limited to federal constitutional rights.
Presiding Judge Schenck filed a concurring and dissenting opinion. Judge Schenck concurred with the Court remanding the claims, but he dissented from the lack of direction given by the remand order including the omission of a directive to reconsider Applicant’s prior request for DNA testing. The dissent would have the Court reconsider its earlier decision, denying Chapter 64 DNA testing, which was not before the Court. He would have the Court address the question of the standard applicable to the subsequent writ. In sum, the dissent argued that the Court’s actual innocence jurisprudence errs to ground itself in federal law. Instead, the dissent advocated for the creation of
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Judges Keel and Parker dissented without opinion. Judge Richardson did not participate.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
[Commentary: Not sure how an innocence claim can only apply to a death sentence. Does this mean that it is constitutionally permissible to keep an innocent person in prison for life without parole so long as you don’t execute them? But his advocacy to try and get the Court to re-open the DNA case (even though no one asked the Court to do that) did have some repercussions. Wood’s attorney filed a motion to withdraw the mandate on that 2024 decision, which the Court denied. Judge Newell (hey that’s me) wrote a concurring opinion, in which Judges Walker and McClure joined, noting that all the Court held in the DNA case was that Wood wasn’t entitled to DNA testing because he was using it for delay. It is good law beyond Wood’s case and there was no reason to disturb it. He also suggested that Wood file another DNA motion now that the case has been returned to the trial court. Presiding Judge Schenck filed a dissenting opinion to note that the issue regarding DNA testing he expressed concern about was mooted by the remand order. I suppose I should get off my ass and let Westlaw know these published side opinions exist, but I’m not that vain. Exit question: Does Presiding Judge Schenck’s acknowledgment that the remand order in the case essentially mooted his arguments mean his original concurring and dissenting opinion was a waste of everyone’s time except his?]
death penalty but for the constitutional violation. Ex parte Speer, 2025 WL 2151382 (Tex. Crim. App. July 30, 2025) (Per curiam). Thus, the Court, in a per curiam opinion, remanded the claim to the convicting court for further factual development and a review of the merits. The application’s remaining claims were dismissed because the Court determined they did not meet Article 11.071 Section 5(a)’s subsequent writ bar.
C. Applicant was entitled to a merits review of subsequent writ application claim that trial counsel was ineffective for failing to investigate and present mitigation evidence pursuant to special statutory capital punishment issue. William Keith Speer was convicted of capital murder and sentenced to death for the strangling death of a fellow prison inmate. The Court of Criminal Appeals affirmed his conviction on direct appeal. Speer’s initial application for a writ of habeas corpus was denied, and his first subsequent writ application was dismissed. In the instant writ application, Speer, among other claims, contends that his constitutional right to effective assistance of counsel was violated because trial counsel failed to investigate and present mitigation evidence at his punishment hearing.
Judge Yeary, joined by Judge Parker, filed a dissenting opinion. Judge Yeary finds that the Court makes a mistake to remand for a merits review of the ineffective assistance claim. According to this dissent, Speer alleged to have overcome the subsequent writ bar through Article 11.071 Section 5(a)(1) pertaining to new facts or law but the Court orders remand pursuant to Section 5(a)(3), which pertains to identifying a constitutional violation absent which no rational juror would have answered the special statutory questions in favor of death. In the dissent’s view the writ application made no attempt to argue that the facts alleged would satisfy the criteria of the former. Judge Finley, joined by Judge Parker, filed a dissenting opinion. Judge Finley takes the position that, in the context of the mitigation special issue, Speer’s claim that trial counsel was ineffective for failing to properly investigate and present mitigating evidence about his life and background must always fail because such a claim necessarily involves a 31
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The Court of Criminal Appeals determined that this claim satisfied a prima facia showing that no rational juror would have answered one or more of the statutory special punishment issues in favor of the
Presiding Judge Schenck filed a concurring opinion. Judge Schenck wrote separately to discuss the difference between a review of the sufficiency of evidence pursuant to Article 37.071, setting forth the special punishment issues in a capital case, and the question of counsel’s performance in developing and presenting punishment evidence. In response to Judge Finley’s dissent, Presiding Judge Schenck noted that evidentiary sufficiency of a jury’s verdict as it pertains to the mitigation special issue differs from the question of effective assistance of counsel. Counsel owes a duty of reasonable representation or advocacy on the question of mitigation, which is reviewable in habeas. By alleging that but for the alleged deficient performance at least one juror would have sentenced him to life, Speer adequately raised the factual basis for his claim under Article 37.071.
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
jurisdiction. The Court returned the case to the convicting court with instructions to dismiss the application for lack of jurisdiction.
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reweighing of the mitigation special issue evidence and the Court has repeatedly refused to engage in such evidentiary review. The Court has explained that a sufficiency review of the evidence related to the mitigation special issue is impossible. Further, the dissent notes that Speer’s claim has already been rejected in federal court when the federal district court concluded that the new mitigating evidence was “double-edged” and not “so compelling, especially in light of the horrific facts of the crime, that the sentencer would have found a death sentence unwarranted.” Speer v. Dir., TDCJ-CID, 2018 WL 11350010 (E.D. Tex. June 25, 2018). This holding was affirmed on appeal. The dissent argued that the understanding that such a claim must always fail comports with the Code Construction Act, which presumes an entire statute is intended to be effective because Section 5(a)(3) pertains to one or more of the special issues so it does not lose effect by concluding, as to mitigation, such an ineffective assistance claim must always fail because it requires a reweighing of the evidence.
Judge Yeary filed a concurring opinion. Judge Yeary wrote to say that whether another non-habeascorpus extraordinary writ process may also be available to Speer is not before the Court. E. The Court of Criminal Appeals re-opened Robert Leslie Roberson’s habeas corpus application on its own initiative in light of Ex parte Roark. Applicant’s daughter, Nikki, a child over two years old, suffered extensive and severe injuries that led to her death, including multiple bruises on the face and head, a lacerated frenulum in the mouth, bruising inside the ears, a "boggy" or "mushy" spot on the back of the head caused by bleeding under the scalp, and additional bruises and scrapes on other parts of the body. A jury found Applicant guilty of the capital murder of Nikki, concluding that her death was caused by intentional and knowing infliction of blunt-force trauma to the head. Applicant filed seven habeas corpus applications challenging his conviction. Multiple "suggestions for reconsideration" were filed in connection with his third, fourth, and fifth applications based upon the Court’s recent decision in Ex parte Roark, 707 S.W.3d 157 (Tex. Crim. App. 2025).
D. A district court, in habeas, does not enjoy subject matter jurisdiction over method-ofexecution claim in a constitutional writ. Applicant was convicted of capital murder and sentenced to death in October 2001. On direct appeal, the Court of Criminal Appeals affirmed Applicant’s conviction and sentence, denied relief on his initial application for a writ of habeas corpus filed under Code of Criminal Procedure Article 11.071, and dismissed as an abuse of the writ his first subsequent 11.071 application. Applicant appealed a court order denying his writ application, which raised several issues challenging the method of execution that center on his claim that expired, and fire damaged medication may be used in violation of his constitutional and statutory rights. The Court of Criminal Appeals held that the convicting court lacked jurisdiction to rule on the merits of Applicant’s underlying habeas application. Ex parte Speer, 2025 WL 2718237 (Tex. Crim. App. Sept. 24, 2025) (Per curiam). In a per curiam decision, the Court considered whether a district court, in habeas, enjoys subject matter jurisdiction over method-of-execution claims. It does not. The Court reasoned that such claims raised in a constitutional writ must be filed with this Court by invoking its original
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In a per curiam decision, the Court of Criminal Appeals reconsidered its decision in Roberson’s fifth subsequent application for habeas corpus relief because that was the one that was based on Ex parte Roark. Ex parte Roberson, 726 S.W.3d 290 (Tex. Crim. App. Oct. 9, 2025) (π). The Court declined to reconsider on the Court's own initiative the denial of Applicant's - 03 application and the dismissal of Applicant's - 04 application. The Court also held that Applicant failed to show that he satisfied the requirements of Article 11.071, Section 5 for the claims in his -06 and -07 writ applications. Those writ applications were dismissed as abuses of the writ. The Court reopened the - 05 habeas application and, after finding that Applicant's sole claim—that "Ex parte Roark Establishes That [Applicant] Is Entitled To Relief Under Article 11.073"—satisfied the requirements of Article 11.071, Section 5, the Court remanded the claim to the habeas court for Applicant to develop his claims in an evidentiary hearing. 32
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
Judge Richardson filed a concurring opinion. Judge Richardson agreed that this Court's decision in Roark provides a new legal basis for Applicant to overcome the subsequent writ bar set out in Article 11.071, sec. 5. Judge Richardson notes that this is not to say at the end of the day, Applicant is entitled to any relief. However, Judge Richardson reasoned, since the habeas court never had the benefit of Ex parte Roark, they are in a much better position on remand to develop a record on the validity of Applicant's claims in light of Roark.
distinction between the bases for Applicant's Article 11.073 claims and Applicant's actual innocence claims. Judge Parker filed a concurring and dissenting opinion. Judge Parker agreed with the dismissal of the - 06 and - 07 habeas applications. However, Parker disagreed with the Court’s decision to remand on the 05 application. Parker argued that Applicant's case is not a "shaken baby" case, but rather, it is a “bluntforce trauma” case because of the injuries sustained by Nikki. Parker distinguished Roark and notes that Nikki had multiple fresh external and internal injuries, while the child in Roark had only internal bleeding and survived.
Presiding Judge Schenck filed a concurring and dissenting opinion. Presiding Judge Schenck agreed with the Court’s decision to the extent it prevents Roberson's execution in view of evidence undermining his conviction and sentence. And yet the dissent also disagreed to the remand on the basis that this will likely only serve to delay the ultimate merits resolution to which both the State and Roberson are entitled. Further, the dissent argued that the State is entitled to an opportunity to present the case again through a new jury trial.
Judge Keel filed a dissenting opinion in which Judge Parker joined. Keel contended that the Court rewarded Applicant's abuse of the writ with an unmerited and pointless remand of his perennial challenge to cause-of-death testimony offered at his trial. Keel reasoned that the remand is unmerited because Applicant has not met Article 11.073's unavailability or materiality requirements or overcome Article 11.071's subsequent writ bar.
Judge Yeary filed a concurring and dissenting opinion in which Judge Parker joined. Judge Yeary agreed with the Court's order insofar as it dismisses Applicant's last two subsequent writ applications (-06 and - 07) and refuses to entertain suggestions to reconsider two of his previous subsequent writ applications (-03 and - 04). However, Judge Yeary disagrees with the Court's order to reopen Applicant's subsequent -05 writ application and halts his execution. Judge Finley filed a concurring and dissenting opinion. Judge Finley agreed with the Court’s order to dismiss Applicant's first and second claims in his - 07 habeas application because they fail to satisfy the requirements of Art. 11.071, Section 5. Finley also agreed with the Court's decision to deny Applicant's suggestions to reconsider his - 03 and - 04 habeas applications. Lastly, Finley agreed with the Court's ultimate decision to grant Applicant's suggestion to reconsider on his - 05 habeas application, reopen the habeas application, and remand for evidentiary development in light of Roark. Finley’s disagreement with the Court is limited: Finley would also remand Applicant's actual innocence claims in his - 06 and - 07 habeas applications. Finley reasons that there is little 33
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[Commentary: It is worth noting that in another questionable “shaken baby case” the Court actually denied a request to reconsider on its own motion, Ex parte Horvath. Presiding Judge Schenck filed a concurring opinion. The concurrence agreed with the Court’s result; however, argued that from his perspective, that the Court should not remand cases presenting questions of law unless the Court’s answer is dependent on unresolved questions of fact. Judge Walker filed a dissenting opinion in which Judge Newell joined. The dissent argued that the majority disregarded the trial court's findings and the parties' agreement. The dissent further emphasized that "shaken baby syndrome" was central to the prosecution's case, as both the medical examiner's testimony and the prosecution's arguments focused on shaking as the cause of death. The dissent also noted that Horvath's admission to shaking the baby did not necessarily mean he knew at the time that such an act could cause death; his knowledge may have come only after hearing the medical examiner's testimony during trial. The dissent concluded that Horvath met the standard for relief, as it was more likely than not that
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
would file and set this case on whether Lo should be overruled; however, Parker agrees that longstanding precedent holds that a statute that has been held facially unconstitutional is void and therefore also agrees with the Court’s decision to grant relief. Parker agrees with Judge Yeary that Lo was wrongly decided but disagrees on the effect of an overbreadth holding.
he would not have been convicted if the new scientific evidence had been presented.] F. A statute found to be unconstitutional can be retroactively applied to grant relief to individuals whose convictions became final before the statute was declared unconstitutional . . . for now? Eric Todd Williams was convicted of online solicitation of a minor and sentenced to three years' imprisonment in count one of this case. He filed this habeas application based on the Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) decision and asks that his conviction be set aside. The State agreed that relief be granted. The Court of Criminal Appeals agreed.
Presiding Judge Schenck filed a dissenting opinion in which Judge Yeary joined. Presiding Judge Schenck stated that the majority is correct to treat Lo as binding on the constitutional issue. However, Schenck questioned whether the substantial overbreadth doctrine would apply and joined Judge Yeary in his doubting the availability of Lo on collateral review in the absence of presentation and preservation of the issue at trial and direct appeal. Schenck would find Lo wrongly decided and unavailable to Applicant.
Judge Newell filed a concurring opinion in which Judges Richardson and Walker joined. Judge Parker filed a concurring and dissenting opinion in which Judge Finley joined. Presiding Judge Schenck filed a dissenting opinion in which Judge Yeary joined. Judge Yeary filed a dissenting opinion in which Presiding Judge Schenck joined, and Judge Keel joined Part IV only.
Judge Yeary filed a dissenting opinion in which Presiding Judge Schenck joined and Judge Keel joined as to Part IV only. Judge Yeary argued Lo was wrongly decided. Yeary emphasized that the Supreme Court's more recent decision in United States v. Hansen, 143 S.Ct. 1932 (2023) clarified and limited the Overbreadth Doctrine. Judge Yeary argued, and Judge Keel agreed, that relief should not be granted retroactively in postconviction habeas proceedings for statutes found overbroad, unless the Applicant can show that the statute was unconstitutional as applied to their own conduct. Yeary would have denied relief.
Significant Decisions
In a per curiam opinion, the Court of Criminal Appeals granted post-conviction habeas corpus relief to the applicant based on its prior decision in Ex parte Lo, which held that former Tex. Penal Code § 33.021 (the online solicitation of a minor statute) was unconstitutionally overbroad in violation of the USCS Const. Amend. 1 to the United States Constitution. Ex parte Williams, 726 S.W.3d 210 (Tex. Crim. App. Oct. 23, 2025) (Per Curiam). Relief was granted retroactively to applicants whose convictions became final before the Lo decision.
[Commentary: So the Court changing its mind about whether Roark is a reason to remand in Ex parte Roberson after the makeup of the Court changes is bad. But the Court changing its mind about granting relief when a defendant is convicted of under an unconstitutional statute is okay. Even when everyone agrees. Obviously take my observation here with a Lot’s wife sized pillar of salt, but I am slightly piqued about the suggestion that United States v. Hansen changed anything. In United States v. Hansen, the Supreme Court wrestled with whether a federal statute that prohibits anyone from “encouraging or inducing” illegal immigration was violative of the First Amendment. Justice Barrett, writing for the majority interpreted that statute as incorporating the meaning of “encourage” and “induce” from criminal solicitation and facilitation rather than from ordinary conversation.
Judge Newell filed a concurring opinion in which Judges Richardson and Walker joined. Judge Newell emphasized that relief in this case should have been granted much earlier, as the legal issues were straightforward and uncontested. Newell underscored that the legislature has since amended the statute to address the constitutional issues identified in Lo, and there has been no retreat from the overbreadth doctrine by the U.S. Supreme Court or the Texas Court of Criminal Appeals. Judge Parker filed a concurring and dissenting opinion in which Judge Finley joined. Judge Parker
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U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
recognized that “restraint” and the scope of the writ are both understood to be broad. The Court had previously held that statutory county courts at law have the power to issue writs when a person “is restrained by accusation or conviction of misdemeanor.” See Ex parte Schmidt, 109 S.W.3d 480, 483 (Tex. Crim. App. 2003). That holding did not address fine-only misdemeanors, but the Court noted that nothing in the opinion excluded such misdemeanors from the scope of authority discussed in the case. Here, the Appellants had several complaints, municipal court convictions, and appeal bonds posted, which the Court held was sufficient to establish restraint under Chapter 11 of the Code of Criminal Procedure when they were considered in combination. The court of appeals erred to conclude otherwise based on federal cases construing the term “custody” for purposes of postconviction federal habeas review. The Court has historically construed “restraint” more expansively than “custody.” For example, the Court regarded collateral consequences as a form of “restraint” regardless of whether there was “custody.” The Court concluded that the complaints, the preliminary convictions, and the appellate bonds restrained Appellants. The case was remanded to the court of appeals for further proceedings.
Think about that for a second. If the Court doesn’t do that then even criminal solicitation becomes violative of the First Amendment. So you can see what the Court was doing. By defining “encourage” and “induce” more narrowly it effectively mooted any overbreadth challenge because it dramatically limited the scope of the overbreadth challenge. In other words, the Supreme Court didn’t limit the contours of the overbreadth doctrine; it limited the statute so much it fell outside of the established doctrine. But back to this case. If you count the numbers, it looks like there are five judges that might agree with Judge Yeary on an argument that was never made in the case. We’ll see how the Court looks if and when the argument does get up to the Court considering that this case is one of the few remaining Lo cases out there given the changes to the statute. But read all the opinions and consider the issue for yourself. I’m just a caveman.] G. A combination of Class C complaints for violation of municipal ordinances, convictions for those violations, and appellate bonds to appeal those convictions constituted “restraint” for purposes of pretrial habeas applications. Michael Kleinman operated Auspro Enterprises, L.P., and both he and his business were charged by complaint with 15 Class C misdemeanors for violating city zoning ordinances by operating an alleged “head shop.” Kleinman and Auspro were convicted in municipal court and appealed to the county court at law seeking trial de novo. Both posted cash appellate bonds. Both also filed pretrial applications for writs of habeas corpus challenging the city ordinances on constitutional grounds. The county court at law denied the writ applications on the merits. Kleinman and Auspro filed an interlocutory appeal.
Judge Newell concurred without opinion. [Commentary: I’m sure the courts of appeals can’t wait for all those habeas appeals from municipal courts.] IX. FEDERAL LAW
The Austin Court of Appeals did not consider the merits of the writ applications. Instead, the court of appeals held that pretrial habeas relief was not available because the offenses charged were fine-only offenses. Even the potential for arrest pursuant to the terms of the appellate bond, the court of appeals concluded, was too speculative to constitute a sufficient restraint on the Appellants as required for habeas relief. The Court of Criminal Appeals reversed. Ex parte Kleinman, 721 S.W.3d 400 (Tex. Crim. App. July 30, 2025) (8:1:0). Writing for the Court, Judge Yeary 35
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A. The Sentencing Reform Act does not authorize a rule automatically extending a defendant’s term of supervised release when the defendant absconds. After Isabel Rico violated the terms of her supervised release conditions, the judge revoked her release and ordered her to serve two months of additional imprisonment and a new 42month term of supervised release set to expire in 2021. When released the second time, Rico again violated her conditions by changing her residence without notifying her probation officer. A warrant issued for her arrest, but federal authorities did not locate her until January 2023. During her abscondment, Rico committed a state law drug offense in January 2022, which resulted in a
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
Governor’s inauguration day, protesters staged a sit-in at the state capitol. When the capitol closed for the day, police officers told them that they would be arrested for trespassing. They refused to leave. Sergeant Jacob Zorn asked Shela Linton to stand up and warned her that he would eventually have to use force to remove her. She refused to stand. Zorn took Linton’s arm, put it behind her back, placed pressure on her wrist, and lifted her to her feet. Linton sued Zorn, claiming that Zorn violated her Fourth Amendment right against excessive use of force. The District Court granted summary judgment for Zorn after concluding that he was entitled to qualified immunity. The District Court reasoned that it was not clearly established at the time of the encounter that, in these circumstances, lifting Linton while putting pressure on her wrist violated the Fourth Amendment. Linton appealed.
conviction. Back in federal district court, the judge treated Rico’s drug offense as a Grade A violation of her supervised release conditions and sentenced her to 16 months of incarceration followed by two more years of supervised release. Rico appealed. The Ninth Circuit held Rico’s January 2022 drug offense could count as a violation of her federal supervised release because Rico’s abscondment “tolled” the clock so that her term continued to run until federal authorities caught up with her in 2023. The Supreme Court of the United States granted certiorari to resolve a circuit split on whether abscondment automatically extends a term of supervised release.
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The Supreme Court of the United States reversed and remanded, holding that the Sentencing Reform Act does not authorize a rule automatically extending a defendant’s term of supervised release when the defendant absconds. Rico v. United States, 146 S. Ct. 947 (Mar. 25, 2026)(8:0:1). Writing for the Supreme Court, Justice Gorsuch explained that the Ninth Circuit's rule effectively extends the period of supervised release beyond what a judge has ordered, which is not supported by the law. The Supreme Court rejected the government's reliance on common-law principles, as the proposed rule would impose new punishment by automatically extending supervised release, which is not necessary to prevent a defendant from benefiting from abscondment.
The Second Circuit reversed and remanded the case for a jury trial against Zorn, holding that Zorn was not entitled to qualified immunity. It reasoned that its decision in Amnesty America v. West Hartford, 361 F. 3d 113 (2004), clearly established that the “gratuitous” use of a rear wristlock on a protester passively resisting arrest constitutes excessive force. Zorn petitioned for writ of certiorari. The Supreme Court of the United States reversed the Second Circuit. Zorn v. Linton, 146 S. Ct. 926 (Mar. 23, 2026)(6:0:3). In a per curiam opinion, the Court held that because the Second Circuit failed to identify a case where an officer taking similar actions in similar circumstances “was held to have violated” the Constitution, Zorn was entitled to qualified immunity. The Court emphasized that the putative principle prohibiting gratuitous use of pain compliance techniques on passively resisting protesters lacked the required specificity for a clearly established rights finding.
Justice Alito filed a dissenting opinion, arguing that the sentencing judge lawfully considered Rico's January 2022 drug offense when determining her sentence, as the Sentencing Reform Act allows judges to consider various factors, including offenses committed after absconding, under 18 U.S.C. § 3553(a). He contends that the debate over whether Rico's supervised release was "tolled" is irrelevant because the Sentencing Guidelines are advisory, and the judge acted within his authority by varying the sentence based on the drug crime. B. 1983 lawsuits - A constitutional right is considered "clearly established" for purposes of qualified immunity when it is sufficiently clear that every reasonable official would have understood that what they are doing violates that right. On the
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Justice Sotomayor filed a dissenting opinion in which Justices Kagan and Jackson joined. Justice Sotomayor’s position is that Zorn was not entitled to summary judgment based on qualified immunity because taking the facts in the light most favorable to Linton, it is “beyond debate” that Zorn's use of pain compliance against the passively resisting Linton was excessive. 36
U.S. Supreme Court & Court of Criminal Appeals Update July 2025 – May 2026
[The. End.]
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Judge David Newell was elected to the Court of Criminal Appeals on November 4, 2014. The son of Thomas and Linda Newell, David was born at the Bethesda Naval Hospital in Maryland, though he grew up in Sugar Land, Texas with his much taller, older brother, Robert Newell. David graduated cum laude from William P. Clements High School. He earned his undergraduate degree in English with a concentration in Creative Writing at the University of Houston. He graduated magna cum laude, earning University honors and honors in his major. He received his J.D. from the University of Texas School of Law in 1997 before returning home to work in the Fort Bend County District Attorney's Office. He served as an appellate prosecutor for 16 years, first in Fort Bend County and later in the Harris County District Attorney's Office from 2007 until his election to the Court.
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Judge Newell is board certified by the Texas Board of Legal Specialization in both criminal law and criminal appellate law. In 2013, David received the C. Chris Marshall Award for Distinguished Faculty from the Texas District and County Attorneys' Association. In 2021 he received the Exemplary Speaker Award from the Texas Center for the Judiciary. That same year he was nominated for and elected to membership in the American Law Institute. David and his beautiful wife, Shayne, currently live in the Houston area. Their two sons currently attend college away from home.
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39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: High Stakes in Havana: The Future of Cannabis Prosecution in Texas
Speaker:
David Gonzalez
Sumpter & Gonzalez, L.L.P. 3011 N Lamar Blvd Ste 200 Austin, TX 78705 512.381.9955 phone 512.485.3121 fax david@SG-LLP.com email http://www.sumptergonzalez.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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The Future Of Cannabis Prosecution
Texas Criminal Defense Lawyers Association
The Future Of Cannabis Prosecution
High Stakes in Havana: The Future of Cannabis Prosecution in Texas The future of cannabis prosecution in Texas is currently unfolding in two cases: Tex. Dep't of State Health Services v. Sky Mktg. Corp., No. 23-0887, 2026 WL 1190082, (Tex. May 1, 2026) and Texas Dep’t of State Health Servs., et al., v. Texas Hemp Bus. Council, et. al., No. 15-26-00099-CV (on appeal from 455th District Court, Travis County, Texas, D-1GN-26-002511. The Attorney General’s response in the active litigation is due on May 15, 2026 which is after the printing deadline for Rusty Duncan. A digital copy of updated materials will be provided on-site. Included materials in this active litigation include the following: 1. Relevant excerpts from Original Petition and Application for Temporary Restraining Order and Temporary and Permanent Injunction in Texas Dep’t of State Health Servs., et al., v. Texas Hemp Bus. Council, et. al. 2. May 1 2026 Order granting Temporary Injunction. 3. May 1, 2026 Texas Supreme Court opinion in Tex. Dep't of State Health Services v. Sky Mktg. Corp. which addresses the regulatory structure for all non-delta-9 THC, including delta-8 THC at any concentration. 4. May 5, 2026 Notice of Appeal. 5. May 7, 2026 Order from Fifteenth Court of Appeals.
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Texas Criminal Defense Lawyers Association
Effective FederalOpening Vs Texas & Closing Criminal Arguments Practice
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Federal vs. Texas Criminal Practice
Speaker:
George Milner III
Milner Wynne 1845 Woodall Rodgers Fwy. Suite 1500 Dallas, TX 75201 214.651.1121 phone 214.953.1366 fax gunner@milnerwynne.com email
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Speaker:
Lies & Government Science
Topic: Under the Havana Moon: Lies, Damn Lies, & Government Science
Frank Sellers
Sellers Law Firm, PC 1612 Summit Ave., Ste 200 Fort Worth, TX 76102 817.928.4222 phone 817.385.6715 fax Frank@sellerstriallaw.com email http://www.sellerstriallaw.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Updated May 13, 2026
Under the Havana Moon: Lies, Damn Lies, and Government Science Frank Sellers Sellers Law Firm, PC frank@sellerstriallaw.com Because I was asked to speak on DNA, I have put together a few materials and thoughts related to combating DNA cases. That will be the focus of nearly all of this paper. The materials also include subpoena exhibits for blood alcohol testing, including hospital records and gas chromatography/laboratory records, drug testing, gunshot residue, and, of course, DNA. When you have a case involving one of these disciplines, you must get all records related to the testing. Attach the appropriate exhibit to your subpoena to the lab. Then you will get back the information you need to begin analyzing the case.
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Finally, because it has been years since I have had a truly contested DNA case, Janine Arvizu blessed me with an hour of her time and a few materials to ensure cutting-edge competency on this topic. When you have a DNA case, or any other laboratory-involved case, most of the science is settled. The most fruitful place to plant doubt is in the failures of the process. For example, Ms. Arvizu and I have tried dozens of DWIs with blood tests in evidence—some as high as 0.29— where we won acquittals by showing the lab had not retained or provided records for the pipettes and diluters used in critical measurements proving calibration. This is why we rarely attack the underlying science. Instead, using records laboratories are required to keep, or showing the absence of those records, you can often find the golden ticket to win your case. DNA Tips Applicable to Most Cases According to Ms. Arvizu, here are some tips generally applicable to most DNA cases:
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The presence of DNA on evidence provides no information about how or when it was deposited.
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The absence of DNA provides equally limited information.
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The mechanisms, actions, and timing of DNA transfer are never known with certainty.
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Everyone’s DNA exists in far more places than they have physically been.
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We lack the ability to meaningfully understand how small amounts of DNA transfer, though sampling a large quantity, like a puddle of blood, is different.
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Even with an extremely strong statistical match—1 in 400 trillion, for example—analysts will admit that the match alone proves nothing about how or when that person’s biological material was deposited on the evidence.
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DNA on an airbag does not prove who was driving. It could indicate the driver, a passenger, or simply someone who had been in the car previously.
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Evidence collectors are usually the least trained people in the forensic DNA process. The O.J. Simpson trial remains the public lesson most jurors already understand: DNA science can be powerful, but collection and handling mistakes can destroy confidence in what the DNA proves. The best attack often starts with the people who first touched the evidence.
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While extensive literature exists on DNA deposition mechanisms, it is usually not fruitful to focus on the underlying determination of alleles when the real issue is transfer and timing uncertainty.
While DNA science itself is robust, the interpretation of DNA presence is severely limited by our inability to determine and understand transfer mechanisms and timing. Specific DNA Case Examples Lies & Government Science
Ms. Arvizu also shared a few case examples where DNA issues helped clear clients, or at least excluded DNA as the reason for conviction: The Ferrari Airbag Case Ms. Arvizu worked on a case where a Ferrari driver fled the scene after a fatal accident. The prosecution recovered the car owner’s DNA from the deployed airbag and argued that proved he was driving. But the DNA did not prove who was behind the wheel. It proved only that the owner’s DNA was on the airbag. The collection and handling problems did the rest. 1. At the scene: Multiple male officers sat in the Ferrari and contaminated the interior before evidence collection. None had ever been that close to a Ferrari. Apparently, they just could not help themselves. 2. During collection: Officers wore the same gloves to open the car door and handle the airbag, transferring DNA between surfaces. 3. Lack of training: Collection personnel did not understand DNA preservation protocols, even though they wore gloves. United States v. Crawford: Corvallis, Oregon Bombing Ms. Arvizu worked with the federal defender in United States v. Crawford,1 which arose from the 2010 arson at the Salman Alfarisi Islamic Center in Corvallis, Oregon. She did not attack the FBI’s chemistry. She attacked the records around it.
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United States v. Crawford, No. 6:11-CR-60097-AA (D. Or.). Lies, Damn Lies, and Government Science
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The government’s case included a soda bottle cap. But no report from the night of the arson recorded that a cap was collected, bagged, or logged. Crawford, Op. & Order, ECF 148 at 3 (June 18, 2015). A January 2011 police report conceded the cap was missing and, if found, “would be unusable . . . due to the lack of chain of custody.” Id. at 5–6. A cap did not appear in any record until October 2011, when an FBI examiner found one in the evidence envelope and noted it “would not be a good DNA source.” Id. at 6. The FBI tested it anyway. Id. at 7. Judge Aiken suppressed the evidence. The government could not say how many times the envelope had been opened or by whom. The cap photographed at the scene was white; the cap tested was gray. And the gaps in documentation created “insurmountable authentication and identification obstacles.” Id. at 12, 14–16. The chemistry was clean. The government just could not prove, on paper, that it had tested the right cap. That is where most DNA cases live. Attack the records.
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Key Contamination Issues Arvizu Has Observed in Other Cases: •
Capital Murder Case (12 items of evidence): A young analyst contaminated evidence by handling clean and dirty materials in the wrong sequence, even though she followed protocols about changing gloves and paper.
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Photography Contamination: A photographer handled evidence without gloves during documentation, before testing, compromising the integrity of the evidence.
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Cross-Contamination Incident: As an auditor, Ms. Arvizu observed evidence being crosscontaminated, but the officers present did not intervene. That case eventually had the death penalty dropped. DNA Learned Treatises
Finally, my favorite rule to use with government experts is Rule of Evidence 803(18). Once a publication is established as a reliable authority, you may read portions of it into evidence, but you may not offer the publication itself as an exhibit. Be careful, because prosecutors and analysts often like to cherry-pick from these materials. You should do the same, but better. Here is the list of authorities DNA analysts will agree are authoritative in the field of DNA laboratory collection, testing, interpretation, and quality assurance: DNA Learned Treatises: 1. National Institute of Standards and Technology, Human Factors in Forensic DNA Interpretation: Guidelines and Recommendations, NIST IR 8503 (U.S. Dept. of Commerce 2024), https://doi.org/10.6028/NIST.IR.8503 (last visited May 13, 2026).
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2. U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, National Best Practices for Improving DNA Laboratory Process Efficiency (2022), https://nij.ojp.gov/library/publications/national-best-practices-improving-dnalaboratory-process-efficiency (last visited May 13, 2026). 3. National Institute of Justice, DNA for the Defense Bar, NCJ 237975 (June 2012), https://nij.ojp.gov/library/publications/dna-defense-bar (last visited May 13, 2026). 4. Federal Bureau of Investigation, Quality Assurance Standards for Forensic DNA Testing Laboratories (effective July 1, 2025), https://www.swgdam.org/_files/ugd/4344b0_c2c9d0c7652f4977a57649ce500466aa.pdf (last visited May 13, 2026). NIST Human Factors in Forensic DNA Interpretation: Guidelines and Recommendations: Best Quotes: Lies & Government Science
1. DNA Has an Error Rate (§ 2.5.3, at 18): “From a legal perspective, when presenting results, the possibility of error should not be ignored. The risk should either be incorporated into the analyst’s evaluation or acknowledged separately. Factfinders should never be given the impression that DNA opinions have a zero-error rate.” 2. Source Attribution Is for the Jury (§ 4.2, at 78): “Source attribution consists of identifying the Person of Interest (POI) as the source of (or as a contributor to) a questioned sample. … In the legal context, an opinion on source should be made by considering all the evidence in the case as well as the consequences of the decision. This task is the responsibility of the factfinder, not the DNA analyst.” 3. DNA Analysts Are Not Immune to Bias (§ 2.4.1, at 15): “Given the robust findings of the susceptibility of human decisionmakers to biasing information in so many domains and in other forensic science disciplines, it seems clear that DNA analysts are not immune to bias.” 4. Confirmation Bias and Contextual Bias (§ 2.4, at 12): “Two types of cognitive bias are generally applicable to DNA analysis—confirmation bias and contextual bias. Confirmation bias is present when preexisting beliefs and expectations lead individuals to give weight and attention to information that confirms their preexisting beliefs and less weight and attention to information that disconfirms their beliefs. Contextual bias describes ‘human judgement being influenced by irrelevant contextual information.’” 5. Bias Is Worse When Results Are Complex (§ 2.4.1, at 13): “Tasks requiring more cognitive effort are generally more susceptible to bias. Greater cognitive effort is required when results are complex and data are ambiguous, when there are time pressures, when a large amount of information must be combined and processed, or when decisions are discretionary.”
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6. Labs Should Have Written Bias-Mitigation Policies (§ 3.3.4, at 36): “Recommendation 3.3: Forensic science service providers should assess their processes to identify potential sources of bias in the interpretation and comparison of DNA evidence. Forensic science service providers should implement written policies and procedures to mitigate these sources of bias.” 7. Discretionary Decisions Must Be Documented (§ 3.3.2, at 30): “When discretion is afforded to an analyst, documentation in the case notes or case file is necessary to record the reasons or justifications behind the decisions made. SOPs alone do not provide enough information regarding the discretionary decisions made for a particular case or sample. Documentation should include both the action and the justification for it.” 8. Analysts Should Record the Reasoning Behind Discretionary Choices (§ 3.3.2, at 31): “Recommendation 3.2: DNA analysts should maintain a detailed record of the reasoning, justification, and sequence of decisions not dictated by the forensic science service provider’s protocols (i.e., discretionary decisions).” Lies & Government Science
9. Software Can Create Overreliance (§ 3.3.1, at 29): “Software programs may improve efficiency and consistency and reduce some potential sources of bias. However, overreliance on these systems can result in analysts conducting or testifying about work that they have a less robust scientific understanding about than previous methods.” 10. Likelihood Ratios Are Often Misstated (§ 4.3.1, at 80): “An LR tells us how many times more probable the DNA findings are given one proposition and the case information as opposed to the same information but a different proposition. … Care must be taken not to confuse this with a statement about which proposition is the most probable. The most supported proposition is not necessarily the most probable.” 11. A Small Denominator Does Not Prove a Large Numerator (§ 4.3.1, at 80): “The two probabilities that make up the LR cannot be inferred from each other, as they consider the probability of the same observations given different propositions. Therefore, the fact that the denominator is small does not imply that the numerator is large.” 12. The Expert Cannot Say Whose DNA It Is Based Only on the DNA Results (§ 6.12.1, at 162): “When the expert strays from discussing the DNA results given the propositions and instead provides an opinion on the proposition (e.g., it is the POI’s DNA), they have transposed the conditional. No matter the type of statistical analysis method used (e.g., LR, RMP), the expert cannot directly answer the question of whose DNA is on an item based solely on the DNA results.” 13. Large Numbers Do Not Mean Uniqueness (§ 4.3.5, at 86): “Factfinders could misinterpret extreme numbers (in particular, those above the world population) to mean that no one else in the world could have that DNA profile. For example, a cognitive fallacy—the expected value fallacy—is to believe that if the probability of a DNA profile is one in one million, then only one individual in a population of one million could have that profile.”
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14. Recommended Reporting Cap (§ 4.3.5, at 86): “Recommendation 4.3: To avoid presenting likelihood ratios that are larger than can be supported by currently available research and to assist in the comprehension of analyses that result in very large likelihood ratios (or very small Random Match Probabilities) with respect to unrelated individuals, forensic science service providers should implement a reporting cap of 1 billion (or 1 in 1 billion), or an alternative value that can be justified by research.” 15. Verbal Qualifiers Can Mislead (§ 4.3.8, at 90): “A verbal expression without a statistical value might not capture what the expert means to communicate and may exacerbate any misunderstandings the factfinder may have. For example, Martire et al. have found that end-users misinterpret ‘weak’ or ‘limited’ support for one proposition as support for the alternative proposition.”
Lies & Government Science
16. Categorical Terms Should Be Phased Out (§ 4.5.1, at 98): “These categorical terms should be phased out in favor of terms that reflect the probabilistic nature of forensic science and the limitations of current technologies. While analysts may be able to state there are no observable differences when comparing two samples or items (e.g., forensic profile and POI profile), such testimony can falsely suggest that the degree of similarity in and of itself is meaningful.” 17. Match-Form Testimony Is Misleading (§ 4.3.7, at 89–90): “This formulation has been criticized as highly misleading. The main concern is that juxtaposing ‘match’ and ‘coincidence’ will lead judges and jurors to think that the ‘match statistic’ pertains to the probabilities of propositions about the source of the DNA. … Because ‘match form’ testimony leans so heavily on the ambiguous phrase ‘coincidental match’ and has no clear benefit, we do not recommend its use for explaining a DNA LR.” 18. Avoid “Inconclusive” Without Explanation (§ 4.5.2, at 100): “An analyst describing a result as inconclusive could be seen as ‘deciding not to decide.’ Analysts may see ‘inconclusive’ as a cautious option compared to statements that the results provide limited support for one proposition compared to the alternative. But this reasoning may be misguided in some cases. We recommend analysts and FSSPs avoid using the term inconclusive and instead either describe the reasons why an examination is inconclusive or report the LR as a reflection of the value of the DNA comparison.” 19. CPI/RMNE Has Fallen Out of Favor (§ 4.4.2, at 96): “However, [CPI] has since fallen out of favor as a means of providing statistical weight to an evidence DNA profile since the CPI can only provide support for an inclusion. The primary criticism of the CPI is that it does not consider the DNA profile of the POI, it under-uses the data, and it is allele-centric rather than genotype-centric. … This approach, therefore, is not conservative for true noncontributors.” 20. DNA May Be Present Even If the Person Never Touched the Item (§ 7.1, at 172): “With the increased sensitivity of DNA techniques and sophisticated software, a DNA profile may be developed even when the contributor of that DNA never touched the item or area that
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was swabbed. Alternatively, a person’s DNA may be present when they were not involved in the crime. Therefore, considering how or when the DNA may have been deposited (or why it was not recovered) can be vital.” 21. Direct and Indirect Transfer Cannot Be Known From the Profile Alone (§ 7.2, at 172): “Except in ground-truth-known experiments, where an individual is observed to have been in contact with a surface/location, it is not possible to know whether the transfer was direct or indirect.” 22. Analysts Should Not Opine on Direct or Indirect Transfer (§ 7.2.1, at 176): “Recommendation 7.1: DNA analysts should not opine about the possibility or probability of direct or indirect transfer having occurred in a case.”
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23. Analysts Should Not Speculate About Transfer Scenarios (§ 7.2.1, at 175–76): “DNA analysts should not opine about how likely, possible, or probable a particular transfer scenario is (e.g., indirect or direct transfer). This is an opinion on the proposition itself which is not the role of the expert. Reporting that the DNA is consistent with a particular activity is unbalanced. … DNA analysts should not perform qualitative or quantitative evaluations of their DNA results considering DNA-TPPR for the first time on the witness stand.” 24. The Proper Answer to “How Did the DNA Get There?” (Table 7.1, at 175): “DNA analysis does not allow a scientist to directly answer how the DNA was deposited (direct or indirect transfer). The DNA results presented in my report regard the comparison of DNA profiles and can only help answer questions about whose DNA may be present or not.” 25. The Analyst Should Not Speculate (Table 7.1, at 175): “Offering an opinion on this question would amount to speculating on what is alleged. It is not my role as a scientist to speculate about or determine what happened.” 26. Possible Is Not the Same as Probable (Table 7.1, at 175): “Agreeing that something is ‘possible’ is not the same as offering an opinion about the probability of the results in the context of case-specific circumstances. Discussing whether something is possible does not help me convey the significance of the results in the context of this case. For example, getting struck by lightning or flipping a coin and getting ‘heads’ are both possible but have very different probabilities.” 27. Background and Prevalent DNA (Callout Box 7.1, at 174): “As a result of transfer and persistence, it is common to find DNA on items and surfaces. Background DNA (also called ‘foreign DNA’) denotes DNA from unknown sources and activities. Prevalent DNA denotes DNA from known sources and activities that may be expected from specific individuals. For example, it is expected that DNA collected from the steering wheel of a stolen vehicle will be a mixture from the owner(s)/driver(s) of the vehicle and the unknown person who last drove the car.”
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28. Duty to Correct Errors (§ 2.6, at 19–20): “DNA analysts and FSSPs have an ethical and professional duty to correct significant errors. … Bad faith, incompetence, and malfeasance are not required to trigger the need for a correction. Indeed, the duty to correct may apply to methods that were fully aligned with an FSSP’s protocols, relevant laws, and professional standards at the time a report was issued.”
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: 2026 Sentencing Guideline Amendments Speaker:
Roberto Balli
2026 Sentencing Guideline Amendments
Balli Law Office PO Box 1058 Laredo, TX 78042 956.712.4999 phone 956.724.5830 fax robertoballi@sbcglobal.net email http://www.webbcountycriminaldefense.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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2026 Sentencing Guideline Amendments Rusty Duncan Advanced Criminal Law By Roberto Balli * The Paper below is paper submitted for a previous seminar covering the 2025 sentencing guideline amendments. The paper is submitted for this seminar because the publishing deadline for this document is May 1, 2026, which is coincidentally the same date that the 2026 guideline amendments will be published. An amended paper will be submitted prior to the seminar to include the 2026 guidelines. What to expect from the 2026 Guideline Amendments: On the positive side for the defense, there are inflationary adjustments to all economic crimes that will effectively decrease guideline scores. The multiple count adjustment will be simplified or perhaps, made less complicated. On the negative side for the defense, we will see increased guidelines as fentanyl related substance thresholds are added to the guidelines to match the guidelines for fentanyl analogues. Finally, in Chapter 5, an introduction will be added before the sentencing table spelling out the sentencing options.
2026 Sentencing Guideline Amendments
Mitigating Role, Variances and the Death of Departures Federal Law Gumbo Roberto Balli This paper and the presentation will focus on the 2025 Amendments to the United States Sentencing Guidelines. The 2025 amendments were historic. The changes will certainly decrease the length of prison sentences in drug cases by increasing the application of mitigating role adjustments and lowering the guidelines. The guidelines were also amended to end the application of most Chapter 2 and Chapter 5 Departures. Finally, the Guidelines were amended to encourage courts to decrease the imposition of supervised release. Mitigating Role Adjustment The most dramatic amendment to the Sentencing Guidelines in 2025 is to U.S.S.G. § 2D1.1. The amendment creates a new pathway to a mitigating role adjustment found U.S.S.G. § 3B1.2 for drug related offenses. The impetus for the amendment was the Commission’s research demonstrating an inconsistent approach to the application of mitigating role adjustments around the country and even within districts. 1 “For example, application of mitigating role varies along
https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendlyamendments/202505_RF.pdf 1
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the southwest border, with a low of 14.3 percent of couriers and mules receiving the mitigating role adjustment in one district compared to a high of 97.2 percent in another.” 2 Mitigating Role Special Instruction to U.S.S.G. § 2D1.1 The Amendment language is found in U.S.S.G. § 2D1.1, specifically Special Instruction (e)(2). As amended, the new special instruction reads: (2) Application of §3B1.2 (Mitigating Role) to §2D1.1 Cases (A) Determine whether an adjustment under §3B1.2 (Mitigating Role) applies. (B) In addition to the circumstances identified in §3B1.2, an adjustment under §3B1.2 is generally warranted if the defendant’s primary function in the offense was performing a low-level trafficking function. (i) An adjustment under §3B1.2(a) is generally warranted if the defendant’s primary function in the offense was plainly among the lowest level of drug trafficking functions, such as serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout; or
2026 Sentencing Guideline Amendments
(ii) an adjustment under §3B1.2(b) is generally warranted if the defendant’s primary function in the offense was performing another low-level trafficking function, such as distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (e.g., the defendant was otherwise unlikely to commit such an offense and was motivated by an intimate or familial relationship, or by threats or fear to commit the offense).3 What is significant about this new Special Instruction is that 2(A) states that the Court should determine if the adjustment applies under §3B1.2 (Mitigating Role); this confirms that the old way of determining mitigating roles, both minimal (4-level) and minor (2-level) still applies. However, 2(B) provides the new and alternative way of applying role, the primary function method for both minimal (4-level) and minor (2-level) mitigating role adjustments. The Average Participant Method Under the old method of determining roles, which still applies, there are several requirements. First, the application notes have a requirement of multiple participants. 4 Minimal participants (4level) must also demonstrate that they are plainly less culpable than the average participant. 5 While minor participants (2-level) are those who are “less culpable than most other participants in the criminal activity, but whose role cannot be described as minimal.” 6 Id https://www.ussc.gov/guidelines/2025-guidelines-manual/annotated-2025-chapter-2-d#2d11 4 Application Note 2 to §3B1.2 5 Application Note 4 to §3B1.2 6 Application Note 5 to §3B1.2 2 3
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Primary Function Method The new alternative “primary function” method only applies to drug cases. The primary function approach states that the 4-level reduction applies to a defendant whose “primary function . . . was plainly among the lowest level of drug trafficking functions, such as serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout . . .” 7 A defendant can qualify for the 2-level adjustment if the defendant’s “primary function in the offense was performing another low-level trafficking function, such as distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (e.g., the defendant was otherwise unlikely to commit such an offense and was motivated by an intimate or familial relationship, or by threats or fear to commit the offense).” 8 Of note, the primary function method does not require other participants, nor does it require a comparison on roles. Instead, the analysis focuses on “low-level trafficking function” for 2-level reductions and “lowest-level drug trafficking functions” for 4-level reductions, with multiple examples of what the low-level and lowest level functions are. Mitigating Role Reduction U.S.S.G. § 2D1.1(a)(5)
2026 Sentencing Guideline Amendments
The Mitigating Role provision in U.S.S.G. §2D1.1(a)(5) was amended in 2025 to lower offense levels. This amendment sets the mitigating role base offense level at 32 for Defendants above level 34 that receive a mitigating role adjustment under §3B1.2 and sets a base-level cap at level 30 for those receiving the 4-level mitigation role adjustment under §3B1.2(a). This application of the amended U.S.S.G. §2D1.1(a)(5) applies regardless of whether the mitigating role adjustment is given for “primary function” or under the “less culpable than the average participant” provision.9 Although U.S.S.G. §2D1.1(a)(5) is not new, this Amendment reduces the base by up to 2 levels for Defendants receiving a mitigating role adjustment.
Special Instruction to §2B1.1 (e)(2) Id 9 https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendlyamendments/202505_RF.pdf 7 8
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Death of Departures In 2025, the Sentencing Commission called for the “Simplification of the Three-Step Process” for sentencing set out by Gall v. United States, 552 U.S. 38 (2007).10 The Gall Three-Step Process was codified in the Guideline in U.S.S.G. § 1B.1. Courts engaging in the three-step process as set out in Gall and the Guidelines were required to: 1. Calculate the applicable guideline range; 2. Evaluate whether a departure from the range is warranted based on the Guidelines’ policy statements for downwards departures; 3. Determine if a variance from the Guidelines is warranted by evaluating the sentencing factors under 18 U.S.C. § 3553(a), which provide for a holistic assessment. However, since the Guidelines became advisory, sentencing has evolved and departures have become disfavored by the Courts. Rather applying the departures requested by the parties under the Guidelines, courts are frequently considering the § 3553(a) sentencing factors and varying from the guidelines instead of departing. Very often, the reasons for the variances follow the arguments made for requested departures that are denied by the Court. The Commission found that the departures were being used less often by the Courts and had become redundant. Consequently in 2025, the Sentencing Commission eliminated almost all departures found in Chapters 2 and 5. A notable exception is the Substantial Assistance Departure found at U.S.S.G. §5K.1.1.11
2026 Sentencing Guideline Amendments
The Commission amended Guideline U.S.S.G. § 1B.1, which set out the 3-step process created by Gall, by eliminating the language relating to departures, creating only two steps in the sentencing process.12 Step 1 is determining the guideline range, and step 2 is the evaluation of the sentencing factors under 18 U.S.C. § 3553(a). Supervised Release The 2025 Sentencing Guidelines has a major amendment to the supervised release guideline found at U.S.S.G. §5D.1.1. Pursuant to 5D1.1, under the old guideline, a term of supervised should be ordered when required by statute or when the sentence imposed is more than one year. As amended, 5D1.1 eliminates the requirement of supervised release on sentences longer than one year. Further, when supervised release is not required by statute, 5D1.1 provides that supervised release should be ordered only when warranted by an “individualized assessment of the need for supervision,” (5D1.1(b)) and the court is required to state the reasons in open court for imposing or not imposing a term of supervised release. (5D1.1(d)).
https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendlyamendments/202505_RF.pdf 11 https://www.ussc.gov/guidelines/2025-guidelines-manual/annotated-2025-chapter-5#5k12 12 U.S.S.G.§1B1.1 10
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Texas Criminal Defense Lawyers Association
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Fifth Circuit & Supreme Court Significant Criminal Law Decisions
Speaker:
Camille Knight
C. Knight Law Founders Square 900 Jackson St., Ste 430 Dallas, TX 75202 214.871.1133 phone camille@cknightlaw.com email http://www.cknightlaw.com/ website
Fifth Circuit & Supreme Court 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Fifth Circuit & Supreme Court Significant Criminal Law Decisions June 2025 – Present Prepared for CJA Panel Reference
1. Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. Feb. 6, 2026) Background and Holding Victor Buenrostro-Mendez and Jose Padron Covarrubias are Mexican nationals who entered the United States without inspection in 2009 and 2001, respectively. In 2025, DHS encountered both men during interior enforcement operations and initiated removal proceedings, detaining them under 8 U.S.C. § 1225(b)(2)(A) without bond. Immigration judges denied bond hearings on the ground that § 1225(b)(2)(A) mandates detention without bond for “applicants for admission” not clearly entitled to be admitted. Both men filed habeas corpus petitions in the Southern District of Texas, which ordered bond hearings. After hearings, both were released; the government appealed. A divided 2–1 Fifth Circuit panel reversed. The majority held that any noncitizen present in the United States who was never lawfully admitted—regardless of how long they have resided here— is an “applicant for admission” within the meaning of 8 U.S.C. § 1225(a)(1) and is therefore subject to mandatory detention without bond under § 1225(b)(2)(A) pending removal proceedings. The court found that the statutory text, structure, and context supported the government’s position and that decades of contrary agency practice could not override the plain statutory meaning. The cases were remanded. The court did not address whether mandatory detention under this reading of the statute could independently violate procedural due process; that constitutional question was expressly left open.
Rule(s) of Law Fifth Circuit & Supreme Court
1. Noncitizens who entered the United States without inspection and who have never been lawfully admitted are “applicants for admission” under 8 U.S.C. § 1225(a)(1), and are therefore subject to mandatory detention without bond under § 1225(b)(2)(A) during removal proceedings, irrespective of how long they have resided in the country. 2. Years of contrary administrative practice do not override unambiguous statutory text. Prior agency readings more restrictive than the statute’s plain meaning did not establish a binding construction. 3. The Fifth Circuit expressly did not decide whether prolonged mandatory detention of longresident interior arrestees without individualized review raises independent procedural due process concerns. Constitutional challenges on those grounds remain available.
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Note: This is a 2-1 panel decision that is the subject of ongoing circuit conflict. As of the date of this compilation, other circuits have reached contrary results. En banc or Supreme Court review is possible.
2. In re Ryan, 171 F.4th 773 (5th Cir. Mar. 31, 2026) Background and Holding This mandamus proceeding arose from the prosecution of the Boeing Company following the fatal crashes of Lion Air Flight 610 (October 2018) and Ethiopian Airlines Flight 302 (March 2019), killing 346 people. Boeing was charged in January 2021 with one count of conspiracy to defraud the United States (18 U.S.C. § 371), arising from its alleged concealment of changes to the 737 MAX’s flight-control system from the FAA. Simultaneously, the government entered a Deferred Prosecution Agreement (DPA) that required Boeing to pay a substantial fine and undertake remedial compliance measures. The district court (N.D. Tex., Judge O’Connor) found that certain crash-victim family members were crime victims under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, and that the government had committed a legal error by not initially recognizing them as such, but concluded it lacked authority to alter the DPA’s terms. The government later determined Boeing had violated the DPA. Boeing agreed to plead guilty, but the district court rejected the plea agreement and directed resumption of negotiations. The government then reached a Non-Prosecution Agreement (NPA) in May 2025, paying or investing an additional $1.1 billion, and moved to dismiss the Information. Judge O’Connor granted the dismissal in November 2025, finding the government had not acted in bad faith and had satisfied its CVRA obligations. The families petitioned the Fifth Circuit for writs of mandamus challenging both the DPA and the NPA/dismissal. A unanimous three-judge panel denied relief on March 31, 2026. As to the DPA: the court held the challenge was moot because the DPA was no longer operative after Boeing’s breach. As to the NPA and dismissal: the court held (1) the government had satisfied its CVRA duty to confer with and treat the victims’ families fairly; and (2) the Fifth Circuit lacked jurisdiction under the CVRA to conduct substantive review of the district court’s decision to grant the government’s Rule 48(a) dismissal motion.
Rule(s) of Law Fifth Circuit & Supreme Court
1. A challenge to a deferred prosecution agreement becomes moot when the agreement is no longer operative (e.g., following a finding of breach). 2. The government satisfies the CVRA’s conferral and fair-treatment obligations when it solicits and weighs victims’ views throughout the prosecution; the CVRA does not entitle victims to control or veto prosecutorial charging decisions. 3. The Fifth Circuit lacks jurisdiction under the CVRA to conduct substantive review of a district court’s decision to grant the government’s Rule 48(a) motion to dismiss criminal charges. The court’s CVRA review does not extend to second-guessing the government’s exercise of prosecutorial discretion in entering a non-prosecution agreement. Note: This decision is primarily fact-bound and procedurally specific to the Boeing/737 MAX DPA-to-NPA sequence. The rules stated above reflect the panel’s holdings; their reach in other CVRA mandamus contexts may be limited by those facts.
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3. Parker v. Hooper, 171 F.4th 736 (5th Cir. Mar. 30, 2026) (en banc) Background and Holding This class action was filed in 2015 by prisoners at the Louisiana State Penitentiary (Angola) alleging deliberate indifference to serious medical needs in violation of the Eighth Amendment, and related claims under the Rehabilitation Act and the ADA. The district court (M.D. La.) bifurcated the case into liability and remedy phases. Following an eleven-day bench trial on liability, the court found in favor of the plaintiff class on all claims. After a ten-day remedy trial, the court entered a Remedial Order that, among other things, appointed three special masters—to be paid by the State—to monitor Angola’s compliance and develop remedial plans. The Fifth Circuit en banc vacated the Remedial Order on March 30, 2026. Writing for the majority, Judge Jones held that the Remedial Order failed to comply with the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626. Specifically: (1) the PLRA permits appointment of only one special master, not three; and (2) a court-appointed master may not be paid by the defendant state, as the district court had ordered. The majority also criticized the Remedial Order as a “mishmash of mandates,” some already rendered obsolete by changes Louisiana had voluntarily made to Angola’s medical care before and during the litigation—changes the district court failed to adequately account for in fashioning relief. The en banc court did not disturb the liability finding; the door to remand for a properly framed remedial proceeding was left open.
Rule(s) of Law 1. Under the PLRA, 18 U.S.C. § 3626(f), a district court may appoint only one special master in prison conditions litigation; appointment of multiple masters is impermissible. 2. The PLRA prohibits a court-appointed special master from being compensated by the defendant state or institution. 3. Prison conditions injunctive relief must be narrowly drawn, extend no further than necessary to correct the identified constitutional violation, and be the least intrusive means of doing so. 18 U.S.C. § 3626(a)(1). Remedial orders must account for improvements voluntarily made by the defendant prior to and during litigation; failure to do so risks requiring correction of conditions that no longer exist.
Fifth Circuit & Supreme Court
Note: The liability finding (Eighth Amendment deliberate indifference) was not disturbed. The holding is primarily about the PLRA’s structural constraints on remedial orders, not about the merits of the underlying constitutional claim.
4. Rico v. United States, 607 U.S. ___, 146 S. Ct. 947 (Mar. 25, 2026) Background and Holding Isabel Rico pleaded guilty in 2010 to a federal drug trafficking offense and was ultimately serving a 42-month term of supervised release that began in December 2017 and was scheduled to expire
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in June 2021. In May 2018, she changed her address without notifying her probation officer; a bench warrant issued and she was not located until January 2023. During the period of her abscondment she committed several state-law offenses, including a drug possession/distribution offense in January 2022—more than six months after her supervised release term was scheduled to have expired. The district court applied the “fugitive tolling doctrine,” pausing Rico’s supervised release clock from the time she absconded, and treated her January 2022 drug offense as a Grade A supervised release violation, resulting in a 16-month revocation sentence and a new two-year term of supervised release. The Ninth Circuit affirmed, bound by its own precedent. The Supreme Court granted certiorari to resolve a circuit split. Justice Gorsuch delivered the 8–1 opinion (Justice Alito dissenting). The Court reversed. The Sentencing Reform Act specifies precisely when supervised release begins and ends, provides specific mechanisms for revocation and extension (including § 3583(e)(2), requiring a hearing and sentencing-factor consideration to extend a term), and through § 3583(i) permits adjudication of late-in-term violations only if a warrant or summons issued before the term expired. Congress did not include any automatic tolling or extension rule for abscondment. The Court held that abscondment does not automatically extend or toll a term of supervised release beyond its judicially prescribed expiration. United States v. Crane, 979 F.2d 687 (9th Cir. 1992), and United States v. Buchanan, 638 F.3d 448 (4th Cir. 2011)—the principal circuit authorities for the contrary rule—are thereby abrogated.
Rule(s) of Law 1. The Sentencing Reform Act does not authorize automatic extension or tolling of a term of supervised release when a defendant absconds from supervision. A supervised release term expires at the judicially prescribed date regardless of the defendant’s failure to report or evasion of supervision. 2. A district court may revoke supervised release and impose a new term only for violations that (a) occurred during the supervised release term as prescribed, or (b) are reached under § 3583(i)—which permits post-expiration adjudication only if a warrant or summons issued for the violation before the term expired. 3. The Act’s express provisions for extension (§ 3583(e)(2)) and revocation-based reimprisonment (§ 3583(e)(3), (g)) are the exclusive mechanisms for altering an otherwise expiring term. Courts may not supplement them by judicial adoption of a fugitive-tolling doctrine.
Fifth Circuit & Supreme Court
4. United States v. Crane, 979 F.2d 687 (9th Cir. 1992), and United States v. Buchanan, 638 F.3d 448 (4th Cir. 2011), which applied fugitive tolling to supervised release, are abrogated.
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5. Swick v. United States, No. 25-5376 (S. Ct. Apr. 6, 2026) (GVR) Background and Holding Wesley Swick pleaded guilty in 2009 in the Northern District of Texas to unlawful possession of a stolen firearm and received 33 months’ imprisonment (concurrent with state sentences) followed by a two-year term of supervised release. Released from state custody in September 2017, he never reported to federal probation. The failure went undetected for years. The government eventually sought revocation, and the district court applied the fugitive tolling doctrine—holding that Swick’s supervised release term was tolled from the moment he failed to report—and revoked his supervised release, imposing a 24-month consecutive sentence. On May 15, 2025, a Fifth Circuit panel affirmed, published as United States v. Swick, 137 F.4th 336 (5th Cir. 2025). The panel held that the common-law fugitive tolling doctrine applies to supervised release and that Swick had knowingly and intentionally evaded supervision. The panel aligned the Fifth Circuit with the Second, Third, Fourth, and Ninth Circuits on the circuit split, against the First and Eleventh. Swick petitioned for certiorari. The Supreme Court held the petition pending its decision in Rico v. United States. After Rico issued on March 25, 2026, the Court granted certiorari, vacated the Fifth Circuit’s judgment in Swick, and remanded for further proceedings in light of Rico. The GVR order issued April 6, 2026.
Rule(s) of Law 1. Swick is a GVR memorandum order. It has no independent precedential effect. Its operative consequence is that the Fifth Circuit’s prior holding in United States v. Swick, 137 F.4th 336—that fugitive tolling applies to supervised release terms—is vacated pending the Fifth Circuit’s reconsideration under Rico v. United States, 607 U.S. ___, 146 S. Ct. 947 (2026). 2. On remand, the Fifth Circuit must apply Rico’s holding: because the Sentencing Reform Act does not authorize automatic extension or tolling of a supervised release term upon abscondment, the district court’s reliance on fugitive tolling to assert revocation jurisdiction over Swick must be reconsidered.
Fifth Circuit & Supreme Court
Note: The practical question on remand is whether the district court had jurisdiction to revoke Swick’s supervised release. If Swick’s two-year term expired before the violator’s warrant issued (the warrant issued November 2023, well after the term’s scheduled expiration), Rico suggests the court lacked authority to treat post-expiration conduct as a supervised release violation. The Fifth Circuit will resolve the application of § 3583(i)’s warrant-before-expiration requirement to these facts.
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6. United States v. Bell, 2025 WL 655802 (5th Cir. Feb. 28, 2025) (unpublished) Note: This opinion supersedes and withdraws the panel’s original January 10, 2025, opinion reported at 125 F.4th 662, following partial grant of the government’s petition for panel rehearing. It is not designated for publication. See 5th Cir. R. 47.5.
Background and Holding Eddie Lamont Bell pleaded guilty in the Western District of Texas to unlawful possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), after officers found him asleep in his vehicle outside a bar, intoxicated, with a loaded .40-caliber Glock on the center console and a 29-round magazine and cocaine in the door. The PSR applied a base offense level of 26 under U.S.S.G. § 2K2.1(a)(1) (semiautomatic firearm capable of accepting a large-capacity magazine) and denied a § 3E1.1 acceptance-of-responsibility reduction based on a pre-sentencing altercation in which Bell had reportedly acted as the aggressor. Bell was sentenced to 115 months. The Fifth Circuit (Elrod, C.J., joined by Dennis and Higginson, JJ.) vacated the sentence and remanded for resentencing. As Bell conceded, his facial Second Amendment and Commerce Clause challenges to § 922(g)(1) were foreclosed. On the acceptance-of-responsibility issue— the only issue decided—the court held that Bell’s pre-sentencing altercation with his cellmate did not negate the significant evidence of acceptance of responsibility established by his guilty plea and truthful admission of the offense. Video showed that Bell initiated no violence: he asked his cellmate to stop snoring, returned to his bunk, and struck the cellmate only once after the cellmate punched him in the face and struck him with a water cooler. Bell was never disciplined. His conduct, at most in self-defense, did not constitute “criminal conduct” warranting denial of the § 3E1.1 reduction. Because the sentence was vacated on that ground, the court did not address the § 2K2.1(a)(1) large-capacity magazine enhancement, noting only that United States v. LunaGonzalez, 34 F.4th 479 (5th Cir. 2022), governs and that the government bears the burden to show the magazine and firearm “actually fit.”
Rule(s) of Law 1. Not every incident of wrongful conduct pre-sentencing constitutes “criminal conduct” within the meaning of U.S.S.G. § 3E1.1 sufficient to negate acceptance of responsibility. Courts must assess the seriousness of the conduct and whether it outweighs the significant evidence of acceptance of responsibility established by a guilty plea and truthful admission.
Fifth Circuit & Supreme Court
2. A defendant’s decision to defend himself when attacked—without initiating violence— does not constitute the kind of “criminal conduct” warranting denial of a § 3E1.1 reduction. Conduct that amounts to self-defense negates the element of criminality required to outweigh acceptance-of-responsibility evidence. See United States v. Santiago, 96 F.4th 834 (5th Cir. 2024). 3. A district court’s refusal to grant a § 3E1.1 reduction is reviewed under a standard more deferential than clear error and will not be reversed unless it is without foundation. The court’s legal interpretation of the Guidelines is reviewed de novo. 4. Under U.S.S.G. § 2K2.1, the government bears the burden of showing that a magazine and firearm are “compatible”—meaning they “actually fit”—to support the elevated base offense level for an offense involving a semiautomatic firearm capable of accepting a large-capacity magazine. United States v. Luna-Gonzalez, 34 F.4th 479 (5th Cir. 2022).
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7. United States v. Cockerham, 162 F.4th 500 (5th Cir. Dec. 17, 2025) Note: Petition for certiorari docketed by the government, February 27, 2026. 2–1 panel decision (Ho, J., majority; Ho, J., concurring; Higginson, J., dissenting). Conflicts with the Second, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuits, which treat § 922(g)(1) as constitutional as applied to all felons. Also conflicts with the Third and Sixth Circuits, which conduct individualized dangerousness assessments. This is a Fifth Circuit-specific felony-by-felony approach.
Background and Holding Edward Cockerham was indicted in the Southern District of Mississippi for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). His sole predicate felony was a Mississippi conviction for failing to pay child support—an offense for which he received five years’ probation and served no incarceration. He eventually repaid the child support and was released from probation. He twice moved to dismiss the indictment on Second Amendment grounds, preserved those claims in a conditional guilty plea, and timely appealed. The Fifth Circuit reversed. Applying the Bruen/Diaz framework, the court held that the government failed to identify a historically sufficient analogue justifying permanent lifetime disarmament of a person convicted only of failing to pay child support. The government analogized child-support delinquency to theft and invoked the Founding-era practice of debtors’ prisons. The court rejected the analogy: at the Founding, debtors were released from debtors’ prison upon payment of their debt, while thieves remained incarcerated even if the stolen goods were voluntarily returned. Because the government conceded at oral argument that Cockerham was no longer delinquent— having fully repaid the child support at the time he possessed the firearm—there was no historical justification to disarm him at that moment, let alone for the rest of his life. The government’s attempt to invoke unproven conduct (new alleged child support debt, drug trafficking shown in the PSR) was rejected; the Fifth Circuit’s binding precedent confines the as-applied analysis to the predicate conviction, not the defendant’s broader history or characteristics. The court left open the possibility of reprosecution under a theory consistent with a proper historical showing, as in United States v. Daniels, 124 F.4th 967 (5th Cir. 2025). Judge Higginson dissented, urging remand to allow the parties and district court to compile a historical record in the first instance.
Rule(s) of Law 1. Section 922(g)(1) is only presumptively lawful. As-applied challenges based on the nature of the predicate felony are available. Simply classifying a crime as a felony does not satisfy the historical rigor required by Bruen and its progeny. United States v. Diaz, 116 F.4th 458 (5th Cir. 2024).
Fifth Circuit & Supreme Court
2. The Fifth Circuit evaluates as-applied § 922(g)(1) challenges by focusing on the nature of the predicate offense, not the defendant’s broader criminal history or individual characteristics. Courts sift the elements of the predicate conviction through Bruen’s analogical framework, not the defendant himself. Reliance on unproven conduct is impermissible. United States v. Hernandez, 159 F.4th 425 (5th Cir. 2025); United States v. Kimble, 142 F.4th 308 (5th Cir. 2025). 3. At the Founding, debtors were treated differently from thieves. Debtors were subject to temporary disarmament—released upon payment of the debt—while thieves were subject to permanent disarmament. A conviction for failure to pay child support is more analogous to a colonial-era debt offense than theft; because the debt was fully repaid, no historical basis existed to disarm the defendant permanently—or at all.
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8. United States v. Daniels, 124 F.4th 967 (5th Cir. Jan. 6, 2025) (on remand from S. Ct.) Note: This is the second Fifth Circuit opinion in Daniels, issued on remand after the Supreme Court granted certiorari, vacated the original Fifth Circuit opinion (77 F.4th 337 (5th Cir. 2023)), and remanded for reconsideration in light of United States v. Rahimi, 602 U.S. 680 (2024). The court again reversed the conviction. Judge Higginson concurred. The government may reprosecute under a constitutionally compliant theory.
Background and Holding Patrick Daniels was convicted after a jury trial in the Southern District of Mississippi of possessing a firearm while an unlawful user of a controlled substance, 18 U.S.C. § 922(g)(3). Officers stopped his vehicle, smelled marijuana, and found burnt marijuana cigarette butts and two loaded firearms. Daniels later admitted to smoking marijuana approximately fourteen days out of every month. The jury was instructed that it need not find Daniels used marijuana at the precise time he possessed the firearms, but only that his unlawful use had “occurred recently enough” to indicate he was “actively engaged” in such conduct—tracking the McCowan temporal-nexus standard. He was sentenced to nearly four years and raised a Second Amendment challenge throughout. On remand, the Fifth Circuit again reversed and remanded, this time controlled by United States v. Connelly, 117 F.4th 269 (5th Cir. 2024). Section 922(g)(3) is not facially unconstitutional— historical tradition supports disarming the presently intoxicated—but the statute violates the Second Amendment as applied to a defendant whose conviction rests solely on habitual or occasional drug use. The instructional error was dispositive: the jury was permitted to convict Daniels even if it believed he had not used marijuana in several weeks, meaning the conviction could rest on nothing more than periodic use without any finding of present intoxication. Because the government offered no historical analogue justifying disarmament based solely on habitual or occasional marijuana use, § 922(g)(3) as applied was unconstitutional. The court did not decide whether § 922(g)(3) could constitutionally reach defendants who are not presently intoxicated but whose drug use is so frequent and heavy as to render them analogous to the dangerously mentally ill, or whether a tight temporal nexus between drug use and firearm possession established by constitutionally adequate jury instructions would survive. The government may reprosecute.
Rule(s) of Law Fifth Circuit & Supreme Court
1. Section 922(g)(3) is not facially unconstitutional: the Nation’s history and tradition support some limits on a presently intoxicated person’s right to carry a weapon. United States v. Connelly, 117 F.4th 269 (5th Cir. 2024). 2. Section 922(g)(3) violates the Second Amendment as applied to a defendant convicted solely on the basis of habitual or occasional drug use—without a jury finding of present or recent intoxication. Historical intoxication laws may address the same problem (preventing intoxicated persons from carrying weapons) but do not impose a comparable burden (banning all possession by “unlawful users” regardless of current sobriety), and therefore pass the “why” but not the “how” test under Bruen. Connelly, 117 F.4th at 282.
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3. A § 922(g)(3) conviction may survive Second Amendment scrutiny if the jury is required to find a tight temporal nexus between unlawful drug use and firearm possession—at minimum, present or recent intoxication at the time of possession. Jury instructions tracking only the “actively engaged” or “recently enough” standard without requiring present or contemporaneous use are constitutionally deficient under Connelly. (The majority and concurrence disagreed on how narrow the constitutional window is.) 4. Reversal on as-applied grounds does not bar reprosecution. The Double Jeopardy Clause does not prohibit retrial when a conviction is overturned on appeal. Ball v. United States, 163 U.S. 662 (1896).
9. United States v. Hembree, 165 F.4th 909 (5th Cir. Jan. 27, 2026) Note: Petition for certiorari docketed by the government, April 27, 2026. Panel: Higginson, Willett, Engelhardt. Willett, J., concurred. This is a matter of first impression in the Fifth Circuit as to simple possession of methamphetamine as a § 922(g)(1) predicate.
Background and Holding Charles Hembree was charged in the Southern District of Mississippi with being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). His sole predicate felony was a 2018 Mississippi conviction for simple possession of methamphetamine. He moved to dismiss on Second Amendment grounds under Bruen, preserved the claim in a conditional guilty plea, and was sentenced to six months (below guidelines). The district court denied the motion before the Fifth Circuit’s controlling decisions in Diaz and Kimble issued.
Fifth Circuit & Supreme Court
The Fifth Circuit reversed. The government offered two historical justifications: (1) Founding-era laws severely punishing knowing possession of contraband (stolen horses, mail theft, counterfeiting), and (2) a tradition of disarming dangerous individuals. Both failed. As to the first, the court—following its reasoning in Kimble and Doucet—held that those offenses concerned theft, fraud, or deceit, not the use of addictive substances, and the analogue therefore did not address Hembree’s predicate conviction, which targets possession of intoxicating substances. As to the second, Kimble confirmed that drug trafficking is sufficiently analogous to the Founding’s tradition of disarming dangerous persons because of the connection between trafficking and violence. But Kimble’s rationale does not extend to simple possession: there is no historical tradition regulating ordinary citizens who consumed intoxicants, there is no evidence that mere possession necessarily signifies involvement in the drug trade, and the government was restricted to the predicate conviction—simple possession—rather than the accompanying § 922(g)(1) offense conduct or the PSR. The government’s attempt to treat simple possession as equivalent to possession with intent to distribute was rejected. The court expressly noted the rapidly evolving state of this doctrine and that its holding was bound by existing Fifth Circuit precedent pending further en banc or Supreme Court clarification.
Rule(s) of Law 1. The historical justification required for a § 922(g)(1) as-applied challenge is not an abstraction at a high level; it must be demonstrated as applied to the specific predicate felony, grounded in the Nation’s disarmament tradition. United States v. Diaz, 116 F.4th 458 (5th Cir. 2024).
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2. A simple felony drug possession conviction—as distinct from drug trafficking or distribution—does not fall within the Nation’s historical tradition of firearm regulation and cannot serve as a valid § 922(g)(1) predicate in the Fifth Circuit. Founding-era contrabandpossession analogues (theft, fraud, deceit) and dangerousness analogues (drug trafficking) do not extend to simple possession of an intoxicating substance. 3. The key consideration for the Fifth Circuit’s as-applied analysis is the defendant’s prior conviction punishable by more than one year—not unproven conduct charged contemporaneously with the § 922(g)(1) indictment, conduct from the PSR, or prior conduct that did not result in a felony conviction. United States v. Kimble, 142 F.4th 308 (5th Cir. 2025).
10. United States v. Johnson, 163 F.4th 933 (5th Cir. Jan. 7, 2026) Note: Panel: Elrod, C.J.; Clement, J. (majority); Haynes, J. (dissenting). Fourth Amendment protectivesweep doctrine under Michigan v. Long, 463 U.S. 1032 (1983). Reversed and vacated.
Background and Holding Tony Lee Johnson was arrested in the Northern District of Texas pursuant to a warrant for violation of supervised release conditions. Officers had conducted pre-arrest surveillance and knew Johnson was a Bloods gang member, the primary suspect in an ongoing LPD homicide investigation, and had a history of drug possession, domestic assault, and aggravated assault with a firearm. His girlfriend, Beatrice Simmons, was in the passenger seat when officers blocked the vehicle. After handcuffing Johnson, officers removed and detained Simmons nearby in the driveway without arresting her. Johnson instructed Simmons to return the vehicle to the yard and told officers he did not consent to searches. Officer Pringle then conducted a warrantless search of the driver’s seat and center console—areas within the driver’s immediate reach—finding a loaded handgun. Prior to the search, Officer Pringle knew Simmons had reportedly told other detectives at some point that she was a felon on probation or parole; he could not confirm the conviction and did not seek specifics. Johnson was charged with and convicted of being a felon in possession of a firearm on a conditional plea reserving the suppression issue.
Fifth Circuit & Supreme Court
The Fifth Circuit reversed. Because Johnson was already arrested at the time of the search, the protective-sweep rationale for the search rested entirely on whether Officer Pringle reasonably believed that Simmons was potentially dangerous and could gain immediate control of a weapon in the vehicle. The court held that Simmons’s unspecified felony record, her intimate relationship with a convicted felon, and her presence during his arrest—without more—did not provide the objectively reasonable individualized suspicion required under Michigan v. Long. For a Long search predicated on a third party’s potential dangerousness, the officer must point to some contemporaneous fact arising from the police encounter that gives rise to a belief that the third party might retrieve a weapon and attack. Simmons did not disobey officers’ instructions, display hostility, or move toward the vehicle when Johnson told her to retrieve it. Officer Pringle acknowledged he observed no suspicious conduct by Simmons. A subjective belief that a romantic partner might react emotionally to her boyfriend’s arrest, without any contemporaneous, articulable, individualized fact supporting dangerousness, does not satisfy Long’s objective reasonable-suspicion standard. Judge Haynes dissented, arguing the arrest of Simmons’s
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romantic partner in her presence was itself a sufficient contemporaneous fact and that the majority’s requirement of “immediate suspiciousness” finds no support in Terry or Long.
Rule(s) of Law 1. Under Michigan v. Long, 463 U.S. 1032 (1983), police may conduct a protective sweep of the passenger compartment of a vehicle, limited to areas where a weapon may be placed or hidden, if they reasonably believe the suspect is dangerous and may gain immediate control of weapons. Once the suspect has been arrested and is in custody, the Long rationale for searching the vehicle is unavailable as to the arrested suspect. The search is justifiable only if officers reasonably believe a non-arrested third party present at the scene is potentially dangerous and may gain access to a weapon in the vehicle. 2. A Long search requires individualized suspicion that the specific third party is dangerous. A third party’s unspecified felony record, romantic association with the arrestee, and mere presence during the arrest, standing alone, do not constitute individualized reasonable suspicion sufficient to justify a protective sweep. The officer must identify some contemporaneous fact arising from the police encounter—such as hostility, disobedience of instructions, movement toward the vehicle, or other affirmative conduct—that supports a belief that the third party poses a threat. 3. Fourth Amendment reasonableness is an objective standard that does not turn on the officer’s subjective intent or fear. Whren v. United States, 517 U.S. 806 (1996). Reasonable suspicion may be formed by collective knowledge of law enforcement and need not always be based on personal observation, but the officer must be aware of some contemporaneous fact forming part of the totality of the circumstances justifying the search.
11. United States v. King, 155 F.4th 341 (5th Cir. Aug. 15, 2025)
Fifth Circuit & Supreme Court
Note: Panel: Higginson, Ho, and Wilson, JJ. Substituted opinion after panel rehearing granted; prior opinion at 2025 WL 2371032 withdrawn. Sentencing Guidelines crime-of-violence categorical approach; Louisiana armed robbery; plain error review; oral/written judgment conflict; presentence detention credit. Affirmed in part, remanded.
Background and Holding Tyree King pleaded guilty without a plea agreement to being a felon in possession of a firearm (18 U.S.C. §§ 922(g)(1), 924(a)(8)) and possession of a machinegun (18 U.S.C. §§ 922(o), 924(a)(2)). The PSR calculated a base offense level of 22 under U.S.S.G. § 2K2.1(a)(3), treating King’s prior Louisiana armed robbery conviction (La. R.S. 14:64) as a “crime of violence.” King raised no objection at sentencing and was sentenced to 71 months. On appeal, for the first time, he argued that Louisiana armed robbery is a general-intent crime and therefore can be committed recklessly or negligently, disqualifying it as a crime of violence after Borden v. United States, 593 U.S. 420 (2021), and United States v. Garner, 28 F.4th 678 (5th Cir. 2022).
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The Fifth Circuit affirmed the base-offense-level determination under plain error review. Focusing on the second plain-error prong—whether the error was clear or obvious—the court declined to extend Garner beyond the Louisiana aggravated-assault statute (La. R.S. 14:37.4) to Louisiana armed robbery. The court acknowledged that Louisiana’s general-intent scheme theoretically permits conviction with reckless or negligent mens rea, but noted that for plain error purposes it looks to whether any Louisiana Supreme Court decision has actually upheld an armed-robbery conviction based solely on reckless or negligent intent. King’s primary authority, State v. Smith, 23 So. 3d 291 (La. 2009), did not specify whether the defendant acted with reckless or negligent intent and therefore did not establish clear error. The court also held that King had not “invited” the error by advocating for the PSR Guidelines range, because counsel independently sought a downward variance from that range. The court remanded on two separate grounds: (1) to resolve the conflict between the oral pronouncement (71-month sentence with credit for presentence detention) and the written judgment (which omitted the credit), with instructions to clarify whether the district court would have imposed the same sentence regardless of how the credit was handled; and (2) to modify two discretionary supervised-release conditions that conflicted between oral pronouncement and written judgment.
Rule(s) of Law 1. Under plain error review, the “clear or obvious” prong is assessed as of the time of appeal. For purposes of determining whether a Louisiana general-intent offense can be committed recklessly—and thus fails the Borden/Garner categorical test—the court looks not only to the statutory scheme but to whether Louisiana state court decisions have actually upheld convictions on that specific offense based on reckless or negligent intent. United States v. Garner, 28 F.4th 678 (5th Cir. 2022), is limited to La. R.S. 14:37.4 (aggravated assault with a firearm) and has not been extended to Louisiana armed robbery on plain error review. 2. The invited-error doctrine requires more than mere advocacy for a Guidelines range adopted by the district court; counsel must have “independently advocate[d]” for the specific range ultimately imposed. United States v. Franklin, 838 F.3d 564, 567 (5th Cir. 2016). Seeking a downward variance from the PSR range does not constitute invitation of error in the Guidelines calculation. 3. When an oral pronouncement of sentence and the written judgment conflict, the oral pronouncement controls. United States v. Mireles, 471 F.3d 551, 557–58 (5th Cir. 2006). Discretionary conditions of supervised release must be orally pronounced. United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc).
Fifth Circuit & Supreme Court
4. A district court may not compute credit for time served or order a backdated sentence commencement, but it retains residual authority to consider presentence custody when fashioning a sentence, including downward adjustments under U.S.S.G. §§ 5G1.3(b) or 5K2.23. United States v. Taylor, 973 F.3d 414, 418 (5th Cir. 2020).
12. United States v. Nyandoro, 146 F.4th 448 (5th Cir. Aug. 4, 2025) Note: Panel: Stewart, Clement, and Willett, JJ. (Willett, J., writing). Substituted opinion; prior opinion at 140 F.4th 714 withdrawn. § 922(g)(3) (unlawful user of controlled substance in possession of firearm); motion
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to withdraw guilty plea; appeal waiver; factual-insufficiency exception. Cert. petition docketed Nov. 24, 2025. Affirmed.
Background and Holding Kenleone Joe Nyandoro pleaded guilty to possessing a firearm as an unlawful user of a controlled substance (18 U.S.C. § 922(g)(3)), securing an unusually favorable deal: he could enter the STEPS rehabilitation program and have charges dismissed upon successful completion. He failed the program after being arrested for evading police at speeds exceeding 100 mph. Nearly ten months after entering his plea—after the PSR was filed and sentencing scheduled—Nyandoro moved to withdraw his plea, arguing § 922(g)(3) is unconstitutional under the Second Amendment and Due Process Clause. The district court denied the motion and sentenced him to 51 months. The Fifth Circuit affirmed on two independent grounds. First, as to the withdrawal motion: Reviewing for abuse of discretion under the seven-factor Carr test, the court found that six of seven factors—prejudice to the government, delay (nine months from Bruen), waste of judicial resources, inconvenience to the court, voluntary nature of the original plea, and knowing-and-voluntary character of the waiver—all weighed against withdrawal. Only Nyandoro’s assertion of innocence favored him. The court rejected his argument that subsequent changes in constitutional law rendered his prior plea retroactively unknowing: a voluntary plea intelligently made in light of then-applicable law does not become vulnerable because later decisions indicate the plea rested on a faulty premise. United States v. Barnes, 953 F.3d 383, 387 (5th Cir. 2020). By entering a plea with an appeal waiver, the defendant assumes the risk of unfavorable legal developments. Second, as to the challenge to the court’s acceptance of the plea: The government invoked Nyandoro’s appeal waiver. The Fifth Circuit held the waiver enforceable. Nyandoro’s claim that § 922(g)(3) is unconstitutional does not fall within the factual-insufficiency exception to appeal waivers. That exception is narrow: it applies only when the defendant contends his admitted conduct fails to satisfy the statutory elements of the offense—a statutory, not constitutional, challenge. A constitutional challenge to a statute presupposes that the statute does apply to the defendant’s conduct; the argument is that Congress lacked authority to prohibit it. Such challenges are waivable, and a defendant cannot circumvent an appeal waiver by repackaging a constitutional claim as a factual-insufficiency argument. None of Nyandoro’s other arguments for avoiding the waiver—voluntary-plea, statutory-maximum, or miscarriage-of-justice exceptions— succeeded.
Rule(s) of Law
Fifth Circuit & Supreme Court
1. Pre-sentencing withdrawal of a guilty plea requires a “fair and just reason,” assessed under seven non-dispositive Carr factors. United States v. Carr, 740 F.2d 339, 343–44 (5th Cir. 1984). A voluntary plea intelligently made under then-applicable law does not become vulnerable because later judicial decisions indicate the plea rested on a faulty premise. Barnes, 953 F.3d at 387. The inherent risk of unfavorable legal evolution is part of the plea bargain, especially when the defendant agrees to an appeal waiver. 2. The factual-insufficiency exception to appeal waivers is narrow. It applies only when a defendant claims his admitted conduct fails to satisfy the statutory elements of the offense —not when the defendant argues the statute of conviction is unconstitutional. A defendant cannot convert a waivable constitutional challenge into a non-waivable factualinsufficiency claim by repackaging it as a plea-defect argument. The exception targets statutory failure—not affirmative defenses, constitutional infirmities, or jurisdictional objections.
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3. The duty imposed by Federal Rule of Criminal Procedure 11 to advise the defendant of the nature of the charge pertains only to the elements of the offense—not to the statute’s constitutionality. A vagueness challenge asks whether the statute gives ordinary people fair notice of the conduct it punishes, not whether the defendant’s conduct satisfies the statutory elements. United States v. De Bruhl, 118 F.4th 735, 745 (5th Cir. 2024). 4. The statutory-maximum exception to an appeal waiver applies only when the sentence exceeds the upper limit of punishment Congress legislatively specified. It does not apply merely because the defendant challenges the validity of his conviction. The right to appeal is statutory, not constitutional, and may be waived in a plea agreement.
13. United States v. Sanders, 133 F.4th 341 (5th Cir. Mar. 27, 2025) Note: Panel: Richman, Southwick, and Oldham, JJ. (Richman, J., writing; Oldham, J., concurring). Federal capital case; FDPA; double jeopardy/multiplicity; §§ 1201(a) (interstate kidnapping resulting in death) and 924(c)(1)(A) & (j)(1) (murder through use of firearm during crime of violence); Miranda/topic-limited invocations of counsel; competency; jury cross-section; death-qualification. Sentences previously commuted by President Biden (Dec. 23, 2024). Cert. petition docketed Dec. 30, 2025. Affirmed in part, vacated in part.
Background and Holding Thomas Steven Sanders was convicted of kidnapping and murdering a twelve-year-old child and sentenced to two concurrent death sentences, later commuted to two terms of life imprisonment without parole. The court addressed numerous issues on direct appeal.
Fifth Circuit & Supreme Court
Double Jeopardy (principal holding on which conviction was vacated): Sanders was charged with (1) interstate kidnapping resulting in death under 18 U.S.C. § 1201(a) and (2) murder through use of a firearm during a crime of violence under 18 U.S.C. §§ 924(c)(1)(A) and (j)(1), with the kidnapping serving as the predicate crime of violence for the § 924 charge. The charges failed the Blockburger elements test: as a predicate for the § 924(j) offense, the kidnapping count did not require proof of any fact that the murder count did not. The court then asked whether Congress authorized cumulative punishment. Unlike § 924(c), which expressly mandates consecutive cumulative sentences, § 924(j) is silent on cumulative punishment. The court held that both §§ 924(j) and 1201(a) authorize life imprisonment or death, but neither statute clearly manifests congressional intent for cumulative (consecutive) punishment. Applying Whalen v. United States, 445 U.S. 684 (1980), the court vacated Sanders’s conviction and sentence under Count Two (§ 924(j)). Other holdings (all affirmed): (1) The district court did not abuse its discretion by declining to order a sua sponte competency hearing; a defendant may be both mentally ill and competent to stand trial, and no expert opined that Sanders was incompetent. (2) Sanders’s invocations of counsel during the first interrogation were topic-limited (“before answering that question”), not global—the agent honored each by changing the subject, and the district court’s factual finding was not clearly erroneous. (3) Evidence was sufficient to support the kidnapping “for a purpose” element (elimination of the only witness) and all three statutory aggravating factors. (4) Death-qualification of the jury and the district court’s challenged evidentiary and prosecutorial-argument rulings did not constitute error.
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Rule(s) of Law 1. Where charges fail the Blockburger same-elements test, cumulative punishment is permissible only if Congress clearly authorized it. 18 U.S.C. § 924(c) expressly mandates cumulative consecutive sentences; 18 U.S.C. § 924(j) does not. Conviction and punishment under both §§ 924(j) and a predicate offense that fails Blockburger violates the Double Jeopardy Clause absent clear congressional authorization for cumulative punishment. Lora v. United States, 599 U.S. 453 (2023); Whalen v. United States, 445 U.S. 684 (1980); United States v. Gonzales, 841 F.3d 339 (5th Cir. 2016). 2. A topic-limited invocation of the right to counsel—phrased as a request to speak with an attorney “before answering that question”—requires only that the interrogating officer honor the request by changing the subject, not that the entire interrogation cease. United States v. Ivy, 929 F.2d 147, 152–53 (5th Cir. 1991). Post-invocation responses may not be used to cast retrospective doubt on the clarity of the initial request. Smith v. Illinois, 469 U.S. 91, 100 (1984). 3. Under 18 U.S.C. § 1201(a), the government need only prove the defendant held the victim for some purpose; the exact nature of that purpose is inconsequential. The jury need not unanimously agree on what the purpose was. United States v. Webster, 162 F.3d 308, 328–29 (5th Cir. 1998). Elimination of a witness to a crime constitutes a cognizable purpose. 4. Death-qualification of a federal jury is authorized by 28 U.S.C. § 1866(c)(2) and Wainwright v. Witt, 469 U.S. 412 (1985), and does not violate the Sixth Amendment’s faircross-section requirement. Lockhart v. McCree, 476 U.S. 162 (1986). A juror may be excused for cause if her views on capital punishment would prevent or substantially impair the performance of her duties, even if the challenge is based solely on the juror’s questionnaire responses without voir dire examination.
14. United States v. Swick, 137 F.4th 336 (5th Cir. May 15, 2025)
Fifth Circuit & Supreme Court
Note: Panel: Wiener, Stewart, and Southwick, JJ. (Southwick, J., writing). NOTE: This panel opinion was subsequently vacated and remanded by the Supreme Court. See Case 5 (Swick v. United States, No. 255376 (S. Ct. Apr. 6, 2026) (GVR in light of Rico v. United States)). Included for its detailed analysis of the fugitive-tolling doctrine under § 3624(e), which the Fifth Circuit will be required to revisit on remand. Supervised release revocation; fugitive tolling; § 3624(e); fugitive-status finding. No independent precedential effect following the GVR.
Background and Holding Wesley Swick pleaded guilty in 2009 to possessing a stolen firearm and was sentenced to 33 months (concurrent with state sentences) plus two years of supervised release. He was released from state prison in September 2017 but never reported to federal probation. His failure went undetected until 2023, by which time his two-year term of supervised release would have expired in September 2019 (without tolling). The government argued that fugitive tolling suspended the running of supervised release from the date Swick failed to report. The district court agreed and revoked supervised release based on crimes Swick committed while at large. The Fifth Circuit affirmed.
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On the legal question, the Fifth Circuit joined the Second, Third, Fourth, and Ninth Circuits (over the First and Eleventh) in holding that fugitive tolling exists in the supervised release context. The court rejected Swick’s statutory-history argument that Congress’s failure to carry forward the parole-era fugitive-tolling provision (18 U.S.C. § 4210(c) (1982)) into the Sentencing Reform Act of 1984 reflected deliberate abandonment, finding that § 4210(c) was broader than fugitive tolling and thus was not clear statutory approval of the equitable doctrine whose later omission would constitute clear repudiation. The court grounded fugitive tolling in a developing common-law tradition recognized in the pre-1984 probation and parole contexts, presuming Congress would not eliminate that tradition silently. On the factual question, the district court did not clearly err in finding Swick a “fugitive”—one who knowingly failed to report to supervision with intent to evade it—based on Swick’s experience with state supervision and his own concession that he was aware of the federal supervision requirement (his only defense being that he mistakenly thought it had expired during incarceration, which the district court could credibly reject).
Rule(s) of Law 1. Fugitive tolling exists in the supervised release context; the government bears the burden of establishing facts supporting it. The tolling requires: (1) knowledge of the obligation to report to supervised release; and (2) intentional failure to report, constituting intentional avoidance of supervision. A supervisee who intentionally fails to report to probation is intentionally avoiding supervision for purposes of fugitive tolling. Whether the defendant was actually a fugitive is reviewed for clear error. 2. Congress’s failure to carry forward a statutory tolling provision from a prior sentencing regime does not establish deliberate abandonment of fugitive tolling where the prior provision was materially broader than the equitable doctrine and thus was not a clear prior statutory endorsement of that specific doctrine. 3. NOTE: This holding on fugitive tolling is called into question by Rico v. United States, 607 U.S. ___, 146 S. Ct. 947 (Mar. 25, 2026), which held that the Sentencing Reform Act does not authorize automatic extension or tolling of a supervised release term upon abscondment—a term expires at its judicially prescribed date—and that post-expiration conduct is reachable only through § 3583(i)’s warrant-before-expiration mechanism. On remand, the Fifth Circuit must determine whether § 3583(i) jurisdiction existed given that the warrant issued well after the term’s scheduled expiration. See Swick v. United States, No. 25-5376 (S. Ct. Apr. 6, 2026).
Fifth Circuit & Supreme Court
15. United States v. West, 137 F.4th 395 (5th Cir. May 21, 2025) Note: Panel: Elrod, C.J., Willett and Duncan, JJ. (per curiam; Willett and Duncan, JJ., concurring separately). Substituted opinion; prior opinion at 99 F.4th 775 withdrawn after panel rehearing. Child pornography production (18 U.S.C. § 2251(a)); restitution under § 2259; Paroline proximate-cause analysis; appeal waiver; statutory-maximum exception. Vacated and remanded.
Background and Holding Kyle Lamar West pleaded guilty to two counts of production of child pornography under 18 U.S.C. § 2251(a) and was sentenced to 720 months’ imprisonment. The PSR cited two inapplicable statutes—the Mandatory Victims Restitution Act (18 U.S.C. § 3663A) and the trafficking-specific
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restitution provision (18 U.S.C. § 2259(b)(2))—as the basis for a $6,000 restitution order. The district court adopted the PSR’s findings and legal conclusions. West did not object to the restitution order, triggering plain error review. The Fifth Circuit first held that West’s appeal waiver did not bar the challenge. The plea agreement defined “sentence” to include restitution and preserved the right to appeal a “sentence exceeding the statutory maximum.” Under binding precedent, a restitution order under § 2259 that lacks any proximate-cause analysis necessarily exceeds the statutory maximum—restitution is a form of punishment for which Congress sets limits, and Paroline v. United States, 572 U.S. 434 (2014), requires that the order reflect only losses proximately caused by the defendant. United States v. Winchel, 896 F.3d 387 (5th Cir. 2018); United States v. Leal, 933 F.3d 426 (5th Cir. 2019). Unlike Meredith and Alfred—where defendants challenged the methodology of an existing Paroline analysis—the district court here failed to conduct the required analysis altogether. On plain error: (1) The PSR erroneously cited § 3663A (MVRA), which child-pornography offenses displace (§ 2259 applies “[n]otwithstanding § 3663A”), and § 2259(b)(2), which applies only to trafficking offenses; production under § 2251(a) is not trafficking. (2) Even had the correct provision (§ 2259(b)(1)) been cited, the record contained no dollar figures, no range, and no analysis connecting West’s conduct to the victim’s losses—any restitution above zero therefore exceeded the statutory maximum. Both errors were clear and obvious, affected substantial rights, and seriously undermined the fairness, integrity, and public reputation of judicial proceedings. The court vacated the restitution order and remanded to allow the government to present evidence of proximate loss—noting candidly that this could result in a restitution order far exceeding $6,000.
Rule(s) of Law 1. Child-pornography offenses are covered exclusively by 18 U.S.C. § 2259, which applies “[n]otwithstanding §§ 3663 or 3663A.” Section 2259(b)(2)’s mandatory minimum of $3,000 applies only to trafficking offenses as defined by § 2259(c)(3); production under § 2251(a) is not trafficking. The only applicable restitution provision for production convictions is § 2259(b)(1), which permits restitution in the full amount of the victim’s losses to the extent proximately caused by the defendant. 2. A restitution order under § 2259 without a Paroline proximate-cause analysis is an illegal sentence in excess of the statutory maximum. Paroline v. United States, 572 U.S. 434 (2014); United States v. Winchel, 896 F.3d 387 (5th Cir. 2018). An appeal waiver with a statutory-maximum exception is unenforceable as to such a challenge. The government bears the burden under 18 U.S.C. § 3664(e) of demonstrating the amount of loss proximately caused by the defendant.
Fifth Circuit & Supreme Court
3. The appeal waiver applies—and the statutory-maximum exception does not—where the defendant challenges only the methodology of an existing proximate-cause analysis, as opposed to the district court’s failure to conduct any such analysis at all. United States v. Meredith, 52 F.4th 984 (5th Cir. 2022); United States v. Alfred, 60 F.4th 979 (5th Cir. 2023). 4. Where no proximate-cause analysis was conducted, there is no basis for any amount of restitution. A district court’s adoption of a PSR’s legal conclusions incorporates those conclusions into the record for purposes of error review. On remand after vacatur on plain error, the district court has discretion to determine whether the government may present new evidence of victim loss. United States v. Villalobos, 879 F.3d 169, 172 (5th Cir. 2018).
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16. United States v. Wickware, 143 F.4th 670 (5th Cir. July 22, 2025) Note: Panel: Stewart, Clement, and Willett, JJ. (per curiam). Substituted opinion on rehearing; prior opinion at 136 F.4th 591 withdrawn. U.S.S.G. § 4B1.2 crime-of-violence definition; Texas robbery; 2023 Guidelines amendment; categorical approach; rule of orderliness. Affirmed.
Background and Holding Darrell Wickware was convicted of Texas robbery in 2017 and subsequently pleaded guilty to unlawful possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court determined that the Texas robbery conviction was a “crime of violence” under U.S.S.G. § 4B1.2, relying on Fifth Circuit precedent, and sentenced Wickware to 24 months’ imprisonment. On appeal, Wickware argued that the November 2023 amendment to § 4B1.2— which for the first time provided an explicit text-based definition of “robbery” in § 4B1.2(e)(3)— rendered prior Fifth Circuit precedent (Santiesteban-Hernandez and Adair) inapplicable and required fresh categorical analysis. The Fifth Circuit held that the 2023 amendment to the Guidelines text (not merely commentary) constituted an intervening change in law sufficient to free the panel from the rule of orderliness as to the prior holdings—because those holdings construed a Guidelines provision that did not define “robbery.” Conducting the categorical analysis de novo under the amended text, the court held that Texas robbery (Tex. Penal Code § 29.02) is the same or narrower than the Guidelines’ generic offense under § 4B1.2(e)(3), and therefore qualifies as a crime of violence. Two specific elements of the Guidelines definition are broader than Texas robbery: (1) the Guidelines include fear of injury to property, which Texas does not; and (2) the Guidelines reach “fear of injury, immediate or future,” while Texas requires only imminent bodily injury. The court also found no meaningful categorical difference between “in the course of committing theft” (Texas) and “by means of actual or threatened force” (Guidelines), treating this as a minor terminological variation under Taylor v. United States, 495 U.S. 575, 599 (1990). Wickware’s argument that the Guidelines’ robbery definition categorically excludes reckless conduct (because it tracks the Hobbs Act, which excludes recklessness) was deemed forfeited because it was raised only in support of the force-clause argument in the opening brief, not as an independent enumeratedoffense-clause argument.
Rule(s) of Law
Fifth Circuit & Supreme Court
1. A textual amendment to the Sentencing Guidelines—as opposed to an amendment only to the commentary—constitutes an intervening change in law under the rule of orderliness and frees a subsequent panel to conduct fresh categorical analysis, even if prior panel decisions held that the same state offense qualified as a crime of violence under prior Guidelines text. A change to Guidelines text is more akin to statutory amendment than a change to commentary. United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014); cf. United States v. Longoria, 958 F.3d 372, 377 (5th Cir. 2020). 2. Under U.S.S.G. § 4B1.2(e)(3) (Nov. 2023 amendment), “robbery” means the unlawful taking of personal property from the person against his will, by means of actual or threatened force, violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession. Texas robbery under Tex. Penal Code § 29.02 qualifies as a “crime of violence” under this definition: the Guidelines’ definition is broader than (or equal to) the Texas offense in all respects. Minor variations in statutory phrasing (“in the course of” vs. “by means of”) do not override the substantial correspondence in the statutes’ substance. Taylor, 495 U.S. at 599.
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3. Arguments not raised as independent grounds in the opening brief are forfeited, even if addressed in the brief in a different context. A mens-rea/recklessness argument raised only in support of a force-clause challenge does not preserve that argument as an independent enumerated-offense-clause challenge. Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 2021).
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39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Rum & Rulings: Supreme Court Highlights Speaker:
Gerry Goldstein
Goldstein & Orr 315 E. Commerce, Ste. 301 San Antonio 78205 210.226.1463 phone 210.226.8367 fax gerrygoldsteinlaw@gmail.com email http://www.ggandh.com/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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Supreme Court Highlights
Texas Criminal Defense Lawyers Association
Supreme Court Highlights
TCDLA
2026 RUSTY DUNCAN CRIMINAL LAW COURSE
UNDER THE HAVANA MOON JUNE 18-20, 2026
SUPREME COURT HIGHLIGHTS Rum & Rulings Presented by: GERALD H. GOLDSTEIN GOLDSTEIN & ORR 315 E. Commerce Suite 301 San Antonio, TX 78205 gerrygoldsteinlaw@gmail.com 210-226-1463 (Office) 210-861-1900 (Cell)
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Table of Contents INTRODUCTION ..................................................................................................................................................... 5 WHAT CONSTUTES A SEARCH FOR ......................................................................................................................... 5 4TH AMENDMENT PURPOSES ................................................................................................................................. 5 CONTINUED VIABILITY OF THE “EXCLUSIONARY RULE” .......................................................................................... 6 Hudson v. Michigan, 547 U.S. 586 (2006): ...........................................................................................................7 Herring v. U.S., 555 U.S. 135 (2009): ....................................................................................................................9 PROTECTING THE CITIZENRY FROM ITS PROTECTORS ............................................................................11 U.S. v. Leon, 468 U.S. 897 (1984): ......................................................................................................................12 SUBJECTIVE VS OBJECTIVE INTENT OF THE OFFICER ..............................................................................14 COLLECTIVE BAD FAITH ..................................................................................................................................14 (WHAT IS GOOD FOR THE GOOSE) ..................................................................................................................14 FRANKS-TYPE MISREPRESENTATIONS ..........................................................................................................15 MAGISTRATE MUST BE “NEUTRAL AND DETACHED”...............................................................................16 AFFIDAVIT TOTALLY LACKING IN PROBABLE CAUSE .............................................................................16 FACIALLY DEFICIENT WARRANT ..................................................................................................................17 RELIABILITY OF THE INFORMANT AND INFORMATION ...........................................................................17 MISTAKE OF LAW BY POLICE IS AN EXCUSE ...............................................................................................17 Heien v. North Carolina, 135 S.Ct. 530 (2014): ...................................................................................................17 “ATTENUATION” OF THE INITIAL ILLEGALITY ....................................................................................................... 18 Utah v. Strieff, 136 S.Ct. 27 (2015): ....................................................................................................................18 UNAUTHORIZED DRIVER’S STANDING TO COMPLAIN .......................................................................................... 20 OF THE SEARCH OF A RENTAL VEHICLE ................................................................................................................ 20 Byrd v. United States, 138 S.Ct. 1518 (2018) ......................................................................................................20 District of Columbia v. Wesby, 138 S.Ct. 577 (2018): .........................................................................................21 WARRANTLESS BLOOD DRAW ............................................................................................................................. 21 FROM UNCONSCIOUS SUSPECT ........................................................................................................................... 21 Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019): ....................................................................21 DIGITAL IS DIFFERENT .......................................................................................................................................... 22 Riley v. California, 134 S. Ct. 2473 (2014): .........................................................................................................22 CELL TOWER LOCATION INFORMATION (CSLI) ..................................................................................................... 23 Carpenter v. United States, 138 S.Ct. 2206 (2018): ............................................................................................23 FROM PORCHES TO DRIVEWAYS .......................................................................................................................... 27 Florida v. Jardines, 569 U.S. 1 (2013): ................................................................................................................27 Collins v. Virginia, No. 138 S.Ct. 1663 (2018): ....................................................................................................30 TRACKING WITH A GLOBAL POSITIONING SYSTEM (GPS) ..................................................................................... 31 U.S. v. Jones, 565 U.S. 400 (2012): .....................................................................................................................31 GEOFENCE WARRANTS ........................................................................................................................................ 33 U.S. v. Chatrie, 107 F.4th 319 (4th Cir. 2024) .....................................................................................................33
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Wells v. State, 714 S.W.3d 614, (Tex. Crim. App. 2025) .....................................................................................35 POLE CAMERAS/FACIAL RECOGNIZATION ............................................................................................................ 36 United States. v. Moore-Bush, 381 F. Supp. 3d 139 (D. Mass. June 3, 2019): ....................................................36 United States v. Hay, 95 F.4th 1304 (10th Cir. 2024): .........................................................................................37 AUTOMATIC LICENSE PLATE READER (ALPR) ........................................................................................................ 38 United States v. Zayas, 22-CR-178 (NSR) (S.D.N.Y. Nov. 7, 2022) ......................................................................39 OVER BREADTH AND GENERAL SEARCHES ........................................................................................................... 40 NEXUS BETWEEN PROBABLE CAUSE AND ..................................................................................................41 THE PLACE TO BE SEARCHED .........................................................................................................................41 PROSECUTION SHOULD BEAR THE BURDEN ...............................................................................................44 OF DEMONSTRATING “GOOD FAITH” ............................................................................................................44 “GOOD FAITH” RELIANCE ON SUMMONS .....................................................................................................45 “GOOD FAITH” EXCEPTION APPLIES TO WARRANTLESS ADMINISTRATIVE SEARCHES AUTHORIZED BY STATUTE LATER FOUND UNCONSTITUTIONAL .................................................................................................................... 45 Illinois v. Krull, 480 U.S. 340 (1987): ...................................................................................................................45 OTHER WARRANTLESS SEARCHES ........................................................................................................................ 46 BROWN V. POLK COUNTY, WISCONSIN, 141 S. CT. 1304 (2021)............................................................................ 46 City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015): ..........................................................................................47 Rodriguez v. United States, 135 S. Ct. 1609 (2015): ...........................................................................................48 Akinmboni v. United States, 126 A.3d 694 (D.C. Ct. App. 2015):........................................................................48 DIGITAL SEARCHES ............................................................................................................................................... 50 USE OF SOPHISTICATED TECHNOLOGY ................................................................................................................. 51 “GOOD FAITH” MUST BE OBJECTIVE .................................................................................................................... 52 “UNREASONABLE DELAY” BEFORE PRESENTMENT AS GROUNDS FOR SUPPRESSION OF CONFESSION ................ 54 Corley v. United States, 556 U.S. 303 (2009) ......................................................................................................54 STATES ARE FREE TO PROVIDE GREATER ...................................................................................................55 PROTECTIONS TO THEIR CITIZENS ................................................................................................................55 Lego v. Twomey, 404 U.S. 477 (1972). ...............................................................................................................55 SEVERAL STATES HAVE REJECTED ...............................................................................................................58 ANY LEON “GOOD FAITH” EXCEPTION..........................................................................................................58 SUBJECTIVE INTENT OF THE OFFICERS.................................................................................................................. 60 INVADING THE THRESHOLD OF ONE’S HOME ...................................................................................................... 62 CONSENSUAL SEARCHES .................................................................................................................................63 REMOVING THE NON-CONSENTING ..............................................................................................................63 SPOUSE FROM PREMISIS ...................................................................................................................................63 Fernandez v. California, 571 U.S. 292 (2014). ....................................................................................................63 EXIGENT CIRCUMSTANCES ................................................................................................................................... 64 Kentucky v. King, 563 U.S. 452 (2011) ................................................................................................................64 WARRANTLESS BLOOD DRAW........................................................................................................................66 Missouri v. McNeely, 569 U.S. 141 (2013). .........................................................................................................66 DNA SAMPLE TAKEN AT BOOKING ................................................................................................................68 Maryland v. King, 569 U.S. 435 (2012). ..............................................................................................................68
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DEADLY FORCE AND THE FOURTH AMENDMENT .....................................................................................70 Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam). .........................................................................................70 EROSION OF THE EXCLUSIONARY REMEDY .......................................................................................................... 72 BURDEN SHIFTING .............................................................................................................................................73 THE VANISHING ..................................................................................................................................................74 “FRUIT OF THE POISONOUS TREE” DOCTRINE ............................................................................................74 CONCLUSION ....................................................................................................................................................... 75
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INTRODUCTION The new super majority of the Supreme Court appears on course to continue the slow-butsteady deconstruction of many time-honored Constitutional protections, once considered sacrosanct by fellow lawyers, courts and the citizenry in general. Nowhere has this trend been more evident than with respect to a citizen’s right to privacy. Whether addressing the continuing debate over the appropriate test for what constitutes a 4th Amendment violation in the first instance, or what remedy to apply if we conclude that such a violation has occurred, the future course of protecting our citizens’ Constitutional right to privacy appears to be in jeopardy.
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Constitutional protections such as Due Process, and Fundamental Fairness appear to be fairing not much better. This paper is one lawyer’s modest attempt to address these and other timely issues confronting the Court and our Country in these times of turmoil and crisis. Hopefully, by examining what may be going wrong, together we can find a way to right our ship of state and set her back on course, preserving the rights and liberties our founding fathers intended the Constitution to protect.
WHAT CONSTUTES A SEARCH FOR 4TH AMENDMENT PURPOSES There remains a continuing debate as to precisely what the 4th Amendment right of privacy protects. In one camp are those clinging to the belief that the test for determining whether a search has occurred depends upon whether the police have physically trespassed upon one of the areas expressly enumerated in the Constitution (i.e. persons, houses, papers and effects). See Justice Scalia’s majority opinion in United States v. Jones, 565 U.S. 400 (2012), and Justice Gorsuch’s dissent in Carpenter v. United States, 138 S.Ct. 2206 (2018), where he notes that “[t]he Amendment's protections do not depend on the breach of some abstract ‘expectation of privacy’ whose contours are left to the judicial imagination”: “Under its plain terms, the Amendment grants you the right to invoke its guarantees whenever one of your protected things (your person, your house, your papers, or your effects) is unreasonably searched or seized. Period.”
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On the other hand, there are those who have a more expansive view, holding to Justice Harlan’s analysis, that the right of privacy protects “people not places,” and that the correct test for determining whether a search has occurred is dependent upon whether the citizen’s “reasonable expectation of privacy” has been invaded.
See Katz v. U.S., 389 347 (1967) (Harlan, J.,
concurring); See also Justice Kagan’s concurrence in Jardines, 569 U.S. 1 (2013). To further complicate the matter, Justice Scalia suggests in Jardines that the two tests are not mutually exclusive, rather the Katz’ “expectation of privacy” test for determining what constitutes a search “is not a substitute for, but…an alternate to the physical intrusion approach.” And then there is the view expressed by Justice Gorsuch as a sitting judge on the 10th Circuit Court of Appeals, before he was appointed to the Supreme Court, that this whole dispute is really a distinction without a difference. “So, it seems that, whether we analyze the ‘search’ question through the lens of the government’s preferred authority — Katz — or through the lens of the traditional trespass test suggested by Jones, they yield the same (and pretty intuitive) result [opening someone’s] email constitute[s] a search.” If a search has occurred, the next step is whether or not that search is one requiring the government obtain a warrant. For this determination, an additional test is performed. The Court must analyze whether, in addition to being a search that invades one’s privacy, the search was required for the promotion of legitimate governmental interests. See Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) citing Riley v. California, 573 U.S. 373, 134 S. Ct. 2473 (2014). Regardless which definition or test the Court ultimately settles upon, the question of what remedy to apply if it is determined that a citizen’s right to privacy has been violated is one that has come under recent scrutiny as well.
CONTINUED VIABILITY OF THE “EXCLUSIONARY RULE” Once thought to be a given, the concept that evidence acquired as the fruit of illegal police conduct would be suppressed at trial has recently been called into serious question. In a trilogy of cases, Hudson v. Michigan, 547 U.S. 586 (2006), Herring v. U.S., 555 U.S. 135 (2009), and Davis v. U.S., 564 U.S. 229 (2011), the United States Supreme Court has raised serious questions
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regarding the continued viability of the exclusionary remedy for violations of a citizen’s privacy rights, except in limited and very difficult to prove circumstances.1 Since the landmark case of Mapp v. Ohio, 367 U.S. 643 (1961), the exclusionary rule has functioned as the only practical mechanism to discourage and remedy violations of individuals’ rights by law enforcement officers.2
Where evidence was discovered as the result of an
unreasonable (i.e. an unconstitutional) search or seizure, same necessarily mandated the suppression of that tainted evidence, except in certain well-defined cases.3 (2016):
As Justice Sotomayor recently noted, dissenting in Utah v. Strieff, 136 S. Ct. 2056 “When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.”
Recently, this seemingly well-settled and time-honored concept has been called into question. Hudson v. Michigan, 547 U.S. 586 (2006): With little fanfare and even less warning, Justice Scalia made the startling revelation that: “We have never held that evidence is ‘fruit of the poisonous tree’ simply because `it would not have come to light but for the illegal actions of the police.'" See Hudson, 547 U.S., at 592 (emphasis supplied) (Scalia, writing for a 5 to 4 majority).4 1 Based upon the Court’s reasoning in Hudson, Herring, Davis, and Heien the majority now seem to require a showing that illegal police conduct resulting in the discovery of incriminating evidence be demonstrably “deliberate,” “culpable,” and “flagrant” in order to warrant the exclusionary remedy. 2 The Court in Mapp held that the exclusionary remedy, "founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice." Commonly referred to as the “imperative of judicial integrity.” See Mapp, 367 U.S., at 660 (Justice Clark, speaking for a 6 to 3 majority, held that “the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments” and “is not only the logical dictate of prior cases, but it also makes very good sense.” Justice Clark notes, as well that “by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold.” At 667). 3 As Justice Powell noted in U.S. v. Watson, 423 U.S. 411 (1976) "There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few 'jealously and carefully drawn' exceptional circumstances." at p. 427, Powell, J. concurring. Examples of recognized exceptions to the warrant requirement, include situations involving “exigent circumstances,” making obtaining a warrant difficult, if not impossible, See South Dakota v. Opperman, 428 U.S. 364 (1976), and vehicle searches, See Carroll v. U.S., 267 U.S. 132 (1925) (where the Court created a bright-line rule based upon the exigent circumstances rational). 4 Scalia’s pronouncement is, at best, arguable. See Alito’s subsequent opinion in Davis, where he explicitly calls into question Scalia’s suggestion that the Court had “never held that evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police,” noting that the Court has “abandoned the old, ‘reflexive’ application of the [exclusionary] doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.” All of which also calls into question Wong Sun’s time honored “fruit of the poisonous tree” doctrine (that
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Previously, the Supreme Court had held in a unanimous opinion by Justice Thomas, that requiring officers with a search warrant to “knock and announce” their presence before entering a residence is a Constitutionally mandated requirement, See Wilson v. Arkansas, 514 U.S. 927 (1995).5 Nevertheless, eleven years later, in an opinion authored by Justice Scalia, for a 5 to 4 majority, the Court determined that violations of the Fourth Amendment’s “knock-and-announce” requirement do not implicate the exclusionary rule. See Hudson v. Michigan, 547 U.S. 586 (2006). This idea, that citizens have Constitutional protections without any real mechanism to remedy their violations, is perplexing.6 The opinion seems to have three lines of reasoning justifying that conclusion. The first is that the social costs of the exclusionary rule (i.e. suppression of material evidence in a criminal prosecution) substantially outweigh the potential deterrent effect of exclusion in knock-andannounce violations. Second, there now exist other means of deterring police actions that violate individual rights, including civil rights suits and civilian review boards. Finally, there is a substantially attenuated causal connection between the failure to announce entry and the recovery of evidence once inside. The Hudson Court reasoned that whether the exclusionary sanction is appropriate in a given case is an issue separate and apart from the question of whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police misconduct in the first place. Scalia writes: “Suppression of evidence…has always been our last resort, not our first impulse. The exclusionary rule generates ‘substantial social costs’…which sometimes include setting the guilty free and the dangerous at large…. We have…repeatedly emphasized that the rule’s all evidence and information obtained as a result of the police’s illegal conduct are suppressible as fruit of the poisonous tree). 5 In Wilson v. Arkansas, 514 U.S. 927 (1995), Justice Thomas, writing for a unanimous Supreme Court, had held that the “[t]he common law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.” Although it appears that waiting just 15 seconds after knocking, before breaking in, is sufficient to satisfy the knock-and-announce requirement in either the statute or the Constitution. See United States v. Banks, 540 U.S. 31 (2003), Justice Souter, writing for a unanimous Supreme Court. 6 Scalia writes in Hudson that a § 1983 civil rights lawsuit provides sufficient remedy for a 4 th Amendment violation, noting that “[w]e cannot assume that exclusion in this context is a necessary deterrence simply because we found that it was a necessary deterrence in different contexts and long ago. That would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago. Dollree Mapp could not turn to 42 U. S. C. §1983 for meaningful relief.” However, it would seem axiomatic that neither judges or juries are likely to award substantial damages to one whose Constitutional violations have revealed evidence of their guilt in serious criminal activity.
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‘costly toll’ upon the truth-seeking and law enforcement objectives presents a high obstacle for those urging its application.” The opinion in Hudson is perhaps most disturbing for what it portends than what it holds. For many readers, the Court’s opinion foretells a future where constitutional rights are stripped of what may be the only truly effective means of judicial enforcement. If the exclusionary rule does not function to enforce a right, as a practical matter, does that right really exist? Will police and executive policy makers truly be deterred from constitutionally offensive conduct by the threat of a civil rights lawsuit? What other constitutional rights will the Court deem unworthy of a remedy such as the exclusionary rule? Relying upon the Supreme Court’s rationale in Hudson, lower courts have held the exclusionary rule inapplicable in a variety of circumstances. For example, the Ninth Circuit has now held that under Hudson, an officer’s failure to leave a copy of the executed warrant on the premises does not warrant suppression, even if the requirements to serve a copy of the warrant is of a constitutional dimension. See U.S. v. Hector, 474 F.3d 1150 (9th Cir. 2007). The Seventh Circuit, following a Hudson analysis, held that the failure to create a written search warrant, required by the federal telephonic search warrant statute, does not trigger the 4th Amendment’s exclusionary rule. The Fourth Circuit takes Hudson even further, holding that fingerprints taken following an illegal arrest are subject to suppression only if taken for an “investigative,” rather than an “administrative” purpose. See U.S. v. Oscar-Torres, 507 F.3d 224 (4th Cir. 2007). Herring v. U.S., 555 U.S. 135 (2009): Bennie Herring had driven to the Coffee County, Alabama Sheriff's Department to check on his impounded pickup truck . Mark Anderson, an investigator with the Coffee County Sheriff's Department, who had a long and contentious history with Herring, asked the department's warrant clerk to check for any outstanding warrants; the warrant clerk in the neighboring county’s Sheriff's Department was contacted, and advised there was an outstanding warrant. Although the Dale County clerk called back within 15 minutes to warn the Coffee County Sheriff's Department a clerical mistake was made (the warrant had been recalled five months prior), it was too late; Anderson had already arrested Herring and searched his vehicle, discovering firearms and methamphetamine.
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Chief Justice Roberts, writing for another 5 to 4 majority, held Herring’s arrest and the subsequent search based on the invalid warrant did not necessitate suppression of the evidence discovered as a result of this Constitutional error,7 because the mistake was not based on a “systematic error or reckless disregard of constitutional requirements.” Citing Hudson, the Court reasoned that: “Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence, attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.” Davis v. U.S., 564 U.S. 229 (2011): In Davis, Officer Curtis Miller arrested Petitioner Willie Davis for using a false name during a routine traffic stop. Incident to arrest, Officer Miller searched the vehicle and discovered a gun Davis’s jacket. Davis was charged with being a convicted felon in possession of a firearm. Following a jury trial, Davis was convicted and sentenced to 220 months in prison. The U.S. Court of Appeals for the Eleventh Circuit found that while the search was illegal, the evidence found in the vehicle was still admissible. Davis obtained a writ of certiorari on the issue of whether the good-faith exception to the exclusionary rule applies to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional. 8 The Court devotes a considerable amount of time to its pre-Arizona v. Gant searchincident-to-arrest cases because Davis’s arrest pre-dated Gant. At first glance, such an approach would seem most peculiar, until one reads the language which follows. The Court follows a summary of New York v. Belton and similar automobile search-incident-to-arrest cases with a frightening description of the exclusionary rule; not as a personal, individual right, but rather as a tool only to find application when the benefit of deterring future violations of the Fourth Amendment outweigh the heavy social costs of letting the guilty go free and the dangerous to
Justice Roberts questioned whether there was a Constitutional violation, but for purposes of the decision, assumed a violation, without deciding same. 8 See Arizona v. Gant, 556 U.S. 332 (2009), where Justice Stevens, writing for what amounted to a 5 to 4 majority, held that officers are permitted to conduct a New York v. Belton-type warrantless search of the passenger compartment of a legitimately stopped vehicle only if it was reasonable to believe that the arrestee might access the vehicle at the time of the search, that the vehicle contained evidence of the offense of arrest or that the officers had, at the time, cause to believe evidence of some other crime would be found within the car’s passenger compartment. 7
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remain at large. The Court adopts this stance not withstanding its well-established precedent that the exclusionary remedy is “synonymous with violations of the Fourth Amendment.” Arizona v. Evans, 514 U.S. 1, 13 (1995) [citing Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560 (1971)]. It is important to note that an officer’s understanding of the law and court decisions undoubtedly requires officers to make subjective judgments in carrying out their duties. However, the Supreme Court has previously made clear that courts should not consider the particular officer’s “subjective intent” in determining probable cause for an arrest and/or search. See Whren v. U.S., 517 U.S. 806 (1996), and in Davis, Justice Alito, speaking for a 7 to 2 majority, holds the officers’ objectively reasonable reliance on binding appellate precedent rendered their conduct inapplicable to the exclusionary rule, noting that for exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Of significance is Justice Alito’s chiding response to Scalia’s suggestion that the Court has “never held that evidence is ‘fruit of the poisonous tree’ simply because `it would not have come to light but for the illegal actions of the police.'" See Hudson, 547 U.S., at 592. Alito
tersely retorts that: “We came to acknowledge the exclusionary rule for what it undoubtedly is—a ‘judicially created remedy’ of the Court’s own making…We abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits…We also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct at issue.”
PROTECTING THE CITIZENRY FROM ITS PROTECTORS Despite this recent trend, the exclusionary rule remains today as the primary vehicle for enforcing compliance with the Fourth Amendment. For over a half century the Court had recognized that the prohibition against admitting illegally obtained evidence9 not only served to deter illegal police conduct, but also maintained the “imperative of judicial integrity” by extricating courts from participation in illegal and unconstitutional police conduct.10
See Mapp v. Ohio, 367 U.S. 643 (1961), written by Justice Tom Clark, a Texan. As succinctly expressed in Terry v. Ohio, 392 U.S. 1 (1968), “Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the Constitutional rights of citizens by permitting use of the fruits of such invasions.” 9
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The Supreme Court has repeatedly reiterated that the judiciary stands as the citizens’ only meaningful protection against our protectors. “[Fourth Amendment rights]... are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.... But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside the court.” Illinois v. Gates, 462 U.S. 213, 274-75 (1983) [Brennan, J., dissenting]. In 1984 the Court was confronted with the opportunity to closely re-examine the underpinnings of the exclusionary remedy for illegal police conduct. After all, nowhere does the exclusionary rule, or any other remedy, for that matter, appear in the text of the 4th Amendment prohibition against illegal searches. U.S. v. Leon, 468 U.S. 897 (1984): Over two decades after their landmark decision in Mapp, a majority of the Court, seemingly ignoring Mapp, Gates and their progeny, rejected the time-honored “imperative of judicial integrity” or any justification other than the “deterrence rationale” for excluding illegally obtained evidence from criminal trials, noting that “[t]he rule thus operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal right of the person aggrieved’” See U.S. v. Leon, 468 U.S. 897, 905 (1984). Over the quarter century since, the Court has found application of the exclusionary remedy inappropriate based upon a balancing test, weighing the competing interests of the often guilty accused’s Constitutional rights against society’s competing interest in protecting the safety of the public in general.11 See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) [refusing to apply the exclusionary rule to deportation proceedings because the deterrent effect was outweighed by the social costs
11 A seemingly no-win balancing test, to which the Court would return in a series of cases decades later. See Hudson, Herring and Davis discussed hereafter. Suffice it to say that the outcome would appear a foregone conclusion, when balancing the rights of an apparently guilty defendant (caught with incriminating contraband), against society’s interest in protecting the public from the prospect of “allowing the guilty to go free” or “the dangerous to remain at large.”
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involved in the context of “unique immigration proceedings” that are “preventative as well as punitive”]; U.S. v. Janis, 428 U.S. 433 (1976) [noting evidence illegally seized by state officers not excluded in federal civil tax proceeding as additional deterrence deemed outweighed by social costs]; U.S. v. Calandra, 414 U.S. 338 (1974) [stating exclusionary rule not applicable to grand jury proceedings]; Stone v. Powell, 428 U.S. 465 (1976) [suppression issues are not cognizable in writs of habeas corpus, because the proceeding is so removed from the prior police illegality as to have lost its deterrent effect]. In U.S. v. Leon, a majority of the Supreme Court established the most significant exception to the “exclusionary rule,” allowing use of admittedly illegally obtained evidence where the officer acted in “objective good faith” reliance upon a warrant signed by a neutral and detached magistrate. U.S. v. Leon, 468 U.S. 897 (1984). See also Massachusetts v. Sheppard, 468 U.S. 981 (1984) [holding officer’s reliance on warrant reasonable, since it lacked particularity due to magistrate’s clerical error and magistrate said he would edit the form to include objects sought by police who relied on magistrate’s assertions] and U.S. v. Gomez, 652 F. Supp. 461 (E.D.N.Y. 1987), holding that a “reasonably well-trained officer” could not have determined that a magistrate-authorized search was illegal, under good-faith exception. As the Court in Leon acknowledges, the so-called “good faith” exception does not apply where the magistrate has been misled by the officer who obtained the warrant. See Franks v. Delaware, 438 U.S. 154 (1978) [good faith exception does not apply when determining whether officer obtained a warrant by making material misrepresentations to the magistrate in reckless disregard for the truth] or where the warrant is based upon “affidavits so lacking in evidence of probable cause as to render official belief in its existence entirely unreasonable do not fall within this exception.” See United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994). In addition, courts do not consider the Leon “good faith” exception when deciding whether to suppress evidence preindictment, pursuant to a motion for return of seized property. Richey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975); Gurleski v. U.S., 405 F.2d 253 (5th Cir. 1968). The rationale for nonapplication of the “good faith” exception here, is that the court is exercising its authority to correct the misconduct of the prosecutor and his agents. Other circumstances under which the “good faith” exception does not apply include situations where the warrant is so facially deficient in particularly describing the place to be searched or the
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things to be seized that the executing officers cannot reasonably presume it to be valid. See U.S. v. Russell, 960 F.2d 421, 423 (5th Cir.), cert. denied, 506 U.S. 953 (1992). While Leon specifically and expressly dealt with an officer’s “good faith” reliance upon a warrant lacking in probable cause (expressing a “preference for warrant practice” among law enforcement), its rationale has been extended to warrantless arrests and seizures, as well. See Davis and Herring, discussed supra. See also Illinois v. Krull, 107 S.Ct. 1160 (1987). See contra U.S. v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc).
SUBJECTIVE VS OBJECTIVE INTENT OF THE OFFICER The Court notes that “[t]he officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable...and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Leon, 468 U.S. at 922-23.12 How one determines an officer’s good faith without evaluating his or her subjective intent, is a question left for another day.
COLLECTIVE BAD FAITH (WHAT IS GOOD FOR THE GOOSE) Just as courts may cumulate officers’ knowledge to determine whether probable cause existed to justify a search, officers obtaining or executing a warrant may not insulate their knowledge or good intentions from fellow officers acting in bad faith. Instead, according to the Court in Leon: “It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable cause determination. Nothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a “bare bones’ affidavit and then rely on colleagues who are ignorant 12
In Whren v. United States, 517 U.S. 806 (1996) a unanimous Supreme Court held that courts do not look to the officer’s subjective intent in determining probable cause for a search or seizure, noting that “subjective intentions play no role in ordinary probable cause Forth Amendment analysis.”
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of the circumstances under which the warrant was obtained to conduct the search....” Leon, 468 U.S. at 923 n.24. As the Court recognized in Franks v. Delaware, 438 U.S. 154 (1978) the “...police [can]not insulate one [sic] officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.” See also U.S. v. Cortina, 630 F.2d 1207, 1212, 1217 (7th Cir. 1980) [the good faith exception would become a “Maginot Line”, laughingly circumvented by police if courts were to insulate falsehoods in an affidavit from invalidating a warrant simply because the executing officer was unaware of the lies]; U.S. v. Calisto, 838 F.2d 711, 714 (3d Cir. 1988) (en banc) [quoting Franks “police [can] not insulate one officer’s deliberate misstatement...”]; U.S. v. Coplon, 185 F.2d 629, 640 (2d Cir. 1950) [matters obtained through a violation of law by one official may not be introduced in evidence by the prosecution]. Furthermore, evidence which is based on information which is the product of an illegal search cannot serve as probable cause for the issuance of a search warrant entitling the executing officers to good faith reliance. U.S. v. Vasey, 834 F.2d 782 (9th Cir. 1981). Moreover, this “objective reasonableness” standard must be applied to all officers involved, not merely those who executed the warrant, but also to those who obtained or provided information to secure it. Leon, 468 U.S. at 923 n.1; see also U.S. v. DeLeon-Reyna, 898 F.2d 486 (5th Cir. 1990).
FRANKS-TYPE MISREPRESENTATIONS The Leon Court “noted” that the deference accorded to a magistrate's finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Leon, 468 U.S. at 317. “Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923.
MATERIAL OMMISSIONS AS MISSTATEMENTS
Furthermore, material omissions from the officer’s affidavit have been considered equivalent to misstatements. United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980). “[R]ecklessness
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can in some circumstances be inferred directly from the omission itself.” United States v. Tomblin, 46 F. 3d 1369 (5th Cir. 1995).
MAGISTRATE MUST BE “NEUTRAL AND DETACHED” The Leon Court also recognized the “good faith exception” to the exclusionary rule should not apply where the issuing magistrate wholly abandoned his role as a “neutral and detached” judicial officer. Leon, 468 U.S. at 923 citing Lo-Ji Sales Inc. v. New York, 442 U.S. 319 (1979) (magistrate utilizing prepared form warrants joined and led search); but see U.S. v. Orozco-Prader, 732 F.2d 1076, 1088 (2d Cir.), cert. denied, 469 U.S. 845 (1984) (judge was neutral and detached despite his statement at time of issuing the search warrant that government agents and U.S. Attorney “know proof and know significance ... and therefore the court has to accept their representations without question”]; U.S. v. Rome, 809 F.2d 665 (10th Cir. 1987) (the Magistrate’s failure to follow letter of Rule in issuing telephonic warrant by neglecting the requirements of (1) a verbatim record (2) a “duplicate original warrant” (3) particularity and (4) his immediate signature of the “original warrant” did not abandon detached and neutral rol); U.S. v. Breckenridge, 782 F.2d 1317 (5th Cir. 1985) (stating a neutral and detached magistrate who failed to read warrant affidavit had not abandoned his judicial role and did not spoil officer’s good faith reliance on warrant); and U.S. v. Harper, 802 F.2d 115 (5th Cir. 1986).
AFFIDAVIT TOTALLY LACKING IN PROBABLE CAUSE The Leon Court further indicated that the “good faith exception” to the exclusionary rule would not apply where the warrant affidavit was so totally lacking in probable cause as to make any reliance thereupon unreasonable. See Illinois v. Gates, 462 U.S. 213 (1983). “Nor would an officer’s manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’.” Leon, 468 U.S. at 923.
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See People v. Mitchell, 678 P.2d 990 (Colo. 1984) (Colorado “good faith” statute inapplicable where individual arrested and searched on strength of arrest warrant “totally devoid of factual support”). “...The warrant was void not because the facts supporting it fell somewhat below the Constitutional threshold of probable cause, but so far as the record shows, because there were no facts at all to support its issuance.” Mitchell, 678 P.2d at 2004. See also U.S. v. Cardall, 773 F.2d 1128 (10th Cir. 1985) (a warrant should not be considered to be so deficient as to defeat an officer’s “good faith” reliance upon it unless the underlying affidavit is totally devoid of factual support); Cassias v. State, 719 S.W.2d 585 (Tex. Crim. App. 1986) (Court holds that, under the “totality of the circumstances”, the “facts and circumstances presented... are too disjointed and imprecise to warrant…belief that [drugs] would be found at the described residence”).
FACIALLY DEFICIENT WARRANT The Court in Leon also recognized that reliance may be unreasonable where the warrant is “facially deficient,” such as failing to particularize the place to be searched or the things to be seized. Leon, 468 U.S. at 923.
RELIABILITY OF THE INFORMANT AND INFORMATION A mere statement by law enforcement that affiants have received reliable information from a credible source is insufficient to provide a substantial basis for determining probable cause. Illinois v. Gates, 462 U.S. 213, 239 (1983).
MISTAKE OF LAW BY POLICE IS AN EXCUSE Heien v. North Carolina, 135 S.Ct. 530 (2014): Heien involved a traffic stop stemming from the initiating police officer’s misinterpretation of a North Carolina statute involving break light requirements. The officer believed that the statute required all lights on the rear of the vehicle to be in good working order. However, North Carolina did not require all rear brake lights to function, but rather only one break light.
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The majority opinion, written by Chief Justice Roberts, held that the police officer’s objectively reasonable mistaken interpretation of an ambiguous statute would excuse any 4th Amendment violation. That ruling is interesting, because the Court finds that a reasonable mistake of law by law enforcement personnel does not violate the Fourth Amendment, while it is wellsettled that a citizen’s “ignorance of the law is no excuse.” In her dissent, Justice Sotomayor touches on the potential consequences of the majority’s opinion, noting that the exclusionary rule “is a remedial concern, and the protections offered by the Fourth Amendment are not meant to yield to accommodate remedial concerns. Our jurisprudence draws a sharp ‘analytica[l] distinct[ion]’ between the existence of a Fourth Amendment violation and the remedy for that violation.” Hein v. North Carolina, 135 S.Ct. 530, 545 (2014) (Sotomayor, J., dissenting) (citing Davis, 564 U.S. at 243-44). A concept that has come back to haunt both the Justice and those particularly concerned with the preservation of Constitutional rights and remedies. Judge Gorsuch’s prescient dissent while he was serving as a judge on the 10th Circuit Court of Appeals in United States v. Nicholson, 721 F.3d 1236 (10th Cir. 2013), abrogation recognized 630 Fed. Appx. 873, anticipated Chief Justice Robert’s 8 to 1 opinion in Heien v. North Carolina. Dissenting from a majority holding that an officer’s seizure, based upon a mistake of law, is per se a violation of the 4th Amendment, Judge Gorsuch opines: “My colleagues suggest that an investigative detention resting on an officer’s mistake of law always violates the Fourth Amendment—even when the law at issue is deeply ambiguous and the officer’s interpretation entirely reasonable. Having found a Fourth Amendment violation, they proceed to order the suppression of all evidence found during the detention and direct the dismissal of all charges. Respectfully, I have my doubts.” Nicholson, 721 F.3d at 1247 (emphasis supplied) (Gorsuch, J., dissenting).
“ATTENUATION” OF THE INITIAL ILLEGALITY Utah v. Strieff, 136 S.Ct. 27 (2015): There had been an anonymous message left on a drug tip line that narcotics activity was taking place at a residence. Id. at 536. Throughout the week, an officer monitored the home for about 3 hours total and observed what he felt was suspicious “short term traffic” at the home. Id. Based upon this information the officer concluded that the traffic indicated possible drug sales activity. During his observations, the officer did not see Strieff enter the home but saw him leave 18
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the residence and walk toward a convenience store. The officer ordered Strieff to stop so that he could ask what was going on in the home. The officer asked Strieff for his identification, called his license into the police dispatcher, and discovered Strieff had an outstanding “small traffic warrant.” Id. The officer arrested Strieff based on this information and found a baggie of methamphetamine and drug paraphernalia during the search incident to arrest.
The State
acknowledged that the Terry-type stop was without probable cause or reasonable suspicion but argued the discovery of the valid outstanding traffic warrant “attenuated” the initial police illegality. On February 22, 2016, the first oral arguments were heard on the case since Justice Scalia’s passing. The government argued that the officer’s stop was a reasonable and good faith mistake and that suppression would harm society far more than deterring similar mistakes. Justice Thomas, writing for a 5 to 3 majority, held that despite the uncontested fact the officer acted purposely without reasonable suspicion in stopping Strieff, the resulting discovery of the outstanding traffic warrant, “attenuated” that illegality warranting admission of the methamphetamine, glass pipe and triple beam scale discovered by the search of his person, incident to the arrest on the outstanding warrant. Justice Sotomayor expressing her exacerbation in dissent, noted that 80% of the population in Ferguson, Missouri has outstanding traffic warrants and that in the past the Court had not hesitated to suppress evidence which constituted the fruit of police illegality. “When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” (Sotomayor, J., dissenting). Sotomayor caustically chides the Court’s insensitivity to the plight of those systematically subjected to such police intimidation, noting: "We must not pretend that the countless people who are routinely targeted by police are 'isolated.' They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but."
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UNAUTHORIZED DRIVER’S STANDING TO COMPLAIN OF THE SEARCH OF A RENTAL VEHICLE Byrd v. United States, 138 S.Ct. 1518 (2018) Tarrance Byrd’s fiance, Latasha Reed rented a Ford Fusion from Budget rent-a-car in her name as the only authorized driver. She walked out of the rental office and handed the rental car keys to Byrd, who as luck would have it, was a convicted felon (for weapons and drugs). Byrd had an outstanding warrant for a probation violation, and if that was not enough, Byrd had no valid driver’s license. Byrd took the keys and drove directly home, picked up a laundry bag containing 49 bricks of heroin and put the bag in the trunk of the rental vehicle. A State Trooper stopped Byrd, because he was “suspicious of Byrd for driving with his ‘hands at the 10 and 2 position’ on the steering wheel.” A search of the trunk revealed the drugs. Justice Kennedy, writing for a unanimous Court held: “[T]he mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy in that vehicle.” However, the Court remanded the case for a determination as to whether “one who intentionally uses a third party to procure a rental car by fraudulent scheme for the purpose of committing a crime is no better situated than a car thief.” As might be expected, on remand the 3rd Circuit held the search of the rental vehicle’s trunk would be justified if Ms. Reed’s fraudulent use of a straw renter deprived Byrd of standing (legitimate expectation of privacy), or if probable cause existed to conduct the search, even if Byrd had standing, or if Byrd consented to the search of the car’s trunk, remanding the case back to District Court with instruction that: “As any one of the three grounds discussed would justify the denial of Byrd’s motion to suppress if supported by a more developed record, we will remand this case to the District Court for further proceedings consistent with this opinion.”
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District of Columbia v. Wesby, 138 S.Ct. 577 (2018): In District of Columbia v. Wesby, the D.C. Metropolitan Police Department responded to a noise complaint. After hearing loud music, the police entered the home. Inside, the officers found partygoers drinking and watching “scantily clad women with money tucked into garter belts.” The individual hosting the party aptly named “Peaches” was then confronted by the police, who inquired whether she was the owner of the home. “Peaches” acknowledged that she was in the process of renting the property. The actual owner of the home was contacted and confirmed that they had not given consent or permission for the party. As a result, the police arrested the partygoers for trespassing. Ultimately, all charges were dropped and the partygoers sued for false arrest. Among the questions presented to the court was whether the officers had probable cause to arrest the party goers for unlawful entry under D.C. law, which at the time required that the arrestees knew or should have known that they entered the house against the will of the owner. The party goers claimed they were present on the premises relying in good-faith on the invitation of one who had apparent authority, a claim the D.C. District Court found to be valid. Another issue was whether the District’s law was so clearly established
thearresting officers were
precluded from immunity. Justice Thomas, writing for a unanimous Court, held that “[t]he police officers had probable cause to arrest several of the partygoers” and that the officers were entitled to qualified immunity.”
WARRANTLESS BLOOD DRAW FROM UNCONSCIOUS SUSPECT Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040 (2019): Police found Mitchell walking near a beach after receiving reports he appeared intoxicated before he had gotten into a van and drove away. Police officers noted Mitchell had trouble maintaining his balance and speaking, and he admitted to drinking before driving. Officers arrested him and took him to a hospital to have his blood drawn after determining based on his physical condition it would be unsafe to perform a field sobriety test. At the hospital Mitchell was
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unconscious. Nonetheless, the officer read a form entitled “Informing the Accused” to the unconscious Mitchell and proceeded with the blood draw, pursuant to Wisconsin’s implied consent law. The Supreme Court, in a four-justice plurality opinion by Justice Alito, held that when a driver is unconscious and cannot be given a breath test, the exigent circumstances doctrine generally allows a blood test without consent or a warrant. Mitchell v. Wisconsin, 139 S. Ct. 2525, 204 L. Ed. 2d 1040, (2019). The Court made clear, however, that they were not addressing exigent circumstances involving a broad category of driving under the influence cases, only the instance of an unconscious motorist. The focus of the majority opinion was the necessity of collecting evidence before it dissipated, and the compelling public interest in deterring drunk driving. The Court’s discomfort in approving a blanket exception to the warrant requirement is obvious in its parsing and limiting language, and inclusion of counter examples that would not justifyimplementingexigent circumstance warrantless blood draws. Moreover, the Court remanded the case for further proceedings to determine if the police would have sought a BAC test first before considering a blood draw and to determine if a warrant application would have labored the police officer’s other duties. Justices Sotomayor, Ginsburg, and Kagan vigorously dissented, noting that technology is rapidly diminishing the burden and delay in procuring a search warrant, portending that the Court may revisit this limited exception to the warrant clause in the future. Justice Gorsuch dissented, criticizing the majority’s failure to address the issue of Wisconsin’s implied consent law.
DIGITAL IS DIFFERENT Riley v. California, 134 S. Ct. 2473 (2014): During a valid traffic stop, the police discovered that Riley was driving on a suspended driver’s license. Based upon “department policy,” the vehicle was impounded and an inventory search was conducted. A loaded firearm was found under the hood of Riley’s vehicle and he was arrested. Incident to arrest, Riley was searched and a cell phone (“smart phone”) was found in his pocket. The arresting officers searched the cell phone’s contents without a warrant.
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content searches identified videos and photos showing an affiliation with a gang (“the Bloods”) and other incriminating evidence. All of which was offered at Riley’s trail. Under the Court’s prior precedent, officers may search and seize items found on the person of an arrestee (or within his or her reach), incident to that person’s lawful arrest, including any writings, journals or other items found on their person, See Chimel v. California, 395 U.S. 752 (1969). In a surprising unanimous decision, the Chief Justice wrote for the Court holding that digital content is very different inrespect to what arresting officers may generally searchincident to a valid arrest. . For example, it is well settled arresting officers are entitled to read and review any notes, writings and/or ledgers seized from the arrestee’s person or within his or her immediate reach. However, when it comes to digital devices, such as cell phones or computers, the vast amount of personal information that may be stored on such devices warrants a different result. As the Chief Justice notes: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’...The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.” (emphasis supplied).
CELL TOWER LOCATION INFORMATION (CSLI) Carpenter v. United States, 138 S.Ct. 2206 (2018): Typically cell service providers such as AT&T, Verizon, Sprint, and T-Mobile utilize cell towers to facilitate their communication network.13 Cell phones search for the nearest cell tower
Cell phone service providers such as AT&T, Sprint, Verizon and T-Mobile connect to their customers’ cell phones by means of a series of cell towers which pass the communications between mobile phones. As one travels from one locale to another, the smart phone communicates with the nearest cell tower, whether it is in use, or not. The cell service providers maintain this digital data reflecting this information (known as CSLI) for the primary purpose of maintaining this communication system. A corollary use of this digital data is to approximate the location of the cell phones communicating with the provider’s cell towers is utilized by both commercial entities and law enforcement agencies. 13
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to transmit and receive digital communications.14 Generally, these cell service providers maintain this data for approximately 5-years. Retrieving or mining this digital information provides an approximate location of a cell phone at a given time.15 Law enforcement uses this historical location information to demonstrate where a particular cell phone (and generally the subscriber/owner/user of that cell phone) was located. While investigating a string of 9 armed robberies targeting Radio Shack and T-Mobile retail stores in Michigan and Ohio between 2010 and 2011, the FBI sought and obtained this location data for suspects covering a 127-day period during the time the robberies took place. The Government obtained the digital records pursuant to a disclosure order under the Stored Communications Act of 1986,16 rather than by securing a warrant based upon probable cause. Using that data, the FBI produced maps placing Carpenter’s phone near 4 of the charged robberies at the time they were committed. Previously the Supreme Court held that bank records actually belong to the bank, See U.S. v. Miller, 425 U.S. 435 (1976), and telephone toll records belong to the telephone service provider. See Smith v. Maryland, 425 U.S. 435 (1976). A concept that became known as the “third-party doctrine.” Writing for a 5 to 4 majority, Chief Justice Roberts first interestingly points out that “[t]here are 396 million cell phone service accounts in the United States—for a Nation of 326 million people.” Rejecting the notion that the third-party doctrine the Court applied to telephone toll records captured on the pen register in Smith v. Maryland could be applied to the sophisticated cell phone location information utilized to determine Carpenter’s location during the critical period relating to the armed robberies, the majority notes this new technology "has afforded law enforcement a powerful new tool to carry out its important responsibilities. At the same time, this tool risks Government encroachment of the sort the Framers [of the US Constitution], after consulting the lessons of history, drafted the Fourth Amendment to prevent.” 14 The cell phone will search for the nearest cell tower, whether it one is communicating conversations, texts or any digital data, or not. As one travels from one point to another, one’s cell phone is constantly seeking out the nearest cell tower in order to maintain the strongest signal. 15 This location information is only approximate and will only reveal whether the particular cell phone is within that cell towers range, which is usually some 2 to 5 miles, depending on the concentration of that provider’s towers, the more towers in that area, the more accurate the location data. There are other variables as well, such as during times of heavy traffic, weather conditions and the like, a cell tower will pass on that transmission to the nearest available tower in order to continue one’s service, which would give the false impression as to the approximate location of that particular cell phone. 16 The Stored Communications Act of 1986, 18 U.S.C. §§ 2701-2712, permits law enforcement to obtain CSLI by summons, without probable cause or a warrant. Rather the statute permits a summons process without notice to the subscriber with only a showing that the governmental entity “offers specific and articulable facts showing that there are reasonable grounds to believe that the…records or other information sought, are relevant and material to an ongoing criminal investigation.’
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“[S]eismic shifts in digital technology made possible the tracking of not only Carpenter’s location but also everyone else’s, not for a short period but for years and years. Sprint Corporation and its competitors are not your typical witnesses. Unlike the nosy neighbor who keeps an eye on comings and goings, they are ever alert, and their memory is nearly infallible. There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.” Apparently relying on Alito’s concurring opinion in U.S. v. Jones, 565 U.S. 400 (2012) (regarding monitoring a GPS device), Roberts’ notes that the “[c]ourt has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.” “In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person's whereabouts.”17 As in Riley v. California,18 the Chief Justice goes on to hold that “[b]efore compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.” (emphasis supplied).19 Justices Kennedy, Thomas, Alito and Gorsuch each write separate and, at times caustic, dissents. Justice Thomas first bashes the majority’s reliance on the “reasonable expectation of privacy” test for what constitutes a search, and then, agreeing with Justice Kennedy’s lead dissent, goes on to suggest that under the third-party doctrine he would have held that “[b]y obtaining the cell-site records of Metro P.C.S. and Sprint, the Government did not search Carpenter’s property,” the records belonged to the provider. Justice Alito, in dissent distinguished the Stored Communications Act summons from an actual search, noting that: “The Court ignores the basic distinction between an actual search (dispatching law enforcement officers to enter private premises and root through private papers and effects) and an order merely requiring a party to look through its own records and
Nevertheless, Justice Alito dissents from the Chief Justice’s opinion. Chief Justice Roberts requotes his language from Riley v. California (the cell phone search case), noting that “[a]llowing government access to cell-site records-which ‘hold for many Americans the 'privacies of life-contravenes’” those citizens’ expectations of privacy. 19 Responding to some of the concerns expressed by the dissenters, the Chief Justice took considerable pain to point out that their opinion was not intended to “affect other parts of the third-party doctrine, such as banking records, nor does it prevent collection of cell tower data without a warrant in emergencies or for national security issues”. 17 18
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produce certain documents—must every grand jury subpoena duces tecum be supported by probable cause?” While recognizing the dilatory effect of new technology on a citizen’ reasonable expectation of privacy, Justice Alito expressed the view that on balance the cost to judicial economy and law enforcement efficiency were of paramount concern. “I share the Court’s concern about the effect of new technology on personal privacy, but I fear that today’s decision will do far more harm than good. The Court’s reasoning fractures two fundamental pillars of Fourth Amendment law, and in doing so, it guarantees a blizzard of litigation while threatening many legitimate and valuable investigative practices upon which law enforcement has rightfully come to rely.” Justice Gorsuch’s dissent is more complex. On the one hand Gorsuch finds that Miller and Smith’s “third-party doctrine” was not consistent with the original meaning of the 4th Amendment and there is no basis, either historically or in the text of the 4th Amendment to resort to the “reasonable expectation of privacy” test relied upon by the majority. On the other hand, in what reads more like a concurrence, Gorsuch opines these cell phone location records are the “property” of the cell phone owners, and accordingly the 4th Amendment would require a warrant to obtain same. An apparent nod to Scalia’s property-trespass test espoused by Justice Thomas. On remand, the 6th Circuit affirmed, citing the officers’ good faith reliance on the Stored Communications Act of 1986 and Carpenter was sentenced to 116 years in prison. “The unconstitutionality of the Government’s search was not clear until after the Supreme Court reversed our decision....Because these agents reasonably relied on the Stored Communications Act (SCA), we AFFIRM the judgment of the district court.” In a post-Carpenter case, the Texas Court of Criminal Appeals tackled the issue of whether a person is entitled to a reasonable expectation of privacy in real-time cell site location information (CSLI) stored in a cell phone’s electronic storage. See Sims v. State, 569 S.W.3d 634 (Tex. Crim. App. 2019). Sims was charged with the murder of his grandmother, Annie Smith, after police
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officers witnessed Sims and his girlfriend purchasing items at a Walmart with the victim’s credit card and driving off in her vehicle. Officers were able to “ping” Sims’s cell phone in order to obtain his location information without a warrant by using an “Emergency Situation Disclosure” form provided by Sims’s wireless carrier. The Court of Criminal Appeals, relying on Carpenter reasoned these cases must be determined on a case-by-case basis. The CSLI data collected in Carpenter consisted of seven days of surveillance, and thus was long-term, which is distinguished from the location data collected in Sims which consisted of less than three hours of real-time CSLI. Furthermore, Sims did not have a legitimate expectation of privacy in his physical movements or location.
FROM PORCHES TO DRIVEWAYS THE “CURTILAGE” OF A HOME
Florida v. Jardines, 569 U.S. 1 (2013): Based on an uncorroborated, anonymous tip, officers of the Florida Bureau of Investigation brought their drug sniffing dog by the name of “Franky” to the front porch of Joeliss Jardines’s home in an attempt to determine if there were drugs inside the home. The dog alerted, a warrant was obtained, and the search of Jardines’s home revealed marijuana growing inside. While the issue on which certiorari was granted was whether the dog sniff constituted a search, Justice Scalia, writing for a 5 to 4 majority held the officers and their drug dog were trespassers on Mr. Jardines’s porch when they conducted the dog sniff at his front door. “When the government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has undoubtedly occurred.” While Scalia takes pains to note that a home is one’s castle and is “first among equals” when it comes to 4th Amendment analysis, neither the officers nor the dog ever entered Mr. Jardines’s house. The Court resolves this seeming dilemma, by noting the porch is within the
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home’s “curtilage,” and as such, is entitled to the full protection of the 4th Amendment’s warrant and probable cause requirements. “We…regard the area ‘immediately surrounding and associated with the home’— what our cases call the curtilage—as part of the home itself for Fourth Amendment purposes…That principle has ancient and durable roots.” Courts have long held that the increased protection afforded to houses by the Fourth Amendment “has never been restricted to the interior of the house”, but includes the “area immediately surrounding the dwelling”, known as the “curtilage”, as well. Wattenberg v. U.S., 388 F.2d 853, 857 (9th Cir. 1968). See also Fullbright v. U.S., 392 F.2d 434-35 (10th Cir. 1968); U.S. v. Davis, 423 F.2d 974, 977 (5th Cir. 1970); Fixel v. Wainwright, 492 F.2d 480, 483 (5th Cir. 1974); U.S. v. Whaley, 781 F.2d 417, 419–21 (5th Cir. 1986). As in U.S. v. Jones, 566 U.S. 400 (2012), the majority is divided on the reasoning employed to answer the question posed. Justice Scalia answers the question of “whether using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment,” by noting the Fourth Amendment establishes a simple baseline, that “[w]hen ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a search within the original meaning of the Fourth Amendment’ has ‘undoubtedly’ occurred.” Jardines, 569 U.S. at 5 (quoting U.S. v. Jones, 565 U.S. 400, 406 n. 3 (2012)). Justice Kagan notes in her concurring opinion (joined by Justices Ginsberg and Sotomayor) that while the Court decided the case under the property rubric, in her judgment, the Court, “could just as happily have decided it by looking to Jardines’s privacy interests,” based upon Mr. Jardines’s “reasonable expectation of privacy.” Id. at 13 (Kagan, J., concurring). Justice Kagan notes police officers approached the door of Jardines’ home with a “super-sensitive instrument” which they used to detect things inside that otherwise would have remained undetected. Id. (Kagan, J., concurring). “Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of [his reasonable expectation of] privacy? Yes, that as well.” Id. (Kagan, J., concurring).
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Justice Alito begins his dissent in Jardines, much like his dissent in Jones, by describing the reasoning employed by the Court’s majority as deciding an important Fourth Amendment issue by using “a putative rule of trespass law.” Id. at 16 (Alito, J., dissenting). Justice Alito notes the custom of allowing members of the public to approach a front door extends to friends, relatives, and delivery persons, as well as solicitors and peddlers who would likely be unwelcomed. Id. (Alito, J., dissenting). As to the issue of privacy noted by the concurrence, Justice Alito explains that “[a] reasonable person understands that odors emanating from a house may be detected from locations that are open to the public, and a reasonable person will not count on the strength of those odors remaining within the range that, while detectible by a dog, cannot be smelled by a human. Id. at 1421 (Alito, J., dissenting). Nonetheless, the holding remains, “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” Id. at 1417–18. In an interesting case, prior to his appointment to the Supreme Court, Judge Gorsuch, then sitting on the 10th Circuit Court of Appeals took issue with his colleagues’ interpretation of the Supreme Court’s decision in Florida v. Jardines, 133 S.Ct. 1409 (2013), noting that if a resident impliedly consents to the general public approaching their front door, that resident has the ability to withdraw that implied invitation, as well. See United States v. Carloss, 818 F.3d 988 (10th Cir.), cert. denied, 137 S. Ct. 231 (2016). “[T]he homeowner is traditionally said to invite even ‘solicitors’ and ‘hawkers’ to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave… But what happens when the homeowner manifests an obvious intention to revoke the implied license to enter the curtilage and knock at the front door? When the owner literally substitutes the knocker with a No Trespassing sign, one smack in the middle of the front door? When she adds two more No Trespassing signs at the driveway's mouth to the street, one on either side of the only clear access route from the street to the front door— and along the very route any visitor would use to approach the home? And when,
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for good measure, she posts still another No Trespassing sign between the driveway and the house? So that to enter the home’s front porch, its constitutionally protected curtilage, visitors would have to disregard four separate and plainly visible warnings that their presence is wholly unwelcome? May officers still—under these circumstances—enter the curtilage to conduct an investigation without a warrant and absent an emergency?...Respectfully, I dissent.” Gorsuch goes on to emphasize the dangers inherent in the ever-increasing use of the “knock-and-talk” ruse. “Because everything happens with the homeowner’s consent…a warrant isn’t needed…No doubt for just this reason law enforcement has found the knock and talk an increasingly attractive investigative tool. But in the constant competition between constable and quarry, officers sometimes use knock and talks in ways that test the boundaries of the consent on which they depend.” Collins v. Virginia, No. 138 S.Ct. 1663 (2018): Officers pursuing a motorcycle for traffic offenses, suspected the motorcycle was stolen, but lost sight of their prey. The following day, in the same neighborhood, the officers observed a motorcycle in plain view, partially covered by a tarp in Collins’s driveway next to his garage. Suspecting this was the same motorcycle they had been chasing the day before, and relying on the automobile exception to the warrant requirement, the officers walked up Collins’s driveway and lifted the tarp. The officers called in the license number and registration of the motorcycle and confirmed it was reported stolen. Justice Sotomayor, writing for an 8 to 1 majority, and relying upon the Court’s reasoning in Jardines held the officers’ intrusion onto Collins’s driveway violated his home’s “curtilage,” and required a warrant. “In physically intruding on the curtilage of Collins’s home to search the motorcycle, Officer Rhodes not only invaded Collins’s Fourth Amendment interest in the…motorcycle, but also invaded Collins’s Fourth Amendment interest in the curtilage of his home.” Nevertheless, the Court remanded the case back to the Virginia Supreme court: “We leave for resolution on remand whether Officer Rhodes’ warrantless intrusion on the curtilage…may have been reasonable on a different basis, such as the excigent circumstances exception to the warrant requirement.” 30
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On remand, the Virginia Supreme Court held that: “In our opinion, the exclusionary rule does not apply in this case even if no exigent circumstances existed because, at the time of the search, a reasonably well-trained officer would not have known that a search of the motorcycle, located a few feet across the curtilage boundary of a private driveway was unconstitutional.” Moreover, in a troubling reference to the requirement in Hudson, Herring and Davis’ the officers’ conduct must be shown to be “deliberate,” “culpable,” and “flagrant,”to invoke the exclusionary rule.The Virginia Supreme Court goes on to note that: “We begin with a settled but often overlooked premise. Standing alone, ‘[t]he fact that a Fourth Amendment violation occurred…does not necessarily mean that the exclusionary rule applies…The Fourth Amendment prohibits unreasonable searches and seizures but “says nothing about suppressing evidence obtained in violation of this command.”
TRACKING WITH A GLOBAL POSITIONING SYSTEM (GPS) U.S. v. Jones, 565 U.S. 400 (2012): In Jones the Court determined whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.
Believing Jones was involved in narcotics trafficking, the District of
Columbia police obtained a warrant to install and monitor a GPS device on the undercarriage of Jones’ pickup truck. However, their monitoring exceeded both the geographical and time limits of that warrant. Accordingly, the Supreme Court treated both the installation and monitoring of the device as warrantless. While the decision was unanimous, the rationale for same was divided 5 to 4. Scalia, writing for the 5-Justice majority, held that the “attaching” of the GPS device constituted a search, requiring a warrant, reasoning the installation constituted a physical trespass on one of the 4th Amendment’s expressly protected areas, namely “persons, houses, papers and effects.” “At bottom, we must ‘assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted…As explained, for most of our
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history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas it enumerates.” Scalia, J. Scalia’s majority opinion does not address the issue of monitoring, noting that "It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.” Alito, concurring, reaches the same conclusion with regard to attaching of the device, relying upon the “reasonable expectation of privacy” standard, noting that: “[T]he search of one’s home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person’s privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment.” However, Scalia goes a step further to find that under the expectation of privacy test, the lengthy monitoring presented in this case, constituted an invasion of Jones’ expectation of privacy, requiring a warrant. “I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove…I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment.” Alito, J. Sotomayor writes separately opining that even cases involving “short-term” monitoring may violate one’s reasonable expectation of privacy. That would make 5 votes for the proposition that any monitoring would constitute a search, requiring a warrant. Given that almost every person and vehicle now come equipped with a GPS device (already furnished with their cellphones, digital devices or their “intelligent” vehicles), five Justices held that the continued warrantless monitoring of that device was an illegal “search.” In March of 2013, the First Circuit examined a case in which FBI agents attached a GPS tracking device to the vehicle of a suspected bank robber. U.S. v. Sparks, 711 F.3d 58 (1st Cir.
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2013). Although the ruling in Jones controls the case, the First Circuit concluded the good-faith exception “applied in cases like this one (or Davis itself), where new developments in the law have upended the settled rules on which the police relied.” Id. at 68. The court noted that the officer’s actions had been guided by binding precedent in that circuit. Id. at 67.
Geofence Warrants U.S. v. Chatrie, 107 F.4th 319 (4th Cir. 2024) On May 20, 2019, at 4:52 pm, an unidentified suspect robbed the Federal Credit Union Bank in Midlothian, Virginia, stealing a total of $195,000. Id. at 324. At the time, authorities had no leads on potential suspects. Id. To aid their investigation, Virginia police obtained a Geofence warrant that compelled Google to disclose the “user accounts” of everyone who was present at the bank during the robbery. Id. at 325. This led to the identification of 19 different Google account holders whose devices were at the scene. Id. From this data, the officers narrowed their focus to Okello Chatrie. Id. Citing the precedent set in Ybarra, the district court ruled that “a search or seizure of a person must be supported by probable cause particularized with respect to that person.” “Although clocked by the complexities of novel technology, when stripped of those complexities, this particular Geofence Warrant lacks sufficient probable cause. The United States Supreme Court has explained that warrants must establish probable cause that is particularized with respect to the person to be searched or seized...This warrant did no such thing.” Although the Court determined that the Geofence warrant lacked probable cause and “plainly” violated Chatrie’s Fourth Amendment right to privacy, it concluded that the search was nonetheless permissible under Leon’s Good Faith exception due to the novel nature of the legal issues involved. Despite the newness of the technology, the core legal issue – a violation of Fourth Amendment rights – was clearly addressed 43 years ago in Ybarra v. Illinois, where it was established that general warrants without particularized suspicion are unconstitutional.
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The Fourth Circuit further reasoned that because Chatrie had voluntarily shared his location data with Google, the Geofence warrant did not constitute a search under the Fourth Amendment. Consequently, Geofence warrants have been criticized as tools that could be used to “round up all the usual suspects”, raising significant concerns about their impact on privacy and the potential for expansive law enforcement surveillance. A Geofence warrant enabled authorities to gather detailed information about individuals present inside the Capitol building on January 6, 2021. The data revealed where individuals walked, which rooms they entered, and did so with a precision of within three meters and two minutes. U.S. v. Rhine, 652 F.Supp. 38, 67 (D.D.C. 2023). The Geofence warrants captured data from 5,653 devices in total. Id. at 69. Initially, the information provided by Google was “anonymized”, meaning that the users’ identities were not immediately disclosed Id. The geographic scope of the warrant roughly encompassed the Capitol building, which was closed to the public at the time of the event. Id. at 87. The court found that the magistrate had a “substantial basis” to believe that there was a “fair probability” that the devices identified by the Geofence warrant were connected to suspects or witnesses of the events that occurred on January 6th. Id. at 72-78. The warrant was not deemed overly broad because it incorporated a critical safeguard: any de-anonymization of the location history data required additional judicial approval Id. at 73. In the midst of these legal challenges, Google has revised its data retention policies by discontinuing the bulk storage of users’ location data. This change means that Google can no longer comply with Geofence warrants in the same comprehensive manner as before, which could significantly impact the utility of such warrants for law enforcement and raise new questions about privacy and surveillance in the digital age.
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Wells v. State, 714 S.W.3d 614, (Tex. Crim. App. 2025) In Wells v. State, the court of Texas Criminal Appeals affirmed the lower courts decision in allowing the state to use a geofence warrant to identify suspects involved in a murder. Wells v. State, 714 S.W.3d 614 (Tex. Crim. App. 2025). Hours before the attack, security cameras from a church recorded four unidentified males loitering near the scene of the crime. Id. at 616. The state issued a warrant to discover the suspects’ location information within a geofenced area from any active Google accounts. Id. The warrant included timestamps using the church’s security footage and the approximate location where the individuals were seen before the attack. Id. at 618. The warrant, however, lacked any mention of probable cause. Id. Google’s search results identified three users, one of whom was implicated in the offense. Id. at 619. The State obtained information from that individual’s Google account and associated phone records that were then linked to the suspects after a social media search. Id. The court of appeals upheld the use of the geofence warrant, reasoning that the search was appropriately limited by time and specific geographic coordinates of where the suspects were likely located. Wells, 675 S.W.3d at 826−27. The court further excused the lack of probable cause in the warrant application by relying on the “well-known ubiquity of cellphones in modern society.” Id. at 826. It concluded that a “fair probability,” rather than a near certainty, that the suspects possessed cellphones was sufficient to justify the warrant’s issuance. Id. The lack of probable cause in this case jumps over one of the key factors before conducting an actual search. The “boilerplate” nature of the court’s probable cause reasoning (e.g., “most people carry cell phones”) and whether that alone can establish probable cause or nexus is troubling for future cases. This Texas court seems to place an extremely low burden on geofence warrants and sets a dangerous precedent.
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POLE CAMERAS/FACIAL RECOGNIZATION United States. v. Moore-Bush, 381 F. Supp. 3d 139 (D. Mass. June 3, 2019): During an investigation into Moore-Bush’s suspected illegal firearm sales, ATF agents installed a covert camera on a utility pole to monitor the front of Moore-Bush’s residence. This Pole Camera operated continuously for nearly eight months, generating a comprehensive and searchable digital record of all activity in its field of view. The camera’s advanced capabilities allowed agents to remotely control its focus, enabling them to pan, tilt, and zoom to capture detailed images, such as license plate numbers and individuals entering and exiting the property. The surveillance data collected through this method played a critical role in securing search warrants that ultimately led to Moore-Bush’s arrest. In response to Moore-Bush’s motion to suppress the evidence obtained from the Pole Camera, the Massachusetts District Court evaluated whether the use of the camera constituted a search under the Fourth Amendment. The court did not find that the mere use of a pole camera inherently violated privacy rights. However, it concluded that certain features of the Government’s use of the camera did cross constitutional lines. Specifically: “the Court rules narrowly that several aspects of the Government’s use of the Pole Camera does. Id. at 150. Those aspects are the Pole Camera’s (1) continuous video recording for approximately eight months; (2) focus on the driveway and front of the house; (3) ability to zoom in so close that it can read license plate numbers; and (4) creation of a digitally searchable log. Id. Taken together, these features permit the Government to piece together intimate details of a suspect’s life.” Id. On appeal, the First Circuit agreed to review the case en banc and ultimately reversed the district court’s decision in a closely divided opinion. See United States v. Moore-Bush, 36 F.4th 320 (1st Cir. 2022). The appellate court held that the surveillance of Moore-Bush’s curtilage, the area immediately surrounding the home, constituted a search requiring a warrant under the Fourth Amendment. The court explained, “[w]e conclude that the government conducted a warrantless
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‘search’ in violation of the Fourth Amendment when the government ‘accessed’ the compendium of all the activities that occurred over a period of eight months.” Id. at 359. However, the court also noted that, due to existing Circuit precedent, the officers involved in the surveillance acted in “good faith” reliance on the legality of their actions. Id. at 359-360. As a result, despite the determination that a search had occurred, the evidence obtained from the Pole Camera was not excluded under the exclusionary rule Id. This ruling underscores the ongoing tension between advancing surveillance technologies and the constitutional protections afforded to individuals under the Fourth Amendment.
United States v. Hay, 95 F.4th 1304 (10th Cir. 2024): As part of an investigation into allegations that Mr. Hay, a military veteran, had fraudulently claimed disability benefits, federal agents installed a Pole Camera on a school rooftop directly facing the front of his home. The camera “recorded near constant footage of Mr. Hay’s house as visible from across the street for sixty-eight days.”, capturing a detailed visual record of all visible activity. Id. at 1309. In its review, the Tenth Circuit ruled that Mr. Hay had no reasonable expectation of privacy concerning the view of his home that was openly visible to the public and therefore, the district court did not err in denying the suppression of the footage collected by the Pole Camera. Id. at 1318. “The Supreme Court’s guideposts are clear: viewing of private settings, visible only with technology that is not in general public use, is considered a search; viewing settings that are in public view, or visible via generally available technology does not constitute a search.” Id. at 1314. Despite affirming the legality of the surveillance in this case, the court expressed concern about the broader implications of such practices, noting that as video surveillance becomes more ubiquitous, the reasonable expectation of privacy inevitably diminishes. Id. at 1317. This
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recognition raises critical concerns about the future privacy rights in an increasingly surveilled society. Both the First and Tenth Circuits have found that the warrantless use of Pole Cameras does not violate the Fourth Amendment’s protections against unreasonable searches. However, their reasoning signals a worrisome trajectory. As Justice Stevens warned in his dissent in Kyllo v. United States, “the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.” 533 U.S. 27 (2001).
Automatic License Plate Reader (ALPR) Automatic License Plate Recognition (ALPR) cameras have become ubiquitous in metropolitan areas, where they automatically perform a range of surveillance functions. These cameras capture high-resolution photographs, record and store images of license plates, vehicles, occupants, as well as the times and dates associated with each capture. This data is not only collected but also stored for extended periods, allowing for the retrieval and digital data mining over vast geographical areas and significant time spans. ALPR cameras can be installed in a variety of locations, including on poles, signs, traffic lights, and vehicles, as well as on public roadways, private businesses, convenience stores, and shopping centers. When combined with advanced AI tools, these cameras have the capability to analyze and reveal the behavior and driving patterns of vehicles and their drivers. The propriety AI technology integrated with these systems is designed to detect suspicious activity, often utilizing cameras that are hidden from public view. As these AI platforms interact and learn from each other, the technology becomes increasingly sophisticated, enhancing its ability to identify and flag potential criminal activity.
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Consider a scenario where law enforcement obtains a “reverse keyword search” warrant from Google, targeting individuals who have searched for “New Mexico abortion clinic” within the last three days. Concurrently, the Texas Department of Public Safety (DPS) positions an ALPR camera on a highway leading to New Mexico. By integrating the data from the reverse keyword search with the information gathered by the ALPR system, AI technology could be used to identify vehicles that might be of interest. This coordinated effort could then trigger an alert to a DPS trooper waiting on the side of Highway 87 – a stretch of road that spans 11 miles from Clayton, New Mexico, to Texline, Texas (population: 507), located at the border between Texas and New Mexico. This Scenario raises profound legal and ethical questions regarding the balance between surveillance technology and individual privacy rights. It challenges whether the integration of AIdriven ALPR data with keyword search results provides a legitimate basis for law enforcement to establish reasonable suspicion or probable cause to conduct a vehicle stop and question its occupants. The use of such advanced technologies in tandem amplifies the surveillance capabilities of law enforcement, but it also blurs the lines of privacy and could stretch the boundaries of existing legal standards. As these technologies evolve and become more embedded in law enforcement practices, it becomes increasingly urgent to scrutinize their impact on civil liberties and ensure that constitutional protections keep pace with the digital age. United States v. Zayas, 22-CR-178 (NSR) (S.D.N.Y. Nov. 7, 2022) In the course of a narcotics investigation, Westchester County’s Real Time Crime Center (RTC) utilized data from ALPR and criminal history reports associated with vehicle owners to identify potential suspect vehicles. Id. at 3. Through this method, a gray Chevrolet Equinox was identified, with the ALPR data suggesting it exhibited behavior patterns typical of narcotics trafficking. Id. Acting on this information, officers conducted a traffic stop of the vehicle for a
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minor traffic infraction, which subsequently led to the discovery of illegal drugs within the car. Id. at 3-4. When the case was brought before the court, the legal scrutiny focused on whether the ALPR data alone provided sufficient grounds for the stop. The court ultimately ruled that the information gathered through ALPR by the Westchester County Police Department did not constitute reasonable suspicion, much less probable cause for the traffic stop. Id. at 13. The decision emphasized that while ALPR technology can be an effective tool in identifying potential criminal activity, its use alone does not satisfy the legal requirements necessary to justify stopping a vehicle. Although ALPR systems offer powerful capabilities for monitoring and analyzing vehicle data, relying on this technology alone to justify law enforcement actions such as traffic stops risks eroding fundamental protections against unreasonable searches. While technological advancements can enhance investigative capabilities, they do not obviate the need for rigorous adherence to legal standards.
OVER BREADTH AND GENERAL SEARCHES Courts have not hesitated to find that a warrant lacking in particularity will not pass Constitutional muster. “Th[e] particularity requirement serves three related purposes: preventing general searches, preventing the seizure of objects upon the mistaken assumption that they fall within the magistrate’s authorization, and preventing the issuance of warrants without a substantial factual basis.” U.S. v. Young, 745 F.2d 733 (2d Cir. 1984), cert. denied, 470 U.S. 1084 (1985). In U.S. v. LeBron, 729 F.2d 533, 536-39 (8th Cir. 1984), the Eighth Circuit held that a warrant for “other stolen property” or “any records which would document illegal transactions involving stolen property” lacks the requisite particularity: 40
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“A valid warrant should describe the things to be taken and the place to be searched with particularity such that it provides a guide to the exercise of informed discretion of the officer executing the warrant.... We recognize that, despite the dangers, a warrant may issue to search and seize records if there is probable cause to believe that records which are evidence or instrumentality of a crime will be there and the description is stated with sufficient particularity....The warrant in the instant case, without more, authorized a search for ‘any records which would document illegal transactions involving stolen property’. There is no attempt to particularize the description of the property or of the records themselves. The only limiting factor is the reference to ‘stolen property’. As earlier discussed, this generic classification is not sufficient to provide any guidance to an executing officer. Absent as well is any explanation of the method by which the officers were to distinguish such records from any documents relating to legal transactions.” LeBron, 729 F.2d at 536, 538-39. See also U.S. v. Guarino, 729 F.2d 864 (1st Cir. 1984) [striking down a warrant authorizing seizure of “obscene” films “of the same tenor” as certain enumerated items]; U.S. v. Spilotro, 800 F.2d 959 (9th Cir. 1986) [items relating to loan sharking and bookmaking not described with sufficient particularity]; U.S. v. LeBron, 729 F.2d 533, 539 (8th Cir. 1984) [a search for any records that would show transactions in stolen property was too generic a classification and thus constituted an impermissible general search]. Contra U.S. v. Gomez, 652 F. Supp. 461 (E.D.N.Y. 1987) [similar case with opposite result]; U.S. v. Burke, 718 F. Supp. 1130 (S.D.N.Y. 1989); U.S. v. Buck, 813 F.2d 588 (2d Cir. 1987), cert. denied, 484 U.S. 857 (1987) [even though warrant lacked sufficient particularity, same was not so apparent that executing officers could not rely on the warrant, especially in light of fact that officers searching in 1981 could not reasonably have anticipated developments in the law]; U.S. v. Villegas, 899 F.2d 1324 (2d Cir. 1990) [“sneak peek” warrant authorizing covert entry to take pictures was held constitutional]. A search warrant which utterly fails to describe the persons or things to be seized has been held to be per se invalid, even if the particularized description is provided in search warrant application. Groh v. Martinez, 540 U.S. 551 (2004).
NEXUS BETWEEN PROBABLE CAUSE AND THE PLACE TO BE SEARCHED There must be sufficient “nexus” between probable cause to believe that the contraband will be located at the place to be searched. “For a probable cause determination to be meaningful there must be a nexus among (1) criminal activity, (2) the things to be seized, and (3) the place to be searched.” W. LaFavre
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Search and Seizure, 33.7(d) (1978). See also Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 358 (1974); U.S. v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982); U.S. Maestas, 546 F.2d 1177, 1189 (5th Cir. 1977). It also should be clear that an arrest at one location does not give sufficient particularized probable cause to believe evidence of that crime will be located at some distant location, even if same constitutes the arrestee’s residence. U.S. v. Gramlich, 551 F.2d 1359 (5th Cir. 1977) [“This fact alone is insufficient to justify the inference that incriminating evidence existed at that residence”]. This is because warrants are directed against evidence of crime and not against persons. Thus, “[t]he fact that there is probable cause to arrest a person for a crime does not automatically give police probable cause to search his residence or other area in which he has been observed for evidence of that crime.” U.S. v. Savoca, 739 F.2d 220, 224 (6th Cir. 1984). “The affidavit in Gramlich stated that the defendant had been observed over a period of several weeks. During that time, he purchased a van, motorboat and radio equipment under an assumed name. The defendant was also known to possess a 23-foot motorboat named “Pronto” which, according to the affidavit had been docked at the pier outside of the defendant’s residence. Gramlich, 551 F.2d at 1362 n.7. The affidavit went on to relate that on several occasions the defendant had been observed piloting “Pronto” out into the Gulf of Mexico in order to rendezvous with other boats. Based upon the surveillance described, in addition to the arrest of the defendant fifty miles away while he was unloading marijuana from a motorboat, the magistrate granted a search warrant for the defendant’s house. The Fifth Circuit suppressed the evidence obtained as a result of that search because the information in the affidavit failed to establish an adequate connection between the residence searched and the alleged drug smuggling activities.” U.S. v. Gramlich, 551 F.2d 1359 (5th Cir. 1977). Likewise, reliable information that a known felon has committed a burglary and was arrested with some of the proceeds some distance from his home, will not authorize a search of his residence. U.S. v. Flanagan, 423 F.2d 745 (5th Cir. 1970); see also U.S. v. Bailey, 458 F.2d 408 (9th Cir. 1972); U.S. v. Whitlow, 339 F.2d 975 (7th Cir. 1964); Gillespie v. U.S., 368 F.2d 1 (8th Cir. 1966). “The statement (in an affidavit), even if reliable, that a named person who is a known felon has committed a burglary, plus possession by the suspect of some of the proceeds when arrested, does not without more authorize the issuance of a warrant to search the residence of the accused miles away.” Flannagan, 423 F.2d at 747.
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In U.S. v. Green, 634 F.2d 1222 (5th Cir. 1981), the Fifth Circuit noted that while a “careful review of the affidavit reveals ample evidence from which the magistrate could conclude that (the defendant) was engaged in criminal activity in California,” . . . “no evidence, other than residence, was set forth in the affidavit that connected the Key West, Florida, home to the criminal activity.... The motion to suppress should have been granted.” Green, 634 F.2d at 1225-26. Similarly, in U.S. v. Lockett, 674 F.2d 843 (11th Cir. 1982) the only statement evidencing a nexus between explosives and the residence to be searched, in an affidavit reciting numerous other events and activities of George Lockett, read: “On July 11, 1980, this affiant observed these premises from the public county road and I saw no structures which would indicate proper storage facilities on the premises for storing high explosives. Record, Vol. 1 at 16. There follows a hand written statement by the affiant to the effect that he believes that dynamite is on the premises.” Lockett, 674 F.2d at 845. In the Eleventh Circuit’s view, “such a conclusory statement, without more, of course has no probative value.” As a result, the Lockett Court concluded the affidavit set forth no facts from which the magistrate could infer that dynamite was located at that particular place”. Lockett, 674 F.2d at 846. See U.S. v. Algie, 721 F.2d 1039, 1042 (6th Cir. 1983) [fifteen phone calls from an apartment “which authorities knew to be used for gambling coupled with an affiant’s belief that telephones are often used to make lay-off bets”, is “insufficient to convince a reasonably prudent person that contraband or evidence of a crime would be found on the premises”].
Another court, however, has applied the good faith exception despite any lack of nexus between the house to be searched and the evidence seized. U.S. v. Hendricks, 743 F.2d 653 (9th Cir. 1984). “Federal agents were in possession of a cocaine-bearing package from Brazil, which they anticipated would be picked up by the individual to whom it was
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addressed, ...the warrant stated that the package ‘is now being concealed’ at defendant’s residence and added’ the search warrant is to be executed only upon the condition that the above described box is brought to the aforesaid premises’.” The Court concluded the warrant lacked probable cause and explained the magistrate abdicated to the agents “an important judicial function—the determination that probable cause exists to believe that the objects are currently in the place to be searched”. Nevertheless, the court determined the agents acted in “reasonable reliance on the warrant and hence declines to order suppression of the fruits of the search”. Hendricks, 743 F.2d at 655; see also U.S. v. Gant, 759 F.2d 484 (5th Cir. 1985); Commonwealth v. Way, 492 A.2d 1151 (Pa. Super. 1985) [holding lack of substantial nexus between the street crime and the premises to be searched renders the warrant facially invalid]; U.S. v. Marriott, 638 F. Supp. 333 (N.D. Ill. 1986). But see U.S. v. Asselin, 775 F.2d 445 (1st Cir. 1985) [officers were found to have acted in “good faith” interpreting the word “premises” to include surroundings so as to authorize two searches of a disabled car adjacent to the carport and a birdhouse hanging from tree fifteen feet from trailer steps]; U.S. v. Kenney, 595 F. Supp. 1453 (D.C. Ma. 1984) [“probable cause existed to search safety deposit box for cash “because officers had probable cause to believe defendant was engaged in trafficking”, but there existed no nexus between the gold, silver and jewelry found in the box and suspected drug trafficking].
PROSECUTION SHOULD BEAR THE BURDEN OF DEMONSTRATING “GOOD FAITH” The Supreme Court in Leon appeared to place the burden on the prosecution “to establish objective good faith”. “The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the goodfaith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecutions should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.” Leon, 468 U.S. at 924. 44
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See also U.S. v. Gant, 587 F.Supp. 128 (S.D. Tex. 1984), rev’d on other grounds 759 F.2d 484 (5th Cir. 1985), cert. denied, 474 U.S. 851 (1985) [allocating burden of proof upon the Government, “which if proved by the government, would save the evidence from the effects of the exclusionary rule”]; U.S. v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984)[“The standard to be employed [in determining the officers’ good faith reliance] is an objective one and the prosecution bears the burden of proof’].
“GOOD FAITH” RELIANCE ON SUMMONS The good faith exception also applies in other areas where law enforcement officers are acting in reliance on the issuance of process by a grand jury or prosecutor on its behalf. U.S. v. Gluck, 771 F.2d 750 (3d Cir. 1985) [“good faith” exception applies to IRS summons based on facially valid grand jury disclosure order unauthorized under U.S. v. Baggot, 771 F.2d 750, 103 3164, 77 L.Ed.2d 785 (1983)].
“GOOD FAITH” EXCEPTION APPLIES TO WARRANTLESS ADMINISTRATIVE SEARCHES AUTHORIZED BY STATUTE LATER FOUND UNCONSTITUTIONAL Illinois v. Krull, 480 U.S. 340 (1987): The Supreme Court extended the good faith exception to a warrantless administrative search conducted in objectively reasonable reliance on a statute later held unconstitutional. Illinois v. Krull, 480 U.S. 340 (1987). However, constraints similar to those set forth in Leon apply. “A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional.... [T]he standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.” Krull, 480 U.S. at 355 [citing Leon, 468 U.S. at 919 n.10].
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The Court also recognized the risks involved in its holding. “It is possible, perhaps, that there are some legislators who, for political purposes, are possessed with a zeal to enact a particular unconstitutionally restrictive statute, and who will not be deterred by the fact that a court might later declare the law unconstitutional. ...[W]e are not willing to assume...legislators ... perform their legislative duties with indifference to the constitutionality of the statutes they enact. If future empirical evidence ever should undermine that assumption, our conclusions may be revised accordingly. Krull, 480 U.S. at 352 n.8 [citing Leon, 468 U.S. at 927-28]. Justice O’Conner, writing for the 4 dissenting justices, noted that: “Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws. . . . [i]t cannot be said that there is no reason to fear that a particular legislature might yield to the temptation offered by the Court’s good faith exception.” Krull, 480 U.S. at 352 [O’Connor, J., dissenting].
OTHER WARRANTLESS SEARCHES Brown v. Polk County, Wisconsin, 141 S. Ct. 1304 (2021) Although the Supreme Court denied certiorari, Justice Sotomayor provided a statement. In this case, the defendant contested an invasive search of her body during pre-trial detention. In this search, the petitioner was examined by a doctor who used a speculum to spread open her vagina and shine a light inside to search for contraband; the same was done to her rectum. The 7th Circuit found mere reasonable suspicion justified this search—the same degree used for Terry stops. Petitioner argues the extreme invasiveness of these procedures should require probable cause and a warrant or exigent circumstances. Justice Sotomayor emphasizes “the degree of suspicion required for a search should be substantially informed by the availability of less intrusive alternatives.” Justice Sotomayor chastises the 7th Circuit for failing to consider whether other alternatives were available before holding reasonable suspicion alone was sufficient justification
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to perform “this degrading search” on a person who had not even been convicted of any crime. Petitioner was arrested for shoplifting and during her second day in jail, two inmates reported petitioner was hiding drugs in her body. Based on the inmates word alone, petitioner was taken to the hospital and although an ultrasound found no foreign objects the doctor proceeded to perform the visual inspections of her vagina and anus. Jail personnel indicated these searched were ordered whenever someone made such an accusation without any consideration of the source’s reputation for honesty, or any other investigation of the accusation. Justice Sotomayor expressly states the 7th Circuit’s failure to consider something less intrusive that would still meet the interest of ensuring jail security was error. There were a myriad of less invasive alternatives and the method used should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion. Florida v. Royer, 460 U.S. 491, 500 (1983). City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015): The Los Angeles Municipal Code (LAMC) required hotel and motel operators to keep records with detailed information about their guests. The LMAC also authorized police officers to inspect these records at any time without requiring a search warrant. The Patels, who owned and operated a hotel in Los Angeles, filed a petition, arguing the LMAC violated their Fourth Amendment protection against unreasonable seizures.
Justice Sotomayor delivered the 5-4
majority opinion and held that an individual may challenge a statute for violating the Constitution on its face without needing to allege unconstitutional enforcement, and that the municipal ordinance in question is unconstitutional on its face because it does not allow for hotel operators to engage in pre-compliance review by questioning the reasonableness of the subpoena in district court. The Court also held that hotels are not a “closely regulated” business and therefore do not
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fall under that exception to the warrant requirement. Justice Scalia wrote a dissent, arguing the ordinance is constitutional because it is not unreasonable under the circumstances. Rodriguez v. United States, 135 S. Ct. 1609 (2015): Rodriguez was pulled over for a minor traffic violation for which he received a warning. After giving the warning, the officer asked permission to walk his K-9 unit around Rodriguez’s vehicle, which he refused. The officer ordered Rodriguez to exit the vehicle and walked the K-9 around his car and the dog alerted. A search revealed a large bag of methamphetamine. Rodriguez argued the K-9 search violated his Fourth Amendment rights. The Court held the use of a K-9 unit after completion of an otherwise lawful traffic stop exceeded the time reasonably required to handle the matter and therefore unreasonable under the Fourth Amendment. The Court clarified that a seizure unrelated to the reason for the stop is lawful only if it doesn’t measurably extend the stop’s duration. Akinmboni v. United States, 126 A.3d 694 (D.C. Ct. App. 2015): In Akinmbomi, The court held the warrantless search and removal of items from an individual’s body cavity violates the Fourth Amendment.
Akinmboni v. United States, 126 A.3d
694, (2015). Here, the defendant was pulled over for a broken taillight. The officer smelled burnt marijuana when approaching the defendant’s car and noticed the defendant placed an item in his mouth and began chewing. Id. at 695. Unable to retrieve that item. the officer conducted a search of the vehicle, found marijuana, and arrested the defendant. At the stationhouse, the officer conducting a pat down search of defendant felt a foreign object. They asked the defendant to remove all of his clothing and to permit visual inspection of his anal cavity. Id. at 696. Upon inspection, officers found three separate baggies containing marijuana, pills of assorted colors, crack, and cocaine. Defense counsel subsequently filed a motion to suppress the
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evidence under the Fourth Amendment, arguing that officers lacked a warrant and a doctor should have been involved. Id. The trial court denied the motion, and after a jury trial, Akinmboni was convicted of possession of controlled substances. Appeal followed. On appeal, it is uncontested that the officer directive to the defendant to remove the items from his anal cavity constituted a Fourth Amendment search and seizure Determining whether a search or seizure was conducted in a reasonable manner requires a balancing of the needs of the government against the invasiveness of the intrusion and its impact on the suspect. Bell v. Wolfish, 441 U.S. 520, 559 (1979). In assessing reasonableness, courts “must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id.; see also, e.g., Washington v. United States, 594 A.2d 1050, 1052 (D.C. 1991). Where a search or seizure involves the removal of items from sensitive body cavities, including anal or vaginal cavities, the reasonableness of the methods used may depend upon “a variety of factors including hygiene, medical training, emotional and physical trauma, and the availability of alternative methods for conducting the search.” United States v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015). It was argued that the officer acted in accordance with official policy, and therefore the search was constitutional. Id. However, the fact a search was conducted in accordance with an applicable policy does not by itself establish that the search was reasonable. See, e.g., Way v. County of Ventura, 445 F.3d 1157, 1160–62 (9th Cir.2006). Therefore, the court found that even though officers complied with their established policy, the removal of the items was substantially more intrusive than a search that entails only visual inspection.
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DIGITAL SEARCHES In U.S. v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), the 10th Circuit was confronted with the practice of 3rd party providers (in this case AOL) scanning all outgoing e-mails with an “automated filter”20 for known images of child pornography, upon receiving a “positive hit,” sending that e-mail, together with any attachments to the National Center for Missing and Exploited Children (NCMEC), a private entity, who in turn open the e-mail and, if finding evidence of child pornography, refers same to criminal investigators. As for whether the opening of the e-mail by NCMEC, a private entity, constitutes “state action” for 4th Amendment analysis, Judge Gorsuch makes short shrift, holding that NCMEC is the Government for 4th Amendment purposes, and even if it isn’t, it is an agent of the Government under these circumstances. “[NCMEC is an] organization that was statutorily obliged to operate as official national clearinghouse for information about missing and exploited children [and thus] was a government entity for purpose of determining whether its search of defendant’s e-mail violated [the] Fourth Amendment.” Ackerman, 831 F.3d at 1292. With regard to whether the opening of that e-mail constituted a “search” for 4th Amendment purposes, Judge Gorsuch again has no problem reaching that conclusion in simple, concise and piercing terms: “We are dealing…with the warrantless opening and examination of (presumptively) private correspondence that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment.” “Of course, the framers were concerned with the protection of physical rather than virtual correspondence. But a more obvious analogy from principle to new technology is hard to imagine.” 20 Utilizing an algorithm that produces a hash value, some consider a “digital fingerprint.” See
Richard P. Salgado, Fourth Amendment Search and the Power of the Hash, 119 Harv. L. Rev. F. 38, 38-40 (2005). 50
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Moreover, Judge Gorsuch cuts to the quick of the long-standing dispute between whether we analyze the search issue in terms of Scalia’s property-trespass approach or in terms of Alito’s reasonable expectation of privacy analysis.21 Without taking sides, Gorsuch describes the opening of Ackerman’s e-mail intuitively as a “trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment,” noting: “So it seems that, whether we analyze the search question through the lens of the government’s preferred authority— Katz —or through the lens of the traditional trespass test suggested by Jones, they yield the same (and pretty intuitive) result: NCMEC conducted a ‘search’ when it opened and examined Mr. Ackerman’s email.”
USE OF SOPHISTICATED TECHNOLOGY In U.S. v. Denson, 775 F.3d 1214 (10th Cir. 2014) Gorsuch was confronted with the use of a small hand-held “Doppler radar device” capable of detecting the presence of individuals inside a residence. Taking his lead from the Supreme Court’s thermal imaging case 22, the new Justice had no difficulty determining that using such a “powerful tool to search inside homes poses grave Fourth Amendment questions.” Denson, 775 F.3d at 1218. “The government brought with it a Doppler radar device capable of detecting from outside the home the presence of ‘human breathing and movement within.’…. New technologies bring with them not only new opportunities for law enforcement to catch criminals but also new risks for abuse and new ways to invade constitutional rights. See, e.g., Kyllo v. United States, 533 U.S. 27, 33–35 (2001) (holding that using warrantless thermal imaging to show activity inside a home violated the Fourth Amendment). Unlawful searches can give rise not only to civil claims but may require the suppression of evidence in criminal proceedings.23 We have little doubt that the radar
21 See Comparison between Scalia’s lead opinion and Alito’s concurrence in U.S. v. Jones, 565
U.S. 400 (2012) 22 See Kyllo v. United States, 533 U.S. 27, 33–35 (2001) [use of a “thermal imaging” device]. However, Scalia’s 5 to 4 opinion rests on the finding that such technology was “not readily available,” a scary concept, not mentioned in Gorsuch’s holding that the use of a Doplar radar device constituted a search. 23 Gorsuch’s statement that “unlawful searches…may require suppression of evidence in criminal proceedings,” would appear to be a subtle recognition of the Supreme Court’s recent insistence that evidence obtained through the violation of an individual’s constitutionally protected right to privacy is not necessarily subject to the exclusionary remedy. Compare Hudson v. Michigan,
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device deployed here will soon generate many questions for this court and others along both of these axes.” Id. Nevertheless, Gorsuch, applying the “independent source rule,” easily affirms Denson’s conviction, noting that “all of the facts we’ve outlined above were discovered independently of the potentially problematic radar search—a fact that requires us to defer those questions to another day.” Id. at 1218-19.
“GOOD FAITH” MUST BE OBJECTIVE The standard for applying the “good faith” exception to the exclusionary rule is an objective, not subjective one. “Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. ‘Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment.’ The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits.” U.S. v. Leon, 468 U.S. 897, 919 n. 20 (1984) (internal citations omitted). As Professor Jerold Israel has observed: “The key to the [exclusionary] rule’s effectiveness as a deterrent lies, I believe, in the impetus it has provided to police training programs that make officers aware of the limits imposed by the Fourth Amendment and emphasize the need to operate within those limits. [An objective good-faith exception]...is not likely to result in the elimination of such programs, which are now viewed as an important aspect of police professionalism. Neither is it likely to alter the tenor of those programs; the possibility that illegally obtained evidence may be admitted in borderline cases is unlikely to encourage police instructors to pay less attention to Fourth Amendment limitations. Finally, [it] ...should not encourage officers to pay less attention to what they are taught, as the requirement that the officer act in ‘good faith’ is inconsistent with closing one’s mind to the possibility of illegality.” Israel, Criminal Procedure, the Burger Court, and the Legacy of the Warren Court, 75 Mich. L.Rev. 1319, 1414 n. 396 (1977).
547 U.S. 586 (2006) with Davis v. U.S., 546 229 (2011) and see discussion regarding erosion of the exclusionary rule hereafter. 52
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Whether the officer acted in good faith is a question of law which receives an independent review in the courts of appeal. For example, the Supreme Court found that a mistake in the execution of a warrant might, under the circumstances of the case, warrant application of the “good faith” exception. However, the exception will not apply if officers are negligent in execution of a warrant and their mistake is unreasonable. In Maryland v. Garrison, the Court found the objective good faith standard was met where officers made a mistake conducting a search where the warrant did not authorize. The officers obtained a warrant for an apartment on the third floor of a building, but mistakenly thought the apartment named in the warrant covered the entire floor. The court held that the officers made a “good faith” mistake in searching the wrong apartment. Maryland v. Garrison, 480 U.S. 79 (1987). But see U.S. v. Palacios, 666 F. Supp. 113 (S.D. Tex. 1987) [stating evidence is not admissible under good faith exception when arrest warrant is negligently executed thereby arresting wrong person; mistake was not reasonable]. While the Supreme Court has voiced concern over the “substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights” it leaves no question as to the rule’s continued viability. U.S. v. Leon, 468 U.S. 897, 907 (1984). “The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern....” “...Nevertheless, the balancing approach that has evolved in various contexts—including criminal trials—forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment.” U.S. v. Leon, 468 U.S. 897, 907 (1984). Despite the Court’s concern, a study regarding the practical effect of the “good faith” exception on warrants indicates no increase in their quality and quantity. Rather, some studies suggest that
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the effect of the Leon decision has been to encourage prosecuting authorities to seek warrants in situations where previously they would not. Police Executive Research Forum, The Effects of United States v. Leon on Police Search Warrant Policies and Practice (1988). Texas’ Statutory equivalent to the Federal Exclusionary Rule also provides for a good faith exception. Tex. Code Crim. P. art. 38.23(b) (Vernon 1989). [where a defective warrant has been issued by a magistrate and the warrant was based on probable cause, if the executing officer believes in good faith the warrant is valid, the evidence is nevertheless admissible].
“UNREASONABLE DELAY” BEFORE PRESENTMENT AS GROUNDS FOR SUPPRESSION OF CONFESSION Corley v. United States, 556 U.S. 303 (2009) A divided Court held in Corley v. United States, 556 U.S. 303 (2009), that 18 U.S.C. § 3501 did not overrule the Court’s line of cases following McNabb v. United States, 318 U.S. 332 (1943) superseded by statute 556 U.S. 303, and Mallory v. United States, 354 U.S. 449 (1957) superseded by statute 354 U.S. 449.
In his opinion for the Court, Justice Stevens considered rationale of
McNabb-Mallory and the legislative history of § 3501 to conclude that Congress only intended to limit McNabb-Mallory and not to eliminate it. Corley, 556 U.S. at 306. Stevens went on to state that “Justice Frankfurter’s point in McNabb is as fresh as ever: ‘The history of liberty has largely been the history of observance of procedural safeguards.’” Id. at 321 (citing McNabb). The result of Corley, however, is not that a confession obtained prior to presentment is automatically suppressed, but rather “… a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was ‘reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]’). If the confession came within that period, it is admissible, subject to other Rules of Evidence, so long as it was “made voluntarily and … the weight to be given to [it] is left to the jury.” If the confession 54
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occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed. Corley at 322.
STATES ARE FREE TO PROVIDE GREATER PROTECTIONS TO THEIR CITIZENS Lego v. Twomey, 404 U.S. 477 (1972). Since United States Constitution sets a floor below which our constitutional rights cannot fall and the states set the ceiling, states are free to provide greater protections than afforded citizens under the federal system. Lego v. Twomey, 404 U.S. 477 (1972); Oregon v. Hass, 420 U.S. 714 (1975); Texas v. White, 423 U.S. 67 (1975); Michigan v. Mosley, 423 U.S. 96 (1975). “[I]t is appropriate to observe that no state is precluded from adhering to higher standards under state law. Each state has the power to impose higher standards governing police practices under the state law than is required by the federal constitution.” Mosley, 423 U.S. at 120. For example, Pennsylvania has rejected the Leon good faith exception to the exclusionary rule. See Com. v. Edmunds, 586 A.2d 887 (Pa. 1991) [finding that the exclusionary rule also protects the individual’s right to privacy the Court rejected the Leon good faith exception]; State v. Santiago, 492 P.2d 657 (Haw. 1971) [rejecting Harris v. New York, 401 U.S. 222 (1971)]; State v. Johnson, 346 A.2d 66 (N.J. 1975) [rejecting waiver of constitutional right approach of Schneckloth v. Bustamonte, 412 U.S. 218 (1975)]; Blue v. State, 558 P.2d 636 (Alaska 1977) [rejecting Kirby v. Illinois, 406 U.S. 682 (1972) [interpretation of right to counsel at pre-indictment lineups)]; State v. Kaluna, 520 P.2d 51 (Haw. 1974) [rejecting Supreme Court’s interpretation of right to search incident to an arrest in U.S. v. Robinson, 414 U.S. 218 (1973) and Gustafson v. Florida, 414 U.S. 260 (1973)]; State v. Jackson, 688 P.2d 136 (Wash. 1984) [rejecting the Gates “totality” test]; State v. Sidebotham, 474 A.2d 1377 (N.H. 1984) [Jones-type automatic standing held still
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available in New Hampshire]; State v. Bolt, 689 P.2d 519 (Ariz. 1984) [refusing to allow securing premises for purposes of obtaining warrant as per Segura]; Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986) [noting independent state constitution restricts use of even uncounseled silence]; State v. Jewitt, 500 A.2d 233 (Vt. 1985); State v. Young, 867 P.2d 593 (Wash. 1994). “Since 1970 there have been over 250 cases in which state appellate courts have viewed the scope of rights under state constitutions as broader than those secured by the federal Constitution as interpreted by the United States Supreme Court.... ‘A lawyer today…who does not argue that the state constitution provides…protection is skating on the edge of malpractice’…. [T]he philosophy of the U.S. Supreme Court may ebb and flow…. The development of state constitutional jurisprudence will call for the exercise of great judicial responsibility as well as diligence from the trial bar. It would be a serious mistake for this court to use its state constitution chiefly to evade the impact of the decisions of the U.S. Supreme Court. Our decisions must be principled, not result oriented.” State v. Jewett, 500 A.2d 233, 222-24 (Vt. 1985). The Supreme Court dismissed as improvidently granted a writ of certiorari on the ground that the court below had rested its suppression decision “on independent and adequate state grounds”. This was in spite of the fact that the Court had decided the same issue on the same day differently in a Federal case where the decision below rested solely on Federal Constitution standards, reaffirming that States are free to prescribe greater protections for their citizenry. Florida v. Casal, 462 U.S. 637 (1983). Even in Gates, the Supreme Court recognized that a different rule would attach if it were considering actions of state officials under state statutes: “‘Due regard for the appropriate relationship of this Court to state courts,’ demands that those courts be given an opportunity to consider the constitutionality of the actions of state officials...we permit a state court, even if it agrees with the state as a matter of federal law, to rest its decision on an adequate and independent state ground.” Gates, 462 U.S. at 221-22. In California v. Ramos, the Supreme Court, speaking through Justice O’Connor, reiterated that:
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“It is elementary that States are free to provide greater protections in their criminal justice system than the Federal Constitution requires.” California v. Ramos, 463 U.S. 992 (1983). Again, as set out above, Texas has a statutory exclusionary rule, Tex. R. Cr. P. 38.23. However, note that the Texas Court of Criminal Appeals, in an en banc opinion, held that the Texas Constitution contains no requirement that a seizure or search be authorized by a warrant, and any seizure or search that is otherwise reasonable will not be found to be in violation of Texas Constitution because it was not authorized by a warrant. Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998). Additionally, the court added that it had “expressly conclude[d] that this court, when analyzing and interpreting article I, section 9 of the Texas Constitution, will not be bound by Supreme Court decisions addressing the comparable Fourth Amendment issue,” quoting Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991); see also Polk v. State, 704 S.W.2d 929, 934 (Tex. Crim. App. 1986); Oliver v. State, 711 S.W.2d 442, 445 (Tex. App.—Fort Worth, 1986) [the independent source and inevitable discovery exceptions to the judicially created exclusionary rule do not apply to article 38.23 and will not, short of an amendment]; Com. v. Upton, 476 N.E.2d 548 (1985) [twopronged Aguilar-Spinelli test retained for state law purposes instead of the Gates totality of the circumstances standard. Court noted that the Aguilar standard had been working well for twenty years, encouraged careful police work and tended to reduce the number of unreasonable searches]; State v. Jackson, 688 P.2d 136 (Wash. 1984).
It should be noted, however, that even if a state
provides protections greater than those required by the Constitution, it does not necessarily trigger constitutional protections. See Virginia v. Moore, 553 U.S. 164 (2009) [Fourth Amendment did not require exclusion of evidence obtained as a result of a search based on an arrest permission under federal constitutional protections but illegal under state law].
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SEVERAL STATES HAVE REJECTED ANY LEON “GOOD FAITH” EXCEPTION A number of state courts rejected the Leon “good faith” exception to the exclusionary rule on state constitutional grounds: “By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court’s decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and benefits of creating a good faith exception to the federal exclusionary rule. This empirical assessment can inform this Court’s decision on the good faith exception only to the extent that it is persuasive. If the assessment is flawed, this Court cannot simply accept the conclusion the Supreme Court draws from it. To do so would be contrary to our obligation to ensure that our state exclusionary rule effectuates [our State Constitutional provisions], and would deserve those rights. “When the [United States Supreme] Court’s analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the ‘costs’ of excluding illegally obtained evidence loom to exaggerated heights and where the ‘benefits’ of such exclusion are made to disappear with a mere wave of the hand.” “The exclusionary rule’s deterrent effect, however, does not rest primarily on ‘penalizing’ an individual officer into future conformity with the Constitution. Rather, it rests on ‘its tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally.’...It creates an incentive for the police as an institution to train its officers to conform with the Constitution. Consequently, the important question is not whether it is of any benefit to ‘penalize’ the objectively reasonable conduct of an individual officer, but rather whether failure to do so will lower the incentive for institutional compliance.” State v. Oakes, 598 A.2d 119 (Vt. 1991); see also Com. v. Edmunds, 586 A.2d 887, 899 (Pa. 1991). “Indeed, we disagree with that Court’s suggestion in Leon that we in Pennsylvania have been employing the exclusionary rule all these years to deter police corruption. We flatly reject this notion. We have no reason to believe that police officers or district justices in the Commonwealth of Pennsylvania do not engage in ‘good faith’ in carrying out their duties. What is significant, however, is that our Constitution has historically been interpreted to incorporate a strong right of privacy, and an equally strong adherence to the requirement of probable cause under Article 1, Section 8. Citizens in this Commonwealth possess such rights, even where a police officer in ‘good faith’ carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause. To adopt a ‘good faith’ exception to the exclusionary rule, we believe, would virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.” Com. v. Edmunds, 586 A.2d at 399. 58
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“Initially, we note that the exclusionary rule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.... If we were to adopt the good faith exception, our practice of declining to address doubtful constitutional issues unless they are essential to the disposition of a case would preclude our consideration of probable cause beyond reviewing whether an officer had an ‘objectively reasonable’ belief in its existence. Absent a meaningful necessity to review probable cause determinations, we conclude that close cases will become ‘both the hardest to decide and the easiest to dispose of under the good faith exception; in such cases the officer’s objective good faith is clearest’...In short, we are simply unable to sanction a practice in which the validity of search warrants might be determined under a standard of ‘close enough is good enough instead of under the ‘probable cause’ standard mandated by article 1 section 7, of our state constitution.” State v. Marsala, 579 A.2d 58 (1990), remanded, 620 A.2d 1293 (Conn. 1993). See also State v. Guzman, 842 P.2d 660, 672, 677 (Idaho 1992). “In sum, the United States Supreme Court has abandoned the original purposes of the exclusionary rule as announced in Weeks and adopted by this Court in Arregui, in that the federal system has clearly repudiated any purpose behind the exclusionary rule other than that of a deterrent to illegal police behavior. Thus, the change in federal law has provided an impetus for a return by this Court to exclusive state analysis.... The exclusionary rule unencumbered by the good faith exception provides incentives for the police department and the judiciary to take care that each warrant applied for and issued is in fact supported by probable cause. In addition to encouraging compliance with the constitutional requirement that no warrant shall issue but upon probable cause, it also lessens the chances that innocent citizens will have their homes broken into and ransacked by the police because of warrants issued upon incomplete or inaccurate information. We believe these are laudable effects of the exclusionary rule which appear to have gone unrecognized by the Leon majority.” State v. Guzman, 842 P.2d at 672, 677. “The Leon good faith exception contemplates that appellate courts defer to trial courts and trail courts defer to the police. It fosters a careless attitude toward details by the police and issuing judicial officers and it even encourages them to attempt to get away with conduct which was heretofore viewed as unconstitutional.... The decision in Leon represents a serious curtailment of the Fourth Amendment rights of the individual. But under the broader protection guaranteed the individual under our State Constitution, the State is not permitted to introduce evidence in its case in chief which has been seized without probable cause.” State v. Novembrino, 491 A.2d 37, 45-46 (N.J. 1985). “Whether or not the police acted in good faith here, however, the Leon rule does not help the People’s position. That is so because if the People are permitted to use the seized evidence, the exclusionary rule’s purpose is completely frustrated, a
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premium is placed on the illegal police action and a positive incentive is provided to others to engage in similar lawless acts in the future. We therefore decline, on State constitutional grounds, to apply the good-faith exception the Supreme Court stated in United States v. Leon.” People v. Bigelow, 488 N.E.2d 451 (N.Y. 1985); See also State v. Grawien, 367 N.W.2d 816 (Wisc.), rev. denied, 371 N.W.2d 375 (1985); State v. Joyce, 639 A.2d 1007 (1994). Other state courts have come to the same conclusion on statutory grounds. See Com. v. Upton, 476 N.E.2d 548 (Mass. 1985); Gary v. State, 422 S.E.2d 426 (Ga. 1992), aff’d, State v. Gary, 432 S.E.2d 123 (Ga. 1993). But see State v. Wills, 524 N.W.2d 507 (Minn. App. 1994); Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990). Texas has a statutory exclusionary rule, Tex. R. Cr. P. art. 38.23(a) which provides that: “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” TEX. R. CRIM. P. Art. 38.23(a). Tex. R. Cr. P. Art. 38.23(b) provides that: “It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based upon probable cause.” TEX. R. CRIM. P. Art. 38.23(b). The Texas Court of Criminal Appeals has interpreted the language of this particular statute to constitute an express legislative rejection of any Leon “good faith” exception. “We also note the appeals court was incorrect in finding the statute a codification of United States v. Leon,...because Art. 38.23(b) requires a finding of probable cause, while the exception enunciated in Leon appears more flexible in allowing a good faith exception if the officer’s belief in probable cause is reasonable. Thus, we must direct our attention to the validity of the warrant and affidavit without recourse to any ‘good faith’ exception to the warrant requirement.” Gordon v. State, 801 S.W.2d 899, 912–13 (Tex. Crim. App. 1990).
SUBJECTIVE INTENT OF THE OFFICERS The Supreme Court has repeatedly held that the “motivations of individual officers,” their “subjective intentions play no role in ordinary probable cause Forth Amendment analysis.” Whren 60
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v. U.S., 517 U.S. 806 (1996).
Supreme Court reiterates that it will “not entertain Fourth
Amendment challenges based on the actual motivations of individual officers.” “A traffic-violation arrest will not be rendered invalid by the fact that it was ‘a mere pretext for a narcotics search.” Arkansas v. Sullivan, 532 U.S. 769 (2001). Furthermore, in a unanimous opinion the Supreme Court held that officers may enter a residence without a warrant where there exists an emergency, regardless of the officers “subjective intent.” See Brigham City Utah v. Stuart, 547 U.S. 398, 405 (2006) (“[i]t therefore does not matter here…whether the officers entered the kitchen to arrest respondents and gather evidence against them or to assist the injured and prevent further violence.” The distinction between an “inventory” and a “search” is “based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence of crime.” Florida vs. Wells, 495 U.S. 1 (1990). In City of Indianapolis v. Edmond, “[t]he primary purpose of the Indianapolis narcotics checkpoints is in the end to advance the general interest in crime control…. We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes.” 531 U.S. 32 (2000). The Court held that it “cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.” However, in practice, courts, of necessity, regularly look to an officers, purpose or subjective intent when making such determinations. For instance, in Bond v. U.S., an officers purpose in squeezing a bag in a closed compartment was “exploratory”, and thus a “physical manipulation of petitioner’s bag [that] violated the Fourth Amendment.” 529 U.S. 334, 339 (2000). In U.S. v. Green, officers could not search the passenger compartment of a vehicle pursuant to New York v. Belton, where Defendant was arrested some six to ten feet away from his vehicle.
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“The principle behind Belton and Chimel is [protection of] police officers and citizens who may be standing nearby from the actions of an arrestee who might gain access to a weapon or destructible evidence…. Although Green tried to flee…at the time the search occurred he was handcuffed and lying face down on the ground surrounded by four police officers, approximately six to ten feet from his vehicle.… Because none of the concerns articulated in Chimel and Belton regarding law enforcement safety and the destruction of evidence [were] present in this case, the Government cannot justify the search of Green’s vehicle under Belton or Chimel.” U.S. v. Green, 324 F.3d 375, 379 (2003). Driver’s license roadblocks used to enforce general criminal investigations are prohibited, in Texas. “While the statute purports to give peace officers the right to stop and detain motorists for the limited purpose of checking their driver’s or operator’s licenses, it does not authorize fishing expeditions.” Meeks vs. State, 692 S.W.2d 504 (1985).
INVADING THE THRESHOLD OF ONE’S HOME “[T]he Fourth Amendment has drawn a firm line at the entrance to the house, holding that absent exigent circumstances, the threshold of the home may not reasonably be crossed without a warrant.” Payton v. New York, 445 U.S. 573 (1980). Police must obtain an arrest warrant to arrest someone in their home, even where the suspect voluntarily opens the door and exposes himself to public view in response to police knocks. Payton establishes a bright-line rule that “any physical invasion of the structure of the home, ‘by even a fraction of an inch,’ is too much.” McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007).
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CONSENSUAL SEARCHES (CO-OCCUPANT’S REFUSAL)
In Georgia v. Randolph, 547 U.S. 103 (2006), the Court held that law enforcement officers’ warrantless search of a shared home pursuant to the consent of one resident violated the Fourth Amendment rights of another resident who is present and expressly objects to the search. The Court reasoned that the Fourth Amendment’s prohibition of unreasonable searches and seizures forbade law enforcement officers to conduct a warrantless search of a home pursuant to the consent of the wife when the husband was present on the scene and objected to the search.
REMOVING THE NON-CONSENTING SPOUSE FROM PREMISIS Fernandez v. California, 571 U.S. 292 (2014). Police entered the Fernandez residence, responding to a family disturbance. When officers asked for consent to search Fernandez refused. After arresting and removing Fernandez from the premises, those same officers returned about an hour later, and after obtaining his wife’s consent proceeding to search the home. Justice Alito, writing for the majority, noted: “[t]he Court’s opinion [in Randolph] went to great lengths to make clear that its holding was limited to situations in which the objecting occupant is present.” Id. at 301. The Court held “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” Id. at 303. Justices Scalia and Thomas concurred in the judgment, yet wrote separately to state that they would “find this a more difficult case if it were established that property law did not give petitioner’s cotenant the right to admit visitors over petitioner’s objection.” Id. at 1138 (Scalia, J., concurring). This rationale is consistent with Justice Scalia’s previously employed reasoning in
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U.S. v. Jones, 565 U.S. 400 (2012) and Florida v. Jardines, 569 U.S. 1 (2013), where he used property law to decide Fourth Amendment issues. In their dissent, Justices Ginsburg, Sotomayor, and Kagan note that the case should have been easily resolved adhering to the warrant requirement. “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.” Fernandez v. California, 571 U.S. 292 (2014).
EXIGENT CIRCUMSTANCES Kentucky v. King, 563 U.S. 452 (2011) Although warrantless searches are presumptively unreasonable under the Fourth Amendment, the Court has carved out exceptions to that general rule for (among other things) exigent circumstances, such as the imminent destruction of evidence. The lower courts had held that the exigent circumstances rule did not apply when the exigency was created by police conduct, but there was no consensus on how to determine when police impermissibly create such exigencies. In Kentucky v. King, the Court, in an opinion by Justice Alito, held that the exigent circumstances rule applies as long as the police do not use an actual or threatened violation of the Fourth Amendment to gain entry to a premises. The case arose from efforts by police to follow a suspected drug dealer into an apartment building. Although the officers were unsure which apartment the suspect had entered, they smelled marijuana wafting from one apartment: they then knocked on that door and identified themselves as police. When they heard shuffling noises inside the apartment after the knock, the police believed evidence was being destroyed and entered the apartment without a warrant; inside, they found respondent Hollis Deshaun King, along with drugs and drug paraphernalia.
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In reaching its holding, the Court rejected several other tests adopted by lower courts generally and the Kentucky Supreme Court in this case: it reasoned, for example, that a “bad faith” requirement would be inappropriate because only objective reasonableness is relevant; that a “reasonable foreseeability” test would be too unpredictable and difficult to quantify; that requiring police to get a warrant as soon as they have probable cause would “unjustifiably interfere[] with legitimate law enforcement strategies” and is inefficient; that a test that inquires into whether police used standard or good investigative tactics would “fail[] to provide clear guidance for law enforcement officers”; and that a test that examines whether the police action “would cause a reasonable person to believe that entry is imminent and inevitable” turns on too many “subtleties.” The Court explained that its test will still provide “ample protection for the privacy rights that the Amendment protects.” Occupants may still decline to open the door or speak with police, and if they choose to open the door they can refuse to answer questions or allow the police to come inside. “Occupants who…elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue,” the Court warns. In her dissent, Justice Ginsburg contends that the Court’s decision “arms police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases”. In a largely rhetorical question, she also asks whether our homes will actually remain secure “if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity[.]” To maintain the protections of the Fourth Amendment, she argues, the exigent circumstances must exist “when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.” Justice Ginsburg notes that if the police had not knocked, no evidence would have been destroyed; she emphasizes that even the Court’s opinion concedes that “[p]ersons in possession of
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valuable drugs are unlikely to destroy them unless they fear discovery by the police,” and here the suspects would not have anticipated police discovery but for the knock. The police could have posted officers outside the apartment while obtaining a warrant for entry because there was “very little risk” that the evidence would have been destroyed while awaiting a warrant. In its opinion, the Kentucky Supreme Court had assumed without deciding that exigent circumstances were present in this case, and the Court’s opinion did not resolve that question, instead leaving that factual question open for the Kentucky Supreme Court to decide on remand.
WARRANTLESS BLOOD DRAW Missouri v. McNeely, 569 U.S. 141 (2013). Shortly after 2am, a Missouri police officer stopped McNeely’s truck after observing him speed and cross the centerline repeatedly. Id. After failing field-sobriety tests and declining to take a portable breath analysis test, McNeely was arrested. Id. While in transport to the station house, McNeely indicated that he would refuse to take a breath test at that location. Id. Without attempting to secure a warrant, the officer took McNeely to the hospital. Id. There, he advised McNeely that refusal to submit voluntarily to a blood draw to test for alcohol would result in an automatic suspension of his license. Id. McNeely nonetheless refused. Id. “The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent, which was well above the legal limit of 0.08 percent.” Id. The Court noted that a warrantless search of a person is reasonable only if it falls within a recognized exception. Id. at 148 (citing United States v. Robinson, 414 U.S. 218, 224 (1973)). “That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of 66
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privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616 (1989); McNeely, 569 U.S. at 148. The Court noted that there are exigencies which are so compelling that law enforcement may engage in a warrantless search which is, at that time, objectively reasonable. Id. These include: “law enforcement’s need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47–48 (2009) (per curiam), engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42–43 (1976), or enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509–510 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. See Cupp v. Murphy, 412 U.S. 291 (1973); Ker v. California, 374 U.S. 23, 40–41 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because “there is compelling need for official action and no time to secure a warrant.” Tyler, 436 U.S., at 509; McNeely, 569 U.S. at 159 (emphasis added). The Court went on to note that “[w]hether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” Id. at 145. “While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake.” Id. at 158. Further, “the general importance of the government’s interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impracticale in a particular case.” Id. at 160. Writing for another 5 to 4 majority, Justice Sotomayor holds that: “…natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all drunk-driving cases, and instead, exigency in this context must be determined case by case based on the totality of the circumstances.” McNeely, 569 U.S. at 145 (2013).
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In a characteristically short dissent, Justice Thomas wrote: “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.” McNeely, 569 U.S. at 176 (Thomas, J., dissenting).
DNA SAMPLE TAKEN AT BOOKING Maryland v. King, 569 U.S. 435 (2012). In 2009, Alonzo King was arrested for assault. King, 569 U.S. at 440. As part of the booking procedure for serious crimes used in Wilcomico County, Maryland, King’s DNA sample was taken by applying a buccal swab to the inside of his cheeks. Id. The DNA was found to match that from a rape case, six years prior. Id. The Court of Appeals of Maryland later “ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person” and set aside his conviction. Id. In an opinion authored by Justice Kennedy, the Supreme Court reversed the judgment of the Maryland court. Id. Justice Kennedy noted that “[a]lthough the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established.” Id. at 1968. The Justice went on to note that “[a] buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no ‘surgical intrusions beneath the skin.’” Id. at 446 (citing Winston v. Lee, 470 U.S. 753, 760 (1985)). In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur, 531 U.S. 326 (2001).
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“Those circumstances diminish the need for a warrant, either because ‘the public interest is such that neither a warrant nor probable cause is required,’ or because an individual is already on notice, for instance because of his employment, or the conditions of his release from government custody, that some reasonable police intrusion on his privacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Maryland v. King, 569 U.S. 435, 447 (2013) (internal citations omitted). Under this background, Justice Kennedy went on to note that the Maryland DNA Collection Act, which allowed the collection of King’s DNA, calls for “all arrestees charged with serious crimes [to] furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks.” Id. at 447–448. In this scenario, the arrestee is “already in valid police custody for a serious offense supported by probable cause.” Id. Justice Kennedy also described how he determined the sample taking to be reasonable when compared to the interest served. “The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” Id. Further, “[a] suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.” Id. at 450. In conclusion, Justice Kennedy offered: In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent, not only so that the proper name can be attached to his charges, but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. King, 569 U.S. at 465-466.
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Justice Scalia in his dissent, which was joined by Justices Ginsburg, Sotomayor, and Kagan, Justice Scalia sarcastically opined that: “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” King, 569 U.S. at 482 (Scalia, J., dissenting).
DEADLY FORCE AND THE FOURTH AMENDMENT Mullenix v. Luna, 136 S.Ct. 305 (2015) (per curiam). In Mullenix, a police officer approached Israel Leija, Jr., at a drive-in restaurant with an arrest warrant. 136 S.Ct. 305, 306 (2015). The suspect next took police on a high-speed chase for nearly 20 minutes at speeds between 85 and 100 miles per hour. Id. Leija called police dispatch twice during the chase, claiming he had a gun and threatening to shoot at the police if they did not terminate their pursuit. Id. Trooper Chadrin Mullenix and other officers continued to pursue Leija. Officer Mullenix drove to a nearby location to set up spikes to stop the suspect, but after learning that other spikes had been set up at different locations, he began to consider shooting at Leija’s car to disable it instead. Id. When Leija’s car approached, Mullenix fired six shots, the car struck the spike strips, hit the median and rolled several times. Id. at 307. It was later determined that Leija died as a result of being shot my Mullenix. Id. Respondents sued Mullenix, alleging he violated the Fourth Amendment by using excessive force against Leija. Id. Mullenix moved for summary judgment, arguing he was entitled to qualified immunity, but the District Court denied his motion. Id. The District Court found that there were genuine questions of fact regarding whether, under the
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circumstances, Mullenix acted as a reasonable officer would have. Id. Mullenix appealed, but the Fifth Circuit affirmed and subsequently denied his petition for a hearing. In a per curiam opinion, the Court held that there was no clearly established law that the use of deadly force directed at a fleeing suspect posing a danger to others violates the Fourth Amendment. The Court held that the proper question in such scenarios is whether, under the specific context of the case, the Fourth Amendment prohibited the officer’s conduct. Id. at 308. The Court concludes that because it was not clearly established that Officer Mullenix’s actions were inappropriate under the specific circumstances, the appellate court and district court erred in holding that he was not entitled to qualified immunity. Id. at 312. In a concurring opinion, the late Justice Scalia articulated that it was conceded in the case that Mullenix did not shoot to kill or wound Leija, but only to cause the car to stop by destroying the engine. Id. at 313. Scalia wrote that the Fourth Amendment requires us to ask whether it was reasonable to shoot at the engine in light of the risk Leija. Id. Justice Sotomayor dissented, arguing that it was clear under Fourth Amendment precedent that an officer in Mullenix’s position should not have acted as he did unless there was a significant interest that outweighed the intrusion into Leija’s Fourth Amendment rights.
Id.
Justice
Sotomayor asserts that under the circumstances, Mullenix had no plausible reason to choose to shoot at the suspect rather than wait for the results of the spike strips. Id. at 315. She concludes that because of this, she would hold that Mullenix violated Leija’s “clearly established right to be free of intrusion absent some governmental interest.” Id. Sotomayor also asserts that the majority focused on the wrong legal question by dwelling on the imminence of the threat posed by the suspect. Id. at 316.
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EROSION OF THE EXCLUSIONARY REMEDY Given the steady erosion of that remedy in recent years, Justice Gorsuch’s views may prove critical, particularly given that many of the opinions limiting the application of the exclusionary remedy were decided by a 5 to 4 vote on the Court. Obviously, Gorsuch and Kavanagh’s vote will prove critical with respect to whether the exclusionary rule will continue as an effective and meaningful remedy for Constitutional violations. This past decade has seen a trend toward a much more forgiving attitude when it comes to illegal and unconstitutional police conduct. The Court’s new majority seems increasingly willing to sacrifice citizens’ Constitutional rights and liberties in order to obtain evidence and convictions of those that our Constitution and those same officers are supposed to protect. For example, in Hudson v. Michigan, 547 U.S. 586 (2006), Justice Scalia, writing for a 5 to 4 majority, opines that the Court has never held evidence inadmissible, simply because it was obtained by reason of an unconstitutional search or seizure. “We have never held that evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.” (emphasis supplied). In Herring v. U.S., 555 U.S. 235 (2009) the Chief Justice, writing for another 5 to 4 majority, takes this concept one step further, holding that in order to warrant suppression of evidence obtained by exploitation of an illegal search or seizure the law enforcement’s unconstitutional conduct must have been “culpable” and “deliberate.” “Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence, attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence…The principal [social] cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that offends basic concepts of the criminal justice system.” 72
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In Davis v. U.S., 569 U.S. 229 (2011) Justice Alito goes even further, taking issue with Scalia’s insistence that the Court has never held that evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Justice Alito announces that the Court has now “abandoned the old ‘reflexive’ application” of the exclusionary remedy, opting instead for a balancing test, a “cost-benefit analysis,” limiting exclusion to those where the police’ misconduct is culpable and flagrant. “We came to acknowledge the exclusionary rule for what it undoubtedly is—a ‘judicially created remedy’ of the Court’s own making…We abandoned the old, ‘reflexive’ application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits…We also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct at issue.” Again, Justice Alito, writing for a 6-member majority,24 makes clear that whether courts will apply the exclusionary remedy depends upon a cost/benefit balancing test. “But when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful…the ‘deterrence rationale loses much of its force,’ and exclusion cannot ‘pay its way.’”
BURDEN SHIFTING However, there is considerable difference between excusing illegal police conduct (not applying an exclusionary remedy) where it can be shown to have been engaged in “reasonable good faith,” and shifting the burden to the accused to show that same was “deliberate,” “culpable,” and “flagrant.”
24 Kagan joined Alito’s opinion and Sotomayor wrote a concurrence.
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THE VANISHING “FRUIT OF THE POISONOUS TREE” DOCTRINE s
Even more troubling is the most recent of these exclusionary rule cases. In Utah v. Strieff, 136 S.Ct. 2056 (2016), Justice Thomas, writing for a 5-member majority,25 held that an outstanding warrant, discovered as the direct result of his illegal stop, admittedly without reasonable suspicion, somehow “attenuated” the contraband discovered incident to that arrest. “To enforce the Fourth Amendment's prohibition against ‘unreasonable searches and seizures,’ this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits…We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer's discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.” Strieff, 136 S.Ct. at 2059. This balancing test, weighing the “deterrence benefits” of applying the exclusionary rule against its “social costs,” described by the Court as “letting guilty and possibly dangerous defendants go free,” is a test that will leave the accused citizen with a difficult, if not impossible burden. In her dissent, Justice Sotomayor seems to understand the sophistry of accepting the prospect that we have been promised fundamental Constitutional rights, without providing any meaningful remedy for their violation. “It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right. When ‘lawless police conduct’ uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.” Strieff, 136 S.Ct. at 2065 (internal citations omitted).
25 This opinion, written after Justice Scalia’s death, was 5 to 3, with Justice Breyer joining the
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Whether a long-time, well-settled doctrine or a fresh new concept, the impact of this new cost/benefit balancing test upon remedying constitutional violations is obvious. It would appear that henceforth it may become incumbent upon defense counsel not just to establish that the contraband or incriminating evidence was discovered by reason of a Constitutional violation, but to demonstrate that the police conduct was culpable, deliberate and flagrant, as well as illegal. Moreover, Gorsuch’s vote could be critical to any interpretation and/or reevaluation of this more “rigorous” test for whether to provide a meaningful remedy for Constitutional violations, particularly given the close majority insistent upon this requirement. Perhaps Justice Sotomayor’s pithy and telling dissent will have some impact on our junior Justice: “We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”
CONCLUSION “Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers—one at a time.” Kaley v. U.S., 571 U.S. 320 (2014), Roberts, Ch.J., dissenting. The Chief Justice is speaking to each one of us, Brothers and Sisters, paying tribute to the critically important role our defense function plays in the criminal justice system we all serve. Our collective voices are strong and our skills and talents formidable. Let us stand up to injustice and raise our voices in protest. We owe that to ourselves, our clients and our profession.
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Texas Criminal Defense Lawyers Association
Sex, Lies & Social Media
39th Annual Rusty Duncan Advanced Criminal Law June 18-20, 2026 Hyatt Regency Riverwalk San Antonio, Texas
Topic: Sex, Lies, & Social Media
Speaker:
Stephen Ross Johnson Richie, Johnson & Stovall 606 W. Main Street, Suite 300 Knoxville, TN 37902 johnson@rjs.law email https://www.rjs.law/ website
6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com
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SEX, LIES, and SOCIAL MEDIA: Sex, Lies & Social Media
Subpoenas and the Stored Communications Act Stephen Ross Johnson Ritchie, Johnson & Stovall, P.C. rjs.law
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Pineapple Express 2008
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The Trial of Aaron Burr The Impeachment of Richard Nixon Text Messaging, Facebook, Twitter, Instagram,
Snapchat, Etc
Subpoenas and electronic evidence
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This Court has had little occasion to discuss the contours of the Compulsory Process Clause. The first and most celebrated analysis came from a Virginia federal court in 1807, during the treason and misdemeanor trials of Aaron Burr. …
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United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807). Despite the implications of the Burr decision for federal criminal procedure, the Compulsory Process Clause rarely was a factor in this Court's decisions during the next 160 years. Pennsylvania v. Ritchie, 480 U.S. 39, 55 (1987)
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Aaron Burr (1756 – 1836)
Revolutionary War veteran (Continental Army)
Vice-President of the United States (serving under Thomas Jefferson)
New York State Attorney General
United States Senator
Killed Alexander Hamilton in a duel in 1804 (after Jefferson dropped Burr from the ticked in the 1804 election)
Indicted for treason against the United States in an alleged plot to steal land in the Louisiana purchase
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United States v. Burr, 25 Fed.Cas 30 (1807) Richmond, Virginia Chief Justice John Marshall sitting as the trial judge Parts of alleged letters and papers authored by Burr and
sent to Jefferson intended to be used by the prosecution at trial
Burr sought to subpoena the entirety of the letters and
papers – the entirety of the communications – from the president
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United States v. Burr, 25 Fed.Cas 30 (1807) In a major test of the constitution, Chief Justice Marshall held
Sex, Lies & Social Media
that the right to compulsory process includes the right to a subpoena duces tecum for evidence that may be material to the defense of the accused, even if that subpoena is to the president of the United States
Burr was acquitted of treason (potential penalty was death) One of the letters at issue turned out to have been forged
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United States v. Nixon, 418 U.S. 683 (1974) (establishing test for rule-based pretrial subpoenas duces tecum) -refusing to quash subpoenas where "the identity of the participants and the time and place of the conversations, taken in their total context, permit a rational inference that at least part of the conversations relate to the offenses charged in the indictment"
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State of Tennessee v. Alexander James Johnson and Michael Williams State v. Johnson, 538 S.W.3d 32 (Tenn. Crim. App. 2017), appeal denied (Tenn. Aug. 16, 2017)
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State v. Johnson, 538 S.W.3d 32 (Tenn. Crim. App. 2017), appeal denied (Tenn. Aug. 16, 2017) -interlocutory appeal from quashing of defense subpoenas for text and social media communications
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-prosecution did not have standing to move to quash third party subpoenas -Stored Communications Act, 18 U.S.C. §§ 2701 – 2703, only allows obtaining content of electronic messaging from the service provider by law enforcement pursuant to search warrant, grand jury subpoena, or other law enforcement process -Defense subpoenas duces tecum to witnesses for their social media information and messaging is proper and not covered by Stored Communications Act -Did not decide the issue of whether 6th Amendment compulsory process pierces the SCA limits on defense subpoenas for content
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Facebook, Inc. v. Superior Court, 4 Cal. 5th 1245, 233 Cal. Rptr. 3d 77, 417 P.3d 725 (2018) [1]-The CA Supreme Court concluded that the court of appeal was correct to the extent it found subpoenas that were served on social media providers by criminal defendants unenforceable under the Stored Communications Act, 18 U.S.C. § 2701 et seq., with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted; [2]-However, the court of appeal's determination was erroneous to the extent it held that 18 U.S.C. § 2702 also bars disclosure by providers of communications that were configured by the registered user to be public, and that remained so configured at the time the subpoenas were issued; [ 3]-Under the Act's lawful consent exception, a provider must disclose any such communication pursuant to a subpoena that is authorized under state law.
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Users can download the entirety of their Facebook data Too technical? Propose a forensic expert to extract data under a protective order in order to ensure privacy of passwords, etc, and submit data to in camera review by court for dissemination to counsel for both sides
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Sex, Lies & Social Media
Facebook, Twitter, Instagram, Tik Tok, Snapchat, etc and their messaging applications are the letters of today…. 16
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Federal Rule of Criminal Procedure 17: Subpoenas 17(a) – clerk is to issue subpoena in blank (policy reason is to prevent disclosing subpoenaed witnesses), does not require prior court approval 17(c) – production of items subpoenaed may be produced for inspection by counsel prior to introduction into evidence (if allowed by the court); personal or confidential information about alleged crime victim allowed only by court order *No ability to subpoena materials directly to counsel’s office under the rule
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Sex, Lies & Social Media
Different districts, different restrictions on subpoenas, such as: -Requiring permission in advance from the court for the defense to issue subpoenas -How to deal with subpoenas for confidential information (health records, etc)? -Penn. v. Ritchie in camera review
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Proposed Amendments to Rule 17 Permission in advance from the court for data, items, etc for a non-grand jury subpoena, but court must allow the motion to be filed ex parte
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Subpoena power for trial, detention, revocation, suppression, or any other evidentiary hearing (other hearings are in court’s discretion)
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Slightly less-restrictive than Nixon test: reasonable particularity description, likely to be admissible
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Individual courts can have other requirements by court order or local rule
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Materials can be produced directly to counsel (not just in court)
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Comment deadline Feb. 16, 2026:
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https://www.regulations.gov/docket/USC-RULES-CR-2025-0003/document
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KNOW WHAT TO REQUEST (IN DISCOVERY, WHEN YOU SUBPOENA A DEVICE, or WHEN YOU EXTRACT YOUR CLIENT’S DEVICE)
FULL FILE SYSTEM EXTRACTION NOT UFED LOGICAL NOT UFED READER NOT AXIOM READER
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5/15/2026
https://www.wbir.com/article/news/local/prosecutors-drop-caseagainst-knoxville-man-accused-of-taking-part-in-2021-ambush-ofaustin-east-students/51-4748d7c2-25ce-49db-9108-e6d03ec117d6
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SEX, LIES, and SOCIAL MEDIA: Subpoenas and the Stored Communications Act Stephen Ross Johnson Ritchie, Johnson & Stovall, P.C. rjs.law
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About TCDLA TCDLA began more than 45 years ago as a small, nonprofit association and has grown into a state-of-the-art organization, providing assistance, support, and continuing education to its members. TCDLA provides a statewide forum for criminal defense lawyers and is one of the few voices in the legislature interested in basic fairness in the defense of criminal cases. We are proud that many of our 3,800 members are elite criminal defense professionals in Texas. TCDLA hosts more than 60 seminars each year, providing the highest-quality legal education available for new lawyers as well as seasoned veterans. Our seminars are attended regularly by our members, non-members, judges, and professionals in related fields. Our yearly seminars have increased to over 9,000 people continuing their educational opportunities each year. Join today and become part of a long history of providing services and assistance in the great state of Texas, while accessing valuable resources, services, support, and discounts on seminars, travel, and technology. How to Apply: Submit an application online at tcdla.com Email application to mduarte@tcdla.com Mail application to: Texas Criminal Defense Lawyers Association 6808 Hill Meadow Drive Austin, TX 78736 TCDLA Benefits See the full list at tcdla.com Resources: • Networking opportunities with the best criminal defense lawyers in Texas • Strike Force • TCDLA APP includes criminal codes, statutes, and case law • Online Resources, a library including motions, transcripts, briefs, seminars, & more • Voice for the Defense magazine, the only statewide magazine written specifically for criminal defense lawyers • Listserv connecting our community on important issues • Significant Decisions Report emailed weekly • Legislature lobbyists advocating on behalf of Members • Expert list for experts in a multitude of practice areas • Moot Court provided on request
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