Battling the Resistance Fredericksburg

BATTLING THE RESISTANCE SEMINAR INFORMATION Date Location Course Director

February 12, 2021 Livestream Event Kerri Anderson Donica and Clay Steadman

Total CLE Hours 6.0 Ethics: 1.0 6.0 Friday, February Ethics: 1.0 12, 2021

Time

CLE

8:15 am

Daily CLE Hours: 6.0 Topic

Ethics: 1.0

Speaker

Opening Remarks

Kerri Anderson Donica and Clay Steadman

8:30 am

.75

The More Important the Action, the Greater the Resistance: (Cross Examination)

Lisa Greenberg

9:15 am

1.0

The Battle Must be Fought Anew Every Day: (Pretrial)

Patty Tress

10:15 am 10:30 am

Break .75

11:15 am 11:30 am

Jessica Canter

Lunch Break 1.0 ETHICS

12:30 pm 12:45 pm

The Resistance is Fueled by Fear: (Opening Statements)

The Resistance is Self-Sabotage: (Mental Health)

Joseph Hoelscher

Break .75

1:30 pm

Procrastination; the Most Common Resistance and the Easiest to Rationalize: (Voir Dire)

Adam Kobs

Break

1:45 pm

.75

Controlling the Perceptions: (Experts)

Heather Barbieri

2:30 pm

1.0

When the Finish Line is in Sight: (Closing Arguments)

Steve Keathley

3:30 pm

Adjourn

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

Texas Criminal Defense Lawyers Association

BATTLING THE RESISTANCE Table of Contents

-Speaker

Topic Complete Date of Seminar

Lisa Greenberg Patty Tress Jessica Canter Joseph Hoelscher Adam Kobs Heather Barbieri Steve Keathley

The More Important the Action, the Greater the Resistance: (Cross Examination) The Battle Must be Fought Anew Every Day: (Pretrial) The Resistance is Fueled by Fear: (Opening Statements) The Resistance is Self-Sabotage: (Mental Health) Procrastination; the Most Common Resistance and the Easiest to Rationalize: (Voir Dire) Controlling the Perceptions: (Experts) When the Finish Line is in Sight: (Closing Arguments)

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

Texas Criminal Defense Lawyers Association

Battling the Resistance-Fredericksburg February 12, 2020 Livestream

Topic: The More Important the Action, the Greater the Resistance: (Cross Examination) Speaker:

Lisa Greenberg

622 S Tancahua St Corpus Christi , Tx 78401 (361) 446-2476 lisagreenberglaw@gmail.com

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

How to Kick Ass at Cross Examination By: Lisa Greenberg

“Cross examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316, (1974).

Cross Examination is one of the hardest trial skills a trial lawyer needs to master. However, we owe a duty to our practice, our clients and ourselves to grow and learn how to cross-examine effectively. We need to tailor our cross examination to each and every trial and be prepared for witnesses’ testimony on both direct and cross. Each witness is being used by the Prosecutor as a piece of the puzzle to convict your client, it is your duty, in turn to dissect those pieces individually. In doing so, you prove yourself to be prepared, competent and skilled while telling your client’s story.

I.

Importance of Cross: a. Storytelling Function- you are telling a story at all times when you speak as an attorney. If you are not telling that story, you should not be speaking. b. Learning how- sources: MacCarthy on Cross-Examination, Terrence MacCarthy, The Art of Cross-Examination by Francis L. Wellman, Collier Books; The Ten Commandments of Cross Examination by Professor Irving Younger. c. TCDLA trial college! d. Difficulty- Cross is a science, not an art. Needs to be learned and studied. May take the most preparation and time of your trial prep. It is hard and should be viewed like surgery. Precise. In and out and no extras! You know the result you want and go for that solely. i. Sadly, most lawyers think cross is where you fight or demolish a witness, or worse, they just repeat what the Prosecutor said. e. Preparation- THIS IS KEY! i. This is where you spend your pretrial preparation time, after you have prepared by writing your closing. What details from the evidence are helpful to your story telling? This is where you bring them out. ii. Know each witness and what they will say: 1. How do they add or hurt your theory of the case iii. Listen to their direct and know what evidence they have given iv. Be prepared for how they help/hurt your theory. v. Know their background fully- this is pretrial prep.

1. How- from these sources: a. Discovery b. Informal conversation c. Investigation facts d. Subpoena documents e. Police reports, court histories etc.

f. Watch the witness’ demeanor in any interviews or on direct (if nothing else available) g. Listen: listen to the witness in interviews and direct

II. III.

IV.

V.

VI.

VII.

Scope of Cross: Limited to subject matter of the direct examination and matters affecting credibility of witness.

What is the Purpose? a. Always you are telling your story, advancing your theory. b. At best, helps win a decision on points, not knockouts. c. At worst, you look good and enables you to act like you are scoring, even if you are not.

Style of Cross: a. “Look Good” system b. change from a dialogue to a monologue c. You do not care what the witness says.

What is the Look Good style of cross? a. What is your purpose with the witness? i. Discredit? ii. Show Bias or Motive? iii. Mental Instability? iv. Poor vision/Memory? b. Style/Manner: i. This is entirely up to you. You have to be YOURSELF. ii. Getting permission in Voir Dire if you have to be rough on some witnesses.

Rules: a. Use Short Statements i. Why they are important? Goal is control. ii. Don't make too long of a question. iii. Do not ask open ended questions. b. Your questions are statements.

1. One fact per question.

2. Break this rule and you’ve lost control.

3. Also, you do not look good and loses jury’s attention 4. Only answer is yes or no. c. Make transitions: i. Show the listener where you are going. ii. Ex: “I want to ask you a few questions about what you saw when you left Murphy’s bar at 3 in the afternoon, you understand?” iii. Book marker for listener d. NO LEGALESE! Your goals: Tell your story!

VIII.

IX.

X.

a. Use statements of the witness b. Destroy credibility of those who hurt you. i. Key point is witnesses will abandon logic and truth in order to preserve their sense of self. ii. Create a cross designed to force a witness to agree to a damaging fact or facts in order that the witness may maintain his/her self image intact.

How to: a. I separate witnesses with folders. i. In each folder I have any statements they made, their statement in discovery, notes from videos, info etc b. Write down goals. “I must prove this” c. Then work in reverse, how do you get to that goal? d. Example- cop wants jury to believe your client offered undercover heroin. i. Officer you had a role during the meeting with alleged dealers ii. You had a tape recorder iii. Didn’t wear it on his body iv. Tape recorder was in briefcase v. Briefcase could go anywhere vi. Recorder in briefcase was turned on vii. Recorder was left in the car viii. You left car with the briefcase at the time of the meeting ix. You couldn’t record anything without briefcase x. Any conversation you had, you had near car xi. Tape didn’t pick up conversation xii. There is no tape with conversation you related to this jury. e. Close escape routes: i. Reviewed documents ii. Could make changes and didn’t iii. Didn’t tell anyone about errors iv. Court reporter has machine to take down what you say v.

Different witnesses: different tactics: a. Cop- never admit to not being thorough b. Mother- never admit to being neglectful c. Expert- never admit to not being knowledgeable d. Snitch- try to hold on to some self respect How to maintain control of witness: a. Your goal is a Pavlovs dog response. b. Try to look good, maintain manners and not ask for help. c. Try not to: i. Interrupt a witness ii. Instruct the witness to answer yes or no.

1. Better alternatives are: a. I’m sorry I confused you, let me try again?

b. Can you try and answer MY question? c. You came to tell the truth, if the simple truth is yes, can you just tell us yes? d. What did I ask you? e. Or repeat the same question slowly with rising inflection and use the witness’ name.

XI.

May be times we do not want to cross examine: a. Do I need to cross examine this witness? b. Will other witnesses demonstrate the same point with less danger to my client/theory c. Will another witness highlight the illogic or unreasonableness of this witness? d. Children? Crying witnesses? Painful recount would only hurt you? e. Does this witness matter? i. Errors in time/distance the jury will forgive the witness, not you. ii. Big issues are the only things to ever fight about.

Texas Criminal Defense Lawyers Association

Battling the Resistance-Fredericksburg February 12, 2020 Livestream

Topic: The Battle Must be Fought Anew Every Day: (Pretrial) Speaker:

Patty Tress

222 E. McKinney Suite 210 Denton, TX 76201-2900 (972) 325-1758 Phone planyourdefense@yahoo.com Email

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

BATTLING THE RESISTANCE: PRETRIAL INVESTIGATIONS

Patty A. Tress 222 E. McKinney Street, Suite 210 Denton, Texas 76201 planyourdefense@yahoo.com (972) 325-1758 (office) (972) 922-5498 (cell)

Pretrial investigation is THE most important part of what we do as criminal

defense attorneys. The information we hear, flesh out and use is all gathered during this phase of our representation. This is everything up until trial. Pretrial Investigation is what will provide you with the information you need for gathering additional evidence, witnesses, direct examination and cross examination. You must be thorough in your pretrial investigation on each case.

I.

WHEN TO START YOUR INVESTIGATION

You must conduct an independent investigation. You cannot solely rely on the State’s Evidence. Relying solely on the State’s investigation/evidence and failing to conduct an adversarial testing of the State’s evidence is ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984).

You will begin your investigation as soon as your representation starts. This can be as soon as you are retained or appointed to a case. If you are retained, it will likely begin during your consultation/sign up with the client. If you are court appointed, it will begin when you meet with your client for the first time. In person meetings are preferable, however, given the pandemic we are facing, you can utilize zoom, securus, home wave, facetime, or a meeting at your office or at the jail. It just depends on your and the client’s level of comfort. If for whatever reason, you cannot get to the jail to see your client, and you do not wish to use

securus or home wave, please send the client a letter with a questionnaire and selfaddressed stamped envelope to send back to you. This will help get you started on the information you need to be looking into on your client’s case.

DO NOT JUST WAIT FOR THE CASE TO BE FILED OR INDICTED. Waiting could allow time for witnesses to disappear, documents to go missing, or just plain old people forgetting what happened. So, make sure to start your investigation right away. Remember, timing can be everything. Additionally, make sure you get an investigator to help you on the more complicated cases.

2. BUILD YOUR TEAM Having a team to help you is imperative in having a successful representation.

Who should be in your team? Well, that is up to you but there are always a few main players. You, your assistant/paralegal, any associate attorneys, investigators, and experts. One of the first people other than myself and my assistant that becomes involved in a case are my investigators. It is important to seek out an investigator that is experienced and whom you can work well with on your cases. I use the same investigators on my cases but you can have different ones for different cases if you choose.

Investigators and experts cost money. If your client has money and is retained, you will just need to contact the investigator or expert and have your client

pay the fee. However, if your client is indigent or has become indigent during your retained representation, you need to request an investigator and expert from the court. Remember not every case requires an investigator or expert.

To have the court foot the bill for the investigator or expert, you need to file a motion. Attached to this paper are the motion and order I use for both appointment of an investigator and expert. You will be filing an Ake v. Oklahoma, 470 U.S. 68 (1985) and Ex Parte Briggs, 187 S.W. 3d 458 (Tex. Crim. App. 2005) motion. Even if you are retained, if your client has become indigent do not hesitate to file this motion when you need an investigator or expert. The Court often wants to limit funds for experts and investigators. If they do not authorize enough money, make sure you contact other experts, get affidavits of what they charge and reapproach the court about additional funds. I cannot stress this enough---You must continue to ask for additional funds or find an expert at the price you have. If you do not, you are setting yourself up for an ineffective assistance of counsel claim. Finally, make sure that you stay involved with your investigator and experts to make sure you will get the information you need on your case.

3. THINGS TO WATCH OUT FOR DURING YOUR INVESTIGATION

Our clients seem to absolutely LOVE social media. They cannot seem to stay off their accounts. While you are NOT allowed to tell them to delete anything with regard to the offense, it is wise to advise them to cease using their accounts. Social media can also work for you during a pretrial investigation. You/your investigators can gain a wealth of information on witnesses by scrolling through social media.

You can find out background information, have they posted about the alleged offense, drug use, alcohol use, promiscuity, acts of violence, religious beliefs, illness (whether real or imaginary), employment, education, travel, and the list just goes on and on. There are tons of social media outlets but the main ones appear to be Facebook and Instagram.

Another thing to watch out for are your client’s jail calls. If your client is still in jail, their calls are being recorded as you know. I know that it doesn’t seem to matter how many times I tell them to not talk about their case on the phone, they always talk about their case on the phone!!! Make sure you get the jail calls. The State of Texas is not allowed to just dump calls on you without letting you know which ones they plan on using. In other words, you do not have to search for the needle in the haystack. See Skurka v. State, 512 S.W. 3d 444 (Tex. Ct. App.—Corpus Christi 2016) and Cerrillo v. State, 2019 Tex. App. Lexis 7138 (2019). Every letter sent out from my office to a client in jail reminds them that their calls are recorded. Our clients seem to forget they are recorded. These calls can come back to bite them in

the bum later. Make sure you are warning them every chance you get to cover yourselves.

A special note must be made regarding affidavits of non-prosecution. I often have client’s wanting me to obtain the affidavit. I let them know that my investigator does this as I cannot be a witness at trial. This will usually alleviate any concerns as to why you yourself are not getting the affidavit. It is important that you never meet with a complaining witness by yourself. Complaining witnesses often change their minds regarding whose side they are on throughout the course of a case. First, you cannot be a witness when they change their minds regarding what they told to you alone. Texas Disciplinary Rules of Professional Conduct 3.08 states “a lawyer is generally prohibited from being “an advocate before the tribunal...if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client.”

Second, they can make allegations like “the big mean defense attorney made me do it.” Third, the complaining witness may make allegations that you gave legal advice. You cannot and should not give legal advice to the complaining witness EVER.

4. RESOURCES

Other than your investigator and experts, there are a vast number of resources you can utilize to find information on witnesses, the complainant, and others in your case. For example, if you have a family violence case, sexual assault, or sexual assault of a child, odds are there might be a civil case out there. Look for divorces and SAPCRs. These can bring you a wealth of information you can use on cross examination. Most SAPCRS, Motions to Modify etc have an affidavit filed with them. If your witness or CW tells a different story in the affidavit than to the police or on the stand you can use this a fodder for your examination. Make sure to have your investigator run a background check. You can gain a wealth of information on a background check.

So, you need to essentially be checking on everything possible. That seems very overwhelming. But if you have put your team in place, you should be able to get the information you need. One of the ways to know what to start looking for in a case is to LISTEN to your client. I stress this only because as attorneys we often hear but don’t actually listen to what our clients are saying. Here is a list of pretrial investigative tools you should be addressing or looking into depending on the type of case you have (this is not a fully inclusive list as there are infinite possibilities for investigation in criminal cases): a. CPS records; b. Divorce/SAPCR records;

c. Employment records; d. Crime lab records; e. Medical records; f. Mental health records; g. Crime victim fund records; h. Transcripts of pretrial hearing or civil hearings; i. Investigate the State’s experts (use google scholar etc.) j. TDCJ records, probation records, records from County jail k. Jail calls (as discussed above) l. Affidavits of non-prosecution (see below); m. Photographs of your client and family members for use in sentencing—always remember to figure out ways to make your client human in the eyes of the jury no matter how tough the case.

Now that you have your sources for information, you will need to actually obtain the information. The easiest way to do this is through a subpoena duces tecum. You can issue a subpoena duces tecum requesting for example medical or mental health records. Just make sure you will receive your records in advance of when you will need them. For medical/mental health records for your client’s use a HIPPA release and not a subpoena. The State can see what subpoenas you issue and will issue the same subpoena for the records to try and figure out what you are doing. Try not to

give them that opportunity. Our client’s medical/mental health records often contain information that could be harmful to their case.

Begin gathering your documents right away in a case. This will provide you ample time to review the records. Further, your review of the records could lead to additional records that you will need to obtain. Remember to have these records entered in court, you must have a business records affidavit on file 14 days before trial begins under TRE 902 (10).

5. VISITING THE SCENE One important aspect of pretrial investigation is that you visit the scene. This seems impossible to do sometimes but you must make time for this visit. It is important for you to be able to visualize how/where things were when you are later questioning a witness. Remember you OWN the courtroom. You do not need a witness to tell you exactly where things were and how the furniture was set up.

If you cannot go to the scene itself because there have been changes or it no longer exists, get your client and witnesses to describe in painstaking detail how everything was set up. One advantage (of many) to 39.14 is that it has made officer worn body cameras more readily available to us. Make sure you watch the videos as they go through a scene. Look at photographs to see how and where items are placed.

When the scene is the side of the road, it is important to not just rely on the officer’s description form that says “flat, hill, etc.” Go out there and see. There might be a dip in the road right before where your client was seen by the officer that he didn’t mention. This dip could have been the cause of your client’s swerve instead of intoxication. The bottom line is that if you do not go out and look at the scene you will not know how to describe it or defend from it.

6. WITNESS INTERVIEWS You must interview witnesses to prepare for trial. This should never be done on the eve of trial. A witness could provide additional information that needs to be investigated.

Initially, your investigator can make contact with a witness. Your investigator will conduct an interview and obtain information from the witness. You must review this information and determine if there are further items that need to be investigated.

This will also help narrow your interview with the witness.

When I interview witnesses, I typically try not to have them all in the same room at the same time (even pre-pandemic). This is to keep their information as their information and not what they heard from someone else. This can be hard for clients,

witnesses and their families to want to comply with. You must be firm when letting them know this is how the interviews will be conducted.

Make sure you are prepared to question a witness. I don’t mean just make sure you have pen and paper. Make sure you have reviewed all the evidence, you have reviewed their statements, and other statements. You need to know your case front to back and back again. The reason you need to know this is not just to conduct a fruitful interview but also to avoid any tampering. If your client’s family members are wanting to help with statements etc., please make sure to warn them of the risk of charges for tampering with a witness.

Now with your pretrial investigation complete, you are ready to file your pretrial motions. I am not going to delve into pretrial motions in this paper. TCDLA has a ton of prior CLEs and upcoming CLEs that teach on pretrial motions. I will, however, attach a few of the motions I use at the beginning of my representation.

Hope this paper has been helpful and informative. Happy Verdicts to All!!

Cause No. _______________ THE STATE OF TEXAS VS. _______________

§ § § § §

IN THE DISTRICT COURT _______ JUDICIAL DISTRICT DENTON COUNTY, TEXAS

REQUEST FOR DISCOVERY PURSUANT TO THE MICHAEL MORTON ACT – TEX. CODE CRIM. PROC. ART. 39.14 TO THE STATE OF TEXAS THROUGH ITS CRIMINAL DISTRICT ATTORNEY AND TO THE HONORABLE JUDGE OF SAID COURT, IN THE EVENT THE STATE FAILS TO COMPLY: COMES NOW, the Accused, _______________, in the above-entitled and numbered cause, by and through his attorney of record, PATTY TRESS, and files this Request for Discovery Pursuant to the Michael Morton Act – Tex. Code Crim. Proc. Art. 39.14. The Accused requests the production of the requested materials herein as soon as is practicable. The Accused specifically makes the following requests pursuant to Article 39.14 of the Texas Code of Criminal Procedure, the Due Process guarantee contained in the Fifth and Fourteenth Amendments of the United States Constitution, and the Due Course of Law guarantee contained in Article I, Section 9 of the Texas Constitution.

I. Undersigned counsel requests the production and inspection and electronic duplication, copying and/or photographing of: (1) any offense reports; (2) any documents, papers, written and/or recorded statements of the accused; (3) any documents, papers, written and/or recorded statements of any witness which the State may call as a witness; (4) witness statements of law enforcements officers; (5) any photographs, audio and/or video recordings of the accused, witnesses, complainants or alleged crime scenes; (6) the criminal history of each and every witness the State may call as a witness in this case;

(7) any tangible property of any type seized during any arrest, search, and/or detainment of the accused; (8) probable cause affidavit(s), search and arrest warrant(s), inventory, and return(s); (9) booking photograph of the accused and any witness and codefendant; (10) dispatch tapes; (11) 911 tapes; and (12) any and all scientific tests and reports that were performed or compiled, and the results thereof.

This request extends to all items that are in the possession, custody or control of the State or any person under contract with the State. This request does not include work product of the State.

II. Undersigned counsel requests disclosure of the name, current address, and topic area of each person the State may attempt to use at trial under Rules of Evidence 702, 703, and 705. Undersigned counsel requests this disclosure as soon as practicable but in no event not later than twenty [20] days prior to trial.

III. Undersigned counsel requests disclosure of any exculpatory, impeachment or mitigating document, item or information in the possession, custody or control of the State that tends to negate the guilt of the accused or would tend to reduce the punishment for the offense charged. Impeaching information as referenced herein includes, but is not limited to, an officer’s professional status, pending investigations, unavailability, and sustained grievances; as well as inconsistent statements from witnesses, at least to the extent that they pertain to a material issue, including, but not limited to, credibility.

IV. Undersigned counsel requests that all such documents, statements, books, accounts, letters, photographs, or objects or other tangible things be submitted to undersigned counsel without redaction of any sort. In the event that the prosecuting attorney withholds and/or redacts any portion of the requested

materials undersigned counsel requests that the prosecuting attorney immediately inform undersigned counsel that material has been withheld and/or redacted so that undersigned counsel can promptly request a hearing to determine if said information may be lawfully withheld and/or redacted.

V. Undersigned counsel requests that the State electronically record and/or otherwise accurately and precisely account for every document, item or other information provided to the accused pursuant to this request.

VI. This request on behalf of the accused is perpetual. Specifically, this request extends to any time before, during, or after the trial or plea. Undersigned counsel requests that if at any time before, during, or after trial the State discovers any additional document, item, or information requested to be disclosed under Article 39.14, the State shall promptly disclose the existence of the document, item, or information to the defendant, his attorney and to the court.

VII. WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that the prosecuting attorney will comply with the requirements of the Michael Morton Act – Article 39.14 CCP. In the event the State fails to timely comply with the Michael Morton Act – Article 39.14 CCP, undersigned counsel requests this Court to exclude all evidence, the subject of this request, due to the State’s failure to comply.

RESPECTFULLY SUBMITTED,

_____________________________________ PATTY TRESS STATE BAR NO. 24048679 ATTORNEY FOR THE ACCUSED 1005 NORTH ELM STREET DENTON, TEXAS 76201 TEL: (972) 325-1758 FAX: (940) 381-3677 EMAIL: planyourdefense@yahoo.com

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above legal document was hand delivered to the Criminal District Attorney of Denton County, Texas, or one of his assistants assigned to prosecute this case on this the _____ day of _________.

_________________________________ _ Patty A. Tress

CAUSE NUMBER ____________________ THE STATE OF TEXAS

§

IN THE DISTRICT COURT

VS.

§

______ JUDICIAL DISTRICT

_______________

§

DENTON COUNTY, TEXAS

DEFENDANT’S SEALED EX PARTE MOTION FOR EXPERT ASSISTANCE IN INDIGENT CASE MOTION FOR APPOINTMENT OF A PSYCHOLOGIST/PSYCHIATRIST FOR COMPETENCY EVALUATION(S) NOTICE TO CLERK OF COURT: This application is to be considered EX PARTE and is filed for purposes of the record. This application is required to be SEALED, by law, and disclosure can be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT DISCLOSURE TO THE PUBLIC OR STATE IS PROHIBITED TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, Defendant, _______________, by and through his attorney of record, SARAH ROLAND, in the above styled and numbered cause and respectfully moves the Court to appoint a Forensic Psychologist/Psychiatrist to assist in the preparation of his defense, and in support thereof would show the court as follows: I. The Defendant is indigent and without funds to make his own arrangements for the retaining of a mental health expert. Defendant was determined to be indigent on January 15, 2013, and undersigned counsel was appointed to represent him. Defendant has been incarcerated in the Denton County Jail since his arrest on January 12, 2013; to date, Defendant is still incarcerated.

II. Defendant has a right to effective counsel. Effective assistance of counsel includes and extends to an obligation to make adequate investigation and preparation.

III.

In order to properly prepare this case, wherein Defendant is charged with the offense of murder, aggravated assault with a deadly weapon, and unlawful possession of a firearm by a felon, defense counsel will be required to hire a Forensic Psychologist to review the facts of this case, various reports and psychiatric records. Moreover, a Forensic Psychologist is needed to interview and evaluate the Defendant, determine if competency to stand trial or the Defendant’s mental state is an issue, and/or examine the Defendant’s background and character.

IV. Counsel for the Defendant is in need of a Forensic Psychologist to interpret the available data and assist in evaluating that data as Counsel is not competent to do so. Without the help of a Forensic Psychologist, counsel for the defendant will not be able to provide effective assistance of counsel as provided by the Sixth Amendment to the U.S. Constitution.

V. A mental health expert will provide admissible evidence that will assist Defense counsel in preparing defenses or mitigatory evidence to provide effective assistance of counsel to Defendant.

VI. Counsel would urge the Court that one accused of a crime should not be forced to abandon one Constitutional Right in order to exercise another Constitutional Right. Defendant should not be required to waive his Fifth Amendment Right in order to exercise his Sixth Amendment Right to effective assistance of counsel.

VII. Defendant would show the Court that even civil defendants are allowed to protect work product, attorney-client communications and the names of expert witnesses not expected to be called for trial. Defendant requests that the Psychologist so retained may be obliged by contract to respect the attorney-client privilege as an agent of the attorney and may not be compelled to testify.

VIII. If the Defendant is not provided with expert assistance, he will be deprived of due process, due course, and equal protection of the laws, the effective assistance of counsel, his right to confront witnesses against him, his right to a fair and impartial trial, his right to present evidence on his own behalf, and his right to explain or deny evidence presented against him in the punishment phase, in violation of the Sixth, Eighth , and Fourteenth Amendments to the United States Constitution and Article I, Section 10, 13, and 19 of the Texas Constitution.

IX. Anticipated expenses of such an expert include reviewing case documents, trips to the County Jail, administration of various tests and interviews of the Defendant, scoring of such tests, and written analysis and conclusions. Records review, collateral interviews and attorney consultation will also be necessary. Approximately $3,000 in professional services and expenses is anticipated for this endeavor. Since this case is not set for trial yet, undersigned counsel is not now requesting monies for trial preparation or testimony.

X. That due to the serious nature of the offenses, and to preserve Defendant’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 10 and 19 of the Texas Constitution, it is imperative the Defense counsel have available a reasonable amount of money to secure the services of an expert, or, in the alternative, to have the assurance of this Court that any such reasonable expenses incurred by Defense counsel for such expert will be reimbursed by the County. Articles 1.04, 1.05, and 1.05(b) of the Texas Code of Criminal Procedure further support the granting of this Motion.

PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this honorable Court appoint _____________ to assist in the preparation of his defense and to conduct the necessary examinations of evidence in this case, and that the Court will authorize and order the County Auditor to pay said costs of such services.

RESPECTFULLY SUBMITTED, _____________________________________ PATTY A. TRESS STATE BAR NO. 24048679 ATTORNEY FOR DEFENDANT 1005 NORTH ELM STREET DENTON, TEXAS 76201 TEL: (972) 325-1758 FAX: (940) 381-3677 EMAIL: planyourdefense@yahoo.com

CAUSE NUMBER THE STATE OF TEXAS

§

IN THE ___ JUDICIAL

VS

§

DISTRICT COURT

______________

§

DENTON COUNTY, TEXAS

EX PARTE SEALED MOTION FOR FUNDS FOR INVESTIGATOR NOTICE TO CLERK OF COURT: This motion and order are to be considered EX PARTE and is filed for purposes of the record. This motion and order are required to be SEALED, by law, and disclosure can be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT DISCLOSURE TO THE PUBLIC OR STATE IS PROHIBITED TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, ______________, Defendant in the above styled and numbered cause, by and through his attorney of record, PATTY TRESS, and files the above-styled motion and in support thereof would show the Court the following, to wit: I. Defendant was arrested for ________, which allegedly occurred on or about __________.

Defendant was determined to be indigent and undersigned counsel was appointed by the Court to represent Defendant.

II. As of ____________, undersigned counsel was able to speak with Defendant substantively.

At that time undersigned counsel learned of documents that need to be subpoenaed and witnesses that need to be interviewed. Said witnesses are material to the defense and/or mitigation in this case as are said documents which would verify Defendant’s alibi.

Accordingly, undersigned counsel respectfully requests that this Court grant funds for the use of an investigator to aid Defendant in his defense.

Additionally, based on the state of the case, undersigned counsel believes that time is absolutely of the essence.

III.

As grounds for this motion, Defendant asserts his rights to present a complete and effective defense as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitutions, and under Article I, sections 9, 10, and 19 of the Texas Constitution; his right to effective assistance of counsel guaranteed her by the Sixth and Fourteenth Amendments to the United States Constitution, Article I, section 10 of the Texas Constitution, and article 1.051 of the Texas Code of Criminal Procedure; his rights to due process and due course of law as provided by the Fifth and Fourteenth Amendments to the United States Constitution, Article I, sections 13 and 19 of the Texas Constitution, and article 1.04 of the Texas Code of Criminal Procedure; Articles 26.05 and 26.052 of the Texas Code of Criminal Procedure; and Ake v. Oklahoma, 470 U.S. 68 (1985); DeFreece v. State, 848 S.W.2d 150 (Tex.Crim.App.1993); McBride v. State, 838 S.W.2d 248 (Tex.Crim.App.1992); and Rey v. State, 897 S.W.2d 333 (Tex.Crim.App.1995).

Furthermore, in January 2011 the Texas State Bar Board of Directors adopted the “Performance Guidelines for Non-Capital Criminal Defense Representation” (hereinafter “Guidelines”). Performance Guidelines for Non-Capital Criminal Defense Representation, available at http://www.texasbar.com/Content/NavigationMenu/ForLawyers/Committees/ PerformanceGuidelinesforNon-CapitalCriminalDefenseRepresentationJanuary2011.pdf.

“The

guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime.” Blackburn, J., and Marsh, A., The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar Journal 7 (July 2011). “They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Id. According to Guideline 4.1, B.9 Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to: a.

The preparation of the defense; b.

Adequate understanding of the prosecution’s case; c.

Rebut the prosecution’s case or provide evidence to establish an available defense;

d.

Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and e.

Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.

Additionally, Guideline 7.1, C.3 provides the following: Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.).

And for such other reason that may appear upon the hearing of this motion.

IV. WHEREFORE, PREMISES CONSIDERED, it is respectfully requested that this motion will in all things be granted and that this Court will authorize sufficient funds for Defendant to retain an investigator to help him/her in the investigation, preparation, evaluation, presentation, and mitigation of this case. Alternatively, Defendant requests that under the authority of Ake v. Oklahoma, she be granted an ex parte hearing in order to support this motion. 470 U.S. 68, 77, 105 S.Ct. 1087, 1093, 84 L.Ed.2d 53 (1985).

RESPECTFULLY SUBMITTED,

________________________ PATTY TRESS STATE BAR NO. 24048679 ATTORNEY FOR THE ACCUSED 222 E. McKinney Street, Suite 210 DENTON, TX. 76201 TEL: (972) 325-1758 FAX: (940) 222-2769 Email: planyourdefense@yahoo.com

CAUSE NUMBER ___________ THE STATE OF TEXAS

§

IN THE 362nd JUDICIAL

VS

§

DISTRICT COURT

______________

§

DENTON COUNTY, TEXAS

ORDER ON EX PARTE SEALED MOTION FOR FUNDS FOR INVESTIGATOR NOTICE TO CLERK OF COURT: This motion and order are to be considered EX PARTE and is filed for purposes of the record. This motion and order are required to be SEALED, by law, and disclosure can be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT DISCLOSURE TO THE PUBLIC OR STATE IS PROHIBITED On this the ____ day of January 2021, came to be heard the foregoing Motion. After considering evidence and arguments of counsel, the Court orders the same should be:

______

GRANTED. ______________________________________________ _________________________________________________________ _________________________________________________________ _________________________________________________________.

_______

DENIED. The Court denies the Motion for the following reason(s): ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________.

_______________________________________ JUDGE PRESIDING

CAUSE NUMBER _________________ THE STATE OF TEXAS

§

IN THE DISTRICT COURT

VS.

§

_______JUDICIAL DISTRICT

_______________

§

DENTON COUNTY, TEXAS

ORDER ON SEALED EX PARTE MOTION FOR EXPERT ASSISTANCE IN INDIGENT CASE – MOTION FOR APPOINTMENT OF A PSYCHOLOGIST/PSYCHIATRIST FOR COMPETENCY EVALUATION(S) BE IT REMEMBERED, that on the ______ day of June, 2013, came on to be considered the above and foregoing Motion. After consideration of the same, it is the opinion of the Court that the same be GRANTED. It is ORDERED that the Defense be authorized to hire _________, and that the County Auditor is ORDERED to issue appropriate payment, upon a properly authenticated statement for services rendered, to reimburse such expert an amount not to exceed ______________________ without prior approval.

IT IS FURTHER ORDERED that this motion and order are to be considered EX PARTE and are filed for purposes of the record. IT IS ORDERED that this motion and order are required to be SEALED, by law, and disclosure can only be made to the TRIAL COURT and COUNSEL FOR THE DEFENDANT. SIGNED on this the _____day of June, 2013.

_____________________________ JUDGE PRESIDING

Texas Criminal Defense Lawyers Association

Battling the Resistance-Fredericksburg February 12, 2020 Livestream

Topic: The Resistance is Fueled by Fear: Opening Statements Speaker:

Jessica Canter

1000 W Court St Box 3503 Seguin, TX 78155 (361) 450-6730 jcanter@trla.org

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

The Resistance is Fueled by Fear: Opening Statements 1

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“Good fiction always begins with a story and progresses to theme; it almost never begins

with theme and progresses to story.”

– Stephen King, On Writing: A Memoir of the Craft 9

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Theory ▪ An idea that accounts for a situation ▪ Explains something ▪ Justifies a course of action ▪ Legal: revolves around the facts and law of case

▪ Always explicit 11

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Theme ▪ Controlling idea ▪ Core insight of a story ▪ Constantly present ▪ But not always explicit 13

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Structure ▪ Parallel structure ▪ Flashback ▪ Flashforward

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Types of Hooks ▪ Strong Statement ▪ Fact ▪ Lyrics ▪ Descriptive

▪ Quotation 19

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Style ▪ Consider tense ▪ Active vs passive ▪ Change perspective ▪ First vs third 25

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Performance ▪ Silence ▪ Tone ▪ Pacing ▪ Use your space

▪ Body language 30

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Visuals ▪ Charts and diagrams ▪ Maps ▪ Photos ▪ Timelines 32

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openings

your client’s 34

Questions?

Jessica Canter jcanter@trla.org 361-450-6730 Lavaca County Public Defender 35

Texas Criminal Defense Lawyers Association

Battling the Resistance-Fredericksburg February 12, 2020 Livestream

Topic: The Resistance is Self-Sabotage: (Mental Health) Speaker:

Joseph Hoelscher 3030 Nacogdoches Rd Ste 222 San Antonio, TX 78217 (210) 222-9132 Phone (888) 519-8229 Fax joe@hgclaw.com email www.hgclaw.com website

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

Mental Health and Criminal Practice

Joseph Hoelscher Managing Attorney Hoelscher Gebbia Cepeda PLLC 3030 Nacogdoches Rd., Ste. 222 San Antonio, TX 78217 210-222-9132 (o) 888-519-8229 (f) Joe@HGCLaw.com

Joseph F. Hoelscher, II 3030 Nacogdoches, Ste. 222 San Antonio, TX 78217 210-222-9132 (o) 888-519-8229 (f) Joe@HGCLaw.com SUMMARY Award-winning attorney with experience in over 100 trials, both civil and criminal, as well as high-profile and complex cases. Previous cases have featured in national media including America’s Most Wanted, Dateline, Crime Watch Daily with Chris Hansen, The New York Daily News, and National Public Radio. Published author and regular Continuing Legal Education presenter. Principle practice areas are civil Child Welfare, felony Child Abuse, and Intoxication Offenses.

PROFESSIONAL EXPERIENCE Hoelscher Gebbia Cepeda PLLC, San Antonio, Texas Managing Attorney, May 2017-Present General practice law firm with emphasis in Family and Criminal Law. Practice areas include child welfare (CPS/DFPS cases), Foster Parent law, Driving While Intoxicated and other intoxication offenses, major felonies, capital cases, complex divorce and child custody, and trial advocacy. ● Lead Counsel for novel case regarding paternity and child custody after informal assisted reproduction in an alleged same-sex informal marriage ● Mediated simultaneously, as Lead Counsel, twenty-three child welfare cases on behalf of an attorney and guardian ad litem against the Texas Department of Family and Protective Services, the Bexar County Ad Litem Attorneys’ Association, and the Bexar County District Attorney’s Office resulting in a reversal of a communications ban on our client ● Maintained winning record in jury trials in civil and felony cases ● Won appeals supporting suppression of blood alcohol evidence and standing for foster parent intervenors in a child custody case Our Lady of the Lake University, San Antonio, Texas Adjunct Professor of Political Science, Spring 2020 Teaching Law School Preparation & Intro to the Legal System (POLS 3337) course designed to prepare students for the first year of law school.

Hoelscher Law Office, San Antonio, Texas Attorney-Owner, May 2007-April 2017 General practice law firm with emphasis in Family and Criminal Law.

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● Successfully exposed systemic failures in the Bexar County breath alcohol testing program, resulting in Brady notices in dozens of cases ● Caught a corrupt lab tech resulting in the suspension of blood alcohol testing in Bexar County, ultimately affecting hundreds of cases ● Forced an investigation and suspension of a San Antonio Police Dept. Field Training Officer who was considered the best DWI officer in Bexar County ● Appointed by two courts as prosecutor pro tem St. Mary’s University, San Antonio, TX Asst. Director of Forensics, January 1998-July 2002 Developed and instituted primary training program for an internationally competitive speech and debate team. Taught persuasion, logic, rhetoric, and procedure. Analyzed lay person judging in adversarial systems to construct model decision making paradigms. ● Featured by the BBC for a global audience ● Toured Israel by invitation to lecture at major universities ● Worked with Russian, Japanese, British, and Israeli National Debate teams in cultural exchange programs Texas Military Institute, San Antonio, TX Director of Forensics, August 1999-July 2001 Head of nationally competitive speech and debate program, managed budget over $40,000 annually, hired and directed coaching staff.

CLERKSHIPS Hon. George Allen, District Court Judge (51st District Court), Waco, TX Judicial Clerk, August 2006 – January 2007 Prepared bench memoranda, performed legal research and analysis, handled court correspondence.

Goldstein Goldstein & Hilley, San Antonio, TX Law Clerk, May 2004 – August 2004 Performed legal research, drafted trial motions and supporting briefs, prepared appellate documents and writs. Assisted in trial preparation and investigation.

FORMAL EDUCATION Baylor University Law School, Waco, TX Juris Doctor with Criminal Law Concentration, November 2006 ● Order of Barristers, Moot Court Board, Moot Court and Client Counseling Teams. ● Dean’s Academic Excellence Scholarship 3

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Designed trial advocacy problems for the Practice Court program as assistant to Prof.

Gerald Powell, Head of Practice Court.

St. Mary’s University, San Antonio, TX Master of Arts in International Relations with Western Hemisphere Concentration, December 2002 ● Conducted economic and political development field research in Haiti and Cuba ● Completed foreign language component of comprehensive examination in Spanish St. Mary’s University, San Antonio, TX Master of Arts in Communications Studies, December 2002 ● Thesis: Deconstructing Speech Codes - an analysis of critical race theory and deconstructionism in relation to First Amendment free speech protections in the context of institutional rules regulating communication in academic settings.

St. Mary’s University, San Antonio, TX Bachelor of Arts in Political Science, May 1998 ● University President’s Scholarship

PUBLICATIONS Contributor, “Law in the Time of Coronavirus.” Voice For The Defense (Vol. 49, No. 6, p. 24).

Texas Criminal Defense Lawyers Association, July/August 2020.

Practice Guide to Texas Drunk Driving Law, 2019 Ed., Matthew Bender/Lexis-Nexis Publishing, 2019.

Practice Guide to Texas Drunk Driving Law, 2018 Ed., Matthew Bender/Lexis-Nexis Publishing, 2018.

“Consider A National Registry For Child Abuse Cases,” San Antonio Express-News, September 3, 2018.

“Alcohol Can Dim Holiday Cheer,” San Antonio Express-News, Sunday, December 17, 2017.

Practice Guide to Texas Drunk Driving Law, Matthew Bender/Lexis-Nexis Publishing, 2017.

“Speedy Trial: Punishing the System for Making Us Wait.” Voice For The Defense Magazine, Texas Criminal Defense Lawyers’ Association, November 2015.

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“Sealing Criminal Records,” The Defender Magazine, San Antonio Criminal Defense Lawyers’ Association, (Summer 2012).

Contributor, “Foreign Corrupt Trade Practices Act,” Chester’s Practical Guide to International Trade Law, (2008).

SPEAKING ENGAGEMENTS “Playoffs?: Appeals,” Defense: We Make Champions CLE – MacAllen, Texas Criminal Defense Lawyers Association, November 2019.

“Playoffs?: Appeals,” Defense: We Make Champions CLE – San Angelo, Texas Criminal Defense Lawyers Association, September 2019.

“Discovery and Evidentiary Issues in Child Abuse Cases,” Against All Odds CLE, Texas Criminal Defense Lawyers Association, August 2018.

“Asymmetrical Discovery - Tactics to Make the State Fight Itself,” San Antonio Defense Lawyers’ Association Monthly CLE, August 2017.

“Elements of Storytelling in Criminal Trial,” San Antonio Criminal Defense Lawyers’ Association Monthly CLE, December 2016.

“Cops as Witnesses: Friend and Foe,” Plaintiff Litigation INSIGHT CLE, August 2015 “Communicating With Clients With PTSD,” PTSD: The Elephant in the Courtroom CLE, 2015.

“Unsinking the Ship: What to Do When Your Client Has Confessed,” San Antonio Criminal Defense Lawyers’ Association Monthly CLE, March 2015 “Marijuana Law in Texas,” Bexar County Republican Liberty Caucus, January 2015 “How Judges affect the Residential Care Industry,” San Antonio Residential Care Homes, October 2012 “Contract Systems for Indigent Defense,” Bexar County Task Force on Indigent Defense, March 23, 2011 “Changing Lanes: New Directions in Vehicle Search Laws,” San Antonio Criminal Defense Lawyers Assoc. Monthly CLE, June 2009 Business and Non-Profit Organization Radio Series, sponsored by Get Up! Community Center: Guest Host ● Serving the Community as a Business, July 5, 2009 ● Legal Issues Involving Minors, June 20, 2009 5

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Selecting Legal Representation for Your Business, June 14, 2009 Open Forum Legal Q&A, June 6, 2009 Criminal and Civil Liability Issues for Non-Profits, May 30, 2009 The Role of Non-Profits in Criminal Justice, May 16, 2009

MEDIA APPEARANCES & COMMENTARY (Not Comprehensive) Medina, Mariah. “Bexar County to hold civil jury trials virtually, opening door to possibility of remote criminal jury trials.” KENS 5 News (CBS Affiliate), San Antonio, Texas, July 29, 2020.

Braff, Danielle. “Some lawyers have baked their political views into their firms’ DNA.” ABA Journal, June 1, 2020.

Lauer, Claudia and Colleen Long. “U.S. Prisons, jails on alert for spread of coronavirus.” The Washington Post, March 6, 2020.

Medina, Mariah. “Here’s Why January is Known as Divorce Month.” KENS 5 News (CBS Affiliate), San Antonio, Texas, January 1, 2020.

Williams, Geoff. “6 Financial Considerations for Remarriage.” U.S. News & World Report, November 18, 2019.

Salles, Alice. “Child Abuse Training for Teachers Both Praised and Criticized,” The Epoch Times, November 1, 2019.

Zapata, Kimberly. “How to Tell If Someone Is Lying,” O: The Oprah Magazine, October 25, 2019.

Bruk, Diana. “12 Ways to Get Help If You’re a Victim of Domestic Violence,” MSN.com, Oct. 22, 2019.

Yuko, Elizabeth. “10 Undeniable Facts About Mass Shootings in America,” Reader’s Digest, August 2019.

Martin, Eric J. “One Quarter of Small Businesses Plan to Reinvest in Their Enterprises,” CO (United States Chamber of Commerce Newsletter), May 7, 2019.

Kowarski, Ilana. “Why Is It So Hard to Get Into a Top Law School?,” U.S. News & World Report – Grad School Ranking Edition, March 2019.

Galli, Joe. “Lawyers respond to Gov. Abbott’s request to fast track executions for mass murderers.” News 4 San Antonio (NBC Affiliate), San Antonio, Texas, September 4, 2019.

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Caltabiano, David. “Convicted habitual drunk driver faces murder charge.” News 4 San Antonio (NBC Affiliate), San Antonio, Texas, February 28, 2019.

O’Neil, Bill. “Defense Attorney Criticizes Bexar Prosecutors.” KTSA Radio, San Antonio, Texas, March 16, 2017.

McCarty, Melissa. “San Antonio Mother of Three Remains Missing a Year After Dispute with Husband.” Crime Watch Daily with Chris Hansen. (Warner Bros.), Feb. 13, 2017 Dunson, Alex. “Special Report: Where’s Bianca?.” CBS-7 News (CBS Affiliate), Midland, Texas, Nov. 04, 2016.

Bourke, Justin. “Search Continues After 6-month Anniversary of S.A. Mother’s Disappearance.”

KENS-5 News (CBS Affiliate), San Antonio, Texas, Nov. 04, 2016.

Contreras, Guillermo. “A District Attorney’s Bumpy Ride.” San Antonio Express-News, Oct. 7, 2016.

Spriester, Steve. “SAPD Chief, Attorney Have Different Reactions to Dashcam Video.” KSAT12 News (ABC Affiliate), San Antonio, Texas, Aug. 29, 2016.

Santos, Renee. “Bexar County in Need of Foster and Adoptive Parents.” FOX 29 News (Fox Affiliate), San Antonio, Texas, Aug. 28, 2016.

Avila, Jaie. “Undercover Investigation: Parking Lots Booting Cars Against City Ordinance.”

NEWS 4 San Antonio (NBC Affiliate), San Antonio, Texas, Aug. 28, 2016.

Santos, Renee. “The Fight For Kenya: Families seeking adoption of one year old girl.” FOX 29 News (Fox Affiliate), San Antonio, Texas, May 5, 2016.

Degollado, Jessie. “Foster Parents Sue CPS To Adopt Child: Agency defends family reunification policy.” KSAT-12 News (ABC Affiliate), San Antonio, Texas, April 27, 2016.

Locklear, Michael. “Bexar County Catching Up On DWI Blood Sample Backlog.” NEWS 4 San Antonio (NBC Affiliate), Dec. 11, 2015.

Price, Robert. “Attorney Accused of Sex with Clients Remains on Job.” News 4 San Antonio (NBC Affiliate), Dec. 1, 2015.

Baucom, Emily. “Candid Conversation On Police Patrol.” WOAI News (Fox Affiliate), San Antonio, Texas, Nov. 20, 2015.

Chasnoff, Brian. “When Do We Get The Blood Back?” San Antonio Express-News, July 31, 2015.

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Spriester, Steve. “Bad Blood?” KSAT-12 News (ABC Affiliate), San Antonio, Texas, February 25, 2015.

Guzman, Stephanie. “Lawyers Adjust Amid Changes In Prosecuting DWIs.” San Antonio Business Journal, Jan. 30, 2015.

Malik, Alia. “DNA Links Man to Knifepoint Rape.” San Antonio Express-News, April 24, 2014.

Cassidy, Michelle. “Jury Acquits Man in Prostitute Knife Attack.” San Antonio Express-News, Feb. 4, 2014.

Goyette, Braden. “Dog left out in Texas heat bites face of 3-year-old girl.” New York Daily News. June 26, 2012.

Wolfe, Elaine. “Lawyers Challenge Reduced Fees for Children’s Court.” Plaza de Armas, 2011.

(No Longer Available).

Wolfe, Elaine. “For Poor Defendants, The Wheel Spins Once More.” Plaza de Armas, 2011. (No Longer Available).

AWARDS Reader’s Choice Runner Up, The San Antonio Current, 2020 Top DWI Lawyer in San Antonio, Scene in San Antonio Magazine, 2020 Top Family Lawyer in San Antonio, Scene in San Antonio Magazine, 2020 Client Champion Award – Gold, Martindale-Hubbell, 2019 Top 100 Trial Lawyers, National Trial Lawyers, 2014 - 2019 Featured Member, National College of DUI Defense, May 2019 “Best DWI Lawyers,” Scene in San Antonio Magazine, 2018, 2019 “Best Lawyers” list, Scene in San Antonio Magazine, 2012 - 2019 Client Distinction Award, Martindale-Hubbell, 2015 “Best Family Lawyers,” Scene in San Antonio Magazine, 2014, 2016 “Top 30 Criminal Defense Attorneys,” Scene in San Antonio Magazine, 2014, 2015, 2016 “Best of the Best: Criminal Practice,” Texas Lawyers’ Group, 2012 Avvo.com “Superior” 10 out of 10 Attorney Rating, 2011-Present Delta Theta Phi International Legal Fraternity: Justice James Norvell Memorial Award & Scholarship, 2005, 2006 University of San Diego: 2nd Place Overall, National Criminal Procedure Tournament, 2005 Naman Howell Smith & Lee: Semi-Finalist, Client Counseling Tournament, 2005 Texas Forensics Association: Texas State Championship Coach, 2001 International Public Debate Association: National Debate Champion, 1998

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MEMBERSHIPS AND ADMISSIONS Member, State Bar of Texas, Admitted May 2007 Texas State Bar No. 24042972 Admitted to practice in the Federal Western District of Texas, 2007 Member, Board of Directors, Texas Criminal Defense Lawyer’s Association, June 2020 – Present  

Member, Judicial Conduct Committee Member, Media Relations Committee

Member, North San Antonio Chamber of Commerce, 2018-Present Board Member, Starlite Autism Center, 2018-2020 Co-Chair, Retention Committee of the San Antonio Criminal Defense Lawyers Association (advises newly elected Bexar County DA regarding retention of ADAs), 2018 Member and Speaker, Texas Criminal Defense Lawyers Project, 2018-Present Member, College of the State Bar of Texas, 2009-Present Member, Pro Bono College of the State Bar of Texas, 2015-Present Member, American Bar Association Advisory Panel, 2009-2014 Mentor, San Antonio Bar Association Mentorship Committee, 2010-2015 Member, National Association of Criminal Defense Lawyers, 2009-Present Member, National College of DUI Defense, 2016-Present Member, Texas Criminal Defense Lawyers’ Association, 2007-Present Founding Member and Parliamentarian, Texas Association of Cannabis Lawyers, 2017-Present Member, San Antonio Criminal Defense Lawyers’ Association, 2007-Present Member, Legal Committee, National Organization for the Reform of Marijuana Laws, 2008Present (some years excepted)

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I.

Overview

I was once told, “arguing with a crazy person makes you look crazy, too.” I think that’s right.

Which is why I avoid talking to most prosecutors. As the voice of the accused, though, we can’t avoid talking to our clients. Inevitably, as criminal trial lawyers, we have to not only talk with mentally impaired persons, but represent their interests, sit with them, and tell their stories. How does that make us look? For a lot of jurors, prosecutors, and judges, it makes us look worse than crazy. In their minds, we are gaming the system to help our clients escape responsibility for their actions. After trying both competency and sanity to verdict, interviewing jurors post-verdict, and working with innumerable mental health professionals on a variety of civil and criminal cases, I believe the best way to raise mental health concerns is by following the experts. This paper provides an overview of how to identify and work with clients who have mental health issues, and then address competency and/or sanity in the criminal context.

II.

Identifying Mental Illness Criminal defense attorneys are in unique positions to assist those suffering from mental

illness. Criminal defense attorneys usually come to clients in their darkest, lowest periods in their lives. They may be suffering from severe, debilitating mental illness that substantially contributed to their legal situation. For example, those suffering from mental illness may be struggling to understand the consequences of their actions, control their physical movements, or even comprehend reality. The unique position of criminal defense attorneys allows the lawyer to skillfully and delicately guide the client in treatment; assisting them to regain control of their lives and avoid recidivating behaviors.

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Every client suffering from mental illness is unique in their own right. Criminal offenders tend to be less educated, addicted to some kind of debilitating substance, intellectually disabled or severely mentally ill. Often, a client will be suffering from multiple issues at once. When a client is both suffering from a drug addiction and a severe mental illness, treatment must be unique, tailored and targeted to ensure that the client can both comprehend their behaviors and ensure they do not relapse due to their mental condition.

However, an attorney must be able to guide such a client through the legal process, which can be difficult and may result conflicting interests at times. One of the most difficult parts of representing a mentally ill client can be their denial that anything is wrong with them. Many of these people are self-medicating with addictive, sometimes illegal, substances; and they struggle to comprehend the legal system. Texas has adopted many provisions designed to assist the practitioner, as well as the legal system, in dealing with individuals suffering from mental illness.

These provisions recognize that each case should be treated based on its unique facts and circumstances. Representing the mentally ill requires the attorney to function on a different level, as they work within both the legal and mental health fields to get the best results for the client. a. Interview the Client The first place the lawyer should look to identify potential mental illness is by talking to the client. Take time to interview your client thoroughly. The longer you talk to the client, the more likely you will begin to notice signs if they are suffering from mental illness.

Mental illness can range from depression to severe cases of schizophrenia. Obviously, signs of mental illnesses range drastically, and most attorneys are not licensed mental health professionals. However, there are some signs that are often present in someone suffering from

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mental illness and may support your efforts to get the client further evaluated. Some signs to look for are: 

Confused thinking;

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Sadness or irritability;

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Extreme highs and lows in emotional responses;

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Excessive fears or anxiety to social or personal situations;

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Withdrawn social behavior;

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Drug addiction;

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Delusional thoughts;

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Hearing or seeing things that are not actually there (i.e., hallucinations);

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Strong feelings of anger or uncontrollable anger;

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Dramatic changes in eating or sleeping habits (e.g., anorexia or insomnia)

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Suicidal thoughts or tendencies;

The key thing to keep in mind during these interviews is that you must find a delicate balance between questioning them about any potential mental health issues and maintaining trust. As a counselor at law, it is important that you maintain the trust of your clients, and this challenging task can be compounded when someone is suffering from a debilitating mental health disorder.

Some clients are open about their mental health diagnosis, others refuse to recognize that they are different and struggle to understand why they are in the situation they are in. You must learn how to deal with both. b. Family History Often, the family and friends of the client can be just as useful a tool as the client. They will have much needed knowledge regarding day-to-day interactions with the client. Furthermore, a 12

parent may know if the client was treated for mental illness or has a mental health diagnosis.

Furthermore, investigating where the client came from may clue you in on a potential history of mental illness within the family and trigger a duty to investigate further for potential mitigating evidence. For example, if a client’s parents are heavy drug users, that may suggest that there is a history of potential addiction, or health conditions within the family. Some important questions to ask include: How did the client behave growing up? What kind of friends did they have? Did they do well in school? Did they suffer any head trauma? Did they have a healthy home environment? Was there a history of abuse? Were they ever hospitalized? c. History of Mental Illness The interview with the client and the collaterals may trigger a duty to further investigate a client’s mental health for potential defense or mitigating evidence. If the client has been hospitalized in a mental health facility or has been treated by multiple mental health professionals in the past, these records can be a gold mine for mitigation and punishment evidence. Even if you believe they may be damaging and should not be introduced, you have both an ethical and legal duty to investigate these documents and may a calculated, knowledgeable decision not to use them. If your client indicates they have had treatment or have a medical condition, you should get them to authorize disclosure of their records by signing a HIPAA release. See Form, Authorization to Disclose Protected Health Information, The Office of the Attorney General of Texas, available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumerprotection/hb300-Authorization-Disclose-Health-Info.pdf.

III.

Competency

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Evaluating and advising a client regarding mental health issues such as competency or insanity requires a firm knowledge of both the criminal justice system and the mental health system. In addition, you must have a clear understanding of both the psychological and legal factors that are unique to each case.

Competency refers to whether the defendant is presently able to comprehend the charges against him, understand the legal process, and participate in his or her defense. Competence is determined at the time of the proceedings, not at the time of the offense. Lasiter v. State, 283 S.W.3d 909, 925 (Tex. App.—Beaumont 2009, pet. ref’d). On the other hand, insanity refers to whether the defendant had the mental capacity to comprehend the crime at the time of commission. These two issues are the main issues that arise during representation of an individual suffering from mental illness. a. Competency Defined A criminal defendant is presumed competent to stand trial in Texas. Tex. Code Crim.

Proc. art. 46B.003(b). This means a criminal defendant is competent to stand trial unless proven incompetent by a preponderance of the evidence. Id. “A person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person.” Id. at 46B.003(a). b. Raising Competency The issues of competency to stand trial can be raised at any time, by any party to the case, or on the judge’s own suggestion. Tex. Code Crim. Proc. art. 46B.004 (a). The party suggesting incompetency should file a motion, which may be supported by affidavits setting out the facts on

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which the suggestion is made. Id. See Form, Motion Suggesting Incompetency and for Evaluation.

Once a party or the judge has suggested incompetency, the court shall conduct an informal inquiry into whether “some evidence from any source . . . would support a finding that the defendant may be incompetent to stand trial.” Tex. Code Crim. Proc. art. 46B.004(c). If the court determines some evidence exists to support a finding of incompetency, the court will stay all proceedings in the case to conduct an evaluation. Id. at 46B.004(d). c. Competency Evaluations Once the judge has determined that there is credible evidence that suggests the defendant may be incompetent to stand trial, the judge shall order a qualified psychiatrist or psychologist to conduct an evaluation of the defendant to determine whether the defendant is competent to stand trial. Tex. Code Crim. Proc. art. 46B.021(a). This expert will: (1) examine the defendant and report to the court on the issue of competency or incompetency of the defendant; and (2) testify as to the issue of competency or incompetency of the defendant at any trial or hearing on the matter. Id. This expert must meet qualifications listed in Article 46B.022 of the Texas Code of Criminal Procedure, which requires them to be licensed in the State and have the appropriate certifications, training and criminal forensics training. An expert must satisfy the precise list of requirements under this section to qualify as an expert for purposes of testifying and determining a defendant’s competency. Owens v. State, 437 S.W.3d 584, 586 (Tex. App.—Texarkana 2014), rev’d on other grounds, 473 S.W.3d 812 (Tex. Crim. App. 2015).

There are a number of factors that will be considered during this evaluation by the qualified expert when formulating an opinion as to competency:

15



The capacity of the defendant during criminal proceedings to: (1) rationally understand the charges against them and the potential consequences of the pending criminal proceedings; (2) disclose to counsel pertinent facts, events, and states of mind; (3) engage in reasoned choice of legal strategies; (4) understand the adversarial nature of criminal proceedings; (5) exhibit appropriate courtroom behavior; and (6) testify in their own defense;



Whether the defendant is suffering from a diagnosed mental illness or mental retardation and the impact that this mental health diagnosis has on the defendant’s capacity to engage with counsel in a reasonable and rational manner; and



If the defendant is taking a psychoactive medication: (1) whether the medication is necessary to maintain competency; and (2) the effect, if any, the medication may have on the defendant’s appearance, demeanor or ability to engage and participate in proceedings.

Tex. Code Crim. Proc. art. 46B.024. The attorney is not required to be present during such an evaluation, however, some client prefer to have legal representation during a competency evaluation and proceeding, and they are entitled to such representation. Id. at 46B.006. Attending these evaluations can provide you with valuable information for the case. Furthermore, if you are present, you can help ensure that your client is not answering any questions that would violate their constitutional rights, such as questions that would result in a confession by the defendant. d. Agreed vs. Contested Incompetency Findings After an evaluation is conducted, a competency finding will be either agreed or contested. If both the State and the defense agree that the defendant is not competent, no hearing is necessary to make a finding of incompetency. Tex. Code Crim. Proc. art. 46B.005(c). Following an agreed

16

incompetency finding, the court must next determine whether the defendant is a danger to either themselves or others. If the defendant is not a risk, they may be released and treated on an outpatient basis for the purpose of attaining competency. Id. at 46B.072. Such a commitment to outpatient treatment cannot exceed 120 days.

Alternatively, if the defendant is not released on bond pursuant to Texas Code of Criminal Procedure 46B.072, then the defendant is committed to an in-patient mental health facility for a period not to exceed 120 days. Id. at 46B.073.

If the defendant is charged with a violent offense defined under Article 17.032(a) of the Code of Criminal Procedure or the indictment alleges use of a deadly weapon, the defendant will be committed to a maximum-security unit or a facility designated by the Department of State Health Services. Id. at 46B.073(c).

If the issue of competency is not agreed and either the state or the defense is contesting the issue of whether the defendant is competent, then the court shall hold a trial on the issue of competency under Article 46B.005. This hearing is conducted through a bench trial unless either party or the court requests a jury for the issue. Tex. Code Crim. Proc. art. 46B.051(a). The verdict on the issue of competency must be unanimous. Id. at 46B.052(b). If the jury (or court) find the defendant to be incompetent, then the issue of whether the defendant should be released on bail or ordered to in-patient treatment is addressed by the court, not the jury. Id. at 46B.071– 46B.072. e. Extended Commitment The program provider for which the defendant is ordered for competency restoration can request an extension of the restoration period under Article 46B.080. The court may enter an order extending the initial restoration period for an additional 60 days if the court determines

17

that: (1) the defendant has not attained competency; and (2) the extension of the restoration period will enable the facility or program to restore the defendant to competency within the extension period. Only one period of extension can be granted under this provision. Tex. Code Crim. Proc. art. 46B.085. After an initial restoration period and an extension ordered, any subsequent orders for treatment must be issued under Subchapter E or F, the provisions dealing with civil commitment orders.

IV.

Sanity

As is the case with competency, a criminal defendant is presumed to be sane until the contrary is established by a preponderance of the evidence. Bonner v. State, 520 S.W.2d 901 (Tex. Crim. App. 1975). Because of this presumption of sanity, the defendant will bear the burden of proving that he or she was insane at the time of the offense. Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App. 1993); Rundles v. State, 486 S.W.3d 730 (Tex. App.—Texarkana 2016, pet. ref’d); see also Allen v. State, 232 S.W.3d 776 (Tex. App.—Texarkana 2007, no pet.); Reyna v. State, 116 S.W.3d 362 (Tex. App.—El Paso 2003, no pet.); Dashield v. State, 110 S.W.3d 111 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

a. Raising the Insanity Defense In order to raise the insanity defense, a defendant must file with the court a notice of the defendant’s intention to offer evidence of insanity. Tex. Code Crim. Proc. art. 46C.051(a). The notice must include a certificate of service to the attorney for the State and must be filed at least 20 days prior to trial or 20 days prior to a pre-trial hearing. See Form, Notice of Intent to Raise Insanity Defense; Motion for Examination Regarding Insanity Defense.

18

b. Burden of Proof Since the insanity defense is an affirmative defense, a defendant generally bears the burden to prove that (1) because of severe mental disease or defect, (2) he or she did not know right from wrong at the time of the offense. However, if the court has previously adjudged the defendant insane, the burden shifts to the State to prove the defendant was sane at the time of the offense. Tex. Penal Code Ann. § 8.01; Hines v. State, 570 S.W.3d 297, 303 (Tex. App.— Houston [1st Dist.] 2018, no pet.); Riley v. State, 830 S.W.2d 584, 585 (Tex. Crim. App. 1992). c. Evaluation Similar to the competency findings, the court may order the defendant to an evaluation regarding the insanity defense. Tex. Code Crim. Proc. art. 46C.101(a). Furthermore, the defense can appoint one or more disinterested experts to assist in formulation of the defense apart from the court’s expert. “If the defendant wishes to be examined by an expert of the defendant’s own choice, the court on timely request shall provide the examiner with reasonable opportunity to examine the defendant.” Id. at 46C.107. Keep in mind that the Code further provides for provisions that force the defendant to submit to an evaluation ordered under the provisions above. Id. at 46C.104.

A written report of the evaluation shall be submitted to the court no later than the 30th day after the date of the order for examination, and a copy of this report is to be disclosed to all attorneys on the case. Id. at 46C.105(a). This report must include a description of the procedures used during the examination and the observations and findings pertaining to the insanity defense.

Id. at 46C.105(b). The examiner must also include a separate report concerning whether the defendant is presently suffering from mental illness and would benefit from mental health services and whether they are suffering from mental retardation. Id. at 46C.105(c).

19

d. Determining Insanity The issue of insanity is a fact question left to the trier of fact. Therefore, if the defendant is being tried by the jury, the jury decides whether the defendant was insane at the time of the offense. Id. at 46C.151. However, the judge must first decide if there is competent evidence to support the issue being submitted to the jury in the first place. Id. In order to determine whether the defendant is not guilty by reason of insanity: (1) the prosecution must establish beyond a reasonable doubt that the alleged conduct constituting a crime was committed by the defendant; and (2) the defendant must establish by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct.

If these factors are established, the jury may enter a finding of either guilty, not guilty, or not guilty by reason of insanity. Id. at 46C.151. However, the parties to the case, with the consent of the judge, agree to dismiss the indictment or information on the ground that the defendant was insane or enter judgment of dismissal due to the insanity. An entry of judgment under these provisions is the same as if the defendant is found not guilty by reason of insanity.

Id. at 46C.153(b)–(c).

V.

Mental Health and Mitigation

Even where the State jumps the hurdles of competency and sanity, mental health evidence can play a powerful role at sentencing. Defense counsel must be ready to rebut fearmongering by the prosecution that plays on the stigma of mental health concerns. We must also look for opportunities to gain sympathy from the jury or mitigate aggravating factors by explaining our client’s mental or emotional impairments. For example, in an aggravated assault case, a convicted service member with PTSD because of his/her service may be viewed much more

20

favorably by a judge or jury. However, that same client could be demonized as inherently violent and thought to require a longer sentence to protect the public. Explaining how PTSD works, deficiencies in treating it by the VA, a treatment plan that will help our veteran, and telling the story of how he or she came to have PTSD could relieve the jury’s fears while maybe convincing the jurors that our soldier has been punished enough by the system that let him/her down. That is a recipe for leniency. In fact, it may be the best defensive strategy you have in a particular case.

Preparing mitigation requires expert assistance. Proving that your client’s prior history is no indication of a criminal future requires expert opinion and a credible treatment plan. Many mental health disorders have chemical or neurological causes, further mitigating culpability as they are beyond your client’s control. Look for mitigation experts who can handle the life history investigation and make referrals to experts such as neuropsychologists or specialists in your client’s specific mental health condition. At a minimum, hold the State’s experts who testified that your client is competent, despite mental health issues, to their prior testimony where their focus was on how easily you could overcome your client’s condition. Then, ask that their recommendations inform your client’s conditions of probation by specifying accommodations he or should be allowed.

VI.

Ineffective Assistance of Counsel

As defense attorneys, we have an obligation to investigate. This duty does not mean that counsel has an obligation to present all evidence concerning mental health diagnosis to a jury or judge. However, failure to investigate possibility of an insanity defense has constituted ineffective assistance of counsel. See Ex parte Imoudu, 284 S.W.3d 866 (Tex. Crim. App. 2009).

21

This is true even where the insanity defense could have been rooted in voluntary intoxication.

See Ex Parte Howard, 425 S.W.3d 323 (Tex. Crim. App. 2014).

Further, failure to investigate for mitigation evidence, such as mental health history, can be ineffective assistance. See Wiggins v. Smith, 539 U.S. 510 (2003) (failure to investigate Defendant’s life foe mitigation evidence was ineffective), Lampkin v. State, 470 S.W.3d 876 (Tex.App. – Texarkana 2015, pet. ref’d) (failure to investigate mental health history for use in mitigation was ineffective). In the capital litigation context, failure to present mitigation evidence has been held ineffective, repeatedly. See Ex Parte Gonzales, 204 S.W.3d 391 (Tex.Crim.App. 2006). It is vital that you, as a defense attorney, at least investigate and determine whether these documents and records would be helpful for the defense.

22

Texas Criminal Defense Lawyers Association

Battling the Resistance-Fredericksburg February 12, 2020 Livestream

Topic: Procrastination; the Most Common Resistance and the Easiest to Rationalize: (Voir Dire) Speaker:

Adam Kobs

ADDRESS 1 310 S Saint Marys St Ste 1920 ADDRESS 2 San Antonio, TX 78205 (210) 223-4177 Phone (210) 223-4188 Fax akobs@hotmail.com email

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

TCDLA Procrastination: The Most Common Resistance and the Easiest to Rationalize (voir dire) 2.12.2021, Fredericksburg

Law of Arguing According to Gerry Spence 





1) Everyone is capable of making the winning argument 2) Winning is getting what we want, which also means helping “others” get what they want.

3) Learn that words are a weapon, and can be used hostilely in combat.



 



4) Know that there is always a “biological advantage” of delivering the TRUTH. 5) Assault is not argument.

6) Use fear as an ally in public speaking or in argument. Learn to convert its energy.

7) Let emotions show and don’t discourage passion.

 



8) Don’t be blinded by brilliance.

9) Learn to speak with the body. The body sometimes speaks more powerfully that words.

10) Know that the enemy is not the person with whom we are engaged in a failing argument, but the vision within ourselves.

CRAFTING YOUR DEFENSE BEGINS WITH THE CLIENT INTERVIEW      

Bring their paperwork Clerk’s system Spend time with them & listen Get facts as they believe them Get witnesses names and numbers Explain the law to them and potential consequences

     

Name, DOB, Address: past & current Rent or Own Martial status, length, kids, ages, etc.

Employment: past & current, job title Family Criminal History, charge, sentence, previous attorney

      

Probation or Parole, MTRs? Bond Civil suits Health: Physical & mental, Addictions?

Military: DD 214, awards, medals Education Memberships

 

Do contract File Notice of Appearance

Pre-Trial Investigation  

    

Request discovery Offense Reports, videos, compare w/Ds version File motions Visit, or at least take photos of the scene Google maps TCLEOSE records List serve, Excel

        

Witness List 612 & 615 Brady Motion in Limine 404(b) & 609(f) & 37.07 Suppress Arrest Suppress Statements Suppress Video & Audio Voir Dire Expert

   



Interview witnesses Experts Investigator Front loading helps develop trust with client Helps earn fee

Develop Your Theme     

What defense will work Must believe it in Must be supported by some evidence K.I.S.S. Threes, (3s), tres

Support your theme 



   

Cross examination: short, precise, get in and out, yes or no, caveat Greatest tool invented for the discovery of truth Ask what you want to hear Save ultimate question Direct examination: boxing match Exhibits

Voir Dire

SAMPLE VOIR DIRE

Jury Service Is this the right case for you?

The duty to serve, and the duty not to serve.

 MADD,

SADD  Law Enforcement, District Attorney’s Office, Emergency Responders Investigators, etc.  Friends or Relatives killed/injured by a drunk driver

Presumption of Innocence All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.

Standards of Proof in Texas Beyond A Reasonable Doubt

Clear And Convincing Preponderance

No Evidence

Probable Cause

Three possibilities: Innocent Guilty I

don’t know

The law does not require a defendant to prove his innocence or produce any evidence at all.

If the defendant does not testify, you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against him.

The Jury’s Job You are the exclusive Judges of the facts proved, of the credibility of the witnesses, and of the weight to be given their testimony.

How do you decide credibility?

Cross-examination is the greatest tool ever invented for discovery of the truth.

What do the prosecutors have to prove beyond a reasonable doubt?

Elements  on

or about February 11, 2021  In Gillespie County, Texas  Clay Steadman  did operate a motor vehicle  in a public place  while intoxicated.

What does ‘intoxicated’ mean?

Means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body or by having a blood alcohol concentration of .08 or higher.

Field Sobriety Testing Breath or Blood Testing

Choose Only One Answer Strongly Agree 2. Agree 3. Slightly Agree 4. Slightly Disagree 5. Disagree 6. Strongly Disagree 1.

“If the police charge a person with a crime, they are probably guilty.”

Strongly Agree 2. Agree 3. Slightly Agree 4. Slightly Disagree 5. Disagree 6. Strongly Disagree 1.

“An accused should present some evidence to prove their innocence.”

Strongly Agree 2. Agree 3. Slightly Agree 4. Slightly Disagree 5. Disagree 6. Strongly Disagree 1.

“A person who is falsely accused should testify in his own defense.”

Strongly Agree 2. Agree 3. Slightly Agree 4. Slightly Disagree 5. Disagree 6. Strongly Disagree 1.

“An accused person who testifies is likely to lie because they do not want to be found guilty.”

Strongly Agree 2. Agree 3. Slightly Agree 4. Slightly Disagree 5. Disagree 6. Strongly Disagree 1.

“It is better to convict a possibly innocent person other than take a chance a guilty person will go free.”

Strongly Agree 2. Agree 3. Slightly Agree 4. Slightly Disagree 5. Disagree 6. Strongly Disagree 1.

Prosecutor’s Witness List  CCPD

John Doe  CCPD Jane Smith  Jane Doe RN  Jim Thomas Toxicologist

Opening      

Never waive Be sincere, care Admit negatives Believe in your client No notes, or very few Look them in the eye

     

Tell a story A believable one Jurors are hungry for fairness Humanize client Discover good things about your client Connect audience to the tale

Witnesses  

 

Witness themes He was the detective who never made a mistake The cop who always went by the book The complainant with no axe to grind

Paint a picture 



 

Descriptive adjectives, action verbs, colorful phrases Use voice inflection: whisper, sad, panicked, angry 5 senses Invite visulalization

Fears  



One of my biggest fears in this case…

His race, appearance, past record, photos, etc.

Primacy and Recency

Sample DWI Theories 

     

No Loss of NMF, NPF, No high BAC at time of driving Clear, Dry level surface?

Debris, Sloped for drainage?

Physical ailments, mental Disconnect Operation Garbage in, garbage out, Chain of Custody

Sample Possession Theories    

Intentionally/knowingly Possess Controlled substance Search and Seizure

Sample Assault Theories    

Not Intentionally/knowingly/recklessly No injury Mutual Combat Wasn’t me

Sample Theft Theories   

Value Not intentional Not a party

Finish Strong  

 

From the beginning, you start with the end What does each witness bring to your theory of defense?

Each night of trial, prepare closing First and last

The End

Texas Criminal Defense Lawyers Association

Battling the Resistance-Fredericksburg February 12, 2020 Livestream

Topic: Controlling the Perceptions: (Experts) Speaker:

Heather Barbieri

7000 Preston Rd Ste 700 Plano, TX 75024 (972) 424-1902 Phone (972) 208-2100 Fax hbarbieri@barbierilawfirm.com email

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

CONTROLLING THE PERCEPTIONS (EXPERTS) HEATHER J. BARBIERI

WHAT IS AN EXPERT?  Rule

702 of the Texas Rules of Evidence

HOW CAN AN EXPERT ASSIST?  Educating  Case

Counsel

Evaluation

 Theory

Development

 Testing/Experimentation  Reports  Demonstrative  Testimony

Exhibits

TYPES OF EXPERTS  Forensic

Psychiatrists

 Psychiatrist

who has additional training and/or experience related to various interfaces of mental health with the law.

TYPE OF EXPERTS  Forensic

Psychologist

 Psychologist

who has additional training and/or experience in the science and profession of psychology to questions and issues relating to law and the legal system.

TYPES OF EXPERTS  Computer An

Forensic Examiner

individual who applies their investigation and analysis techniques to gather and preserve evidence from a particular computing device in a way that is suitable for presentation in a court of law.

TYPES OF EXPERTS  Eyewitness

Identification Expert

Expert

who specializes in the field of psychology pertaining to the reliability of eyewitness identifications as a “soft science.”

To

establish reliability of this type of expert, a tailored Kelly test is used in a more context specific manner.

TYPES OF EXPERTS  General Texas

Psychologist

Court of Criminal Appeals has held that psychology IS a legitimate field of study.

TYPES OF EXPERTS  Sexual

(SANE)

Assault Nurse Examination

 Registered

nurse who has specialized forensic training in treating sexual assault victims.

 They

examine, assess, document, and preserve evidence.

TYPES OF EXPERTS  DNA

Analysis Expert

 DNA

identification evidence is admissible in Texas per the Court of Criminal Appeals.

 Method

of DNA testing is also admissible in evidence even though less than exact.

LEGAL REQUIREMENTS FOR TESTIMONY  Admissibility

– 3 Separate Inquiries

 (1)

Qualification

 (2)

Reliability

 (3)

Relevance

ADMISSIBILITY: (1) QUALIFICATIONS  Witness’s

knowledge, skill, experience, training, or education.  Three criteria to consider:  (1)

Complex field?  (2) Conclusive opinion?  (3) Central to case?  More

than just background & experience!

 Sufficient

background + tailored to the facts of the case.

ADMISSIBILITY – (2) Reliability  Subject

matter of the witness’s testimony  Do

the underlying facts or data provide a sufficient basis for the expert’s opinion?

 Hard

Science v. Soft Science v. NonScientific Analysis 3

different reliability tests

ADMISSIBILITY – (3) Relevance  Will

admitting the expert testimony actually assist the fact-finder in deciding the case?  The “Fit” Requirement  Daubert

 Unhelpful

reasons?  403

or distracting for other

Analysis

THE BURDEN  Proponent

of expert’s opinion bears burden of demonstrating reliability  Standard

= Clear and Convincing Evidence  Must show: (1) testimony based on reliable scientific foundation; (2) relevant to issues in case

CHALLENGING EXPERT TESTIMONY  Pretrial

challenges?

 Motion

to Suppress, Motion in Limine, Motion to Exclude Under 702.

 Challenges  Must

during trial?

be conducted outside the presence of the jury.

STANDARD OF REVIEW  Abuse  Will

of Discretion

not be reversed if within the zone of reasonable disagreement.

Texas Criminal Defense Lawyers Association

Battling the Resistance-Fredericksburg February 12, 2020 Livestream

Topic: When the Finish Line is in Sight: (Closing Arguments) Speaker:

Steve Keathley

Keathley & Keathley Law Firm 412 W. 3rd Avenue Corsicana, TX 75110 (903) 872-4244 Phone (903) 872-4102 Fax steve@keathleykeathley.com email

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

Closing Arguments Musings and Reflections Top Ten Points on Your Final Plea to the Jury Steve A. Keathley

Top 10 Pearls for Closings #1 Connecting the Jury in Voir Dire and throughout trial

Connecting to the Jury  Rapport  Persuasion  Attention

Jury

to the

Exploit that Connection  Start

your trial by connecting with jury during voir dire.  Foster and grow that connection  Bring it home in your closing

#2 - Preparation  Know

your Case  Know your case better than the prosecutor  Knowledge builds confidence  Confidence and Knowledge of your case are the bedrock of a successful closing argument

#3 - Credibility 



A promise made during voir dire needs to be a promise you can keep and then alluded to at closing argument You kept your promise, therefore let the jury know that you expect them to keep their promise to you

#4 – Organization or Format of your Closing Argument  Normal

legal argument is typically IRAC  However, expand and be creative  Develop an outline for your argument

Outline vs. Script  Depends

on your style  Do not read entire closing to a jury  Argue extemporaneously using outline as guide  Do read specific quotes, phrases or testimony

#4 - Tracking the Opponent  

 

Listen to his/her opening statement Remind the jury of the promise they made and respectfully point out that deficiency Contrast your promises Do not fight

#5 STYLE Rehearse  Rehearsal

obviously makes for a better performance  You are never so good as to not rehearse your closing argument  Budget time when you can practice  Be mindful of your Court-imposed time restrictions

Style – Less is More  Excellent

quality is greater than mediocre

quantity  Juries want to finish the trial - not to hear lengthy arguments by lawyers  Honor this dynamic with brevity but quality

Style  Be

comfortable and confident with yourself  Be genuine  Balance levity v. Intensity

“The Eyes indicate the Antiquity of the Soul” Ralph Waldo Emerson

#6 Eye Contact  There

is no better measure of instant credibility than to look at a persons eyes

 Look

them individually in the eyes and let it linger  Pass it around  Let your earnestness and genuineness shine through

#7 - “Rule of Threes”       

Logical rhetorical pattern of three points Progresses naturally and ends with a strong logical point or “truth” Trilogy Stories have (1) Beginnings (2) Rising to Climax (3) Endings “Government of the people, by the people, and for the people” “Evidence Compels it, law requires it, and justice demands it” “If it walks like a duck, quacks like a duck, it is a duck”

#8 - USING SILENCE  Dramatic  Do

pause

not be afraid of silence

 Make

your juries think about key points of evidence and theme by pausing and introducing silence

https://youtu.be/YFtHjV 4c4uw

#8 - Concrete is Better than Abstract   

   

car Vividness Make a Jury see your words These enhanced adjectives add gusto to your presentation

Cookies vs. Chocolate Chip Ship vs. Carrier USS Nimitz Flowers vs. Blue Bonnets The Defendant vs. Ms. Jones Mercedes

TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA TCDLEI TCDLEI TCDLEI TCDLEI TCDLEI CDLP CDLP CDLP CDLP CDLP TCDLA TCDLA TCDLA TCDLA TCDLA

OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

WWW.TCDLA.COM

TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

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Texas Criminal Defense Lawyers Association

March 4-5, 2021

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Cross Examination

Livestream or On-Demand Course Directors: Gene Anthes Steven Brand Sarah Roland Call (512) 478-2514 to register or online at www.tcdla.com

TCDLA’s Cross Exam March 4-5, 2021

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Cross-examination is regarded as the “greatest legal engine ever invented for the discovery

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from their years of experience, their strategies, and topics to focus on for a successful crossexamination of different witnesses for different types of criminal cases. These attorneys have been recognized as some of the best lawyers in Texas. If you are serious about winning your case in trial, then your attendance at this seminar is a must for trial lawyers of any skill level. Some of the most useful topics are going to be covered, and the insight and the “nuts

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Agenda Friday, March 5

Thursday, March 4

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8:45 am Opening Remarks 9:00 am Cross-Examining the Snitch & the

Accomplice

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Gerry Goldstein

10:00 am Break 10:15 am Cross-Examining the Family Violence

Witness & Expert Jeremy Rosenthal

11:15 am Lunch Break 12:30 pm A New Way to Think About Cross- Steven Brand Examination 1:30 pm Cross-Examining the Lead Detective Lisa Greenberg

2:30 pm Break 2:45 pm Cross-Examining the State Expert on Cell Phones, GPS Locations and Tower Sal Nolasco Locations 3:45 pm Preparing Your Client or Witness for Cross-Examination Josh Schaffer

4:30 pm Adjourn

7:45 am

R egistration 8:15 am Opening Remarks 8:30 am Cross-Examining the DNA Expert Ariel Payan

9:30 am Cross-Examining the SANE Nurse Heather Barbieri

10:30 am Break 10:45 am Cross-Examining the Arresting Officer

in DWIs Grant M. Scheiner

11:45 am Lunch Break 12:45 pm Cross-Examining of the Accident Reconstruction Detective/Expert in Vehicular Manslaughter Gene Anthes

1:45 pm Cross-Examining of a Breath/Blood Analyst Jarrod Smith & Brad Vinson 2:45 pm Break 3:00 pm Cross-Examining a “Soft-Science” Sarah Roland Expert 4:00 pm Cross-Examining a Child

Scott Brown 5:00 pm Adjourn A djourn

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