Defending Sex Crime Allegations: Adults & Children

SEMINAR INFORMATION

Date November 30 – December 1, 2023

Location Kalahari Resort 3001 Kalahari Blvd., Round Rock, TX 78665

Course Heather J. Barbieri, Jeff Kearney, & Ryan Kreck

Total CLE Hours 13.0 Ethics: 1.0

SEMINAR INFORMATION

Date November 30 – December 1, 2023

Location Kalahari Resort 3001 Kalahari Blvd., Round Rock, TX 78665

Course Heather J. Barbieri, Jeff Kearney, & Ryan Kreck

Texas Criminal Defense Lawyers Association

Defending Sex Crime Allegations: Adults and Children

Table of Contents

Thursday, November 30, 2023

speakers topic

Dr. Stephen Thorne Understanding the Role of Childhood Memory

Eric Davis Cross Examination

Dr. Nancy Downing Sexual Assault Exams & Understanding Injuries

Elizabeth Berry Preservation of Error & Jury Charges

Sam Bassett Ethical Issues: Defense of Sex Crimes

Frank Sellers Cybercrimes: Sextortion, Revenge Porn, & Other Titillating Topics

Friday, December 1, 2023

speakers topic

Mona Kermani Punishment Phase:Pre-Trial & Trial Strategies

Michael Gross Plea Bargains and Consequences in Sex Crimes

Clay Steadman Investigation of Sexual Assaults & Creative Motions

Michael Heiskell Grand Jury Packets

Texas Criminal Defense Lawyers Association

Round Rock, Texas

Understanding the Role of Childhood Memory

Speaker:

Stephen A. Thorne, Ph.D.

Professional Title Century Gothic 10 pt.

Clinical and Forensic Psychology

1301 S Capital of TX Hwy, Bldg. C, Ste 130 Austin, TX 78746

512.342.1661 phone

512.306.9234 fax

drstephenthorne@yahoo.com email

UnderstandingtheRoleofChildhood Memory

StephenA.Thorne,Ph.D .

TexasCriminalDefenseLawyersAssociation(TCDLA)

DefendingSexCrimeAllegations:AdultsandChildren

RoundRock,Texas November23,2023

(512)342-1661(ph)(512)306-9234(fax) stephenthorne@drstephenthorne.com

Tobeginwith,notallmemories(orstated memories)areaccurateor“real”.Someare, somearen’t.

DefinitionofaFalseMemory(per APA)

“adistortedrecollectionofaneventor,most severely,recollectionofaneventthatnever actuallyhappened”.

APADictionaryofPsychology

MoreAPA

“Evenwhenpeoplearehighlyconfidentthat theyareremembering‘thetruth’oftheoriginal situation,experimentalevidenceshowsthatthey canbewrong.”

APADictionaryofPsychology

“Reallife”exampleofwhythisstuffis important.

McMartinPreschool

ApplicationinaallegedCSAinvestigation?

Atthebeginning.

NationalChildren’sAlliance (NCA)DescriptionofForensic Interviews

“TheCornerstone”

“TheFoundation”

NCAStandardsforAccreditedMembers(2017Edition)

Importanttonote:

“Forensicinterviewsareconductedinamannerthat isdevelopmentallyandculturallysensitive,unbiased, fact-finding,andlegallysound.”(p.20)

NCAaccreditedCAC’smustbeabletodemonstrate thattheirFI’shavesuccessfullycompletedtrainingthat includes(amongotherthings)“childdevelopment”and “suggestibility”.(p.21)

AmericanProfessionalSocietyontheAbuseofChildren (APSAC)PracticeGuidelines(2012)

Importanttonote:

“Interviewersshouldbeknowledgeableaboutbasic conceptsofchilddevelopmentandlinguistics.”(p.10)

“Memorysourcemonitoringistheabilitytorecognizethe sourceofamemoryforanevent.Itisanimportant developmentalconsiderationduringaforensic interview.”(p.11)

THEBASICS–hopefully!

Childhoodvs.AdultMemory

“Childrenarenotsimplyminiatureadults.Assuch,thememory ofthechildissignificantlydifferentfromthememoryofan adult.Furthermore,theabilitytoformmemoriesisnotinnate andinsteaddevelopsoverthefirstnearlytwodecadeslife.”

(Peterson,Jones,Stephens,Gozenman,andBerryhill, Kindlelocation2298-2299;InO’Donohue&Fanetti, 2016-electroniceditionofForensicInterviews RegardingChildSexualAbuse:AGuidetoEvidenceBasedPractice)

Havingsaidthat…

Therearedifferenttypesofmemory,withautobiographicalmemorygenerallybeing themostrelevanttoCSAissues.Currentconsensusinthefieldisthatcapacityfor reliableautobiographicalmemorydevelopsinthefirstdecadeoflife.

AsitspecificallyrelatestoCSA,children5/6yoanduparegenerallythoughttohave thecapacitytobeanaccuratewitnessand/orcompetentinterviewee,BUT–two exceptions:

-Undueinfluence

-Improperinterviewing (Dr.JamesWood)

*variabilitybyage

MoreonAge–andWhyitMatters

“Youngchildren(i.e.,preschoolers)generallyrecalllessinformationthando olderchildren…Preschoolchildrenalsoaremoresusceptibletoincorporating misleadinginformationintotheirreportedmemoriesforeventsthanareolder childrenandadult(Rudy&Goodman,1991)…Moreover,youngchildren(i. e.,youngerthan6)havedifficultyrememberingthesourceoftheirmemories (i.e.,whetherthesourceofamemorywasarealeventoranimaginedone; Foley,Johnson,&Raye,1983).Thus,althoughresearchhasreliably demonstratedthatolderchildrenperformsimilarlytoadults,ithasalso demonstratedthatveryyoungchildrenprovidelessaccuratetestimonythando olderchildrenoradults.”

(Kovera&Borgida,p.188-189;InCeci&Hembrooke,1998ExpertWitnessesinChildAbuseCases:Whatcanandshould besaidincourt)

“Thememorysystemisnotstaticbutisconstructive;itelaborates,deletesandshapes itscontents.”

(Klemfuss&Ceci,p.158/KindleLocation3428;InKuehnleand Connell,2009–electronicversionofTheEvaluationofChildSexual AbuseAllegations:Acomprehensiveguidetoassessmentand testimony).

Cont’d

Memoryisanactiveprocess.Wedonotrecordeventslikeavideocameraand thenrecallthematwill.Becauseofthisconstructivenatureofmemory, reportsmaybeinaccuratebecauseofanumberoffactorsthatintrudeatthe timeoftheinitialrecording(encoding)oftheevent,duringthestorageofthe event,oratthetimeoftheretrievaloftheevent.Wesometimesadd,delete andshapememoriesofourexperiences…Thus,whatgetsretrievedisrarelya directmatchoftheoriginalevent.”

(p.4;2009paperauthoredbyLauraPetersonaspart ofTCDLApresentationtitled“HandlingtheSex OffenderCase”)

Impactof“theprocess”

“Ifolderchildrenoradultsareaskedtoreporteventsthatoccurredpriortoage 3or4(i.e.,duringthephaseofinfantileamnesia),itishighlyunlikelythat theirreportswillbebasedonclearordetailedmemoriesoftheeventsin question.Instead,theymayreconstructwhat‘probably’happenedbasedon conversationswithothers(e.g.,parents),interviewerandtherapistsuggestions, photographs,orfromvaguememoriesthathavebeenreinterpretedovertime andmixedwiththeircurrentknowledgeandbeliefs.”

(LaRooy,Malloy,andLamb,p.52/Kindlelocation1604-1615;InLamb,La Rooy,Malloy,&Katz,2011–electroniceditionofChildren’sTestimony:A handbookofpsychologicalresearchandforensicpractice)

*importanttonote–werememberlessthanwethinkwedo!

“Contamination”

Inshort,theprocesscanbecontaminated.

Suggestibility

Leading/suggestivequestionsand/ornewinformation(e.g., “otherpeople”)→compliance/acquiescence

Impactofcommentand/orquestiontype(byFI,counselor, parent,familyfriend,etc.)oncontentand/oraccuracyofchild’s statement.

*oftensubtle,notintentional

Suggestibilitycont’d

“Regardlessoftheresearchsetting,delaybetweentheoccurrencesofthetobe-rememberedeventandquestioninghasadverseeffectsonthestrengthof thememorytrace…Interviewersshouldrecognizethatchildreninterviewed afterasubstantialdelaymightrequiremoretimetoretrievedetailsfromrecall memory,andtheyshouldalsobemorecautiouswhenquestioningchildren afterlongdelaysbecausesuchchildrenaremoresusceptibletosuggestion.”

(Lamb,Hershkowitz,Orbach,Esplin,Kindlelocation1060,2008; ElectroniceditionofTellMeWhatHappened:Structured investigativeinterviewsofchildvictimsandwitnesses)

InterviewConsiderations

Efficiencyvs.Accuracy

Closed-ended?’svs.Open-ended?’s

“Becauseofthelimitedamountofinformationgiveninresponsetoopenendedquestions,interviewerstypicallymustrelyonmorespecificquestions whenworkingwithyoungerchildren.Unfortunately,whenpreschoolchildren areaskedspecificquestions,theiraccuracydecreases,andwhenthequestions areoftheyes/notype,theiraccuracymaynotbeabovethelevelofchance (Clubb&Follmer,1993;Gordon&Follmer,1994).”

(Gordon,Schroeder,Ornstein,Baker-Ward,p.103/Kindlelocation 2834;InNey,1995–electroniceditionofTrueandFalseAllegations ofChildSexualAbuse:Assessmentandcasemanagement)

Moreoninterviews…

“Whenaninterviewersolicitsinformationthroughleadingandother nonprofessionalquestions,thoseerrorsmayleadtheintervieweetobelieve thatabusehasoccurred.So,interviewersshouldnotuseleadingand suggestivequestions;shouldneverusetheirauthoritytopressforanswers; shouldnotusereinforcementtoencouragedisclosure;shouldnotuse disconfirmationtocorrectthechild’sanswer,particularlywhenthe intervieweesays,“Idon’tknow”;andshouldnotinvitetheintervieweeto speculateananswer.”

Cheung,p.295,2012;ChildSexualAbuse:BestPracticesfor InterviewingandTreatment

CHILDHOODAMNESIA

Texas Criminal Defense Lawyers Association

Round Rock, Texas

Cross Examination

Speaker: Eric J. Davis

Chief of the Felony Trial Division

Harris County Public Defender’s Office

1201 Franklin St. Rm 13

Houston, TX 77002

713.274.6730 phone

713.437.8563 fax

Eric.davis@pdo.hctx.net email

CROSS EXAMINATION

BY: ERIC J.DAVIS

I. Introduction

Cross-examination is perhaps one of the most fundamental components of an accused’s rights at trial. Through cross examination the accused is able to challenge the evidence and assertions against him. Through cross-examination, lies can be exposed and the truth advanced. Effective and meaningful cross-examination can vindicate the innocent. Despite the intrinsic value of this constitutional right to ensure justice, numerous people accused of crimes are denied effective cross examination in their cases – some are denied this tool of justice because of the courts… others because of their advocates.

Cross-examination is one of the most difficult trial skills to master. Few attorneys have the raw talent to conduct an effective, impromptu cross-examination. Most lawyers struggle with cross-examination. Besides talent; there are numerous factors that impact counsel’s conduct of cross-examination including training, experience, preparation, organization and creativity. To an extent, courts have restricted cross-examination in some cases.

It is my hope that through this paper, you will be presented with an effective tool to enable you to conduct an effect cross-examination regardless of your level of skill or expertise. It is also the goal that the experienced practitioner will be presented with a tool to enable him or her to sharpen their skill as a cross-examiner.

II. Cross-examination is a Right Worthy of Protecting

The Sixth Amendment’s Confrontation Clause provides that, “In all criminal prosecutions, the Accused shall enjoy the right . . . to be confronted with the witnesses against him.” The United States Supreme Court has held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965).

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

And in Crawford v. Washington, 541 U.S. 36, 42-52 (U.S. 2004), the Supreme Court expanded an accused’s right to cross examine.

The Supreme Court has observed that the right to confront one’s accusers is a concept that dates back to Roman times. See Coy v. Iowa, 487 U.S. 1012, 1015, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988); Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int'l L. 481 (1994). The framers of the Constitution would get this concept from the common law. English common law has long differed from continental civil law in regard to the manner in which witnesses gave testimonyin criminal trials. The commonlaw traditionisoneoflivetestimonyincourtsubjectto adversarialtesting,whilethecivillawcondones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768). Specifically, in Crawford the Supreme Court observed that history supports two inferences about the meaning of the Sixth Amendment:

First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh’s; that the Marian statutes invited; that English law’s assertion of a right to confrontation was meant to prohibit; and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind. Accordingly, we once again reject the view that the Confrontation Clause applies of its own force only to in-court testimony, and that its application to out-of-court statements introduced at trial depends upon "the law of Evidence for the time being." 3 Wigmore § 1397, at 101; accord, Dutton v. Evans, 400 U.S. 74, 94, 27 L. Ed. 2d 213, 91 S. Ct. 210 (1970) (Harlan, J., concurring in result). Leaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices. Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court.

This focus also suggests that not 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 other hand, ex parte examinations might sometimes be admissible under modern

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

hearsay rules, but the Framers certainly would not have condoned them.

The text of the Confrontation Clause reflects this focus. It applies to "witnesses" against the accused in other words, those who "bear testimony." 2 N. Webster, An American Dictionary of the English Language (1828). "Testimony," in turn, is typically "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, likethehistoryunderlyingthe common-lawright of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.

Crawford, 541 U.S. at 42-52. Through Crawford, an accused has the right to examine the maker of any testimonial statements against him. The Supreme Court through the most unlikely source, Justice Scalia, affirmed that the Constitution ensures that every testimonial assertion against the accused should be challenged.

Without Cross-examination, the accused is left with his life and liberty being decided by lies, untruths and examination in private by judicial officers. There is great value in meaningful cross examination.

III. Restrictions on the Scope of Cross-Examination

Courts and the rules of evidence provide some limitation on cross examination. Texas Rule of Evidence 611 provides,

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.

(b) Scope of Cross-Examination. A witness may be cross-examined on any relevant matter, including credibility.

(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:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

IV. Conducting Meaningful Cross-Examination

A. Preparation. Effective and meaningful cross-examination starts with thorough and active preparation. Know your client’s story, the facts and evidence against him. Investigate the facts (people, places and alleged occurrences). Investigate the alleged scene. Analyze the scene against the facts. Investigate people to find out about their backgrounds and their reputations. Investigate their experience and their educational background. Be prepared to challenge the testimonyin light of the “big picture.”

Once you have a good working knowledge of the facts, try to anticipate the testimony of every witnesspriortotrial. Prepareforeachwitness. Considerwhateachwitnessoffersthatcanadvance your client’s story. And prepare to blunt the effect of adverse testimony you anticipate will be offered against your client. Do not be afraid of avoiding cross-examining a witness.

Consider writing out every question in advance. But do not be married to your questions because the testimony might vary from what you anticipate it will be. With experience, one can become more flexible and use an outline or use a list of subjects about which to cross examine. Formulate some questions from known sources of information that you can readily access (police reports, prior testimony, medical records, prior statements, etc.). Formulate some questions that fit the theory of your case.

B. Conducting the Examination. One of the keys to effective cross-examination is to listen. Listen to the answers to questions asked on direct examination and take good notes. Listen for inconsistencies in the evidence as you know it. Listen for illogical answers and answers that are inconsistent with the state’s theme and state’s witnesses. Listen for inconsistencies with common experiences.

Testify. Use cross-examination to tell the jury your client’s story. This is one of the few times the advocate has to opportunity to challenge the assertions of the witness and to advance the client’s position. Take advantage of the opportunity to talk with the jury. Do not just repeat direct examination, unless you do so to discredit it.

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Primarily use leading questions, but do not be afraid to ask non-leading questions when appropriate. Use tools of impeachment - prior statements, prior recorded statements, etc. Use extrinsic evidence or testimony of other witnesses who can contradict the first witness’ untruthful statement. Or use cross-examinationto showbiasor motive to demonstrate to the jurythe witness’ reasonforlying. Ifthewitnesshasnotbeenconsistentinhisorherstatements,impeachthewitness with prior inconsistent statements – video, audio, pre-trial witness interviews, or with statements made to other people. Remember to start and end on a strong note. C. Types of CrossExaminations:

The Soft Cross-examination is a type of cross-examination where in the lawyer modifies the style and/or the content of the cross examination to appropriate the emotions of the case. Instead of being “in your face and aggressive,” the lawyer is aware of the effect of the mode of questioning on the jury. For example, a jury might become upset at a lawyer who aggressively questions a young child. So a lawyer might speak to a child witness gently, as if he were speaking to a child. Additionally, some jurors might see some fact witnesses (like nurses or medical personnel) as simply doing their jobs. They might react adversely to a lawyer who attacked a witness they perceived as merely doing their job. During the soft cross, the lawyer modifies the style of the cross-examination to take into account how a jury might react to the lawyer (seeking to avoid a negative reaction).

The soft cross-examination also involves a modification of the content of the crossexamination. Instead of attacking the witness head on, the lawyer seeks to peel back emotional layers to reveal bias or other elements. For example, in attacking a snitch/cooperating witness a lawyer engaged in a soft cross might focus on the collateral emotional losses that the witness is facing instead of focusing merely on the punishment the witness faces. A typical cross of a snitch might look like this:

Lawyer: Mam, you have agreed to testify against my client in this case, right?

Snitch: Yes.

Lawyer: You are charged in a conspiracy case, true?

Snitch: Yes.

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Lawyer: You are facing twenty years in the pen, true?

Snitch: Yes.

Lawyer: You are saying whatever you can to avoid doing that time, true?

Snitch: I am telling the truth.

Lawyer: But a different truth wouldn’t get your time off, would it?

The content of the Soft cross might look like:

Lawyer: Mam, you are a mother of three, true?

Snitch: True.

Lawyer: You are in jail now?

Snitch: Yes.

Lawyer: You aren’t able to see your kids while you are lock up, are you?

Snitch: No.

Lawyer: You can’t take them to school?

Snitch: No.

Lawyer: You can’t talk to their teachers to find out what’s going on with them can you?

Snitch: No.

Lawyer: You aren’t at home to greet them when they come home from school, are you?

Snitch: No.

Lawyer: The longer you are incarcerated, the less you will be able to do this are you?

Snitch: Yes.

The soft-cross attempts to pull back emotional layers to develop bias, interest or motive. Many lawyers who use this method also employ psychodrama to further develop their cross

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office

examinations. They urge that psychodrama gives them insight into the emotional layers of the witness by helping them “get into the skin of the witness.”

The Story-Telling Cross-examination is another form of cross-examination. A story-telling cross merely tries to tell the story of the witness, of the case, of a theory or of an object through crossexamination. With the story-telling cross an advocate is trying to communicate with and persuade jurors. During the story-telling cross, the advocate is trying to have a conversation with her neighbor over the fence as she is working in her yard. Or the advocate takes the approach that she is having a conversation in the lobby after church. Speak in plain English. (Talk as if you are talking with everydaypeople, otherwise known as potential jurors.) Put away lawyer language like “calling your attention to the date on which the occurrence in question took place” and references to “exiting vehicles.” Real people get out of cars, they do not exit vehicles. So instead of calling the witness’s attention to the date in question in which the occurrence took place, instead simply state “Let’s talk about what you did on April 4, 1968, before you left the Lorraine Hotel after Dr. King was shot.”

Try to use short declarative statements during the story-telling cross-examination. While much of the traditional cross-examination requires control of the witness, it is not necessary to use the “prefixes” and “suffixes” of the leading question format -the prefixes “Is it a fact that . . . ?” “Isn’tit true that.. . ?”orthesuffixes “... ,correct?”or“...,isn’t that true?”or “...,am Icorrect?” You can use these leading question techniques, but you can obtain the information without using them. And they have a tendency to break up the story. For example, “You are James Earl Ray.” You do not need to say “Isn’t it a fact that you are James Earl Ray?” or “You’re James Earl Ray, correct?” Just state the fact and have the witness affirm it or deny it. Generally, during the story-telling cross most of the answers to questions should be “Yes.” That is because you are using the cross-examination to tell your story and enhance your credibility. It is also a fast, efficient way to provide the jury with information. It also allows the cross-examiner to tell a storyandtostatethefacts. Theonlyrolethewitnessplaysistoaffirmthetriallawyer’sstatements.

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

A good way to employ the story-telling cross-examination is to first write the story you want to tell through the witness as a narrative. Simply write out a paragraph (using short, declarative sentences) telling the story you want to tell. For example,

Martin Luther King, Jr., was a prominent American leader of the African-American civil rights movement. Dr. King won the Nobel Peace Prize. He was assassinated at the Lorraine Motel in Memphis, Tennessee, on April 4, 1968. He was 39 years old when he was assassinated. On June 10, 1968, James Earl Ray was arrested in London at Heathrow Airport. Ray was a fugitive from the Missouri State Penitentiary. He was later extradited to the United States, and charged with the crime. On March 10, 1969, Ray entered a plea of guilty. He was sentenced to 99 years in the Tennessee state penitentiary. Ray later made many attempts to withdraw his guilty plea. He was unsuccessful. He died in prison on April 23, 1998.

The question and answer might look like this,

Q. Martin Luther King, Jr., was a famous?

A. Yes.

Q. He was a leader of the civil rights movement in the 60s?

A. Yes.

Q. The Civil Rights Movement was a National Movement?

A. Yes.

Q. It ended Jim Crow?

A. Yes.

Q. It ended the forced separation of people by race in our nation?

A. Yes.

Q. Dr. King won the Nobel Peace Prize?

A. Yes.

Q. The Nobel peace prize was an international award?

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office

A. Yes.

Q. He was one of the youngest winners of the prize ever?

A. Yes.

Q. He was assassinated?

A. Yes.

Q. He was assassinated at the Lorraine Motel in Memphis, Tennessee?

A. Yes.

Q. He was killed on April 4, 1968?

A. Yes.

Q. He was only 39 years old when he died?

A. Yes.

Q. On June 10, 1968, James Earl Ray was arrested in London at Heathrow Airport? A. Yes.

Q. Ray was a fugitive from the Missouri State Penitentiary?

A. Yes.

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office

Q. He was later extradited to the United States?

A. Yes.

Q. He was charged with killing Dr. King.

A. Yes.

Q. On March 10, 1969, Ray pled guilty to killing King.

A. Yes.

Q. He was sentenced to 99 years in the Tennessee state penitentiary.

A. Yes.

The Traditional Cross-examination generally serves two primary purposes and they manifest themselves in either a Destructive Cross or a Supportive Cross. The goal of a destructive cross is to discredit the testifying witness or another witness. This type of cross is designed to reduce the credibility of the witness or the persuasive value of the opposition’s evidence. The use of impeachment material is a key to destructive cross, as it is the ability to attack and discredit the bases for the witnesses’ statements or opinions. The questioner’s goal is to establish control of the witness. The goal of the supportive cross is to bolster the questioner’s own theory of the case and tell the defense story. It should develop favorable aspects of the case not developed on direct examination or expand on these aspects. This testimony may support your witnesses or help to impeach other witnesses.

Control is the key to the traditional cross examination. The lawyer never asks a question to which he does not know the answer (or what the answer will be). The lawyer always asks leading questions with a suffix or prefix. The lawyer never relinquishes control.

V. Impeachment

Raising prior inconsistent statements is the most frequently used impeachment method at trial. More than any other impeachment method, however, impeaching with prior inconsistent statementsrequires aprecisetechniquetobeeffectivebeforeajury. Ruleofevidence613,requires

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office

that the witness have an opportunity to admit, deny or explain making the inconsistent statement. Prior inconsistent statements can be either collateral or non-collateral. If it is non-collateral, and the witness does not admit making it, you must prove it up with extrinsic evidence.

The basic structure of the impeachment technique involves three steps: recommit, build up, and contrast. First, recommit the witness to the fact he asserted on direct, the one you plan to impeach. Tryto do this in a waythat does not arouse the witness’ suspicions. Use thewitness’ actual answer on direct when you recommit him because he is most likely to agree with his own statements. (You could also challenge the witness to admit the facts he stated in a prior inconsistent statement and get a denial of them).

Second, build up the importance of the impeaching statement. Direct the witness to the date, time, place and circumstances of the prior inconsistent statement, whether oral or written. Show that the statement was made when the witnesses recollection was fresher or under circumstances that the witness would be likely to tell the truth (under oath, closer in time to an event, made to assist in an investigation, etc.).

Third, read the prior inconsistent statement to the witness and ask him to admit having made that. Use the actual words of the impeaching statement. And project your attitude to signal to the jury what its attitude should be during the impeachment. If your attitude is that the witness was lying, confused, or forgetful; then broadcast it with your tone, facial expressions, cadence, demeanor, etc.1

Besides prior inconsistent statements witness can be impeached many different ways on crossexamination. Witness can be impeached by showing bias, interest and motive; through the use of prior convictions; through the use of prior bad acts; through other witnesses; through contradictory facts; through reputation and opinion testimony.

VI. Observations

Consider this blog post by Bobby G. Frederick from the internet blog Trial Theory 2

1 See Thomas A. Mauet, Fundamentals of Trial Techniques, p. 242-43.

2 http://trialtheory.com

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office

The Boy Who Cried Wolf

July 22, 2011

“Nobodybelieves aliar…even when heis telling thetruth!” Myson is four years old now, soon to be five. He’s gotten into the habit of coming in while I’m working on the computer and telling me “daddy, dinner’s ready!” After a few times of walking into the kitchen to see dinner still cooking on the stove, I’m thinking I need some independent confirmation before I believe that dinner is ready. I ask him, “are you telling the truth?” and of course he responds “yes!”

Last night I was reading The Boy Who Cried Wolf to him before bed, and it occurred to me that this story contains a most basic explanation of how to demonstrate the un-truthfulness of a witness’ testimony. Not that this is always the goal of cross-examination, but when a witness is not being truthful about something critical to the case it becomes an important part of the cross-examination.

How do you prove that a witness is lying? In some cases it can be proven by extrinsic evidence or testimony of other witnesses who can contradict the first witness’ untruthful statement. Or we can show bias or motive – demonstrate to the jury the witness’ reason for lying. If the witness has not been consistent in his or her statements we can impeach the witness with prior inconsistent statements – video, audio, witness interviews pre-trial, or statements they have made to other people.

But if these tools are not available, or in addition to these tools, can we show that the witness is simply someone who lies – even if we are unable to prove the witness is lying about the most important fact, what if we are able to show that the witness is lying about other facts? If the witness has lied about other facts, has given inconsistent statements on other subjects, and can be impeached on other statements that he has made to the jury, why should the jury believe anything that the witness says?

The Old Man’s advice to the young shepherd boy, as he laments the loss of his sheep to the wolf, and wonders why the village-folk did not come to help him, is as valuable a lesson for cross-examination as it is for myson: “Nobodybelieves a liar…even when he is telling the truth!” If you are not a consistently honest person, how can we know that you are telling the truth?

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office eric.davis@pdo.hctx.net

Cross-Examination

By: Eric J. Davis, Assistant Public Defender Harris County Public Defender’s Office

eric.davis@pdo.hctx.net

Texas Criminal Defense Lawyers Association

Round Rock, Texas

Sexual Assault Exams & Understanding Injuries

Speaker: Nancy R. Downing

PhD, RN, SANE-A, SANE-P, FAAN

Texas A&M University College of Nursing

1359 TAMU | 8447 Riverside Parkway Bryan, TX 77807

979.493.0157 phone

979.436.0098 fax

downing@tamu.edu email

Sexual Assault Exams and Understanding Injuries

Nancy R. Downing, PhD, RN, SANE-A, SANE-P, FAAN CRIMINAL DEFENSE LAWYERS ASSOCIATION

November 30, 2023

Overview

What I will talk mostly about

• Importance of evidence in sexual assault

• SANE qualifications

• Identification of anogenital injury

• Identification of bodily injury

• Injury assessment issues & controversies

• Considerations regarding SANEs & sexual assault injuries

What I will talk less about

• A lot about pediatric exams

• A lot about male victims

• Bodily injury

• Oral injury

• Anal injury

• Strangulation

• Testimony

• PhD, RN, SANE-A, SANE-P, FAAN

• University of Iowa, Nursing – clinical genomics & forensic nursing

• Practicing forensic nurse since 2004

• Associate Professor, Center of Excellence in Forensic Nursing, Texas A&M University since 2016

• Teach in Master’s in Forensic Nursing program

• Research on violence, abuse, substance use, & associated health outcomes

• Fellow, American Academy of Nursing, 2019

• Former President, International Association of Forensic Nurses

• Member, Texas Forensic Science Commission, 2016-present

• Vice Chair, NIST OSAC Forensic Nursing Subcommittee

Caveat

I do not examine the deceased.

Beyond the scope of most forensic nurses to understand the science behind tissue changes after death.

Most salient change – circulation stops; normal healing processes don’t apply.

Forensic Nursing

“Specialized nursing care that focuses on patient populations affected by violence and trauma – across the lifespan and in diverse practice settings.”

American Nurses Association & International Association of Forensic Nurses (2017), p. 1

A recognized specialty by the ANA since 1995

%ExonerationsbyContributingFactorandTypeofCrime NationalRegistryofExonerations

Currentasof:11/27/2022Total=3299

NRE defines false or misleading evidence as: “conviction was based at least in part on forensic information that was expressed with exaggerated and misleading confidence”

NIST OSAC

Basics to Know About Forensic Nursing

• No required education level

• Texas has state SANE certification

• CA-SANE – adult/adolescent

• CP-SANE – pediatric

• National certification

• SANE-A

• SANE-P

• GFN-C

• AFN-C

• CERTIFICATION NOT REQUIRED TO PRACTICE!

• One-time 2-hour basic evidence collection course required

• Nurses should NOT use “SANE” in their signature unless they have completed a minimum 40-hour SANE course

State vs. National SANE Certification

StateNational

Level of experienceCompetencyProficiency

Requirements for initial certification Clinical onlyClinical plus exam

Certifying bodyOAG SAPCS officeCommission for Forensic Nursing Certification or Forensic Nursing Certification Board

Clinical requirements

Renewal

• 8 (a/a), 10 (p), or 18 (a/a/p) exams

• 10 speculum exams

• 16 hours courtroom observation

• Every 2 years

• 12 hrs continuing education

• 8 (a/a) – 12 (p) hrs case review

• 10 exams

• 300 hrs SANE-related practice (patient care, on-call, teaching/precepting, consulting, peer review) or

• 6 cr coursework/60 hrs CE (12 cr/90CEs for AFN-C plus master’s degree)

• 1000 practice hrs within 5 years (2000 for AFN-C)

• 1 year practice (2 for AFN-C)

• Every 3 years

• 45 hrs continuing education

• 300 hrs SANE-related practice

Verifying SANE Certification

• National certification

• Verify at IAFN

• SANE-A

• SANE-P

• State certification

• Verify at SAPCS

SANE Coverage in Texas

Hospital discharge data indicate there are approximately 10,000 hospital outpatient exams with sexual abuse or assault diagnostic codes per year.

Injury Assessment & Documentation

The significance of anogenital injuries

ADA

“Judges, juries love injuries. They love photographs of injuries. They love medical records depicting injuries ‘cause it’s another thing to corroborate what the victim’s saying”

Alderden et al., 2018

“With less serious genital injuries…experts are forced to concede that injuries like this can be suffered during consensual sex, especially if people enjoy engaging in rougher varieties of sex”

The (in)significance of anogenital injuries

Alderden et al., 2018

ADA

Injuries and Sexual Assault

• Often there are no injuries – anogenital or bodily

• Victims report not fighting back – too scared, “just wanted it to be over,” fear of being physically injured, “freezing” (Moller et al., 2017; Wong et al., 2015).

• Consensual sex studies limited, methodologically varied (and sometimes problematic).

• Visualization methods, examiner experience, confirmation bias, publication bias.

• Patients with injuries documented during a SAMFE 1.7-2.5 times more likely to report to LE (Downing, Adams, & Bogue, 2020; Larsen, Hilden, & Lidegaard, 2014).

• Cases more likely to be referred to DA and filed by DA when injuries present (O’Neal, Tellis, & Spohn, 2015) and prosecutors find injury evidence useful (Alderden, Cross, Vlajnic, & Siller, 2018).

Anogenital anatomy

Adult/adolescent vs. prepubescent hymen

Adams et al., 2018

Astrup et al., 2015

Injuries caused by blunt force trauma

InjuryDefinitionOtherterms

LacerationDiscontinuity of epidermis and dermis

AbrasionExposure of lower epidermis/upper dermis – outer layers scraped away; tangential vs. vertical blunt force

BruiseBleeding from broken blood vessels below intact epidermis

Non-specific findings

RednessColor change r/t inflammatory response

Tear, skin disruption, fissure

Scrape, excoriation

Contusion, hematoma, ecchymosis

Erythema, inflammation

SwellingRaised area filled w/fluidEdema

TendernessPain with touch/palpationSore

Common Genital Injury Sites

Adult/adolescent anogenital injuries

Laceration (tear)

Abrasion

Bruise (contusion/hematoma/ecchymosis)

Pediatric findings

“The only nonacute hymen finding that is considered clear evidence of past injury” is a complete transection “below the 3-9 o’clock location that extends to or through the base of they hymen, with no hymenal tissue discernible at that location” (Adams et al., 2018, pp. 226-227).

Pediatric findings – caution!

• Normal finding – shallow groove in the fossa navicularis, midline

• Commonly seen in early puberty

• Normal vestibular papillae – “should not be mistaken for signs of injury” (Adams et al., 2018, p. 219)

• Normal finding – midline avascular area

• Linea vestibularis (midline avascular area)

Injury visualization tools

• Naked eye – macroscopic

• Colposcope/magnification

• Toluidine blue dye

• Swab

• Balloon/catheter bulb

Colposcope

• Enable depth of field and magnification

• Binocular

• Include photography and video options

• Expensive

• Gold standard for pediatric exams

Other visualization tools

• Camera systems

• Digital cameras w/zoom function

• Filters to enhance visualization (invert filters)

• Alternate light sources

Toluidine blue dye

• Thiazine metachromatic dye (basic)

• High affinity for acidic tissue components

• Stains tissues rich in DNA/RNA

• Epithelia does not have nucleated cells

• When epithelium damaged, nucleated cells are exposed, and TDB uptakes

Application of TDB

• Apply after visual inspection and photography and before inserting speculum

• Blot gently, avoiding mucosal tissue

• Wait ~1 minute

• Remove excess with 1% aqueous solution/water-based lubricant/1% acetic acid

• Applied after external genitalia evidence collection, and before using a speculum

• Tears can be enlarged with spreading of the tissue during inspection

Injury visualization tools – toluidine blue dye

Laceration (tear) without and w/TDB Linear uptake

Abrasion without and w/TDB for Diffuse uptake

Injury visualization tools – TBD

• Should TBD be used to identify injuries or only to highlight them?

• TBD & colposcopic photography

• Acute and 4 days later

• Use of TBD on this laceration did not change findings

Astrup et al., 2013

Visualization tools – TBD

• Is “diffuse uptake” a specific injury finding?

• Acute (A and B) and 4 days later (C and D)

• 2/4 examiners diagnosed abrasion on all 4

• 2/4 examiners diagnosed redness and excessive TBD uptake due to irritation/inflammation

• U-shaped uptake in 29% of women who had consensual intercourse within 2 days prior and 51% within 3-7 days (Berlit et al., 2021)

• False positives possible (vulvitis, herpes, ulceration, scratching, iatrogenic)

• False negatives (barrier, healing)

Astrup et al., 2013

Berlit et al., 2021

Colposcope and TBD

Sommers

Zink

Anogenital injury patterns

• Injury identification rates vary: 22-75%

• Factors associated with anogenital injury observation

• Time since assault

• Age (depends on how data are sliced)

• Relationship to perpetrator

• Number of perpetrators

• Who presents/is referred for medical forensic exams

• Prior sexual intercourse and timing of prior sexual intercourse

• Examiner background, education, and experience

• Use of visualization tools

• Bodily injury present

• Skin conditions (e.g., dermatitis, lichen sclerosis, STIs, cancer, candidiasis)

• Varying denominators used in studies

• Sample size

Female genital injury patterns

• Most common locations

• Posterior fourchette

• Fossa navicularis

• Hymen

• Most common types

• Lacerations

• Abrasions

• Bruises

• Non-specific – redness/swelling

Female genital injury patterns

• Very few vaginal & cervical issues

• Difficult to visualize

• Patients can decline speculum

• Active bleeding from vagina in absence of menstruation uncommon

• Cervix may be red or bleed as normal finding

Ectropion cervix – normal finding

Female genital injury

– consensual vs. nonconsensual

• Injury identification rates vary: 9-73%

• Studies of consensual intercourse find injuries

• Studies comparing consensual and non-consensual generally find > prevalence of anogenital injury in non-consensual group

• Recent meta-analysis of 10 studies, 3165 participants – anogenital injury detected in 48% of sexual assault and 31% consensual intercourse (Naumann et al., 2023).

• Some studies found multiple AG injuries more likely in non-consensual (though the SD often overlap groups)

• Injury patterns between the groups not consistent between studies

• May be more injury beyond posterior fourchette/fossa navicularis in non-consensual

Limitations of genital injury studies

• Sexual assault not verified (2% false report rate)

• Examiners mostly not blinded

• Some classify erythema (redness) as injury; others do not

• Background, education, and experience of examiners not always reported or standardized

Bodily injury identification

Bruises

• Most common soft tissue injury types in sexual assault (Alempijevic, Savic, Pavlekic, & Jecmenica, 2007; Zilkens, Smith, Kelly et al., 2017).

• Caused by blunt, compressive, or squeezing force trauma (external forces).

Dating Bruises

• Bruise color may be related to how Hgb, a component of red blood cells, is broken down over time (Hughes, Ellis, Burt, & Langlois, 2004).

• HOWEVER, YOU CANNOT ACCURATELY DATE A BRUISE BASED ON COLOR. Several factors determine bruise color:

• Examiner factors – subjective nature, age, lighting (Langlois, 2007).

• Patient factors – gender, localized fat, skin color (Scafide, Sheridan, Downing, & Hayat, 2020), oxygen level, medications, WBC/RBC counts, disease processes

• Depth of bruise.

• The only color reliably related to age of a bruise is yellow, which is only seen in bruises that are not recent – though not all bruises will be yellow at some point (Langlois, 2007).

• Tenderness and swelling typically associated with recent bruises (Langlois, 2007).

Red = release of Hgb/RBCs from damaged vessels (oxygenated blood)

Blue/purple = release of unoxygenated blood from veins

Green = Hgb broken down into biliverdin

Yellow = Hgb broken down into bilirubin

Brown = Hgb broken down; iron combine w/ferritin

Bruise Assessment

• Location

• Lower and outer parts of extremities are common sites of accidental bruising

• Common sites after sexual contact – upper arm, inner thig grab marks

• Alternative/future ways of visualizing:

• Camera filters

• Doesn’t alter photograph; spreads out color ranges to enhance contrast

• Alternate light source (ALS) (Scafide, Sheridan, Downing, & Hayat, 2020)

• NOTE: Absorption, NOT fluorescence

• Objective color determination – colorimetry (Scafide, Sheridan, Taylor, & Hayat, 2016).

Alternative Light Sources

• National protocol recommends using alternate light to improve visibility of subtle injuries on adults/ adolescents during sexual assault forensic medical examination (Office on Violence against W, 2013).

• Doesn’t say how to do it…

• Alternate light source (ALS)

• Light of a specific wavelength

• Ultraviolet, visible, or infrared spectrums

• Components of bruising absorb light (appear dark)

• Colored goggles or camera filters block reflected light (Marin & Buszka, 2013).

Number Positive Detections by Wavelength/Filter

Using ALS

• Clinical guidelines coming soon!

• Advanced skill – requires training

• Not to be used “agnostically” –only with history of trauma, pain or tenderness

• Use protective eye wear – for examiner and patient

• Clean skin gently prior to assessment (to reduce false positives)

Injury documentation

• Is the patient’s history consistent with injury observed?

• Examiner should ASK patient if they know what an injury is from and document this

• If the examiner double documented – check for consistency

• Do the injury descriptions on the body diagrams and in the narrative or list match?

• Did the examiner fail to assess/document injuries at locations indicated in the patient history should be examined?

Considerations regarding SANEs & sexual assault injuries

Injury interpretation issues

• Risk of overcalling normal findings as injury

• Body: bruises, non-specific findings

• Anogenital: redness, discharge, unusual but normal anatomy in adults

• To document or not?

• SANEs with less experience more likely to overcall normal or non-specific findings as abnormal (Makoroff, Brauley, Brandner, Myers, & Shapiro, 2002)

• Why peer review & case review are critical

• Cases more likely to advance and jurors more likely to convict if “redness” was documented in the medical record (Campbell, Patterson, Bybee, & Dworkin, 2009)

Anogenital assessment issues

• Pediatricians, SANEs, APNs incorrectly interpreted more anogenital findings on a 41-item survey than child abuse physicians; SANEs had the most incorrect responses; scores significantly lower for all but CA physicians who performed >5 exams/month (Adams et al., 2012)

• Recent examples

• “I took a quick look and it’s open down there” (emergency room pediatrician).

• “Is it that a cleft above 3 and 9 o’clock is abnormal, or below? I think I told a defense attorney the opposite thing” (experienced SANE)

• “I documented a failure of midline fusion as a healed laceration. Now I know what it was” (experienced SANE discussing an exam finding early in her practice)

• “We found a notch at 4 o’clock!” (SANE program coordinator)

Anogenital assessment issues

• Lack of knowledge among health care providers generally of normal genital anatomy, especially female anatomy, especially prepubescent female anatomy

• Most health care providers do not receive adequate education in normal and abnormal pediatric anogenital anatomy

• This has led to “evolving” guidelines, based on consensus, regarding what is normal v. abnormal

• Joyce Adams and Nancy Kellogg, and CSA colleagues developed consensus classification system that stratifies findings. Most recent guidelines 2018 (Adams, Farst, Kellogg, 2018; Kellogg, Farst, & Adams, 2023)

• Very specialized practice

• Photo-documentation and review of photos by a child abuse expert are essential

No consensus on what makes a SANE an “expert”

• The only IAFN metrics related to expertise are certification requirements.

• IAFN SANE Education Guidelines (2015) specify SANE instructors should have at least 5 years experience.

• Certification requirements have low clinical requirements or don’t specify how much direct patient care a SANE has provided.

• National Children’s Alliance “advanced medical consultant” qualifications: child abuse pediatrician, physician, APN who has performed at least 100 exams, and current in continuous quality improvement requirements.

Questions you Should Ask about Education & Experience

• Did you take a 40- or 64-hour SANE course approved by the state of Texas?

• Did the course meet IAFN SANE Education Guidelines?

• What state and/or national certifications do you have?

• How long have you been practicing as a SANE?

• Approximately how many exams have you performed?

• Approximately how many exams do you perform a month?

• Do you do this full-time or part-time? If part-time, what other job(s) do you have?

• How many hours of call do you take a month?

• How often do you attend peer/case review?

• What else do you do to remain current in your practice?

• What education or experience do you have related to injury interpretation in deceased persons?

Questions you Should Ask about Child Sexual Assault

• How many pre-pubescent SANE exams do you perform each month?

• Who reviews your documentation and photographs and what are their qualifications?

• Did this person review your documentation and photographs in this case?

• If so, defense attorney should talk with the HCP who reviewed the documentation to learn if there are notes associated with the exam (did that expert document diagnostic impressions?)

Ask SANEs to –

• Identify anogenital structures

• Define injury types

• Describe visualization tools used

• Clarify non-specific injuries

• Discuss limitations of injury interpretation

If they cannot do these things, it’s a problem…

References

• Adams, J. A. (2001). Evolution of a classification scale: Medical evaluation of suspected child sexual abuse. Child Maltreatment, 6(1), 31-36.

• Adams, J. A. (2010). Medical evaluation of suspected child sexual abuse: 2009 Update. APSAC Advisor, 22(1), 2–7.

• Adams, J. A. (2011). Medical evaluation of suspected child sexual abuse: 2011 update. Journal of Child Sexual Abuse, 20(5), 588-605.

• Adams, J. A., Harper, K., Knudson, S., & Revilla, J. (1994). Examination findings in legally confirmed child sexual abuse: It's normal to be normal. Pediatrics, 94(3).

• Adams, J. A., Starling, S. P., Frasier, L. D., Palusci, V. J., Shapiro, R. A., Finkel, M. A., & Botash, A. S. (2012). Diagnostic accuracy in child sexual abuse medical evaluation: Role of experience, training, and expert case review. Child Abuse & Neglect, 36(5), 383-392.

• Adams, J. A. (2013). Signs of recent or healed injury to the genitalia in prepubertal girls describing penilevaginal contact are uncommon. Medicine, Science, and the Law, 53(2), 117-118.

• Adams, J. A., Farst, K. J., & Kellogg, N. D. (2018). Interpretation of medical findings in suspected child sexual abuse: an update for 2018. Journal of Pediatric & Adolescent Gynecology, 31(3), 225-231.

• Adams, J. A., Harper, K., & Knudson, S. (1992). A proposed system for the classification of anogenital findings in children with suspected sexual abuse. Adolescent and Pediatric Gynecology, 5(2), 73-75.

References

• Adams, J. A., Kaplan, R. A., Starling, S. P., Mehta, N. H., Finkel, M. A., Botash, A. S., ... & Shapiro, R. A. (2007). Guidelines for medical care of children who may have been sexually abused. Journal of Pediatric and Adolescent Gynecology, 20(3), 163-172.

• Adams, J. A., Kellogg, N. D., Farst, K. J., Harper, N. S., Palusci, V. J., Frasier, L. D., ... & Starling, S. P. (2016). Updated guidelines for the medical assessment and care of children who may have been sexually abused. Journal of Pediatric and Adolescent Gynecology, 29(2), 81-87.

• Adams, J. A., Kellogg, N. D., & Moles, R. (2016). Medical care for children who may have been sexually abused: An update for 2016. Clinical Pediatric Emergency Medicine, 17(4), 255-263.

• Adams, J. A., & Knudson, S. (1996). Genital findings in adolescent girls referred for suspected sexual abuse. Archives of Pediatrics & Adolescent Medicine, 150(8), 850-857.

• Adams, J. A., Starling, S. P., Frasier, L. D., Palusci, V. J., Shapiro, R. A., Finkel, M. A., & Botash, A. S. (2012). Diagnostic accuracy in child sexual abuse medical evaluation: Role of experience, training, and expert case review. Child Abuse & Neglect, 36(5), 383-392.

• Alderden, M., Cross, T. P., Vlajnic, M., & Siller, L. (2021). Prosecutors’ perspectives on biological evidence and injury evidence in sexual assault cases. Journal of Interpersonal Violence, 36(7-8), 3880-3902.

• Alempijevic, D., Savic, S., Pavlekic, S., & Jecmenica, D. (2007). Severity of injuries among sexual assault victims. Journal of Forensic and Legal Medicine, 14(5), 266-269.

• American Academy of Pediatrics Committee on Child Abuse and Neglect (1991). Guidelines for the evaluation of sexual abuse of children: Subject review. Pediatrics, 87(2), 254-260.

References

• American Academy of Pediatrics Committee on Child Abuse and Neglect (1999). Guidelines for the evaluation of sexual abuse of children: Subject review. Pediatrics, 103(1), 186-191.

• Astrup, B. S., Lauritsen, J., Thomsen, J. L., & Ravn, P. (2013). Colposcopic photography of genital injury following sexual intercourse in adults. Forensic science, medicine, and pathology, 9(1), 24-30.BuschArmendariz, N., Olaya-Rodriguez, D., Kammer-Kerwick, M., Wachter, K., Sulley, C., Anderson, K., & Huslage, M. (2015). Health and Wellbeing: Texas statewide sexual assault prevalence study. University of Texas, Austin, Institute on Domestic Violence and Sexual Assault.

• Berlit, C., Sütterlin, M., Yen, K., Weiß, C., Heinze, S., Tuschy, B., & Berlit, S. (2021). Female genital injury—which findings have to be considered physiological using colposcopy with and without toluidine blue dye? Forensic Science, Medicine and Pathology, 17(4), 634-642.

• Campbell, R., Bybee, D., Kelley, K. D., Dworkin, E. R., & Patterson, D. (2012). The impact of sexual assault nurse examiner (SANE) program services on law enforcement investigational practices: A mediational analysis. Criminal Justice and Behavior, 39(2), 169-184.

• Campbell, R., Patterson, D., & Bybee, D. (2012). Prosecution of adult sexual assault cases: A longitudinal analysis of the impact of a sexual assault nurse examiner program. Violence Against Women, 18(2), 223-244.

• Campbell, R., Greeson, M., & Patterson, D. (2011). Defining the boundaries: How sexual assault nurse examiners (SANEs) balance patient care and law enforcement collaboration. Journal of Forensic Nursing, 7(1), 17-26.

References

• Campbell, R., Patterson, D., Bybee, D., & Dworkin, E. R. (2009). Predicting sexual assault prosecution outcomes: The role of medical forensic evidence collected by sexual assault nurse examiners. Criminal Justice and Behavior, 36(7), 712-727.

• Downing, N. R., Adams, M., & Bogue, R. J. (2020). Factors associated with law enforcement reporting in patients presenting for medical forensic examinations. Journal of Interpersonal Violence, https://doi.org/10.1177/0886260520948518

• Downing, N. R., & Mackin, M. L. (2012). The perception of role conflict in sexual assault nursing and its effects on care delivery. Journal of Forensic Nursing, 8(2), 53-60.

• Du Mont, J., White, D., & McGregor, M. J. (2009). Investigating the medical forensic examination from the perspectives of sexually assaulted women. Social science & medicine, 68(4), 774-780.International Association of Forensic Nurses (2018). SANE education guidelines. https://cdn.ymaws.com/www.forensicnurses.org/resource/resmgr/education/2018_sane_edguidelines.pdf

• Hirachan, N. (2019). Use of toluidine blue dye in detection of anogenital injuries in consensual sexual intercourse. Journal of Forensic and Legal Medicine, 64, 14-19.

• Hughes, V. K., Ellis, P. S., Burt, T., & Langlois, N. E. I. (2004). The practical application of reflectance spectrophotometry for the demonstration of haemoglobin and its degradation in bruises. Journal of Clinical Pathology, 57(4), 355-359.

References

• International Association of Forensic Nurses and the American Nurses Association (2018). Forensic nursing scope & standards of practice, 2nd. Ed. Elkridge, MD: IAFN.

• Jones, J. S., Dunnuck, C., Rossman, L., Wynn, B. N., & Nelson-Horan, C. (2004). Significance of toluidine blue positive findings after speculum examination for sexual assault. The American Journal of Emergency Medicine, 22(3), 201-203.

• Kellogg, N. D., & American Academy of Pediatrics (2005). The evaluation of sexual abuse in children. Pediatrics, 116(2), 506-512.

• Kellogg, N. D., Farst, K. J., & Adams, J. A. (2023). Interpretation of medical findings in suspected child sexual abuse: An update for 2023. Child Abuse & Neglect, 106283.

• Kellogg, N. D., & Menard, S. W. (2003). Violence among family members of children and adolescents evaluated for sexual abuse. Child Abuse & Neglect, 27(12), 1367-1376.

• Kellogg, N. D., Menard, S. W., & Santos, A. (2004). Genital anatomy in pregnant adolescents: “Normal” does not mean “nothing happened.” Pediatrics, 113(1), e67-e69.

• Larsen, M. L., Hilden, M., & Lidegaard, Ø. (2015). Sexual assault: a descriptive study of 2500 female victims over a 10-year period. BJOG: An International Journal of Obstetrics & Gynaecology, 122(4), 577-584.

• Makoroff, K. L., Brauley, J. L., Brander, A. M., Myers, P. A., & Shapiro, R. A. (2002). Genital examinations for alleged sexual abuse of prepubertal girls: Findings by trained physicians. Child Abuse and Neglect, 26(12), 1235–1242.

References

• Marin, N., & Buszka, J. M. (2013). Alternate light source imaging: Forensic photography techniques. Cincinnati: Anderson Publishing.

• Midwestern Children’s Advocacy Center (2015). Medical peer review. St. Paul, MN: Author. http://www.mrcac.org/peer-review/

• Möller, A., Söndergaard, H. P., & Helström, L. (2017). Tonic immobility during sexual assault–a common reaction predicting post-traumatic stress disorder and severe depression. Acta Obstetricia et Gynecologica Scandinavica, 96(8), 932-938.

• National Children’s Alliance (2017). Putting standards into practice: A guide to implementing the 2017 Standards for Accredited Members. https://www.nationalchildrensalliance.org/wpcontent/uploads/2015/06/NCA2017-StandardsIntoPractice-web.pdf

• Naumann, D. N., Morris, L., Bowley, D. M., Appleyard, T. L., Cumming, J., & Wardle, D. (2023). Anogenital injury following sexual assault and consensual sexual intercourse: A systematic review and meta-analysis. eClinicalMedicine, 65, 102266.

• Office on Violence Against Women (2016). A national protocol for sexual abuse medical forensic examinations: Pediatric. U.S. Department of Justice: Author.

• Office on Violence Against Women (2013). A national protocol for sexual abuse medical forensic examinations: Adult/adolescent. U.S. Department of Justice: Author.

• Reed, G. D., Symonds, A., Stier, A., Peluso, S., & Watson, S. O. (2020). Prosecutor preference for forensic nurse testimony: outcome of expanding a forensic program. Journal of Emergency Nursing, 46(3), 310-317.

References

• Rossman, L., Solis, S., Ouellette, L., Woolley, B., Bush, C., & Jones, J. S. (2018). Comparative analysis of incapacitated versus forcible sexual assault in a community-based population. The American Journal of Emergency Medicine, 36(12), 2308-2309.

• Scafide, K. N., Sheridan, D. J., Downing, N. R., & Hayat, M. J. (2020). Detection of inflicted bruises by alternate light: Results of a randomized controlled trial. Journal of Forensic Sciences, 65(4), 1191-1198.

• Scafide, K. N., Sheridan, D. J., Taylor, L. A., & Hayat, M. J. (2016). Reliability of tristimulus colourimetry in the assessment of cutaneous bruise colour. Injury, 47(6), 1258-1263.

• Schmidt Astrup, B., & Lykkebo, A. W. (2015). Post-coital genital injury in healthy women: A review. Clinical Anatomy, 28(3), 331-338. Zilkens, R. R., Smith, D. A., Kelly, M. C., Mukhtar, S. A., Semmens, J. B., & Phillips, M. A. (2017). Sexual assault and general body injuries: A detailed cross-sectional Australian study of 1163 women. Forensic Science International, 279, 112-120.

• Sommers, M. S., Zink, T. M., Fargo, J. D., Baker, R. B., Buschur, C., Shambley-Ebron, D. Z., & Fisher, B. S. (2008). Forensic sexual assault examination and genital injury: is skin color a source of health disparity?. The American Journal of Emergency Medicine, 26(8), 857-866.

• Toon, C., & Gurusamy, K. (2014). Forensic nurse examiners versus doctors for the forensic examination of rape and sexual assault complainants: A systematic review. Campbell Systematic Reviews, 10(1), 1-56.

• Zilkens, R. R., Smith, D. A., Phillips, M. A., Mukhtar, S. A., Semmens, J. B., & Kelly, M. C. (2017). Genital and anal injuries: A cross-sectional Australian study of 1266 women alleging recent sexual assault. Forensic Science International, 275, 195-202.

Texas Criminal Defense Lawyers Association

Round Rock, Texas

Preservation of Error & Jury Charges

Speaker: Elizabeth Berry

First Assistant Public Defender

Concho Valley Public Defender’s Office 441 Butternut Street

Abilene, TX 79602

325.229.4732 phone

eberry@cvpdo.org email

Co-Author: Janet Burnett Attorney at Law 105 S. Ridge Court

Georgetown, TX 78628 (915) 479-2581

Jburnett1025@gmail.com email

Elizabeth Berry

First Assistant Public Defender

Concho Valley Public Defender’ s Office

441 Butternut Street

Abilene, TX 79602 (325) 229-4732

eberry@cvpdo.org

Janet Burnett

Attorney at Law

105 S. Ridge Court

Georgetown, TX 78628 (915) 479-2581

Jburnett1025@gmail.com

AUTHORS

Elizabeth Berry is currently the First Assistant Public Defender for the Concho Valley Public Defender’ s Office, with offices in San Angelo and Abilene. The office covers a total of twelve rural counties in West Texas, and has a staff of approximately 30 people, 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 co-workers, 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 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.

I. Jury Charge

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).

Under Texas law, the judge must provide the jury with 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 testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. Tex. Code Crim. Proc. Art. 36.14. 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 verdict form is part of the jury charge. Jennings v. State, 302 S. W. 3d 306 (Tex. Crim. App. 2010).

II. Error Preservation

The proposed charge must either be dictated into the record or submitted in writing. Tex. Code Crim. Proc. 36.14. 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 (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).

In an aggravated robbery case based in part on accomplice-witness testimony, despite the jury charge being incorrect, Appellant was estopped from complaining about the accomplice-witness instruction on appeal because trial counsel stated “I’m good” when the charge was brought to his attention. Ruffins v. State, 666 S.W.3d 636 (Tex.Crim.App. 2023).

III. State Must Prove What They Charge… Unless the Facts Are Really Bad!

Although an indictment’s heading says “sexual assault of a child,” if the body oftheindictmentalleges“non-consensualsexualassault,”thebodyoftheindictment controls what the State must prove. Delarosa v. State, No. PD-0197-22, PD-019822, PD-0199-22 (Tex.Crim.App. Oct.4, 2023)(not yet published). There was no objection by trial counsel, but on appeal, Appellant challenged the sufficiency of the evidence. Id. A determination of evidentiary sufficiency does not turn on how the jury was instructed. Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex. Crim. App. 2018) (citing Musacchio v. U.S., 577 U.S. 237, 243 (2016)). Instead, it is measured by the essential elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is “ one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’ s burden of proof or unnecessarily restrict the State’ s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. The law as

authorized by theindictment means thestatutory elements oftheoffense as modified by the charging instrument. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When an indictment alleges one of several statutory methods of committing a crime, ‘“the law as authorized by the indictment ’is limited to the method specified by the indictment.” Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim. App. 2011).

Section 22.011 defines sexual assault in two ways; one definition depends on lack of consent, and the other depends on the age of the complainant. The statute dispenses with consent in the second scenario; it does not say that a child cannot consent; it does not mention consent at all. Delarosa v. State, No. PD-0197-22, PD0198-22, PD-0199-22 (Tex.Crim.App. Oct.4, 2023)(not yet published). The State decides what to charge. See Neal v. State, 150 S.W.3d 169, 173 (Tex. Crim. App. 2004). It can charge a defendant with sexually assaulting a non- consenting child under either section; if it charged the defendant with sexual assault of a child under § 22.011(a)(2), it would not have to prove lack of consent. But when a defendant is charged under § 22.011(a)(1), lack of consent is an essential element that the State must prove. “[W]here an indictment facially charges a complete offense, the State is held to the offense charged in the indictment, regardless of whether the State intended to charge that offense.” Thomason v. State, 892 S.W.2d 8, 11 (Tex. Crim. App. 1994). Having alleged non-consensual sexual assault, the State was bound to prove it. Curry, 30 S.W.3d at 405 (holding that where the law defines different methods of committing a crime, and the indictment alleges one of those methods, it must be proved). Because of all of these factors, the Court of Criminal Appeals issued a judgment of acquittal of the non-consensual sexual assault charges. Delarosa v. State, No. PD-0197-22, PD-0198-22, PD-0199-22 (Tex.Crim.App. Oct.4, 2023)(not yet published).

Meanwhile, in an unpublished opinion, the Court of Criminal Appeals held the opposite in the case of Castillo-Ramirez v. State, No. PD-1279-19,

(Tex.Crim.App. Jun.28, 2023)(unpublished). Here, the indictment alleged Ramirez penetrated the complainant's anus with his sexual organ, while the jury charge allowed the jury to convict Ramirez if it found that Ramirez had penetrated the complainant's anus "by any means." There was no objection by trial counsel. “… The jury charge enlarged the offense alleged and authorized the jury to convict Ramirez on a different theory than the one that was alleged in the indictment. Although the jury charge properly quoted the controlling statute, it did not properly quote the elements of the controlling statute as modified by the indictment. . . .” Id.

In this case, the State chose to only plead penetration by means of Ramirez's sexual organ. Because the State only pled this single manner and means of penetration, it may not rely on any other manner and means of committing the crime that it did not plead in the charging instrument. Therefore, the trial court erred when it improperly broadened the indictment with a jury charge that authorized the jury to convict Ramirez of aggravated sexual assault for penetrating the complainant's anus without her consent by any means. Id. Although there was error in the jury charge, under the facts of this case (anal rape of a 71-year-old woman in her home) the Court of Criminal Appeals did not find egregious harm. Id.

IV. Trial court’s duty to instruct sua sponte

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).

Accomplice Witness

Article 38.14 of the Texas Code of Criminal Procedure provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

TEX. CODE CRIM. PROC. art. 38.14.

The trial court has a duty to sua sponte give an accomplice witness instruction when raised 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).

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).

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).

The Court has said that an accomplice is one who "participates with a defendant before, during, or after the commission of a crime and acts with the requisite culpable mental state." Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim.

App. 2004). "A witness is not deemed an accomplice [merely] because he knew of the crime and failed to disclose it or even concealed it." Smith v. State, 721 S.W.2d 844, 851 (Tex. Crim. App. 1986). There must, instead, be some evidence of an affirmative act on the part of the witness to assist in the commission of the charged offense. Druery v. State, 225 S.W.3d 491, 499 (Tex. Crim. App. 2007).

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).

Even a witness who may have participated with the principal actors in planningfororcommittingonlyadifferentoffense differentthantheoneontrial likewise does not, by that act alone, make himself an accomplice to the offense on trial. See Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim. App. 1987) ("If a State's witness has no complicity in the offense for which an accused is on trial, his ... testimony is not that of an accomplice witness whatever may have been his complicity with the accused in the commission ofotheroffenses."). Similarly, acting only as an accessory after the fact in essence, playing no part in the offense, but helping to cover it up once it has been committed and completed does not alone suffice to make a witness an accomplice, at least not to the offense that is covered up. Easter v. State, 536 S.W.2d 223, 229 (Tex. Crim. App. 1976).

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). A witness is an accomplice as a matter of law if there is no

doubt or if the evidence clearly shows that the witness is an accomplice. Paredes v. State, 129 S. W. 3d 530, 536 (Tex. Crim. App. 2004). A witness is also an accomplice as a matter of law when the evidence is uncontradicted or so one-sided that a reasonable juror could not disagree with the determination that the witness is an accomplice. Cyr v. State, 308 S. W. 3d 19, 24-25 (Tex. App. – San Antonio 2009 – no pet.).

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.1

The juvenile exception to the accomplice witness rule has been abolished. Taylor v. State, 332 S. W. 3d 425 (Tex. Crim. App. 2011).

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).

Any witness who has definitively been shown to have participated in the same offense(oralesserincluded offense)forwhich theaccused isontrial forexample, any witness who has also been indicted for, or even already been convicted of, the same offense is regarded as an accomplice as a matter of law. Casanova v. State, 383 S.W.3d 530, 533 (Tex. Crim. App. 2012). Under those circumstances, the trial court is required to instruct the jury that, before it may consider the testimony of

1 Ash v. State, 533 S. W. 3d 878 (Tex. Crim. App. 2017).

such a witness, it must determine that the witness's testimony is corroborated by "other evidence tending to connect the defendant" to the alleged offense. Id. But sometimes the evidence is less definitive about whether a witness participated in the offense for which the accused is on trial; the evidence may even conflict in that regard.

In the event that the evidence is less definitive of the witness's participation in the offense, the jury must be instructed first to determine whether that witness was in fact an accomplice. Only if the jury finds him to be an accomplice must it then require his testimony to be corroborated. Paredes, 129 S.W.3d at 536. Ruffins v. State, 666 S.W.3d 636 (Tex. Crim. App. 2023)

Other corroboration required: Jailhouse snitch

Under Tex. Penal Code § 15.03 (b), a person may not be convicted on the uncorroboratedtestimony oftheperson allegedly solicited and unless thesolicitation is madeunder circumstances strongly corroborative ofboth thesolicitation itself and the actor’ s intent that the other person act on the solicitation. Under Tex. Code Crim. Proc. Art. 38.075, the testimony of a jailhouse witness must be corroborated.

V. Application paragraph

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. 3d77 (Tex.Crim.App. 2017).Application paragraphs apply thepertinent 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. 3d 77 (Tex. Crim. App. 2017). For example, the jury is only permitted to consider whether a defendant was intoxicated from any substance other than alcohol in a DWI case when there is evidence that the defendant ingested such a substance that caused him to be intoxicated or there is sufficient evidence for a rational juror to infer such. Id. The same rationale would apply to all of the definitions of ways in which to commit sexual assault, aggravated sexual assault, and indecency with a child.

VI. 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 charge is erroneous if the definition of intoxication includes a controlled substance, a dangerous drug, or any other substance in the body when the evidencedoes not support thosethings. Burnett v. State, 541 S. W. 3d 77 (Tex. Crim. App. 2017).

VII. 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).

VIII. Lesser-included offenses

[I]t is now beyond disputethat thedefendant is entitled to an instruction on a lesser-included 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).

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.

Tex. Code Crim. Proc. Art. 37.09 focuses only on the defendant’ s culpability, his conduct, or the harm caused.2 Differences in the level, range, or manner of punishment are irrelevant to that determination.3 Under the plain language of the

2 Hicks v. State, 372 S. W. 3d 649, 654 (Tex. Crim. App. 2012).

3 Id.

statute, a lesser-included offense does not require a lesser punishment range.4 It is the jury’ s role, not the courts 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 courtis authorized to sua sponte instruct the jury on any lesserincluded-offense raised by the evidence. Humphries v. State, 615 S. W. 2d 737, 738 (Tex. Crim. App. 1981).

A separate offense – even if it is a lesser offense – is not a lesser-includedoffense. Hernandez v. State, 631 S. W. 3d 120 (Tex. Crim. App. 2021).

37.09(1) and Cognate pleadings

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.Ifadescriptiveavermentintheindictmentforthegreateroffense 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 elements of the lesser offense are contained within the allegations of the greater offense. Ex parte Watson, 306 S.W.3d259,273(Tex.Crim.App.2009). [Emphasis supplied].

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

4 Hicks at pp. 654-655.

have to be plead [in the indictment charging the greater inclusive offense] if they can be deduced from the facts contained in the indictment.”5 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 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 determinetheavailability ofthelesser-includedoffenses. Id. Theevidence 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.

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.6 If there are allegations in the indictment that are not identical to the elements of the lesser offense, the functional-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).

5 Hall v. State, 225 S. W. 3d 524 (Tex. Crim. App. 2007).

6 Serrano v. State, 636 S. W. 3d 717, 721 (Tex. App. – Fort Worth 2021 – pet. ref’d).

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. UnderTex.Code Crim.Proc.37.09 (1),anoffenseis alesser-includedoffense if the indictment for the greater offense either –

(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.7

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.8

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 lesser-included-offense analysis. Id. [Emphasis supplied.] Appellate courts rely on common experience and societal norms to interpret what can be deduced from an indictment.9 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.10 Criminal trespass may not be a lesser-included-offense of burglary of a habitation. Meru, supra. Criminal trespasswould qualify as alesser-includedoffenseiftheindictment 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

7 Serrano at pp. 721-722.

8 Id.

9 Farrakhan v. State, 247 S. W. 3d 720 (Tex. Crim. App. 2008); Rice v. State, 333 s. W. 3d140 (Tex. Crim. App. 2011).

10 Mitchell v. State, 543 S. W. 2d 637 (Tex. Crim. App. 1976).

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 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 assess whether there is a lesser-included-offense. Indecency with a child is a lesser-included-offense of aggravated sexual assault of a child, when both offenses are predicated on the same act. Evans v. State, 299 S. W. 3d 138, 143 (Tex. Crim. App. 2009).

“Therefore, to the extent that a continuous sexual abuse indictment alleges certain specific offenses, an offense listed under Subsection (c) will always meet the first step of the Hall analysis. Soliz v. State, 353 S.W.3d 850 (Tex.Crim.App. 2011), A physical force and violence allegation is not functionally equivalent to an allegation ofphysical 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 wouldknow orshould 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).

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 lesser-included-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 as to 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 p. 265.

37.09(3) Less Culpable Mental State

Proof of a higher level of culpability constitutes proof of a lower level of culpability.11 In Hicks, defendant’ s testimony that he accidently shot the victim raisedevidencetosupportthelesser-included-offenseofrecklessaggravatedassault. 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

11 Hicks v. State, 372 S. W. 3d 649, 653 (Tex. Crim. App. 2012).

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).

As a matter of law, deadly conduct is a lesser-included-offense of aggravated assaultalleged by theuseorexhibitionofamotorvehicleas adeadlyweapon. Safian v. State, 543 S. W. 3d 126 (Tex. Crim. App. 2018). Indecent exposure is a lesserincluded-offense of indecency with a child by exposure. Ex parte Amador, 326 S. W. 3d 202 (Tex. Crim. App. 2010).

Second Step. Is there evidence in the record from which the jury could find the defendant guilty only of the lesser-included-offense?12 An instruction on a lesser-included offense is required only when there is someadmitted evidence directlygermanetothatoffense.13 Aninstructionis required if more than a scintilla of evidence establishes that the lesser-included offense is a valid,rational alternativeto thechargedoffense. Id. All oftheevidence 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).

Rational Alternative

There are two ways that the evidence may indicate that the defendant is guilty only of the lesser-included-offense:

12 Serrano v. State, 636 S. W. 3d 717, 721 (Tex. App. – Fort Worth 2021 – pet. ref’d).

13 Roy v. State, 509 S. W. 3d 315, 317 (Tex. Crim. App. 2017).

(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.14

When the evidence raising the lesser-included offense casts doubt upon the greater offense, it provides the fact finder with a rational alternative by voting for the lesser-included-offense.15 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].

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).

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). A deadly weapon finding can make the difference between the level of the felony, the type of time credit a client receives in TDC, and even the difference between a felony and a misdemeanor.

14 Cavazos v. State, 382 S. W. 3d 377, 385 (Tex. Crim. App. 2012).

15 Forest v. State, 989 S. W. 2d 365, 367 (Tex. Crim. App. 1999).

There was more than a scintilla of evidence from which the jury could have rationally 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, No. PD-0157-20, 2022 WL 1021056 (Tex. Crim. App. Apr. 6, 2022) (not yet published).

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 128 (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.

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 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.

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).

Separate offenses & Sex Offense Units of Prosecution Analysis

Aggravated sexual assault’ s allowable unit of prosecution is penetration. Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App. 2014). An offender may be prosecuted for as many statutorily specified body parts as he penetrates. Id. For example, penetration of the sexual organ is a distinct offense from penetration of the anus. Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999). Similarly, the allowable unit of prosecution for indecency with a child is sexual contact. Loving v. State, 401 S.W.3d 642, 649 (Tex. Crim. App. 2013). Touching the breast, anus, and genitals are distinct offenses. Pizzo v. State, 235 S.W.3d 711, 719 (Tex. Crim. App. 2007). Sex offenses focus on the prohibited conduct, and the Legislature intended punishment for each prohibited act. Maldonado v. State, 461 S.W.3d 144, 150 (Tex. Crim. App. 2015). Separate acts of contact and penetration are separate offenses. Id. In short, different body parts mean different crimes. Hernandez v. State, No. PD0790-20 (Tex.Crim.App. Sept. 29, 2021) (not yet published).

The evidence in Hernandez (supra) showed three different body parts were penetrated or touched. According to the State, Appellant put his penis in the complainant’ s mouth. According to Appellant, he touched her vagina with his hand and rubbed his penis on her torso. The lesser indecency offenses were not included

in the charged offense of aggravated sexual assault of a child; they were different, additional crimes perpetrated against different body parts by different acts, and Appellant could have been prosecuted for all of them. Id.; Cf. Evans v. State, 299 S.W.3d 138, 140 n.3, 142-43 (Tex. Crim. App. 2009) (holding that convictions for indecency by contact and sexual assault of a child violated double jeopardy because both were predicated on the same act and body part); Ochoa v. State, 982 S.W.2d 904, 907 (Tex. Crim. App. 1998) (holding indecency by contact and aggravated sexual assault convictions violated double jeopardy because they were predicated on the same act and body part).

Where the defendant is charged with one count of an offense, but the State presents evidence of multiple distinct acts of indecency and then elects to proceed on only two of them, the two incidents are two different offenses and cannot be charged in the disjunctive in the jury charge. See Francis v. State, 36 S.W.3d 121 (Tex.Crim.App. 2000).

IX. Defensive issues

The evidence at trial must be viewed in the light most favorable to the submission of a defensive instruction.16 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.17 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. Macial 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,

16 Contreras v. State, 312 S. W. 3d 566, 576 (Tex. Crim. App. 2010) cert. denied, Contreras v. Texas, 131 S. Ct. 427 (2010).

17 Maciel v. State, 631 S. W. 3d 720, 723 (Tex. Crim. App. 2021).

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 ofonedefense does not foreclosethe 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

A judge has a duty to instruct correctly when the court sua sponte instructs on adefensiveissue. Mendez v. State, 545S.W.3d548(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).

Justification defenses

Justification defenses are not limited to intentional or knowing crimes. Alonzo v. State, 353 S. W. 3d 778 (Tex. Crim. App. 2011).

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).

The confession-and-avoidancedoctrine 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. Rivera v. 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).

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,

• Thedesirabilityandurgencyofavoidingtheharmclearlyoutweigh,according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the 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). Theunavailabilityoflegal alternatives is not arequirement 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. – 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-and-avoidance requirement, regardless of Appellant’ s personal definition of whether or not she legally “operated” the vehicle. She was entitled to 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. Maciel v. State, 631 S. W. 3d 720 (Tex. Crim. App. 2021).

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 instructed on the defense of consent. The“lovebites”incidentsatisfiedtheelementsofassaultthatwereoutlined in the submitted jury instructions. Bufkin v. State, 207 S. W. 3d 779, 784 (Tex. Crim. App. 2006).

Affirmative Defenses for Sexual Offenses

There are several defenses and affirmative defenses within the sexual offenses.

• Continuous Sexual Abuse of Young Child

• See Texas Penal Code § 21.02(g):

• Not more than 5 years older than youngest victim

• No force/threat

• Not a sex offender

• Indecency with a Child

• See Texas Penal Code § 21.11(b):

• Within 3 years of age

• Opposite sex

• No force/threat

• Not a sex offender

• See Texas Penal Code § 21.11(b-1):

• Spouse

• Improper Relationship Between Educator and Student

• See Texas Penal Code § 21.12(b-1):

• Spouse

• Within 3 years of age

• Relationship started before teaching

• Sexual Assault

• See Texas Penal Code § 22.011(d):

• Medical care

• See Texas Penal Code § 22.011(e):

• Spouse or

• Within 3 years of age between 14 & 17

• Not a sex offender

• Aggravated Sexual Assault

• See Texas Penal Code § 22.021(d):

• Medical care

Medical Care

It is a defense to the prosecution of Aggravated Sexual Assault, under Texas Penal Code § 22.011(d), and Sexual Assault, under Texas Penal Code § 22.011(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 errorto fail to instruct thejury onthemedical caredefenseto digital penetration.

• It is available to parents, step parents, and such.

• 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.

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).

General Defenses to Criminal Responsibility

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 intent instruction if the jury believed that the Appellant had a reasonable mistaken belief about the type of injury that he was inflicting. Louis v. State, 393 S. W. 3d 246 (Tex. Crim. App. 2012).

The State does not have to prove that the defendant knew the victim was younger than 17. See, Johnson v.State, 967 S.W.2d 848 (Tex.Crim.App. 1998). 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).

X. 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).

It can be established on direct appeal that trial counsel was ineffective for failing to request a jury charge or for requesting a jury charge be removed. Hart v. State, 631 S. W.3d 458 (Tex.App.– Houston [14th Dist.]– pet.granted). Requesting that a sudden passion instruction be removed in the punishment charged was found to be ineffective. Id. 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 atrial 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 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 theevidencenot 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).

XI. 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, orhas 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, for example, what would a reasonable officer believe? Hamal v. State, 390 S. W. 3d 302 (Tex. Crim. App. 2012). A legal question does not entitle a defendant to a 38.23 instruction. If there is adispute 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, NO. PD-0424-19, 2022 WL 1021279 (Tex. Crim. App. Apr. 6, 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.

XII. 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.

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, 163-164 (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 Miranda18 is not itself a violation of the United States Constitution and cannot be the basis for the invocation of 38.23. Id.

XIII. Unanimity

Even when the State is not required to elect it is the trial court’ s responsibility to craftachargetoensurethatthejury’sverdictwillbeunanimousbasedonthespecific evidence presented in the case. Cosio v. State, 353 S. W. 3d 766 (Tex. Crim. App. 2011).

Non-unanimity may occur when:

• TheStatepresents evidence demonstrating therepetitionofthesamecriminal conduct, but the actual results of the conduct differed,

• Defendant commits the charged offense on multiple but separate occasions,

• TheStatechargesoneoffenseandpresentsevidenceofanoffense,committed at a different time, that violated a different provision of the same criminal statute. Id.

The 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).

In a chargeof continuous sexual abuseof achild, thestatute specifically states that the jury need not unanimously agree as to which acts were committed, only that two or more acts of sexual abuse occurred within 30 days. One model charge on this states, “You are instructed that members of the jury are not required to agree unanimously on which specific acts of sexual abuse, if any, were committed by the defendant or the exact date when those acts were committed, if any. The jury must agree unanimously that the defendant, during a period that was 30 or more days in duration, committed two or more acts of sexual abuse as that term has been

18 Miranda v. Arizona, 384 U. S. 436 (1966).

previously defined.” Berry,Gallagher & McClung, 1 Texas Criminal Jury Charges, §6:1005-1010 (2022).

The constitutional issue of unanimity emerged almost immediately after Section 21.02 was enacted. Texas Courts of Appeals in Houston [14th], Austin, Waco, Fort Worth, San Antonio, Amarillo, El Paso, and Dallas have all endorsed the notion that a jury’ s verdict need not be unanimous when it comes which acts of sexual abuse they relied upon in finding the defendant guilty of continuous sexual abuse. The Texas Court of Criminal Appeals has yet to definitively rule on this issue. However, with all that is going on in the Supreme Court and around the country surrounding jury unanimity, continue to Constitutionalize your objections to this law and charge.

XIV. Comment on the Weight of the Evidence

Special,non-statutoryinstructions, even when they relateto statutoryoffenses 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 thejury’s attentionon aspecific typeofevidence 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 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). The Penal Code does not define the word “operating”, but the trial court in Kirsch defined it anyway. Kirsch v. State, 357 S. W. 3d 645 (Tex. Crim. App. 2012). 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 in the jury charge. De La Torre 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.

There is a distinction in cases upholding wording under a sufficiency analysis vs. a non-statutory definition being a comment on the weight of the evidence. As the Kirsch opinion noted (supra), “ an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, [but] a trial court’ s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence.” Kirsch v. State, 357 S. W. 3d 645, 651 (Tex. Crim. App. 2012).

XV. Abuse of Discretion Standard of Review

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).

XVI. Almanza the Horrible

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 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:

(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 resulting error should be treated as jury-charge errorand subject to aharmanalysis. 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).

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).

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. 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).

While there were numerous errors in the jury charge, they were either harmless or were not points of contention that were litigated at trial, rendering the risk of egregious harm only a theoretical one. Further, although the jury charge did not contain an instruction that it must acquit Appellant based on self-defense, defense counsel argued that it should acquit Appellant if it found that he acted in self-defense, defense counsel argued that it should acquit Appellant based on selfdefense, and the charge included instructions on the presumption of innocence and informed the jury that the State bore the burden of disproving self-defense beyond a reasonable doubt. Alcoser v. State, No. PD-0166-20, 2022 WL 947580 (Tex. Crim. App. March 30, 2022) (not yet published).It is not enough to show egregious harm that the jury charge states the exact opposite of what the law is. Gelinas v. State, 398 S. W. 3d 703 (Tex. Crim. App. 2013). Appellant was not egregiously harmed by erroneousself-defenseinstructionswhenhewasnotentitledtodeadlyforceandselfdefense instructions. Lozano v. State, S. W. 3d 25 (Tex. Crim. App. 2022).

Constitutional Error: Harmless Beyond a Reasonable Doubt

There is a right to a jury trial for any fact, other than a prior conviction, that increasesthepenalty foracrime. 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), 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.

XVII.New Offenses from 2023 Legislature (The Road Goes on Forever But the Party Never Ends!)

• Child Grooming

• See Texas Penal Code § 15.032

• 3rd degree felony; or 2nd if prior sex offense

• There is affirmative defense for dating teens

• No Deep Fake Videos

• See Texas Penal Code § 21.165

• Class A misdemeanor

XVIII. Unique Punishment Charges

Under Government Code Sec. 508.145, Continuous Sexual Abuse of a Child (PC 21.02) carries a life without the possibility of parole sentence. As this is the only offense besides capital murder for which one can receive LWOP, it makes the question of a punishment jury charge somewhat thorny. This issue is not addressed in the Code of Criminal Procedure.

Hereis asuggested paroleinstruction iftheindictment contains counts ofboth continuous sexual abuse and aggravated sexual assault, or other parolable offenses:

“Under the law applicable to Count One in this case, the defendant, if sentenced to a term of imprisonment, is not eligible for release on parole. Under the law applicable to Counts Two, Three, Four and Five in this case, the defendant, if sentenced to a term of imprisonment, [insert usual language from CCP 37.07] …”. Berry, Gallagher & McClung, 1 Texas Criminal Jury Charges §6:1000 (2022).

Texas Criminal Defense Lawyers Association

Round Rock, Texas

Ethical Issues: Defense of Sex Crimes

Speaker: Sam Bassett

Minton, Bassett, Flores & Carsey, P.C. 1100 Guadalupe St. Austin, TX 78701

512.472.0144 phone

512.479.8315 fax

sbassett@mbfc.com email

www.mbfc.com website

Co-Author: Betty Blackwell

Attorney at Law

Board Certified in Criminal Law

1306 Nueces Street

Austin, TX 78701

512-479-0149

bettyblackwell@bettyblackwell.com email

ETHICS

DOS AND DONT’S WITH CLIENTS

BETTY BLACKWELL

Attorney at Law Board Certified in Criminal Law

1306 Nueces Street Austin, Texas 78701

512-479-0149

bettyblackwell@bettyblackwell.com & SAM

BASSETT

Minton, Bassett, Flores, Carsey, P.c.

1100 Guadalupe St. Austin, Texas 78701

512-476-4873

sbassett@mbfc.com

Santos

Strickland v. Washington, 462 U.S. 1105 (1984)

Walter v. Commission for Lawyer Discipline, 2005 WL 1039970 (Tex. App. Dallas) . . . . . . . . .

Weiss v. CFLD. 981 S.W.2d 8 (Tex. App.- San Antonio 1998) . . . . . . . . .12

Wiggins v. Smith 539 U.S. 510, 123 Sct. 527 (2003) . . . . . . . . . . . . . . . .

Willie v. CFLD, 2014WL586226, (Tex. App.-Houston 1st Dist. 2014). . . . .11

DOS AND DON’TS WITH CLIENTS

VIOLATIONS OF THE ETHICAL RULES

All lawyers licensed in Texas are required to abide by the Texas Disciplinary Rules of Professional Conduct. A violation of any of the disciplinary rules can result in a lawyer being sanctioned by the State Bar of Texas’s office of the chief disciplinary counsel. Sanctions can range from private reprimands up to disbarment.

Last year (through May 2020) the State Bar of Texas received 7505 complaints about lawyer misconduct. 5123 were dismissed because the complaint does not describe or allege a violation of the Texas Disciplinary Rules of Professional Conduct. 2202 were sustained complaints which proceeded as a grievance against the attorney. After an investigation,1705 cases were submitted to the summary disposition grievance panel for a dismissal. The following is a discussion of the most common complaints that result in a sanction by the State Bar of Texas and how to avoid them.

The Basics:

1. Have a written contract

2. Return phones calls if only to say that there is nothing new to report

3. Communicate with clients in writing to document

4. Return files upon termination of employment

5. Keep the attorney’s address current with the State Bar at all times

6. Return unearned fees

7. Do not advise anyone to avoid a subpoena or advise them to ignore a subpoena

8. Have a trust account for all fees that are prepaid or advance fees paid for services in the future

9. Answer any State Bar grievance

10. Do not have sex with your clients

USING A WRITTEN CONTRACT:

Rule 1.04 Texas Disciplinary Rules of Professional Conduct

(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.

A written contract will spell out exactly what work the lawyer has agreed to undertake and at what fee. Many complaints to the State Bar arise between the lawyer and the client about exactly what the lawyer had agreed to do. Rule 1.02(b) states that a lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation. However, without a written contract it is a swearing match as to what was said and the grievance can go forward if the State Bar disciplinary counsel has just cause to believe that a rule violation has occurred. Since it is a civil case, the burden to prove the allegations is by a preponderance of the evidence.

Limiting the extent of the representation is one of the most useful aspects of a written contract. Most clients believe that the fee for representation includes the appeal of an adverse decision. However, most lawyers do not intend to include the appeal in the original fee structure.

Explaining whether expert witnesses and other costs of the litigation are the client’s responsibility to pay for or the lawyer’s, is another area of common confusion. In criminal law, explaining that the expunction process is a separate civil proceeding that will not occur without additional fees being paid, is almost always an area of frustration on the part of the client.

Recently malpractice carriers have asked that attorneys include in their written contract exactly the length of time the lawyer will retain the client’s file and that the file will be destroyed unless the client takes possession of the file. Rule 1.14(a) requires that trust account records be kept for five years, so it is recommended that the time period of retaining a file be at least five years. A grievance must be filed within four years so that keeping the file at least five years will insure the records are available to defend any grievance.

Rule 1.04 (d) requires that a contingent fee agreement be in writing and that it must state the method by which the fee is to be determined. It also requires an accounting at the end of the case.

HISTORICALLY THE MOST COMMON GRIEVANCE:

Neglect

Neglect has been traditionally the number one most common complaint filed by former clients against their attorneys and it is the most likely rule violation to result in an attorney being sanctioned by the State Bar.

A Lawyer shall not neglect a legal matter entrusted to him or frequently fail to carry out completely the obligations that the lawyer owes the client.

Santos v, Commission for Lawyer Discipline, 140 S.W.3d 397 (Tex. App. Hous 2004). The lawyer was sanction for the conscious disregard of a legal matter. He had been paid for an immigration matter and though told of the court date, the lawyer failed to appear. In contrast to the result in Santos, a simple calendaring mistake usually will not cause a lawyer to be sanctioned by the Bar as the comments to Rule 1.01 say “A lawyer who acts in good faith is not subject to discipline, under this provision for isolated inadvertent or unskilled act or omission, tactical error, or error of judgment”.

Malpractice is not always a violation of the Rule of Ethics and ineffective assistant is not necessarily a violation of the Rule of Ethics. An example of malpractice maybe telling a defendant that deferred adjudication will not show up on their record. But this probably doesn’t rise to the level of neglect, only incompetence. Malpractice can occur when a lawyer gives bad legal advice. However, that does not meet the definition of neglect to cause the lawyer to be sanctioned by the State Bar.

The duty to investigate, is part of the effectiveness standard. A lawyer must make a reasonable effort to investigate the case or after discussions with the client, make a reasonable determination that investigation is not necessary. Strickland v. Washington, 462 U.S. 1105 (1984). Wiggins v. Smith 539 U.S. 510, 123 Sct. 527 (2003). Failure to investigate a case may not rise to the level of neglecting a case in violation of the Disciplinary Rules of Professional Conduct.

Failure to convey the plea offer to the defendant can be neglect and cause a writ to be field. Failure to advise the client of the consequences of a plea offer is ineffective assistance and may also rise to the level of neglect or failure to properly communication with a client as discussed in the next section, under the rules of Professional Conduct.

For example some of the most common criminal cases:

Any plea to a DWI case can result in substantial non-criminal consequences for the person convicted. There are many areas of employment that prohibit a conviction for DWI, including Police Officers, Firefighters, and emergency medical technicians. Many employers have there own employment guidelines which can include dismissal for a DWI. School district often fire teachers if they are convicted of DWI. Canada will not allow anyone to enter the country if they have a DWI conviction.

In POM cases, a jail sentence results in a driver’s license suspension of up

to 180 days. A jail sentence is a final conviction and can not be expunged nor can it be sealed if it occurred before September 1, 2015. Drugs cases are eligible for deferred adjudication, which can be eventually sealed, but not expunged. A regular probation stays on the person record for the rest of their life. Many employers will not hire someone with a drug conviction. Many scholarships to colleges prevent people from applying who have drug convictions. Drug convictions can result in severe immigration consequences as do violation of gun laws. Many apartment complexes will not rent to individuals who have drug convictions on their record.

These are just a few of the collateral consequences and many clients will file grievances upon their lawyer if they feel that the lawyer failed to properly advise them of the consequence of their plea.

The most common allegation of neglect in a civil case, is the failure to file a lawsuit within the statute of limitations. Though clearly this is malpractice and the lawyer can be sued, the defense to the grievance is that it was an isolated inadvertent act or omission or a calendaring mistake. But the comments to Rule 1.01 caution that delays can cause the client anxiety and the lawyer has a duty to communicate reasonbly with the client, suggesting that a grievance might be upheld for failure to communicate.

MALPRACTICE

Malpractice refers to negligence or misconduct that fails to meet a standard of care that is recognized in the profession and that results in harm to the client. In Texas it is very hard to sue a criminal defense lawyer for malpractice. The Supreme Court of Texas has decided that only innocent clients have a viable malpractice cause of action against their criminal defense attorney.

INEFFECTIVE ASSISTANCE OF COUNSEL

Strickland v. Washington, 104 S.Ct. 2052 (1984) set out a two part test. First the counsel’s representation must be deficient and secondly, that deficient performance must have prejudiced the defendant. The bench mark for judging any claim of ineffective assistance of counsel must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Under the 6th amendment, the defendant must show a reasonable probability that but for the counsel’s errors, the outcome would have been different.

Three important Supreme Court cases have reviewed the performance of criminal defense counsel to determine whether the client should be afforded a new trial. 1. Padilla v.Kentucky, 130 S.Ct. 1473, (2010) held that it was ineffective assistance of counsel to fail to advise a defendant that his plea of

guilty to a drug distribution charge would make him subject to automatic deportation. However, Padilla is not retroactive to cases already final. 2. Failure to inform the defendant of a plea offer is ineffective assistance of counsel.

Missouri v. Frye, 132 S.Ct. 1399 (2012) 3. In Lafler v. Cooper, 132 S.Ct. 1376 (2012), the defendant was prejudiced by counsel’s advise to reject the plea offer and proceed to trial. The trial counsel’s opinion that the evidence was legally insufficient to convict the defendant, was not sound advice. The defendant was entitled to effective assistance of counsel during the plea negotiations.

When deciding to accept a case, a lawyer should be aware of Rule 1.01(a) which states that 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. The only exceptions are if the attorney associates another competent attorney on the matter with client consent, or it is an emergency situation. If in doubt, don’t take the case.

Immigration issues have been a focus of the Chief Disciplinary Counsel’s office. In their annual report for 2020, they stated that they received 19 immigration complaints, imposed 11 sanctions and referred 5 to the Grievance Referral Program.

Failure to communicate.

This is the second most common grievance filed and it is usually filed in addition to the allegation of neglect.

Rule 1.03 (a)

A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Rule 1.03 (b) states that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision.

In reference to a criminal case the Rules require a lawyer sha ll promptly inform the client of the substance of any proffered plea bargain. Failure to do so has been held to be ineffective assistance of counsel. Ex Parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987). Failure to communicate a settlement offer in a civil case would be the same misconduct. Under the Rules, the lawyer is allowed to withhold information if believes the clients would react imprudently or if the client is under a disability.

Failure to communicate is alleged in close to half of all grievances filed. The duty is an affirmative obligation and it not dependent on a client’s request for information. Failing to advise a client of an adverse development in a case would be a violation. A lawyer must respond to reasonable requests for

information.

Failure to provide adequate information for the defendant to make a decision about whether to have a jury trial or whether to accept a plea offer or a settlement offer can result in an attorney being sanctioned by the State Bar.

Lawyers must be aware of immigration consequences, employment consequences, and licensing consequences, as discussed under the section on Neglect.

Lawyers are not required by the rules to communicate with family members or loved ones. However, one of the biggest misunderstandings by attorneys is who can file a grievance upon them. Many lawyers will answer a grievance filed by a family member saying that they have no attorney client relationship and therefore are not required to answer this grievance. This is wrong.

WHO CAN FILE A GRIEVANCE?

Complaints with the State Bar may be filed by anyone. The complaint does not have to be filed by the client. There does not have to be an attorney client relationship for the person to file a complaint with the State Bar. Hines v. Commission for Lawyer Discipline, 2003 WL 21710589 (Tex. App. Hous 14th ) The Father of the client filed the complaint and the respondent attorney’s theory was that there could be no sanction because he represented the son. The Court made it clear that anyone can bring to the attention of the bar a rule violation. In addition, any alleged misconduct does not have to be in the course of an attorney client relationship for the State Bar to prosecute a violation under Rule 804(a)(3) which states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Walter v. Commission for Lawyer Discipline, 2005 WL 1039970 (Tex. App. Dallas). For example, a lawyer can be disciplined for actions taken as the executor of an estate, even though the lawyer may have no attorney client relationship with the beneficiaries of the will.

Rule 803 (a) requires a lawyer having knowledge that another lawyer has committed professional misconduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer, to inform the Chief Disciplinary Counsel’s office (CDC). The only exception is for mental illness or chemical impairment in which the lawyer can report the conduct to the Lawyer Assistant Program or the information is protected by confidentiality under Rule 1.05 or is obtained through counseling programs. Rule 1.05, Confidential Information, includes both privileged information and unprivileged client information which a lawyer shall not reveal except if provided by the rules.

Texas Lawyers Assistance Program’s phone number is 1-800-204-2222 ext. 1460. Conversations are confidential and referrals are available for help

10

with mental illness, substance abuse or impairment by physical illness. The goal is to rehabilitate lawyers and help them resume practicing law.

Fee disputes

Fee disputes constitute a large number of complaints. Those complaints are first referred to the client attorney assistant program (CAAP) and to the local fee dispute committees of local bar associations. CAAP’s stated purpose is to try and work out a settlement so that the case does not proceed to a grievance. Their number is 1-800-204-2222 ext. 1777. If a reasonable settlement can not be obtained, the case is referred by the Chief Disciplinary Counsel’s office to be filed as a grievance. Returning a phone call from CAAP at 1-800-204-2222 ext. 1777 could save a trip to the grievance committee.

Rule 1.04 (a)

A lawyer shall not charge or collect an illegal or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

Consider:

1. Time and labor required including difficulty

2. preclude other employment

3. fee charged

4. time limitations imposed by client

5. amount involved and results

6. nature of the relationship with client

7. experience and ability of the lawyer

8. whether fee is fixed or contingent.

A lawyer may not charge a contingent fee in a criminal case. Rule 1.04 (e).

Rule 1.04(c)

When the lawyer has not regularly represented the client, the basis or the rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. The Rule strongly recommends that a lawyer use a written contract of employment, effective March 1, 2005 which is the most recent change to the Rules, as the other Rules were adopted January 1, 1990.

Non-refundable retainers:

Many lawyers put in their contracts that the fee is a non-refundable retainer fee. The thought is that this would prevent the client for asking for a refund and prevent the client from being able to pursue a grievance if no refund was made. These types of contracts and employment agreements are not recommended by the State Bar of Texas. One problem is the appearance of overreaching. The court decisions have made it clear this is not an arms length transaction and the client it at a particular disadvantage in the contract negotiation process.

What is a true retainer fee?

A true retainer is not a payment for services. It is an advance fee to secure a lawyer's services, and remunerate him for loss of the opportunity to accept other employment. If the lawyer can substantiate that other employment will probably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received. If, however, the client discharges the attorney for cause before any opportunities have been lost, or if the attorney withdraws voluntarily, then the attorney should refund an equitable portion of the retainer.

Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) made it clear that simply calling a fee non-refundable does not make it so.

Calling the fee a retainer fee does not change an advance fee into a retainer fee. In that case there was a fee of $15,000.00 that the lawyer then billed against. By billing an hourly rate against the fee collected, the lawyer was demonstrating that in fact it was an advanced fee, not a retainer. Because it was an advance fee for services in the future and it had not been earned at the time of the payment, the fee was required to be placed into a trust. Because the lawyer did not place the money into a trust account, the sanction imposed by the State Bar was appropriate.

In Willie v. CFLD, 2014WL586226, (Tex. App.-Houston 1st Dist. 2014) the Court of Appeals affirmed the Cluck decision stating that a fee is not earned simply because the contract stated that it was non-refundable. Because the fee was to be billed against, it was an advance fee that must be deposited into a trust account.

Trust Account Violations

Rule 1.14(a):

A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in the 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. Complete records of such account funds shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. Unearned fees must be placed into a trust account.

Ethics Rule 611 further complicated the issue of non-refundable retainers deposited into an operating account by stating that the Rules of Professional Conduct prohibit such arrangements if the fee charged includes payment for the lawyer’s services on the matter up to the time of trial. The Professional Ethics Committee for the State Bar of Texas decided that such an agreement would be a payment for future services, and as such, an advanced fee which must be deposited into a trust account. The fee can only transferred to the operating account when earned under the terms of the agreement with the client. See State Bar Journal November 2011 p. 944

The Ethics opinions are not binding on the Supreme Court, but they are used by the State Bar as presuasive arguments in grievance matters. According to Larry Boyd’s paper written for the State Bar “Mythology of Nonrefundable flat fees” in which he presents an excellent analysis of Ethics Opinion 611, he writes that the opinion creates an “absolute prohibition of non-refundable flat fees”.

Duty upon termination and Duty to Return the file

Rule 1.15(d)

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients interest, 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.

The Texas Rule is that the file belongs to the client. Upon request and/or termination, the file must be returned to the client. If the lawyer wishes to make a copy and retain one for himself, he is responsible for making the copy. This section also results in a lot of sustained grievances against lawyers who mistakenly believe that they can hold the file hostage for payment of attorney’s fees. Ethics Opinion 610 says that it is not proper to include in the employment contract a statement that there will be a lien on the file for attorney’s fees as rule 1.08 (h) prohibits a lawyer from acquiring a proprietary interest in the cause of action.

However, in order to prove an ethical violation, there must be evidence that the retained file prejudiced the client in the subject matter of the representation. Weiss v. CFLD. 981 S.W.2d 8 (Tex. App.- San Antonio 1998). Many questions have arisen about the effect of the Michael Morton Act, that amended Article 39.14 Code of Criminal Procedure, effective January 1, 2014. Section (f) specifically states that the attorney representing the defendant “may not allow that person to have copies of the information provided...” The issue has been raised about whether an attorney could face disciplinary action from the State Bar for refusing to turn over an offense report to a defendant, after the defendant requested his file. It is clear that state law prohibits the attorney from making copies of information obtained from the prosecutor’s office. Subsection (g) states that this can not be interpreted to limit an attorney’s ability to communicate with their client within the Texas Disciplinary rules of Professional Conduct, except for information identifying any victim or witness.

Ethics Opinion 570 from 2006 states that the attorney must turn over all notes unless there is a right to withhold a document pursuant to a legal right or the lawyer is required to withhold the document by court order. This opinion would cover any attorney who refuses to turn over discovery to their client as a part of the request for the file. It states that work product and notes of the attorney must be produced, but the attorney can rely on Article 39.14 C.C.P. in refusing to turn over witness statements and offense reports provided to the attorney. This would comport with Section (d) of Article 39.14 C.C.P. which sets out that when a defendant is pro se the State is not required to provide copies as required when an attorney requests discovery. The argument to be made is that this is not “papers and property to which the client is entitled” as the rule sets out, but the last line of the rule is problematic because these documents will be needed by the client.

In 2014 the Professional Ethics Committee of the State Bar of Texas issued Opinion 646. The question presented was whether as a condition for allowing criminal defense lawyers to obtain information in the prosecutor’s file, a prosecutor may require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive court-ordered discovery in all of the lawyer’s cases. The opinion specifically stated that under the Michael Morton Act, the prosecutor’s office can not demand such conditions for obtaining discovery. The opinion says that the Texas Disciplinary Rules of Professional Conduct require that the prosecutors comply with the Morton Act including making disclosures required by the Act. Unfortunately, the opinion confuses the issue by also stating that a prosecutor is prohibited from requiring the lawyer to not provide copies to their client. In the sentence preceding this statement, the

opinion says that Texas now has an “open file” policy and prosecutors can not require lawyers to agree to any restrictions except those provided by the Act. Opinion 646 does not give lawyers the right to turn over copies to the defendant, in violation of Article 39.14, Code of Criminal Procedure.

Another interesting issue came up when the client expressly refused to allow his trial attorney to turn over his file to his appellate/habeas attorney. In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) issued a mandamus to prohibit a trial court from finding the attorney in contempt and to reverse the trial court’s order that the lawyer turn over the file. The Court recognized that since 1918 the Supreme Court of Texas has held that the file belongs to the client and without the client’s consent, the lawyer could not turn over the file. The work product belongs to the client because the lawyer is considered the agent of the client.

Perjury

Rule 3.03(a)

A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(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; or

(5) offer or use evidence that the lawyer knows to be false.

A lawyer must refuse to offer evidence that he knows to be false. If it comes from the client, the lawyer is justified in seeking to withdraw from the case. If the lawyer does not withdraw or is not allowed to withdraw, he must advise the client that he can not offer the false evidence and he must advise the client of the steps the lawyer will take if the false evidence is offered. If the lawyer discovers the false evidence after its use, the lawyer must seek to persuade the client to correct the false testimony and if that is ineffective, the lawyer is allowed to reveal confidential information under Rule 1.05 (f) which states 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).

Perjury by the criminal defendant

Dealing with the possibility of perjury by a criminal defendant is complicated by a number of legal issues. The defendant has a due process right guaranteed in the 5th amendment of the U.S. Constitution to present his defense and he has the absolute right to testify, if he chooses. The rules recognize that these rights are attached to the criminal defendant in Rule 1.02(a) (3) which states in a criminal case, the lawyer shall abide by a client’s decision as to a plea to be entered, whether to waive jury trial and whether the client will testify. If the lawyer learns of the proposed perjury prior to trial, and he is unable to dissuade the client from doing so, the lawyer must withdraw from the representation. Rule 1.15.

However, Rule 1.15(c) overrides the ability to withdraw in many criminal cases. It states when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

Three possible resolutions have been recognized in the United States. The first would allow the defendant to testify by narrative without any guidance from the lawyer. The second proposal would excuse the lawyer completely from any duty to reveal perjury if the perjury is that of the client. Texas has specifically rejected this option.

The rules in Texas require that the lawyer take reasonable remedial measures which can include disclosing the perjury. A defendant has the right to assistance of counsel, the right to testify and the right of confidential communication. However, the client does not have the right to assistance of counsel in committing perjury. The lawyer is to try and dissuade the client from committing perjury or if it has already occurred, the lawyer must try to get the client to correct the false testimony. This needs to be done in the present of another attorney to document the lawyer’s efforts.

Then the lawyer must file a motion to withdraw under Rule 1.15 (a) (1) alleging the representation will result in the violation of the rules of professional conduct or other law. In the motion, the lawyer should quote the language in either Rule 1.15(b) (2) that the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent or as in Rule 1.15(b)(3) that the client has used the lawyer’s services to perpetrate a crime or fraud or Rule 1.15(b)(7) other good cause for withdrawal exists, including vague ethical considerations.

If the motion to withdraw is denied, the lawyer is permitted to reveal the perjury. 3.03(b) if the efforts are unsuccessful, the lawyer shall take the steps to remedy including disclosing the true facts. This should be done to the tribunal

and then the lawyer must abide by the decision of the court. Helton v. State, 670 S.W2d 644 (Tex. Crim. App. 1984) ruled that the lawyer was excused from the rules of confidentiality and he could reveal potential perjury to the court in order to prevent a fraud on the court.

Nix v. Whiteside, 106 S.Ct. 988 (1986) involved a murder defendant who complained that his lawyer threatened to withdraw and inform the court, if he took the stand and committed perjury. On appeal he alleged ineffective assistance of counsel and a denial of his 6th amendment right to counsel. The Supreme Court held that the attorney had acted properly in threatening both to withdraw and to disclose the perjury, as the right to testify does not include the right to testify falsely and the right to counsel does not include the assistance of counseling committing perjury. The Court specifically found that there was no breach of the lawyer’s professional responsibility.

Perjury is such an obvious and flagrant affront to the judicial proceedings, that the Court of Criminal Appeals has held in Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999) that a defendant could be compelled to testify, violating his 5th Amendment rights, and then prosecuted for perjury if he lied. His statements made in violation of his 5th Amendment rights could be admitted at his perjury trial.

Advising a Witness to Avoid a Subpoena

A lawyer can not advise a lawfully subpoenaed witness to not appear in court. Rule 3.04 states that a lawyer shall not:

(a) unlawfully obstruct another party’s access to evidence....or counsel or assist another to do any such act.

(b) falsify evidence, counsel or assist a witness to testify falsely.....

(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 interest will not be adversely affected by refraining from giving such information.

Rule 3.04(c)(5) states that in representing a client before a tribunal the lawyer shall not engage in conduct intended to disrupt the proceedings.

§36.05 of the Texas Penal Code, Tampering with a witness: A person

commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding:

(1) to testify falsely;

(2) to withhold any testimony, information, document or thing,

(3) to elude legal process summoning him to testify or supply evidence;

(4) to absent himself from an official proceeding to which he has been legally summoned; or

(5) to abstain from, discontinue, or delay the prosecution of another.

Article 24.04 of the Code of Criminal Procedure sets out how a subpoena can be served:

(1) reading the subpoena in the hearing of the witness;

(2) delivering a copy of the subpoena to the witness;

(3) electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or

(4) mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness.

It is both unethical and under the above circumstances illegal for an attorney to advise a subpoenaed witness not to appear in court. Rule 8.04(a) A lawyer shall not (4) engage in conduct constituting obstruction of justice.

The comments to the Rules of Disciplinary Procedures discuss that fair competition in the adversary system is secured by prohibitions against improperly influencing witnesses.

Conflicts of Interest

Rule 1.06 Conflict of Interest: General Rule

(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 interest are materially and directly adverse to the interest of another client of the lawyer or the lawyer’s firm; or

(2) reasonably appears to be or become adversely limited by the lawyers or law firm’s responsibilities to another client or to a third person or by the lawyers or law firm’s own interest.

(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

(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.

(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.

Comment 2 to Rule 1.06 gives guidance as to the meaning of conflict of interest. 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 the 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 interest.

Comment 3 recommends that ordinarily a lawyer should decline to represent multiple defendants in a criminal case due to the grave potential for conflict of interest. Comment 8 on fully informed consent recommends that the disclosure of the conflict of interest and the consent be in writing, though it is not required. It would be prudent, the rules states, for the lawyer to provide potential dual clients with at least a written summary of the considerations disclosed.

Most believe that having sex with clients is an automatic conflict of interest.Though technically difficult fit under this Rule, this behavior will cause the State Bar to take a heightened view of any Rule violation however minor. Comment 4 to the Conflict Rules discusses the conflict that may occur with a client and the lawyer’s own interests (insert sexual interest at this point) and how it can cause a lawyer to not be able to consider, recommend or carry out the appropriate cause of action for one client because of his/her own interests. This results, for example, in a client alleging a lawyer did not conclude the representation in a timely manner in order to continue the sexual relationship. This would be a violation of Rule 1.06(b)(2).

Sometimes the clients who have engaged in sexual relationship with their attorney will claim a violation of Rule 1.08(h). A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for the client… {with some exceptions that do not apply here}. The scenario that the aggrieved client can allege is that the attorney

proposed marriage, thereby potentially giving the attorney an interest in the cause of action. All of which forces the State Bar’s Office of Disciplinary Counsel to investigate the private life of the attorney.

After years of debate, planning and discussion that began in 2003, the Bar recommended in 2010 to attorneys that the Rules be amended to specifically prohibit sex with clients, to bring Texas in to conformity with almost every other state. On February 17th, 2011, the lawyers of the State of Texas voted to reject the proposal, so there is still no specific Rule prohibiting sexual relations with clients, other than common sense.

New Rule 6.05 approved in 2021, makes it clear that if an attorney engages in representation on a limited pro bono basis, or for a nonprofit, there is no imputed conflict of interest and Rules 1.06, 1.07 and 1.09 do not prohibit the representation.

LAWYERS CONVICTED OF CRIMES/COMPULSORY DISCIPLINE

8.01 of the Rules of Disciplinary Procedure:

When an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for an Intentional Crime with or without an adjudication of guilt, the CDC shall initiate a disciplinary action seeking compulsory discipline pursuant to this part. Proceedings are not exclusive in that an attorney may be disciplined as a result of the underlying facts as well as being disciplined upon the conviction or probation through deferred adjudication.

Intentional crime means (1) any serious crime that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary.

Rules. Rule 8.04(a)(2) A lawyer shall not commit a serious crime or commit any other criminal act that reflect adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects. Serious crime is defined as barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy or solicitation of another to commit any of the foregoing crimes. Possession of cocaine, is not a serious crime for which a lawyer can receive a compulsory discipline based upon the sentence alone of probation, deferred adjudication, or a final conviction. In re Lock, 54 S.W.3d 305 (Tex. S.Ct. 2001).

During compulsory discipline proceedings, the Board of Disciplinary Appeals decides if a lawyer has been convicted or placed on deferred adjudication for an intentional crime, which is defined as a serious crime in

8.04(b). The Board shall disbar the lawyer unless the Board suspends the license during the term of probation. Rule 8.05 and 8.06 of the Texas Rules of Disciplinary Procedure.

8.05 Disbarment:

When an attorney has been convicted of an Intentional Crime, and that conviction has become final, or the attorney has accepted probation with or without an adjudication of guilt for an Intentional crime, the attorney shall be disbarred unless the Board of Disciplinary Appeals, suspends his or her license to practice law.

8.06 Suspension:

If an attorney’s sentence upon conviction of a serious crime is fully probated, or if an attorney receives probation through deferred adjudication in connection with a serious crime, the attorney’s license to practice law shall be suspended during the term of probation. If the probation is revoked, the attorney shall be disbarred.

Duty to report:

8.03 was amended in 2018 to require that an attorney convicted of or placed on deferred adjudication by any court for barratry, any felony, or for a misdemeanor involving theft, embezzlement,or fraud, or reckless misappropriation of money, or property, including a conviction or sentence of probation for attempt, conspiracy, or solicitation, must report the conviction or deferred adjudication to the State Bar of Texas. The lawyer must also notify the CDC when the lawyer has been disciplined by an attorney regulatory agency of another jurisdiction. Notice must be given within 30 days. New rule 8.03(f) approved in 2021 requires notice of any sanction imposed on the lawyer in federal court or by a federal agency, except a letter of warning or admonishment.

Rule changes adopted 2021:

Rule 1.16 in reference to diminished capacity was amended at the proposal of the probate lawyers. It allows a lawyer to consult with family members, other providers concerning the mental health of a client, and if the lawyer chooses to do so, there is no confidentiality violation. If a lawyer has a reasonable belief that a client maybe suicidal, the lawyer may, but is not required to, seek treatment, or outside help without the lawyer violating any confidences of the client.

The advertising rules were substantially re-written to allow Tradenames to be used and to address probono programs, and social media. Rule 7.01 was

amended to address constitutional distinctions of those substantially motivated by puncuniary interests, so that non-profits are not covered.

What to do if a grievance is filed

THE GRIEVANCE SYSTEM

The Supreme Court of Texas has the power to regulate the practice of law as set out in the Texas Constitution. The statutory authority to regulate the practice of law is established in the State Bar Act which directs the State Bar to establish disciplinary and disability procedures. The Supreme Court has adopted the Texas Disciplinary Rules of Professional Conduct (TDRPC) which are the substantive ethics rules.

The Texas Rules of Disciplinary Procedure (TRDP) sets out the procedural grievance process. The Commission for Lawyer Discipline (CFLD) is a permanent committee of the State Bar comprised of 12 members, 6 attorneys and 6 public members. The CFLD is the client for all complaints not dismissed by a summary disposition panel. The Commission reviews the structure, function and effectiveness of the discipline system and reports to the Supreme Court and the Board of Directors.

CFLD monitors and evaluates the Chief Disciplinary Counsel (CDC). The CDC administers the attorney disciplinary system. The CDC reviews and screens all information relating to misconduct. It rejects all inquiries and investigates all complaints to determine just cause. CDC recommends dismissal of complaints to the Summary Disposition Panels. CDC is accountable only to the Commission for Lawyer Discipline.

The District Grievance Committees are divided into state geographic disciplinary districts. They act through panels of 2/3 attorneys and 1/3 public members. The local grievance committees conduct summary disposition dockets, investigatory and evidentiary hearings.

INVESTIGATION

If the grievance is determined to be a Complaint, the Respondent (attorney) shall be provided a copy of the complaint with notice to respond in writing to the allegations. The Respondent shall deliver the response to both the CDC and the Complainant within thirty days of the receipt of the notice.

No more than sixty days after the date by which the Respondent must file a written response to the Complaint, the chief Disciplinary Counsel shall

investigate the complaint and determine whether there is Just Cause. Rule 2.12 TRDP. A Just Cause finding is made if a reasonably intelligent and prudent person would believe that an attorney has committed one or more acts of professional misconduct requiring that a sanction be imposed. If the CDC determines that Just Cause does not exist, they shall place the complaint on a Summary Disposition Panel docket. This is presented to the local grievance committee without the appearance of the Respondent (attorney) or the Complainant. There is no appeal from the Panel=s determination that the complaint should be dismissed. If they fail to dismiss the complaint, it shall be placed on a hearing docket.

At this stage of the investigation the CDC may issue subpoenas in accordance with Rule 21a of the Texas Rules of Civil Procedure. The Respondent, attorney or witness must present any objection to the chair of the Investigatory Panel, if one is set, or to the Committee Chair. The CDC may seek enforcement through district court.

INVESTIGATORY PANELS

The Chief Disciplinary Counsel may set a Complaint for an investigatory hearing. It is a nonadversarial proceeding that may be conducted by teleconference. The chair of the Investigatory Panel may administer oaths and may set forth procedures for eliciting evidence, including witness testimony. Witness examination may be conducted by the Chief Disciplinary Counsel, the Respondent, or the Panel. An investigatory hearing is strictly confidential and any record may be released only for use in a disciplinary matter. An investigatory hearing may result in a Sanction negotiated with the Respondent or in the Chief Disciplinary Counsel’s dismissing the Complaint or finding Just Cause. The terms of a negotiated Sanction must be in a written judgment with findings of fact and conclusions of law. The judgment must be entered into the record by the chair of the Investigatory Panel and signed by the Chief Disciplinary Counsel and the Respondent.

JUST CAUSE

If the investigatory panel hearing does not resolve the complaint and the CDC or the investigatory panel has determined Just Cause exists, they shall give the Respondent written notice of the acts and/or omissions engaged in by the Respondent and the Rule of Professional Conduct that the CDC contends has been violated.

RESPONDENT=S ELECTION

A Respondent who has been give notice of the allegations and Rule

violations complained of must serve the CDC with his Election of District Court or an Evidentiary Panel of the Grievance Committee. The Election must be in writing and it must be served upon the CDC no later than twenty days after the receipt of the notice of the allegations. Failure to timely elect shall conclusively be deemed as an election to proceed before the evidentiary panel of the local grievance committee.

GRIEVANCE COMMITTEE

If the Respondent elects or defaults by failing to timely elect, the hearing will be held in front of the local grievance committee. A Private Reprimand is only available at this proceeding and is not available if the Respondent elects a district court proceeding. The CDC must file a petition within 60 days of the election deadline. All proceedings are confidential, and the burden of proof is on the CFLD by a preponderance of the evidence. Respondent must be served with the petition by certified mail or other means permitted by the Rules of Civil Procedure. Respondent must file an answer to this petition.

The committee can dismiss and refer the matter to CAAP (Client Attorney Assistance Program). The grievance committee can find that the Respondent suffers from a disability and refer the case to BODA (Board of Disciplinary Appeals) or they can find professional misconduct and impose sanctions. There is a separate hearing on sanctions. Sanctions can include private reprimands, public reprimands, probation, suspension or disbarment. CFLD or Respondent has the right to appeal the decision to BODA, but the complainant does not. Judgment of disbarment cannot be stayed.

DISTRICT COURT PROCEEDINGS

The Texas Rules of Civil Procedure apply and the CDC files a petition on behalf of the CFLD with the Supreme Court. The Supreme Court appoints a judge who does not reside in Respondent=s administrative district. The Respondent may request a jury trial, and like the Evidentiary Proceeding the Respondent once served with the petition must file an answer. If misconduct is found, the judge determines the appropriate sanction. A Private Reprimand is not available and the court retains jurisdiction to enforce its judgments. A final judgment of the district court is appealed as in any other civil case. A judgment of disbarment or order revoking probation can not be stayed.

For more explicit details of the procedures used in District Court or in the local grievance committee hearings, see the Texas Rules of Disciplinary Procedure that can be found online at Texasbar.com

Grievance Referral Program

To participate in the program, the lawyer must meet certain eligibility criteria and agree to meet with the program administrator for an assessment of the issues that need to be addressed. The lawyer must agree in writing to complete specific terms and conditions, including restitution if appropriate, by a date certain and to pay for any costs associated with those terms and conditions. If the lawyer agrees to participate and completes the terms in a timely manner, the Office of Chief Disciplinary Counsel will recommend to the Commission for Lawyer Discipline that the underlying grievance be dismissed. If the lawyer does not fully complete the terms of the agreement in a timely manner, the underlying grievance will move forward through the usual disciplinary process.

Criteria for Referral:

Respondent Attorney has not been disciplined within the prior 3 years. Respondent Attorney has not been disciplined for similar conduct within the prior 5 years.

Misconduct does not involve misappropriation of funds or breach of fiduciary duties.

Misconduct does not involve dishonesty, fraud or misrepresentation. Misconduct did not result in substantial harm or prejudice to client or complainant.

Respondent Attorney maintained cooperative attitude toward the proceedings.

Participation is likely to benefit respondent attorney and further the goal of protection of the public.

Misconduct does not constitute a crime which would subject respondent attorney to Compulsory Discipline under Part VIII of the Texas Rules of Disciplinary Procedure.

Important Numbers at the State Bar:

Client Attorney Assistant Program:

1-800-204-2222 Ext. 1777

Ethics Hotline

1-800-532-3947

Law Office Management

1-512-427-4000

Lawyers Assistance Program

1-800-343-8527

Advertising Review

Westfall Sellers

1701 River Run Ste 801 Fort Worth, TX 76107

817.928.4222 phone

817.385.6715 fax

frank@westfallsellers.com email

https://www.westfallsellers.com/ website

Cybercrimes: Sextortion, Revenge Porn, & Other Titillating Topics

By: Frank Sellers Westfall Sellers

frank@westfallsellers.com

IMPROPER RELATIONSHIP BETWEEN EDUCATOR AND STUDENT — TEX.

PENAL CODE § 21.12:

• (a) An employee of a public or private primary or secondary school commits an offense if the employee:

o (1) engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works;

o (2) holds a position described by Section 21.003(a) or (b), Education Code, regardless of whether the employee holds the appropriate certificate, permit, license, or credential for the position, and engages in sexual contact, sexual intercourse, or deviate sexual intercourse with a person the employee knows is:

§ (A) enrolled in a public or private primary or secondary school, other than a school described by Subdivision (1); or

§ (B) a student participant in an educational activity that is sponsored by a school district or a public or private primary or secondary school, if students enrolled in a public or private primary or secondary school are the primary participants in the activity; or

o (3) engages in conduct described by Section 33.021, with a person described by Subdivision (1), or a person the employee knows is a person described by Subdivision (2)(A) or (B), regardless of the age of that person.

• (b) An offense under this section is a felony of the second degree.

• (b-1) It is an affirmative defense to prosecution under this section that:

o (1) the actor was the spouse of the enrolled person at the time of the offense; or

o (2) the actor was not more than three years older than the enrolled person and, at the time of the offense, the actor and the enrolled person were in a relationship that began before the actor's employment at a public or private primary or secondary school.

• (c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or both sections.

• (d) The name of a person who is enrolled in a public or private primary or secondary school and involved in an improper relationship with an educator as provided by Subsection (a) may not be released to the public and is not public information under Chapter 552, Government Code.

• (d-1) Except as otherwise provided by this subsection, a public or private primary or secondary school, or a person or entity that operates a public or private primary or secondary school, may not release externally to the general public the name of an employee of the school who is accused of committing an offense under this section until the employee is indicted for the offense. The school, or the person or entity that operates the school, may release the name of the accused employee regardless of whether the employee has been indicted for the offense as necessary for the school to:

o (1) report the accusation:

§ (A) to the Texas Education Agency, another state agency, or local law enforcement or as otherwise required by law; or

§ (B) to the school's members or community in accordance with the school's policies or procedures or with the religious law observed by the school; or

o (2) conduct an investigation of the accusation.

• (e) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

o (1) any touching by an employee of a public or private primary or secondary school of the anus, breast, or any part of the genitals of:

§ (A) an enrolled person described by Subsection (a)(1) or (a)(2)(A); or

§ (B) a student participant described by Subsection (a)(2)(B); or

o (2) any touching of any part of the body of the enrolled person or student participant with the anus, breast, or any part of the genitals of the employee.

INVASIVE VISUAL RECORDING TEX. PENAL CODE § 21.15:

• (a) In this section:

o (1) “Female breast” means any portion of the female breast below the top of the areola.

o (2) “Intimate area” means the naked or clothed genitals, pubic area, anus, buttocks, or female breast of a person.

o (3) “Changing room” means a room or portioned area provided for or primarily used for the changing of clothing and includes dressing rooms, locker rooms, and swimwear changing areas.

o (4) “Promote” has the meaning assigned by Section 43.21 [to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.]

• (b) A person commits an offense if, without the other person's consent and with intent to invade the privacy of the other person, the person:

o (1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view;

§ We hold that Section 21.15(b)(1) of the Texas Penal Code, to the extent it proscribes the taking of photographs and the recording of visual images, is unconstitutional on its face in violation of the Free Speech clause of the First Amendment. We affirm the judgment of the Court of Appeals. Ex parte Thompson, 442 S.W.3d 325, 351 (Tex. Crim. App. 2014)

o (2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room; or

o (3) knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).

• (c) An offense under this section is a state jail felony.

• (d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.

• (e) For purposes of Subsection (b)(2), a sign or signs posted indicating that the person is being photographed or that a visual image of the person is being recorded, broadcast, or transmitted is not sufficient to establish the person's consent under that subdivision. TEX. PEN. CODE ANN. § 21.15 (West)

UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL TEX. PENAL CODE § 21.16 (“REVENGE PORN”)

Texas Penal Code Section 21.16 is designed to prevent “revenge porn,” which has recently become a more prevalent problem in today’s society. The statute, which passed in 2015, punishes those who post intimate images from previous or current relationships online and makes the offense a state jail felony.

• (a) In this section:

o (1) “Intimate parts” means the naked genitals, pubic area, anus, buttocks, or female nipple of a person.

o (2) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.

o (3) “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse.

o (4) “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.

o (5) “Visual material” means:

§ (A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or

§ (B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

• (b) A person commits an offense if:

o (1) without the effective consent of the depicted person and with the intent to harm that person, the person discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;

o (2) at the time of the disclosure, the person knows or has reason to believe that the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

o (3) the disclosure of the visual material causes harm to the depicted person; and

o (4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:

§ (A) any accompanying or subsequent information or material related to the visual material; or

§ (B) information or material provided by a third party in response to the disclosure of the visual material.

• (c) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct and the actor makes the threat to obtain a benefit:

o (1) in return for not making the disclosure; or

o (2) in connection with the threatened disclosure.

• (d) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for publication that is owned or operated by the person.

• (e) It is not a defense to prosecution under this section that the depicted person:

o (1) created or consented to the creation of the visual material; or

o (2) voluntarily transmitted the visual material to the actor.

• (f) It is an affirmative defense to prosecution under Subsection (b) or (d) that:

o (1) the disclosure or promotion is made in the course of:

§ (A) lawful and common practices of law enforcement or medical treatment;

§ (B) reporting unlawful activity; or

§ (C) a legal proceeding, if the disclosure or promotion is permitted or required by law;

o (2) the disclosure or promotion consists of visual material depicting in a public or commercial setting only a person's voluntary exposure of:

§ (A) the person's intimate parts; or

§ (B) the person engaging in sexual conduct; or

o (3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.

• (g) An offense under this section is a state jail felony.

• (h) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both. TEX PEN CODE ANN. § 21.16 (West)

• Held constitutional by Ex parte Jones, No. PD-0552-18, 2021 WL 2126172, at *17 (Tex. Crim. App. May 26, 2021), reh'g denied (July 28, 2021)

o “Although Section 21.16(b) is a content-based restriction, it is nevertheless narrowly tailored to serve a compelling governmental interest, namely, protecting sexual privacy. To prove the violation of Section 21.16(b), as charged in this case, the State must show that: (1) Appellant intentionally disclosed a sexually explicit image obtained by him under circumstances in which the depicted person had a reasonable expectation that the image would remain private; (2) Appellant knew or was aware of but consciously disregarded a substantial and unjustifiable risk that he did not have effective consent of the depicted person; and (3) Appellant knowingly or recklessly identified the depicted person and caused that person harm through the disclosure.” Accordingly, the court found that the statute survived strict scrutiny and was not overly broad.

UNLAWFUL PRODUCTION OR DISTRIBUTION OF CERTAIN SEXUALLY

EXPLICIT VIDEOS – TEX. PENAL CODE § 21.165 (“DEEP FAKE

PORN”)EFF. SEPT. 1, 2023

• SB 1361: Effective 9/1/2023. Creates a criminal offense if a person to knowingly produce or distribute by electronic means a deep fake video that appeared to depict a person, without the effective consent of the person appearing to be depicted, engaged in sexual conduct or

with the person’s intimate parts exposed and makes the offense a Class A misdemeanor. See Penal Code § 21.165.

• (a) In this section:

o (1) "Deep fake video" means a video, created with the intent to deceive, that appears to depict a real person performing an action that did not occur in reality.

o (2) "Intimate parts" and "sexual conduct" have the meanings assigned by Section 21.16.

• (b) A person commits an offense if, without the effective consent of the person appearing to be depicted, the person knowingly produces or distributes by electronic means a deep fake video that appears to depict the person with the person's intimate parts exposed or engaged in sexual conduct.

• (c) An offense under this section is a Class A misdemeanor.

• (d) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section or the other law.

VOYEURISM TEX. PENAL CODE § 21.17 (“VOYEURISM”) EFF. SEPT. 1, 2023

• (a) A person commits an offense if the person, with the intent to arouse or gratify the sexual desire of the actor, observes, including remotely through the use of electronic means, another person without the other person's consent while the other person is in a dwelling or structure in which the other person has a reasonable expectation of privacy.

• (b) Except as provided by Subsection (c) or (d), an offense under this section is a Class C misdemeanor.

• (c) An offense under this section is a Class B misdemeanor if it is shown on the trial of the offense that the actor has previously been convicted two or more times of an offense under this section.

• (d) An offense under this section is a state jail felony if the victim was a child younger than 14 years of age at the time of the offense.

• (e) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

SEXUAL COERCION TEX. PENAL CODE § 21.18 (“SEXTORTION”) EFF. SEPT. 1, 2017

• (a) In this section:

o (1) “Intimate visual material” means the visual material described by Section 21.16(b)(1) or (c).

o (2) “Sexual conduct” has the meaning assigned by Section 43.25.

• (b) A person commits an offense if the person intentionally threatens, including by coercion or extortion, to commit an offense under Chapter 43 or Section 20A.02(a)(3), (4), (7), or (8) [Trafficking of Persons], 21.02 [Continuous Sexual Abuse], 21.08 [Indecent Exposure], 21.11 [Indecency w/ a Child], 21.12 [Improper Relationship Between Educator and Student], 21.15 [Invasive Visual Recording], 21.16 [Unlawful Disclosure or Promotion of Intimate Visual Material], 21.17 [Voyeurism], 22.011 [Sexual Assault], or 22.021 [Aggravated Sexual Assault] to obtain, in return for not committing the threatened offense or in connection with the threatened offense, any of the following benefits:

o (1) intimate visual material;

o (2) an act involving sexual conduct causing arousal or gratification; or

o (3) a monetary benefit or other benefit of value.

• (c) A person commits an offense if the person intentionally threatens, including by coercion or extortion, to commit an offense under Chapter 19 or 20 or Section 20A.02(a)(1), (2), (5), or (6) to obtain, in return for not committing the threatened offense or in connection with the threatened offense, either of the following benefits:

o (1) intimate visual material; or

o (2) an act involving sexual conduct causing arousal or gratification.

• (d) This section applies to a threat regardless of how that threat is communicated, including a threat transmitted through e-mail or an Internet website, social media account, or chat room and a threat made by other electronic or technological means.

• (e) An offense under this section is a state jail felony, except that the offense is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted of an offense under this section.

• No cases yet.

UNLAWFUL ELECTRONIC TRANSMISSION OF SEXUALLY EXPLICIT VISUAL

MATERIAL TEX. PENAL CODE § 21.19:

• (a) In this section, “intimate parts,” “sexual conduct,” and “visual material” have the meanings assigned by Section 21.16.

• (b) A person commits an offense if the person knowingly transmits by electronic means visual material that:

o (1) depicts:

§ (A) any person engaging in sexual conduct or with the person's intimate parts exposed; or

§ (B) covered genitals of a male person that are in a discernibly turgid state; and

o (2) is not sent at the request of or with the express consent of the recipient.

• (c) An offense under this section is a Class C misdemeanor.

• (d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.

ONLINE SOLICITATION TEX. PENAL CODE § 33.021:

• (a) In this section:

o (1) “Minor” means:

§ (A) an individual who is younger than 17 years of age; or

§ (B) an individual whom the actor believes to be younger than 17 years of age.

§ In Ex parte Vazquez, 605 S.W.3d 248, 253 (Tex. App. Austin 2020, pet. ref’d), the Court found 33.021(1) not to be unconstitutionally vague, noting: “A defendant's belief as to a person's age is a clear question of fact that requires a ‘true or false’ determination. Such a determination may be made by considering all the facts and circumstances in the case, including but not limited to the defendant's words and conduct. To the extent that there may be ‘close cases’ in which it is difficult to determine the defendant's belief, such cases are addressed by the due-process requirement that the State prove its case beyond a reasonable doubt.”

§ Thus, Section 33.021 of the Penal Code was found not to be unconstitutionally vague for failing to define the term “believes.”

o (2) “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.

o (3) “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

• (b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K) [Continuous sexual abuse, Bestiality, Indecency with a child, Sexual assault, Aggravated sexual assault, or Prohibited sexual conduct, Compelling prostitution, Sexual performance by a child, Possession or promotion of child pornography, Trafficking of persons], Code of Criminal Procedure, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

o (1) communicates in a sexually explicit manner with a minor; or

o (2) distributes sexually explicit material to a minor.

o Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) ("Applying the constitutionally required presumption that “content-based regulations [of speech] are presumptively invalid”6 and subject to strict scrutiny,7

we conclude that Section 33.021(b) of the Texas Penal Code is overbroad because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse.”).

o See also Collins v. State, 479 S.W.3d 533, 539–40 (Tex. App. Eastland 2015, no pet.) (“Thus, Section 21.12(a)(3), through its incorporation of Section 33.021(b), would prohibit educators from electronically communicating with their students about valid, nonobscene topics. Following the rationale of the Court of Criminal Appeals in Lo, we *540 hold that Section 21.12(a)(3) is unconstitutionally broad insofar as it incorporates the unconstitutionally broad Section 33.021(b). Consequently, Counts I, II, and III of the indictment against Collins must be dismissed. See id. at 27.”).

• (c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

• Subsection of online solicitation of minor statute proscribing knowing solicitation of minor via internet, e-mail, text message, or other electronic messaging system to meet another person with intent that minor would engage in sexual contact, sexual intercourse, or deviate sexual intercourse was regulation on conduct, not content-based restriction on protected speech, and, thus, presumption that statute was valid applied; offers to engage in illegal transactions such as sexual assault of minors were categorically excluded from First Amendment protection, and gravamen of offense was conduct of soliciting sexual conduct from minors. Ex parte Moy, 523 S.W.3d 830 (Tex. App. Houston [14th Dist.] 2017, pet. ref’d)

• (d) It is not a defense to prosecution under Subsection (c) that the meeting did not occur.

• (e) It is a defense to prosecution under this section that at the time conduct described by Subsection (c) was committed:

o (1) the actor was married to the minor; or

o (2) the actor was not more than three years older than the minor and the minor consented to the conduct.

§ “We conclude that the majority, if not all, of the Texas appellate courts that have addressed appellant's contention that section 33.021(d)'s anti-defensive provisions are unconstitutional have rejected the same and concluded that the provisions are sound.” Reighley v. State, 585 S.W.3d 98, 109 (Tex. App.—Amarillo 2019, pet. ref’d).

• (f) An offense under Subsection (b) is a felony of the third degree, except that the offense is a felony of the second degree if the minor is younger than 14

years of age or is an individual whom the actor believes to be younger than 14 years of age at the time of the commission of the offense. An offense under Subsection (c) is a felony of the second degree.

• (f-1) The punishment for an offense under this section is increased to the punishment prescribed for the next higher category of offense if it is shown on the trial of the offense that:

o (1) the actor committed the offense during regular public or private primary or secondary school hours; and

o (2) the actor knew or reasonably should have known that the minor was enrolled in a public or private primary or secondary school at the time of the offense.

• (g) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

ONLINE IMPERSONATION TEX. PENAL CODE § 33.07:

• (a) A person commits an offense if the person, without obtaining the other person's consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:

o (1) create a web page on a commercial social networking site or other Internet website; or

o (2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

§ In Ex parte Maddison, 518 S.W.3d 630, 634 (Tex. App. Waco 2017, pet. ref’d), the indictment alleged that Maddison, without obtaining the consent of [victim], intentionally or knowingly used the name and/or persona of [victim] to create a webpage on Facebook . . . with the intent to harm, defraud, intimidate, or threaten. Maddison filed a pre-trial application for writ of habeas corpus, arguing that section 33.07 is unconstitutional because it is a content-based restriction that criminalizes a substantial amount of protected speech. Maddison further argued that section 33.07 is unconstitutionally vague. The Waco Court of Appeals found that section 33.07(a)(1) is content neutral; that the purpose and justification for the statute is not content based; that section 33.07(a) is subject to intermediate scrutiny; that because section 33.07(a)(1) promotes a substantial governmental interest, the State's interest would be achieved less effectively without the law, and the means chosen are not substantially broader than necessary to satisfy the State's interest section 33.07(a)(1) survives intermediate scrutiny; that the appellant failed to establish that section 33.07(a)(1) is facially unconstitutional under the First Amendment due to being substantially overbroad; and that the

relevant penal code definitions of harm, in conjunction with the operative provisions of section 33.07(a), sufficiently provide a person of ordinary intelligence fair notice of what the statute prohibits and do not authorize or encourage seriously discriminatory enforcement, therefore section 33.07(a) is not unconstitutionally vague.

• (b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:

o (1) without obtaining the other person's consent;

o (2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and

o (3) with the intent to harm or defraud any person.

• (c) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.

• (d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

• (e) It is a defense to prosecution under this section that the actor is any of the following entities or that the actor's conduct consisted solely of action taken as an employee of any of the following entities:

o (1) a commercial social networking site;

o (2) an Internet service provider;

o (3) an interactive computer service, as defined by 47 U.S.C. Section 230;

o (4) a telecommunications provider, as defined by Section 51.002, Utilities Code; or

o (5) a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.

• (f) In this section:

o (1) “Commercial social networking site” means any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or to other users. The term does not include an electronic mail program or a message board program.

o (2) “Identifying information” has the meaning assigned by Section 32.51.TEX. PEN. CODE ANN. § 33.07 (West)

HARASSMENT — TEX. PENAL CODE § 42.07

• (a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

o (1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;

o (2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person's family or household, or the person's property;

o (3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;

o (4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;

o (5) makes a telephone call and intentionally fails to hang up or disengage the connection;

o (6) knowingly permits a telephone under the person's control to be used by another to commit an offense under this section; or

o (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another

o …

o (9) makes obscene, intimidating, or threatening telephone calls or other electronic communications from a temporary or disposable telephone number provided by an Internet application or other technological means.

• (b) In this section:

o (1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

§ (A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and

§ (B) a communication made to a pager.

o (2) “Family” and “household” have the meaning assigned by Chapter 71, Family Code.

o (3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.

• (c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if:

o (1) the actor has previously been convicted under this section; or

o (2) the offense was committed under Subsection (a)(7) and:

§ (A) the offense was committed against a child under 18 years of age with the intent that the child:

§ (i) commit suicide; or

§ (ii) engage in conduct causing serious bodily injury to the child; or

§ (B) the actor has previously violated a temporary restraining order or injunction issued under Chapter 129A, Civil Practice and Remedies Code. TEX. PEN. CODE

• Ex parte Barton, No. PD-1123-19, 2022 WL 1021061 (Tex. Crim. App. Apr. 6, 2022), reh'g denied (June 8, 2022): Statute prohibiting harassment by electronic communications was not facially unconstitutional under First Amendment freedom of speech principles, since it was rationally related to legitimate state interest in protecting people from having their privacy invaded, and deterring those who would do so; sending repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend, as prohibited by the statute, would invade the substantial privacy interests of another in an essentially intolerable manner.

o “Since § 42.07(a)(7) does not regulate speech, and therefore does not implicate the free-speech guarantee of the First Amendment, the statute is not susceptible to an overbreadth challenge. Thus, we need not address whether Appellant preserved his overbreadth issue for appellate review. As a regulation of non-speech conduct, § 42.07(a)(7) is not facially unconstitutional because it is rationally related to a legitimate governmental interest. The question of whether the statute is vague will have to wait for a proper as-applied challenge.”

STALKING TEX. PENAL CODE § 42.072

• (a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that:

o (1) constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening:

§ (A) bodily injury or death for the other person;

§ (B) bodily injury or death for a member of the other person's family or household or for an individual with whom the other person has a dating relationship; or

§ (C) that an offense will be committed against the other person's property;

o (2) causes the other person, a member of the other person's family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person's property, or to feel

harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and

o (3) would cause a reasonable person to:

§ (A) fear bodily injury or death for himself or herself;

§ (B) fear bodily injury or death for a member of the person's family or household or for an individual with whom the person has a dating relationship;

§ (C) fear that an offense will be committed against the person's property; or

§ (D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

• (b) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted of an offense under this section or of an offense under any of the following laws that contains elements that are substantially similar to the elements of an offense under this section:

o

(1) the laws of another state;

o (2) the laws of a federally recognized Indian tribe;

o (3) the laws of a territory of the United States; or

o (4) federal law.

• (c) For purposes of this section, a trier of fact may find that different types of conduct described by Subsection (a), if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct.

• (d) In this section:

o (1) “Dating relationship,” “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code.

o (2) “Property” includes a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code.

• Griswold v. State, 673 S.W.3d 423, 431 (Tex. App. Dallas 2023, no pet.) (“In light of [Ex parte Barton, 662 S.W.3d 876, 885 (Tex. Crim. App. 2022) and Ex parte Sanders, 663 S.W.3d 197, 216 (Tex. Crim. App. 2022)], we are constrained to reject Griswold's facial constitutional challenge to the stalking statute insofar as it incorporates the harassment statute.”); see also id., n.4 (“Griswold does not challenge the constitutionality of the statute as applied to the allegations in the indictment nor does he seek First Amendment protections of the alleged contentbased conduct. While Barton and Sanders rely on non-communicative based conduct to support the facial constitutionality of the harassment statute and, for our purposes, the stalking statute, we are not presented with an opportunity for an asapplied analysis, and we are therefore precluded from doing so. “The question of whether the statute is vague will have to wait for a proper as-applied challenge.” Barton, 662 S.W.3d at 885. Further, while this case illustrates the inability to divorce content from conduct in the harassment context, as incorporated into the stalking statute, we are also not presented with an opportunity to conduct

an overbreadth analysis under the First Amendment as there is no contention that Griswold's communications were protected speech, either at the trial court or on appeal. See id. at 886–87 (Keller, P.J., dissenting).”).

UNLAWFUL DISCLOSURE OF RESIDENCE OR ADDRESS OR TELEPHONE

NUMBER — TEX. PENAL CODE § 43.031 EFF. SEP. 1, 2023

• HB 611: Effective 9/1/2023. Creates misdemeanor offense of unlawful disclosure of a residence address or telephone number. See Penal Code § 42.074

• a) A person commits an offense if the person posts on a publicly accessible website the residence address or telephone number of an individual with the intent to cause harm or a threat of harm to the individual or a member of the individual's family or household.

• (b) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense results in the bodily injury of:

o (1) the individual whose residence address or telephone number was posted on a publicly accessible website; or

o (2) a member of the individual's family or household.

• (c) This section does not apply to a public servant who posted information described by Subsection (a) to a publicly accessible website in the performance of the public servant's duties as required by or in accordance with state or federal law.

• (d) If conduct that constitutes an offense under this section also constitutes an offense under Section 36.06(a-1), the actor may be prosecuted under either section but not both. ONLINE

• (a) A person commits an offense if the person owns, manages, or operates an interactive computer service or information content provider, or operates as an information content provider, with the intent to promote the prostitution of another person or facilitate another person to engage in prostitution or solicitation of prostitution.

• (b) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor:

o (1) has been previously convicted of an offense under this section or Section 43.041; or

o (2) engages in conduct described by Subsection (a) involving a person younger than 18 years of age engaging in prostitution, regardless of whether the actor knows the age of the person at the time of the offense. AGGRAVATED ONLINE PROMOTION OF PROSTITUTION

• (a) A person commits an offense if the person owns, manages, or operates an interactive computer service or information content provider, or operates as an

information content provider, with the intent to promote the prostitution of five or more persons or facilitate five or more persons to engage in prostitution or solicitation of prostitution.

• (b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if the actor:

o (1) has been previously convicted of an offense under this section; or

o (2) engages in conduct described Subsection (a) involving two or more persons younger than 18 years of age engaging in prostitution, regardless of whether the actor knows the age of the persons at the time of the offense.

SEXUAL PERFORMANCE BY A CHILD — TEX. PENAL CODE § 43.25

• (a) In this section:

o (1) “Sexual performance” means any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.

o (2) “Sexual conduct” means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.

o (3) “Performance” means any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience of one or more persons.

o (4) “Produce” with respect to a sexual performance includes any conduct that directly contributes to the creation or manufacture of the sexual performance.(5) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.

o (5) “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do any of the above.

o (6) “Simulated” means the explicit depiction of sexual conduct that creates the appearance of actual sexual conduct and during which a person engaging in the conduct exhibits any uncovered portion of the breasts, genitals, or buttocks.

o (7) “Deviate sexual intercourse” and “sexual contact” have the meanings assigned by Section 43.01.

[Non-cyber portions of statute omitted]

• (d) A person commits an offense if, knowing the character and content of the material, he produces, directs, or promotes a performance that includes sexual conduct by a child younger than 18 years of age.

• (e) An offense under Subsection (d) is a felony of the third degree, except that the offense is a felony of the second degree if the victim is younger than 14 years of age

at the time the offense is committed, regardless of whether the actor knows the age of the victim at the time of the offense.

• (f) It is an affirmative defense to a prosecution under this section that:

o (1) the defendant was the spouse of the child at the time of the offense;

o (2) the conduct was for a bona fide educational, medical, psychological, psychiatric, judicial, law enforcement, or legislative purpose; or

o (3) the defendant is not more than two years older than the child.

• (g) When it becomes necessary for the purposes of this section or Section 43.26 to determine whether a child who participated in sexual conduct was younger than 18 years of age, the court or jury may make this determination by any of the following methods:

o (1) personal inspection of the child;

o (2) inspection of the photograph or motion picture that shows the child engaging in the sexual performance;

o (3) oral testimony by a witness to the sexual performance as to the age of the child based on the child's appearance at the time;

o (4) expert medical testimony based on the appearance of the child engaging in the sexual performance; or

o (5) any other method authorized by law or by the rules of evidence at common law.

• (h) Conduct under this section constitutes an offense regardless of whether the actor knows the age of the victim at the time of the offense. TEX PEN CODE ANN. § 43.25 (West)

• In Edwards v. State, 642 S.W.3d 7 (Tex. App. Beaumont 2021, pet. ref’d), the court found that statutes which proscribed attempted sexual performance by a child regulated criminal conduct and did not enjoy the protections to speech set out in the First Amendment, and thus, those statutes were not unconstitutional as applied to defendant, although the child turned out to be a fabrication by an adult; the speech at issue was a request that defendant made asking a person whom he believed to be a child for a photo of a child engaged in a sexual act that was proscribed by statute. Therefore, 43.25 was not unconstitutional.

POSSESSION OF CHILD PORNOGRAPHY — TEX. PENAL CODE § 43.26:

• (a) A person commits an offense if:

o (1) the person knowingly or intentionally possesses, or knowingly or intentionally accesses with intent to view, visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct, including a child who engages in sexual conduct as a victim of an offense under Section 20A.02(a)(5), (6), (7), or (8); and

o (2) the person knows that the material depicts the child as described by Subdivision (1).

• (b) In this section:

o (1) “Promote” has the meaning assigned by Section 43.25.

o (2) “Sexual conduct” has the meaning assigned by Section 43.25.

o (3) “Visual material” means:

§ (A) any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or

§ (B) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

• (c) The affirmative defenses provided by Section 43.25(f) also apply to a prosecution under this section.

• (d) An offense under Subsection (a) is a felony of the third degree, except that the offense is:

o

o

(1) a felony of the second degree if it is shown on the trial of the offense that the person has been previously convicted one time of an offense under that subsection; and

(2) a felony of the first degree if it is shown on the trial of the offense that the person has been previously convicted two or more times of an offense under that subsection.

• d) An offense under Subsection (a) is:

o (1) a felony of the third degree if the person possesses visual material that contains fewer than 100 visual depictions of a child as described by Subsection (a)(1);

o (2) a felony of the second degree if the person possesses visual material that contains 100 or more visual depictions of a child as described by Subsection (a)(1) but fewer than 500 such depictions;

o (3) a felony of the first degree if the person possesses visual material that contains 500 or more visual depictions of a child as described by Subsection (a)(1); or

o

(4) a felony of the first degree punishable by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 25 years if it is shown on the trial of the offense that, at the time of the offense, the person was:

§ (A) an employee at a child-care facility or a residential child-care facility, as those terms are defined by Section 42.002, Human Resources Code;

§ (B) an employee at a residential treatment facility established under Section 221.056, Human Resources Code;

§ (C) an employee at a shelter or facility that serves youth and that receives state funds; or

§ (D) receiving state funds for the care of a child depicted by the visual material.

TEXT OF SUBSECTION (D-1) AS ADDED BY ACTS 2023, 88TH LEG., R.S., CH. 93 (S.B. 1527), SEC. 6.02

• (d-1) If it is shown on the trial of an offense under Subsection (a) that the person engaged in conduct that constituted an offense under Subsection (e) during the same criminal episode:

o (1) an offense described for purposes of punishment by Subsection (d)(1) is a felony of the first degree; or

o (2) the minimum term of confinement for an offense described for purposes of punishment by Subsection (d)(2) is increased to 15 years.

TEXT OF SUBSECTION (D-1) AS ADDED BY ACTS 2023, 88TH LEG., R.S., CH. 1041 (S.B. 129), SEC. 2

• (d-1) If it is shown on the trial of an offense under Subsection (a) that the visual material depicted a child younger than 10 years of age at the time the image of the child was made or that the defendant has been previously convicted of an offense under that subsection:

o (1) an offense described for purposes of punishment by Subsection (d)(1) or (2) is increased to the next higher category of offense; or

o (2) the minimum term of confinement for an offense described for purposes of punishment by Subsection (d)(3) is increased to 15 years.

• (d-2) The enhancement provided by Subsection (d-1) is unavailable if the person is also prosecuted under Subsection (e) for conduct occurring during the same criminal episode.

• (e) A person commits an offense if:

o (1) the person knowingly or intentionally promotes or possesses with intent to promote material described by Subsection (a)(1); and

o (2) the person knows that the material depicts the child as described by Subsection (a)(1).

• (f) [Repealed 2023]

• (g) An offense under Subsection (e) is a felony of the second degree, except that the offense is a felony of the first degree if it is shown on the trial of the offense that the person has been previously convicted of an offense under that subsection.

• (h) It is a defense to prosecution under Subsection (a) or (e) that the actor is a law enforcement officer or a school administrator who:

o (1) possessed or accessed the visual material in good faith solely as a result of an allegation of a violation of Section 43.261;

o (2) allowed other law enforcement or school administrative personnel to possess or access the material only as appropriate based on the allegation described by Subdivision (1); and

o (3) took reasonable steps to destroy the material within an appropriate period following the allegation described by Subdivision (1).

• (i) For purposes of conduct prohibited under this section, visual material to which that conduct applies includes a depiction of a child:

o (1) who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

o (2) whose image as a child younger than 18 years of age was used in creating, adapting, or modifying the visual material, including computergenerated visual material that was created, adapted, or modified using an artificial intelligence application or other computer software.

• In Ex parte Fusselman, 621 S.W.3d 112, 122 (Tex. App. Houston [14th Dist.] 2021, pet. ref’d), the Court found that: “Because section 43.26(a) only prohibits pornography depicting actual children, the statute is not vague or overbroad. Further, because pornography produced with actual children is not a category of speech protected by the First Amendment, the statute's prohibition of these materials does not violate the First Amendment nor [has the court] found any [authority] that overrules or undermines [the court’s] holding in Porath” (holding section 43.26 possession of child pornography did not violate free speech guarantee of First Amendment in that pornography produced with real children was not a category of speech protected by First Amendment). Accordingly, the Court found that that section 43.26 did not unconstitutionally criminalize simulated sexual conduct.

ELECTRONIC TRANSMISSION OF CERTAIN VISUAL MATERIAL DEPICTING MINOR — TEX. PENAL CODE § 43.261

• (a) In this section:

o (1) “Dating relationship” has the meaning assigned by Section 71.0021, Family Code.

o (2) “Minor” means a person younger than 18 years of age.

o (3) “Produce” with respect to visual material includes any conduct that directly contributes to the creation or manufacture of the material.

o (4) “Promote” has the meaning assigned by Section 43.25.

o (5) “Sexual conduct” has the meaning assigned by Section 43.25.

o (6) “Visual material” has the meaning assigned by Section 43.26.

• (b) A person who is a minor commits an offense if the person intentionally or knowingly:

o (1) by electronic means promotes to another minor visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material; or

o (2) possesses in an electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced the visual material or knows that another minor produced the visual material.

• (b-1) For purposes of conduct prohibited under Subsection (b), visual material to which that conduct applies includes a depiction of a minor:

o (1) who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

o (2) whose image as a minor was used in creating, adapting, or modifying the visual material, including computer-generated visual material that was created, adapted, or modified using an artificial intelligence application or other computer software.

• (c) An offense under Subsection (b)(1) is a Class C misdemeanor, except that the offense is:

o (1) a Class B misdemeanor if it is shown on the trial of the offense that the actor:

§ (A) promoted the visual material with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or

§ (B) except as provided by Subdivision (2)(A), has previously been convicted one time of any offense under this section; or

o (2) a Class A misdemeanor if it is shown on the trial of the offense that the actor has previously been:

§ (A) convicted one or more times of an offense punishable under Subdivision (1)(A); or

§ (B) convicted two or more times of any offense under this section.

• (d) An offense under Subsection (b)(2) is a Class C misdemeanor, except that the offense is:

o (1) a Class B misdemeanor if it is shown on the trial of the offense that the actor has previously been convicted one time of any offense under this section; or

o (2) a Class A misdemeanor if it is shown on the trial of the offense that the actor has previously been convicted two or more times of any offense under this section.

• (e) It is an affirmative defense to prosecution under this section that the visual material:

o (1) depicted only the actor or another minor:

§ (A) who is not more than two years older or younger than the actor and with whom the actor had a dating relationship at the time of the offense; or

§ (B) who was the spouse of the actor at the time of the offense; and

o (2) was promoted or received only to or from the actor and the other minor.

• (f) It is a defense to prosecution under Subsection (b)(2) that the actor:

o (1) did not produce or solicit the visual material;

o (2) possessed the visual material only after receiving the material from another minor; and

o (3) destroyed the visual material within a reasonable amount of time after receiving the material from another minor.

• (g) If conduct that constitutes an offense under this section also constitutes an offense under another law, the defendant may be prosecuted under this section, the other law, or both.

• (h) Notwithstanding Section 51.13, Family Code, a finding that a person has engaged in conduct in violation of this section is considered a conviction for the purposes of Subsections (c) and (d).

POSSESSION OR PROMOTION OF LEWD VISUAL MATERIAL DEPICTING CHILD

TEX. PENAL CODE § 43.262

• (b) A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:

o (1) depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years of age at the time the visual material was created;

o (2) appeals to the prurient interest in sex; and

o (3) has no serious literary, artistic, political, or scientific value.

• (b-1) For purposes of conduct prohibited under Subsection (b), visual material to which that conduct applies includes a depiction of a child:

o (1) who is recognizable as an actual person by the person's face, likeness, or other distinguishing characteristic, such as a unique birthmark or other recognizable feature; and

o (2) whose image as a child younger than 18 years of age was used in creating, adapting, or modifying the visual material, including computergenerated visual material that was created, adapted, or modified using an artificial intelligence application or other computer software.

• (c) An offense under this section is a state jail felony, except that the offense is:

o (1) a felony of the third degree if it is shown on the trial of the offense that the person has been previously convicted one time of an offense under this section or Section 43.26; and

o (2) a felony of the second degree if it is shown on the trial of the offense that the person has been previously convicted two or more times of an offense under this section or Section 43.26.

• (d) It is not a defense to prosecution under this section that the depicted child consented to the creation of the visual material.

• Held as an unconstitutional restriction on speech protected by the First Amendment and overbroad in Ex parte Lowry, 639 S.W.3d 151, 169 (Tex. App. Houston [1st Dist.] 2021, pet. granted). In Lowry, the defendant was tried and found guilty of having child pornography and child erotica on their phone. Appellant filed an application for a pretrial writ of habeas corpus, arguing that section 43.262 is unconstitutional on its face and violates the First and Fourteenth Amendments to the U.S. Constitution because it (1) regulates a substantial amount of protected speech (speech which is neither obscene nor child pornography), and (2) is unconstitutionally vague. The Houston Court of Appeals agreed, finding that the statute failed strict scrutiny and was of “alarming breadth” that was “real” and “substantial.”

FREE SPEECH FLOW CHART

Reprinted w/ permission of Mark W. Bennett

Round Rock, Texas

Punishment Phase: Pre-Trial & Trial Strategies

Speaker: Mona Kermani

Harris County Public Defender's Office

1201 Franklin Street, 13th Floor Houston, TX 77002

832.606.9861 phone

mona.kermani@pdo.hctx.net email

Defending Sex Crime Allegations: Adults and Children

Punishment Phase: Pre-Trial & Trial Strategies

I. Introduction

Sex crimes are often seen by society as more aggravated than violent crimes. These cases elicit a visceral reaction, and it is particularly difficult to persuade people to show compassion to those accused or convicted of these crimes Given society’s particular disgust when it comes to sexual assault cases, mitigation is an important tool in your toolbox to be used during pre-trial negotiations, or when preparing for the punishment phase of trial.

II. What is Mitigation?

The provision for the presentation of mitigation evidence is encapsulated in Article 37.07(3)(a)(1) of the Texas Code of Criminal Procedure, which allows the defendant to offer evidence on any matter the court deems relevant to sentencing. Most evidence relevant to sentencing can be offered during punishment. This means that your mitigating evidence can be wide and varied in scope

Legally, mitigation is information that we can use to try and persuade either the prosecutor during pre-trial negotiations, or the jury during the sentencing phase of trial, that our client deserves a less severe sentence. Conceptually, what we are trying to do is to humanize our client.

III. The Power of Dehumanization

Humans have a tendency to unconsciously dehumanize certain populations. When we dehumanize these populations, we are able to do horrible things to them. This can be

seen throughout history. One example is the use of slaves. Any society which has held slaves sees them not as humans, but as property, and we have all seen countless examples of the horrific treatment of slaves. They are treated in a way that the owner would not treat their family member, neighbor, or peer. Dehumanization is ultimately at the root of racism. There is an ‘us/them’ mentality in which people see those from other races as ‘others,’ with whom we do not share values, customs, traditions. They do not look like us or speak like us. This ‘otherness’ allows people to treat those of other races in a way which we would not treat our own. What we are doing during this process is assigning value to people’s lives; we decide that some people’s lives have more value than others. For the most part this is not a conscious effort to be cruel, but an unconscious process that can lead to extreme cruelty.

IV. Humanizing our Client

Intellectually, we all know that our clients are human beings. But in criminal cases, and especially in sexual assault cases, it is very likely that the prosecutor and/or jury will be engaging in this dehumanization process. They will see your client as un-human as how else could they possibly have done these awful things that no human could possibly do?

When the prosecutor looks at your client’s case all they know about your client is the facts of the crime they are currently accused of, and any crimes they have been convicted of in the past. Once the jury has convicted your client, and you are starting the punishment phase of trial, all they know about your client is all the facts and details of the crime for which they have just found him guilty. They have sat through extensive testimony listening to all the details of the crime, and in a sex assault case likely highly

emotive testimony. Your role is to undo the dehumanization process that has already set in, to show that your client is a human being worthy of compassion and mercy, and whose life has value.

V. How to Humanize our Client: Storytelling

We humanize our client by telling their story. Storytelling is at the heart of mitigation, and your client is the main character. Storytelling is something that humans have done throughout history and across cultures. Human beings love stories, stories evoke emotions in us, they move us. We become invested in certain characters; they allow us to step into someone else’s shoes and see the world from a different perspective. We can use storytelling in mitigation to help the sentencer, whether that is the prosecutor or the jury, to step into our client’s shoes and see from a different perspective.

There are certain characters in stories who resonate with us and others who do not. There are certain storylines that move us, and others which do not. What differentiates a believable and moving character or story from one that is not? We do not like characters who are all good, or who are all bad. We like characters who are complex. We like characters who are flawed, who have times in their life when they are successful, and times when they fail, times in their lives of striving, and times when obstacles have set them back. These characters are believable and reflect our lived experience of human beings. Stories which contain these ups and downs, and which contain themes that we can identify with are the ones which are powerful and resonate with us. When you present your punishment case to the jury, or when you try to persuade the prosecutor to offer a less severe punishment, these are the storytelling techniques to guide your presentation.

VI. Pre-Trial Punishment Strategies: Gathering Information

The two main components of a mitigation investigation are records collection and witness interviews. These two tools will be used cyclically as you will identify witnesses to interview from the records you collect, and then you will identify additional witnesses to interview from the new records you have collected.

1. Your Client

Your client is the starting point for your mitigation investigation. Get releases signed early in the case so that you can collect their records. Obtain information from your client so that you know where to request records from. The list of records to request is endless, ideally you want every record for your client that exists. You want to get birth records, medical records, mental health records, CPS records, school records to name but a few.

Do not subpoena the records, request them using a release of information. The subpoena alerts the prosecutor to the records you are requesting and can lead them to order those records themselves. The records may contain information that is harmful to your client. If you use a release of information, you can choose not to use the records if they are harmful and the prosecutor will be none the wiser.

2. Records Collection

Once you have received your records, review them, and start issue spotting. You will see what issues have been at play in your client’s life – the records might describe sexual abuse, physical abuse, poverty, and other adverse experiences. They might indicate that your client has mental health issues. By doing your

records collection before you start interviewing you already know what some of the issues are that are likely to arise when talking to people who knew your client.

3. Interview witnesses

Once you have issue spotted from your records you can start interviewing lay witnesses. Do not limit this to people who your client has told you about, talk to as many people who knew your client as you possibly can. Some key interviewing techniques that are used during mitigation investigations in capital cases are the following:

A) Do not call ahead, turn up unannounced. It is never a good time for a lay witness to talk to you about your client, but it is much harder for the witness to turn you away when you are on their doorstep than if you call on the phone. By turning up unannounced you get access to information that you wouldn’t otherwise have if you called ahead. The witness does not have time to make their house look ‘presentable’ and if this is a house where your client grew up you will get a much better idea of the environment they were raised in. Witnesses will not have had a chance to think about what information they think you want to know and start filtering what they tell you.

B) The best interviews are when you say the least. Let the witness talk, if they say something that you want more information about, note it, and loop back to it later so you do not interrupt their flow.

C) Use open ended questions like “tell me more about that.” Try to get past labels and descriptions to specific stories. For example, if they tell you that your client’s mother was physically abusive ask “what did that look like ” By getting

specific stories and imagery you can make your client’s story much more persuasive and powerful.

D) Ask for any pictures or records the family have. Often family members have records that a facility may no longer keep due to the passage of time, especially if your client is older.

4. Master Chronology

Once you have collected information from records and lay witness interviews process the information into a master chronology. This is a timeline of any significant events from your client’s life. Separate the sections by your client’s age. By doing this you will be able to see where you have gaps in your client’s life history, and you can go back and ask witnesses about those times. You can also see links between different events. For instance, maybe a lay witness told you that when your client was four years old your client’s mother had a new boyfriend move in with them. Around that same time, you see in the records that the client is constantly in and out of hospital with physical injuries. Maybe this is a clue that the mother’s boyfriend was physically abusive to your client. If you do not process the information into this master chronology it is very easy to miss these connections. Read through your chronology and you will see that your client’s story is there.

5. Experts

Once you have gathered information from yourinvestigation you are ready to retain experts. Rather than using a general mitigation expert to issue spot for you – do your investigation first, issue spot for yourself, and then identify experts that you need in specific areas. For instance, you might want a trauma expert, sexual abuse expert, or

a psychiatrist depending on your client’s particularized history. In sexual assault cases you might also want to get an expert who can speak to your client’s risk of sexual reoffending in the future.

VII. Pre-Trial Punishment Strategies: Presenting Information

An important tool that you can use during pre-trial negotiations is to put together a mitigation packet. Drawing on the storytelling themes discussed above a thorough mitigation packet should contain the following items:

1. Mitigation memorandum outlining your client’s story. This should include the full arc of your client’s story detailing how they came to be in the situation they are in today. It should include mitigating information about their early life, a time in their life when things could have been different, times of striving, and times when there have been setbacks.

You should contextualize your client’s problematic behaviors by showing the environment they developed in. Often, the behaviors that lead to our client’s entanglement in the criminal justice system are adaptive responses to a maladaptive environment. They developed as coping mechanisms and survival instincts in an environment where they were exposed to adverse experiences that threatened their survival. Once they are out of that maladaptive environment, these behaviors are no longer adaptive but are in fact, maladaptive. For instance, your client might be described as aggressive. Perhaps your client grew up in a household where they were physically abused for any perceived wrongdoing Perhaps they were hit if they were a few minutes late from school, or because they forgot their lunch bag. A child growing up in this environment, where they never

know when they will be hit next or for what, might become hypervigilant because they are constantly on guard. This hypervigilance can lead them to perceive threats more easily than others and be quicker to react physically to those perceived threats. Once they are out in the wider community, this presents as aggressive behavior. Your client might have substance abuse problems which leads them to cycle in and out of jail. Often substance use develops as a way to escape and numb oneself from a reality that is too painful to endure. Perhaps your client was being sexually abused as a child. Taking drugs became a way to avoid feeling the pain – mental and physical – associated with the abuse. Once they are out of that environment and no longer being abused, they still turn to drugs because that is the coping strategy they have learned to manage stressful situations.

The caveat to describing how your client’s behaviors developed is that you do not want your client to come across as now so broken that the prosecutor thinks they are beyond repair, however sympathetic they might be to your client’s experiences. The prosecutor’s primary concern is to protect society from your client committing these sorts of acts again in the future. If they think that your client is so damaged by their experiences that these behaviors are now engrained and cannot change, they will not want to give your client the opportunity to get back into society any time soon. To overcome this, you need to include information about your client’s capacity for change, redemption, and rehabilitation. If possible, work on this pre-trial. If your client is in the community, can they start working, get mental health or substance abuse treatment, start therapy. If they are in custody some jails have re-entry programs which defendants can participate in. This way

you can show a) your client’s difficult early life experiences that led them to where they are now, and b) why they will not continue to have these problems in the future.

2. Letter from your client expressing remorse. The sentencer’s perception of your client’s remorse is important to their determination of what sentence is appropriate If the prosecutor does not believe your client is remorseful, they will be more concerned about the risk of re-offending.

3. Character Letters. You want to show that your client is a person who is loved, and has the capacity to love, who has redeeming qualities, and is not defined by the act of which they are accused.

4. Certificates/Awards showing your client’s achievements.

5. Family photographs

6. Re-entry plan. If possible, for a client who is in jail, include a plan for how they will re-integrate into society if released.

VIII. Trial Punishment Strategies

The presentation of your mitigation evidence during trial will consist of much of the same information that you would put in a mitigation memorandum, but it will look different because it is being presented live. All the components listed above for inclusion in a mitigation memorandum should be presented during the punishment phase of trial. It is not effective to put on a litany of family members in punishment who all testify that your client was a great kid when they were fourteen years old. You will not be fooling anyone by trying to portray your client as a boy scout. Remember the factors that differentiate a

good story from a bad one, you need to present the good, the bad, and the painful to show your client in all their three-dimensional complexity.

During the punishment phase of trial your lay witnesses should testify to the stories from your client’s life that they were present for. Your experts should testify as to how those experiences impacted your client’s development and behavior. Your records should corroborate the stories told by your lay witness as they were created contemporaneously and not by family members who are trying to help your client now that they are facing the criminal justice system.

IX. Conclusion

The information you gather from your investigation and present either pre-trial or at trial should show the sentencer that your client is a complex, multifaceted, threedimensional human being. They are a person who has the capacity to love, and who is loved. Your client’s life has value, they have taken steps to redeem themselves, and they are worthy of the sentencer’s mercy and compassion. The techniques and tools in this paper should help you to achieve just that for your clients in sexual assault case.

Texas Criminal Defense Lawyers Association

Round Rock, Texas

Plea Bargains and Consequences in Sex Crimes

Speaker:

Michael Gross

Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, TX 78215

210.354.1919 phone

210.354.1920 fax

lawofcmg@gmail.com email

https://www.txmilitarylaw.com/ website

PLEA BARGAINS AND CONSEQUENCES IN SEX CRIMES

Michael C. Gross

Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215

(210) 354-1919

(210) 354-1920 Fax lawofcmg@gmail.com

Defending Sex Crime Allegations: Adults and Children

Texas Criminal Defense Lawyers Association

Round Rock, Texas – November 30 to December 1, 2023

GROSS & ESPARZA, P.L.L.C.

1524 North Alamo Street

San Antonio, Texas 78215

lawofcmg@gmail.com

www.txmilitarylaw.com

(210) 354-1919

MICHAEL C. GROSS CURRICULUM VITAE

EDUCATION

B A., Trinity University, San Antonio, Texas, 1984

J.D., St. Mary’s University, San Antonio, Texas, 1987

PROFESSIONAL ACTIVITIES AND RECOGNITIONS

Judge Advocate, U.S. Marine Corps, 1988-1992

Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996

Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012

Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present

Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997

Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995

Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011

President, Texas Criminal Defense Lawyers Association, 2021-2022

President, San Antonio Criminal Defense Lawyers Association, 2011-2012

Board of Disciplinary Appeals, Vice Chair 2021-present, Member 2018-present

Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008

Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009

Named in Best Lawyers in America, 2005 - 2023

Named in Best Lawyers as San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017, 2024

Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2023

Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014

Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013

AV rated by Martindale Hubble

COURT ADMISSIONS

Supreme Court of the United States, 1991

Supreme Court of the State of Texas, 1987

United States Court of Appeals for the Armed Forces, 1990

United States Court of Appeals for the Fifth Circuit, 1990

United States Court of Appeals for the Tenth Circuit, 1998

United States District Court for the Northern District of Texas, 1990

United States District Court for the Southern District of Texas, 1991

United States District Court for the Eastern District of Texas, 1991

United States District Court for the Western District of Texas, 1992

I. TCCP Chapter 42A, Community Supervision

A. 42A.054. Limitation on Judge-Ordered Community Supervision

Judge cannot give probation if guilty of indecency with child Texas Penal Code (TPC) 21 11; trafficking/continuous trafficking persons TPC 20A.02/20A.03; agg sex asslt TPC 22.021; sex asslt TPC 22.011; sex perf by child TPC 43.25; compelling prostitution/agg promotion prostitution TPC 43.04/43.05; injury child/elderly/disabled if F1 & child V TPC 22.04(a)(1); TPC 30.02 burg hab w/intent commit fel under TPC 21.02 (cont sex abuse child)/21.11/22.011/22.021/25.02 (prohibited sexual conduct).

B. 42A.056. Limitation on J u r y - R e c o m m e n d e d Community Supervision

Jury cannot give probation if guilty of TPC21.11/22.011/22.021 if V < 14y/o at time offense; agg kid TPC 20.04 & V < 14y/o at time offense & D intent violate/abuse V sexually; sexual performance of child TPC 43.25; agg promotion prostitution/compelling prostitution TPC 43.04/43.05; or trafficking/continuous trafficking of persons TPC 20A.02/20A.03.

C. 42A.102. Eligibility for Deferred Adjudication Community Supervision

42A.102(a) – Ct may put D on deferred for indecency with a child TPC 21.11, sexual assault TPC 22.011, aggravated sexual assault TPC 22.021, regardless of V’s age; or 42A.453(b) fel offense (agg kid w/intent violate/abuse V sexually TPC20.04(a)(4); trafficking TPC20A.02 if D: (A) trafficked V w/intent/ knowledge that V would engage in

TPC 43.25 sexual conduct; or (B) benefitted from participating in a venture that involved a trafficked V engaging in PC43.25 sexual conduct or PC21.08/21 11/22 011/22 021/25 02 or 30.02(d) w/intent commit listed fel or PC43.05(a)(2)/43.25/43.26); only if judge makes finding in open court that this would be in best interest of V.

42A.102(b)(1) – Ct may not grant deferred for PC20A.02/20A.03 offenses.

42A.102(b)(2) – Ct may not grant deferred for PC21.11/22.011/22.021/43.04/43.05 or 42A.453(b) fel other than PC20A.02/20A.03 or PC22.021 punishable under (f) or under PC12.42(c)(3)or(4) if the D has prior communitysupervision for such listed offenses.

42A.102(b)(3) – Ct may not grant deferred for continuous sexual abuse of child TPC 21.02, or for agg sex asslt V < 6, or V < 14 if committed violently or victim drugged via TPC 22.021(f) or if prosecution pleads/proves prior conviction under TPC 22.021(f) or under similar laws another state via TPC 12.42(c)(3) or (4).

D.

42A.111. Dismissal and Discharge

At end deferred period and if no adjudication of guilt, judge shall dismiss proceedings against D and discharge D.

May early terminate if in best interest of society and D unless offense committed after 8-31-99 required sex offender registration under TCCP Chapter 62.

Except for TPC 12.42(g), dismissal/discharge may not be considered conviction for the purposes of disqualifications/disabilities.

If dismissal/discharge, on conviction for 1

another offense, D’s previous deferred is admissible regarding punishment; also for certain licensing.

E. 4 2 A . 3 0 5 . C o m m u n i t y Outreach

This article applies only to D on CS for poss/manuf/deliveryof Ch481 H&SC & not sex offender.

Art. 42A.305. COMMUNITY OUTREACH.

(a) This article applies only to a defendant placed on communitysupervision for an offense involving the possession, manufacture, or delivery of a controlled substance under Chapter 481, Health and Safety Code.

(b) If a judge orders a defendant to whom this article applies to perform community service, the judge may authorize the defendant to perform not more than 30 hours of community outreach under this article instead of performing hours of community service.

(c) Community outreach under this article must consist of working with a secondary school at the direction of the judge to educate students on the dangers and legal consequences of possessing, manufacturing, or delivering a controlled substance.

(d) A secondary school is not required to allow a defendant to perform community outreach at that school.

(e) The judge may not authorize the defendant to perform hours of community outreach under this article instead of performing hours of community service if:

(1) the defendant is physically or mentally incapable of participating in community

outreach; or

(2) the defendant is subject to registration as a sex offender under Chapter 62.

F. 42A.453. Child Safety Zone

42A.453(b) - This article applies to D on CS for PC20.04(a)(4) if intent violate/abuse V sexually; PC20A.02 if D: (A) trafficked V w/intent/ knowledge that V would engage in PC43.25 sexual conduct; or (B) benefitted from participating in a venture that involved a trafficked V engaging in PC43.25 sexual conduct or PC21 08/21 11/22 011/22.021/25.02 or 30.02(d) w/intent commit listed fel or PC43.05(a)(2)/43.25/43.26.

42A.453(c) - If D (not a student at primary/ secondary school) on CS via 42A.453(b) & PC22.011(c) child was V, ct must est 1000' child safety zone.

42A.453(c)(2) - D must attend psychological counseling sessions for sex offenders with an individual or organization that provides sex offender treatment or counseling as specified or approved by the judge or the defendant's supervision officer.

G. 42A.701. Reduction or Termination of Community Supervision Period

After completing 1/3 of CS or 2yrs, whichever is less, ct may reduce/terminate CS.

After completing ½ of CS or 2yrs, whichever is more, ct shall decide if reduce/terminate CS unless D hasn’t done certain conditions.

Once conditions CS met & CS expired, ct shall amend/modify sentence, if necessary, to

conform to the CS period; and discharge D.

If ct discharges D under this article, ct may set aside verdict/permit D to withdraw D’s plea; and shall dismiss the accusation/complaint/ information/indictment against D; D who receives a discharge and dismissal under this subsection is released from all penalties and disabilities resulting from the offense of which D has been conv or pleaded guilty, except that: proof of the conviction/guilty plea shall be made known to ct if subsequent offense; and for certain licensing

This article does not apply to D conv under TPC49.04-49.08, Ch62 sex offender; or fel described by 42A.054.

H. 42A.757. Extension of Community Supervision for Certain Sex Offenders

If D on deferred after conv for PC21.11/22.011/22.021, at any time during CS, ct may extend the CS period.

At a 42A.751(d) hrg, ct may extend CS for not > 10yrs if D hasn’t shown commitment to avoid future criminal behavior & release of D from CS would endanger public.

Ct may extend CS period under this article only once.

Ct may extend CS period for D via 42A.752(a)(2) and this article.

The 42A 753(a) bar for CS period in fel exceeding 10yrs doesn’t apply to D whose CS is increased via this article or 42A.752(a)(2).

II. Punishment

A. Danger Areas In Sex Cases

1. Capital Felony

TPC 12.42(c)(3) – Capital felony if on trial for aggravated sexual assault of a child < 6, or < 14 if committed violently or victim drugged TPC 22.021(f), if prosecution pleads/proves prior conviction under TPC 22.021(f) or under similar laws another state.

The Supreme Court of the United States has held it unconstitutional to execute a person for the rape of a child. Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.wd 525 (2008).

“It is well established that under Texas law only convictions that are ‘final’ can be used for enhancement purposes. ‘[I]t is equally well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted.’ ‘A successfully served probation is not available for enhancement purposes.’ The imposition of a sentence is required to establish the finality of a conviction. However, a probated sentence can turn into a final conviction if probation is revoked. It is the State’s burden to prove finality for purposes of enhancement under Art. 12 42(d).” Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018); see also Ex parte Langley, 833 S.w.2d 141 (Tex. Crim. App. 1992).

2. Mandatory Life Without Parole

TPC 12.42(c)(4) – Life without parole if a defendant 18 or older on trial for continuous trafficking of persons TPC 20A.03, or a sexually violent offense (TCCP 62.001(6), and affirmative finding under TCCP 42.015(b) or

42A.105(a) for offense other than continuous sexual abuse of child TPC 21.02 or aggravated sexual assault TCP 22.021) if prosecution pleads/proves prior conviction for: (A) an offense under Section 20A.03 or of a sexually violent offense; or (B) an offense that was committed under the laws of another state and that contains elements that are substantially similar to 20A.03 or of a sexually violent offense.

“It is well established that under Texas law only convictions that are ‘final’ can be used for enhancement purposes. ‘[I]t is equally well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted.’ ‘A successfully served probation is not available for enhancement purposes.’ The imposition of a sentence is required to establish the finality of a conviction. However, a probated sentence can turn into a final conviction if probation is revoked. It is the State’s burden to prove finality for purposes of enhancement under Art. 12.42(d).” Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018);

see also Ex parte Langley, 833 S.w.2d 141 (Tex. Crim. App. 1992).

3. Mandatory Life

TPC 12.42(c)(2) requires an automatic life sentence if a defendant is convicted for:

I. Child sex trafficking TPC 20A.02(a)(7) or (8), indecency with a child sexual contact TPC 21 11(a)(1), sexual assault TPC 22.011, or aggravated sexual assault TPC 22.021, or

II Aggravated kidnapping TPC 20.04(a)(4) if with intent to violate/abuse victim sexually, or

III. Burglary habitation TPC 30.02(d) if with intent to commit felony listed in (I) or (II) above or indecency with a child TPC 21.11;

and previous conviction for:

I. Sexual performance by child TPC 43.25, possession/promotion child porn TPC 43.26, obscenity with patently offensive material TPC 43.23(h), or

II Child sex trafficking TPC 20A.02(a)(7)or(8), continuous sexual abuse child TPC 21.02, indecency with child TPC 21.11, sexual assault TPC 22.011, aggravated sexual assault TPC 22.021, prohibited sexual conduct TPC 25.02, or

III. Aggravated kidnapping with intent violate/ abuse victim sexually TPC 20.04(a)(4), or

IV Burglary habitation TPC 30.02(d) with intent commit offense in (II) or (III) above, or

V. Outside Texas offense containing similar offense in (I)-(IV) above.

“It is well established that under Texas law only convictions that are ‘final’ can be used for enhancement purposes. ‘[I]t is equally well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted.’ ‘A successfully served probation is not available for enhancement purposes.’ The imposition of a sentence is required to establish the finality of a conviction. However, a probated sentence can turn into a final conviction if probation is revoked. It is the State’s burden to prove finality for purposes of enhancement under Art. 12.42(d).” Ex parte Pue, 552 S.W.3d 226 (Tex Crim. App. 2018); see also Ex parte Langley, 833 S.w.2d 141 (Tex. Crim. App. 1992).

B. Continuous Sexual Abuse

The range of punishment for this offense TPC 21.02 is 25 years to life with no possibility of parole and no fine. The repetitive nature of the crime and considerations for the victim weigh

in favor of punishment that does not allow for parole. Glover v. State, 406 S.W.3d 343 (Tex. App. – Amarillo 2013, pet. ref’d.). If a defendant has been previously convicted of Continuous Abuse of a Child, the second conviction falls under the automatic life provision Texas Penal Code 12.42(c)(2)(B)(ii). Being that the minimum range of punishment is 25 years, deferred adjudication is not an option.

C. Super Aggravated Sexual Assault of a Child

“Super” Aggravated Sexual Assault of a Child was codified in the existing Aggravated Sexual Assault statute. It created a new punishment scheme under § 22.021(f) in cases where the victim is under the age of six at the time of the offense or if the victim was younger than 14 and there was an additional aggravating factor as described in § 22.021(a)(2)(A). These aggravating factors include: causing serious bodily injury or attempt to cause the death of the victim; by words or acts, or words or acts in the presence of the child, places the victim in fear that any person will become the victim of sex trafficking or that death, serious bodily injury, or kidnapping will be imminently inflicted on any person; uses or exhibits a deadly weapon; acts in concert with another; or with intent to facilitate offense, administers any substance capable of impairing the victim’s ability to appraise the nature of the act or resist the act. This is the same range of punishment as Continuous Sexual Abuse of a Child, 25 years to life with no parole, also with no fine and with no deferred adjudication.

An indictment may allege the child under six as part of the count or allege it as a special issue of under six. If the under six is charged as a special issue, it can be submitted to the jury during either phase of trial at the judge’s

discretion. Keep in mind if punishment is to the judge, the issue will need to be submitted to the jury because it is a fact that increases the sentence so it is an “element” of a crime and must be submitted to the jury Alleyne v United States, 133 S.Ct. 2151 (2013). Although not required with continuous sexual abuse, the State will have to elect under this statute, and any other sexual abuse indictment. If the defense requests, election is required when the State has alleged one offense in the indictment, but proved up multiple incidents. Failure to elect is constitutional error and implicates double jeopardy Ex Parte Goodbread, 967 S.W.2d 859 (Tex Crim. App. 1988); O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988).

D. Punishment Evidence

You need an investigator, mitigator, and psychologist at least.

Article 37.07(3)(a)(1) of the Texas Code of Criminal Procedure provides that whether punishment be assessed by the judge or jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and any extraneous bad acts that the state can prove beyond a reasonable doubt.

A court may also consider as a factor in mitigating punishment the conduct of a defendant while participating in a program under Chapter 17 as a condition of release on bail. Nearlyanything relevant to sentencing will be admitted during punishment.

Suitability for probation – Evidence which

tends to show that a defendant is a person who is, or is not, suitable for probation has been deemed a matter “relevant to sentencing.” A convicted person could call a probation officer who had interviewed the person as an expert to testify that he or she would be a suitable candidate for probation. See Ellison v. State, 201 S.W.3d 714, 717 (Tex. Crim. App. 2006).

Psychological Testing – Evidence in the form of testimony from a psychologist that through test, it is his opinion that the defendant is not likely to reoffend can be admitted to mitigate punishment. And testimony that the defendant has a profile contrary to that of a recidivist can be admitted to mitigate punishment. See Peters v. State, 31 S.W.3d 704, 722 (Tex. App. –Houston [1st Dist.] 2000).

Voluntary Intoxication. Texas Penal Code § 8.04 provides that evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried.

E. Restitution

Agg kidnap – Shall pay restitution in an amount equal to the cost of necessary rehabilitation, including medical, psychiatric, and psychological care and treatment, for the victim of the offense if the victim is younger than 17 years of age. Tex. Code of Crim. Proc. § 42.0371.

Art. 42.0371. MANDATORY RESTITUTION FOR KIDNAPPED OR ABDUCTED CHILDREN (a) The court shall order a defendant convicted of an offense under Chapter 20, Penal Code, or Section 25.03, 25.031, or 25.04, Penal Code, to pay restitution in an amount equal to the cost of necessary

rehabilitation, including medical, psychiatric, and psychological care and treatment, for the victim of the offense if the victim is younger than 17 years of age.

(b) The court shall, after considering the financial circumstances of the defendant, specify in a restitution order issued under Subsection (a) the manner in which the defendant must pay the restitution.

(c) A restitution order issued under Subsection (a) may be enforced by the state or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action.

(d) The court may hold a hearing, make findings of fact, and amend a restitution order issued under Subsection (a) if the defendant fails to pay the victim named in the order in the manner specified by the court.

F. Sex Offender Registration

Sex offender registration can be one of the most far reaching consequences for sexual assault charges. Chapter 62 of the Code of Criminal Procedure governs sex offender registration. Specifically, Article 62.001 listed all the offenses that are considered reportable convictions and require registration. The length of time for registration is determined by TCCP Article 62.101.

Lifetime registration required:

Agg Kidnap w/Sexual Intent TPC 20.04(a)(4)

Aggravated Sexual Assault TPC 22.021

Burglary F1 w/Sexual Intent TPC 30.02(d)

Compel Prostitution V < 18 TPC 43.05(a)(2)

Continuous Sexual Abuse TPC 21.02

Indecency w/Child- Contact TPC 21.11(a)(1)

Indecen Child-Exposure & priorTPC 21.11(a)(2

Trafficking persons TPC 20A.02(a)

Obscenitypatentlyoffensive docs TPC 43.23(h)

Poss/Promotion Child Porn TPC 43.26

Prohibited Sexual Conduct TPC 25.02

Sexual Assault TPC 22.011

Sexual Performance by a Child TPC 43.25

10-year registration required:

Bestiality TPC 21.09

Compelling Prostitution TPC 43.05(a)(1)

Indecency Child- Exposure TPC 21.11(a)(2)

Indecent Exposure- 2nd violation (unless results in DFAJ) TPC 21.08

Online Solicitation of a Minor TPC 33.021

Prostitution (2d degree only) TPC 43.02(c-1)(3)

Kid/Agg Kid/Restrain V < 17 TPC20.02/03/04

III. Collateral Consequences

A. Parole

In the usual sex case, the inmate must serve at least one-half of his or her actual sentence before he or she is eligible for parole. Inmate must serve a minimum of two up to a maximum of 30 calendar years before he or she is eligible for parole. Good conduct time not considered. Tex. Gov’t Code § 508.145(d)(1). Inmate not eligible for intensive supervision parole. Tex. Gov’t Code § 499.027(b)(2)(E).

Cont Sex Abuse Child TPC 21.02 –

The inmate serving a sentence for an offense under Section 21.02, Penal Code is not eligible for release on parole. Tex. Gov’t Code § 508.145(a). Inmate not eligible for intensive supervision parole. Tex. Gov’t Code § 499.027(b)(2)(Y).

Super Agg Sex Asslt Child TPC 22.021(f) –

The inmate serving a sentence for an offense under Section 22.021(f), Penal Code is not eligible for release on parole. Tex. Gov’t Code § 508.145(a)&(d)(2). Inmate not eligible for

intensive supervision parole. Tex. Gov’t Code § 499.027(b)(2)(I).

TPC 12.42(c)(2) offenses –

An inmate serving a sentence under Section 12.42(c)(2), Penal Code, is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 35 calendar years.

B. Driver’s License

A defendant who is required to register as a sex offender must apply to DPS for an original or renewal driver’s license or personal identification certificate. This new license or certificate must contain an indication that the defendant is subject to the sex offender registration requirements. Tex. Code Crim. Proc. § 42.016. A driver’s license is automatically revoked if the holder is subject to the registration requirements of Chapter 62 of the Tex Code Crim. Proc. and fails to apply to the department for renewal of the license as required by Tex. Code Crim. Proc. § 62.060. Tex. Transp. Code § 521.348.

Art. 42.016. SPECIAL DRIVER'S LICENSE OR IDENTIFICATION REQUIREMENTS FOR CERTAIN SEX OFFENDERS. If a person is convicted of, receives a grant of deferred adjudication for, or is adjudicated as having engaged in delinquent conduct based on a violation of an offense for which a conviction or adjudication requires registration as a sex offender under Chapter 62, the court shall:

(1) issue an order requiring the Texas Department of Public Safety to include in any driver's license record or personal identification certificate record maintained by the department for the person an indication that the person is subject to the registration requirements of Chapter 62; 7

(2) require the person to apply to the Texas Department of Public Safety in person for an original or renewal driver's license or personal identification certificate not later than the 30th day after the date the person is released or the date the department sends written notice to the person of the requirements of Article 62.060, as applicable, and to annually renew the license or certificate;

(3) notify the person of the consequence of the conviction or order of deferred adjudication as it relates to the order issued under this article; and

(4) send to the Texas Department of Public Safety a copy of the record of conviction, a copy of the order granting deferred adjudication, or a copy of the juvenile adjudication, as applicable, and a copy of the order issued under this article.

Art. 62.060. REQUIREMENTS RELATING TO DRIVER'S LICENSE OR PERSONAL IDENTIFICATION CERTIFICATE. (a) A person subject to registration under this chapter shall apply to the department in person for the issuance of, as applicable, an original or renewal driver's license under Section 521.272, Transportation Code, an original or renewal personal identification certificate under Section 521.103, Transportation Code, or an original or renewal commercial driver's license or commercial learner's permit under Section 522.033, Transportation Code, not later than the 30th day after the date:

(1) the person is released from a penal institution or is released by a court on community supervision or juvenile probation; or

(2) the department sends written notice to the

person of the requirements of this article.

(b) The person shall annually renew in person each driver's license or personal identification certificate issued by the department to the person, including each renewal, duplicate, or corrected license or certificate, until the person's duty to register under this chapter expires.

C. Deportation/Exclusion

Deportable offense if convicted of an aggravated felony crime of violence and sentence of one year or longer is imposed. 8 USCS § 1227(a)(2)(A)(iii); 8 USCS § 1101(a)(43)(F); 18 USCS § 16. See Alfarache v. Cravener, 203 F.3d 381 (5th Cir. Tex. 2000) and United States v. Charles, 275 F.3d 468 (5th Cir. Tex. 2001).

Deportable offense if convicted of a crime against a child. 8 USCS § 1227(a)(2)(E). Deportable offense if convicted of a crime of moral turpitude within 5 years of admission and sentence of one year or longer may be imposed. 8 USCS § 1227(a)(2)(A)(i). See Hunter v. Underwood, 471 U.S. 222, 226 (1985). Deportable if convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of the date of either offense, the length of sentences, or date of last admission. 8 USCS § 1227(a)(2)(A)(ii).

Exclusion applies if convicted of two or more crimes, regardless of whether either offense is one of moral turpitude, and regardless of the dates of conviction, if the aggregate sentence is 5 years or more. 8 USCS § 1182(a)(2)(B) Exclusion applies if convicted of crime involving moral turpitude and the maximum penalty exceeds one year of imprisonment and sentence exceeds 6 months. 8 USCS §

1182(a)(2)(A) (i)(I).

Aggravated Kidnapping may be considered an aggravated felony and is typically considered a crime of moral turpitude. Torres-Varela, 23 I&N Dec. 78 (BIA 2001).

D. Civil Commitment

Texas Legislature has implemented a civil commitment process to provide intensive supervision and treatment following release from prison. Texas Health & Safety Code Ch. 841. The Texas Civil Commitment Office (TCCO), is responsible for administering the civil commitment program to rehabilitate sex offenders and protect public safety.

In 2005, the Texas Supreme Court upheld the constitutionality of Texas’ civil commitment program. In Re Commitment of Michael Fisher, 164 S.W.3d 637 (Tex 2005). The Court held the Sexually Violent Predator (SVP) Act was civil in nature, was not punitive, and was constitutional.

Section 841.001 of the Texas Health and Safety Code details the legislative findings of the Texas civil commitment program. A SVP is a repeat sexually violent offender that suffers from a behavioral abnormality that makes the person likely to engage in a predatory act of sexual violence. Tex. Health & Safety Code § 841.003(a). A person is considered a repeat sexually violent offender if the person is: (1) convicted of more than one sexually violent offense and sentenced for at least one of the offenses; or (2) convicted of a sexually violent offense regardless of whether a sentence was imposed, or entered a plea of guilty or no contest to a sexually violent offense for a grant

of deferred adjudication, is adjudged not guilty by reason of insanity of a sexually violent offense, or is adjudicated by a juvenile court has having engaged in delinquent conduct constituting a sexually violent offense and after that date the person is convicted, receives deferred adjudication, is adjudged not guilty by reason of insanity, or is adjudicated as having engaged in delinquent conduct the person commits a sexually violent offense for which the person is convicted and a sentence imposed or is adjudged not guilty by reason of insanity. Tex. Health & Safety Code § 841.003(b).

Chapter 841 defines the attorney representing the state to be the district attorney, criminal district attorney, or county attorney with felony criminal jurisdiction. Tex. Health & Safety Code § 841.002(1). A referral to the attorney representing the state following a diagnosis of a behavioral abnormality will go to the district or county attorney in the county of the potential SVP’s last county of conviction for a sexually violent offense. Tex. Health & Safety Code § 841.023. If the local district or county attorney chooses to move forward with commitment proceedings and files a petition, it must be done in the district court which was the last court of conviction for a sexually violent offense. Tex Health & Safety Code § 841.041.

E. Possession of Weapons

If convicted of a felony, a person is disqualified from obtaining a license to carry a handgun. Tex. Gov’t Code § 411.172(3). May not ship, transport, or receive a firearm or ammunition, or is otherwise in violation of federal law (maximum sentence of 10 years in prison and $250,000 fine). 18 USC § 922(g) and (n).

Sec. 411.172. ELIGIBILITY.

(a) A person is eligible for a license to carry a handgun if the person:

(1) is a legal resident of this state for the six-month period preceding the date of application under this subchapter or is otherwise eligible for a license under Section 411.173(a);

(2) is at least 21 years of age;

(3) has not been convicted of a felony . . .

F. No voting, serving on any jury, or holding public office

May not vote in a public election. Tex. Elec. Code § 11.002(4). See also Tex. Const. art. XVI, § 2. May not serve on a petit jury. Tex. Code Crim. Proc. § 35.16. May not serve on a grand jury Tex Code Crim. Proc. § 19.08. May not run for, or be appointed to, a public elective office in the State of Texas The defendant is disqualified for life unless he receives a pardon or is ‘’otherwise released’’ from the disqualification. Tex. Elec. Code § 141.001(4).

Sec. 11.002. QUALIFIED VOTER. (a) In this code, "qualified voter" means a person who:

(1) is 18 years of age or older;

(2) is a United States citizen;

(3) has not been determined by a final judgment of a court exercising probate jurisdiction to be:

(A) totally mentally incapacitated; or

(B) partially mentally incapacitated without the right to vote;

(4) has not been finally convicted of a felony or, if so convicted, has:

(A) fully discharged the person's sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or

(B) been pardoned or otherwise released from the resulting disability to vote;

(5) is a resident of this state; and

(6) is a registered voter.

(b) For purposes of Subsection (a)(4), a person is not considered to have been finally convicted of an offense for which the criminal proceedings are deferred without an adjudication of guilt.

S e c 1 4 1 0 0 1 E L I G I B I L I T Y REQUIREMENTS FOR PUBLIC OFFICE. (a) To be eligible to be a candidate for, or elected or appointed to, a public elective office in this state, a person must:

(1) be a United States citizen;

(2) be 18 years of age or older on the first day of the term to be filled at the election or on the date of appointment, as applicable;

(3) have not been determined by a final judgment of a court exercising probate jurisdiction to be:

(A) totally mentally incapacitated; or

(B) partiallymentally incapacitated without the right to vote;

(4) have not been finally convicted of a felony

from which the person has not been pardoned or otherwise released from the resulting disabilities;

(5) have resided continuously in the state for 12 months and in the territory from which the office is elected for six months immediately preceding the following date:

(A) for a candidate whose name is to appear on a general primary election ballot, the date of the regular filing deadline for a candidate's application for a place on the ballot;

(B) for an independent candidate, the date of the regular filing deadline for a candidate's application for a place on the ballot;

(C) for a write-in candidate, the date of the election at which the candidate's name is written in;

(D) for a party nominee who is nominated by any method other than by primary election, the date the nomination is made; and

(E) for an appointee to an office, the date the appointment is made;

(6) on the date described by Subdivision (5), be registered to vote in the territory from which the office is elected; and

(7) satisfy any other eligibility requirements prescribed by law for the office.

(b) A statute outside this code supersedes Subsection (a) to the extent of any conflict.

(c) Subsection (a) does not apply to an office for which the federal or state constitution or a statute outside this code prescribes exclusive eligibility requirements.

(d) Subsection (a)(6) does not apply to a

member of the governing body of a district created under Section 52(b)(1) or (2), Article III, or Section 59, Article XVI, Texas Constitution.

Art. 35.16. REASONS FOR CHALLENGE FOR CAUSE. (a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:

1. That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;

2. That the juror has been convicted of misdemeanor theft or a felony Art. 19.08. QUALIFICATIONS. A person may be selected or serve as a grand juror only if the person:

(1) is at least 18 years of age;

(2) is a citizen of the United States;

(3) is a resident of this state, and of the county in which the person is to serve;

(4) is qualified under the Constitution and laws to vote in the county in which the grand jury is sitting, regardless of whether the person is registered to vote;

(5) is of sound mind and good moral character;

(6) is able to read and write;

(7) has not been convicted of misdemeanor theft or a felony . . .

G. Licensures

Licensing authority may suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination if convicted of:

1. An offense that directly relates to the duties and responsibilities of the licensed occupation. See Tex. Occ. Code §§ 53.022 and 53.023 for factors in determining whether a criminal conviction directly relates to an occupation;

2. An offense that does not directly relate to the duties and responsibilities of the licensed occupation but was committed less than 5 years before the date the person applies for the license;

3. An offense of Murder, Capital Murder, Indecency with a Child, Aggravated Kidnapping, Aggravated Sexual Assault, Aggravated Robbery, Sexual Assault, Injury to a child, elderly individual, or disabled individual, Sexual Performance bya Child, etc.; or

4. A sexually violent offense, as defined by Tex Code of Crim. Proc. § 62.001 (Continuous sexual abuse of young child or children; Indecency with a child; Sexual assault; Aggravated sexual assault; Sexual performance by a child; Aggravated kidnapping, if the defendant committed the offense with intent to violate or abuse the victim sexually; 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 62.001; an offense under laws of another state, federal law, foreign country, or the Uniform Code of Military Justice if the offense contains elements substantially similar to elements of an offense listed above).

A license holder’s license shall be revoked on the license holder’s imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatorysupervision. Tex Occ. Code § 53.021(b).

Sec. 53.021. AUTHORITY TO REVOKE, SUSPEND, OR DENY LICENSE. (a) A licensing authority may suspend or revoke a license, disqualify a person from receiving a license, or deny to a person the opportunity to take a licensing examination on the grounds that the person has been convicted of:

(1) an offense that directly relates to the duties and responsibilities of the licensed occupation;

(2) an offense that does not directly relate to the duties and responsibilities of the licensed occupation and that was committed less than five years before the date the person applies for the license;

(3) an offense listed in Article 42A.054, Code of Criminal Procedure; or

(4) a sexually violent offense, as defined by Article 62.001, Code of Criminal Procedure.

(a-1) Subsection (a) does not apply to a person who has been convicted only of an offense punishable as a Class C misdemeanor unless:

(1) the person is an applicant for or the holder of a license that authorizes the person to possess a firearm; and

(2) the offense for which the person was convicted is a misdemeanor crime of domestic violence as that term is defined by 18 U.S.C. Section 921.

(b) A license holder's license shall be revoked 12

on the license holder's imprisonment following a felony conviction, felony community supervision revocation, revocation of parole, or revocation of mandatory supervision . . .

(d) A licensing authority may consider a person to have been convicted of an offense for purposes of this section regardless of whether the proceedings were dismissed and the person was discharged as described by Subsection (c) if:

(1) the person was charged with:

(A) any offense described by Article 62.001(5), Code of Criminal Procedure . . .

Sec. 53.022. FACTORS IN DETERMINING WHETHER CONVICTION RELATES TO OCCUPATION. In determining whether a criminal conviction directly relates to an occupation, the licensing authority shall consider:

(1) the nature and seriousness of the crime;

(2) the relationship of the crime to the purposes for requiring a license to engage in the occupation;

(3) the extent to which a license might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; and

(4) the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the licensed occupation.

Sec. 53.023. ADDITIONAL FACTORS FOR LICENSING AUTHORITY TO CONSIDER.

(a) In determining the fitness to perform the duties and discharge the responsibilities of the

licensed occupation of a person who has been convicted of a crime, the licensing authority shall consider, in addition to the factors listed in Section 53.022:

(1) the extent and nature of the person's past criminal activity;

(2) the age of the person when the crime was committed;

(3) the amount of time that has elapsed since the person's last criminal activity;

(4) the conduct and work activity of the person before and after the criminal activity;

(5) evidence of the person's rehabilitation or rehabilitative effort while incarcerated or after release; and

(6) other evidence of the person's fitness, including letters of recommendation from:

(A) prosecutors and law enforcement and correctional officers who prosecuted, arrested, or had custodial responsibility for the person;

(B) the sheriff or chief of police in the community where the person resides; and

(C) any other person in contact with the convicted person.

(b) The applicant has the responsibility, to the extent possible, to obtain and provide to the licensing authority the recommendations of the prosecution, law enforcement, and correctional authorities as required by Subsection (a)(6).

(c) In addition to fulfilling the requirements of Subsection (b), the applicant shall furnish proof in the form required by the licensing authority that the applicant has:

(1) maintained a record of steady employment;

(2) supported the applicant's dependents;

(3) maintained a record of good conduct; and

(4) paid all outstanding court costs, supervision fees, fines, and restitution ordered in any criminal case in which the applicant has been convicted.

IV.

What to expect after sentencing

A. Probation will tell your client he cannot live at home with his children

With the child safety zone and other conditions of probation, the probation officer will tell your client that the conditions of probation prohibit your client from residing at his home with his minor children. To protect against this in an appropriate case (where the complainant is not one of your client’s children), have the trial judge at the sentencing hearing clarifythe probation conditions to allow your client to reside at home with his children. Your client’s spouse and children will need to tell the judge that they want your client home. Your client’s spouse may also need to agree to take a chaperone class or other such class to assure the judge that your client’s children will be safe at home with your client.

B. Prosecution will move for a lifetime protective order for the complainant

After sentencing, your client will receive notice that the prosecution is seeking a lifetime protective order, pursuant to Article 7B.007 of the Texas Code of Criminal Procedure, for the complainant against your client pursuant to Article 7B.001 of the Texas Code of Criminal Procedure if the complainant was a victim of an offense under Sections 20A.01, 20A.03, 21.02, 21.11, 22.011, 22.021, 42.072, or 43.05. The manner in which the statutes are written

provides no defense to this lifetime protective order.

Law Offices of Jesko & Steadman

612 Earl Garrett Kerrville, TX 78028

830.257.5005 phone

830.896.1563 fax

Csteadman612@hotmail.com email

Clay

Law

Ph.:

I. The Investigation

Investigation Standards

As attorneys and zealous advocates, we are required to properly investigate and prepare our client’s defense, and to ensure that this effort and manner of preparation continues through trial, if necessary. Sexual assault cases can be particularly difficult because of the complexity of the subject matter, and the horrendous facts that are generally involved. However, as difficult as it is to defend these types of cases, we cannot “mail it in”, so to speak. At all times you need to be diligent and thorough in your efforts of investigating the facts of your client’s case, as well as preparing same for trial.

American Bar Association Standard on Criminal Justice [Section 4-4.1 (a)]

Defense counsel should explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’ stated desire to plead guilty.

Note: In other words, we must investigate the case facts in spite of our client’s best efforts to handcuff our ability to effectively defend their case.

State Bar of Texas Performance Guidelines for Non-Capital Criminal Defense Representation [Guideline 4.1: Investigation – Generally]

You are required to complete an independent review of the case as promptly as possible.

This is a good reason for getting an investigator involved as soon as possible.

Verify that the charge(s) are legally and factually correct.

Verify and investigate both areas of the client’s case, specifically being those facts pertaining to guilt/innocence and punishment.

Ex Parte Niswanger, 335 S.W.3d 611 (Tex. Crim. App. 2011) [Citing Strickand v. Washington]

Counsel’s function is to make the adversarial testing process work in the particular case. Accordingly, competent advice requires than an attorney conduct an independent legal and factual investigation sufficient to enable him to have a firm command of the case and relationship between the facts and each element of the offense.

Duty to Investigate Mitigation and Punishment Evidence

The Texas Court of Criminal Appeals has held that a defense counsel’s failure to investigate the basis of his client’s mitigation defense can amount to ineffective assistance of counsel. Ex Parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App. 2006).

The United States Supreme Court had previously adopted this standard, as espoused in Ex Parte Gonzales, in non-capital cases. See Wiggins v. Smith, 539 U.S. 510 (2003).

Furthermore, both the First and Fourteenth Courts of Appeals in Houston, Texas, have found that defense counsel can be ineffective in a non-capital case, for failure to present available character evidence when the record shows that the witnesses would have been

able to offer mitigating testimony. See Milburn v. State, 15 S.W.3d 267 (Tex. App. – Houston [14th Dist.] 2000, pet. ref’d); See also, Shanklin v. State 190 S.W.3d 154 (Tex. App. – Houston [1st] 2005), pet. dism’d 211 S.W.3d 315 (Tex. Crim. App. 2007)

Note: [Again, we must remember that we have a duty not only to investigate those facts pertaining to the guilt or innocence of our client, but too also thoroughly investigate any

and all facts pertaining to the punishment of our client. In a punishment type case, facing an impossible set of facts, you can sometimes feel overwhelmed or that there is nothing you can do to assist and/or defend your client. However, you must persist and continue and investigate thoroughly any pertinent mitigation and/or punishment evidence, because the failure to do so may result in a finding of ineffective assistance of counsel.]

II.

Deconstructing the Case

Developing a Defensive Strategy

Most sexual assault cases involve similar issues regarding the evidence and the defensive theories which are available because of the evidence.

Defensive Theories:

1. Alleged victim is lying

a. Act was consensual (Adult Case)

b. Act did not occur (Adult or Child Case)

2. Alleged victim is mistaken (sugar coated version of lying)

a. Act was consensual (Adult Case)

b. Act may have occurred but was committed by someone else (Adult or Child Case) Family members often cover or lie for other family members

3. Punishment case

a. Act occurred and you begin to frontload your punishment evidence

b. Rattle the bushes and negotiate a plea.

Case Components

Most sexual assault cases, whether it involves an adult or a child, involve similar components which must be investigated. Every sexual assault will involve an outcry which is made at some point by the alleged victim, whether that alleged victim is an adult or child. In the case of a sexual assault involving a child, the outcry takes on a more significant role under Article 38.072 of the Texas Code of Criminal Procedure, which will be discussed more in detail later in this paper.

In breaking down the various parts of a sexual assault, whether it is an adult or a child, we are always investigating our questions based on the follow:

Questions That Need Answers:

1. Who is the alleged victim?

As we will discuss below these relationships become an important issue in the investigation.

2. What happened?

This will become important as we discuss the external factors

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involved and other witnesses which have given statements or may be available for exculpatory information.

3. Where did it happen?

The physical attributes of the location of the alleged offense are important.

4. When did it happen?

This component works in tandem with Where it happened and should be investigated together with those external factors.

5. How did it happen?

This component is connected to What happened because What and How it happened are investigated together as they are usually interconnected.

6. Why did it happen?

This question often answers itself if your client claims that I did not do it, and this is complete false allegation. Otherwise, this question should be investigated in other ways such as a consent defense, or why is my client being accused and being played as the scapegoat. The alleged victim’ motive and bias to lie is important to investigate when looking at this issue.

Basics of Investigation

1. The Outcry

a. When made in relation to when alleged assault occurred

b. How made and under what circumstances

c. Who is the initial outcry made to?

2. The Alleged Victim [Personal and Medical History]

- Age

- Medical History

- Relationship to your client

- Family History

- Educational level and background

- Child Protective Services History

3. Were any Physical Injuries Sustained [Types]

- Bruises

- Scratches

- Abrasions

- Tears (On about or near Vaginal Cavity and/or Anus)

• Note: A qualified medical expert can assist you in identifying and working with the type and causation of certain injuries that may have been sustained

4. Circumstances of the Alleged Assault

 Time and date when it occurred. Details can be important

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 What is the description of the physical location where act allegedly occurred?

 Type of lighting available?

 If occurred inside, what are the dimensions of the location and what type of furnishings were present?

 Is it a crowded neighborhood, and did anyone hear or see anything?

 If crowded neighborhood who else had access to the location and the alleged victim?

 Are there any security cam recording devices either in the location itself or located outside of the location? (i.e.: a security at a local convenience store may provide information).

 It is always important to have your investigator canvas the neighborhood for this information, or you will need to do this yourself if an investigator is not available

5. Family Relationships

• Between your client and the alleged victim

• Motive and bias to lie

• Family members often attempt to lie or cover up for the real perpetrator

• Child Protective Services history

o Between the alleged victim and their family

• Possible other suspects (Any other family members have violent, or drug related criminal histories)

• If case is a child sexual assault, investigate the relationship between your client and the other parent.

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• Motive and bias to lie

• Bad breakup or divorce

6. Client’s Background and History

 Medical history (physical anomalies of client’s anatomy)

 Mental health history

 Criminal history

 Child Protective Services history

 Client is a previous victim of sexual abuse

 Employment history

 Family background (i.e.: parents and where your client grew up)

7. Develop a Timeline of Events

 Using your breakdown of the alleged victim, the witnesses, family members, the location, any injuries sustained and causation, and any other material case facts, you will begin to develop a timeline of events

 Does your client have an alibi?

 Who else had access to the alleged victim

 Who else was and/or could have been present when assault allegedly occurred

 What were the physical circumstances which were present and/or should have been present?

Suspects and Witnesses

 What is the nature of the relationship between your client and the alleged victim?

[Source of Motive or Bias]

 Identify the witnesses that have observed the relationship between your client and the alleged victim.

[Source of Motive or Bias]

 What is the nature of the relationship between the witnesses and your client?

[Source of Motive or Bias]

 What is the nature of the relationship between the witnesses and the alleged victim?

[Source of Motive or Bias]

 Identify any connections between the physical circumstances (i.e.: location, time of day, date of occurrence) involved concerning the crime as alleged, and your client, the alleged victim, and witnesses.

[Example: Alibi Defense]

 Identify any injuries sustained during the assault by the alleged victim. You will need any to determine if the alleged victim had any pre-existing injuries and/or previously sustained similar type injuries? (i.e.: alleged victim engages in rough sex)

• Note: Obtain the alleged victim’s medical records if possible.

Investigate the Crime Scene

 In a sexual assault case, you must investigate and document the entire crime scene. If possible, this should be done with the assistance of your investigator and/or a crime scene forensic specialist or reconstructionist if applicable to the circumstances.

 If the crime scene is a residence, what are the dimensions and square footage of the residence?

 What furnishings were present during the occurrence of the injuries?

 What is your client’s connection to the crime scene?

 What is the child’s connection to the crime scene?

 Do any of the witnesses have a connection to the crime scene?

 Is the crime scene in a remote location or populated area (this would possibly lead to other witnesses or possibly video of the offense)?

 If applicable, how long did it take law enforcement and/or emergency medical services to respond to the 911 call and arrive at the crime scene?

Resources

• Video of surrounding businesses or residences. (You or your investigator should complete a canvass of the surrounding neighborhood).

• Google Maps and Google Earth.

• Subpoena 911 call and dispatch records.

• Use a property records search to determine ownership and possession.

• Determine square footage, and distances to other residence(s) or building (ie: if occurred in an apartment complex, usually can get a copy of floor plan of each type of unit or is online).

• If possible, review your client’s, the child’s family, and any witness’s social media accounts to establish any connections between them and the crime scene. (It is surprising what people will tweet, post on Facebook, or put on Instagram or Pinterest)

III.

Collecting Information

1. Social Media and the Internet

Why should we use social media to investigate and discover information?

Because, law enforcement is using social media as an investigative tool, and they are starting to invest in training for officers to develop these specific types of investigative skills. I will usually have my investigator monitor these sites to try and obtain information on witnesses and the child’s family and/or parents. Also, you can employ experts to perform a type of social media scrub/search. Use your client, or his friends or family members, to assist in gathering information off of these sites.

 Twitter is an online social networking and microblogging service.

 Facebook is an online social networking service.

 Using sites such as Facebook and Twitter can lead you to other witnesses and expose the motive(s) and biases of the child, the child’s family, and/or other witnesses.

 When witnesses or the alleged victim engage in a Twitter or Facebook conversation regarding your case can sometimes provide very useful information in establishing their specific motives and/or biases towards your client.

 Pinterest, and Instagram can provide similar type information.

However, in using social media sites for purposes of investigation, be very aware and careful of how you initiate contact, and for

what purpose. If an alleged victim and/or his family is on Facebook, and you attempt to “friend” that individual for investigative purposes, this could potentially lead to an ethical issue, based upon the context of the Facebook conversation which transpires. Social media is a form of recorded media, and it should be handled and treated carefully. I don’t have an answer to this question but would advise you to tread lightly in this area. However, if the person’s page or account is public and/or has public content, in my opinion there would be no obligation to notify them of your representation. It is usually in the public account or public content pages where we discover useful information.

General internet sites and search engines which may be useful in these types of cases.

 Yahoo and Google are internet companies which are known for their search engines and web portal capabilities.

 Yahoo, Google and Bing are very useful web search engines which most of us are familiar with using.

 Wikipedia is a general research site, with multiple sister projects, such as Wikibooks, Wikiquote, Wikidata, and Wikisource. This site will not provide very much information on specifics of a given case, but it is a general database that I use to research pertinent topics regarding an investigation, or an expert used by the State.

 Google Earth is a very useful site as it will allow you to get an aerial

picture and/or mapped layout of a given geographic location. I will use Google Earth to determine distances, location, and terrain in some cases. You can upgrade to Google Earth Pro for a fee.

 Google Scholar and Google Books are useful sites to research experts in their respective fields and any authored publications. These sites can be helpful in either finding experts or researching the State’s experts for purposes of cross examination.

Specific internet sites which may be useful for investigative purposes in these types of cases.

(a) Attorney General of Texas (free site)

 Website: www.texasattorneygeneral.gov

 The website is a good research tool and has a page specific for “Open Records Request”, under the Texas Public Information Act.

 The page referencing the process by which you can request information under the “Open Records Act” provides you with a phone number to contact the Open Records Division, if you have not received a response from a governmental body as required under the Texas Public Information Act.

 Within 15 days of receiving your “Open Records Request”, the governmental body to which you directed your request must send the Attorney General of Texas its arguments for withholding such information.

 In the event that you do not receive the information request, or a response as required, you may contact Jordan Hale, Public

Information Coordinator, and Office of the Attorney General, P.O. Box 12548, Austin, Texas 78711-2548, and Fax (512) 494-8017.

(b) Digital Media Law Project

 Website: www.dmlp.org

 This website was founded in 2007 as the “Citizen Media Law Project”.

 Basically, it was created to ensure that individuals and organizations involved in online journalism and digital media have access to the legal resources, education, tools and representation that they need to thrive.

 I have found this site helpful when needing to research certain requests for public information. Journalists often have to rely on an open records request as part of their investigation, and there is no need to reinvent the wheel.

 If you go to the legal guide and type in records and use Texas as your limited search reference, you can obtain information on Access to Public Records in Texas, and other informative information.

(c) Texas Commission on Law Enforcement (free site)

 Website: www.tcole.texas.gov

 As previously mentioned, this site allows you to request under the Texas Public Information Act, an officer’s training history. Can be extremely useful in cross examination of the officer.

(d) Texas Department of Public Safety

 Website:www.dps.texas.gov

 I will use this site to perform a public search on an individual’s criminal history. In order to use this service,

you must establish an account with a credit card, and there is a fee of $3.00 per search which is charged.

 Useful in running basic criminal history searches which are available to the public. This is not a TCIC or NCIC criminal history search.

(e) Texas Department of Criminal Justice

 Website: www.tdcj.state.tx.us/index.html

 I will use this site for basic information, and locating other inmates that may need to be interviewed or on which I need to request information and documentation from T.D.C.J.I.D.

(f) Window on State Government

 Website: www.window.texas.gov

 This is a general site for the Texas Comptroller of Public Accounts.

 Under the Quick Start Guide, it has resources for Citizens, Business, and Government, which can provide links to other useful sources of information.

(g) Texas Association of Appraisal Districts

 Website: www.taad.org

 Under Resources, you can access all CAD website links, and has contact information for all county appraisal districts.

 This can be useful in locating individuals, as long as they are property owners.

(h) Tarlton Law Library

 Website: http://tarlton.law.utexas.edu/

 This is website for the University of Texas at Austin School of Law

 Can provide helpful information, but generally in the form of legal research.

(i) TCDLA

 Website: www.tcdla.com

 This is our website, and exclusive to members it provides access to the Listserv, Brief Motion and Memo Bank, Expert List, Directory Search, Significant Decisions, and other Resources.

 Listserv is a great way to gather information on certain State witnesses or experts, to the extent they have been used by the State before, even in different counties and jurisdictions.

(j) Farmer’s Almanac

 Website:

 www.almanac.com

 This website is free for most uses and has a weather site where you can retrieve basic information on historical weather, such as rain, snow, and temperature for a given city and state.

(k) Weather.org

 Website: www.weather.org

 Free website for most purposes that allows you to retrieve basic historical information on weather patterns

2. Subpoenas and Releases

Once you have determined the source of the needed information, it is possible the only manner in which to obtain this information is to subpoena this information.

 When subpoenaing medical records, mental health records, or counseling and therapy records, you will need the child’s full name, date of birth, social security number if available, the dates and/or period of treatment specific to your case, and the name and address of the facility and/or care provider. These types of subpoenas are sometimes objected to by the facility or care provider under HIPPA. If this is the case, I would file a specific motion for discovery on this issue and address the same with the court, specifically identifying why this information is necessary. In order to have your specific discovery request granted you will need to demonstrate a compelling need. However, in cases involving child abuse or a child’s death, it is not difficult to connect the needed information to the known facts of your case, in order to demonstrate the compelling need to the Court. If the court grants your specific discovery request, re-issue the subpoena with the attached order stating that the described information is to be delivered “in camera” to the Court for inspection, and within the subpoena itself identify a pre-trial hearing date and time for which these records are to be produced.

 When subpoenaing education/school records, you will need to include the child’s full name, date of birth, social security number if available, the dates and periods of records you are seeking, and the name and address of the specific educational entity you are requesting produce the records. If the subpoena is objected to and/or not responded to, you should repeat

the steps as outlined in subsection (b) above.

 This same “in camera” process may apply to subpoenaing any CPS records.

When I am attempting to subpoena any information which I believe a party may deem sensitive, I will sometimes file a specific motion for discovery ahead of time and inform the Court that if granted I intend to subpoena this information “in camera” for the Court’s inspection. In the event that the Court decides after conducting an “in camera” inspection of the documents, that you are not entitled to review said documents, you must object and have the Court mark and seal the documents as an appellate exhibit, such that the Court of Appeals can review this information if your client is convicted

Many times, the entities involved will just comply with the subpoena request, because they do not want to have to come to court on a specified date and time in order to deliver the records requested.

You should begin your investigation and start gathering these records, as soon as possible. This is important because you will want to thoroughly review the records to see if they are useful or can provide names of other potential witnesses.

 If you want to use these records in trial, and they meet the requirements under the Texas Rules of Evidence 803 (6) – Business Records Exception, and the authentication requirements under Texas Rules of Evidence 902 (10), you will need to have the necessary affidavit completed and the records filed with the required notice at least 14 days prior to the commencement of trial. Further, under Texas Rule of

Evidence 902 ((10) (a)), the proponent of the record must serve a copy of the record and the required affidavit upon all parties to the case, at least 14 days before the day on which evidence is first presented at the trial of the case. See Generally Texas Rules of Evidence 902.

If you are gathering information regarding the client and his family, and those individuals are cooperating with your investigative efforts, you will use basic releases for medical, military, counseling and therapy, mental health, education/school, social security administration, and I.R.S., records and information.

 Most employment and/or personnel records will need to be subpoenaed from the home office of the business or employer in question.

 Probation, County Jail, and T.D.C.J.I.D. records will need to be subpoenaed in most cases, as the respective counties and the Texas Department of Criminal Justice Institutional Division, deem them subject to certain confidentiality protections.

 Generally, you can obtain Attorney General Records and/or documents by sending a written request to the Public Information Coordinator. Again, if this is not successful or you do not receive a response, file a specific motion for discovery and obtain a ruling, and attach the order to the subpoena, and request that said information be subpoenaed “in camera” to the Court on a specific date and time. At a minimum it will force the Attorney General of Texas to respond.

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Chapter 56, Subchapter A of the Texas Code of Criminal Procedure provides for compensation to certain crime victims. This information may be useful in your investigation. I would suggest that you initially file a specific motion of discovery, requesting this information, and explaining why it is relevant, and necessary in the preparation of the client’s defense (ie: demonstrate and outline your compelling need given the known facts of your case). The application itself and its required contents under Article 56.36 is a variation of a verified and/or sworn statement, which should be discoverable. This will force the State, and perhaps the Attorney General’s office to respond and offer an argument and any applicable case authorities, suggesting why this information should not be produced. If you can obtain a ruling granting this discovery request, then you should subpoena the necessary records from the individual who has been designated in your county to be the Victim Assistance Coordinator.

The Defendant has a right to discover certain Crime Stoppers’ Information.

 As such you will need to file a discovery motion requesting this information and/or prepare a subpoena to the individual in possession of the applicable local crime stoppers information.

 This information can be subpoenaed and produced “in camera”. Under Thomas v. State, 837 S.W.2d 106 (Tex. Crim. App. 1992), the defendant has a constitutional right to the production of crime stoppers information in the possession of the local Crime Stoppers program, the Crime Stoppers Advisory Council or the District Attorney’s office. Further, what is more interesting,

under Crawford v. State, 892 S.W.2d 1 (Tex. Crim. App. 1994), any exculpatory information contained within a crime stoppers report is “Brady” material, and as such, there is no burden on the defendant under the Fourteenth Amendment to specifically request this material.

 This may present an interesting issue concerning the amendments to Article 39.14 (Michael Morton Act), as the State has a continuing obligation to produce “Brady” material, which could potentially include Crime Stoppers information and records.

 As a result of the potentially “Brady” element involved, you may want to subpoena the requested information “in camera”, because at a minimum the court can then make a determination if the requested information contains “Brady” material.

 If the court denies you access to this information, you should request that the information be sealed and marked as an exhibit for appellate purposes.

 At a minimum you have preserved error and have made the Court the de facto gatekeeper of this information for purposes of trial, and as such, should it be deemed material at the time it is inspected or at any future stage of the trial, it must be released to the defendant for review. See Generally Thomas v. State, 837 S.W.2d 106 (Tex. Crim. App. 1992). This presents an interesting dynamic at trial, because if the information is “Brady”, but initially withheld from the inspection of the defendant, I would argue that the release of this information during trial is a Brady

violation and request a mistrial and continuance if necessary to preserve error, and subsequently argue that jeopardy has attached.

Texas Public Information Act - Chapter 552 of the Texas Government Code

Listed below are some of the pertinent sections of Texas Public Information Act, which I have referenced and used in obtaining certain public information and records:

• §552.002 –Definition of Public Information; Media Containing Public Information

• §552.003 – Definitions

• §552.004 – Preservation of Information

• §552.021 – Availability of Public Information

• §552.022 – Categories of Public Information; Examples

• §552.026 – Education Records

• §552.0055 – Subpoena Duces Tecum or Discovery Request (A subpoena duces tecum or request for discovery that is issued in compliance with a statute or rule of civil or criminal procedure is not considered to be a request for information under this chapter) (ie: don’t refer to the information you may be requesting pursuant to a subpoena or your request for discovery as public information or records).

• §552.225 – Time for Examination

• §552.228 – Providing Suitable Copy of Public Information Within Reasonable Time

• §552.231 – Responding to Request for Information That Require Programming or Manipulation of Data

• §552.261 – Charge for Providing Copies of Public Information

IV. Experts

Based on the evidence, you will likely need the assistance of experts and an investigator in defending your client’s case, and in most sexual assault cases you can likely expect that the State will have multiple experts designated.

Types of Experts that are used in Sexual Assault Cases:

1. SANE Nurse

2. Pediatrician

3. Trauma and/or ER Physician

4. Pathologist

5. Other Medical Doctors or Professionals ((Pre-existing Injuries and susceptibility to injury (i.e.: alleged victim bruises easily))

6. DNA, Molecular Biology and Forensic Molecular Biology

7. Child Psychologist (purposes of outcry and forensic interview)

8. Forensic Psychologist (Testing – Punishment Issue)

9. Sex Offender Treatment Provider (Counseling – Punishment Issue)

10. Counselor and Therapist

This list is not inclusive and there are other experts with varied fields of expertise that may be involved on behalf of the State or retained by the Defense.

The States Expert(s):

1. Who is the State’s Expert:

Once we have begun our pre-trial investigation, we should have a basic understanding of the experts that the State has consulted with and who have rendered an opinion or are in the process of rendering an opinion. Therefore, we should create a separate file on each of the State’s experts and start to investigate their background, which is not limited to their field of expertise, but must include any information we can find regarding prior testimony. In many cases we see these experts being used routinely so we may have background information and examples of prior testimony available to us. In instances where you do not have those basic resources available, you will have to start from the beginning, and develop your own profile of this expert. This profile should include the field of expertise, their educational background, any articles they have written, who they generally testify on behalf of, subject matter of previous testimony, do they have any associates with whom they openly identify (are they conspiracy theorists or is the their work widely recognized), has their field of study been subjected to peer review, has the

basis of their opinion been peer reviewed, do their peers reference their work in a certain field, and have they ever been disqualified from offering an expert opinion. This list is not all inclusive but if you are unfamiliar with the expert’s work and prior testimony it is a place to start. Also, while we will discuss getting your own expert later in this paper, it cannot be understated how valuable having your own expert can be in developing the State’s expert’s profile. Often times, while these folks do not always swim in the same river, they all taste like fish. An expert’s reputation often precedes them, and it becomes easier to research and locate information on their background and field of expertise.

An example of this can be a simple internet search I performed on Dr. Grigson, also known as the “Doctor of Death”. I did not give him that alias, but his field of expertise and his background in testifying regarding future dangerousness in capital cases preceded itself. Below is what I found on Dr. Grigson in Wikipedia, just by typing in his name and Texas death penalty.

James Paul Grigson Jr. (January 30, 1932 – June 3, 2004),[3] nicknamed "Doctor Death" by some press accounts,[4][5][6] was a Texas forensic psychiatrist who testified in 167 capital trials, nearly all of which resulted in death sentences.[7] He was exposed as a charlatan[8][9] and expelled by the American Psychiatric Association and the Texas Society of Psychiatric Physicians in 1995 for unethical conduct.[6][8]

While this is not the type of expert you normally encounter in a sexual assault case, I offer this as an example of how and why it is critical for us to investigate the State’s experts and explore their background and area of expertise. This type of information is important in determining your case strategy and available defenses.

2. Constructing the Expert’s Profile

We need to know their personal details. (1) How old are they, (2) What is their family situation, (3) Where were they educated (4) What is their level of education, (5) How long have they been practicing in their given field of expertise, (6) Have they published any articles or books on topic, (7) What type of continuing education or training do they have, (8) What is their standard compensation for testifying, (9) Who do they generally testify for at trial, (10) Have they been excluded from testifying, (11) What treatises or reference materials have they relied upon in the past in developing an opinion in their field.

The basics are easy to obtain, such as their age, family situation, and educational level and experience. If the educational information on a given expert is limited, you may want to explore the possibility of two options to further develop this part of their profile. (1) Request the State to provide the expert’s CV, as many times the State may already have this information, and/or (2) Once you know who the expert is and the field of expertise call them up and ask them their level of education, where they went to school and how long have, they been practicing in the particular field of expertise. The other information which may be necessary to complete the profile is often times harder to come by unless the expert has a noted history and track record so to speak. If they do not then you may have to question the expert further on their experience and

training and the information, they rely upon in reaching their opinion or conclusion. They may not share this information with you, especially if the State has told them that they do not have to speak with us, but I am fine with asking those questions during trial, as follows:

a. “Dr. Smith, I called and spoke to you on the phone on December 3, 2022, correct? Yes.

b. When I asked you your level of training and experience, you refused to answer me, correct.

c. When I asked you how much you were being paid to review the State’s case, you refused to answer me, correct.

d. When I asked you what information or materials, if any, you relied upon in reaching any opinions or conclusions, you refused to answer me, correct.

e. If we are all interested in getting to the truth, can you understand my confusion as to why you refused to answer me. [Don’t’ care what the response is]

f. Can we agree that I was respectful and professional when speaking to you.

g. Can we agree that the only reason you refused to answer my questions is that the State told you not to speak to me, correct.

h. If the State is interested in getting to the truth and seeking justice, do you know why they would not want you to speak to me. [Don’t care what the response is]

I have not had to use this particular course of action with an expert in years, because the State will not risk instructing them to not agree to speak with us. Tactically, the State is giving you the golden ticket to discrediting their expert if they instruct them not to speak to us regarding their opinion and/or report. If science does not lie, then the State should not hide their experts in a cave.

If the State’s expert exclusively testifies for the State, we can generally locate this information through our friends in the defense bar, and by just investigating their work history. Prior transcripts of experts are of great use, and you can ask your friends and neighbors if they are available or even get on the TCDLA listserve and inquire as to their existence. If they only play for Team State, then our cross-examination takes on an additional aspect as to who they are, because we now want to show that they are biased and have tunnel vision. We can do this in a number of ways, such as:

a. Dr. Smith you have never testified on behalf of a Defendant, correct?

b. You exclusively testify on behalf of the government, correct?

c. You are being paid by the government for your testimony today, correct?

d. You are being paid the sum of XXX Dollars to render an opinion consistent with the State’s case, correct?

e. We can agree that the State would not have you come over here to give an opinion contrary to their case, be crazy, wouldn’t it?

Tip: This line of questioning to follow can work if you have information that the expert has been excluded from testifying or the Defendant was acquitted despite the expert’s testimony. If those issues cannot be established it is not effective, and more importantly if not carried out expeditiously you will draw an objection as to relevance, or the Court may stop you. If the Court stops you or sustains a relevance objection, I would ask the Court to excuse the jury so you can put on a Bill of Exception as to this line of questioning because I think it is relevant and based on the testimony history of the expert could prove more relevant over time. Many times, over the course of several years some experts and their field of study have been exposed as junk science, and if they have been wrong and a jury or their peers have disagreed with their previous opinion, it is relevant.

f. We can agree that you have been wrong before, correct?

g. Or we can at least agree that a jury of this great State disagreed with your opinion, correct?

h. Mr. Jones was acquitted in a trial in which you testified for the State, correct?

i. We can agree that Dr. XYZ has stated openly that your theory of _______________, is not supported by empirical evidence?

j. We can agree that your opinion on this theory of __________________, has not been peer reviewed and has not been widely accepted as a valid scientific premise in the field of ______________?

When taking the above criteria into consideration we should be looking to collect certain available information regarding the expert’s affiliation and prior testimony. An example of the information I would be looking to initially collect on any of the State’s experts would be as follows:

1. Field of expertise.

2. Are they well known in their established field of expertise?

3. Published or authored materials.

4. Peer review of any published materials.

5. Transcripts of prior testimony.

6. Who do they normally testify for, State of Defense?

7. Current Status of their licensing or credentials.

8. Have they ever been reprimanded and/or suspended under their licensing or credentialed authority?

9. If they were reprimanded or suspended, find out why and the underlying circumstances.

10. Have they ever been excluded from testifying as an Expert?

11. If they have been excluded from testifying, you need to find out why and the underlying circumstances.

It is important to consider getting your own expert involved early in the case, if possible, because you can ask for their assistance in gathering this background information on the State’s experts. At a minimum, if the State designates an expert late in the case, as happens quite often in sexual assault cases, you will need to address and collect the above referenced information at a fairly rapid pace, and the assistance of your expert will be critical in saving you some time on this endeavor. Usually, any expert that is not indicated in the offense, psychological, medical, or counseling reports, that the State designates late in the case or 20 days before trial, will be a type of consultant who has likely never seen or evaluated the complaining witness. They are likely to testify how a victim experiencing a traumatic episode and undergoing the trial process, is likely to respond and act. Further, in a child sexual assault case they may go so far as to offer various explanations that attempt to assuage jurors why a child would recant or take so long in coming forward with an accusation. You need to be aware of the focus of training the expert is attending and completing. In child sexual assault cases some experts depending on their training and background will support an accusation of abuse or assault just on their observations of the child during the forensic interview process. That seems like a very small sample size from which to draw a conclusion. My theory is they receive certain information in a somewhat tainted process, the so-called rose-colored glass’s view, and establish their opinion from that perspective alone. That is a conclusory or anchor-based investigation (ie: I perceive and interpret the facts based upon my initial impression of the child). I don’t believe that is an adequate investigation, it is more like a witch hunt, and it can be a very intimidating set of circumstances for the accused and their attorney because of the sheer number of resources involved in assisting the State, such as local shelters, crisis council shelters, and the child advocacy centers.

Understanding the Role of Your Local CAC

With regards to child sexual assaults, understanding how your local CAC operates will be helpful in determining what information should be available to you and how to prepare for the State’s experts that likely will appear throughout that process, such as the forensic interviewer, the child’s counselor or therapist, and in some cases a child psychologist.

From what I can tell from my research is that most local CAC units are all under the umbrella of the Childrens Advocacy Centers of Texas, which is a trade marked non-profit entity. On a statewide level their plan of operation is as follows:

Children's Advocacy Centers of Texas (CACTX) and our network of children's advocacy centers (CACs) have helped over one million children and their families impacted by abuse achieve safety, justice, and healing in their most significant time of need. As we continue to serve these children, CACTX is casting our vision upstream: to build a future where all children are free from sexual abuse.

A Partner: Cross-sector collaboration is the cornerstone of the CAC model, and CACTX is focused on bringing a variety of voices to the table and empowering partners and members to create scalable, adaptable strategies to further our efforts.

Galvanizing: CACTX provides the leadership needed to effectuate change and empower communities to make the issue of child sexual abuse a top priority and work together to eradicate child sexual abuse.

Evidence-Informed: Research and evidence-based strategies are at the forefront of everything CACTX does because we know success in the fight against child sexual abuse requires the continual evaluation of current efforts and exploration of new, more effective methods to serve and protect children.

Inescapable: CACTX recognizes the sense of urgency that surrounds the issue of child sexual abuse. Child sexual abuse is a preventable problem that demands a solution, and CACTX is working to sustainably support CACs to help young victims while also casting our vision upstream to prevent children from ever being victimized.

Visionary: CACTX aims to create lasting systemic change and is passionate about blazing a path to build a safer Texas for future generations.

[See Children’s Advocacy Centers of Texas (CACTX) website “About Us”]

This information is pulled directly from their website. This is a huge network of collaborative entities that are assisted by law enforcement, CPS and other various agencies within the state in what is defined as a multi-disciplinary team approach to attacking what they view as a systemic child sexual abuse problem. Below is their financial position as of August 31, 2021. I offer this as a reference to stress the amount of resources they have at their disposal, not counting the various partners at the local level that are part of each local center’s multidisciplinary team. Next time you request a court appointed expert and the Court wants to know why you need the expert and questions the amount of the funds you requested, reference the statewide CAC and local CAC apparatus, because make no mistake in some situations they have more resources available to them than local law enforcement.

Again, you need to understand the operations of your local CAC to understand the number of experts at any time that may be involved in your client’s case. Once the child is interviewed the process has already started based upon the report of abuse/assault. It is a fairly complex multidisciplinary team approach, which depending upon where your local CAC is located can involve multiple law enforcement agencies, CPS, CASA, and the county attorney’s office. As an example, in the counties in which I practice primarily, each law enforcement (county as well as city) in a five-county area, CASA, CPS, and county attorney offices in a threecounty area are members of the multi-disciplinary team.

They stress the fact of this collaborative approach in representing victims of abuse and sexual assault. I believe in order to understand your case and the process that resulted where your client finds himself, you need to understand how these entities work together and under what circumstances the outcry of sexual assault was made. When you start looking for information to assist you in your investigation, it could involve information from CPS, CASA, local therapist who contract through the local crisis council or shelter, or the local CAC office. Many of these entities are protective of the information they have gathered and, in some cases, will not want to produce same or turn it over to law enforcement. They may even claim that the records and information are protected under Chapter 420 of the Texas Government Code, which we will discuss later on in this paper.

3. How is the Expert Assisting the State?

This is the trap question and will require not only a fair amount of investigation, as noted above, but may require you to at least consult with your own expert on the subject matter. Further, you will need to educate yourself in their field of expertise, so you can understand and communicate with these experts at their level. Some areas of expertise will not require a degree in rocket science to figure out the State’s expert’s role in the case. Fields of study such as:

- Pathology

- DNA

- Ballistics

- SANE Exam

- Child Psychology

- Family Violence

- Toxicology

- Computer Science

Below is the CAC Model which I pulled directly from their CACTX Website.

By example, these fields of study are easy to recognize, and you can quickly start putting together the pieces to construct a cross-examination of the State’s expert specific to their report and/or findings. However, some fields of scientific study are not so readily apparent and require further investigation. It may be a case of Soft Science versus Hard Science. Hard science is a field of scientific study that strictly adheres to the scientific method. Generally speaking, hard sciences include fields of scientific expertise such as physics, math, chemistry, biology, DNA, human physiology, astronomy. Hard sciences are often referred to as the natural sciences. Soft science is a scientific discipline which is loosely based upon the scientific method. The soft sciences are the social sciences and can include disciplines such as sociology, psychology, future dangerousness, and the effect of trauma and pre-disposition of PTSD as a result of trauma. There is an inherent problem with the complex nature of a soft science wherein something cannot be measured with precision, such as in a hard science. When we are dealing with something labeled as a cognitive science, which generally falls into the realm of human behavior and emotions (ie: psychology), this is a soft science and we should approach the State’s expert in this field with a certain amount of subjective cynicism, because the expert can sometimes make a round peg appear that it can fit in that square hole. We should never shy away from confronting a soft science expert regarding the subjective nature of their field of study, in fact if they are as qualified as they will say they are they will expect this type of inquiry and should be able to explain their role in assisting the jury. This becomes our ground zero for attacking the subjective nature of that type of testimony, because other possibilities can also be true, as that opinion cannot be measured or accurately quantified for the jury.

In the case of human anatomy, we can accurately predict a person’s heart rate with a scientific device, however, we cannot measure with any accuracy the emotions of that same person. This is an example of hard vs. soft science. This is why often times you will see in a SANE exam or counseling notes in a sexual assault a reference from a counselor or the nurse examiner that the victim’s account or statement, and their emotional reaction is consistent with a history of sexual assault. It is also consistent with a history of a person that is lying or numerous other possibilities. If there is physical evidence that has been obtained and connected to the accused that is a hard scientific fact, as opposed to an educated guess based on experience and training. DNA can be established as a hard scientific fact if it is detected and recovered.

However, DNA does not in and of itself tell a story. The presence of your client’s DNA recovered from a sexual assault exam kit, does not rule out consensual sex with the victim, it simply puts him or her having sex with that person. A more simplistic way of breaking down this process is to perceive that hard science is objective and can be accurately measured and attested to, and soft science is generally subjective and not accurately measured.

This is a case of an objective versus subjective scientific basis, and you can initially quantify and prepare for the cross-examination of the State’s Expert on that basis. Therefore, when preparing your cross-examination of the State’s Expert understanding their field of expertise and determining if it involves an objective vs. subjective intent and criteria, is critical to a successful cross of said expert. You will need to educate yourself in that field of expertise, and there are numerous resources that are available to the public and attorneys for that purpose. I cannot provide a comprehensive list in this paper for this purpose, because it is only limited by the type and nature of the field of the expertise of the State’s Expert. Again, when constructing the profile of the State’s Expert we are gathering information regarding their background and opinion, and this necessarily includes what type of resources are generally relied upon in their field of expertise.

Once you have determined who the State’s expert is and what is their particular field of expertise (hard vs. soft science), the hard work begins as you now should be outlining your potential cross examination for purposes of trial preparation. At this time, it is helpful to consider and make a determination on three distinct issues: (1) Ranking the Expert, (2) Using a Defense Expert, and (3) The State’s Zero-Sum Game.

4. Ranking the State’s Expert: Once you have reviewed the offense report and any available opinions from the State’s Expert you should be able to make a determination of what type of witness the expert will be at trial. I usually use a scale of 0 – 3 to rank experts, even my own experts for use at trial.

 0 = Would be an expert you can use to our advantage. You can use this expert to develop your defensive theory. You would co-opt this expert for your own use. Generally, this will apply to hard science experts because it is based on a strict scientific method which can be precisely measured. Examples of this would be a DNA expert, medical examiner or toxicologist.

 1 = Neutral is the expert that really does not hurt the defense case. Again, this would normally be a hard science expert because facts and science are not normally subject to some type of false narrative or explanation. However, with a State’s Expert that I rank as neutral, I would be wary of their opinion and just how far the expert may attempt to extend that opinion. I have found that in situations involving this type of expert when they stray from the direct line questioning of their opinion based on science that relevance and speculation objections can be successful and limit the expert’s attempt to opine on issues outside of their field. You may find yourself in a situation upon re-cross



that you are attempting to reel in the expert’s opinion because upon re-direct they realized that they were not advocating sufficiently to appease the State. Actually, you may find yourself faced with a law enforcement official whose testimony is factually based but tends to stray from the confines of those facts to illicit an opinion that advocates the State’s theory of the case.

2 = This is an expert that is pro-state. A pseudo advocate for the alleged victim. I have found that most of these experts fall into the realm of the soft sciences. However, for example you could have a situation where a law enforcement official is designated as an expert on gang affiliations or behavior. This is a situation where the State will attempt to demonstrate as fact that certain facts or circumstances are prone to XYZ, etc., and relate that opinion to your client’s current case. This is an attempt to disguise soft science as hard scientific fact and should be exposed as such. It is simply an educated guess, one that the expert may be allowed to give, but it is still a guess. We should treat these experts carefully, and not allow their opinion to vary from the exact field of expertise. While we will discuss the use of TRE 705 (Gatekeeper Function of the Court) later in this paper, this is a situation where the use of a “gatekeeper” motion and hearing should be utilized to discover and limit the ability of the expert to opine on certain issues and facts.



3 = This expert is just another prosecutor in the courtroom. You need to treat this expert as an adverse party from the moment you start to question them on cross. This will necessarily start on listening to their testimony on direct and making the necessary objections during their direct examination. You will need to have a TRE 705 hearing on this expert and their testimony prior to them taking the stand for direct examination. It is critical to educate yourself both personally and professionally regarding this expert and their testimony. Bias is going to be a key component that will need to be exposed. Do not debate with this witness in front of the jury. Limit their testimony during the 705 hearing and ask only those questions on cross which assist in developing your defensive theory. If the Court is going to allow their opinion into evidence over your TRE 705 objection, do not debate that conclusion with the expert. All that will do is have them repeat this information over and over again. Make your point with this expert, it is sometimes a good strategy to make a chart of sorts and have the expert agree to certain facts which are beyond dispute and ask the question which implies that you do not agree with their conclusion. This is a premise laid question which suggests the answer, and once I am not concerned that the expert did not agree with my suggestion. This is also the type of expert where you will usually have your own expert prepared to testify as the subject matter at issue.

5. State’s Zero-Sum Game: What do we mean by this in the context of a trial? In my experience trial work involves a lot of critical thinking because we have such a short time to convey a voluminous amount of information to the jury all the while persuading them to agree with us. Keeping that in mind the zero-sum game simply put is a situation where there are two

sides, and the resulting outcome is an advantage for one side and disadvantage for the other side. Specifically, there is a winner and there will be a corresponding loser. In trial we cannot afford to compound a win by the State with an expert with a corresponding loss by our expert. In those cases, once we have reviewed the file and investigated, we can determine if we are treating that State Expert as a zero-sum game. If the State’s Expert is sound and the science supports his opinion, we can look to expose any undisputed facts they will have to agree with, but we do not want to give them repeated opportunities to express their opinion. Simply put, how many times do you want the State and the Court to refer to them as an expert. Under those circumstances my belief is that the client is best served by getting that type of expert off the stand as quickly as possible. Further, if your expert agrees with the State’s Expert’s opinion, get that in writing and put it in your file. I would consult with your expert to try and come up with some line of questioning which will slow down that expert’s momentum on the stand, but you cannot afford to debate someone who has science on their side. This will generally apply to a situation where a hard science discipline is involved and has been subjected to a rigorous testing under the scientific method. In my experience these types of experts can range anywhere from a 1 – 3 in terms of ranking their posture in the courtroom. However, on certain occasions you will confront that State Expert that has a zero-sum mentality. This is a situation where the State’s Expert wants to argue and debate the point with you, as they perceive themselves as the heroin in the State’s case. An expert that adopts a zero-sum mentality is so entrenched in being correct that they shut down the conversation and create a sense of apathy in the courtroom. We all know that expert that no matter what is said or asked of them, they are going to loudly and express their opinion in a very divisive and belittling manner, because they believe it assists them in winning what they perceive as an argument. I do not like these situations and I do not believe a jury likes them either. The jury is not getting the information they need to assist them in the case. If you find yourself with this type of expert, I find it helpful to listen to the State’s direct examination and within the context of your cross-examination reverse the nature of the question to see if you get the same response. An example would be if the State asked, “Officer when you approached the scene describe the Defendant? He appeared intoxicated and had blood on his hands. I may rephrase the question and add something like, Officer is not it true when you arrived on the scene while you say the Defendant appeared intoxicated, he did not flee the scene and the blood on his hands may have come from the cuts under his eye and forehead. Sometimes many police officers never want to agree with us because they believe we are trying to trick them, but facts are facts. If the officer does not agree with you, I start charting the questions on cross that basically asked the same question on direct but in a different manner, and then illustrate to the jury why the answers are different when the questions are basically the same. If the witness is being combative because they play for the State of Texas, you should be able to expose this to the jury, and in closing suggest their opinion cannot be trusted because they are biased. Science is not biased, and it should not take a side, much like facts. I once spoke to our local sheriff’s department during one of their training sessions and someone in the audience asked me what the most critical mistake is you see law enforcement officers make during crossexamination, and I told them they try to argue with me about what I know the facts to be rather than just testify to what the facts are that existed. This is important because many times certain

law enforcement officers who investigated the case are designated as experts, and if they are the investigating the case, I perceive their role first and foremost as a fact gathering machine not an opinionated sycophant for the State.

6. Using Your Own Expert for Investigation Purposes: I believe you will make this determination after you have reviewed the offense report and if available the State’s Expert(s) report(s). In most sexual assault cases, initially most of the expert(s) involved on behalf of the State will consist of therapist, counselors, CAC representatives, psychologists, medical professionals, Sexual Assault Nurse Examiner, and DNA professionals. At a minimum if you are not familiar with the exact science and methodology employed by the State’s Expert, I believe it is best to retain your own expert for purposes of consultation. You can determine at a later date whether you want to use your expert for the purpose of offering testimony or submitting their own report. Article 39.14 of the Texas Code of Criminal Procedure does not require defense counsel to designate their testifying experts until 20 days prior to trial. The Court can order any party to disclose the names of its expert witnesses that will offer testimony under TRE 702, 703 and 705, no later than the 20th day before the trial begins. See Osburn v. State 59 S.W.3rd 809 (Tex.App. – Austin 2001), affirmed 92 S.W.3d 531 (Tex. Crim. App. 2002). Further, a caveat I would offer is do not designate an expert for purposes of testifying unless you are fairly certain that you need their testimony at trial. Once designated the State’s Expert can comment on your expert’s credentials, and any conversations they had concerning situations where they have sent information to them for review. See Pope v. State 207 S.W.3d 352 (Tex. Crim. App. 2006). Further, it is well settled that the State in closing arguments can comment on the fact that defense counsel failed to call an available and designated expert witness. Id. I am of the opinion that it is always best to investigate, then consult with, and lastly prior to trial designate if I am fairly certain the expert can assist at trial. I am not of the opinion that this is always the case, because I have had occasion to designate an expert and not call them, but it was a trial strategy decision based on the evidence admitted at trial, and I was prepared to argue why it was not necessary for my expert to testify. If you do have the luxury of having your own expert always consult with them regarding how and on what topics to cross examine the State’s Expert. If your expert is going to testify this will prove as an invaluable segue from the subject matter of the State’s Expert opinion and your expert’s opinion. As an example, when reviewing the State’s DNA litigation packet for a certain case, your expert will need that litigation packet for review and consultation with you regarding the case. If I have not designated a DNA expert I would object if they referenced same just because they know I had the litigation packet reviewed. In my opinion, that expert is not an available witness as I would have only consulted with them on that information and my conversations with them are privileged. However, you do have to be careful in having your expert converse with the State’s Expert for purposes of gathering information and more importantly the litigation packet on a given scientific topic. At this juncture of the investigation, I have normally made the decision on whether or not my expert can assist me at trial before I would agree to allow them to converse with the State’s expert regarding requesting information out of the lab’s litigation packet. In some instances, I want the State to be aware of my expert. As an example, the State has certain

evidence swabbed for DNA. In my review of the offense report no traces of any DNA are present where I think it should be. I am not a DNA expert so I consult with a DNA expert and retain them because sometimes it is just as important if DNA is not detected on an item tested, under circumstances where you would presume some type of biological evidence would be present. Hopefully, given this type of situation the I am playing chess, and the State is still playing checkers.

V.

Fields of Expertise Unique to Sexual Assaults

1. Forensic Interview of the Child

Normally referred to as the KAP or CAC interview of the child. Normally, this type of interview will take place at an office or building designed for this specific purpose. In many cases, law enforcement will attempt to show that this type of statement is the first factually detailed statement regarding the alleged abuse (ie: referred to as the initial outcry).

The statement itself is recorded, and conducted by a trained forensic interviewer. This type of entity is a non-profit organization, which has a board, and normally the personnel will consist of a coordinator, a lead forensic interviewer, depending upon the population base it serves several other forensic interviewers, an executive director and sometimes a prevention specialist. While they offer other services, it is my opinion that their primary objective is that of an evidence and statement gathering apparatus for the State.

While no other persons are present in the interview room itself, law enforcement and if available, the coordinator or other forensic interviewer(s) may be present, observing or listening to the interview, either via a video and/or audio feed or a oneway mirror.

This recorded interview may be critical to your client’s defense, so you need

to review it and if possible obtain a copy of the interview as soon as possible. Getting a copy of the forensic interview is where you may start to encounter problems.

(a) Article 38.45 [Evidence Depicting or Describing Abuse of or Sexual Conduct by Child or Minor]

In my opinion this article basically limits the Court’s ability to make an otherwise discoverable witness statement reasonably available to defense counsel for purposes of review and trial preparation. The article allows the State unfettered access because they are in possession of this recorded statement, but as defense counsel we are limited in how we are given access under Article 39.15 of the TCCP.

(b) Article 39.15 [Discovery of Evidence Depicting or Describing Abuse of or Sexual Conduct by Child or Minor]

Under this article this type of evidence, which includes the forensic interview of the child, must remain in the care, custody, or control of the court or the State as provided under Article 38.45 of the TCCP. In fact this article goes so far as to deny us any request(s) to copy, photograph, duplicate, or otherwise reproduce any property or material as described under Article 38.45 of the TCCP (ie: the forensic interview of the child)

This article does require that the State provide you and your defense team (ie: your expert and investigator) ample opportunity to inspect and view this type of material. So long as the State provides this type of ample opportunity, it is considered reasonable. See Article 38.45 TCCP (d).

In handling a child abuse case, where the child has made this type of forensic statement you must be aware of and know how to respond to the issues which will arise in the discovery process.

Unfortunately, it has become more difficult to get access to a copy of the forensic interview because of Articles 38.45 and 39.15. The Courts have usually aligned their decisions with the State’s argument that they are the only entity allowed to possess this information under the Texas Code of Criminal Procedure. We need to attack this issue in each case based on those circumstances which are unique to the case itself

I believe that we need to continue to argue against the State’s efforts to control our access to and under which circumstances we can inspect and view the forensic interview. Under Article 39.14 it is clear that this type of forensic interview is a witness statement and is discoverable, perhaps even Brady material, depending upon what the child has stated during said interview. However, the State continues to use Articles 38.45 and 39.15 to limit and often times attempt to circumvent our access to this information. In reviewing Articles 38.45 and 39.15, it is obvious what the legislature wanted to prohibit was the copying and dissemination of photographs and video depicting child pornography and abuse, not a process whereby the accused is denied his right to discoverable information

under the recently revised Article 39.14 (MMA).

Keep in mind that the forensic video itself may be discoverable in a separate but parallel civil proceeding over child custody, to the extent that the child’s outcry of abuse was a basis of the Suit Affecting ParentChild relationship which was filed.

I would also encourage you to file a motion seeking permission of the Court to inspect and photograph the KAP or CAC office building in which the forensic interview was conducted. I do this because the State will espouse the therapeutic advantages and services offered by KAP, and many times when you inspect these types of facilities you can demonstrate to the jury that it is just another device by which the State attempts to collect and solicit what may otherwise be inadmissible evidence.

2. Sexual Assault Nurse Examination

Outside of the State’s use of the forensic interview in a child sexual assault case, the SANE exam is one of the most critical pieces of evidence which is gathered during a criminal investigation for sexual assault or aggravated sexual assault.

A SANE is a qualification for forensic nurses who have received specialized training to conduct a sexual assault exam for evidentiary purposes, in sexual assault cases. Based upon when the alleged sexual assault occurred, will depend upon whether a sexual assault evidence collection kit or rape kit, as it is sometimes referred to as, is completed by the SANE and attending physician. If it is determined that the sexual assault took place more than 96 hours prior to the SANE examination the use of an evidence collection kit may not be

necessary, as it is unlikely that evidence would still be present on the alleged victim. However, evidence may still be gathered by documenting any findings obtained during the medical examination (i.e.: bruises, lacerations, or scratches), taking photographs, completing anatomical diagrams indicating points of injuries, and most importantly securing statements from the alleged victim about the incident. The Texas Attorney General’s website has general information regarding SANE training and the purposes of the program. The Texas Attorney General website states that the information included in the classroom training for a SANE includes:

 Advocacy

 Survivor Symptomology

 Documentation

 History Taking Skills

 Collection of Forensic Evidence

 Use of Sexual Assault Evidence Collection Kit

 Courtroom Testimony

This information clearl y indicates for what purpose the State intends to use the SANE exam. While many SANE nurses are highly qualified, make no mistake that their sole responsibility is to gather and document evidence and statements of the alleged victim regarding an act of sexual assault and aggravated sexual assault.

The United States Department of Justice’s description of SANE program operations states that the SANE or other medical personnel (i.e.: emergency department physicians or nurses) must first assess the victim’s need for emergency

medical care and ensure that serious injuries are treated.

The treatment by a SANE nurse must be confined to only minor medical issues because the SANE nurse is not a medical doctor and cannot provide medical treatment.

Although it is highly unlikely that the SANE nurse in obtaining a statement from the alleged victim regarding the sexual assault is doing so for purposes of getting a completing medical history. However, by gathering the information in this manner the State has designed a convenient exception to Hearsay, under TRE 803 (4), Statements for Purposes of Medical Diagnosis or treatment.

Based upon how and under what circumstances the SANE nurse conducts and completes her examination, it may be useful to consult with an expert in this field, preferably another qualified SANE nurse. In cases where there are no apparent trauma and/or injuries present in the medical record portion of the SANE report, and the only evidence of the sexual assault which exists is the alleged victim’s statement to the SANE nurse, you need to be cognizant of the fact that the SANE nurse will likely report that the alleged victim’s history (statement) is consistent with sexual assault. The problem with this logic is that it is also consistent with a hundred other issues and facts, including a false allegation. The most successful attempts to attack a particularly damaging SANE report is to attack the protocol utilized and any inconsistencies which are evident in the alleged victim’s statement to the SANE nurse.

VI.

Educate Yourself

Text References

1. Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony

2. Tell Me What Happened (Structured Investigative Interviews of Child Victims and Witnesses)

3. Cross-Examination: Science and Techniques (LexisNexis)

4. Investigative Interviews of Children (A Guide for Helping Professionals)

5. The APSAC Handbook on Child Maltreatment (Second Edition) – Third Edition is available

6. Child Sexual Abuse (Pipe, Lamb, Orbach, and Cederborg)

7. Interviewing Children: The Science of Conversation in Forensic Contexts

8. Evaluation of the Sexually Abused Child (Heger, Emans, and Muram)

9. Ethics and the Practice of Forensic Science

10. Spitz and Fisher’s Medicolegal Investigation of Death

11. Expert Witnesses in Child Abuse Cases

This is not an endorsement of these books for purposes of reference or research, they are just some of the books I have bought, collected and used over the years. I also have a Physicians Desk Reference, an illustrated medical dictionary and Gray’s Anatomy that I use. Again, as lawyers we have to educate ourselves such that we can comprehend and understand the terminology and language we will encounter in these types of cases. If you have access to a nearby medical school, that can also be a great source of reference material. I have also purchased several study cheat sheets on psychology from Amazon which I sometimes use in court to cross-examine the State’s experts, such as the child’s psychologist or counselor, or the CAC forensic interviewer.

In investigating and preparing a sexually related offense case for trial, you are only as effective as the resources you can utilize. Those resources are not limited to your trial skills alone, but include your ability to educate yourself as to the subject matter involved, and obtain the services of the professionals which can assist you in defending your client. In most cases involving sexual assault, you will need the services of a competent investigator, a psychologist or other qualified counselor to review any available counseling records or CPS records, potentially a medical expert if there are any physical injuries, and a psychologist who is qualified to perform a risk assessment on your client for purposes of punishment.

VII.

Pre-Trial Motions

The use of certain pre-trial motions is a necessity in most sexual assault cases whether the alleged victim is an adult or a child. In a sexual assault case I will generally file the following motions at the very beginning of my representation of the client:

1. Defendant’s Written Request to Designate Experts.

2. Motion for Voir Dire of State’s Experts.

3. Defendant’s Written Request for Notice of State’s Intention to Use Evidence of Extraneous Offenses at Trial.

4. Request for Hearing Outside Presence of the Jury

5. Motion for Discovery of Arrest and Conviction Records of State’s Witnesses.

6. Application to take Deposition of the Complaining Witness (2 Versions)

7. Motion to Disclose Confidential Information of the Complaining Witness.

8. Specific Motion for Discovery.

9. Watkins Motion for Discovery.

10. Motion to Quash Indictment (Example).

11. Motion to Designate Images.

12. Motion to Designate Phone Calls.

Motions 1 through 4 I will generally file early on in the case. Circumstances and the timing of filing Motions 5 through 7 will depend upon the progress of our investigation and the responses to our subpoenas that were filed and served. Motions 8 and 9 depend upon the type of discovery lacking, with a Watkins Motion for Discovery generally being filed if I believe the State is hiding, whether intentional or not, their work product policy as to witness interviews. Motions 10 through 12, depend upon the case and the circumstances. I have included examples of these types of motions I have used in the past in a generic word form for your review and use.

As to the specifics of receiving discoverable materials from the State, I will generally send the State a discovery and notice letter, which sets out specific materials I am requesting in accordance with TCCP Art. 39.14.

The basic premise in any type of specific pre-trial motion you file is that it must be substance driven. What I mean by substance driven is that the motion should have some basic components:

1. Must have a basis for relief.

Such as we need this information, or this information provided by the State is not complete, or I am entitled to question the bases of the State’s specific information, or the information proffered by the State is not admissible, or the State’s profer of information is so broad this is tantamount to no notice at all, or since we can’t resolve this dispute over the information we defer to the Court.

2. Motion must be specific and target the problem.

We cannot afford to waste the court’s time and resources combing our kitchen sink request. The court will lose interest and specifically case precedent supports the proposition that we should be succinct and to the point so the court can easily identify the issue and rule upon same. As referenced above in the Watkins Motion for Discovery, it is a very general motion at first glance, but it does request specific information such as any work product or other material information as defined under Article 39.14

of the Texas Code of Criminal Procedure. This is important when arguing this motion because the courts are well aware of the Watkins decision and its affect on how we define material under Article 39.14. I usually find myself arguing to the court that I am not accusing the State of hiding any information, but the Watkins decision does not require that the failure to disclose material information be intentional, it can be a mistake as well. This type of motion preserves that argument for further development at trial, and to preserve same properly for appellate purposes.

3. Motion must cite case precedence or reference statutory authority

You will never get any relief without asking for it in a specific manner and have some way of supporting your request based upon case law. Never be afraid to ask the court for relief, but always be prepared to logically justify why you are entitled to relief. Often times we are in unchartered territory and we find ourselves piecing together various elements of statutory law and case precedent. I find it helpful in these type of situations to rely upon making my argument within a constitutional construct as it applies to both the U.S. and Texas Constitutions. Arguments such as violation of the 4th, 5th, and 6th amendments to the constitution and violation of due process of law are common examples of how to configure these types of arguments.

4. Motion must request relief and propose a resolution.

You can’t get relief if you do not request it. Being told no is not the end of the world, but not asking for relief is a tactical mistake. Articulate the relief your requesting in your motion and propose a resolution. As an example this can be done in a discovery request proposing that the requested information be delivered “in camera” to the court for review, prior to dissemination to the defense. I don’t generally have a problem with this type of resolution because if I am not given the information I request that the “in camera” records be sealed for appellate purposes. If the court refuses the request for an “in camera” review as a proposed solution you will need to perfect the record for purposes of appellate review citing to the court that the refusal to allow you to have access in any form to this information is a violation of your client’s constitutional due process protections under the Texas and U.S. Constitution. Further, the court’s refusal to allow you to investigate this matter may render your legal assistance ineffective in violation of the 6th amendment to the U.S. Constitution and the standards of review for effective assistance of counsel under Strickland v. Washington

You are only limited by your creativity in drafting a pre-trial motion requesting some form of relief from the trial court. However, as discussed above it has to have a purpose, be detailed, give the court authority, and seek a specific result. I would never file a motion, discovery related or otherwise, as a perfunctory motion that serves no purpose.

Basics of Certain Pre-Trial Motions

Once I have received the offense report and other discoverable materials from the State, it is at that point that I will make a list of potential documents and information which I believe need to be collected and reviewed. This list of documents and information which need to be collected may vary based on the type of sexual assault with which the client is charged, and the circumstances surrounding the allegation.

Case Involving a Child – General Documents to Collect

1. School Records

2. Counseling/Therapy Records

3. CPS Records

4. Psychological Records

5. Medical and Hospital Records

6. Court Records

Case Involving an Adult – General Documents to Collect

1. Counseling/Therapy Records

2. Court Records

3. Psychological Records

4. Medical and Hospital Records

5. Employment Records

Discovery

You can file a general and specific Motion for Discovery to collect this type of information. I do not always file a general Motion for Discovery, unless I am having difficulty getting information from the State or there are gaps in the information I have received. Once I have reviewed the discoverable materials and offense report I will begin to draft and file specific or supplemental Motions for Discovery, where I am requesting certain detailed information from the State. In following up on this issue with a specific or supplemental Motion for Discovery, I will request that the information be produced, but if the information is not in the State’s possession or is not readily obtainable by the State I will request that the Court order that I shall be allowed to subpoena said records “in camera” to the Court for review. On occasions certain entities will not respond to a subpoena request for records, but if I attach a copy of the Court’s Order stating I can subpoena the records “in camera”, I will generally receive the records after the Court’s “in camera” inspection is complete. Procedurally, if the Court refuses to give you the subpoenaed records after the “in camera” inspection, you need to object to the Court’s decision regarding this issue and have all the records marked as a sealed Defendant’s Appellate Exhibit. A specific Motion for Discovery can be a useful tool in pointing out to the State that there are problems with the case and it requires additional investigation. This lack of information or an incomplete investigation can lead to productive plea negotiations and a potential resolution of the case, without having to proceed to trial.

Your efforts in attempting to draft a general or specific Motions for Discovery should mirror your work in subpoenaing any necessary records or information. As such, always follow

up your Motion for Discovery with any applicable subpoena request. I do not consider these efforts duplicative or repetitive, but thorough. One way or another you need to get this information, as your defense strategy will likely depend on it.

As you begin to collect and gather information, depending upon the circumstances of the client’s case, you will invariably need to retain an investigator and/or certain experts. In court appointed cases or those cases in which you may have been retained but your client has no other available resources for an investigator or expert(s), you will need to request funds from the Court to retain these types of professionals. I will almost always file motions for experts “Ex Parte” as motions filed in this regard will have some information which can infer or tip your trial strategy. I will not usually file a motion to authorize funds for an investigator “Ex Parte”, because I do not believe it involves trial strategy, but this motion can also be filed “Ex Parte” so long as you illustrate to the Court it involves an issue concerning your trial strategy. From a practical standpoint I don’t file any motions requesting funding for an investigator “Ex Parte”, because your investigator is usually out in the community following up with witnesses and sometimes is getting information directly from law enforcement personnel. If the Court denies any “Ex Parte” motion filed by you requesting investigator or expert assistance, you will need to request that the Court provide you a hearing outside the presence of the State, such that you can enumerate on the record the reasonableness and necessity of your request.

Arguing Against the State’s Motion to Quash

Within the last several years it has become increasingly more difficult to subpoena records of the complaining witness without continual interference from the State. I have experienced on numerous occasions situations where the State has filed motions to quash my subpoena requests for school records, therapy and counseling records, medical records, mental health records, institutional records, and sometimes even CPS records although this is usually a rare occurrence. Recently, the State has used the motion to quash to inform the court that by subpoenaing these types of records I am abusing the subpoena process and violating the constraints under the Texas Code of Criminal Procedure as am going on a fishing expedition. Further, the State is arguing that I am violating Chapter 420 of the Texas Government Code in seeking this type of confidential information, specifically Section 420.074 of the Texas Government Code. If you are not familiar with Chapter 420 of the Government Code, I would get acquainted with it fairly quickly.

Chapter 420 of the Government Code provides a method by which defendants in criminal cases must use to seek confidential information of the alleged victim, or as referenced in the various applicable sections of Chapter 420 the “survivor”. Specifically, Section 420.074 of the Texas Government Code is a new statutory provision that went into effect in September of 2021. It basically requires defense attorneys to navigate multiple obstacles in filing a motion to seek this type of information that must be sworn to by the attorney. Moreover, it requires us to somehow show the court that we know there are reasonable grounds to believe that the supposed confidential information contains exculpatory information, without having the opportunity to have reviewed said information. This is truly a cart before the horse argument and may have to get creative with formulating some type of basis upon which you can seek this information and swear to the information contained in your motion regarding same.

Sec. 420.074. Disclosure of Privileged Communications or Other Information in Criminal Proceeding.

(a) Subject to the provisions of this chapter, not later than the 30th day before the date of the trial, a defendant in a criminal proceeding may make a motion for disclosure of a communication or record that is privileged under this chapter. The motion must include a supporting affidavit showing reasonable grounds to believe the privileged communication or record contains exculpatory evidence.

(b) The defendant shall serve the motion on the attorney representing the state and the person who holds the privilege with regard to the communication or record at issue.

(c) The court shall order the privileged communication or record to be produced for the court under seal and shall examine the communication or record in camera if the court finds by a preponderance of the evidence that: (1) there is a good-faith, specific, and reasonable basis for believing that the privileged communication or record is relevant, material, and exculpatory upon the issue of guilt for the offense charged; and (2) the privileged communication or record would not be duplicative of other evidence or information available or already obtained by the defendant.

(d) The court shall disclose to the defendant and to the state only the evidence that the court finds to be exculpatory on the issue of guilt for the offense charged.

The question I asked myself was, how was I going to make a showing of reasonable grounds that this confidential information is exculpatory, when I have not had the opportunity to review same. It is the horse before the cart argument in a nutshell. I don’t know how or why this was passed, other than I am sure some survivor groups lobbied for it under the auspices of re-victimization of the survivor, but this statute presupposes and is directly contrary to the defendant’s presumption of innocence. As I have contemplated moving forward in addressing this issue given the accused right to a fair trial, due process of law, and the presumption of innocence, I am left with the basic premise of how we ended up in a situation where we have a statute that potentially protects exculpatory and impeachment evidence as it concerns a complaining witness, in spite of the accused constitutional rights which are involved. As such, I have moved forward in this process by investigating and gathering the information available on CAC centers and their organizational structure. Locally, the CAC center in Kerrville is ostensibly connected to the Hill Country Crisis Council, which oversees the entire counseling and services apparatus for sexual and physical abuse victims. I would recommend you do the same so that when you start requesting this information you can logically connect the CAC interview process with a staff counselor at the local crisis shelter. These statements to a crisis counselor, while they may be confidential under Texas Government Code Sec. 420.074, I still believe they are discoverable, and this issue alone potentially puts this statute at odds with TCCP 39.14 I do believe that to restrict my investigative methods and procedures, which limits the information I can potentially obtain, creates a set of circumstances that violates my client’s presumption of innocence and his constitutionally protected right to effective assistance of counsel and due process of law. I was successful in my first opportunity to argue our request for information under Texas Government Code Sec. 420.074, and a copy of the form of the motion used is provided with this paper.

Ex Parte Motions

As a matter of being thorough in drafting any “Ex Parte” motion for an investigator or expert, you should articulate with specificity the following:

1. You expect the State to have available to it and to present at trial certain testimony attributed to an expert or investigator, which you as legal counsel are not qualified to interpret or rebut for that purpose; and

2. How the specific professional services you are seeking are necessary to your client’s defense; and

3. Elaborate on the necessity and reasonableness, given the circumstances of your client’s case, for you to have access to these professional services for assistance in trial preparation and through trial; and

4. Detail to the Court that if you are not provided with access to the specific type of professional services requested, you may not be able to provide your client with effective assistance of counsel while investigating the facts of your client’s case and through trial; and

5. When detailing the funding required, you should put in the motion, based on your conversation with qualified experts, what you expect an initial retainer to be, include a reference to the proposed expert’s hourly rate and number of hours estimated (if applicable), and ultimately the estimated total expense of these types of services through trial; or

6. If you have a specific professional in mind to provide the services you require, put in the individuals name, their professional title, and their fee structure. (I will sometimes attach their CV and fee estimate as an exhibit to the motion)

7. In order to properly preserve error, this type of “Ex Parte” motion is required to be sworn to or have an attached affidavit supporting same. The supporting affidavit can be signed by the expert you intend to use which specifically describes the services to be provided and necessity of the services requested. If you request and receive a hearing on an “Ex Parte” motion for funding, this satisfies the requirement that it otherwise be sworn to or supported by affidavit. However, whether you have previously sworn to the motion or support same by affidavit, I would insist that the court schedule a “Ex Parte hearing regarding same, such that you can elaborate and expand upon your rationale for the requested funding.

Generally, I have not had to file sworn “Ex Parte” motions in order to receive requested funding, but I do notify the Court if they intend to reduce or deny the requested funding that I will require an “Ex Parte” hearing to preserve same for purposes of appeal. It has been my experience that this request will normally satisfy the Court’s inquiry regarding same, and I have not had to present further information or swear to the motion itself to have same granted. However, if you are practicing before a Judge who is not prone to grant funding requests in noncapital cases, then I believe that you must swear to this type of motion or support same with an affidavit from your chosen expert and set same for an “Ex Parte” hearing before the Court. It is my opinion that how you initially present an “Ex Parte” motion for funds to the Court is tactical

decision you must make as the trial attorney based on your relationship and prior history with Court.

Over the last couple of years, I have had several cases in which it has been necessary to file a Motion to Quash. Specifically, those motions have dealt with the issue of recklessly, as that specific term is sometimes used in an indictment or the fact that the indictment does not charge the offense in ordinary and concise language, such that your client has notice of that which he or she finds themselves charged with. This issue does not come up very often in sexually related cases, because the conduct in question is alleged as intentionally and knowingly, and not recklessly. However, there are some situations in which the sexually related case is accompanied with an aggravated assault count in which a reckless form of conduct is alleged. There is also the situation where based upon the convoluted nature of the allegation, the State has a difficult time articulating in the indictment just how your client committed a criminal offense, such as a case where an attempted offense is alleged. The purpose of a motion to quash is to give notice to the Court that the State’s indictment does not provide the degree of certainty necessary to give the Defendant notice of the particular offense with which he or she is charged. Further, an indictment must specify the manner and means by which the Defendant has committed the offense. I would leave you with this thought regarding filing a motion to quash, if after reviewing the State’s indictment against your client you do not have a clear and concise understanding of the following, you need to file a motion to quash:

1. Who your client accused of sexually assaulting (child case will be a pseudonym); and

2. The general circumstances of the accusation (ie: Adult = Rape or Child = Consent not an issue); and

3. The manner and means by which your client is alleged to have committed the offense.

Rules to Know When Arguing Pre-Trial Motions

1. Rule 403 [Relevance Balancing Test]

You can and should request a gatekeeper hearing outside of the presence of the jury regarding the prejudicial effect of certain types of evidence, should the Court have overruled your basic objection as to relevance under Rule 401. You should object and explain to the Court that if the Court has found the evidence to be relevant, you would further move to exclude the evidence under Rule 403 in that the probative value of the evidence is substantially outweighed by its prejudicial effect. You can require that the Court engage in a balancing test based upon an objection made under Rule 403. See Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999).

Gigliobianco v. State, outlines the 6 distinct issues that the Court must balance and consider under a 403 analysis, as follows:

(a) Inherent probative force of the proffered evidence along with

(b) Proponent’s need for the evidence against

(c) Any tendency of the evidence to suggest decision on an improper basis

(d) Any tendency of the evidence to confuse or distract the jury from the main issues of the case,

(e) Any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and

(f) Likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

See Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006).

2. Rule 412 [Evidence of Previous Sexual Conduct – Rape Shield Rule]

Generally, reputation/opinion evidence and evidence of specific instances of sexual conduct are not admissible.

There are exceptions to this general rule of exclusion such as:

a. Evidence is necessary to rebut or explain scientific or medical evidence offered by the State (i.e.: the tears to the anus were due to another sexual encounter).

b. Evidence is offered on the premise to establish the previous sexual behavior between the accused and the victim, for purposes of establishing consent. Note: If the state offers testimony to establish the relationship between the parties, you should certainly attempt to introduce this type of evidence because the State has opened the door.

c. Motive or bias of the alleged victim.

d. Constitutionally required, and

e. Probative value outweighs the danger of undue prejudice.

If you intend to introduce this type of evidence, prior to questioning the alleged victim, you must inform the court and request a hearing outside of the presence of the jury. The Court will then conduct an “in camera” hearing, recorded by the court reporter, to determine what if any evidence of this type will be admissible, and will limit questioning accordingly. After concluding this hearing, the Court will seal the entire contents of the “in camera” hearing which was conducted for appellate purposes, and the record shall be sealed.

If you are limited or otherwise prohibited from questioning the alleged victim under Rule 412, you must make a record and object, and require the Court to conduct a mandatory “in camera” hearing, and as such, you have effectively made the Court a gatekeeper of this evidence for purposes of appeal.

3. Rule 703 [Expert Opinions]

An expert can rely on basically any evidence including hearsay evidence, which would otherwise be inadmissible, in forming the basis of an opinion, so long as it is the type of information, facts or data reasonably relied upon by experts in a particular field.

4. Rule 704 [Expert Can Give an

Opinion on an Ultimate Issue]

If the Expert gives an opinion regarding an ultimate issue in the case, to be decided by the jury (i.e.: causation), it is not objectionable because it involves an ultimate issue reserved to the jury.

Note: While I understand the meaning of this rule, if the prosecutor asks an expert did my client sexually assault that child or person, I am going to object because that goes beyond the ultimate issue itself and is an attempt to usurp the jury’s function. This objection may not work, but fundamental fairness and due process of law should require the Court to not allow such testimony as unfairly prejudicial.

5. Rule 705 [Gatekeeper Hearing]

The Court, upon request generally in the form of a pre-trial motion and/or notice, require that the expert appear and testify under a type of voir dire process, outside the presence of the jury, regarding their opinion and the underlying facts and data supporting said opinion. For the expert to be allowed to testify as to their opinion, it must be established that there is a sufficient basis for their opinion, otherwise the opinion is inadmissible. Further, the Court can conduct a balancing test when the underlying facts and data would be otherwise inadmissible, if the danger exists that they will be used for a purpose other than as an explanation or support for the expert’s opinion is outweighed by their unfairly prejudicial value. In this instance, you can request a limiting instruction.

Note: Keep in mind that that the Texas Rules of Evidence, are in fact rules of exclusion, with some exceptions. In cases involving sexual assault or aggravated sexual assault you need to have a firm command of these rules of evidence, and the applicable case precedent, to successfully defend your client and preserve error for appellate purposes.

6. Rules 404 (b) [Extraneous Offenses]

Other crimes, wrongs, or acts is not admissible to prove the character of a person to show actin in conformity therewith.

However, this type of evidence may be admissible for limited purposes such as to prove (1) motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity, (8) absence of mistake or accident.

Must request notice and/or file a motion requesting notice. If you file a motion requesting notice you must get it ruled on and request a certain time frame in which to receive this information in advance of trial. You will need this time to investigate the nature of the alleged extraneous offenses.

Even if the state gives proper notice, you must make the State make an appropriate and sufficient proffer to the Court regarding the extraneous conduct allegation. Always request a hearing outside of the presence of the jury such that you can cross examine the State’s

witnesses regarding this proffer of proof. The Court must make a finding, at the conclusion of this proffer, that the jury could find that the extraneous conduct was committed beyond a reasonable doubt. You must require the Court to make this finding on the record, and subject to your continued objection. You should also request that the State premise on which basis and for what purpose under 404(b) is the State requesting that the jury consider this evidence.

Once the evidence and/or testimony is admitted, over your objection, you must request a limiting instruction regarding the evidence and/or testimony. If you do not follow these steps in some form, you will not preserve your objection for purposes of appeal, and you will not be entitled to a jury instruction regarding extraneous conduct.

Important Cases:

Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008)

Extraneous offenses type evidence may be admissible to rebut defensive theories of fabrication, frame up, or retaliation.

Therefore, be aware of fact if you believe the child is lying because the mother is retaliating against you for some reason, you may have just opened the door to an otherwise inadmissible extraneous act.

Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005)

Leaving a false impression with the jury. If a defendant makes a general statement like I would never have sex with a minor, he may have opened the door to a relevant act or character trait. An extraneous act which tends to rebut such testimony may be admissible to impeach the defendant. However, when evidence of this nature is introduced at trial the jury may not consider it as substantive of the charged offense, but only as evidence that the defendant misrepresented himself.

Note: Ultimately, this rule of evidence is used in conjunction with TCCP 38.37 in child sexual assault cases, to introduce all types of extraneous acts to leave the impression with the jury that your client did it once, so therefore it is logical to assume he did it again. Our recourse is to continue to object and hold the State to its burden regarding the proffer of testimony and/or evidence and require the Court to do its job in assessing the credibility of the testimony and/or evidence and give the Defendant an appropriate limiting instruction.

Relevant Articles of TCCP Which can Impact Pre-Trial Motions

TCCP 38.07 [Testimony in Corroboration of Victim of Sexual Offense]

This provision provides that a conviction for Sexual Assault, and Aggravated Sexual Assault is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is said to have occurred.

This provision does not apply to on offense where the alleged victim is 17 years of age or younger; a person 65 years of age or older; or a person 18 years of age or older who because of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person’s need for food, shelter, medical care or protection from harm.

TCCP 38.071 [Testimony of Child who is Victim of Offense]

This provision provides the Court with guidance regarding the hearing to conduct in which the court determines that a child who is less than 13 years of age would be unavailable to testify in the presence of the defendant about an allegation regarding Indecency with a Child, Sexual Assault, and Aggravated Sexual Assault. There are other criminal offenses to which this section applies but have no application in this paper. This provision basically provides the Court with the parameters and guidelines by which it must determine during a hearing how and if the recorded statement of a child, made before the indictment is returned or complaint filed, is admissible into evidence. This provision allows for the child to testify in another room other than the courtroom and be viewed by the jury. This provision also allows for the propounding of written interrogatories to the child. If the Court determines that the testimony of the child is to be taken under Sections 3 or 4 of this article or if the Court finds that the testimony of the child taken under Subsection 2 or 5 of this article is admissible into evidence, the Court may not require the child to testify in Court at the proceeding for which the testimony was taken, unless the Court finds there is good cause. There are additional provisions for how the questioning and cross examination is to take place, and if the child is required to testify in Court, the reasonable steps necessar y to protect the child’s psychological well-being including allowing the child to testify via closed circuit video.

Note: Be aware of the confrontation clause if this issue is raised, and object and require the Court to conduct the required hearing and argue that any type of accommodation which does not provide you with the ability to adequately cross-examine the alleged child victim violates the tenants of the confrontation clause of the U.S. Constitution.

Coronado v. State, 351 S.W. 315 (Tex. Crim. App. 2011)

A list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is not constitutional substitute for live cross-examination and confrontation. (Videotape procedures under Art. 38.071, §2, with use of written interrogatories in lieu of live testimony and cross-examination, did not satisfy Crawford v. Washington).

TCCP 38.072 [Hearsay Statement of Certain Abuse Victims]

The outcry statement is the statement made by the child regarding the alleged assault to the first person 18 years of age or older describing in sufficient detail the alleged offense. The statement must be otherwise admissible under Article 38.37 of TCCP and Rules 404 and 405 of TRE. This article applies only in cases in which the child which makes the statement is less than 18 years old. A statement which meets the description as provided for under Subsection (a) of 38.072 is not inadmissible as hearsay if the State gives notice of its intent to use said statement,

provides the subject matter of the statement, and by whom the statement is made. The Court shall conduct a hearing outside of the jury’s presence to determine if the statement is reliable.

Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990)

The outcry witness is the first person 18 years of age or older, to whom the child makes a statement that is some discernable manner describes the alleged offense.

Note: You do not necessarily need to request notice of the outcry, as it is specifically required by statute if the State intends to use such a statement.

TCCP 38.37 [Evidence of Extraneous Offenses or Acts]

This provision under Sec. 1 allows the State to use evidence of other crimes, wrongs, acts, if committed against a child victim less than 17 years of age for its bearing on relevant matters, including the state of mind of the defendant and the child; and the previous and subsequent relationship existing between the defendant and the child. This is in addition to and in some cases circumvention of TRE 404 and 405. This is the way the State attempts to circumvent the requirements of TRE 404 (b) and its limited use regarding other crimes, wrongs, or acts, which may have been committed by the Defendant. You should always request notice of extraneous offenses by way of a filed notice request and/or motion. If you file a motion requesting notice you must get a ruling and order stating how many days prior to trial, must the State give you of notice of said extraneous acts.

Under Sec. 2 of this article, if the State gives you at least 30 days’ notice of its intent to introduce evidence that the defendant has committed a separate criminal offense which is listed under Sec. 2 ((a) (b)) – (basically all listed offenses which are sexually related offenses), they are entitled to admit same into evidence 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.

This is basically the kitchen sink approach when it comes to extraneous offenses and their admissibility at trial.

Hearing must be conducted outside the presence of the jury for the Court determining whether a jury could find that the separate offense was committed beyond a reasonable doubt. Note: Always object to any evidence coming in under this article and request the appropriate limiting instruction. Also, you should object to relevance under TRE 403, after you have sufficiently objected to this evidence on other grounds.

TCCP 38.371 [Evidence in Prosecutions of Certain Offenses Involving Family Violence]

Between this article and TCCP 38.37, the State can put our clients to trial over any allegation, whether they have requisite proof or not because they have the ability to convict a defendant of the charged offense, because he has been previously been convicted of a similar type of criminal offense. This statute can become troublesome as it applies to all cases involving assault, and aggravated assault. The problem with this article is that the State may now introduce this type of evidence, subject to the TRE or any other applicable law, and so long as it would assist the jury. While this provision does not allow the presentation of character evidence that would be otherwise inadmissible under the TRE or other applicable law, either party may offer testimony or other evidence of all relevant facts and circumstances that would assist the jury in determining whether the defendant committed the offense, including testimony or evidence regarding the nature of the relationship between the defendant and the alleged victim.

Note: The applicability of this specific article will not likely come up very often in a case involving sexual or aggravated sexual assault, unless the State has charged in a multi count indictment, allegations of sexual assault and aggravated assault. The jury can only consider this type of evidence for determining those acts as alleged in said multi-count indictment if one of the counts involves a type of family violence assault. You may want to consider requesting that the aggravated and/or other type of assaultive offense be severed from the allegations regarding sexual assault on this very basis. This is because, regardless of the limiting instruction given or the jury instruction requested, information of this nature if admitted will likely be considered by the jury for all purposes.

Note: I would request notice similar to the manner in which notice is requested under TRE 404 (b) and TCCP 38.37. I would also require the State to make a sufficient proffer outside of the jury’s presence, and request that the State determine if a jury could find that the defendant committed the alleged extraneous act beyond a reasonable doubt.

You should be very familiar with the above-described articles under the TCCP, as these articles are extremely pertinent and relevant in sexual assault and aggravated sexual assault trials.

Chapter 420 of the Texas Government Code

Texas Government Code Chapter 420 contains the various statutes that regulate sexual assault prevention and crisis services in Texas. This Chapter is titled “Sexual Assault Prevention and Crisis Services”. It is the goal of this chapter to promote the development of nonprofit programs for the survivors of sexual assault and to standardize the quality of services that are provided. It requires the Texas Department of Public Safety to develop and implement a statewide electronic tracking system for evidence collected in cases involving sexual assault or other types of sexual related cases. Also, the provisions of this chapter require law enforcement agencies to submit evidence of sexual assault or other sexually related offenses to a public accredited crime laboratory within certain time constraints or provide a written explanation and documentation of why they did not timely submit same. Many of the statutory provisions and

statutes in Chapter 420 were revised and amended, and said changes went into effect September 1, 2021.

Chapter 420 of the Government Code provides a method by which defendants in criminal cases must use to seek confidential information of the alleged victim, or as referenced in the various applicable sections of Chapter 420 the “survivor”. Section 420.074 of the Texas Government Code is a new statutory provision that went into effect in September of 2021. It basically requires defense attorneys to navigate multiple obstacles in filing a motion to seek this type of information that must be sworn to. Moreover, it requires us to somehow show the court that we know there is a reasonable ground to believe that the supposed confidential information contains exculpatory information.

Again Section 420.074 as referenced above establishes a statutory process which you are supposed to follow in procuring confidential “survivor” information, if same has not been provided in discovery. I would follow the process as outlined but argue that Section 420.074 as strictly applied is unconstitutional as it violates the defendant’s constitutionally protected rights of due process of law and effective assistance of counsel. Further, why is this information not otherwise discoverable under Texas Code of Criminal Procedure 39.14. Any statements to a therapy or counselor regarding a sexual assault should be discoverable at a minimum “in camera” for purposes of inconsistent statements, impeachment information or exculpatory information. This notion that the State gets to decide what Brady is and hide behind the fact it is not in their file is not acceptable, and frankly I do not believe that is consistent with the statutory provisions and case precedent which govern same. Moreover, it can be argued in certain cases and circumstances that it may violate the current version of Texas Disciplinary Rules 3.09. Current text of Rule 3.09 of the Texas Disciplinary Rules is provided below:

Rule 3.09 - Special Responsibilities of a Prosecutor

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;

(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.

The Committee on Disciplinary Rules and Referenda have been in the process of revising this particular disciplinary rule, and there are proposed revisions to the rule to include additional subsections (f), (g), and (h), which are to be voted on by the bar membership in the next several months. These subsections specifically deal with a prosecutors’ subsequent discovery of credible exculpatory which creates a reasonable likelihood that a convicted individual did not commit an offense for which they were convicted, and their responsibility to disclose same. While these proposed revisions to Rule 3.09 are not what we were wanting as a whole as a defense bar, they are significantly better than what was originally proposed back in November of 2022. I would encourage all of our members and all criminal defense attorneys to educate themselves on these proposed changes and vote.

What can we do? We have to remain vigilant and continue to attack this process to undermine our right to investigate and gather information in these types of cases. In a situation where the client can be convicted solely on the statement of one person, we should not be restricting the right to discover information, we should expand that right and mandate that the court assist us in making sure the accused’s constitutional rights are protected. I would suggest we get creative in how to attack and gather this information and explain the need for those resources to the court in a succinct and detailed manner, to be considered pre-trial. It surprises me that the State desires to admit every extraneous act your client has alleged committed into evidence during trial, but when it comes to their alleged victim (ie: the survivor), they believe the case should be tried in a vacuum of their own design. That is not constitutional, and it is not fair. I believe our founding fathers would be greatly disappointed in how the fruits of their labors has been so twisted and manipulated by the government in the last 230 years.

Conclusion

In concluding this paper I don’t have any bullet proof answers for what we face as criminal defense attorneys in handling sexual assault cases in the foreseeable future. I believe we can always assume that in a sexual assault case, the presumption of innocence may very well be just rhetoric as the accusation often precedes the case and your client.

I think we should keep in mind as we represent the accused in a sexual assault the following:

1. Jurors want to believe in their police department.

2. The police are human, and they make mistakes just like you and me.

3. As a human being we will jump to conclusions and form an opinion.

4. It is important to remind jurors that we can’t jump to conclusions and the police are not infallible.

5. Information and knowledge can create leverage in a sexual assault case.

6. Gathering of information is critical to a sexual assault defense.

7. You will need the court’s assistance to gather information.

8. You will need the court’s assistance to limit admissibility of certain information.

9. Be prepared to argue without the court’s assistance.

10. Certain statutory provisions in sexual assault cases are penal in nature.

11. Be prepared to navigate and work around these provisions.

12. Protect the record.

Good luck and good verdicts to you all. If you have any questions about this paper or my presentation, please contact me at my office.

Texas Criminal Defense Lawyers Association

Grand Jury Packets

Speaker: Michael Heiskell

Johnson, Vaughn, and Heiskell

5601 Bridge Street, Ste 220 Fort Worth, TX 76112

817.457.2999 phone

817.496.1102 fax

firm@johnson-vaughn-heiskell.com email

www.johnson-vaughn-heiskell.com website

MICHAEL P. HEISKELL OF COUNSEL:

L. CLIFFORD DAVIS

JOHNSON, VAUGHN & HEISKELL ATTORNEYS AT LAW (NOT A PARTNERSHIP)

5601 BRIDGE STREET

SUITE 220

FORT WORTH, TEXAS 76112-2306 OFFICE: 817/457-2999

FACSIMILE: 817/496-1102

E-MAIL: firm@johnson-vaughn-heiskell.com

WEBSITE: www.johnson-vaughn-heiskell.com

Tarrant County Grand Jury

401 W. Belknap, 2nd Floor Fort Worth, TX 76196

RE: James Robert Womack

Dear Ladies and Gentlemen of the Grand Jury:

WILLIAM L. JOHNSON (1927-1987)

ANTHONY W. VAUGHN (1949-1992)

As counsel for the above referenced individual, I appreciate the opportunity to present evidence in his defense of allegations of that he caused one of his former parishioners at Destiny Church, located in Fort Worth, to exploit her emotional dependency on him due to his role as a spiritual advisor by having her perform oral sex The below evidence reflect a lack of probable cause to support an indictment.

BACKGROUND

James R. Womack holds a Master of Theology, as well as in the process of seeking a Doctor’s of Philosophy Degree. He has been the Senior Pastor of Destiny Church, Incorporated since 2007. It is a church he founded after a tenure as Interim Director and Pastor of Christian Education at Oak Cliff Bible Fellowship in Dallas. He has been ordained to preach since June, 1994. Rev. Womack has been married to Cynthia Womack for 26 years and they are the proud parents of eight (8) children.

Rev. Womack first met the alleged victim in this case, Madalyn Martin Batts Woolen, in the 2004-2005 range while he was working at Oak Cliff Bible Fellowship. She had previously been a classroom teacher for the Fort Worth ISD and, during their initial meeting, was a Regional

Educational Sales Consultant. She attended his Christian Education classes that he taught at Oak Cliff Bible Fellowship. At that time she was married to her second husband, Ed Martin. She eventually joined Destiny Church sometime in 2010 She began to volunteer at the Church and was active in the Women’s Ministry This placed her under the direction of Mrs. Womack. She loved to cook and would often invite Rev. Womack and his wife over to her home to pick up food.

During the 2012-2013 timeframe she told Rev. Womack what if she came to his office one day “…in a mink coat with no clothes on?” He was taken aback by this question and later heard she was having an affair thus cheating on her then husband, Ed Martin. During the next three to four years she would still occasionally flirt with Rev. Womack and he would ignore it. He was intrigued because she was a beautiful woman. However, he never became the aggressor. She later divorced Ed Martin and married Jerome “G.” Woolen

In 2017, during a phone call with her, she stated: “My pussy is really wet.” He replied “Well, I want to see it,” and thus began their adventures into having phone sex with one another. During this time she was now contemplating divorcing her third husband Jerome “G” Woolen. Rev. Womack, knew of her intent yet encouraged her to stay in her marriage. However, the phone sex between them continued. One day he stopped by her home and they engaged in oral sex with one another. On a couple of subsequent occasions she performed oral sex on him in her vehicle. In 2018, she had achieved a career highlight of becoming PK-12 Director of Sales-Central US for her company, Frog Street. Thus, she led and managed up to 10 outside sales personnel. During a sales event at the Gaylord Hotel in Grapevine she invited Rev. Womack to her room where they had oral sex.

Shortly after this event, Ms. Woolen began to pressure Rev. Womack to leave his wife and children and to be with her exclusively. Rev. Womack refused. Ms. Woolen accepted his decision,

and stated that she would be patient and wait. Madalyn is a forceful and dynamic woman who charts her own course and makes her own decisions. This was the last time they engaged in oral sex. Rev. Womack was not in a counseling agreement with Madalyn. She would contact Rev. Womack to share her frustrations with her husband as reflected in the text messages she sent Rev. Womack. See attached as Exhibit “A”. The end of that message reflects that she turns away men on a daily basis.

Later during 2019, G. Woolen, Madalyn’s third husband, communicated via text messages with Rev. Womack and informed him that he discovered that she was having an affair with another man. By this time as well, Rev. Womack’s wife discovered his affair with Madalyn. As a result, he took steps to totally end any relationship with her which led her being asked not to return to the church. Her efforts to return to the church belie her claims that she feared Rev. Womack, his coercion, and the deterioration of her faith. He also blocked her phone calls. 1

INVESTIGATION

Detective Montoya of the Fort Worth Police Department conducted this “virtual investigation” since the coronavirus pandemic kept him from meeting the alleged victim in person for an interview. However, instead of using a video conference method, he simply talked to her over the phone on April 9 , 2020. This was also a month after one of his cohorts interviewed the alleged victim for an interview—also over the phone.

The summary of their reports indicate that the alleged victim felt “pressured and coerced” into the sex and that she was “traumatized.” She further described the sex as making her feel “dirty and ashamed” and that her “faith started to deteriorate.” However, when asked if she participated because she thought it was part of the counseling, or because he simply wanted her to do it, she replied that she did it—not because of any counseling—but because he would be “angry” or “retaliate” if she did not do it. She also described him as being 6’6” tall, with a

commanding presence, compared to her 5’8” stature. Lastly, absolutely no corroboration has been provided by her to back up her claim that, at one point, he called her 36 times in a 24-hour period, and was “irate” when she finally reached him. Nor any corroboration of her other false claims of being “pressured”, “coerced”, “traumatized” or “manipulated.” More importantly, there is not one person who witnessed the alleged profound changes in her that she describes during this years long affair. Her claim that her spirit was brought down and that she didn’t want to attend church is contrary to her attempts to once again attend Destiny Church and being told not to do so.

LEGAL ANALYSIS

Texas Penal Code Section 22.011 (b) entitled Sexual Assault states in pertinent part:

“(b) a sexual assault…is without the consent of the other person if:

(10) the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as a spiritual advisor.” (emphasis added)

Madalyn Martin Batts Woolen as a victim in this circumstance belies her true life as a professional. She obtained her Bachelor of Science degree in Elementary Education, as well as the completion of graduate studies. She has climbed the corporate ladder from Sales Representative to Regional Consultant, to Senior Account Manager, to a Director of Sales Western and Central U.S. She has managed people and teams, as well as being responsible for financial revenues of up to $8 million dollars in two sales cycles. Her areas of expertise reflect a successful achiever in leadership, collaboration, management and policy implementation. See Exhibit “C” which is her four (4) page resume outlining her sterling achievements in her field, as well as people skills. As stated herein, she is a dynamic and forceful person who makes her independent decisions on important matters in her life.

1 See attached as Exhibit “B” an affidavit attesting to these facts by Rev. Womack

She also was a woman who had a healthy appetite for life, and for sex. See Exhibit “D” which is a true and correct copy of the text messages between her third husband, Jerome “G.” Woolen and Rev. Womack, wherein Woolen relates the discovery of his wife, Madalyn’s, affair in August 2019, after her relationship with Rev. Womack had terminated. A photo with she and her lover in the middle appears on the last page. She does not appear “traumatized” nor wanting in any area of her life. More importantly her characteristics, demeanor and lifestyle do not reflect a person who has any “emotional dependence” on anyone, much less her minister. She is her own lady who, in her own right, easily makes decisions that suit her.

CONCLUSION

This matter reflects a lack of probable cause that any criminal act was committed by Rev. Womack. It is a sordid story of human failings, as well as moral and ethical lapses that all parties should be rightfully ashamed of, especially Rev. Womack—a man called to the ministry.

Thank you, JOHNSON, VAUGHN, & HEISKELL

Michael P. Heiskell MPH/cij

MICHAEL P. HEISKELL

OF COUNSEL:

L. CLIFFORD DAVIS

JOHNSON, VAUGHN & HEISKELL ATTORNEYS AT LAW (NOT A

PARTNERSHIP)

5601 BRIDGE STREET

SUITE 220

FORT WORTH, TEXAS 76112-2306 OFFICE: 817/457-2999

FACSIMILE: 817/496-1102

E-MAIL: firm@johnson-vaughn-heiskell.com

WEBSITE: www.johnson-vaughn-heiskell.com

July 22, 2022

WILLIAM L. JOHNSON (1927-1987)

ANTHONY W. VAUGHN (1949-1992)

Dallas County Grand Jury

Frank Crowley Courts Building

133 N. Riverfront Blvd., L.B. 19 Dallas, Texas75207-4399

Re: Unfiled;. Rickie Glenn Rush

Dear Ladies and Gentleman of the Grand Jury:

As counsel for the above-referenced individual, I and my co-counsel, John Hunter Smith, appreciate the opportunity to present evidence in his defense regarding the allegations before this Grand Jury. Pastor Rush adamantly denies these false allegations. For the past several years’ the Dallas Morning News, and other media outlets, have engaged in the process of “cancel culture” to disparage Pastor Rush in our community. In support of this position, we provide the following information to reflect the lack of probable cause to indict:

ALLEGATIONS

Allegation #1: Marcus Deon Bell Jr., alleges that in 2007 he was physically and sexually assaulted by Pastor Rush.

Allegation #2: Harmoni Stephenson alleges that Pastor Rush made sexual contact with her when she was a child.

BACKGROUND INFORMATION

Rickie Glenn Rush is a 62-year-old man. Pastor Rush has lived in Dallas, Texas area his entire life. He has spent his adult life as teacher—whether in the classroom or from the pulpit. He has a degree from the University of Texas at Arlington in education. He spent 17 years as an educator teaching theater at Skyline High School in Dallas. During his time as a teacher, he never received a single complaint about his interactions with his students. He furthered his education when he received a Doctor of Divinity from Rialto Bible College.

In 1990, Pastor Rush formed the Inspiring Body of Christ Church (IBOC). Pastor Rush has served as its Senior Pastor for the past 32 years. Additionally, Pastor Rush started the University of Dreams School that is affiliated with IBOC. University of Dreams provides daycare, and school from Pre-K through the 6th grade.

Pastor Rush has been married for the past 36 years to Beverly Jackson Rush. They have one daughter, Kristian. The Rush’s are the very proud grandparents of their grandson, Kaiden, Kristen’s son.

Allegation #1 - Marcus Deon Bell, Jr.

Marcus Deon Bell, Jr is a 27-year-old convicted felon. He was primarily raised by his mother, Donna Fields. As a child growing up he was very involved in IBOC because of his mother. Fields had been involved in IBOC for several years. Fields was involved in the leadership of IBOC until church politics led to her departure. As a single mother, Fields relied on Pastor Rush and other church leaders to assist in the discipline of Bell. Fields even told the Dallas Morning News that she authorized Pastor Rush to discipline Bell or, in her words, “give swats.”

In 2007, Fields began a relationship with Bradley S. Cotton. Fields and Cotton were married on August 27, 2011 until they were divorced on April 18, 2018. Cotton paints a picture of his former stepson Bell as someone with an attitude, who was aggressive, couldn’t be intimidated, and liked to fight. Bells’ behavior led him to be kicked out of three high schools (Cedar Hill, Carter, and Dallas Can Academy). Bell physically assaulted Fields on more then one occasion. Because of the violence toward his mother, Bell went to live with his father. (EXHIBIT A).

Ultimately, Bell’s behavior led him to jail. Bell was indicted for the violent criminal offense of Aggravated Assault with a Deadly Weapon (Firearm) in Tarrant (2 cases) and Dallas (1 case) Counties. In all cases, Bell stole property and threatened another human being with imminent bodily injury or death with a firearm. In one case, he actually shot a person during his attempt to rob this person. Bell was represented by Attorney Pasquel Lee in Tarrant County and Paul Johnson in Dallas County. Attorney Lee engaged Ruby B. Johnson, a Licensed Clinical Social Worker to assist on this case. On May 2, 2018, Johnson interviewed Bell for five hours at the Tarrant County Jail. During this meeting, they discussed the offenses, childhood, adolescence, psychiatric history, school, employment, suicidal thoughts, PTSD symptoms. It should also be noted that Bell has previously been placed in Timberlawn Mental Health Facility, a psychiatric hospital. Bell never advised Ruby B. Johnson, nor anyone, that he was sexually assaulted by Pastor Rush. (EXHIBIT B). Bell was sentenced to five years in the Texas Department of Corrections on his cases arising out of Tarrant and Dallas Counties. (EXHIBIT C, D, E).

On November 6, 2020, and November 13, 2020, Attorney Pasquel Lee, sent letters to IBOC and Pastor Rush, respectively, demanding to mediate Bell’s new claims of sexual assault and abuse alleged to have taken place in 2005 and 2006. Lee’s proposed mediation would have

potentially lead to a monetary civil settlement (EXHIBIT F 1-2). On December 4, 2020, counsel for Pastor Rush advised Lee in writing that his claims were not supported by any factual basis. Furthermore, counsel warned that should Bell and Lee proceed with any legal action that they should expect an action against them for malicious prosecution. (EXHIBIT G). After counsel’s letter, Lee never responded, or filed suit. In Bell’s statement to the Dallas Morning News on May 23, 2021, he indicated that the alleged sexual assault occurred in 2007—a difference in the above dates referenced by his own attorney, Mr. Lee. Lee’s letter to IBOC and Pastor Rush was a shake down. Brad Cotton finds the allegation by Bell to be impossible and illogical because Bell is a fighter, and Pastor Rush is not an overpowering person, physically speaking. (EXHIBIT A).

Pastor Rush adamantly denies Bell’s false allegations. As result of Bell’s detailed report to the Dallas Morning News, Eric J. Holden of Behavioral Measures & Forensic Services Southwest, Inc., was able to prepare relevant questions to polygraph Pastor Rush. The relevant questions were as follows:

Relevant Q1: Did any part of your penis penetrate Marcus Bell Jr.’s anus at any time?

Answer: No

Relevant Q2: Did any part of your exposed penis touch Marcus Bell Jr.’s anus?

Answer: No

Relevant Q3: Did the anal contact Marcus Bell Jr. Reported between you and him take place?

Answer: No

Eric J. Holden concluded NO DECEPTION INDICATED, and Pastor Rush’s responses were TRUTHFUL. (EXHIBIT H).

Pastor Rush acknowledges that he previously disciplined Bell with a paddle. The discipline occurred at the request of his mother Donna Fields. Pursuant to Sec. 9.61 of the Texas Penal Code, Pastor Rush was acting in loco parentis when he used reasonable force to discipline Bell to safeguard and promote his welfare.

Even after the Dallas Police Detectives interviewed Bell, regarding his statements to the Dallas Morning News, law enforcement never obtained an arrest warrant.

Allegation #2 - Harmoni Stephenson

In September 2020, counsel for Pastor Rush began a line of communication with Detectives from the Dallas Police Department after allegations were made in the Dallas Morning News. For the next eleven months counsel for Rush never heard from the Dallas Police Department. On August 9, 2021, counsel for Pastor Rush learned for the first time that an individual by the name of Harmoni Stephenson made an allegation of Indecency With A Child by Sexual Contact.

Texas Penal Code Sec. 21.11 - Indecency With Child

(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex and regardless of whether the person knows the age of the child at the time of the offense, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact;...

(c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Since Stephenson’s allegation was disclosed, a year ago, the Dallas Police Department, the Dallas District Attorney’s Office and the Special Prosecutor have not provided any information regarding same. Additionally, they have not issued an arrest warrant in this matter. Counsel has asked the following questions from the above-mentioned agencies: when did this happen, where did this happen, what is she saying happened, was she a member of the church, was she a student at University of Dreams? Counsel has received the following response: “we are not going to tell you any more information.” Literally, we received a name, and an alleged charge. Pastor Rush has no recollection of this individual.

For the past year, we have been investigating as to who this individual is. Recently, we learned that Harmoni Stephenson was also known as Harmoni Miller, and was born on October 29, 2006. Her mother was Chorion Miller who attended IBOC for a short period of time, and her father was Michael Stephenson. At some point after her birth, she was enrolled in the Pre-K program at University of Dreams. Also, she was withdrawn from the Pre-K program on October 20, 2008. At the time that she was withdrawn, she was almost two years of age. IBOC and University of Dreams have no records after October 20, 2008 for Harmoni Stephenson or Harmoni Miller. (EXHIBIT I). With the discovery of this information, Pastor Rush still has no recollection of the person known as Harmoni Stephenson or Harmoni Miller. An investigator for undersigned counsel did locate and sought to speak with Michael Stephenson, the girl’s father. He refused to speak about the matter and referred our investigator to the Special Prosecutor’s Office.

Pastor Rush adamantly denies that he had any sexual contact with this individual. Because of the lack of details about the outcry, Mr. Joseph L. McCarthy, another local polygraph examiner, performed a specific issue polygraph examination. The test covered two catch all relevant issue questions to ensure that any inappropriate touching would be addressed. The relevant questions were as follows:

Relevant Q1: Did you touch that girl for any sexual reason?

Answer: No

Relevant Q2: Did that girl touch you for any sexual reason?

Answer: No

Joseph L. McCarthy concluded NO DECEPTION INDICATED, and Pastor Rush’s responses were TRUTHFUL. (EXHIBIT J).

CONCLUSION

On behalf of Rickie Glenn Rush, we respectfully request the Dallas County Grand Jury to return “NO BILL” of indictments on Allegation # 1 - Marcus Deon Bell, Jr., and Allegation # 2 - Harmoni Stephenson for there is wholly insufficient evidence of proof and therefore lack of probable cause to support these very serious allegations, and certainly no evidence that supports a potential verdict of guilt “beyond a reasonable doubt.”

“No Bill’s” of indictments would put an end to this nightmare for Pastor Rush, his family, and members of his church. Attached, please find character letters supporting Rickie Glenn Rush. (EXHIBIT K 1-7). We believe these letters shed a positive light on this man and the influence he’s had on his church members, their families, and the broader community.

Thank you,

JOHNSON, VAUGHN, & HEISKELL

Michael P. Heiskell

WYNNE & SMITH

John Hunter Smith

EXHIBITS:

EXHIBIT A - Affidavit of Bradley S. Cotton

EXHIBIT B - Ruby B. Johnson LCSW, LCDC - Invoice

EXHIBIT C - Case No. 1488362D - Tarrant County

EXHIBIT D - Case No. 1488363D - Tarrant County

EXHIBIT E - Case No. F-1733135P - Dallas County

EXHIBIT F - November 6, 2020 - Letter from Attorney Pasquel Lee

EXHIBIT G - December 4, 2020 - Response to Attorney Lee

EXHIBIT H - Behavioral Measures & Forensic Services Southwest, Inc. - Polygraph (Bell)

EXHIBIT I - University of Dreams Records

EXHIBIT J - Joseph L. McCarthy - Polygraph (Stephenson)

EXHIBIT K - Character Letters - K-1 through K-7

MICHAEL P. HEISKELL

OF COUNSEL:

L. CLIFFORD DAVIS

December 1, 2022

JOHNSON, VAUGHN & HEISKELL ATTORNEYS AT LAW (NOT A PARTNERSHIP)

5601 BRIDGE STREET

SUITE 220

FORT WORTH, TEXAS 76112-2306 OFFICE: 817/457-2999

FACSIMILE: 817/496-1102

E-MAIL: firm@johnson-vaughn-heiskell.com

WEBSITE: www.johnson-vaughn-heiskell.com

WILLIAM L. JOHNSON (1927-1987)

ANTHONY W. VAUGHN (1949-1992)

VIA CM-RRR

Dallas County District Attorney’s Office

ATTN: Grand Jury Division

Frank Crowley Court Building 133 Riverfront Blvd., LB 19 Dallas, Texas 75207

RE: State vs. Luong Cong Nguyen Case No. F-1824627; Aggravated Assault

To Whom It May Concern:

I have been retained to represent Mr. Luong Cong Nguyen. in the above referenced cause. Please notify me of when this case shall be presented to the Grand Jury so that I may make a presentation in this matter to reflect lack of probable cause to indict.

Thank you for your time and assistance in this matter. If you have any questions, please do not hesitate to call.

Sincerely,

JOHNSON, VAUGHN, & HEISKELL

Michael P. Heiskell MPH/cij

cc: Client

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❏ Juvenile Justice

❏ Law School Students

❏ Listserv

❏ Long-Range Planning

❏ Managed Assigned Counsel

❏ Media Relations

❏ Membership

❏ Memo Bank

❏ New Lawyers

❏ Nexus (Seminars)

❏ Prosecutorial Conduct

❏ Public Defender

❏ Rural Practice

❏ Social Media

❏ Strike Force

❏ Technology & Communications

❏ Transcript

❏ Veterans Assistance

❏ Health & Wellness

❏ Women’s Caucus

Email the completed form with a brief resume. The form may include a personal statement describing your interest in serving on a committee to ksteen@tcdla.com no later than July 1, 2023

Texas Criminal Defense Lawyers Educational Institute

Make a Difference Support an Attorney

The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership. Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

Pledge Options

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

For the ASSOCIATE FELLOWS FUND ($750) FELLOWS FUND ($1500) SUPER FELLOWS FUND ($3000)

In one lump sum Quarterly Monthly In ____ payments of $________.

I would like to designate this donation for use on these specific funds: CHARLES BUTTS Law Student Scholarship in the amount of $_________

Financial CLE SCHOLARSHIPS $___________

For the COMANCHE CLUB in the amount of $_________ For CHRISTINE S. CHENG MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________

BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________

KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________

Texas Criminal Defense Lawyers Educational Institute

Super Fellows | Fellows | Associate Fellows Pledge Form

About Super Fellows , Fellows & Associate Fellows

TCDLEI Bylaws, Art. III, § 3. Super Fellows, Fellows, and Associate Fellows

A. Super Fellow—A member of the Institute becomes eligible for election as a Super Fellow Member by (a) making outstanding contributions to the Institute, or (b) contributing at least $3,000 in cash or pledge to the Institute or (c) a person who has in the opinion of the Board of Texas Criminal Defense Lawyers Educational Institute made a contribution of time and effort in the furtherance of the education and training of criminal defense attorneys in the State of Texas. An affirmative vote of the majority of the Board of Directors of the Institute is required to elect a member as a Super Fellow.

B. Fellow—A member of the Institute becomes eligible for election as a Fellow Member by (a) making outstanding contributions to the Institute, or (b) contributing at least $1,500 in cash or pledge to the Institute or (c) a person who has in the opinion of the Board of Texas Criminal Defense Lawyers Educational Institute made a contribution of time and effort in the furtherance of the education and training of criminal defense attorneys in the State of Texas. An affirmative vote of the majority of the Board of Directors of the Institute is required to elect a member as a Fellow.

C. Associate Fellow—A member of the Institute becomes eligible for election as an Associate Fellow Member by (a) making outstanding contributions to the Institute, or (b) contributing at least $750 in cash or pledge to the Institute or (c) a person who has in the opinion of the Board of Texas Criminal Defense Lawyers Educational Institute made a contribution of time and effort in the furtherance of the education and training of criminal defense attorneys in the State of Texas. An affirmative vote of the majority of the Board of Directors of the Institute is required to elect a member as an Associate Fellow.

Pledge

Pledge Options

q Associate Fellow—$750 q Fellow—$1,500 q Super Fellow—$3,000*

I, , pledge to contribute $ to TCDLEI.

Payment Options

q Enclosed is the full pledge amount Associate Fellow q 3 payments of $250 q monthly

q Scheduled payments ( select one): q every other month

Fellow 1-year plan—$1,500 Super Fellow 1-year plan Super Fellow 2-year plan

q 3 payments of $500 (quarterly)

q 5 payments of $300 (every other month)

q 12 payments of $125 (monthly)

q 3 payments of $1,000 (quarterly) q 6 payments of $500 (quarterly)

q 5 payments of $600 (every other month)

q 12 payments of $250 (monthly)

q 10 payments of $300 (every other month)

q 24 payments of $125 (monthly)

*If you are currently a TCDLEI Fellow, a second contribution of $1,500 will make you a Super Fellow. Contact Information

q Mr. q Ms. q Mrs.