updated rusty book with bleed tabs by TCDLA

Daily CLE Hours: 6.75 Ethics: 1.0

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THURSDAY - June 13, 2024 - Regency Ballroom

18.0 total CLE, including 3.0 Ethics

Rusty Fun Run/Walk (Lobby Front Entrance) Registration Continental Breakfast President's Message & Opening Remarks ~ John Hunter Smith, Bobby Mims, & Clay Steadman DWI Update ~ Doug Murphy Track I - State Boot Camp | Regency Ballroom Track II - Federal Boot Camp | Rio Grande Ballroom Jeremy Rosenthal & Monique Sparks Bobby Mims & Clay Steadman Child Sex Assault ~ Heather Barbieri Federal Rules of Evidence ~ Rene Valladares Juvenile Law ~ Kameron Johnson Sentencing Guidelines ~ Roberto Balli Break Homicide ~ Eric Davis Federal Trial Nuances - Robert Jones Lunch On Your Own or Women Defenders Lunch (Live Oak | Hill Country Level) President-Elect Message & Opening Remarks ~ David Guinn, Bobby Mims, & Jack Walker AI ~ Sean Hightower (ETHICS) Break Track I - State Boot Camp | Regency Ballroom Track II - Federal Boot Camp | Rio Grande Ballroom Jeremy Rosenthal & Monique Sparks Bobby Mims & Clay Steadman Case Law Update ~ Hon. David Newell Current Issues with Immigration Law & Crimes in Texas ~ Jordan Pollock Top Golf Tournament (Family Friendly) Cross Exam ~ Michael Gross Practical Punishment Procedures ~ Jeep Darnell Adjourn New Lawyers, New Members & Law School Students Reception with Board Members (Spring Branch | Lobby Level) TCDLEI Fellows & Super Fellows Reception (Invitation Only) Goldstein & Orr Pachanga (Beethoven Hall)

FRIDAY - June 14, 2024 - Regency Ballroom

Bike Ride (Lobby Front Entrance) Registration Continental Breakfast Opening Remarks ~ Monique Sparks & Bobby Mims Jury Charge ~ Reagan Wynn Track III - Trial Boot Camp | Regency Ballroom Track IV - Family Violence Boot Camp | Rio Grande Ballroom Bobby Mims & Monique Sparks Jeremy Rosenthal & Clay Steadman Rules of Evidence ~ Jason Parrish Procedures & Rules ~ Paul Tu (ETHICS) TCDLEI Annual Board Meeting (Chula Vista | Lobby Level) Post-Conviction Litigation ~ Allison Clayton Collateral Consequences ~ Betty Blackwell CDLP Committee Meeting (Chula Vista | Lobby Level) Break Voir Dire ~ Chris Downey Family Violence – Categories & Types ~ Monique Sparks AFV – Dealing with the Procedures, Rules & Protective Orders ~ Nicole DeBorde Hochglaube & Clay Steadman Search & Seizure ~ Laurie Key Lunch On Your Own Track III - Trial Boot Camp | Regency Ballroom Track V - Technology & Forensics Boot Camp | Rio Grande Ballroom Bobby Mims & Monique Sparks Jeremy Rosenthal & Clay Steadman DNA ~ Nick Hughes Plea Negotiation ~ Jeremy Rosenthal (ETHICS) Executive Committee Meeting (Presidential Suite) Junk Science ~ Angelica Cogliano Mental Health ~ Joe Stephens Break - Family Ice Cream Social Legistlative Committee Meeting (Directors Room | Hill Country Level) Hemp & Marijuana ~ Amanda Hernandez Experts ~ Huma Yasin Forensics Update ~ Mark Daniel Adjourn Friends of Bill (Pecan Room | Hill Country level) Awards Banquet Dinner — Rio Grande Ballroom (ticket required) TCDLA Annual Membership Party — Hyatt Regency Ballroom (ticket required) Wear Your Rusty Shirt! Order Today!

SATURDAY - June 15, 2024 - Regency Ballroom

Registration & Continental Breakfast Opening Remarks ~ Clay Steadman & Monique Sparks Supreme Court Update ~ Gerry Goldstein Trial by Media ~ Amanda Knox & Anna Vasquez Victory on Two Fronts: Combating Multiple Complainants & Theories of Defense in Sex Cases ~ Missy Owen The Great Debate - Case of the Century ~ Dan Cogdell & Rusty Hardin Adjourn 52nd Annual TCDLA Members' Meeting and Swearing in of Officers and Board Members Rosario's Celebration Lunch

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course Table of Contents Thursday, June 13, 2024 speakers topic Doug Murphy

DWI Update

Heather Barbieri

The Dirty Dozen: The 12 Non-Negotiables of Defending Sex Crimes

Rene Valladares

The Busy Lawyer’s Federal Rules of Evidence Update

Kameron Johnson Roberto Balli Eric Davis Robert Jones Sean Hightower Hon. David Newell

Juvenile Law United States Sentencing Guidelines Amendments Murder? It’s Self Defense Nuances of Federal Criminal Trial Practice Legal Ethics in the Use of Artificial Intelligence (AI) Significant Decisions: United States Supreme Court & The Court of Criminal Appeals, From September 2023 – March 2024

Jordan Pollock

Crimmigration

Michael Gross

Cross Exam

Jeep Darnell

Practical Punishment Procedures

Friday, June 14, 2024 speakers topic Jason Parrish Paul Tu

Texas Rules of Evidence Family Violence: Procedures & Rules

Allison Clayton

Post-Conviction Litigation of State Court Convictions

Betty Blackwell

Collateral Consequences of Family Violence Cases

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course Table of Contents Chris Downey Laurie Key Monique Sparks, Nicole DeBorde Hochglaube & Clay Steadman Jeremy Rosenthal Nicolas Hughes Joe Stephens Angelica Cogliano Huma Yasin Amanda Hernandez

The Law on Selecting and Seating a Texas Jury Search & Seizure – Anatomy of Suppression Family Violence – Categories & Types; AFV – Dealing with the Procedures, Rules & Protective Orders Plea Bargaining with Power DNA Defense Beyond Contamination and Transfer Mental Health Junk Science Overview Demystifying Experts Hemp & Marijuana: What you Need to Know

Saturday, June 15, 2024 speakers topic Missy Owen

Victory on Two Fronts: Combating Multiple Complainants & Theories of Defense in Sex Cases

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

DWI Update

Speaker:

Doug Murphy

Doug Murphy Law Firm, P.C. 902 Heights Blvd Houston, TX 77008-6912 713.229.8333 phone 713.583.0205 fax doug@dougmurphylaw.com email http://www.dougmurphylaw.com/ website

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

DWI Update

Texas Criminal Defense Lawyers Association

DWI Update

DWI UPDATE

2024 Rusty Duncan Seminar San Antonio, Texas June 13-15, 2024

Doug Murphy Doug Murphy Law Firm, P.C. 902 Heights Blvd. Houston, Texas 77008 (713) 229-8333 doug@dougmurphylaw.com

A. DWI Case Law since June 1, 2023 to April 23, 2024: 1.

Lawful refusal to consent to a search or cooperate with law enforcement cannot, by itself, establish reasonable suspicion. Lall v. State, No. PD0700-22, 2024 Tex. Crim. App. LEXIS 230 (Crim. App. Mar. 27, 2024). In a possession with intent to deliver case more than 4 but less than 200 grams of methamphetamine, the court of appeals erred in viewing defendant's lawful refusal to give consent to search his vehicle as any indicium of criminal activity, instead the court of appeals should have considered the facts outside of defendant's refusal to determine if those facts gave rise to reasonable suspicion. In other words, Wade's lawful withdrawal of consent, by itself, provided no indicium supporting reasonable suspicion and would not, as a matter of logic, have added anything to the reasonable suspicion calculus. Ultimately, our observation that the lawful refusal to consent could not be the prominent factor in the reasonable suspicion calculus was not necessary to our holding and we expressly disavow it. In Wade v. State, this Court considered whether a citizen's lawful refusal to consent to a search or cooperate with an officer during an otherwise consensual encounter could support the reasonable suspicion determination necessary for a Terry pat-down search or investigative detention. Wade v. State, 422 S.W.3d 661, 668-69 (Tex. Crim. App. 2013). In that case, the only evidence giving rise to reasonable suspicion was the defendant's refusal to consent to a search of his truck, his extreme nervousness, and his refusal to answer the officer's questions about whether he had weapons or contraband. Id. at 669. We held that neither nervousness nor a refusal to cooperate with law enforcement during a consensual encounter are sufficient by themselves to constitute reasonable suspicion for a detention. Id. at 670. Nor could the "action of standing on [one's] rights" be "the tipping point in the reasonable suspicion calculus." Id.at 669. The State seizes on this aspect of our holding in Wade to suggest that even though a defendant's actions of standing on his rights cannot serve as the "tipping point" in a reasonable suspicion determination, it still may be considered along with other articulable facts. We disagree. Wade does not require or encourage consideration of the refusal to consent as a factor supporting reasonable suspicion. Rather, Wade stands for the proposition that an otherwise lawful refusal to consent to a search or cooperate with law enforcement cannot, by itself, establish reasonable suspicion. Wade, 422 S.W.3d at 675 (reasoning that the officer "needed some objective, factual justification — outside of appellant's withdrawal of consent — to support the detention"). Though we did suggest that a citizen's refusal to cooperate with police during a consensual encounter could be a factor in determining whether

DWI Update

DWI Update – 2024 Rusty Duncan

DWI Update

an investigative detention was justified, so long as it was not the triggering fact, that statement is at odds with our conclusion that a refusal to cooperate, by itself, cannot provide the basis for a detention. Id. at 668. That suggestion is also at odds with the way we analyzed the issue in Wade. After noting that a lawful refusal to consent could not provide a basis for detention by itself, we went on to consider the facts outside of Wade's refusal to cooperate. Looking only at those facts and not Wade's choice to stand on his rights, we concluded that there were no objective indicia of reasonable suspicion sufficient to justify a detention or frisk. Id. at 675. In other words, Wade's lawful withdrawal of consent, by itself, provided no indicium supporting reasonable suspicion and would not, as a matter of logic, have added anything to the reasonable suspicion calculus. Ultimately, our observation that the lawful refusal to consent could not be the prominent factor in the reasonable suspicion calculus was not necessary to our holding and we expressly disavow it. As the dissent observed below, "[t]he people ratified the Bill of Rights to prevent government abuse. When the assertion of a Fourth Amendment right gives rise to reasonable suspicion of criminal activity on the part of the people, it is not a right." Lall, 656 S.W.3d at 850 (Pedersen III, J. dissenting); see also Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)(noting that "a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure"). This view is consistent with the view of most jurisdictions that lawful refusal to consent may not be considered in making a determination of probable cause or reasonable suspicion. See, e.g., United States v. Skidmore, 894 F.2d 925, 927 (7th Cir.) ("a law enforcement official cannot consider [defendant's] refusal to consent as a factor in the official's determination of reasonable suspicion"); United States v. Machuca-Barrera, 261 F.3d 425, 435 n. 32 (5th Cir. 2001) ("The mere fact that a person refuses consent to search cannot be used as evidence in support of reasonable suspicion.") 2.

Prior DWI convictions must be “final”: Swanzy v. State, No. 09-22-00136CR, 2023 Tex. App. LEXIS 7425 (Tex. App. Sep. 27, 2023). The trial court erred by denying defendant's motion for an instructed verdict of not guilty when he was convicted for felony driving while intoxicated (DWI) and it was found true that defendant committed at least two of the prior sequential felonies, per Tex. Penal Code Ann. §§ 49.09(b)(2), 12.42(d), as the State failed to prove that defendant suffered a final conviction on the 1979 DWI [in 1979, the law in Texas is that successfully completed probations are not final convictions. The law changed in 1984.]. The 1979 DWI, where defendant was placed on probation after pleading guilty and that probation was never revoked, meant that his plea could not be considered for any purpose, including enhancing a later conviction to a higher-grade offense, and so the State did not prove that defendant's 1979 DWI was a predicate conviction available to enhance the grade of defendant's

Prior DWI Convictions: In re Federico Villa, No. WR-94,896-01, 2024 Tex. Crim. App. Unpub. LEXIS 69 (Crim. App. Feb. 7, 2024). Applicant contends that he should not have been convicted of a felony DWI. Specifically, he contends that one of the jurisdictional DWI convictions alleged in the indictment was not a final conviction and so it did not operate to make this DWI offense a felony. Tex. Code Crim. Proc. 49.09(b); Ex parte Sparks, 206 S.W.3d 680, 682 (Tex. Crim. App. 2006). This Court remanded this application to the trial court. This Court ordered the trial court to determine whether the improperly-alleged DWI conviction could have been replaced with a properly alleged, valid enhancement conviction. See Ex parte Rodgers, 598 S.W.3d 262, 271 (Tex. Crim. App. 2020). The trial court found on remand that "[N]o prior convictions for driving while intoxicated were used nor intended to be used to enhance the current offense to a felony." The trial court's finding does not directly resolve the question whether the improperly-alleged DWI conviction could have been replaced with a valid enhancement conviction. This Court remands this application a second time for the trial court to determine whether the improperly-alleged DWI conviction could have been replaced with a valid jurisdictional-enhancement conviction. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.

Prior DWI Convictions: In re Hood, Nos. WR-95,316-01, WR-95,316-02, 2024 Tex. Crim. App. Unpub. LEXIS 24 (Crim. App. Jan. 10, 2024). Applicant contends that he should not have been convicted of felony DWIs. Specifically, he contends that one of the jurisdictional DWI convictions alleged in the charging instruments was not in fact a DWI and so it did not operate to make the instant offenses felonies. Tex. Code Crim. Proc. 49.09(b); Ex parte Sparks, 206 S.W.3d 680, 682 (Tex. Crim. App. 2006). The record before this Court confirms that one of the alleged prior DWI convictions was not in fact a DWI. However, the record does not establish whether the State could have alleged an alternative prior DWI conviction. See Ex parte Rodgers, 598 S.W.3d 262, 269-70 (Tex. Crim. App. 2020). If the State could have alleged an alternative DWI conviction, then Applicant has not shown that he was harmed by the invalid enhancement. Id. at 270.

DWI Update

2021 DWI to a felony DWI. See attached application for writ of habeas corpus to attack pre-1984 DWI judgment.

DWI Update

Supermax Statutory Fine: Rodriguez v. State, 675 S.W.3d 54 (Tex. App. 2023). The State conceded that the record contained no competent evidence that defendant's BAC was 0.15 or higher and during the DWI sentencing hearing and had explicitly waived the 0.15 enhancement, the trial court erred by imposing a $6,000 fine against defendant as to his guilty plea to DWI, warranting a reform of the judgment under Tex. R. App. P. 43.2(b) to delete the unauthorized fine. Outcome, Judgment reversed and remanded.

Necessity Defense Instruction: Coolbaugh v. State, No. 03-22-00318-CR, 2023 Tex. App. LEXIS 8022 (Tex. App. Oct. 20, 2023) The trial court erred when it failed to instruct the jury on the defense of necessity regarding defendant's offense of driving while intoxicated under Tex. Penal Code Ann. § 49.04(b) because the evidence was sufficient to raise the defense of necessity. The evidence showed that before defendant drove while intoxicated, her boyfriend assaulted her at his house and the assault did not appear to be over when she drove away, thus it was not unreasonable for defendant to believe driving while intoxicated was immediately necessary to avoid imminent harm; Defendant suffered some harm from the trial court's failure to charge the jury on necessity because the State directed the jury to the court's charge, and the charge left the jury without a means to acquit defendant, even if the jury had believed her.

Unlawful Carrying of a Weapon: State v. Villanueva, No. PD-0545-23, 2024 Tex. Crim. App. LEXIS 141 (Crim. App. Feb. 21, 2024). Judge Slaughter makes some forceful arguments that charging Appellee with unlawfully carrying a weapon in this case violates Appellee's right to bear arms as protected by the Texas Constitution. Had Appellee made these arguments in the trial court, and maybe even if the court of appeals had addressed them in its opinion below, I could agree to grant discretionary review to consider them. However, Appellee did not argue to the trial court or the court of appeals that charging him with carrying a weapon in a compartment of his vehicle while allegedly committing the offense of driving while intoxicated was an unconstitutional application of the unlawfully carrying a weapon statute. And while he does make a constitutional challenge to the application of the statute for the first time in his petition for discretionary review, he bases this challenge on the Second Amendment of the federal Constitution and not Article I, Section 23 of the Texas Constitution. Judge Slaughter lays out a blueprint for futures challenging the legality of UCW cases that will likely be successful.

Voluntary Consent to Breath Test: State v. Hernandez, No. 13-22-00590CR, 2023 Tex. App. LEXIS 5070 (Tex. App. July 13, 2023). The trial court did not abuse its discretion in suppressing the breath test results involved in the case under Tex. Transp. Code Ann. § 724.013 because based on the video recording, the trial court could have reasonably determined that defendant's consent to the submission of a breath specimen was involuntary as the trial court could have reasonably concluded the officer's statement indicating that he would "have to go by" defendant's earlier consent was a misstatement of the law at best, and deceptive or intentionally dishonest at worst, as that statement indicated that defendant lost the opportunity to refuse or withdraw his consent, and further, during cross-examination, the officer agreed that there were three instances where defendant was attempting to back out of consenting to the test, and defendant was in custody at the time he was asked to provide consent.

Speedy Trial: Youngblood v. State, No. 02-22-00172-CR, 2023 Tex. App. LEXIS 5091 (Tex. App. July 13, 2023) Petition for discretionary review refused by In re Youngblood, 2023 Tex. Crim. App. LEXIS 836 (Tex. Crim. App., Dec. 6, 2023). Defendant's felony conviction for failure to stop and render aid following an accident involving death or serious bodily injury was reversed because the Barker factors demonstrated a Sixth Amendment speedy trial violation. In particular, the 317 day delay was presumptively prejudicial with or without the inclusion of defendant's initial arrest, and the State wholly failed to justify the delay, which was the result of neutral factors such as the trial court's overcrowded docket, which weighed against the State. Further, defendant diligently sought a speedy trial, and his repeated requests for a speedy trial weighed heavily in his favor. In addition, the record indicated that the defendant was prejudiced by the delay, particularly due to impaired witness' memories, which the State failed to rebut. To determine when a Sixth Amendment speedy-trial violation occurs, appellate courts apply a balancing test using the Barker factors. Appellate courts weigh (1) the length of the delay, (2) the reasons for the delay, (3) the defendant's assertion of his speedy-trial right, and (4) prejudice to the defendant because of the delay. The conduct of the State and the defendant are weighed under each factor, though no single factor alone is necessary or sufficient to establish a speedy-trial violation. But even if we did not reach this conclusion, "[g]enerally, a delay of eight months to a year, or longer, is presumptively prejudicial and triggers a speedy trial analysis." Lopez, 631 S.W.3d at 114 (first citing Shaw v. State, 117 S.W.3d 883, 889 (Tex. Crim. App. 2003); and then citing Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992)); see also Dragoo, 96 S.W.3d at 314("In general, courts deem

DWI Update

delay approaching one year to be 'unreasonable enough to trigger the Barker enquiry.'" (quoting Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2691 n.1, 120 L. Ed. 2d 520 (1992))). 10. Must move to Quash Indictment 1 day prior to Trial:

Serna v. State, No. 13-22-00151-CR, 2023 Tex. App. LEXIS 5505 (Tex. App. July 27, 2023). The State contends that to the extent Serna attacks the convictions used for enhancement purposes, he has waived that issue for appeal. See Ex parte Patterson, 969 S.W.2d 16, 19 (Tex. Crim. App. 1998). In Patterson, the court of criminal appeals held that an indictment contains a cognizable defect when it relies on a void judgment of conviction to enhance the subsequent offense, rendering the new indictment voidable. Id. When an indictment is voidable, rather than void, the defect may be waived under the applicable rules of default. Id. Article 1.14(b) requires a defendant to object to any defects of substance or form in the charging instrument prior to the date of trial. See Tex. Code Crim. Proc. Ann. art. 1.14(b). Therefore, under article 1.14(b) of the Texas Code of Criminal Procedure, a defendant must object to the cognizable defect in the new charging instrument prior to the day of trial. See Patterson, 969 S.W.2d at 20. A defendant's failure to object to the error waives the error by procedural default. See id. Even if we found that the language in the enhancement paragraph of the indictment was defective, we conclude that Serna has waived any issue regarding the substance of the indictment because he failed to bring it to the trial court's attention prior to the start of trial.

11. Lack of Reasonable Suspicion:

Monjaras v. State, 679 S.W.3d 834 (Tex. App. 2023). Judgment of the trial court denying defendant's motion to suppress evidence was reversed because it could not be concluded that the Officers' at the time their interaction with defendant escalated to an investigative detention, had reasonable suspicion, based on the totality of the circumstances, to believe that defendant had engaged, or was about to engage, in criminal activity. Additionally, neither the area's high-crime reputation, defendant's decision to look away and walk away as the Officers passed him in their patrol car, nor defendant's purported nervousness when the officers actually spoke to him, gave rise to reasonable suspicion to believe that defendant had engaged, or was about to engage, in criminal activity. Unlike Derichsweiler, this is not a close case. Monjaras was walking on the grounds of an apartment complex at midday, an activity for which he owed no one an explanation. See Gurrola, 877 S.W.2d at 302 (four people engaged in argument in parking lot in late afternoon was not so out of ordinary as to give rise to reasonable suspicion); Gamble, 8 S.W.3d at 453-54 (no reasonable suspicion in case in which officers asked

12. Right to Interpreter: Tolentino v. State, No. 01-22-00442-CR, 2024 Tex. App.

LEXIS 129 (Tex. App. Jan. 9, 2024). Sostenes Lorenzo Tolentino was found guilty of driving while intoxicated. On appeal, Tolentino complains that he could not understand the trial proceedings because he was not provided with an interpreter in his native language, Nahuatl. Tolentino argues that his rights under the United States and Texas Constitutions to due process and due course of law, confrontation, and counsel were denied; that the trial court violated its statutory duty to appoint an interpreter in a language he understands; and that the trial court abused its discretion when it denied his motion for new trial. Because the trial court's decision to proceed with a Spanish interpreter violated Tolentino's right to due process, we reverse and remand for a new trial.

13. DWI Traffic Fine:

Garcia v. State, No. 06-23-00026-CR, 2023 Tex. App. LEXIS 5182 (Tex. App. July 18, 2023). Javier Martinez Garcia pled guilty to the offense of driving while intoxicated (DWI) with an alcohol concentration level greater than or equal to 0.15, a class A misdemeanor. The trial court sentenced Garcia to a term of 365 days in the county jail, suspended in favor of eighteen months' community supervision. Among other fees and a $2,000.00 fine, the trial court imposed a DWI traffic fine of $6,000.00.vvIn the trial court, Garcia objected to the imposition of the DWI traffic fine on the basis that it violates the Separation of Powers Clause of the Texas Constitution and removes from the prosecution the ability to negotiate and determine the amount

DWI Update

defendant—who had repeatedly turned to watch them after they passed by and who was walking on street's shoulder in high-crime area late at night—what he was doing, defendant replied that he was walking, and officers then detained defendant). What unusual circumstances existed at the moment of detention that, though not overtly criminal, give rise to a reasonable suspicion that Monjaras was engaged in criminal conduct, notwithstanding the ordinariness of his behavior? In conclusion, the record shows that Sallee and Starks detained Monjaras based on a mere hunch, rather than specific, articulable facts supporting the existence of reasonable suspicion. There is no indication the officers acted in bad faith or targeted Monjaras for invidious reasons. On the contrary, their gut instincts were vindicated in this case, as Monjaras was a felon unlawfully carrying a firearm. But neither their good faith nor the vindication of their gut instincts is a valid substitute for reasonable suspicion. See Duran, 396 S.W.3d at 569-70 (reasonable suspicion for detention cannot be based on facts learned afterward); Gurrola, 877 S.W.2d at 302 (detention based on mere hunch is unlawful even in absence of bad faith).

DWI Update

of fine in a given case. Garcia further complained that the fine did not apply to him because he had not been finally convicted. The trial court overruled each of Garcia's objections. For each of the reasons asserted in the trial court, Garcia asks this Court to conclude that the DWI traffic fine should be deleted from the judgment. The State has filed a brief in which it agrees with each of Garcia's points of error and prays that this Court modify the judgment by deleting the DWI traffic fine. 14. DWI Traffic Fine:

Martinez v. State, No. 06-23-00041-CR, 2023 Tex. App. LEXIS 5181 (Tex. App. July 18, 2023). For each of the reasons asserted in the trial court, Martinez asks this Court to conclude that the DWI traffic fine should be deleted from the judgment. The State has filed a brief in which it agrees with each of Martinez's points of error and prays that this Court modify the judgment by deleting the DWI traffic fine. We modify the judgment—not the sentence—by deleting the $6,000.00 DWI traffic fine. We affirm the judgment, as modified.

15. Restitution;

Johnson v. State, 680 S.W.3d 616 (Tex. Crim. App. 2023)Appellant damaged property in a car accident. He was convicted of failure to perform a duty to provide information after the accident, and he was ordered to pay restitution to the owners of the property he damaged. The question is whether restitution may be ordered for an offense that did not itself cause the damage. We conclude that restitution may not be ordered under those circumstances. This statute also refers to the Crime Victims' Compensation Fund, established under Chapter 56B of the Code of Criminal Procedure. An application for compensation from the fund requires, among other things, "a description of the nature and circumstances of the criminally injurious conduct.” The import of all of these provisions is that the criminal offense for which the defendant is convicted must be the cause of the damage for which restitution is awarded. That is consistent with what this Court said in Hanna. The issue in Hanna was whether restitution could be ordered in a driving while intoxicated case even though the offense of DWI does not require a victim and no victim had been named in the indictment. We held that it could. But we went on to say that restitution was improper in that case because there was no evidence to show that the offense (Hanna's intoxicated driving) caused the damage.

16. Weaving & “Mistake of Law”:

Daniel v. State, 683 S.W.3d 777 (Tex. Crim. App. 2024). The trial court did not err by denying defendant's motion to suppress obtained after an officer stopped him for failing to remain in a single lane of traffic, because the officer's reasonable misinterpretation of state

17. Retrograde Extrapolation:

Hardy v. State, No. 14-22-00636-CR, 2024 Tex. App. LEXIS 1984 (Tex. App.—Houston—14th Dist. Mar. 21, 2024)(unpublished). Hardy appeals that the trial court erred in: (1) admitting evidence of his blood-alcohol content ("BAC") when the State did not establish the identity or qualifications of the person who performed the blood draw; (2)

DWI Update

criminal law did not undermine the reasonable suspicion required to conduct the traffic stop. The trial court denied Appellant's motion, finding that Appellant "turned left and did not remain within his single marked lane"; that "Officer Todd followed to make an investigatory stop"; and that "he indicated that he saw two more instances of not maintaining a single marked lane before the stop which were not unsafe." Hardin — The Court of Criminal Appeals formally and authoritatively settles the debate: §545.060(a) establishes a single offense, not two. In Hardin, this Court held that the officer had no reasonable suspicion to stop the defendant when her vehicle's right rear tire briefly touched the dividing line between the center and right lane of traffic because the State did not prove that the movement was unsafe. When analyzing § 545.060(a)'s text, the Court remarked that the operative terms of the statute—"nearly," "practical," and "safely"—are "clear and unambiguous" and recognized that the dispute is over the number of offenses. Hardin, 664 S.W.3d at 873-74. Considering both subsections, the Court determined that a two-offense construction would render subsection (a)(1) unconstitutionally vague and (a)(2) meaningless. Id. at 875. The Hardin Court distinguished the factual scenario presented in that case from the basis of the stop in Leming, noting that the officer in Leming had reasonable suspicion to stop the defendant for driving while intoxicated regardless of whether he had failed to maintain a single lane. Id. at 878. Judge Slaughter wrote separately to suggest that mistake of law would apply, however, the State failed to raise the argument. Id. at 879-882. She also noted that reasonable minds can disagree as to the meaning of the language in the statute and pointed to the dissent. Id. at 881. She further noted that there existed legitimate disagreements among Texas courts as to the statutory interpretation which shows that the law was not as clear as the majority suggests. Id. And as Judge Slaughter recognized, the Fifth Circuit has applied mistake of law to § 545.060(a) in United States v. Valenzuela-Godinez, 816 Fed. Appx. 914 (5th Cir. 2020) (not designated for publication). There, the Fifth Circuit reasoned: "In light of the statute's ambiguous text, coupled with the clear divide among Texas courts over its meaning, we hold that [officer's] belief that ValenzuelaGodinez broke the law by failing to maintain a single lane of traffic, even if mistaken, was objectively reasonable. Id. at 918.

DWI Update

failing to suppress evidence of his BAC because the arresting officer lacked reasonable suspicion and probable cause; and (3) permitting retrograde extrapolation testimony from a forensic scientist that was scientifically unreliable. We agree that the trial court erred in admitting retrograde extrapolation testimony and that the error affected Hardy's substantial rights. We reverse and remand for a new trial. Retrograde extrapolation is the computation of a person's BAC at the time of driving based on the alcohol level found in blood that is drawn some time later. See Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001). Retrograde extroplation testimony is a type of scientific evidence. See Veliz v. State, 474 S.W.3d 354, 358-59 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). The Texas Rules of Evidenc allow admission of an expert's opinion based on scientific knowledge if, among other things, the proponent of the evidence shows by clear and convincing proof that it is reliable. Tex. R. Evid. 702; see Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). Retrograde extrapolation testimony can be reliable if certain factors are known. Mata, 46 S.W.3d at 916; Corley v. State, 541 S.W.3d 265, 268 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (discussing length of time between offense and testing; number of tests and length of time between them; and extent of the defendant's individual characteristics, such as weight, gender, typical drinking pattern, tolerance, quantity, alcohol and food consumed, and time since the last drink). We review a trial court's admission of such evidence for an abuse of discretion. Corley, 541 S.W.3d at 265. The trial court agreed Szkudlarek could not offer such an opinion because there were "not enough factors for her to make an opinion about this" under Mata and Veliz. However, the trial court asked of the State: "But that's not what you're trying to do, or is it?" The State confirmed that it was "trying to show . . . the rate of eliminating and what that looks like in an example of a case over the span of one hour, two hours, et cetera." The trial court agreed that such a hypothetical was admissible and allowed the State to continue. The State continued with a re-worded hypothetical question: [STATE]: In a hypothetical scenario where someone's BAC was 0.15 at the moment they were driving. An hour later by the process of elimination if no more alcohol has been consumed, what theoretically would their BAC be at? [SZKUDLAREK]: Assuming that they were already on the decline while they were at that 0.15 at the time of driving, then it would increase to a 0.17. This hypothetical BAC an hour after driving was close to Hardy's BAC results of 0.178, also taken at some period of time after driving.

As this court concluded in Veliz, it is error for an expert to conduct an extrapolation about BAC based on elapse of time, without consideration of the Mata factors. Veliz, 474 S.W.3d at 360-61. Here, the State's question elicited extrapolation testimony from Szkudlarek based on the passage of time (the standard elimination rate of 0.02 grams of alcohol per 100 milliliters of blood per hour) and no further consumption of alcohol. Szkudlarek did not evaluate other Mata factors in her response to the State's hypothetical question, and she did not use those factors to explain how she arrived at a higher BAC of 0.17 an hour after the hypothetical driver tested at 0.15. There is no evidence in the record demonstrating that the State laid a foundation for Szkudlarek's testimony by developing evidence of Mata factors. In Hardy's further cross-examination, Szkudlarek then agreed that the science did not support making an extrapolation about a person's BAC based on "a lot" of assumptions. She agreed that without knowing more facts, she could not make

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In its appellate briefing, the State argues that its hypothetical question was not retrograde extrapolation of Hardy's BAC at the time he was driving. We disagree that the question and the witness's response were distinct from retrograde extrapolation that courts have addressed in other cases. See, e.g., id. at 905 (describing expert's testimony "[w]hen given a hypothetical case based on the facts of this case" that a person's BAC was higher hours after driving but the person was nonetheless intoxicated when driving); Neale v. State, 525 S.W.3d 800, 805 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (describing forensic scientist's testimony regarding the average elimination rate of alcohol and extrapolation that appellant's BAC at the time of appellant's arrest was at least 0.19); Veliz, 474 S.W.3d at 358 (opinion testimony that an individual with a .081 BAC would have a BAC above 0.08 three and a half hours earlier); Owens v. State, 135 S.W.3d 302, 308 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (hypotheticals using appellant's known facts, results of breath test, and varying time of last drink to opine about BAC when driving). Whether an expert calculates the BAC level at the time of driving or at a later time, the expert still conducts an analysis that considers absorption, elimination, and the Mata factors. See Mata, 46 S.W.3d at 909. Moreover, the State's asking its question hypothetically does not shield the testimony from appellate review. See id. at 905 (addressing combination of defendant-specific and hypothetical retrograde extrapolation); Veliz, 474 S.W.3d at 358, 362 (same); Owens, 135 S.W.3d at 308 (hypotheticals using defendant's known facts); Douthitt v. State, 127 S.W.3d 327, 331, 334 (Tex. App.—Austin 2004, no pet.) (hypotheticals).

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such an extrapolation about Hardy. Szkudlarek stated multiple times that she could not testify about Hardy's BAC at the time he was driving. Without establishing the Mata factors, the hypothetical extrapolation questions asked by the State and Szkudlarek's response were unreliable, and it was error to admit them. See id. at 362. We reverse the judgment of the trial court and remand the case for a new trial. B. Retrograde Extrapolation: Nuggets from Scientific Articles a. Retrograde Extrapolation (“Guessing Backwards”): i. “Extrapolation of a later alcohol test result to the time of the alleged offense is always of uncertain validity and therefore forensically unacceptable.” Dr. Kurt Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies, Supplement No. 10, July (P. 106). ii. “Requests to back extrapolate a suspect’s BAC from the time of the sampling to the time of the driving are often made, but this remains a dubious practice, owing to the many variables and unknowns involved.” Medical-Legal Aspects of Alcohol, Fifth Edition, James C. Garriott, lawyers & Judges publishing Company, Inc., P. 127. iii. It is not advisable to testify in court about the pharmacokinetics of ethanol (e.g. retrograde extrapolation) and perform Widmark calculations based on blood-alcohol curves if the results of a breath alcohol test was used in evidence. Medical-Legal Aspects of Alcohol, Fifth Edition, James C. Garriott, lawyers & Judges publishing Company, Inc., P. 127. iv. “The BAC calculated according to Widmark’s equation vastly exceeded the actual BAC sometimes by as much as 50% or more. The reason for this discrepancy is not fully understood but it seems likely that the rate of ethanol disposal was much faster than expected during the 6-10 hour drinking spree.” A.W. Jones, Medical-Legal Aspects of Alcohol, Fifth Edition, James C. Garriott, lawyers & Judges publishing Company, Inc., P. 105.

vi. “The attempt to extrapolate back from a later single test value to the earlier true BAC is always fraught with difficulties.” E. Fitzgerald & D. Hume. The Single Chemical Test for Intoxication: A Challenge to Admissibility. Massachusetts Law Review (1981) Vol. 66, No. 1, pp 23-37. vii. “[S]peculative retrograde extrapolation to any point prior to an experimentally determined value must be avoided in forensic practice, or so qualified by stated assumptions that the exercise becomes pointless.” Kurt M. Dubowski, Human Pharmacokenetics of Ethanol I. Peak Blood Concentrations and Elimination in Male and Female Subjects. Alcohol Technical Reports (1976) Vol. 5, No. 4, 5563. viii. “[W]e do not intend to encourage back-estimation but instead we want to highlight the uncertainty associated with such calculations. Estimating the amount of alcohol consumed is difficult to defend since drinking histories are often unreliable and values for β and ρ are unknown for individual drunk driving suspects.” R.G. Gullberg and A.W. Jones, Guidelines for Estimating the Amount of Alcohol Consumed from a Single Measurement of Blood Alcohol Concentration: Re-evaluation of Widmark’s Equation, Forensic Science International (1994) Vol. 69, 119-30. ix. “If evidence can be mustered to suggest that the peak BAC was reached after the incident the driver might have been below the statutory limit at the time of driving, and an acquittal is therefore a possible outcome.” A.W. Jones, Physiological Aspects of Breath Alcohol Measurement, 6 Alcohol Drugs and Driving 1 (1990). b. Absorption i. “Elapsed time from end of alcohol intake to peal alcohol blood concentration varies from 14 minutes to 138 minutes. Dr. Kurt Dubowski, Absorption, Distribution and Elimination of Alcohol:

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v. “[W]e generally cannot state with any assurance the actual peak value which will be reached for each individual nor can we state the precise time at which it will be obtained. Statements as to either will necessarily require a great deal of guesswork and speculation.”

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Highway Safety Aspects, Journal of Studies, Supplement No. 10, July (P. 99). ii. “Most subjects reached peak BAC within 60 minutes after the end of drinking but some required 120 minutes or more.” A.W. Jones, Medical-Legal Aspects of Alcohol, Fifth Edition, James C. Garriott, lawyers & Judges publishing Company, Inc., P. 103. iii. “…the table illustrates that two blood samples taken 30-60 min apart is not sufficient to allow making an unequivocal statement of whether the person was in the post-peak phase at the time of driving.” A.W. Jones, Medical-Legal Aspects of Alcohol, Fifth Edition, James C. Garriott, lawyers & Judges publishing Company, Inc., P. 94. iv. “In studies of this kind it is important to ensure that the bloodsampling schedule is optimal to allow an unequivocal determination of the post-absorptive elimination phase. Without this information it is simply not feasible to arrive at a reliable estimate of the rate of elimination of alcohol from the bloodstream.” A.W. Jones, MedicalLegal Aspects of Alcohol, Fifth Edition, James C. Garriott, lawyers & Judges publishing Company, Inc., P. 97. v. “Most of these studies involved rapid drinking of a moderate dose of alcohol on an empty stomach [meaning way faster absorption] and these conditions are not very comparable with real life situations and drinking practices.” A.W. Jones, Medical-Legal Aspects of Alcohol, Fifth Edition, James C. Garriott, lawyers & Judges publishing Company, Inc., P. 103 vi. Medical-Legal Aspects of Alcohol, Fifth Edition, James C. Garriott, lawyers & Judges publishing Company, Inc., P. 106: 1. Not all blood and breath alcohol curves follow the Widmark pattern, nor is the elimination phase necessarily linear. 2. Alcohol absorption is not always complete within 60 to 90 min, as often claimed.

4. It is not possible to establish whether an individual is in the absorption or elimination phase, or to establish the mean overall rate of alcohol elimination from the blood or breath, from the results of two consecutive blood or breath alcohol measurements. 5. Significantly large short-term fluctuations occur in some subjects and result in marked positive and negative departures from the alcohol concentration trend line. 6. No forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results. Dr. Kurt Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies, Supplement No. 10, July (P. 106). vii. “The authors find that the values from the air analysis and blood analysis often do not agree during the absorptive period. As a general rule, the air analyses give overly high values, particularly is absorption is rapid.” Dr. Erik Widmark, Principles and Applications of Medicolegal Alcohol Determination, P. 41. viii. “It is impossible to determine exactly the boundary between the absorptive and post-absorptive periods, because absorption and diffusion do not stop suddenly, but gradually.” Dr. Erik Widmark, Principles and Applications of Medicolegal Alcohol Determination, P. 63. ix. “Use of breath testing for forensic purposes, though, has certain problems. … As one does not know in a practical case, whether absorption from the intestine is ended or not… one is always faced with the possibility that air analysis will give excessively high values, giving a false picture of the degree of alcoholic influence and of the

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3. The peak alcohol concentration cannot be validly predicted or established or established in an individual instance without frequent and timely measurement of alcohol concentrations.

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amount consumed.” Dr. Erik Widmark, Principles and Applications of Medicolegal Alcohol Determination, P. 99. c. Blood : Breath Partition Ratio i. “Consequently, the alcohol distribution process and the partition ratios for alcohol between blood and other specimen materials are of great practical importance.” Dr. Kurt Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies, Supplement No. 10, July (P. 101). ii. “Hence the blood:breath ratio for analyzers to indicate the supposedly corresponding blood alcohol concentration, has been a subject of much scientific debate for about 50 years. It is evident from considerations of quantitative human biology that a single ratio or conversion factor will not apply to all persons.” Dr. Kurt Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies, Supplement No. 10, July (P. 101). iii. Hence, post-absorptive blood alcohol : breath alcohol concentration ration range of…1555/1 to 3005/1 for 99.7% of such a population. Dr. Kurt Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies, Supplement No. 10, July (P. 101). iv. In reality, the concept of a constant blood : breath ratio of alcohol is flawed for several reasons… breath: blood is a moving target…(see article)…When BAC is in the range of 0.1 to 0.2 g/L the BAC/BrAC might exceed 3001:1. Dr. A.W. Jones, Garriott’s, P. 117. d. Urine i. “There is massive documentation that the blood alcohol concentration cannot be established sufficiently reliably for forensic purposes from the alcohol concentration of a pooled bladder urine specimen because of the extensive variability of the blood:urine ratio of alcohol.”

iii. “Urine alcohol concentrations are inadequately correlated with blood alcohol concentrations or with driver impairment, and analysis of bladder urine is, therefore, inappropriate in traffic law enforcement.” (P. 106) e. Experts i. Dr. A.W. Jones – “When testifying as an expert witness in a criminal cases it is important to ensure that the work cited has undergone peer-review and publication, a fact widely recognized and appreciated by forensic scientists worldwide. Finally, it is important to recall that science does not exist until it has undergone peer review and publication.” Garriott’s P. 128. ii. Dr. A.W. Jones – “In criminal cases it is important to give the accused any benefit of the doubt when scientific and technical evidence is proffered. This becomes important when Widmark calculations are made owing to the uncertainty in the person’s rho and whether bioavailability of ethanol was indeed 100%. During social drinking over several hours and especially when alcohol is ingested along with food or snacks the bioavailability is always less than 100%.” Garriott’s P. 87. C. Organization of Scientific Area Committee “OSAC” Alcohol Calculations Retrograde extrapolation is the computation back in time of the blood-alcohol level – that is, the estimation of the level at the time of driving based on a test result from some later time.1 But before testimony regarding retrograde extrapolation is put before a jury, the State must prove by clear and convincing evidence that the evidence is reliable.2 That is accomplished by showing the validity of the underlying scientific theory, the validity of the technique applying the theory, and the proper application of the technique on the occasion in question. 3 The same applies for testimony regarding anterograde 1 Mata v. State, 46 S.W.3d 902, 909 (Tex. Crim. App. 2001). 2 Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). 3 Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)

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ii. “…NHTSA, which list blood and breath as specimens of choice for alcohol analysis and discourage use of urine for alcohol determination in law enforcement.”

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extrapolation, which is used in the estimation of either the number of standard drinks necessary to achieve a particular blood alcohol concentration, or the reverse, an estimation of blood alcohol concentration after a specified number of drinks. This estimation, however, is not without difficulty. Indeed, see the previous scientific nuggets listed above from the scientific authorities in the field. To be accredited, forensic laboratories must meet standards promulgated by accreditation organizations such as the ANSI National Accreditation Board. Organizations like ANSI set forth the minimum processes that must be in place for a lab to be allowed to test blood for the presence and quantification ethyl alcohol for forensic purposes. ANSI does not create these standards, but rather relies on organizations like the Academy Standards Board (ASB) and the Organization of Scientific Committees for Forensic Science (OSAC) to develop consensus standards. And while consensus standards do not have unanimous approval, they do represent best practices as agreed upon by a great majority of experts in the field across the world. Retrograde extrapolation and the use of the Widmark Equation to find the relationship between a dose of alcohol and a resulting alcohol concentration is a subject touched on by both ASB and OSAC. As noted above by the leading scientists in the field of blood alcohol testing and the effects alcohol has on the human body, ASB and OSAC both warn forensic toxicologists about the high degree of variability in the performance of these calculations. Indeed, there are numerous factors that must be taken into consideration when providing these estimates including that alcohol pharmacokinetics vary within the population, but also within an individual. In brief, a retrograde extrapolation calculation estimate is computed by using the following equation: ACinc = ACtest + (R x T) where: ACinc = ACtest = R = T =

estimated alcohol concentration at the time of the incident measured alcohol concentration elimination rate (also referred to as beta) time between incident and time of breath/blood test in hours

But simply having the test result, a catch-all elimination rate, and the time between the stop and the test is still not enough for laboratory personnel to render an opinion on a person’s estimated alcohol concentration at the time of the incident. The Texas Court of Criminal Appeals has highlighted that an expert’s ability to apply the science and explain it with clarity to the Court isa paramount consideration.4 The expert must also demonstrate some understanding of the difficulties associated with retrograde 4 Mata at 916.

In Mata v. State, the Court put forth a set of non-exhaustive factors the trial court should consider in evaluating the reliability of a retrograde extrapolation estimation, including: the length of time between the offense and the test(s) administered, the number of tests given and the length of time between each test, and whether, and if so, to what extent any individual characteristics of the defendant were known to the expert in providing his extrapolation.6 These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.7 ASB and OSAC both use ranges of elimination rates (beta) in their estimation of blood alcohol concentrations that are a catch-all for most of the population. It is an assumption regarding the accused that they fit within this range, and it fails to account for individual differences. The same can be said of ASB and OSAC’s use of the Widmark equation to determine the relationship between blood alcohol concentrations and a particular dosage of alcohol. Widmark’s equation is as follows: 𝑫𝑫𝑫𝑫

AC = 𝑽𝑽𝑽𝑽𝑽𝑽𝑽𝑽∗𝒘𝒘𝒘𝒘

where: AC D Vd w

= = = =

alcohol concentration dose volume of distribution (also referred to as rho) weight

This anterograde extrapolation requires the expert to use a range of figures for a person’s volume of distribution, also referred to as rho, a theoretical volume into which the entire dose of alcohol is distributed to give the same concentration as in blood. As noted in the scientific literation, rho will depend on the physicochemical properties of the drug, a person’s age, sex, and their adiposity (amount of body fat). Widmark’s equation, however, does not account for all of these, only a person’s sex. The use of retrograde extrapolation to estimate a blood alcohol concentration at the time of an incident is inherently unreliable because most of these factors are unknown to forensic toxicologist rendering the opinion and are based on several assumptions that may or may not be true in a given situation. The standards set forth by ASB and OSAC 5 Id. 6 Id. 7 Id.

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extrapolation and demonstrate an awareness of the subtleties of the science and the risks inherent in any extrapolation.5

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reference some of the Mata factors but fall short of what the Texas Court of Criminal Appeals requires experts to be familiar with in Texas DWI trials. D. Redacting Videos – Fischer v. State, Houston lawyer Windi Akins was clairvoyant ahead of the advent and use of police body worn cameras when she successfully challenged officer’s hamming it up on video recordings in a DWI case in Fischer v. State. The Texas Court of Criminal Appeals held that when a peace officer makes reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious "thinking-it-through" statements on a DWI videotape, the present sense impression exception no longer allows their admission. “Thinking about it” destroys the unreflective nature required of a present sense impression, and turns these calculated statements, deliberate opinions, conclusions, and conscious statements into a “speaking offense report” that are expressly excluded by Tex. R. Evid. 803(8)(B). See Fischer v. State, 252 S.W.3d 375, 381 (Tex.Crim.App. 2008). Here is a standard motion requesting redaction of the audio/video recordings that can be used in any criminal case.

STATE OF TEXAS

IN THE DISTRICT COURT

VS.

_____ JUDICIAL DISTRICT

_________________

HARRIS COUNTY, TEXAS

DEFENDANT’S MOTION TO SUPPRESS STATEMENTS AND REDACT FROM THE AUDIO/VIDEO RECORDINGS TO THE HONORABLE JUDGE OF SAID COURT: A.

Calculated statements and deliberate opinions contained on the scene videotape amount to a “speaking offense report” and are inadmissible The Texas Court of Criminal Appeals held that when a peace officer makes

reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious "thinking-it-through" statements on a DWI videotape, the present sense impression exception no longer allows their admission. “Thinking about it” destroys the unreflective nature required of a present sense impression, and turns these calculated statements, deliberate opinions, conclusions and conscious statements into a “speaking offense report” that are expressly excluded by Tex. R. Evid. 803(8)(B). See Fischer v. State, 252 S.W.3d 375, 381 (Tex. Crim. App. 2008). Specifically, the Accused objects and requests the following audio portions of the videotape be suppressed and redacted from the videotape:

(1)

23:45 through 24:37 – Trooper narrates what he observes in the Defendant’s vehicle with respect to open containers.

(2)

27:09 through 27:25 – Trooper continues to narrate his findings of what is found in the Defendant’s vehicle.

The roadside portable breath test given to the Defendant does not meet the relevant and scientifically reliable evidence threshold established in Kelly v.

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CAUSE NO. _______

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State and therefore is not admissible (3)

31:18 through 32:20 – Trooper narrates alleged probable cause to other trooper who arrives on scene to transport the Defendant to the station in addition to quantifying the results of the PBT without showing the scientific reliability of the uncalibrated roadside device as required by Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).

(4)

35:23 through 36:15 – Trooper dictates to other trooper what open containers were found within the Defendant’s vehicle and the receipts containing hearsay along with confirming the alleged probable cause.

Trial use of scientific or technical evidence is governed by TRE 702. In order for scientific or technical evidence to be admitted at trial, the trial Court is required to determine whether that evidence is both relevant and reliable. Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997). The inquiry into reliability of scientific information is three-pronged, and the Court must determine, in turn, whether each of the three following requirements are met: a. The underlying scientific theory must be valid; b. The technique applying the theory must be valid; and, c. The technique must have been properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). None of the three prongs for reliability have been proven to the Court with regard to the portable breath test device here in issue. The Scientific Director of the Texas Department of Public Safety does not recognize any portable breath test instrument as reliable for evidentiary purposes and the State has not proffered any evidence showing that the portable breath test device here in issue meets any of the three Kelly requirements for reliability.

A, §19.1, et. seq., sets out rules governing the evidentiary use of breath test devices. As a source of law, the T.A.C. breath test device rules are like statutes or the decisions of a higher Court to which lower Courts owe obedience under the doctrine of stare decisis. Eckmann v. Des Rosiers, 940 S.W.2d 394, 399 (Tex. App.—Austin 1997). This Court is obligated to take judicial notice of the T.A.C. rules. Tex. R. Evid. 204, Tex. Gov’t Code §2002.054(1). Under Rule 19.1 of the Texas Breath Alcohol Testing Regulations, the Texas DPS Scientific Director is required by law to establish and maintain a list of breath test instruments approved for use in the State of Texas. T.A.C. Title 37, Part I, Chapter 19, Subchapter A, §19.1. The portable breath test device here in issue is not now and never has been recognized by the Texas DPS Scientific Director as reliable for evidentiary use. The State has proffered no evidence showing that the underlying scientific theory supporting the evidence is reliable.

The State has proffered no evidence that the

technique applying such theory, if any, is reliable. Since there is no evidence before the Court that the theory and technique are reliable, it follows that there is no evidence of the proper application, in this case, of a reliable theory and technique. The evidence is therefore barred under TRE 702. Finally, since the portable breath test evidence here in question was obtained by an officer in violation of the Texas Administrative Code, that evidence is also barred under Texas Code of Criminal Procedure Art. 38.23. For these reasons as well as those previously discussed regarding Fischer, the following audio and visual portions of the recording should be redacted: (5)

12:07 through 12:11 – Trooper telling Defendant “your eyes tell me you’ve

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The Texas Administrative Code (T.A.C.) Title 37, Part I, Chapter 19, Subchapter

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had more than two beers.” (6)

12:51 through 12:54 – After the PBT beeps, the Trooper states “yeah, my suspicions are true.”

Statements that are the result of custodial interrogation without the requisite statutory warnings as well as a Defendant’s prior criminal history are inadmissible Defendant requests the following exchange be redacted concerning the

Defendant’s prior criminal history. This exchange is not relevant under 401, and the unfair prejudicial effect outweighs any probative value. Furthermore, the admissions by the Defendant are in response to custodial interrogation and the Defendant was not properly warned as required by statute. Thus, this should be suppressed and redacted under TRE 401 and 403, as well as Tex. Code Crim. Proc. 38.23. Specifically, the Accused objects and requests the following audio portions of the videotape be suppressed and redacted from the videotape: (7)

37:55 through 38:43 – Trooper asking dispatch for a criminal history check on Defendant and dispatch responding.

(8)

13:43 through 13:57 – After the Defendant is placed in handcuffs and told he is under arrest for DWI, without giving the required statutory warning, the Trooper asked the Defendant if he has ever been arrested for DWI before, to which the Defendant responds to the custodial interrogation question in the affirmative.

The Accused also objects on the same grounds regarding the recording made by Trooper Hutcherson. Due to the poor quality of the digital reproduction given to the Defense by the State, the Accused is not able to give correct times as to the objectionable statements. The Defendant, however, objects to the following exchanges:

All statements made by and between the Troopers that were also captured on the stopping Trooper’s audio and video recording, that have been previously objected to earlier in this motion: a. 23:45 through 24:37 on stopping Trooper recording – Stopping Trooper narrates what he observes in the Defendant’s vehicle with respect to open containers. b. 27:09 through 27:25 on stopping Trooper recording – Stopping Trooper continues to narrate his findings of what is found in the Defendant’s vehicle. c. 31:18 through 32:20 on stopping Trooper recording – Stopping Trooper narrates alleged probable cause to other trooper who arrives on scene to transport the Defendant to the station in addition to quantifying the results of the PBT without showing the scientific reliability of the uncalibrated roadside device as required by Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). d. 35:23 through 36:15 on stopping Trooper recording – Stopping Trooper dictates to other trooper what open containers were found within the Defendant’s vehicle and the receipts containing hearsay along with confirming the alleged probable cause.

Statements regarding medication use in an alcohol-only prosecution are also inadmissible due to their tendency to mislead the jury and unfairly prejudice the Defendant Defendant requests the following exchange be redacted from the videotape on the

basis that this is an alcohol intoxication case, and the prescribed stimulant discussed below did not contribute to the alleged intoxication, nor will the officer render an opinion that this prescription medication taken 19 hours before the stop was a contributing factor. Thus, admission is not relevant under TRE 401, and any probative value is outweighed by the unfair prejudicial effect this will have on the jury. In Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009), the Court of Criminal Appeals held that the trial court erred in allowing the evidence of defendant's use of Xanax and Valium to be introduced to the

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(9)

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jury without the State first showing that the evidence was relevant to defendant's intoxication. The Court further went on to hold that “without expert testimony to provide the foundation required to admit scientific evidence, the testimony regarding defendant's use of prescription medications was not relevant under Tex. R. Evid. 401.

Further,

DeLarue v. State, 102 S.W.3d 388 (Tex. App.—Houston [14th Dist.] 2003, pet. denied), held that admission of drugs is error and had an unfairly prejudicial effect. Courts are aware that the admission of drug testimony can be unfairly prejudicial because jurors are not commonly acquainted with the “consequences and effects” of controlled substances as they are alcohol. Manning v. State, 84 S.W.3d 15, 22 (Tex. App.--Texarkana 2002), overruled on other grounds, 114 S.W.3d 922 (Tex. Crim. App. 2003), and admission of this evidence will be misleading and unfairly prejudicial. Thus, this should be suppressed and redacted under TRE 401 and 403: (10) E.

12:11 through 12:20 – Defendant stating, “I just took an Adderall…” and the Trooper responding, “Adderall is not going to cause nystagmus.”

Offering Party has the burden to redact evidence to conform to the court's order to be admissible The Court of Criminal Appeals held that a trial judge acted properly when it

excluded the entire videotape when the proponent of the evidence failed to redact the inadmissible statements from the videotape.

See Willover v. State, 70 S.W.3d 841

(Tex.Crim.App. 2002). F.

Jury is entitled to take all evidence admitted into the jury room

room and discuss all exhibits properly admitted into evidence.8 See also Lopez v. State, 628 S.W.2d 82 (Tex. Crim. App. 1982).

8 TEX. CODE CRIM. PROC. ANN. art. 36.25, provides: “There shall be furnished to the jury upon its request any exhibits admitted into evidence in the case.”

DWI Update

It is a well-established rule of law in Texas that the jury is entitled to take to the jury

DWI Update

PRAYER FOR RELIEF Wherefore, Defendant prays that the Court Suppress the Statements and Order the State to redact the audio portion of the times listed above on the videotape/DVD it offers at trial, or alternatively exclude the videotape unless it is offered in a wholly admissible form. DOUG MURPHY LAW FIRM, P.C.

____________________________ DOUG MURPHY SBN 24013215 902 Heights Blvd. Houston, Texas 77002 Tel: (713) 229-8333 Fax: (713) 583-0205 efile@dougmurphylaw.com

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Motion for has been furnished to the Attorney District Attorney presently assigned to this case on April 29, 2024

_____________________________ DOUG MURPHY

STATE OF TEXAS

IN THE DISTRICT COURT

VS.

_____ JUDICIAL DISTRICT

_________________

HARRIS COUNTY, TEXAS

ORDER On this day came on to be heard the Defendant's Motion to Suppress Fischer Statements and Redact Audio Portions from the Videotape and arguments of both counsel and believed that the Motion should be GRANTED. IT IS THEREFORE ORDERED that the Fischer statements specifically complained by reference to time in the motion are suppressed from evidence. IT IS FURTHER ORDERED that the State is to redact the audio portions referenced to time in this motion from the videotape. The videotape will be inadmissible if the videotape contains the audio portions hereby ORDERED suppressed. SIGNED and ENTERED on this the

__ day of ________2024.

___________________________ JUDGE PRESIDING

DWI Update

CAUSE NO. _______

DWI Update

CAUSE NO. ____________ STATE OF TEXAS

IN THE DISTRICT COURT

____ JUDICIAL DISTRICT

ART VAN DELAY

HARRIS COUNTY, TEXAS

APPLICATION FOR WRIT OF HABEAS CORPUS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, ART VAN DELAY, Applicant in the above-styled and numbered cause, by and through his attorney of record, DOUG MURPHY, and presents this Application for Writ of Habeas Corpus. In support, Applicant shows this Court the following: I. 1.

Applicant is illegally restrained of his liberty by virtue of an indictment alleging

2 prior misdemeanor DWI convictions granting this court jurisdiction over him. 2.

Habeas corpus is the appropriate remedy to challenge the validity of

enhancement for misdemeanor DWI to a felony.

Ex Parte Sparks, 206 S.W.3d 680

(Tex.Crim.App. 2006). A. 3.

FACTUAL HISTORY

On February 3, 2008, Defendant was arrested for driving while intoxicated

(DWI). Defendant was indicted for felony DWI, using his two prior DWI convictions. 4.

Specifically, the indictment alleged Defendant was convicted of DWI on July

26, 1978 (1978 DWI), and again on September 5, 1996 (1996 DWI).

In the 1978 DWI, Defendant received 1 year probation, which was

successfully completed and terminated. Accordingly, the court set aside and dismissed the charge on July 25, 1979. This dismissal was both permissible and consistent with the law at that time. B. 6.

DWI LAW BACKGROUND

A DWI 1st and 2nd offense are generally misdemeanor offenses. TEX. PEN.

CODE § 49.04 (Vernon 2007). The statute, however, permits enhancement of the charge to a felony where the accused has been twice finally convicted of DWI prior to the commission of the arrested offense. TEX. PEN. CODE § 49.09(d); Ex parte Serrato, 3 S.W.3d 41 (Tex.Crim.App. 1999). The previous DWI convictions are elements of the offense of felony driving while intoxicated. Prior intoxication-related convictions enhance the offense under § 49.09(b), however, prior convictions used in § 12.42(d) enhance punishment. Weaver v. State, 87 S.W.3d 557, 560 (Tex. Crim. App. 2002); Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999). C. 7.

1978 DWI ENHANCEMENT IS NOT A FINAL CONVICTION The 1978 DWI law provided that where a sentence was suspended and

probated, the “conviction was not final absent proof of revocation.” TEX. REV. CIV. STAT. ANN. Art. 6701l-1; State v. Wilson, 324 S.W.3d 595 (Tex.Crim.App. 2010) Ex parte Langley, 833 S.W.2d 141, 143 (Tex.Crim.App. 1992); Ex parte Murchison, 560 S.W.2d 654, 656 (Tex.Crim.App. 1978). Thus, the 1978 DWI was not a final conviction and is not usable for enhancement purposes.

DWI Update

The law changed in 1984 that made convictions after Jan. 1, 1984—

regardless of whether they were probated or suspended—final convictions and usable for enhancement purposes. See State v. Verhoeven, 151 S.W.3d 637, 638 (Tex. App.--Fort Worth 2004, pet. ref’d); State v. Nixon, 153 S.W.3rd 550 (Tex. App.–Amarillo 2004, pet. ref’d). This 1984 law change, however, did not make the pre-1984 DWIs final convictions. PRAYER WHEREFORE, PREMISES CONSIDERED, Applicant prays that this court issue the writ and thereafter grant him relief in the form to deny the state to use the 1978 DWI as a predicate to enhance third DWI arrest to a felony. Respectfully submitted, DOUG MURPHY LAW FIRM, P.C.

By:

___________________________ DOUG MURPHY SBN 24013215 902 Heights Blvd. Houston, Texas 77008 Tel: (713) 229-8333 Fax: (713) 583-0205 efile@dougmurphylaw.com

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Motion has been furnished to the Assistant District Attorney presently assigned to this case on this the _____ day of February, 2024.

DWI Update

____________________________ DOUG MURPHY

DWI Update

CAUSE NO. ____________ STATE OF TEXAS

IN THE DISTRICT COURT

232nd JUDICIAL DISTRICT

ART VAN DELAY

HARRIS COUNTY, TEXAS

ORDER Before the Court is Applicant's Petition for Writ of Habeas Corpus. The writ having issued, return having been made as required by law, and after considering the petition, the response, the evidence, and the arguments of the parties, the Court finds that the application is well taken and that relief should be granted. IT IS THEREFORE ORDERED that the State is prohibited from using the 1978 DWI conviction as a predicate to turn this DWI arrest into a felony. IT IS FURTHER ORDERED that the indictment is dismissed. Signed and entered this __

day of February, 2024.

______________________________ JUDGE PRESIDING

Currently, crime laboratory records are managed independently through customized laboratory information management systems and other records management systems. Records are provided via the traditional paper-driven discovery process, when requested by prosecutors and defense attorneys. This outdated process relies on affirmative requests for the transmission of information, which has shown to be inefficient, untimely, inaccurate, and incomplete. Consequently, the proper production of exculpatory, impeachment, and mitigation evidence can be impacted and jeopardized, causing disastrous and avoidable consequences for all parties involved in the criminal justice system. In its last Session, the Legislature enacted Senate Bill 991 (S.B. 991), which addresses the problems with the current system of discoverable crime laboratory records. Effective on September 1, 2023, S.B. 991 amends Chapter 411 of the Government Code and requires DPS to establish and maintain a central computerized crime laboratory portal for requesting and transferring crime laboratory records (see Tex. Gov. Code §§ 411.161– 411.164, as amended in Subchapter G-1). Under Section 411.164, criminal defense attorneys will have guaranteed access to the computerized portal, once created, and have the right to request any crime laboratory records through the portal, provided they are discoverable under Article 39.14 of the Texas Code of Criminal Procedure. This will save significant time and expense in a multitude of criminal cases -- especially for DWIs involving blood analysis discovery. Section 411.163 also requires mandatory participation in the computerized portal for certain crime laboratories and subjects a noncompliant laboratory to disciplinary action by the Texas Forensic Science Commission, including professional negligence and violations of the code of professional responsibility (see Tex. Code Crim. Proc., Art. 38.01, as amended). While records management and retention will remain the responsibility of the participating crime laboratories, the portal should improve communication and efficiency in the process of record management. It will also streamline and expedite the transfer of discoverable records. Most importantly, the portal will end the current practice and associated problems of obtaining Court Orders and contacting individual labs for discoverable records. Hopefully, with the new and sanctions of disciplinary action and penalties, crime laboratories will comply with the new system, ensuring a more effective and efficient method of discovery. According to the Crime Laboratory Division of DPS, they are in the early stages of development. They have formed an advisory group of state prosecutors, defense attorneys, members of the Texas Forensic Science Commission, and criminal laboratory technicians to create the best system possible. The group will allow time for ample discussion, comments, and amendments. They are also establishing administrative rules that will be implemented in conjunction with the portal. Finally, they are researching various software vendors to bring the portal to life. DPS anticipates a launch of the new portal system in 2025. This is an exciting new law and one that should help the defense bar immensely in the very near future. Until then, only DPS breath testing records are available in the DPS portal located here: https://www.dps.texas.gov/apps/ballab

DWI Update

E. Establishment of the DPS Crime Laboratory Portal

DWI Update

F. DWI Traffic Fine In 2019, the Texas Legislature did away with the old system of driver’s license surcharges for those convicted of Driving While Intoxicated and replaced them with DWI “Traffic Fines.” Texas Transportation Code Section 709.001 lays out the following fine scheme: -

$3,000 for the first conviction within a 36-month period; $4,500 for a second or subsequent conviction within a 36-month period; and $6,000 for a first or subsequent conviction if it is shown on trial of the offense that an analysis of a specimen of a person’s blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed.

These traffic fines, however, are only for those who have been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated, as defined by Section 49.09, Penal Code.

This “superfine” has been challenged only a handful of times on the appellate level and the attacks have focused on whether a probation is a final conviction for 709.001 and whether the fine itself is constitutional. In each instance, the appellate court has skirted the underlying legal arguments and have simply corrected or reformed judgments to exclude the superfine due to the “agreement of the parties.” Indeed, in each “challenge” to the superfine, the State’s attorney has advocated for a reformation of the judgement because there was no evidence to support it (Bexar County) or has agreed with the Defendant that the fine was unwarranted under a probation disposition, that the superfine was unconstitutional under the Separation of Powers Clause, or that the Defendant was indigent and unable to pay the superfine (Bowie and Hunt Counties). What constitutes a “final conviction” for DWI enhancement purposes under Penal Code Section 49.09 is not the same as what constitutes a “final conviction” for the imposition of DWI traffic fines. For 49.09 purposes, a DWI case that results in a person being placed on a probated sentence, is a final conviction. 9 However, a probated sentence or deferred adjudication community supervision for DWI is not a final conviction for purposes of 709.001, due to statutory construction and legislative intent issues.10 Since the DWI superfine statute was enacted in 2019, the Legislature is presumed to have “complete knowledge of the existing law.”11 Therefore, when the Legislature enacted Section 709.001, it would have known that the Texas Court of Criminal Appeals had concluded that “finally convicted” does not include any type of community supervision or probation when dealing with the habitual offender enhancement and that it was “well established that under Texas law only convictions that are ‘final’ can be used for enhancement purposes” and that a “conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted.”12

9 Ex parte Serrato, 3 S.W.3d 41 (Tex. Crim. App. 1999). 10 Ex parte Pue, 552 S.W.3d 226 (Tex. Crim. App. 2018). 11 State v. K.E.W., 315 S.W.3d 16, 21 (Tex. 2010). 12 Pue, at 230-31.

Some counties have changed their judgements to be unambiguous about whether the superfine will be assessed with an explanation of why the trial court did or did not impose it.

The other attack, that the DWI superfine is unconstitutional, rests on the notion that it is a tax, not a fine, and that the superfine is mandatory and fixed. In each of the Texarkana Court of Appeals cases, the State’s attorney agrees with the Defendant’s arguments regarding the unconstitutionality of the superfine. Courts can collect fees so long as the statute under which they are collected, provides for an allocation of such costs to be expended for legitimate criminal justice purposes.13 The DWI superfine statute mandates that the Texas Comptroller allocate 80% of the fine that remains after the county of conviction takes 4% as a “service fee” to the general revenue fund to be used for criminal justice purposes.14 The other 20% of the superfine is allocated for funding trauma facilities. 15 The funding of trauma facilities, however, has been in part responsible for finding certain criminal statutes to be in violation of the Separation of Powers Clause.16 The superfine statute may also run afoul of the Separation of Powers Clause because the Legislature is mandating that the Judiciary assess a specific fine. The Texas Penal Code grants a trial court discretion to impose a fine, up to a statutory maximum. The Legislature, however, takes away any discretion to the judiciary to assess some, all, or none of the mandatory super fine.

13 Peraza v. State, 467 S.W.3d 508, 517 (Tex. Crim. App. 2015), cert. denied, __ U.S. __, 136 S. Ct. 1188, 194 L. Ed.2d 202 (2016). 14 Acts 2019, 86th Leg., R.S., Ch. 1094 (H.B. 2048), Sec. 14, eff. September 1, 2019. 15 Id. 16 See Richardson v. State, 606 S.W.3d 375, 385 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d).

DWI Update

Still, the trial court may still waive the imposition of the superfine if it is shown that the Defendant is indigent according to federal poverty standards. This can be done by providing evidence in the form of tax returns or by providing testimony on the record regarding a person’s inability to pay.

Texas Criminal Defense Lawyers Association

June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Defending Sex Crimes

37th Annual Rusty Duncan Advanced Criminal Law Course

The Dirty Dozen: The 12 Non-Negotiables of Defending Sex Crimes Speaker:

Heather J. Barbieri

Board Certified Criminal Defense Lawyer Barbieri Law Firm 7000 Preston Road, Ste 700 Plano, TX 75024 972.703.4826 phone 972.208.2100 fax hbarbieri@barbierilawfirm.com email https://barbierilawfirm.com/ website

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

Defending Sex Crimes

THE DIRTY DOZEN: Barbieri Law Firm Heather J. Barbieri June 2024

The Twelve NonNegotiables of Defending Sex Crimes

Table of Contents Introduction ............................................................................................................... 14 I.

ESTABLISH TRUST WITH CLIENT ............................................................................ 14 Active Listening ................................................................................................ 14

Empathy and Respect ....................................................................................... 14

3. Transparent Communication ................................................................................ 14 4.

Confidentiality .................................................................................................. 14

Accessibility: .................................................................................................... 14

Empowerment .................................................................................................. 14

Competence and Expertise ............................................................................... 14

Cultural Sensitivity............................................................................................ 14

Consistency ..................................................................................................... 14

10.

Manage Expectations: ................................................................................... 14

11.

Professionalism ............................................................................................ 14

12.

Post-Case Support ........................................................................................ 15

II.

ENSURE CLIENT UNDERSTANDING ....................................................................... 15 1.

Assess Mental Status ........................................................................................ 15

a. Initial Observation ................................................................................................ 15 b. Communication Skills .......................................................................................... 15 c. Cognitive Functioning ........................................................................................... 15 d.Awareness of Legal Proceedings ........................................................................... 15 e. Mental Health History........................................................................................... 15 f. Behavioral Observations ....................................................................................... 15 g. Consult with Experts ............................................................................................ 15 h. Collaboration with Support Services ...................................................................... 16 i. Document Findings .............................................................................................. 16 j. Ethical Considerations ......................................................................................... 16 2.

Determine Competency .................................................................................... 16

a. Establishing Incompetency in Texas Courts: ........................................................... 16 1

Defending Sex Crimes

b. Evaluation by Mental Health Professionals ............................................................. 16 c. File Motion for Competency Evaluation .................................................................. 16 d.Competency Evaluation Hearing ........................................................................... 16

Defending Sex Crimes

e. Competency Evaluation ....................................................................................... 16 f. Expert Testimony .................................................................................................. 16 g. Presentation of Evidence ...................................................................................... 17 h. Prosecution's Response ....................................................................................... 17 i. Court's Decision .................................................................................................. 17 j. Treatment for Incompetency ................................................................................. 17 k. Periodic Review Hearings...................................................................................... 17 l. Competency Restoration ...................................................................................... 17 m. Appeals Process ................................................................................................ 17 3.

Other Mitigating Factors .................................................................................... 18

a. Asperger’s/Autism ................................................................................................ 18 b. Extreme Emotional Disturbance ............................................................................ 18 c. Mental Health History........................................................................................... 18 d.Youthfulness or Immaturity ................................................................................... 18 e. Voluntary Intoxication ........................................................................................... 18 III. CONDUCT COMPREHENSIVE INVESTIGATION/GATHER EVIDENCE ......................... 18 1.

Gather Initial Information .................................................................................. 18

Interview the Client: .......................................................................................... 18

Identify Witnesses: ........................................................................................... 18

Review Evidence: .............................................................................................. 18

Assess Expert Witnesses: .................................................................................. 18

Investigate the Alleged Victim: ........................................................................... 18

Explore Defenses and Legal Issues .................................................................... 18

Document Your Findings: .................................................................................. 19

Consider Plea Negotiations: .............................................................................. 19

10.

Prepare for Trial: ............................................................................................ 19 2

11.

Critical Steps to Follow: ................................................................................. 19

a. Motion/Request to Preserve: ................................................................................. 19 b. Determine if a Grand Jury Packet is needed & prepare ............................................ 20 c. Prepare and File Request for Discovery (39.14) ...................................................... 20 e. Motion to Disclose Outcry Witness(es) .................................................................. 20 f. Given Proper Notice? Meet burden? Demand a Hearing........................................... 20 g. Motion for Brady Evidence .................................................................................... 20 h. Motion to Disclose Expert Witnesses .................................................................... 20 i. Motion for Daubert Hearing ................................................................................... 20 j. Research and Argue Reliability and Relevance ........................................................ 20 k. Request Extraneous Offense Hearing – Especially 38.072 ....................................... 20 l. Request/Subpoena CPS Records ........................................................................... 20 m. Request/ Subpoena Phone Records ..................................................................... 20 n. Subpoena School Records ................................................................................... 20 o. Subpoena Pediatrician/Doctor Records ................................................................ 20 p. Subpoena Psych Records from Private Psych ......................................................... 20 q. Subpoena Psych Records from Child Advocacy Center .......................................... 20 r. Subpoena Other Business Records ........................................................................ 20 s. Subpoena Personnel Files of State’s Witnesses ...................................................... 20 t. Schedule Discovery Review Meeting ...................................................................... 20 u. Bi-Weekly Meetings w/ client – for Trial .................................................................. 20 v. sex cases Research Potential/Lesser Included Offenses ......................................... 20 w. Research Competency to Testify (if applicable) ..................................................... 20 x. Add Lesser-Included Offenses (Penal Code Definition/Language) to VD & Jury Instruction Tabs ................................................................................................... 20 y. Review CPS Records ............................................................................................ 20 z. Review Indictment ............................................................................................... 20 aa. Research Potential Motion to Quash ................................................................... 20 bb. Research Statute of Limitations Defense ............................................................. 20 3

Defending Sex Crimes

d. Request for 404b, 609, 38.071, &38.072 ................................................................ 20

cc. Research Motion to Suppress Evidence or Statements ......................................... 20 dd. File Any Motion to Suppress Evidence or Statements............................................ 20 ee. Research Probation Eligibility from Judge or Jury (check date of offense) ................ 20

Defending Sex Crimes

ff. Obtain Business Records Affidavit ........................................................................ 20 gg. Research Motions in Limine ................................................................................ 20 hh. File All Motion in Limine ..................................................................................... 20 ii. Check to make sure all Pre-Trial Motions are Filed Seven (7) Days Before Pre-Trial Hearing ............................................................................................................... 20 jj. File Application for Community Supervision from Jury (can be possible with some lesser included offense) ....................................................................................... 20 kk. Double Check Review Calendar .......................................................................... 21 ll. Business Affidavits & Notices on File 14 Days Before Trial ...................................... 21 mm. Disclose Defense Experts 20 Days Before Trial ................................................... 21 nn. Request Experts from State 30 Days Before Trial .................................................. 21 IV. EVALUATE CREDIBILITY OF PROSECUTION WITNESSES ......................................... 21 1.

Forensic Examiners: ......................................................................................... 21

Sexual Assault Nurse Examiners (SANE): ............................................................ 21

Child Advocacy Center (CAC) Personnel: ........................................................... 21

Child Psychologists or Psychiatrists: .................................................................. 21

Digital Forensic Analysts: .................................................................................. 21

Medical Experts: ............................................................................................... 21

DNA Analysts ................................................................................................... 21

Criminal Profilers:............................................................................................. 22

Victim Advocates.............................................................................................. 22

10.

Law Enforcement Officers: ............................................................................ 22

11.

Social Workers: ............................................................................................. 22

12.

Psychological Profilers or Behavioral Analysts ................................................. 22

13.

702 Hearing .................................................................................................. 22

14.

705 Hearing .................................................................................................. 22

a. Expert Testimony with Disclosed Facts or Data: ...................................................... 22 4

b. Disclosure Upon Request: .................................................................................... 23 c. Availability for Inspection: ..................................................................................... 23 d.Cross-Examination: .............................................................................................. 23 e. Court's Discretion to Require Disclosure:............................................................... 23 RESEARCH LEGAL ISSUES .................................................................................... 23 Constitutional Law: ................................................................................................. 24 1. Fourth Amendment Issues .................................................................................... 24 2. Fifth Amendment Protections ............................................................................... 24 3. Sixth Amendment Rights....................................................................................... 24 Statutory Law (Texas Penal Code): ............................................................................ 24 1. Sexual Assault Definitions (Section 22.011) ........................................................... 24 2. Consent Laws ...................................................................................................... 24 3. Statutory Defenses............................................................................................... 24 Case Law (Texas Court Decisions) ............................................................................ 24 1. Precedent on Consent .......................................................................................... 24 2. Rape Shield Laws ................................................................................................. 24 3. Exclusionary Rule................................................................................................. 24 Other Relevant Legal Research Areas (Texas-specific) ................................................ 24 1. Texas Rules of Evidence ........................................................................................ 24 2. Victim Rights Laws (Chapter 56, Texas Code of Criminal Procedure) ........................ 24 3. Sentencing Laws and Guidelines ........................................................................... 24 4. Cultural and Regional Factors ............................................................................... 24 VI. PRETRIAL MOTIONS & HEARINGS ......................................................................... 25 1.

Motion to Suppress Evidence ............................................................................ 25

Motion to Dismiss Charges:............................................................................... 25

Motion for Discovery ......................................................................................... 25

Motion to Compel Discovery: ............................................................................ 25

Motion for Witness List:..................................................................................... 25

Motion for Continuance: ................................................................................... 25 5

Defending Sex Crimes

Motion to Exclude Prior Bad Acts ....................................................................... 25

Motion to Sever Charges or Defendants: ............................................................ 25

Motion for Change of Venue: ............................................................................. 25

10.

Motion to Suppress Identification Evidence: ................................................... 25

11.

Motion in Limine............................................................................................ 26

12.

Motion for Bail Reduction or Modification: ...................................................... 26

VII. DETERMINE STRENGTHS AND WEAKNESSES OF YOUR CASE ................................. 26 1.

Strengths ......................................................................................................... 26

a. Lack of Physical Evidence ..................................................................................... 26 b.Inconsistent Testimony ........................................................................................ 26 c. Alibi Witnesses: ................................................................................................... 26 d.Exculpatory Evidence: .......................................................................................... 26 e. Mistaken Identity:................................................................................................. 26 f. Expert Testimony: ................................................................................................ 26 g. Legal Defenses .................................................................................................... 26 h. Character Witnesses ............................................................................................ 26 2.

Weaknesses..................................................................................................... 27

a. Physical Evidence: ............................................................................................... 27 b.Credible Accuser Testimony ................................................................................. 27 c. Prior Criminal History ........................................................................................... 27 d.Prejudicial Media Coverage .................................................................................. 27 e. Admission of Guilt ................................................................................................ 27 f. Lack of Alibi Witnesses ......................................................................................... 27 g. Expert Testimony Challenges ................................................................................ 27 b.Legal Hurdles ...................................................................................................... 27 3.

EXPLORE AND UNDERSTAND ALL LEGAL DEFENSES .............................................. 27 Consent Defense ..................................................................................................... 28 1.

CONSENT (adult only) ....................................................................................... 28

Express Lack of Consent ................................................................................... 28 6

Incapacity to Consent ....................................................................................... 28

Statutory Lack of Consent ................................................................................. 28

Coerced Consent ............................................................................................. 28

Under the Influence of Drugs or Alcohol ............................................................. 28

Lack of Evidence .............................................................................................. 29

Alibi Defense .................................................................................................... 29

Mistaken Identity .............................................................................................. 29

False Accusation .............................................................................................. 29

False Allegation Chart .............................................................................................. 30 6.

Potential Motives .............................................................................................. 30

a. Revenge or Retaliation .......................................................................................... 31 b.Covering Up Infidelity ........................................................................................... 31 c. Attention or Sympathy Seeking.............................................................................. 31 d.Financial Gain...................................................................................................... 31 e. Mental Health Issues............................................................................................ 31 f. Pressure from Third Parties ................................................................................... 31 g. Misinterpretation or Miscommunication ................................................................ 31 h. Psychological Factors .......................................................................................... 31 Parental Influence or Coaching: ............................................................................... 32 Types of Coaching ................................................................................................... 32 a. Leading or Suggestive Questioning ........................................................................ 32 b.Repetition and Reinforcement: ............................................................................. 32 c. Reward or Punishment ......................................................................................... 32 d.Interference with Memory ..................................................................................... 33 e. Interpersonal Dynamics ....................................................................................... 33 1.

Misinterpretation or Misunderstanding ............................................................... 33

Suggestibility .................................................................................................... 33

Suggestibility vs Coaching ........................................................................................ 33 Suggestibility: ......................................................................................................... 33 7

Defending Sex Crimes

Coaching ................................................................................................................ 34 How Suggestibility Manifests .................................................................................... 35 1. Leading Questions ............................................................................................... 35

Defending Sex Crimes

2. Repetition............................................................................................................ 35 3. Misinformation .................................................................................................... 35 4. Social Pressure .................................................................................................... 35 5. Imaginative Play or Fantasy................................................................................... 35 Play Therapy ............................................................................................................ 35 1. Suggestibility ....................................................................................................... 35 2. Misinterpretation ................................................................................................. 35 3. Repetition and Reinforcement .............................................................................. 36 4. External Influences .............................................................................................. 36 5. Attention-Seeking or Manipulation ........................................................................ 36 6. Revenge or Retaliation .......................................................................................... 36 7. Psychological Factors .......................................................................................... 37 8. External Pressure or Influence .............................................................................. 37 9. Legal or Financial Incentives ................................................................................. 37 OUTSIDE INFLUENCE .............................................................................................. 37 1. Internet and Social Media ..................................................................................... 37 2. Peer Influence ..................................................................................................... 37 3. Smartphones and Devices .................................................................................... 37 4. Online Gaming ..................................................................................................... 37 5. Television and Movies .......................................................................................... 38 6. Printed Material ................................................................................................... 38 7. Curiosity and Exploration...................................................................................... 38 8. Accidental Exposure ............................................................................................ 38 Current Major Social Media Platforms ....................................................................... 38 1.

Lack of Intent ................................................................................................... 39

Factors For a Robust Defense ................................................................................... 40 8

1. Statute of Limitations ........................................................................................... 40 2. Mental Incapacity ................................................................................................ 40 3. Duress or Coercion .............................................................................................. 40 Statute of Limitations ............................................................................................... 41 2. 1997.................................................................................................................... 41 3. 2007.................................................................................................................... 41 4. 2009.................................................................................................................... 41 5. 2019.................................................................................................................... 41 False Confessions ................................................................................................... 41 1. Coercive Interrogation Tactics .............................................................................. 41 2. Mental Health Issues............................................................................................ 42 3. Misinformation or Deception ................................................................................ 42 4. Desire for Leniency or Relief.................................................................................. 42 5. External Pressure or Influence .............................................................................. 42 6. Memory Distortion or Misinterpretation ................................................................. 42 7. Youth and Vulnerability ........................................................................................ 42 8. Fear of Consequences ......................................................................................... 42 9. Ignorance of Rights .............................................................................................. 43 10.

Protective Motives ......................................................................................... 43

IX. TRIAL PREPARATION............................................................................................. 43 Trial Notebook ......................................................................................................... 43 1.

Case Information Section .............................................................................. 43

Legal Research and Case Law Section ............................................................ 43

Witness Information Section: ......................................................................... 43

Evidence Section: ......................................................................................... 44

Trial Strategy and Outlines Section: ................................................................ 44

Motions and Pretrial Filings Section: ............................................................... 44

7. Jury Selection Materials Section ........................................................................... 44 9

Defending Sex Crimes

1. Pre-1997 ............................................................................................................. 41

8. Administrative and Miscellaneous Section ............................................................ 44 Jury selection .......................................................................................................... 44 Challenges for cause ............................................................................................... 45

Defending Sex Crimes

1. Bias or Prejudice .................................................................................................. 45 2. Inability to Follow the Law ..................................................................................... 45 3. Conflict of Interest ............................................................................................... 45 4. Prior Knowledge or Exposure ................................................................................. 45 5. Statutory Disqualifications ................................................................................... 45 6. Language or Communication Barriers .................................................................... 45 Bias or prejudice cause challenges ........................................................................... 46 1. Questioning Potential Jurors: ................................................................................ 46 2. Identifying Biases or Prejudices ............................................................................. 46 3. Challenging Jurors for Cause ................................................................................. 46 4. Statutory Provisions ............................................................................................. 46 5. Case Law Principles ............................................................................................. 46 6. Preserving the Record........................................................................................... 46 7. Peremptory Challenges ........................................................................................ 47 VOIR DIRE ............................................................................................................... 47 1. Understanding of Sex Crimes Laws ....................................................................... 47 2. Attitudes Toward Sexual Assault Allegations ........................................................... 47 3. Stereotypes and Myths About Sexual Assault ......................................................... 47 4. Media Exposure and Pretrial Publicity .................................................................... 47 5. Personal Experiences with Sexual Assault .............................................................. 48 6. Attitudes Toward Law Enforcement and the Legal System ....................................... 48 7. Fairness and Impartiality ...................................................................................... 48 8. Jurors' Ability to Serve ........................................................................................... 48 #METOO MOVEMENT ............................................................................................... 48 1. Increased Awareness and Accountability .............................................................. 48 2. Cultural Shift and Stigma ...................................................................................... 49 10

3. Legal Ramifications .............................................................................................. 49 4. Impact on Reputation and Careers ........................................................................ 49 5. Increased Scrutiny in the Legal System .................................................................. 49 OPENING STATEMENT START .................................................................................... 49 OPENING STATEMENT STYLES ................................................................................. 50 THE MOTH METHOD ................................................................................................ 52 PSYCHODRAMA MINING ......................................................................................... 53 FOCUS GROUPS ..................................................................................................... 55 DIRECT EXAMINATION ............................................................................................. 56 1. Review the Case: ................................................................................................. 56 3. Identify Key Points: ............................................................................................... 56 4. Craft Direct Examination Questions: ...................................................................... 56 5. Practice Questioning Techniques .......................................................................... 56 6. Address Potential Challenges: .............................................................................. 57 7. Discuss Courtroom Etiquette: ............................................................................... 57 8. Review Exhibits and Documents ........................................................................... 57 9. Rehearse Testimony ............................................................................................. 57 10.

Provide Support and Encouragement .............................................................. 57

WITNESSES FOR DEFENSE....................................................................................... 57 1. Defendant ........................................................................................................... 57 2. Character Witnesses ............................................................................................ 57 3. Alibi Witnesses .................................................................................................... 57 4. Expert Witnesses ................................................................................................. 58 5. Eyewitnesses or Corroborating Witnesses ............................................................. 58 6. Rebuttal Witnesses .............................................................................................. 58 To TESTIFY OR Not ................................................................................................... 58 1. Risk of Cross-Examination .................................................................................... 58 2. Potential for Inconsistent Statements.................................................................... 58 11

Defending Sex Crimes

STORYTELLING ....................................................................................................... 49

3. Burden of Proof .................................................................................................... 58 4. Risk of Unintentional Admission ............................................................................ 59 5. Perception by the Jury .......................................................................................... 59 6. Protection Against Prior Bad Acts .......................................................................... 59

Defending Sex Crimes

7. Preserving Defense Strategy ................................................................................. 59 Cross Examination................................................................................................... 59 WITNESSES FOR PROSECUTION .............................................................................. 59 IMPEACHING A WITNESS......................................................................................... 60 PROCESS OF IMPEACHNG ...................................................................................... 62 SUGGESTIBILITY ..................................................................................................... 65 CROSS EXAM .......................................................................................................... 67 CLOSING ARGUMENT ............................................................................................. 68 X.

MITIGATION AND PUNISHMENT ............................................................................ 69 1.

Mental Health Issues ........................................................................................ 69

Substance Abuse or Addiction ........................................................................... 70

Childhood Trauma or Abuse: ............................................................................. 70

Remorse and Acceptance of Responsibility ........................................................ 70

Cooperation with Law Enforcement ................................................................... 70

Lack of Prior Criminal History ............................................................................ 70

Positive Character Traits and Contributions ....................................................... 70

Mental Incapacity or Diminished Capacity.......................................................... 70

Voluntary Disclosure and Admission of Guilt ...................................................... 70

10.

Age and Maturity of the Defendant.................................................................. 70

11.

Cultural or Environmental Factors .................................................................. 71

12.

Expressions of Rehabilitation and Commitment to Change .............................. 71

COLLATERAL CONSEQUENCES ............................................................................... 71 Sex Offender Registration ........................................................................................ 71 XI. PRESERVE THE RECORD ...................................................................................... 73 1.

Object to Evidentiary Errors ............................................................................... 73 12

Raise Legal Objections...................................................................................... 73

Make Offers of Proof ......................................................................................... 73

Object to Improper Arguments .......................................................................... 73

Request Jury Instructions .................................................................................. 73

Make Timely Motions ........................................................................................ 73

Preserve the Record During Sentencing .............................................................. 73

Seek Written Rulings ......................................................................................... 73

File Post-Trial Motions ...................................................................................... 73

10.

Create a Complete Record ............................................................................ 73

11.

Consult with Appellate Counsel ..................................................................... 74

12.

Timely Notice of Appeal ................................................................................. 74

XII. RESEARCH LEGAL ISSUES (SOL, LESSER, INDICTMENT, SUPPRESSION .................. 74 Section 38.37 .......................................................................................................... 74 Summary of Section 38.37 ....................................................................................... 74 1. Admissibility of Evidence ...................................................................................... 74 2. Exception for Specific Purposes ............................................................................ 74 3. Pretrial Hearing .................................................................................................... 74 4. Protective Measures............................................................................................. 75 REGISTERABLE OFFENSES ....................................................................................... 75 Sexual Assault (Texas Penal Code § 22.011) ............................................................... 75 Understand(ING) the Severity of the Charges ............................................................. 76 Texas Sex Criminal Offenses Chart............................................................................ 76

Defending Sex Crimes

Introduction Defending sex crimes cases requires a meticulous and sensitive approach due to the complexity and sensitivity of the issues involved. Here are twelve important things for a criminal defense lawyer to do in defending sex crimes cases:

Defending Sex Crimes

ESTABLISH TRUST WITH CLIENT 1. Active Listening: Take the time to listen attentively to the client's concerns, fears, and questions without interrupting. Demonstrate empathy and understanding of their situation. 2. Empathy and Respect: Show empathy and respect for the client's feelings and experiences. Acknowledge their emotions and validate their concerns, even if you may not agree with them. 3. Transparent Communication: Be honest and transparent about the legal process, potential outcomes, and challenges of the case. Avoid making promises that cannot be kept and provide realistic expectations. 4. Confidentiality: Assure the client of the confidentiality of your conversations and information shared. Uphold attorney-client privilege and maintain discretion about their case. 5. Accessibility: Be accessible and responsive to the client's needs and inquiries. Promptly return phone calls, emails, and messages to demonstrate your commitment to their case. 6. Empowerment: Empower the client by involving them in decision-making processes and keeping them informed about important developments in their case. Encourage questions and collaboration. 7. Competence and Expertise: Demonstrate your competence and expertise in criminal defense law by providing sound legal advice, strategies, and solutions tailored to their case. 8. Cultural Sensitivity: Respect the client's cultural background, beliefs, and values. Be sensitive to cultural differences and adapt your approach accordingly. 9. Consistency: Maintain consistency in your interactions and actions to build reliability and trustworthiness. Follow through on your commitments and promises. 10. Manage Expectations: Set realistic expectations about the legal process, timelines, and potential outcomes. Provide regular updates on the progress of the case to keep the client informed. 11. Professionalism: Conduct yourself with professionalism, integrity, and ethical behavior at all times. Demonstrate dedication to the client's best interests and advocate zealously on their behalf. 14

12. Post-Case Support: Offer support and guidance beyond the resolution of the case, such as referrals to support services or assistance with post-conviction matters if applicable.

Defending Sex Crimes

By prioritizing these approaches, criminal defense lawyers can foster trust and confidence with their clients, laying the foundation for a strong attorney-client relationship built on mutual respect, communication, and collaboration. II. ENSURE CLIENT UNDERSTANDING 1. Assess Mental Status a. Initial Observation: Begin by observing the client's demeanor, appearance, and behavior during your initial interactions. Note any signs of distress, agitation, confusion, or disorientation that may indicate potential mental health issues. b. Communication Skills: Assess the client's ability to communicate effectively. Pay attention to their speech patterns, coherence, and comprehension of legal concepts. Incoherent or tangential speech, difficulty following instructions, or limited vocabulary may suggest cognitive impairment. c. Cognitive Functioning: Engage the client in conversation to evaluate their cognitive functioning. Ask open-ended questions and assess their ability to understand and respond appropriately. Evaluate memory, attention, reasoning, and judgment skills through conversation and simple tasks. d. Awareness of Legal Proceedings: Determine the client's understanding of the legal proceedings and their capacity to participate in their defense. Explain the charges, potential consequences, and procedural aspects of the case, and assess their ability to comprehend and retain this information. e. Mental Health History: Inquire about the client's mental health history, including any diagnosed conditions, past treatments, medications, or hospitalizations. Obtain consent to access relevant medical records if necessary. f. Behavioral Observations: Observe the client's behavior over time, both inside and outside the legal setting. Note any changes in mood, behavior, or functioning that may indicate underlying mental health issues or exacerbation of symptoms. g. Consult with Experts: Consider consulting with mental health professionals, such as psychologists or psychiatrists, for a more comprehensive assessment of the client's mental status. They can conduct formal evaluations, administer standardized tests, and provide expert opinions on diagnosis and treatment recommendations.

Defending Sex Crimes

h. Collaboration with Support Services: Collaborate with support services, such as social workers, counselors, or mental health advocates, to provide additional support and resources to the client as needed. i. Document Findings: Document your observations, assessments, and any concerns about the client's mental status in the case file. Maintain detailed records of conversations, evaluations, and interactions to support your assessment and decision-making process. j. Ethical Considerations: Adhere to ethical guidelines and legal standards when assessing a client's mental status. Respect client confidentiality, obtain informed consent for any evaluations or disclosures, and prioritize the client's best interests in all decisions. 2. Determine Competency a. Establishing Incompetency in Texas Courts: in criminal cases involves demonstrating to the court that the defendant lacks the mental capacity to understand the nature of the charges against them or to assist effectively in their defense. Here are the steps to establish incompetency in Texas courts: b. Evaluation by Mental Health Professionals: Request a mental health evaluation of the defendant by qualified mental health professionals, such as psychiatrists or psychologists, to assess their competency to stand trial. This evaluation may include interviews, psychological testing, and a review of the defendant's mental health history. c. File Motion for Competency Evaluation: File a motion with the court requesting a competency evaluation of the defendant. This motion should outline the reasons for believing that the defendant may be incompetent to stand trial and request a formal assessment by mental health professionals. d. Competency Evaluation Hearing: The court will schedule a competency evaluation hearing to determine whether a formal evaluation is warranted. At the hearing, the defense can present evidence and arguments supporting their motion for a competency evaluation. e. Competency Evaluation: If the court grants the motion for a competency evaluation, the defendant will undergo a comprehensive assessment by mental health professionals. The evaluation will assess the defendant's understanding of the legal proceedings, ability to assist counsel, and overall mental functioning. f. Expert Testimony: Mental health professionals who conduct the competency evaluation may testify at a competency hearing about their findings and conclusions regarding the defendant's competency to stand trial. Their

By following these steps and presenting compelling evidence, the defense can effectively establish incompetency in Texas courts in criminal cases, ensuring that defendants receive fair treatment and access to appropriate mental health services when warranted. 17

Defending Sex Crimes

testimony can provide evidence to support or refute the assertion of incompetency. g. Presentation of Evidence: The defense may present additional evidence, such as medical records, witness testimony, or expert opinions, to support their claim of incompetency. This evidence may corroborate the findings of the competency evaluation or provide additional context regarding the defendant's mental health status. h. Prosecution's Response: The prosecution may present counterarguments or evidence challenging the assertion of incompetency. They may also crossexamine the defense's witnesses, including mental health professionals, to scrutinize their findings and conclusions. i. Court's Decision: Based on the evidence presented during the competency evaluation hearing, the court will make a determination regarding the defendant's competency to stand trial. If the court finds the defendant incompetent, further proceedings may be suspended until competency is restored through treatment or other interventions. j. Treatment for Incompetency: If the defendant is found incompetent, the court may order treatment or placement in a mental health facility to restore competency. The defendant may undergo psychiatric treatment, medication management, or other interventions aimed at addressing their mental health needs. k. Periodic Review Hearings: The court may schedule periodic review hearings to monitor the defendant's progress in restoring competency. At these hearings, the court will assess whether the defendant's mental status has improved and whether they are now competent to stand trial. l. Competency Restoration: If the defendant's competency is restored through treatment, the court may resume criminal proceedings, and the defendant will be deemed competent to stand trial. If competency is not restored within a reasonable period, the court may consider alternative dispositions, such as civil commitment or dismissal of charges. m. Appeals Process: If either party disagrees with the court's determination regarding competency, they may have the right to appeal the decision to a higher court, seeking review of the competency evaluation process and the court's findings.

Defending Sex Crimes

3. Other Mitigating Factors a. Asperger’s/Autism b. Extreme Emotional Disturbance c. Mental Health History d. Youthfulness or Immaturity e. Voluntary Intoxication III.

CONDUCT COMPREHENSIVE INVESTIGATION/GATHER EVIDENCE 1. Gather Initial Information: Begin by obtaining all available information about the allegations, including police reports, witness statements, forensic evidence, and any other relevant documents. Review the charging documents and identify the specific allegations against your client. 2. Interview the Client: Meet with your client to discuss the allegations and gather their version of events. Take detailed notes and ask probing questions to understand their perspective, including any potential defenses or mitigating factors. 3. Identify Witnesses: Determine potential witnesses who may have relevant information about the case, including the alleged victim, any eyewitnesses, law enforcement officers, medical professionals, and others. Interview these witnesses to gather additional information and assess their credibility. 4. Review Evidence: Carefully review all available evidence, including physical evidence such as DNA results, medical records, surveillance footage, and electronic communications. Evaluate the chain of custody for each piece of evidence and identify any potential weaknesses or inconsistencies. 5. Assess Expert Witnesses: If necessary, consult with expert witnesses who can provide specialized knowledge or analysis relevant to the case, such as forensic psychologists, medical professionals, or digital forensics experts. Evaluate their qualifications, expertise, and potential impact on the defense strategy. 6. Investigate the Alleged Victim: Conduct a background investigation of the alleged victim, including their prior statements, social media activity, and any relevant history that may affect their credibility or motives. Look for inconsistencies or contradictions in their accounts of the alleged incident. 7. Explore Defenses and Legal Issues: Consider potential defenses and legal issues that may apply to the case, such as consent, mistaken identity, alibi, statute of limitations, or violations of the defendant's constitutional rights. Analyze the relevant statutes and case law to develop a strategic defense strategy.

Defending Sex Crimes

8. Document Your Findings: Keep detailed records of your investigation, including witness interviews, evidence review, expert opinions, legal research, and any other relevant information. Organize your findings in a clear and concise manner to prepare for trial preparation and potential motions. 9. Consider Plea Negotiations: Based on your investigation and assessment of the case, evaluate the possibility of plea negotiations with the prosecution. Discuss potential plea offers with your client and advise them on the potential benefits and risks of accepting a plea deal versus going to trial. 10. Prepare for Trial: Once you have completed your pretrial investigation, begin preparing for trial by developing a comprehensive trial strategy, preparing witnesses for testimony, drafting motions, and conducting mock trials or simulations to anticipate potential challenges and responses. 11. Critical Steps to Follow: By following these steps, criminal defense lawyers can conduct a thorough pretrial investigation in sex crimes cases to build a strong defense for their clients and ensure the protection of their rights throughout the legal process. f. Grand Jury Packets g. Determine Whether to Take Polygraph h. Determine Whether to Take Psychosexual Evaluation i. Private Investigator: j. Contact Expert Discuss Merits of Defense k. Meet w/Expert & Share Discovery a. Motion/Request to Preserve: ii. Video Recordings iii. Dispatch/911 Calls iv. Physical Evidence v. Evidence to be tested

Defending Sex Crimes

b. Determine if a Grand Jury Packet is needed & prepare c. Prepare and File Request for Discovery (39.14) d. Request for 404b, 609, 38.071, &38.072 e. Motion to Disclose Outcry Witness(es) f. Given Proper Notice? Meet burden? Demand a Hearing. g. Motion for Brady Evidence h. Motion to Disclose Expert Witnesses i. Motion for Daubert Hearing j. Research and Argue Reliability and Relevance k. Request Extraneous Offense Hearing – Especially 38.072 l. Request/Subpoena CPS Records m. Request/ Subpoena Phone Records n. Subpoena School Records o. Subpoena Pediatrician/Doctor Records p. Subpoena Psych Records from Private Psych q. Subpoena Psych Records from Child Advocacy Center r. Subpoena Other Business Records s. Subpoena Personnel Files of State’s Witnesses t. Schedule Discovery Review Meeting u. Bi-Weekly Meetings w/ client – for Trial v. sex cases Research Potential/Lesser Included Offenses w. Research Competency to Testify (if applicable) x. Add Lesser-Included Offenses (Penal Code Definition/Language) to VD & Jury Instruction Tabs y. Review CPS Records z. Review Indictment aa. Research Potential Motion to Quash bb. Research Statute of Limitations Defense cc. Research Motion to Suppress Evidence or Statements dd. File Any Motion to Suppress Evidence or Statements ee. Research Probation Eligibility from Judge or Jury (check date of offense) ff. Obtain Business Records Affidavit gg. Research Motions in Limine hh. File All Motion in Limine ii. Check to make sure all Pre-Trial Motions are Filed Seven (7) Days Before Pre-Trial Hearing jj. File Application for Community Supervision from Jury (can be possible with some lesser included offense) 20

kk. Double Check Review Calendar ll. Business Affidavits & Notices on File 14 Days Before Trial mm. Disclose Defense Experts 20 Days Before Trial nn. Request Experts from State 30 Days Before Trial

Defending Sex Crimes

IV. EVALUATE CREDIBILITY OF PROSECUTION WITNESSES In sex crimes cases, the prosecution may rely on various experts to present evidence and provide testimony to support their case. Some common experts that the prosecution may utilize in sex crimes cases include: 1. Forensic Examiners: Forensic examiners, such as forensic nurses or forensic psychologists, may conduct medical or psychological evaluations of the victim to document physical injuries, collect evidence of sexual assault, and assess the victim's mental state. 2. Sexual Assault Nurse Examiners (SANE): SANEs are specially trained nurses who conduct comprehensive medical exams of sexual assault victims, collect forensic evidence, and provide expert testimony regarding the victim's injuries and the presence of DNA or other biological evidence. 3. Child Advocacy Center (CAC) Personnel: Personnel from Child Advocacy Centers may provide services such as forensic interviews of child victims, coordination of multidisciplinary investigations, and expert testimony regarding child development and the dynamics of child sexual abuse. 4. Child Psychologists or Psychiatrists: Child psychologists or psychiatrists may evaluate child victims to assess the impact of sexual abuse on their mental health, provide therapy or treatment services, and offer expert opinions on the credibility of the child's testimony. 5. Digital Forensic Analysts: Digital forensic analysts may analyze electronic devices, such as computers, smartphones, or social media accounts, to uncover evidence of online grooming, communication with the defendant, or possession of child pornography. 6. Medical Experts: Medical experts, such as gynecologists or urologists, may provide expert testimony regarding physical injuries sustained by the victim, the presence of sexually transmitted infections (STIs), or the medical implications of sexual assault. 7. DNA Analysts: DNA analysts may analyze biological evidence collected from the crime scene, victim, or defendant to identify the presence of DNA and establish a link between the defendant and the alleged sexual assault.

Defending Sex Crimes

8. Criminal Profilers: Criminal profilers may provide expert opinions on offender behavior, patterns of sexual offending, and the likelihood of recidivism based on the characteristics of the crime and the defendant. 9. Victim Advocates: Victim advocates may provide support and assistance to the victim throughout the legal process, including explaining courtroom procedures, accompanying the victim during interviews or testimony, and advocating for their rights. 10. Law Enforcement Officers: Law enforcement officers involved in the investigation may provide expert testimony regarding the collection and preservation of evidence, witness interviews, and the procedures followed during the investigation. 11. Social Workers: Social workers may conduct assessments of the victim's home environment, family dynamics, and support needs, and provide expert testimony on the impact of sexual abuse on the victim's well-being. 12. Psychological Profilers or Behavioral Analysts: Psychological profilers or behavioral analysts may provide expert opinions on offender characteristics, motives, and patterns of behavior based on the details of the case and psychological assessments. 13. 702 Hearing A Rule 702 hearing is an important procedural step in Texas criminal cases, particularly when expert testimony is central to the issues in dispute. It allows the court to carefully evaluate the qualifications, methodology, and reliability of expert witnesses to ensure that only reliable and relevant evidence is presented to the jury at trial. 14. 705 Hearing In a Texas criminal case, there isn't a specific type of hearing referred to as a "705 hearing." However, Rule 705 of the Texas Rules of Evidence addresses the disclosure of facts or data underlying expert opinion testimony. This rule pertains to the extent to which an expert witness must disclose the underlying facts or data upon which their opinions are based. Rule 705 governs the presentation of expert testimony in Texas courts and outlines the procedures for disclosing the underlying facts or data supporting an expert's opinions. Here's a general overview of how Rule 705 operates in a Texas criminal case: a. Expert Testimony with Disclosed Facts or Data: Under Rule 705, if an expert witness has relied on facts or data in forming their opinions, they are not required to disclose those facts or data during their 22

V. RESEARCH LEGAL ISSUES For lawyers defending sex assault cases in Texas, conducting comprehensive legal research is crucial. Here are some top constitutional, statutory, and case law research topics specific to defending sex assault cases in Texas:

Defending Sex Crimes

testimony on direct examination. Instead, the expert may provide an opinion based on those facts or data without disclosing them at that time. b. Disclosure Upon Request: However, if requested by opposing counsel, the party offering the expert testimony must disclose the underlying facts or data to the opposing party's attorney, including any documents or materials relied upon by the expert in forming their opinions. c. Availability for Inspection: Rule 705 further provides that the opposing party's attorney may request to inspect the disclosed facts or data, including any documents or materials relied upon by the expert. The party offering the expert testimony must make these materials reasonably available for inspection and copying. d. Cross-Examination: During cross-examination, the opposing party's attorney may question the expert witness about the disclosed facts or data and challenge the basis of their opinions. Cross-examination allows the opposing party to probe the reliability, accuracy, and completeness of the information upon which the expert relied in forming their opinions. e. Court's Discretion to Require Disclosure: While Rule 705 generally allows expert witnesses to testify without disclosing the underlying facts or data during direct examination, the court may, in its discretion, require the disclosure of such information if it determines that disclosure is necessary to ensure a fair trial or to prevent unfair prejudice to the opposing party. In summary, Rule 705 of the Texas Rules of Evidence governs the disclosure of facts or data underlying expert opinion testimony in Texas criminal cases. While experts are generally not required to disclose such information during direct examination, they must do so upon request by the opposing party, and the disclosed materials must be made available for inspection. This rule ensures transparency and fairness in the presentation and evaluation of expert testimony in Texas courts.

Defending Sex Crimes

Constitutional Law: 1. Fourth Amendment Issues: Researching search and seizure laws in Texas, including the legality of evidence collection in sex assault investigations and challenges to warrants or searches. 2. Fifth Amendment Protections: Studying due process rights and protections against self-incrimination, especially regarding custodial interrogations and Miranda warnings. 3. Sixth Amendment Rights: Understanding the right to counsel, including the scope of representation and the right to confront witnesses. Statutory Law (Texas Penal Code): 1. Sexual Assault Definitions (Section 22.011): Analyzing the Texas Penal Code provisions defining sexual assault, including elements of the offense and degrees of severity. 2. Consent Laws: Exploring Texas laws on consent and the legal standards for proving lack of consent in sexual assault cases. 3. Statutory Defenses: Researching statutory defenses available under Texas law, such as mistake of fact or consent. Case Law (Texas Court Decisions): 1. Precedent on Consent: Reviewing Texas court decisions that interpret and define consent in the context of sexual assault, including factors considered by courts in determining consent. 2. Rape Shield Laws: Studying Texas case law related to rape shield laws, which limit the admissibility of the victim's prior sexual history as evidence. 3. Exclusionary Rule: Examining Texas court rulings on the exclusion of evidence obtained unlawfully or in violation of constitutional rights. Other Relevant Legal Research Areas (Texas-specific): 1. Texas Rules of Evidence: Understanding the rules governing the admissibility of evidence in Texas courts, including rules on character evidence and expert testimony. 2. Victim Rights Laws (Chapter 56, Texas Code of Criminal Procedure): Researching Texas laws protecting the rights of crime victims and their impact on sexual assault cases. 3. Sentencing Laws and Guidelines: Exploring Texas sentencing laws and guidelines applicable to sexual assault convictions, including mandatory minimums and sentencing enhancements. 4. Cultural and Regional Factors: Considering Texas-specific cultural and regional factors that may influence jury attitudes and perceptions in sex assault cases.

By focusing on these constitutional, statutory, and case law research topics specific to Texas, lawyers can effectively navigate the legal landscape and develop strong defense strategies tailored to the jurisdiction's laws and precedents. VI.

Defending Sex Crimes

PRETRIAL MOTIONS & HEARINGS 1. Motion to Suppress Evidence: This motion seeks to exclude certain evidence from being presented at trial, such as statements made by the defendant to law enforcement officers or physical evidence obtained through an unlawful search or seizure. 2. Motion to Dismiss Charges: This motion argues that the charges against the defendant should be dismissed due to insufficient evidence, legal defects in the charging document, or violation of the defendant's constitutional rights. 3. Motion for Discovery: This motion requests that the prosecution provide the defense with copies of all evidence, witness statements, reports, and other materials in the prosecution's possession that are relevant to the case. 4. Motion to Compel Discovery: If the prosecution fails to provide requested discovery materials, the defense may file a motion to compel, asking the court to order the prosecution to provide the requested materials. 5. Motion for Witness List: This motion requests that the prosecution provide a list of witnesses it intends to call at trial, along with a brief summary of each witness's expected testimony. 6. Motion for Continuance: This motion seeks to delay the trial date for reasons such as insufficient time to prepare, the need for additional investigation, or the unavailability of key witnesses or evidence. 7. Motion to Exclude Prior Bad Acts: This motion seeks to prevent the prosecution from introducing evidence of the defendant's prior bad acts or criminal history that is unrelated to the charges in the current case. 8. Motion to Sever Charges or Defendants: If multiple charges or defendants are joined in the same trial, this motion seeks to separate them into individual trials to prevent prejudice or confusion. 9. Motion for Change of Venue: This motion requests that the trial be moved to a different location due to pretrial publicity or concerns about the defendant's ability to receive a fair trial in the current venue. 10. Motion to Suppress Identification Evidence: This motion seeks to exclude identification evidence, such as witness identifications or line-up identifications, that was obtained through suggestive or unreliable procedures.

Defending Sex Crimes

11. Motion in Limine: This motion asks the court to make pretrial rulings on the admissibility of certain evidence or testimony to prevent the prosecution from introducing prejudicial or irrelevant evidence at trial. 12. Motion for Bail Reduction or Modification: If the defendant is being held in custody pending trial, this motion requests a reduction in bail or modification of the conditions of release. VII. DETERMINE STRENGTHS AND WEAKNESSES OF YOUR CASE In a sex assault case, criminal defense lawyers must carefully assess the strengths and weaknesses of the case to develop an effective defense strategy. Here are some potential strengths and weaknesses that defense lawyers may consider: 1. Strengths: a. Lack of Physical Evidence: If there is a lack of physical evidence linking the defendant to the alleged assault, such as DNA or injury evidence, it may weaken the prosecution's case and provide a basis for reasonable doubt. b. Inconsistent Testimony: If the accuser's testimony is inconsistent or lacks credibility, it may undermine the prosecution's case and raise doubts about the defendant's guilt. c. Alibi Witnesses: If the defendant has alibi witnesses who can testify to their whereabouts at the time of the alleged assault, it can provide strong evidence supporting the defendant's innocence. d. Exculpatory Evidence: If there is evidence that supports the defendant's innocence or casts doubt on their guilt, such as surveillance footage, text messages, or witness statements, it can strengthen the defense's case. e. Mistaken Identity: If the defense can show that the accuser mistakenly identified the defendant as the perpetrator of the assault, it can create reasonable doubt and weaken the prosecution's case. f. Expert Testimony: Expert testimony from forensic experts, psychologists, or medical professionals can provide valuable evidence supporting the defense's case, particularly regarding issues such as consent, memory, or trauma. g. Legal Defenses: If there are legal defenses available to the defendant, such as consent, mistaken identity, or lack of evidence, it can strengthen the defense's case and undermine the prosecution's arguments. h. Character Witnesses: If the defendant has witnesses who can testify to their good character or reputation, it can bolster the defense's credibility and undermine any negative perceptions of the defendant.

2. Weaknesses:

EXPLORE AND UNDERSTAND ALL LEGAL DEFENSES As a criminal defense lawyer, defending against sexual assault charges requires a comprehensive strategy that leverages all available legal avenues and challenges the

Defending Sex Crimes

a. Physical Evidence: If there is strong physical evidence linking the defendant to the alleged assault, such as DNA or injury evidence, it can be challenging for the defense to overcome. b. Credible Accuser Testimony: If the accuser's testimony is consistent, credible, and supported by other evidence, such as witness statements or medical findings, it can strengthen the prosecution's case and weaken the defense's arguments. c. Prior Criminal History: If the defendant has a prior criminal history, particularly involving similar offenses, it can be used to undermine their credibility and strengthen the prosecution's case. d. Prejudicial Media Coverage: If the case has received extensive media coverage that portrays the defendant negatively or influences public opinion, it can be challenging for the defense to overcome prejudice and ensure a fair trial. e. Admission of Guilt: If the defendant made incriminating statements to law enforcement or others, it can weaken the defense's case and strengthen the prosecution's arguments. f. Lack of Alibi Witnesses: If the defendant does not have alibi witnesses or cannot provide a credible alibi for their whereabouts at the time of the alleged assault, it can weaken the defense's case and undermine their credibility. g. Expert Testimony Challenges: If the prosecution challenges the credibility or qualifications of the defense's expert witnesses, it can weaken the defense's case and undermine the effectiveness of their testimony. b. Legal Hurdles: If there are legal obstacles or procedural issues that limit the defense's ability to present evidence or arguments, it can weaken their case and strengthen the prosecution's position. By carefully evaluating these strengths and weaknesses, criminal defense lawyers can develop a strategic defense strategy tailored to the specific circumstances of the case and maximize the chances of achieving a favorable outcome for their client.

Defending Sex Crimes

prosecution's case at every opportunity. While each case is unique and requires tailored defense tactics, below are some of the best defenses commonly used in sex assault cases: Consent Defense: Arguing that sexual activity was consensual is one of the primary defenses in many sexual assault cases. This defense aims to undermine the prosecution's assertion that the sexual encounter was non-consensual. Evidence supporting the presence of consent, such as communications between the parties, witness testimony, or the absence of physical force, may be presented to support this defense. 1. CONSENT (adult only) In Texas, lack of consent is a crucial element in determining whether sexual activity constitutes sexual assault. The Texas Penal Code outlines various circumstances that constitute lack of consent. Here are some key types of lack of consent recognized in Texas: a. Express Lack of Consent: This occurs when the victim explicitly communicates that they do not consent to the sexual activity. It can be verbal or non-verbal, such as through physical resistance or attempts to push the perpetrator away. b. Incapacity to Consent: A person is considered unable to consent if they are physically or mentally incapacitated due to factors such as intoxication, unconsciousness, mental disability, or other conditions that render them incapable of understanding the nature of the sexual act or giving voluntary agreement to it. c. Statutory Lack of Consent: Texas law specifies certain situations where consent is deemed legally invalid, regardless of whether the victim explicitly communicates lack of consent. This includes cases where the victim is under a certain age, typically referred to as the "age of consent." In Texas, the age of consent is 17, meaning individuals under 17 are considered unable to legally consent to sexual activity with adults. d. Coerced Consent: Even if a victim does not explicitly resist or say no, if they only engage in sexual activity due to coercion, threats, manipulation, or fear of harm, their consent is not considered valid under Texas law. Coerced consent can involve physical force, verbal threats, psychological pressure, or exploitation of a position of authority or trust. e. Under the Influence of Drugs or Alcohol: If a person is under the influence of drugs or alcohol to the extent that they are unable to give informed and voluntary consent to sexual activity, their consent is not valid. This includes situations where the perpetrator knowingly takes advantage of the victim's impaired state to engage in sexual activity without their genuine consent.

In summary, lack of consent in Texas encompasses various scenarios where individuals are unable to freely and willingly agree to engage in sexual activity. Prosecutors must prove beyond a reasonable doubt that the defendant engaged in sexual activity without the victim's valid consent to secure a conviction for sexual assault.

Defending Sex Crimes

2. Lack of Evidence: Challenging the sufficiency of the evidence presented by the prosecution is a fundamental defense strategy. This may involve questioning the credibility of witnesses, highlighting inconsistencies in the alleged victim's testimony, or presenting evidence that contradicts the prosecution's narrative. Without sufficient evidence to prove the elements of the offense beyond a reasonable doubt, the case may be weakened or dismissed. 3. Alibi Defense: If the accused can provide evidence demonstrating that they were elsewhere at the time of the alleged assault, it can serve as a strong defense. Alibi witnesses, surveillance footage, electronic records, or other corroborating evidence may be used to support this defense and establish the accused's innocence. 4. Mistaken Identity: In cases where identification of the perpetrator is at issue, the defense may argue that the alleged victim misidentified the accused as the perpetrator. Factors such as poor lighting, stress, trauma, or the presence of multiple similar-looking individuals may contribute to misidentification. The defense may present evidence supporting an alternative suspect or challenge the reliability of eyewitness testimony. 5. False Accusation: Asserting that the allegations of sexual assault are false or fabricated is a common defense strategy. This defense may involve demonstrating ulterior motives on the part of the alleged victim, such as revenge, jealousy, or coercion. Evidence of prior false accusations, inconsistent statements, or motive to lie may be presented to support this defense.

Here's a chart outlining types of false allegations in child abuse cases and potential reasons for them: False Allegation Chart

Defending Sex Crimes

Type of False Allegation Fabricated Allegations

Potential Reasons 1. Malicious intent (e.g., revenge, custody disputes) 2. Coercion or pressure from authority figures 3. Attention-seeking behavior 4. Psychological or emotional disturbance

Misinterpreted Behaviors

1. Lack of understanding of normal child behavior 2. Misguided beliefs or biases about child behavior 3. Influence of suggestive questioning or leading interviews 4. Influence of media portrayals of abuse 5. Cultural or societal norms 6. Professional incompetence or negligence 7. Parental anxiety or overprotectiveness 8. Child's desire to please authority figures 9. Memory distortions or confabulations 10. Mental health issues (e.g., anxiety, paranoia) 11. Developmental disabilities or delays 12. Communication difficulties 13. Environmental factors (e.g., stress, trauma)

This chart categorizes false allegations into two main types: fabricated allegations and misinterpreted behaviors. Fabricated allegations involve deliberately false claims made by the accuser, while misinterpreted behaviors involve genuine misunderstandings or misinterpretations of innocent actions as abusive. For each type, potential reasons for the false allegations are provided, ranging from malicious intent and psychological factors to societal influences and communication challenges. 6. Potential Motives False allegations of adult sexual assault or rape can stem from various motives or factors. While it's crucial to approach each case with sensitivity and a presumption of innocence, 30

Defending Sex Crimes

it's also important to recognize that false allegations do occur. Some potential motives for making false allegations in adult sexual assault or rape cases include: a. Revenge or Retaliation: The accuser may have a personal vendetta or desire for revenge against the accused, such as in cases involving disputes or conflicts in relationships, workplace dynamics, or social interactions. b. Covering Up Infidelity: In cases involving extramarital affairs or consensual sexual encounters, the accuser may falsely allege sexual assault or rape to conceal their infidelity or avoid consequences in their personal or professional life. c. Attention or Sympathy Seeking: The accuser may fabricate allegations of sexual assault or rape to garner attention, sympathy, or support from others, either due to underlying psychological issues or a desire for validation or perceived victimhood. d. Financial Gain: In some cases, false allegations may be motivated by financial incentives, such as seeking monetary compensation through civil lawsuits, insurance claims, or victim compensation programs. e. Mental Health Issues: Individuals with certain mental health disorders or personality traits, such as borderline personality disorder or factitious disorder, may fabricate allegations of sexual assault or rape as a manifestation of their psychological issues or to manipulate others. f. Pressure from Third Parties: The accuser may be influenced or pressured by third parties, such as family members, friends, or authorities, to make false allegations for various reasons, including family dynamics, custody disputes, or legal strategies. g. Misinterpretation or Miscommunication: In some cases, allegations of sexual assault or rape may arise from misunderstandings, misinterpretations, or miscommunications between the parties involved, particularly in situations involving alcohol or drug use, impaired judgment, or ambiguous consent. h. Psychological Factors: Psychological factors, such as trauma, dissociation, memory distortion, or suggestibility, may contribute to false allegations in certain cases, particularly when the accuser's perception of events is influenced by emotional or cognitive factors. It's important to approach allegations of sexual assault or rape with caution and conduct thorough investigations to ascertain the truth. While false allegations are relatively rare compared to genuine cases of sexual violence, they can have serious consequences for the accused individual and the criminal justice system as a whole. Therefore, it's essential

Defending Sex Crimes

to consider all possible motives and factors when evaluating the credibility of allegations in adult sexual assault or rape cases. False allegations of child sexual assault or rape can arise from various motives or factors. While it's crucial to approach each case with sensitivity and thorough investigation, it's also important to recognize that false allegations do occur, though they are relatively rare compared to genuine cases of child sexual abuse. Some potential motives for making false allegations in child sexual assault or rape cases include: Parental Influence or Coaching: In some cases, false allegations may be prompted by parental influence or coaching, where one parent or caregiver convinces the child to make false accusations against the other parent or caregiver, often as a result of custody disputes, divorce proceedings, or interpersonal conflicts within the family. In the context of child sexual abuse cases, "coaching" refers to a form of manipulation or influence exerted by a parent, caregiver, authority figure, or other adult on a child to fabricate or embellish allegations of sexual abuse. Coaching can involve leading or suggestive questioning, pressure, manipulation, or inducements aimed at persuading the child to make false accusations against a specific individual. Coaching may occur in various settings, including legal proceedings, forensic interviews, therapy sessions, or interpersonal interactions within the family or community. It can take different forms, such as: Types of Coaching a. Leading or Suggestive Questioning: Adults may ask leading or suggestive questions that imply specific answers or prompt the child to provide desired responses consistent with the adult's agenda. This can result in the child fabricating or embellishing allegations of sexual abuse based on the adult's suggestions. b. Repetition and Reinforcement: Adults may repeatedly question or reinforce the child's allegations of sexual abuse, emphasizing the importance of disclosing details or maintaining consistency in their statements. This can create a sense of pressure or expectation for the child to comply with the adult's narrative. c. Reward or Punishment: Adults may use rewards, praise, or positive reinforcement to encourage the child to disclose allegations of sexual abuse, while withholding affection, attention, or privileges for failing to comply. Conversely, adults may use threats, coercion, or punishment to intimidate or silence the child if they resist or recant their allegations. 32

1. Misinterpretation or Misunderstanding: Children may sometimes make false allegations of sexual abuse due to misinterpretation or misunderstanding of events, particularly in situations involving innocent or non-sexual behaviors that are perceived as inappropriate or harmful by the child. 2. Suggestibility: Children are often highly suggestible and may be influenced by leading or suggestive questioning by adults, particularly during forensic interviews or investigations, leading to false or distorted allegations of sexual abuse. Suggestibility and coaching are both concepts that relate to how children may be influenced or manipulated in the context of allegations of sexual abuse, but they involve different dynamics: Suggestibility vs Coaching Suggestibility: • Suggestibility refers to a child's susceptibility to external influences, such as leading questions, suggestive cues, or misleading information, which can distort their memories, perceptions, or disclosures of alleged events. • Suggestibility can occur unintentionally, as children may be particularly vulnerable to suggestion due to their developmental stage, cognitive abilities, or social dynamics. Factors such as age, language development,

Defending Sex Crimes

d. Interference with Memory: Adults may provide the child with false information, suggestive cues, or distorted memories of alleged events, leading to the child's confusion, confabulation, or misattributed memories. This can result in the child fabricating or embellishing details of sexual abuse that did not actually occur. e. Interpersonal Dynamics: Adults may exploit the child's vulnerability, dependency, or trust in the adult's authority to manipulate or control their behavior, emotions, or disclosures of sexual abuse. This can create a coercive or manipulative dynamic in which the child feels compelled to comply with the adult's instructions or expectations. Coaching in child sexual abuse cases is a serious concern as it can lead to false allegations, miscarriages of justice, and harm to both the accused individual and the child involved. It's essential for investigators, legal professionals, therapists, and other professionals involved in child abuse cases to be vigilant for signs of coaching and conduct thorough, impartial, and sensitive investigations to ascertain the truth and protect the rights and well-being of all parties involved.

Defending Sex Crimes

cognitive maturity, and previous experiences can influence a child's level of suggestibility. • Suggestibility may lead to the child providing inaccurate or unreliable information about alleged incidents of sexual abuse, as they may inadvertently incorporate suggestions or cues from adults or other sources into their narratives. Coaching: • Coaching involves intentional manipulation or influence exerted by an adult, such as a parent, caregiver, or authority figure, to prompt, encourage, or coerce a child into making false or exaggerated allegations of sexual abuse against a specific individual. • Unlike suggestibility, coaching is a deliberate and purposeful act aimed at shaping the child's disclosures or testimony to conform to the adult's agenda or narrative. It often involves repetitive questioning, leading prompts, rewards or punishments, threats, or other forms of manipulation to elicit desired responses from the child. • Coaching may occur in various settings, including legal proceedings, forensic interviews, therapy sessions, or interpersonal interactions within the family or community. It can have serious consequences, leading to false allegations, miscarriages of justice, and harm to both the accused individual and the child involved. In summary, suggestibility refers to a child's susceptibility to external influences that may distort their memories or disclosures, whereas coaching involves intentional manipulation or influence by an adult to prompt false or exaggerated allegations of sexual abuse from the child. Both suggestibility and coaching are important considerations in evaluating the credibility and reliability of allegations of sexual abuse in children. Suggestibility refers to the tendency of individuals, including children, to incorporate external suggestions, cues, or information into their memories, perceptions, beliefs, or behaviors. It reflects the degree to which individuals are influenced by external influences, such as leading questions, suggestive cues, or misleading information, which can shape their understanding of events or experiences, even if those suggestions are inaccurate or false. In the context of child sexual abuse investigations, suggestibility is an important consideration because children may be particularly vulnerable to suggestion due to their developmental stage, cognitive abilities, and social dynamics. Factors such as age, language development, cognitive maturity, and previous experiences can influence a child's level of suggestibility.

Play Therapy Play therapy is a therapeutic approach used with children to help them express their thoughts, feelings, and experiences through play activities. While play therapy can be a valuable tool for children to explore and process their emotions, it is essential to recognize that, like any form of therapy or interaction, there is a potential risk of influencing or distorting children's perceptions or disclosures. While play therapy itself does not inherently lead to false allegations, there are several factors to consider: 1. Suggestibility: Children engaged in play therapy may be susceptible to suggestion, particularly if the therapist introduces or reinforces specific themes, narratives, or interpretations during the therapy sessions. Suggestive questioning or interpretation by the therapist may inadvertently influence the child's disclosures or memories, leading to inaccurate or distorted allegations. 2. Misinterpretation: Children's play behaviors and expressions may be open to interpretation, and therapists may inadvertently misinterpret or assign meaning to the child's actions or statements that are not accurate reflections of the child's experiences or perceptions. This can potentially lead to misunderstandings or miscommunication about the nature of the child's disclosures. 35

Defending Sex Crimes

How Suggestibility Manifests Suggestibility can manifest in various ways, including: 1. Leading Questions: Adults or interviewers may ask questions that suggest specific answers or provide cues about what they want to hear, leading the child to incorporate those suggestions into their responses. 2. Repetition: Repeated questioning or reinforcement of certain details can lead children to believe that those details are important or true, even if they are inaccurate or false. 3. Misinformation: Children may be exposed to misleading or inaccurate information from various sources, such as media, peers, or adults, which can influence their perceptions or memories of events. 4. Social Pressure: Children may feel pressure to conform to expectations or beliefs expressed by adults, peers, or authority figures, leading them to adopt those beliefs or behaviors, even if they are contrary to their own experiences or observations. 5. Imaginative Play or Fantasy: Children's active imaginations and tendency to engage in fantasy play can blur the line between reality and imagination, leading them to incorporate fictional or imagined elements into their narratives.

Defending Sex Crimes

3. Repetition and Reinforcement: Through repeated play sessions, certain themes, narratives, or behaviors may be reinforced or emphasized by the therapist, leading the child to incorporate those elements into their play or narratives, even if they are not reflective of their actual experiences. 4. External Influences: Children engaged in play therapy may be influenced by external factors, such as media, peers, family members, or other adults, which can shape their perceptions or beliefs about certain topics or experiences. These external influences may inadvertently contribute to the child's disclosures or interpretations during play therapy sessions. It's essential for therapists conducting play therapy with children to adhere to ethical guidelines and best practices to minimize the risk of inadvertently influencing or distorting the child's perceptions or disclosures. This includes maintaining neutrality, avoiding suggestive questioning or interpretation, respecting the child's autonomy and boundaries, and conducting thorough assessments to ensure the accuracy and reliability of the child's disclosures. Additionally, collaboration with other professionals involved in the child's care, such as forensic interviewers, child welfare workers, and legal professionals, can help ensure a comprehensive and objective evaluation of the child's disclosures and experiences. Ultimately, the goal of play therapy should be to provide a safe and supportive environment for children to express themselves and process their emotions, while also ensuring the integrity and accuracy of any disclosures related to potential abuse or trauma. It's important to recognize that suggestibility is a natural and common phenomenon, particularly in children, and does not necessarily imply intentional deception or falsehood. However, it underscores the need for careful, unbiased, and sensitive questioning techniques in child sexual abuse investigations to minimize the risk of inadvertently influencing or distorting children's disclosures or memories. Additionally, corroborating evidence and thorough investigation are essential for accurately assessing the credibility and reliability of allegations of child sexual abuse. 5. Attention-Seeking or Manipulation: Some children may fabricate allegations of sexual abuse to gain attention, sympathy, or special treatment from adults, particularly if they perceive that making such allegations will result in positive reinforcement or perceived benefits. 6. Revenge or Retaliation: Children may falsely accuse someone of sexual abuse as a form of revenge or retaliation for perceived wrongdoing, punishment, or discipline, particularly in cases involving strained relationships or conflicts with authority figures, peers, or family members. 36

OUTSIDE INFLUENCE Children can access sex-related material through various channels, both intentionally and unintentionally. Here are some common ways children may come into contact with such material: 1. Internet and Social Media: The internet provides easy access to a wide range of sex-related material, including pornography, explicit websites, chat rooms, and social media platforms. Children may encounter this material while browsing the internet, using social media apps, or searching for information online. 2. Peer Influence: Peers may share or discuss sex-related material with each other, either online or offline, leading to exposure among children who may not have sought out such content on their own. 3. Smartphones and Devices: Many children have access to smartphones, tablets, or other digital devices that can connect to the internet. They may inadvertently or intentionally come across sex-related material while using these devices, either through web browsing, messaging apps, or other online platforms. 4. Online Gaming: Some online gaming platforms or virtual worlds may contain user-generated content, chat features, or other interactive elements that expose children to sex-related discussions, images, or interactions. 37

Defending Sex Crimes

7. Psychological Factors: Children may exhibit symptoms of mental health issues, such as trauma, dissociation, or fantasy proneness, which can lead to false allegations of sexual abuse as a result of confusion, confabulation, or misattributed memories. 8. External Pressure or Influence: Children may be pressured or influenced by adults, such as parents, caregivers, teachers, or law enforcement officials, to make false allegations of sexual abuse, either intentionally or unintentionally, due to their vulnerability, suggestibility, or desire to please authority figures. 9. Legal or Financial Incentives: In rare cases, false allegations of child sexual abuse may be motivated by legal or financial incentives, such as seeking monetary compensation through civil lawsuits, obtaining custody or visitation rights, or accessing victim compensation programs. It's important to approach allegations of child sexual assault or rape with caution, sensitivity, and thorough investigation to determine the credibility and validity of the accusations. While false allegations are relatively rare, they can have serious consequences for both the accused individual and the child involved, underscoring the need for careful consideration of all possible motives and factors in evaluating the veracity of such allegations.

Defending Sex Crimes

Television and Movies: Children may encounter sex-related content while watching television shows, movies, or videos, either on traditional television channels, streaming services, or online platforms. This content may range from mild sexual innuendo to explicit scenes or themes. Printed Material: Sex-related material may also be found in printed form, such as magazines, books, or advertisements, which children may come across in libraries, bookstores, or other public spaces. Curiosity and Exploration: Some children may actively seek out sex-related material out of curiosity or a desire to learn more about sexuality and relationships. This may involve searching for information online, reading books or magazines, or asking questions to peers or adults. Accidental Exposure: Children may accidentally stumble upon sex-related material while searching for unrelated information, typing in incorrect web addresses, or clicking on misleading links or advertisements. Parents, caregivers, educators, and other adults play a crucial role in guiding children's access to sex-related material and helping them navigate these potentially sensitive topics. Open communication, education about internet safety, setting appropriate boundaries and restrictions on device usage, and monitoring children's online activities can all help mitigate the risks associated with exposure to sex-related material. Additionally, teaching children critical thinking skills, media literacy, and healthy attitudes towards sexuality can empower them to make informed decisions and respond appropriately to any sex-related content they encounter.

Current Major Social Media Platforms Certainly! Here is a list of some of the major social media platforms: 1. Facebook 2. Instagram 3. Twitter (x) 4. Snapchat 5. LinkedIn 6. TikTok 7. Pinterest 8. Reddit 9. YouTube 10. WhatsApp 11. Tumblr 12. WeChat 38

1. Lack of Intent: If the accused can demonstrate that they did not have the requisite intent to commit sexual assault, it can serve as a defense. This may involve arguing that any sexual contact was accidental, misunderstood, or misinterpreted by the alleged victim. Evidence of the accused's state of mind, such as communications or actions preceding the alleged assault, may be presented to support this defense. 2. Procedural Defenses: Challenging procedural irregularities or violations of the accused's constitutional rights may lead to the suppression of evidence or dismissal of charges. This may include violations of the Fourth Amendment (unlawful search and seizure), Fifth Amendment (right against selfincrimination), or Sixth Amendment (right to counsel). Effective use of procedural defenses can significantly weaken the prosecution's case. 3. Expert Testimony and Forensic Evidence: Utilizing expert witnesses, such as forensic psychologists, medical professionals, or crime scene analysts, can help challenge the prosecution's evidence and provide alternative interpretations of the facts. Expert testimony regarding factors such as trauma responses, memory reliability, or forensic evidence analysis can be crucial in raising doubt or presenting alternative explanations. It's important to note that the effectiveness of each defense strategy depends on the specific circumstances of the case, the strength of the evidence, and the skillful advocacy of the defense attorney. Crafting a robust defense requires thorough investigation, strategic planning, and meticulous execution to safeguard the rights of the accused and achieve the best possible outcome. 39

Defending Sex Crimes

13. Skype 14. Telegram 15. Discord 16. Viber 17. LINE 18. Kik 19. Flickr 20. Meetup 21. Truth These are just a few examples, and there are many other social media platforms available, each with its own features, user base, and focus. It's important to consider factors such as privacy settings, age restrictions, and community guidelines when using social media platforms, especially for children and teenagers.

Defending Sex Crimes

Factors For a Robust Defense 1. Statute of Limitations: In cases where the statute of limitations applies, the defense may argue that too much time has passed since the alleged offense occurred, and therefore, the prosecution is barred from bringing charges. 2. Mental Incapacity: The defense may assert that the defendant was mentally incapacitated at the time of the alleged sexual assault, rendering them incapable of forming the requisite intent to commit the crimes/ 3. Duress or Coercion: The defense may argue that the defendant engaged in the sexual activity under duress or coercion, meaning they were compelled to act against their will due to threats or intimidation. It's important to note that the availability and effectiveness of these defenses can vary depending on the facts of the case and the applicable laws. Defendants accused of sexual assault should seek the advice of a qualified attorney who can assess the specifics of their case and determine the most appropriate defense strategy. • “On or about” Offense Must have occurred before indictment and within SOL. Prosecutor must prove. • "In or about" is a common legal phrase used in indictments in Texas and elsewhere. Its specific meaning can vary slightly depending on the context, but generally, it serves to provide a degree of flexibility in describing the time frame of an alleged offense. • When a charge includes the phrase "on or about," it means that the prosecution is not required to prove the exact date and time of the alleged offense. Instead, they must establish that the offense occurred within a reasonable proximity to the date specified in the indictment. This flexibility is often necessary because in some cases, the exact timing of an offense may be difficult to determine or prove beyond a reasonable doubt. • For example, if an indictment states that the defendant committed a crime "on or about January 1st," the prosecution may present evidence showing that the offense occurred on January 1st or within a short time frame before or after that date. This allows the prosecution to meet its burden of proof without being strictly bound to a specific date. • In summary, "on or about" in an indictment allows for a degree of flexibility regarding the timing of the alleged offense, providing the prosecution with leeway to prove the case within a reasonable timeframe. Garcia v. State TCDAA

These changes reflect a trend towards extending or eliminating statutes of limitations for sex offenses, particularly those involving child victims, in recognition of the unique challenges these cases present and the importance of holding perpetrators accountable regardless of when the offense occurred. False Confessions False confessions can occur for various reasons, often stemming from psychological, social, or situational factors. Some of the key reasons for false confessions include: 1. Coercive Interrogation Tactics: Law enforcement officers may use aggressive or coercive interrogation techniques, such as prolonged questioning, deception, 41

Defending Sex Crimes

Statute of Limitations The statute of limitations for sex offenses in Texas has undergone significant changes over the years, particularly regarding cases involving child victims. Here's a summary of some key changes: 1. Pre-1997: Prior to 1997, Texas had statutes of limitations for most sexual offenses, including those involving child victims. These limitations typically ranged from three to ten years, depending on the specific offense. 2. 1997: In 1997, Texas passed legislation that eliminated the statute of limitations for sexual assault cases involving child victims. This meant that certain sexual offenses against children could be prosecuted at any time, regardless of when the offense occurred. 3. 2007: The laws regarding statutes of limitations for sex offenses underwent significant changes in 2007 with the passage of Senate Bill 174, which was part of a broader effort to extend or eliminate limitations periods for certain crimes. This bill expanded the elimination of the statute of limitations for sexual offenses against children, including continuous sexual abuse of a young child or children. 4. 2009: In 2009, Texas further extended the statute of limitations for certain sex crimes against children by passing House Bill 8. This bill extended the statute of limitations for aggravated sexual assault, sexual assault, and indecency with a child to the victim's 28th birthday. It also provided for exceptions to this limitation period in cases where DNA evidence becomes available. 5. 2019: In 2019, Texas enacted House Bill 8, which eliminated the statute of limitations for the prosecution of certain sexual offenses against children, including continuous sexual abuse of a young child or children, and provided for the admissibility of certain out-of-court statements made by child victims.

Defending Sex Crimes

threats of punishment, or promises of leniency, to elicit confessions from suspects. These tactics can overwhelm suspects, leading them to falsely confess in an attempt to end the interrogation or alleviate perceived pressure. Mental Health Issues: Individuals with certain mental health conditions, such as intellectual disabilities, cognitive impairments, or psychological vulnerabilities, may be more susceptible to providing false confessions, particularly when subjected to stressful or intimidating interrogation environments. Misinformation or Deception: Suspects may provide false confessions based on misinformation or deceptive tactics employed by law enforcement during interrogations. For example, officers may present false evidence, suggest that incriminating information has been discovered, or misrepresent the seriousness of the charges to induce a confession. Desire for Leniency or Relief: Suspects may falsely confess in the belief that doing so will result in a more favorable outcome, such as avoiding harsher punishment, gaining release from custody, or receiving promises of immunity or reduced charges. This may be particularly common among individuals who are vulnerable, intimidated, or unfamiliar with the legal system. External Pressure or Influence: Suspects may provide false confessions due to external pressure or influence from family members, friends, or other individuals who believe in their guilt or encourage them to admit to the crime, either out of misguided loyalty, coercion, or manipulation. Memory Distortion or Misinterpretation: Suspects may become confused, disoriented, or susceptible to suggestion during interrogations, leading to memory distortion or misinterpretation of events. This can result in suspects inadvertently providing false information or confessing to crimes they did not commit. Youth and Vulnerability: Juveniles and individuals with limited cognitive abilities may be especially prone to providing false confessions, as they may lack the maturity, judgment, or understanding to withstand coercive interrogation tactics, assert their rights, or accurately assess the consequences of confessing. Fear of Consequences: Suspects may falsely confess due to fear of potential consequences, such as physical harm, retaliation, or social stigma, especially in cases involving gang activity, organized crime, or other high-risk environments where the repercussions of maintaining innocence may be perceived as greater than confessing.

IX. TRIAL PREPARATION Trial Notebook A trial notebook is an essential tool for criminal defense attorneys to organize, manage, and present key information and evidence during a trial. It serves as a comprehensive reference guide that helps attorneys stay organized, focused, and prepared throughout the litigation process. While the contents of a trial notebook may vary depending on the specific case and attorney preferences, it typically includes the following parts: 1. Case Information Section: This section provides basic information about the case, including the defendant's name, case number, court jurisdiction, presiding judge, prosecutor's name, and key dates (e.g., trial dates, pretrial hearings). It may also include contact information for relevant parties, such as witnesses, experts, and co-counsel. 2. Legal Research and Case Law Section: The legal research and case law section contains copies of relevant statutes, regulations, court rules, and case law precedents that pertain to the charges, defenses, and legal issues involved in the case. This section may include annotated statutes, legal memoranda, court opinions, and summaries of relevant case law, organized by topic for easy reference. 3. Witness Information Section: This section contains detailed information about potential witnesses, including witness lists, contact information, biographical details, and summaries of anticipated testimony. It may also include witness statements, deposition transcripts, expert reports, and any impeachment materials (e.g., prior inconsistent statements, criminal records) that may be used to challenge witness credibility. 43

Defending Sex Crimes

Ignorance of Rights: Suspects who are unaware of their legal rights, including the right to remain silent, the right to legal counsel, and the presumption of innocence, may be more likely to provide false confessions under duress or coercion during interrogations. 10. Protective Motives: In some cases, suspects may falsely confess to protect someone else, such as a family member, friend, or romantic partner, whom they believe to be responsible for the crime. This may stem from a sense of loyalty, misplaced guilt, or a desire to shield others from harm. It's important to recognize that false confessions can have serious consequences, leading to wrongful convictions, miscarriages of justice, and irreversible harm to innocent individuals. Safeguards such as video recording of interrogations, independent review of confession statements, and improved interrogation practices can help mitigate the risk of false confessions and uphold the integrity of the criminal justice system.

Defending Sex Crimes

4. Evidence Section: The evidence section of the trial notebook includes copies of documentary evidence, physical exhibits, photographs, audio/video recordings, and other tangible items that may be introduced during the trial. Each piece of evidence should be clearly labeled, indexed, and accompanied by a brief description or summary of its relevance to the case. 5. Trial Strategy and Outlines Section: This section contains outlines, timelines, flowcharts, and other visual aids that outline the defense's trial strategy, theory of the case, and anticipated arguments. It may include opening statements, closing arguments, direct examination outlines, cross-examination outlines, and other trial scripts prepared by the defense attorney. 6. Motions and Pretrial Filings Section: The motions and pretrial filings section includes copies of all pretrial motions, pleadings, motions in limine, and other legal documents filed by the defense attorney during the course of the litigation. It may also include responses to motions filed by the prosecution, court orders, rulings, and transcripts of pretrial hearings. 7. Jury Selection Materials Section: This section contains materials related to jury selection, including jury questionnaires, voir dire questions, jury instructions, and jury verdict forms. It may also include notes on prospective jurors, jury profiles, and jury seating charts to assist with jury selection and challenges for cause. 8. Administrative and Miscellaneous Section: The administrative and miscellaneous section includes administrative documents, such as attorneyclient agreements, fee arrangements, correspondence, travel itineraries, and other logistical information related to case management. It may also include checklists, calendars, and task lists to track deadlines, assignments, and action items. By organizing the trial notebook into distinct sections and maintaining meticulous records of case information, legal research, witness testimony, evidence, trial strategy, and administrative matters, criminal defense attorneys can enhance their trial preparation, presentation, and advocacy skills, ultimately improving their chances of achieving a favorable outcome for their clients in court. Jury selection Jury Selection: Carefully select a jury that is impartial and unbiased, while also considering factors such as attitudes towards sex crimes, gender dynamics, and other relevant demographics.

Here are some common challenges for cause in Texas criminal cases: 1. Bias or Prejudice: Either party may challenge a potential juror if they demonstrate a bias, prejudice, or preconceived opinion about the case, the parties involved, or the legal issues at hand. This could include attitudes toward law enforcement, the criminal justice system, or the nature of the charges. 2. Inability to Follow the Law: Jurors must be able to follow the instructions given by the judge and apply the law impartially to the facts presented during the trial. If a potential juror expresses an inability or unwillingness to do so, they may be subject to a challenge for cause. 3. Conflict of Interest: A potential juror may be challenged for cause if they have a personal or professional relationship with any of the parties, witnesses, or attorneys involved in the case that could compromise their ability to be fair and impartial. 4. Prior Knowledge or Exposure: Jurors who have prior knowledge of the case, exposure to media coverage, or access to information that could influence their judgment may be subject to challenge for cause if they cannot set aside their preconceptions and decide the case based solely on the evidence presented in court. 5. Statutory Disqualifications: Texas law imposes certain statutory disqualifications that may render individuals ineligible to serve as jurors in criminal cases. For example, individuals convicted of certain crimes or those under indictment may be disqualified from jury service. 6. Language or Communication Barriers: Potential jurors who have difficulty understanding or communicating in the language used in court proceedings may be challenged for cause if their language barrier impedes their ability to effectively participate in the trial. Challenges for cause are typically addressed by the judge, who evaluates the validity of the challenge based on the specific circumstances presented during jury selection. If the judge grants a challenge for cause, the juror in question is excused from serving on the jury panel. 45

Defending Sex Crimes

Challenges for cause In the state of Texas, challenges for cause in a criminal case refer to the process by which either the prosecution or defense seeks to exclude potential jurors from serving on the jury panel due to a specific reason or bias that could affect their ability to impartially judge the case. These challenges are typically made during jury selection (voir dire) and aim to ensure a fair and impartial jury.

Defending Sex Crimes

However, if the judge denies the challenge, the opposing party may use one of their peremptory challenges to remove the juror without providing a reason. Bias or prejudice cause challenges Establishing juror bias or prejudice on the record to a judge in Texas involves a careful process during jury selection (voir dire). While there isn't a specific statute or case law that outlines the exact steps to establish bias or prejudice, Texas law provides guidelines for conducting voir dire and challenging potential jurors for cause based on bias or other disqualifying factors. Here are the general steps involved, along with relevant statutory provisions and case law principles applicable to establishing juror bias or prejudice in criminal cases in Texas: 1. Questioning Potential Jurors: During voir dire, attorneys for both the prosecution and defense have the opportunity to question potential jurors to assess their suitability for jury service. Attorneys may ask open-ended questions to gauge potential biases or prejudices, as well as questions specific to the case or legal issues involved. 2. Identifying Biases or Prejudices: Attorneys should pay attention to potential jurors' responses during questioning for signs of bias or prejudice. This could include expressions of strong opinions, personal experiences, or attitudes that may affect their ability to be fair and impartial. 3. Challenging Jurors for Cause: If an attorney believes that a potential juror is biased or prejudiced in a way that would prevent them from rendering a fair and impartial verdict, they may challenge the juror for cause. The attorney must articulate the specific basis for the challenge and explain why the potential juror's bias or prejudice would prevent them from serving impartially. 4. Statutory Provisions: While there isn't a specific statutory provision outlining the process for establishing juror bias or prejudice, Texas Code of Criminal Procedure provides guidance on jury selection and challenges for cause. Section 35.16 addresses the grounds for challenges for cause, including bias, prejudice, and statutory disqualifications. 5. Case Law Principles: Texas courts have recognized the importance of ensuring an impartial jury in criminal cases. Case law, such as State v. Rodriguez (2019), emphasizes that challenges for cause based on bias or prejudice must be supported by specific evidence or statements made by potential jurors during voir dire. The judge has discretion to grant or deny challenges for cause based on the facts presented. 6. Preserving the Record: Attorneys should make a clear and specific record of the basis for their challenges for cause, including citing relevant statutory 46

Overall, establishing juror bias or prejudice on the record in Texas criminal cases requires careful questioning of potential jurors during voir dire, supported by relevant statutory provisions, case law principles, and a clear record of the basis for any challenges for cause made by the attorneys involved. VOIR DIRE In a sex crimes case, jury selection (voir dire) is a critical stage of the trial where criminal defense lawyers have the opportunity to shape the composition of the jury and lay the groundwork for a successful defense strategy. During jury selection, defense lawyers should focus on discussing topics that are relevant to the specific allegations and legal issues involved in the case, while also addressing potential biases or prejudices that may impact jurors' ability to be fair and impartial. Here are some of the most important topics for criminal defense lawyers to discuss during jury selection in a sex crimes case: 1. Understanding of Sex Crimes Laws: Assess jurors' understanding of the laws governing sex crimes, including the elements of the offense, burden of proof, and potential penalties. Clarify any misconceptions or misunderstandings jurors may have about the legal standards that apply in sex crimes cases. 2. Attitudes Toward Sexual Assault Allegations: Explore jurors' attitudes and beliefs about sexual assault allegations, including their views on victim credibility, consent, and the presumption of innocence. Identify potential biases or prejudices that may influence jurors' perceptions of the case. 3. Stereotypes and Myths About Sexual Assault: Address common stereotypes, myths, and misconceptions about sexual assault that may influence jurors' perceptions of the case. Challenge preconceived notions and educate jurors about the realities of sexual assault dynamics and victim behavior. 4. Media Exposure and Pretrial Publicity: Determine jurors' exposure to media coverage or pretrial publicity about the case and assess its potential impact on their ability to remain impartial. Explore whether jurors have formed any

Defending Sex Crimes

provisions, case law principles, and specific statements or responses from potential jurors that demonstrate bias or prejudice. This ensures that any rulings on challenges for cause can be properly reviewed on appeal if necessary. 7. Peremptory Challenges: In addition to challenges for cause, attorneys in Texas are also entitled to a certain number of peremptory challenges, which allow them to remove potential jurors without providing a reason. Peremptory challenges can be used strategically to exclude jurors who may exhibit bias or prejudice, even if the bias is not overt or easily demonstrable.

Defending Sex Crimes

opinions or conclusions based on media reports and their willingness to set aside any preconceptions. Personal Experiences with Sexual Assault: Inquire about jurors' personal experiences with sexual assault, whether directly or indirectly, and how those experiences may affect their ability to remain impartial. Sensitively address any potential triggers or biases stemming from jurors' personal histories. Attitudes Toward Law Enforcement and the Legal System: Assess jurors' attitudes toward law enforcement, the criminal justice system, and the reliability of witness testimony and evidence presented in court. Identify any biases or distrust that may impact jurors' evaluations of the evidence. Fairness and Impartiality: Emphasize the importance of fairness, impartiality, and the presumption of innocence in the criminal justice system. Seek jurors who are committed to evaluating the evidence objectively and applying the law impartially, regardless of their personal beliefs or feelings about the case. Jurors' Ability to Serve: Determine jurors' ability to serve on the jury panel for the duration of the trial, considering factors such as scheduling conflicts, personal obligations, and hardship considerations. Ensure that selected jurors are capable of devoting their full attention to the case and rendering a fair verdict.

By addressing these important topics during jury selection, criminal defense lawyers can identify potential biases, educate jurors about relevant legal principles, and ultimately select a jury that is fair, impartial, and receptive to the defense's case in a sex crimes trial. #METOO MOVEMENT The #MeToo Movement started in 2006 when social activist Tarana Burke used the phrase "Me Too" to raise awareness about the prevalence of sexual assault and harassment, particularly among marginalized communities. However, the movement gained widespread attention and momentum in 2017 when actress Alyssa Milano encouraged women to share their experiences of sexual harassment and assault on social media using the hashtag #MeToo. The movement quickly went viral, with millions of people around the world, including both women and men, sharing their stories of abuse and harassment. The #MeToo Movement has had a significant impact on defendants accused of sexual misconduct in several ways: 1. Increased Awareness and Accountability: The movement has brought increased public awareness to the prevalence of sexual harassment and assault in various industries and sectors. Defendants accused of sexual misconduct may face greater public scrutiny and pressure to be held accountable for their actions.

Overall, the #MeToo Movement has sparked important conversations about consent, power dynamics, and accountability in cases of sexual misconduct. While it has provided a platform for survivors to speak out and seek justice, it also presents challenges for defendants accused of sexual offenses, who may face significant social, legal, and personal consequences as a result of allegations brought to light by the movement. OPENING STATEMENT START STORYTELLING Storytelling is a powerful tool for communication, persuasion, and engagement. Effective storytelling techniques can captivate an audience, convey complex ideas, evoke emotions, and inspire action. Here are some of the best storytelling techniques to consider: 1. Know Your Audience: Tailor your storytelling approach to your audience's interests, preferences, and background. Understand their demographics, values, and motivations to create relevant and engaging narratives. 2. Start with a Strong Hook: Begin your story with a compelling opening that grabs the audience's attention and piques their curiosity. Use vivid imagery, provocative questions, or intriguing anecdotes to draw listeners in from the start. 49

Defending Sex Crimes

2. Cultural Shift and Stigma: The #MeToo Movement has contributed to a cultural shift in attitudes towards sexual harassment and assault. Survivors are increasingly empowered to come forward with their stories, challenging the stigma and shame historically associated with being a victim of sexual misconduct. 3. Legal Ramifications: The movement has led to changes in laws and policies related to sexual harassment and assault, including reforms in reporting processes, statutes of limitations, and workplace practices. Defendants may face legal consequences, including criminal charges and civil lawsuits, as a result of allegations brought to light by the #MeToo Movement. 4. Impact on Reputation and Careers: Defendants accused of sexual misconduct may experience significant damage to their reputations and careers, even if they are not criminally convicted. Allegations made public through the #MeToo Movement can have long-lasting consequences, affecting employment opportunities, professional relationships, and social standing. 5. Increased Scrutiny in the Legal System: The #MeToo Movement has led to increased scrutiny of how the legal system handles cases of sexual harassment and assault. Defendants may face heightened public interest, media coverage, and pressure to ensure fair and impartial proceedings.

Defending Sex Crimes

3. Establish a Clear Structure: Organize your story into a coherent structure with a clear beginning, middle, and end. Introduce the main characters, set the scene, build tension or conflict in the middle, and resolve it with a satisfying conclusion. 4. Create Relatable Characters: Develop characters that the audience can empathize with or relate to on a personal level. Provide details about their background, motivations, and struggles to make them more three-dimensional and engaging. 5. Show, Don't Tell: Use descriptive language, sensory details, and vivid imagery to paint a vivid picture in the audience's mind. Show the emotions, actions, and experiences of the characters rather than simply telling the audience what is happening. 6. Build Tension and Conflict: Create tension and conflict within your story to keep the audience engaged and invested in the outcome. Introduce obstacles, challenges, or dilemmas that the characters must overcome to achieve their goals. 7. Use Dialogue Effectively: Incorporate dialogue to bring your characters to life and move the story forward. Use realistic dialogue that reflects the characters' personalities, relationships, and emotions. 8. Include Surprises and Twists: Keep your audience guessing by including unexpected plot twists, surprises, or revelations. Subvert their expectations and challenge their assumptions to keep them engaged and intrigued. 9. Evoke Emotions: Appeal to the audience's emotions by incorporating elements of humor, drama, suspense, or pathos into your story. Use emotional storytelling to create a connection with your audience and evoke empathy, sympathy, or excitement. 10. End with a Strong Conclusion: Finish your story with a memorable conclusion that leaves a lasting impression on the audience. Tie up loose ends, deliver a powerful message or moral, or leave the audience with a thought-provoking question or call to action. By mastering these storytelling techniques and adapting them to your specific context and audience, you can create compelling narratives that resonate with your listeners and leave a lasting impact. OPENING STATEMENT STYLES Opening statements in a legal context serve as an introduction to the case and outline the key points that the attorney intends to prove during the trial. The style of an opening

Defending Sex Crimes

statement can vary based on the nature of the case, the audience, and the attorney's preferences. Here are some common styles of opening statements: 1. Narrative Style: This style involves telling a story to the jury, presenting the case in a compelling and sequential manner. The attorney may begin by setting the scene, introducing the main characters, describing the events leading up to the trial, and building suspense or anticipation for the evidence to come. 2. Logical/Analytical Style: In this style, the attorney presents a logical and analytical overview of the case, focusing on the evidence, legal arguments, and key points that support their position. The attorney may use a structured outline or bullet points to organize their arguments and convey their strategy clearly to the jury. 3. Emotional/Affective Style: This style aims to evoke emotions and empathy from the jury by focusing on the human elements of the case, such as the impact on the victims, families, or other parties involved. The attorney may use vivid language, personal anecdotes, or emotional appeals to connect with the jury on a deeper level. 4. Conversational Style: This style involves speaking to the jury in a conversational, informal tone, as if having a dialogue with them. The attorney may use rhetorical questions, direct engagement with jurors, and a relaxed demeanor to establish rapport and credibility with the jury. 5. Theme-Based Style: In this style, the attorney identifies a central theme or message that ties together the various elements of the case and shapes the narrative of the opening statement. The attorney may use metaphors, analogies, or symbolic imagery to reinforce the theme and underscore its significance throughout the trial. 6. Visual/Auditory Style: This style incorporates visual aids, such as charts, diagrams, photographs, or videos, to enhance the jury's understanding and retention of key information. The attorney may use multimedia presentations or demonstrative evidence to illustrate complex concepts or timelines effectively. 7. Problem-Solution Style: In this style, the attorney presents the case as a problem that needs to be solved, highlighting the issues, challenges, or injustices that the jury must address. The attorney may then propose solutions or resolutions that align with their client's position and legal arguments. 8. Anticipatory Style: This style involves anticipating and preemptively addressing potential arguments or objections from the opposing counsel. The attorney may use the opening statement to debunk misconceptions, clarify ambiguities, or mitigate the impact of unfavorable evidence before it arises during the trial.

Defending Sex Crimes

9. Strategic Style: This style focuses on strategic positioning and persuasion, emphasizing the attorney's theory of the case, strengths of their evidence, and weaknesses of the opposing party's arguments. The attorney may use rhetorical devices, persuasive language, and strategic emphasis to shape the jury's perceptions and set the stage for the trial. 10. Hybrid Style: Attorneys may combine elements of multiple styles to create a customized opening statement that aligns with their case strategy, audience preferences, and personal style. By drawing from different approaches, attorneys can adapt to the specific needs and dynamics of each trial while maximizing their effectiveness in conveying their message to the jury. Ultimately, the choice of opening statement style depends on the attorney's objectives, the nature of the case, and the dynamics of the trial. Regardless of the style used, the primary goal of an opening statement is to set the tone, establish credibility, and lay the foundation for the attorney's case presentation throughout the trial. THE MOTH METHOD The Moth is an organization known for its storytelling events and workshops where individuals share personal, true stories in front of a live audience. The Moth method emphasizes certain key components to craft compelling and engaging stories. While there isn't a strict formula, the following are common elements found in stories told using The Moth method: 1. Hook: Start with a strong opening that grabs the audience's attention and makes them want to hear more. This could be a surprising statement, a provocative question, or an intriguing anecdote. 2. Theme: Identify the central theme or message of your story. This could be a universal truth, a life lesson, or a moral dilemma that resonates with the audience. 3. Stakes: Establish what's at stake in your story. Convey the consequences or outcomes that matter to you or the characters involved. This could be emotional, personal, professional, or even physical stakes. 4. Conflict: Introduce the main conflict or challenge that drives the narrative forward. This could be an internal struggle, a clash of values, or an external obstacle that the protagonist must overcome. 5. Characters: Introduce the characters involved in your story, including yourself and any other individuals who play a significant role. Provide enough detail to make them come alive and connect with the audience.

By incorporating these components into your storytelling using The Moth method, you can create memorable and impactful narratives that resonate with listeners and leave a lasting impression. PSYCHODRAMA MINING Psychodrama, a therapeutic technique that involves role-playing and improvisation to explore emotions, experiences, and conflicts, can be adapted and applied to trial preparation in various ways. Here are some ways in which psychodrama techniques can be used in trial preparation: 1. Witness Preparation: Psychodrama can be used to help witnesses, including victims, expert witnesses, or lay witnesses, prepare for their testimony. By roleplaying different scenarios and interactions that may occur during crossexamination or direct examination, witnesses can become more comfortable and confident in presenting their testimony effectively. 2. Building Empathy and Understanding: Attorneys can use psychodrama techniques to help themselves and their legal team develop empathy and understanding for the perspectives, experiences, and emotions of key players in 53

Defending Sex Crimes

6. Setting: Set the scene by describing the time, place, and atmosphere in which the events of your story take place. Use descriptive language to paint a vivid picture and transport the audience into the story's world. 7. Action: Move the story forward with a series of events or actions that build tension, suspense, or momentum. Show how the characters respond to the conflict and make decisions that drive the plot. 8. Resolution: Bring the story to a satisfying conclusion by resolving the conflict or addressing the central theme. Offer closure for the audience and leave them with a sense of insight, reflection, or emotional impact. 9. Emotion: Infuse your story with emotion to engage the audience on a deeper level. Share your authentic feelings and vulnerabilities, and allow the audience to connect with the human experience behind the narrative. 10. Authenticity: Be true to yourself and your story. Share personal experiences, perspectives, and insights that are genuine and authentic to you. Avoid embellishment or exaggeration, and strive for honesty and sincerity in your storytelling. 11. Delivery: Pay attention to your delivery style, including tone of voice, pacing, gestures, and facial expressions. Practice speaking naturally and confidently, and maintain eye contact with the audience to enhance connection and engagement.

Defending Sex Crimes

the case, including clients, witnesses, jurors, and even opposing parties. By stepping into the shoes of others and exploring their motivations, fears, and vulnerabilities, attorneys can gain insight into how best to communicate with and persuade different individuals involved in the trial. 3. Developing Case Theory and Strategy: Psychodrama can be used as a creative tool for brainstorming and developing case theory, strategy, and themes. Attorneys can role-play different scenarios, arguments, and lines of questioning to test their theories, anticipate potential challenges, and identify strengths and weaknesses in their case presentation. 4. Enhancing Communication Skills: Psychodrama exercises can improve attorneys' communication skills, including active listening, empathy, nonverbal communication, and persuasive speaking. By practicing these skills in a supportive and collaborative environment, attorneys can become more effective communicators both inside and outside the courtroom. 5. Addressing Emotional Blocks or Trauma: For clients who have experienced trauma or emotional distress related to their legal case, psychodrama techniques can provide a safe and therapeutic space to explore and process their emotions. Attorneys can work with clients to role-play past events, express their feelings, and develop coping strategies to manage stress and anxiety during the trial process. 6. Preparing Opening and Closing Statements: Attorneys can use psychodrama techniques to rehearse and refine their opening and closing statements. By embodying the emotions, intentions, and rhetoric of their arguments, attorneys can deliver more compelling and persuasive presentations that resonate with the jury. 7. Mitigating Bias and Prejudice: Psychodrama exercises can help attorneys and jurors recognize and address their own biases, prejudices, and preconceptions that may impact their decision-making in the trial. By engaging in perspectivetaking exercises and exploring different viewpoints, participants can become more aware of their implicit biases and work towards fair and impartial judgment. Overall, psychodrama techniques can serve as valuable tools for trial preparation, helping attorneys and legal teams enhance their communication skills, develop case strategy, build empathy and understanding, and navigate the emotional complexities of the legal process. However, it's essential for attorneys to work with trained facilitators or therapists experienced in psychodrama techniques to ensure the safety, effectiveness, and ethical appropriateness of using these methods in a legal context. 54

Defending Sex Crimes

FOCUS GROUPS Professional focus groups for trial preparation involve assembling a representative sample of individuals who serve as mock jurors to evaluate the strengths and weaknesses of a case, provide feedback on trial strategies, and help attorneys anticipate juror reactions and attitudes. These focus groups typically consist of individuals who closely resemble the demographics of the actual jury pool for the trial. Here's how professional focus groups for trial preparation typically work: 1. Selection of Participants: Participants are carefully selected to mirror the demographics of the anticipated jury pool, including factors such as age, gender, ethnicity, socioeconomic status, occupation, and education level. The goal is to create a diverse group that reflects the composition of the community where the trial will take place. 2. Case Presentation: Attorneys present the key facts, evidence, and legal arguments of the case to the focus group participants, typically through a combination of written materials, oral presentations, and visual aids. The presentation may include opening statements, witness testimony summaries, exhibits, and other relevant information. 3. Group Discussion and Deliberation: After reviewing the case materials, participants engage in facilitated discussions and deliberations to analyze the case from different perspectives, identify key issues, and express their opinions and reactions. The facilitator guides the discussion, encourages participation from all participants, and ensures that diverse viewpoints are considered. 4. Feedback and Evaluation: Participants provide feedback on various aspects of the case, including the credibility of witnesses, the strength of the evidence, the persuasiveness of arguments, and the effectiveness of trial strategies. Attorneys use this feedback to refine their case presentation, anticipate potential challenges, and develop strategies to address juror concerns. 5. Insight and Analysis: Throughout the focus group session, attorneys and legal consultants observe and analyze participant reactions, body language, and verbal responses to gain insights into juror attitudes, biases, and decisionmaking processes. This information helps attorneys tailor their trial strategy to resonate with the actual jury during the trial. 6. Post-Session Debriefing: After the focus group session concludes, attorneys and legal consultants debrief and discuss the findings, insights, and recommendations generated during the session. They identify key takeaways, areas for improvement, and actionable strategies to enhance the case presentation and maximize the chances of success at trial.

Defending Sex Crimes

Benefits of Focus Groups Professional focus groups for trial preparation offer several benefits, including: • Providing a realistic simulation of the trial environment and juror dynamics. • Offering valuable feedback and insights from diverse perspectives. • Identifying potential strengths and weaknesses of the case. • Helping attorneys refine trial strategies and arguments. • Enhancing attorney-client communication and collaboration. • Increasing attorney confidence and preparedness for trial. Overall, professional focus groups are a valuable tool for trial preparation, allowing attorneys to gain valuable insights, refine their case presentation, and maximize their chances of success in the courtroom. DIRECT EXAMINATION Preparing witnesses for direct examination is essential to presenting a strong case in trial. Here are the steps to effectively prepare your witnesses for direct examination: 1. Review the Case: Begin by thoroughly reviewing the case with your witness, including the relevant facts, legal issues, and the purpose of their testimony. Ensure that the witness understands their role in the case and the importance of their testimony to the defense. 2. Provide your witness with an overview of the direct examination process, including the types of questions they can expect to be asked, the format of the questioning, and the goal of their testimony in supporting the defense's case theory. 3. Identify Key Points: Identify the key points that you want the witness to convey during their direct examination. Focus on eliciting testimony that supports the defense's theory of the case, establishes relevant facts, and addresses potential weaknesses in the prosecution's case. 4. Craft Direct Examination Questions: Prepare a list of direct examination questions designed to elicit the desired testimony from the witness. Craft questions that are clear, open-ended, and focused on specific topics or issues relevant to the case. Avoid leading questions that suggest the desired answer to the witness. 5. Practice Questioning Techniques: Practice questioning techniques with your witness to ensure that they are comfortable and confident in their responses. Encourage the witness to speak clearly, maintain eye contact with the jury, and provide concise and coherent answers to each question. 56

WITNESSES FOR DEFENSE In sex crimes cases, the defense typically calls various witnesses to testify in support of their case and challenge the prosecution's allegations. While the specific witnesses can vary depending on the circumstances of the case and the defense strategy employed, here are some common types of witnesses that the defense may call in sex crimes cases: 1. Defendant: The accused individual is often the primary witness for the defense. The defendant's testimony may include their version of events, their relationship with the alleged victim, any defenses they wish to assert, and any mitigating factors relevant to the case. 2. Character Witnesses: The defense may call witnesses who can testify about the defendant's character, reputation, and prior behavior. These witnesses may include friends, family members, colleagues, employers, or others who can provide insight into the defendant's moral character and credibility. 3. Alibi Witnesses: If the defendant has an alibi for the time of the alleged offense, the defense may call witnesses who can corroborate the defendant's whereabouts and activities during the relevant time period. These witnesses 57

Defending Sex Crimes

6. Address Potential Challenges: Anticipate potential challenges or areas of vulnerability in the witness's testimony, such as inconsistencies, gaps in memory, or prior statements that may be used to impeach their credibility. Prepare the witness to address these challenges effectively during direct examination. 7. Discuss Courtroom Etiquette: Review courtroom etiquette and procedures with your witness, including how to address the judge, attorneys, and jury members respectfully. Emphasize the importance of remaining composed, professional, and truthful while testifying. 8. Review Exhibits and Documents: If the witness will be referring to exhibits or documents during their testimony, review these materials with the witness in advance. Ensure that the witness is familiar with the contents of the exhibits and knows how to reference them effectively during direct examination. 9. Rehearse Testimony: Conduct mock direct examinations with your witness to simulate the trial environment and practice their testimony under realistic conditions. Provide feedback on their performance, and make any necessary adjustments to improve clarity, coherence, and effectiveness. 10. Provide Support and Encouragement: Offer support and encouragement to your witness throughout the preparation process. Reassure them of their importance to the case and express confidence in their ability to testify effectively on behalf of the defense.

Defending Sex Crimes

may include family members, friends, coworkers, or others who can testify to the defendant's presence elsewhere. 4. Expert Witnesses: Similar to the prosecution, the defense may call expert witnesses to provide specialized knowledge or analysis relevant to the case. These experts may include forensic psychologists, medical professionals, forensic scientists, or others who can offer opinions on issues such as memory reliability, forensic evidence interpretation, or the dynamics of sexual assault. 5. Eyewitnesses or Corroborating Witnesses: The defense may call witnesses who observed relevant events or interactions surrounding the alleged offense and can provide testimony that supports the defense's version of events or challenges the prosecution's case. 6. Rebuttal Witnesses: In response to the prosecution's case, the defense may call rebuttal witnesses to challenge the credibility or reliability of the prosecution's witnesses, evidence, or arguments. These witnesses may provide testimony that contradicts or undermines key aspects of the prosecution's case. These are some examples of the types of witnesses that the defense may call in sex crimes cases. The specific witnesses and their testimony will depend on the unique facts and circumstances of each case, as well as the defense strategy employed to challenge the prosecution's allegations and secure a favorable outcome for the defendant. To TESTIFY OR Not Deciding whether a defendant should testify in a criminal trial is a critical strategic decision that depends on various factors specific to the case. While there are situations where it may be advantageous for a defendant to testify, there are also significant risks and considerations that weigh against it. Here are some of the top reasons a defendant may choose not to testify in a criminal trial: 1. Risk of Cross-Examination: Testifying exposes the defendant to rigorous cross examination by the prosecution, during which they may face aggressive questioning designed to undermine their credibility, poke holes in their testimony, or elicit damaging admissions. 2. Potential for Inconsistent Statements: If the defendant's testimony contradicts previous statements they made to law enforcement, during pretrial proceedings, or in other contexts, it can undermine their credibility and raise doubts about their honesty and reliability. 3. Burden of Proof: In many criminal trials, the burden of proof rests with the prosecution, and the defendant is not required to prove their innocence. By

Ultimately, the decision of whether to testify in a criminal trial is highly individualized and should be made in consultation with experienced legal counsel who can assess the specific circumstances of the case, weigh the potential risks and benefits, and advise the defendant on the best course of action to achieve the most favorable outcome. Cross Examination Cross-Examination: Conduct effective cross-examination of prosecution witnesses, including the accuser, to challenge their credibility, highlight inconsistencies, and undermine the prosecution's case. WITNESSES FOR PROSECUTION In sex crimes cases, the prosecution typically calls various witnesses to testify to establish the elements of the offense and support their case. While the specific witnesses can vary depending on the circumstances of the case, here are some common types of witnesses that the prosecution may call in sex crimes cases: 1. Victim/Witness: The alleged victim of the sexual assault or abuse is often the primary witness for the prosecution. Their testimony is crucial in providing a firsthand account of the alleged incident, including details of the assault, the perpetrator's identity, and any relevant circumstances surrounding the offense.

Defending Sex Crimes

testifying, the defendant may inadvertently shift the burden onto themselves to convince the jury of their innocence, which can be challenging to do. 4. Risk of Unintentional Admission: Testifying increases the risk that the defendant may inadvertently make statements or admissions that are damaging to their case, either due to misunderstanding questions, memory lapses, or other factors. 5. Perception by the Jury: Jurors may have preconceived biases or expectations about defendants who testify in their own defense. Some jurors may interpret the defendant's decision not to testify as an admission of guilt, while others may view their testimony skeptically or with suspicion. 6. Protection Against Prior Bad Acts: If the defendant has a prior criminal record or history of misconduct that could be introduced as evidence if they testify, they may choose not to testify to avoid opening the door to damaging evidence that could prejudice the jury against them. 7. Preserving Defense Strategy: In some cases, the defense strategy may be better served by relying on other evidence, witnesses, or legal arguments to raise reasonable doubt or challenge the prosecution's case, rather than risking the uncertainties associated with the defendant's testimony.

Defending Sex Crimes

2. Law Enforcement Officers: Police officers or detectives involved in the investigation of the case may testify to provide details about the initial report, interviews conducted with the victim and witnesses, evidence collection, and any statements made by the defendant during the investigation. 3. Medical Professionals: Sexual Assault Nurse Examiners (SANEs), forensic nurses, or other medical professionals who examined the victim following the alleged assault may testify about their findings, including any physical injuries, DNA evidence collected, or other forensic evidence relevant to the case. 4. Expert Witnesses: The prosecution may call expert witnesses, such as forensic psychologists, forensic pathologists, or forensic scientists, to provide specialized knowledge or analysis relevant to the case. For example, an expert may testify about the dynamics of sexual assault, the effects of trauma on memory and behavior, or the interpretation of forensic evidence. 5. Eyewitnesses or Corroborating Witnesses: In some cases, the prosecution may call eyewitnesses or corroborating witnesses who observed relevant events or interactions surrounding the alleged assault. These witnesses may provide additional context or support for the victim's testimony. 6. Character Witnesses: In cases where relevant, the prosecution may call witnesses to testify about the defendant's character, prior acts, or patterns of behavior that are consistent with the allegations of sexual misconduct. These are just a few examples of the types of witnesses that the prosecution may call in sex crimes cases. The specific witnesses and their testimony will depend on the unique facts and circumstances of each case, as well as the legal strategies employed by the prosecution to prove their case beyond a reasonable doubt. IMPEACHING A WITNESS In a legal context, impeaching a witness refers to challenging the credibility or reliability of their testimony. There are several ways to legally impeach a witness during crossexamination in a trial. These methods may vary based on jurisdiction and court rules, but common techniques include: 1. Prior Inconsistent Statements: The attorney may introduce prior statements made by the witness that are inconsistent with their current testimony. This could include statements made during earlier depositions, interviews, or court proceedings. The attorney may use the prior statements to undermine the witness's credibility and suggest that they are not telling the truth. 2. Bias or Motive to Lie: The attorney may attempt to establish that the witness has a bias or motive to lie or distort the truth. This could involve demonstrating a 60

Defending Sex Crimes

personal relationship or financial interest that could influence the witness's testimony. By highlighting the witness's potential bias, the attorney seeks to cast doubt on the reliability of their testimony. Character for Truthfulness or Untruthfulness: The attorney may question the witness about their reputation for truthfulness or untruthfulness in the community. This could involve asking about prior acts of dishonesty, criminal convictions, or other evidence suggesting a lack of credibility. The attorney may seek to impeach the witness by showing that they have a history of dishonesty or deceit. Contradictions in Testimony: The attorney may point out inconsistencies or contradictions within the witness's own testimony. This could involve highlighting discrepancies between the witness's current testimony and their prior statements, as well as inconsistencies in their recollection of events or details. By exposing inconsistencies, the attorney aims to undermine the witness's credibility and reliability. Lack of Personal Knowledge: The attorney may challenge the witness's firsthand knowledge or perception of the events in question. This could involve questioning the witness about their ability to see, hear, or otherwise perceive the relevant details of the incident. If the witness lacks personal knowledge of key facts, their testimony may be deemed less reliable. Hostile Witness: If a witness becomes hostile or uncooperative during crossexamination, the attorney may seek permission from the court to treat the witness as hostile. This allows the attorney to ask leading questions and challenge the witness more aggressively, potentially undermining their credibility in the eyes of the jury. Demonstrating Inconsistencies with Other Evidence: The attorney may highlight inconsistencies between the witness's testimony and other evidence presented in the case. This could involve pointing out discrepancies between the witness's account and physical evidence, documentary evidence, or testimony from other witnesses. By showing that the witness's testimony is at odds with other evidence, the attorney may weaken its credibility. Refreshing Recollection: If a witness claims to have forgotten certain details or events, the attorney may attempt to refresh the witness's memory by presenting them with documents, records, or other items that may jog their recollection. If the witness's memory is refreshed in a way that contradicts their current testimony, the attorney may impeach them by pointing out the inconsistency.

Defending Sex Crimes

These are some of the common methods used to legally impeach a witness in a trial. It's important for attorneys to adhere to the rules of evidence and court procedures when impeaching witnesses, and to exercise caution to avoid unduly prejudicing the jury or violating the witness's rights. PROCESS OF IMPEACHNG The process of impeaching a witness involves challenging the credibility or reliability of their testimony during cross-examination in a trial. Here is a step-by-step guide to the process of impeaching a witness: Step-by-Step Guide Process of Impeaching a Witness 1. Cross-Examination: Impeaching a witness typically occurs during crossexamination, which is the phase of the trial where the opposing party's attorney questions the witness who has already testified during direct examination by their own attorney. 2. Establishing a Foundation: Before impeaching the witness, the attorney must lay a foundation by establishing a basis for questioning the witness's credibility. This could involve asking preliminary questions to establish the witness's background, relationship to the case, and familiarity with the events in question. 3. Selecting Impeachment Methods: The attorney selects one or more methods of impeachment based on the specific circumstances of the case and the weaknesses in the witness's testimony. Common methods of impeachment include introducing prior inconsistent statements, demonstrating bias or motive to lie, highlighting contradictions in testimony, questioning the witness's character for truthfulness or untruthfulness, showing lack of personal knowledge, or refreshing recollection. 4. Challenging the Witness's Credibility: The attorney challenges the witness's credibility by questioning them about their prior statements, actions, motives, or biases that may affect their testimony. This may involve confronting the witness with contradictory evidence, prior inconsistent statements, or other facts that undermine their reliability. 5. Presenting Evidence: If available, the attorney presents evidence to support the impeachment, such as prior statements, records, documents, or testimony from other witnesses. This evidence may be introduced through questioning or through exhibits entered into the record. 6. Conducting Cross-Examination: The attorney conducts cross-examination by asking the witness pointed questions designed to expose inconsistencies, contradictions, biases, or other weaknesses in their testimony. The attorney 62

By following these steps, attorneys can effectively impeach witnesses during crossexamination and challenge the credibility of their testimony in a trial. It's essential for attorneys to prepare thoroughly, use sound judgment, and exercise discretion when impeaching witnesses to maximize their effectiveness in court. Overall, understanding the role of SANE nurses in sexual assault cases is essential for criminal defense lawyers in Texas. It involves recognizing their expertise in forensic examination, the documentation of evidence, their potential role as expert witnesses, and their interactions with survivors. Effectively navigating interactions with SANEs and their testimony can be critical in building a robust defense strategy and advocating for your client's rights in court. When a criminal defense attorney is tasked with attacking a forensic interview conducted with an alleged victim or witness in a sex crime case, they may employ various strategies to challenge the reliability, credibility, and admissibility of the interview. Here are some common tactics a defense attorney may use to attack a forensic interview:

Defending Sex Crimes

may use leading questions, hypothetical scenarios, or confrontational tactics to challenge the witness's account. 7. Responding to Objections: The opposing party's attorney may object to certain questions or lines of inquiry during cross-examination. The trial judge decides whether to sustain or overrule the objections, and the attorney must adapt their questioning accordingly. 8. Adapting Strategies: Depending on the witness's responses and the effectiveness of the impeachment methods used, the attorney may need to adapt their strategies during cross-examination. This could involve redirecting questioning, refocusing on key points, or revisiting earlier lines of inquiry. 9. Maintaining Professionalism: Throughout the impeachment process, the attorney must maintain professionalism and adhere to court rules and procedures. They should avoid making inflammatory statements, badgering the witness, or engaging in conduct that could prejudice the jury or undermine the integrity of the trial. 10. Effect on Jury: The attorney considers the potential impact of the impeachment on the jury and strategically leverages the weaknesses in the witness's testimony to support their case theory and persuade the jury to reach a favorable verdict.

Defending Sex Crimes

1. Challenging Interview Techniques: Criticizing the Interviewer's Approach: The defense attorney may scrutinize the interviewer's techniques, such as leading questions, suggestive language, or coercive tactics, that could potentially influence the interviewee's responses. Identifying Bias or Prejudgment: The defense attorney may allege that the interviewer had a bias or preconceived notion regarding the case or the accused, leading to biased questioning or selective interpretation of the interviewee's statements. Questioning Compliance with Best Practices: The defense attorney may question whether the forensic interview followed established best practices and guidelines for interviewing alleged victims or witnesses, such as those outlined by the National Children's Advocacy Center or other relevant authorities. 2. Assessing Interview Reliability: Highlighting Inconsistencies: The defense attorney may identify inconsistencies or contradictions in the interviewee's statements across multiple interviews or with other evidence in the case, casting doubt on the reliability and accuracy of the interview. Pointing Out Leading or Coerced Responses: The defense attorney may argue that the interviewer's questioning style or suggestive prompts coerced or led the interviewee into providing responses that may not accurately reflect their true experiences or memories. Examining Interviewer's Credentials: The defense attorney may question the interviewer's qualifications, training, or experience in conducting forensic interviews, particularly if they lack expertise in dealing with the specific circumstances or dynamics of the case. 3. Presenting Alternative Explanations: Proposing Alternative Interpretations: The defense attorney may offer alternative explanations for the interviewee's statements, behavior, or demeanor during the forensic interview, suggesting innocent or non-criminal explanations for the alleged conduct. Highlighting External Influences: The defense attorney may argue that external factors, such as pressure from family members, law enforcement, or other authority figures, influenced the interviewee's responses or willingness to disclose information during the interview.

In sum, attacking a forensic interview in a sex crime case requires a careful examination of the interview process, the interviewer's techniques, the interviewee's statements, and the overall reliability and admissibility of the interview. By employing strategic challenges and presenting alternative narratives, the defense attorney seeks to undermine the prosecution's case and protect the defendant's rights in court. SUGGESTIBILITY Suggestibility in child witnesses refers to their susceptibility to external influences, such as leading questions, suggestive language, or social pressure, which may distort their perceptions, memories, or statements during forensic interviews or testimony in criminal cases. Children are particularly vulnerable to suggestibility due to their developmental stage, cognitive immaturity, and limited ability to resist suggestive or leading questioning techniques. Understanding suggestibility in child witnesses is crucial for evaluating the reliability and credibility of their statements and ensuring fair treatment in the criminal justice system. Here are some key factors contributing to suggestibility in child witnesses: 1. Developmental Immaturity: Children's cognitive and linguistic abilities are still developing, making them more susceptible to suggestion and misunderstanding during interviews or interactions with authority figures, such as law enforcement officers, attorneys, or forensic interviewers. 2. Compliance and Obedience: Children may be more inclined to comply with perceived authority figures, such as adults in positions of power, and may provide responses they believe are expected or desired by the interviewer, even if those responses are inaccurate or misleading.

Defending Sex Crimes

4. Challenging Admissibility: Raising Evidentiary Objections: The defense attorney may raise objections to the admissibility of the forensic interview based on relevancy, hearsay, authentication, or other evidentiary grounds, particularly if the interview does not meet the requirements for admission under applicable rules of evidence. 5. Seeking Exclusion or Limitation: The defense attorney may file motions to exclude or limit the use of the forensic interview at trial, arguing that its prejudicial effect outweighs its probative value or that its admission would violate the defendant's constitutional rights.

Defending Sex Crimes

3. Social Desirability Bias: Children may be motivated to please or conform to social expectations, leading them to provide responses that they believe are socially desirable or acceptable, rather than accurately reflecting their experiences or memories. 4. Leading Questions and Suggestive Techniques: Interviewers may unintentionally or intentionally use leading questions, suggestive prompts, or repeated questioning techniques that influence the child's responses, leading to the adoption of false memories or narratives that align with the interviewer's expectations. 5. Reconstructive Memory Processes: Children's memories are malleable and subject to reconstruction over time, particularly in response to suggestive questioning or exposure to misinformation. This can result in the creation of false memories or the distortion of actual events. 6. Peer Influence and Social Context: Children may be influenced by peer pressure or social dynamics within the forensic interview setting, such as the presence of other witnesses, family members, or authority figures, which can impact the accuracy and reliability of their statements. Addressing suggestibility in child witnesses requires careful consideration of the interview process, the techniques employed by interviewers, and the child's developmental characteristics. To mitigate suggestibility and enhance the reliability of child witness testimony, forensic interviewers and legal professionals should adhere to best practices for interviewing child witnesses, including: Using open-ended, non-leading questions to elicit information. Avoiding suggestive language or prompts that could influence the child's responses. Ensuring interviews are conducted in a supportive and non-coercive environment. Providing age-appropriate explanations and ensuring the child's understanding of the interview process. • Documenting the interview process accurately and transparently to facilitate later evaluation and analysis. By recognizing and addressing suggestibility in child witnesses, legal professionals can promote the fair and accurate administration of justice while safeguarding the rights and well-being of child witnesses involved in criminal cases. • • • •

Defending Sex Crimes

CROSS EXAM Preparing to cross-examine a witness is a crucial aspect of trial strategy for attorneys. Here are the steps to effectively prepare for cross-examination: Review the Witness's Statements: Carefully review any statements, depositions, or prior testimony given by the witness, including police reports, witness statements, and transcripts from pretrial proceedings. Understand the witness's version of events and identify inconsistencies or contradictions that can be exploited during cross-examination. 1. Analyze the Witness's Testimony: Analyze the witness's testimony to identify key points, vulnerabilities, and areas of weakness. Determine the witness's demeanor, credibility, and potential biases that may impact their testimony. 2. Identify Cross-Examination Objectives: Establish clear objectives for crossexamination, such as impeaching the witness's credibility, undermining their testimony, or eliciting favorable information for the defense. Prioritize the most important points to focus on during cross-examination. 3. Develop a Cross-Examination Strategy: Develop a strategic approach to crossexamination based on the specific goals and objectives identified. Consider the sequence of questions, the tone of questioning, and the overall strategy for challenging the witness's testimony. 4. Prepare Cross-Examination Questions: Prepare a list of cross-examination questions designed to achieve your objectives and elicit the desired responses from the witness. Craft questions that are clear, concise, and focused on specific issues or topics relevant to the case. 5. Anticipate Witness Responses: Anticipate how the witness is likely to respond to your cross-examination questions based on their prior statements, demeanor, and behavior. Prepare for potential evasions, inconsistencies, or attempts to deflect or minimize the impact of your questions. 6. Plan for Impeachment: Identify potential grounds for impeaching the witness's credibility, such as prior inconsistent statements, bias, motive, or interest in the outcome of the case. Prepare impeachment evidence, including prior statements, witness testimony, or documentary evidence that contradicts the witness's current testimony. 7. Practice Cross-Examination Techniques: Practice cross-examination techniques, such as leading questions, confrontation, repetition, and confrontation, to effectively challenge the witness's testimony and undermine their credibility. Role-play cross-examination scenarios with colleagues or mock jurors to refine your questioning techniques.

Defending Sex Crimes

8. Remain Flexible and Adaptable: Remain flexible and adaptable during crossexamination and be prepared to adjust your approach based on the witness's responses and developments in the trial. Listen carefully to the witness's answers and be ready to follow up with additional questions or lines of inquiry as needed. 9. Maintain Control and Professionalism: Maintain control of the crossexamination process and conduct yourself with professionalism and courtesy at all times. Avoid becoming confrontational or hostile towards the witness and focus on presenting a persuasive and compelling case for the defense. By following these steps and thoroughly preparing for cross-examination, attorneys can effectively challenge witness testimony, undermine the prosecution's case, and advance the defense's objectives in the trial. CLOSING ARGUMENT Preparing a powerful closing argument is crucial for persuading the jury to adopt the defense's perspective and reach a favorable verdict. Here are the steps to prepare a compelling closing argument: 1. Review the Evidence: Thoroughly review all the evidence presented during the trial, including witness testimony, exhibits, and documents. Identify the most compelling and persuasive evidence that supports the defense's theory of the case. 2. Identify Key Themes: Identify the key themes and arguments that emerged during the trial and resonate with the defense's case theory. Focus on overarching themes that support the defense's position and undermine the prosecution's case. 3. Craft a Narrative: Develop a cohesive and compelling narrative that tells the story of the defense's case and connects with the jury on an emotional and intellectual level. Use storytelling techniques to engage the jury and make the defense's argument memorable and persuasive. 4. Organize Your Argument: Organize your closing argument into a clear and logical structure that follows a coherent sequence of events and addresses the key issues in the case. Begin with an introduction that captures the jury's attention and ends with a powerful conclusion that reinforces the defense's position. 5. Highlight Key Evidence: Highlight the most persuasive evidence presented during the trial and explain how it supports the defense's case theory. Use demonstrative exhibits, visual aids, or quotations from witness testimony to reinforce key points and make them memorable for the jury. 68

By following these steps and thoroughly preparing your closing argument, you can deliver a powerful and persuasive summation that resonates with the jury and maximizes the chances of achieving a favorable outcome for the defense. By following these steps and thoroughly preparing your witnesses for direct examination, you can maximize their effectiveness on the stand and strengthen the defense's case in trial. X. MITIGATION AND PUNISHMENT Mitigation factors are aspects of a case or a defendant's circumstances that, while not justifying the offense, may be considered by the court to lessen the defendant's culpability or mitigate the severity of the punishment. In child sex abuse cases, mitigation factors can play a significant role in influencing sentencing outcomes. Here are some common mitigation factors that a criminal defense lawyer should be aware of: 1. Mental Health Issues: Evidence of the defendant's mental health issues, such as depression, anxiety, trauma-related disorders, or personality disorders, may 69

Defending Sex Crimes

6. Rebut the Prosecution's Case: Address any weaknesses or inconsistencies in the prosecution's case and provide persuasive arguments and evidence to rebut their allegations. Challenge the prosecution's evidence, witness credibility, and legal theories to undermine their case and raise reasonable doubt. 7. Appeal to the Jury's Emotions and Values: Appeal to the jury's emotions and values by connecting with them on a human level and evoking empathy, sympathy, or understanding for the defendant's situation. Use storytelling, rhetorical devices, and vivid language to engage the jury and make an emotional impact. 8. Argue for Reasonable Doubt: Emphasize the prosecution's burden of proof and argue that the evidence presented during the trial fails to establish the defendant's guilt beyond a reasonable doubt. Highlight any inconsistencies, gaps in the evidence, or alternative explanations that cast doubt on the prosecution's case. 9. Provide a Call to Action: Conclude your closing argument with a strong and persuasive call to action that urges the jury to return a verdict of not guilty or to find in favor of the defense. Appeal to the jury's sense of justice and fairness, and remind them of their duty to uphold the principles of the legal system. 10. Practice and Rehearse: Practice delivering your closing argument multiple times to ensure clarity, coherence, and effectiveness. Rehearse your presentation with colleagues, mock jurors, or in front of a mirror to refine your delivery and address any areas for improvement.

Defending Sex Crimes

mitigate their culpability by influencing their behavior or decision-making at the time of the offense. 2. Substance Abuse or Addiction: If the defendant has a history of substance abuse or addiction, it may be considered a mitigating factor, particularly if substance abuse contributed to the commission of the offense or impaired the defendant's judgment. 3. Childhood Trauma or Abuse: Evidence of the defendant's own history of childhood trauma or abuse may be relevant in understanding their behavior and may mitigate their culpability, particularly if it contributed to the development of maladaptive coping mechanisms or distorted perceptions of appropriate behavior. 4. Remorse and Acceptance of Responsibility: Demonstrating genuine remorse for the offense and acceptance of responsibility may be considered a mitigating factor by the court, particularly if the defendant expresses empathy for the victim and acknowledges the harm caused. 5. Cooperation with Law Enforcement: If the defendant cooperates with law enforcement, provides information leading to the apprehension of other offenders, or assists in the investigation or prosecution of related crimes, it may be considered a mitigating factor. 6. Lack of Prior Criminal History: Evidence of the defendant's lack of prior criminal history or involvement in violent or sexually predatory behavior may mitigate their culpability by suggesting that the offense is an aberration rather than a pattern of conduct. 7. Positive Character Traits and Contributions: Evidence of the defendant's positive character traits, such as involvement in the community, employment history, or support of family members, may be considered as mitigating factors by demonstrating their capacity for rehabilitation and redemption. 8. Mental Incapacity or Diminished Capacity: If the defendant's mental capacity was impaired at the time of the offense due to factors such as intellectual disability, developmental disorders, or cognitive impairments, it may mitigate their culpability by affecting their ability to form criminal intent or understand the consequences of their actions. 9. Voluntary Disclosure and Admission of Guilt: If the defendant voluntarily discloses their involvement in the offense and admits guilt without the need for extensive investigation or litigation, it may be considered a mitigating factor by saving the court time and resources. 10. Age and Maturity of the Defendant: If the defendant is a juvenile or young adult, their age and maturity level may be considered as mitigating factors, as 70

It's important for criminal defense lawyers to carefully assess all potential mitigation factors relevant to their client's case and present them effectively to the court during sentencing proceedings. While mitigation factors do not excuse the offense, they can provide context and nuance to the defendant's circumstances and contribute to fair and just sentencing outcomes. COLLATERAL CONSEQUENCES Sex Offender Registration In the state of Texas, individuals convicted of certain sex offenses are subject to stringent sex offender registration requirements, community notification provisions, and other restrictions aimed at monitoring and managing their activities. These requirements are outlined in Chapter 62 of the Texas Code of Criminal Procedure and apply to individuals convicted of a wide range of sex offenses, including but not limited to sexual assault, aggravated sexual assault, indecency with a child, and online solicitation of a minor. Below is an overview of the key sex offender requirements in Texas: 1. Initial Registration: Individuals convicted of qualifying sex offenses must register as sex offenders with the Texas Department of Public Safety (DPS) within seven days of their release from confinement, parole, probation, or placement on community supervision, or within seven days of entering Texas if convicted out-of-state. 2. Periodic Verification: Registered sex offenders must periodically verify their registration information with DPS, typically every year. This includes updating information such as address, employment, and vehicle registration. 3. Duration of Registration: The duration of registration varies depending on the offense and the tier classification assigned to the offender. Offenders may be required to register for varying periods, ranging from 10 years to life.

Defending Sex Crimes

youthful offenders may be more susceptible to influence or less capable of understanding the consequences of their actions. 11. Cultural or Environmental Factors: Evidence of cultural, social, or environmental factors that influenced the defendant's behavior, such as poverty, discrimination, exposure to violence, or dysfunctional family dynamics, may be considered as mitigating factors. 12. Expressions of Rehabilitation and Commitment to Change: If the defendant demonstrates a commitment to rehabilitation and expresses a desire to address underlying issues that contributed to the offense, it may be considered a mitigating factor by indicating a reduced likelihood of re-offending.

Defending Sex Crimes

Tier Classification: Sex offenders in Texas are classified into three tiers based on the severity of their offense and the risk of reoffending. Tier I offenders typically register for 10 years, Tier II for 20 years, and Tier III for life. Community Notification: a. Public Access to Registry: The Texas DPS maintains a public online sex offender registry accessible to the general public. This registry provides information about registered sex offenders, including their names, photographs, addresses, and offense details. b. Texas Law Authorizes: Texas law authorizes law enforcement agencies to notify the public about registered sex offenders living in their communities. This may include distributing flyers, conducting public meetings, or posting notifications on community websites. Residency and Employment Restrictions: a. Residency Restrictions: Some municipalities in Texas have enacted residency restrictions that prohibit registered sex offenders from residing within a certain distance of places where children congregate, such as schools, parks, or daycare centers. b. Employment Restrictions: Registered sex offenders may face restrictions on employment opportunities, particularly in fields that involve working with children or vulnerable populations. Electronic Monitoring: GPS Monitoring: In certain cases, registered sex offenders may be subject to electronic monitoring, such as GPS ankle bracelets, to track their movements and ensure compliance with registration requirements and restrictions. Civil Commitment: Civil Commitment: Texas has provisions for the civil commitment of sexually violent predators—individuals who are deemed to be at high risk of reoffending and have completed their criminal sentences but are deemed to pose a continuing threat to public safety. These individuals may be subject to involuntary commitment to a secure facility for treatment and supervision.

It's important to note that sex offender requirements in Texas are subject to change, and the specific obligations imposed on individuals may vary based on factors such as the nature of the offense, the individual's criminal history, and any court-ordered conditions. Individuals subject to sex offender registration requirements should seek guidance from a qualified legal professional to ensure compliance with the law and understand their rights and obligations.

Defending Sex Crimes

XI. PRESERVE THE RECORD Preserving the record for appeal is essential for ensuring that any legal errors or issues that arise during a sex assault trial can be effectively reviewed and addressed by a higher court. Here are several ways criminal defense lawyers can preserve the record for appeal in sex assault trials: 1. Object to Evidentiary Errors: If the prosecution attempts to introduce evidence that is irrelevant, prejudicial, or inadmissible under the rules of evidence, object to its admission and clearly state the grounds for objection on the record. 2. Raise Legal Objections: Raise legal objections to any errors in the trial court's rulings on matters of law, such as motions to suppress evidence, motions in limine, or jury instructions, and preserve the objections for appellate review. 3. Make Offers of Proof: If the trial court excludes evidence that the defense believes is relevant and admissible, make a proffer or offer of proof to preserve the record for appeal by demonstrating what the excluded evidence would have shown if admitted. 4. Object to Improper Arguments: Object to any improper arguments made by the prosecution during opening statements, closing arguments, or witness examinations, such as appeals to sympathy, improper character attacks, or misstatements of law. 5. Request Jury Instructions: Request specific jury instructions that accurately reflect the law applicable to the case and object to any erroneous or misleading instructions proposed by the prosecution or given by the court. 6. Make Timely Motions: Make timely motions for mistrial or other relief if prejudicial events occur during the trial, such as jury misconduct, prosecutorial misconduct, or other irregularities that may warrant appellate review. 7. Preserve the Record During Sentencing: If the defendant is convicted, ensure that any objections or legal arguments related to sentencing, including objections to the presentence report or arguments for mitigation, are clearly articulated and preserved for appeal. 8. Seek Written Rulings: Request written rulings from the trial court on significant legal issues, motions, or objections to ensure that the reasons for the court's decisions are documented and can be reviewed on appeal. 9. File Post-Trial Motions: File post-trial motions, such as motions for new trial or motions to reconsider, to raise additional legal arguments or issues that may have arisen during the trial and preserve them for appellate review. 10. Create a Complete Record: Ensure that the trial record is complete and accurate, including transcripts of all proceedings, exhibits admitted into

Defending Sex Crimes

evidence, and any rulings or orders issued by the court, to facilitate appellate review. 11. Consult with Appellate Counsel: Consult with appellate counsel throughout the trial to identify potential issues for appeal, ensure that preservation efforts are effective, and develop a strategic plan for appellate review. 12. Timely Notice of Appeal: If the defendant wishes to appeal the conviction or sentence, file a timely notice of appeal in accordance with the applicable procedural rules to initiate the appellate process and preserve the right to challenge the trial court's rulings. By taking these steps to preserve the record for appeal, criminal defense lawyers can maximize the chances of obtaining a favorable outcome for their clients in sex assault trials and ensuring that any legal errors or issues are appropriately addressed through the appellate process. XII. RESEARCH LEGAL ISSUES (SOL, LESSER, INDICTMENT, SUPPRESSION Section 38.37 Section 38.37 of the Texas Code of Criminal Procedure pertains to the admissibility of certain evidence in cases involving sexual offenses. Specifically, it addresses the admissibility of evidence of other sexual conduct by the alleged victim in cases where the defendant is accused of a sexual offense. This section is often referred to as the "rape shield" law. Summary of Section 38.37 Here's a summary of the key provisions of Section 38.37: 1. Admissibility of Evidence: Generally, evidence of a victim's other sexual behavior or predisposition is not admissible in a sexual offense case to prove the victim's character or propensity to engage in sexual behavior. 2. Exception for Specific Purposes: However, the section outlines specific circumstances in which evidence of the victim's other sexual behavior may be admissible. This includes situations where the evidence is offered to show an alternative source of the physical evidence, to prove the origin of semen, pregnancy, disease, or injury, or to prove the victim's bias or motive to fabricate the allegations. 3. Pretrial Hearing: Before evidence of the victim's other sexual behavior can be admitted at trial, the party seeking to introduce such evidence must request a pretrial hearing. During this hearing, the judge will determine whether the evidence meets the criteria for admissibility outlined in the statute. 74

4. Protective Measures: The statute allows the court to impose protective measures to prevent undue prejudice to the victim, such as limiting the scope of the evidence, redacting portions of the evidence, or issuing protective orders to safeguard the victim's privacy.

REGISTERABLE OFFENSES In the state of Texas, individuals convicted of certain offenses are required to register as sex offenders. The offenses that can result in sex offender registration in Texas include, but are not limited to, the following: Aggravated Sexual Assault (Texas Penal Code § 22.021) Sexual Assault (Texas Penal Code § 22.011) 1. Indecency with a Child (Texas Penal Code § 21.11) 2. Aggravated Kidnapping with Intent to Commit Certain Offenses (Texas Penal Code § 20.04) 3. Continuous Sexual Abuse of Young Child or Children (Texas Penal Code § 21.02) 4. Sexual Assault of a Child (Texas Penal Code § 22.011) 5. Aggravated Sexual Assault of a Child (Texas Penal Code § 22.021) 6. Indecency with a Child by Contact (Texas Penal Code § 21.11) 7. Indecency with a Child by Exposure (Texas Penal Code § 21.11) 8. Injury to a Child, Elderly Individual, or Disabled Individual with Intent to Commit Certain Offenses (Texas Penal Code § 22.04) 9. Online Solicitation of a Minor (Texas Penal Code § 33.021) 10. Sexual Performance by a Child (Texas Penal Code § 43.25) 11. Possession or Promotion of Child Pornography (Texas Penal Code §§ 43.26, 43.261) 12. Prohibited Sexual Conduct (Texas Penal Code § 25.02) 13. Trafficking of Persons (Texas Penal Code § 20A.02) 14. Invasive Visual Recording (Texas Penal Code § 21.15) 15. Stalking (Texas Penal Code § 42.072)

Defending Sex Crimes

Overall, Section 38.37 of the Texas Code of Criminal Procedure aims to balance the defendant's right to present a defense with the need to protect the alleged victim from unwarranted intrusion into their sexual history or behavior. It establishes guidelines for the admissibility of evidence of the victim's other sexual conduct while providing exceptions in limited circumstances where such evidence may be relevant and probative to the case.

Defending Sex Crimes

16. Improper Relationship Between Educator and Student (Texas Penal Code § 21.12) 17. Unlawful Restraint, Kidnapping, or Aggravated Kidnapping of a Person Younger than 17 Years of Age (Texas Penal Code § 20.02) 18. Enticing a Child (Texas Penal Code § 25.04) These offenses, among others specified in the Texas Penal Code and other relevant statutes, may require individuals convicted of them to register as sex offenders in Texas. It's essential to consult the specific statutory provisions and legal authorities for precise details regarding sex offender registration requirements in the state. Understand(ING) the Severity of the Charges One of the most significant pitfalls in defending sexual assault charges is underestimating the severity of the allegations. Sexual offenses are typically very serious felony offenses in Texas, carrying harsh penalties upon conviction, including lengthy prison sentences, hefty fines, and lifelong consequences such as sex offender registration. Failing to recognize the gravity of the situation can lead to inadequate preparation and ineffective defense strategies. Texas Sex Criminal Offenses Chart Below is a chart outlining the various sex criminal offenses in Texas along with their corresponding punishment ranges: Sex Criminal Offense

Statute

Sexual Assault (Adult)

Texas Penal Code § 22.011

Aggravated Sexual Assault of Child (CW age 13 or under) Super Agg. Sex Assault of Child (CW age 5 or under) Indecency with a Child Contact Indecency with a Child Exposure Indecent Exposure

Texas Penal Code § 22.021 Texas Penal Code § 22.021 (f) Texas Penal Code § 21.11 (a)(1) Texas Penal Code § 21.11 (a)(2) Texas Penal Code § 21.08

Sex Criminal Offense

Statute

Sexual Assault (Adult)

Texas Penal Code § 22.011 Texas Penal Code § 22.021 Texas Penal Code § 22.021 (f) Texas Penal Code § 21.11 (a)(1) Texas Penal Code § 21.11 (a)(2)

Indecent Exposure

Texas Penal Code § 21.08

Indecent Assault

Texas Penal Code § 21.012

Prostitution

Texas Penal Code § 43.02

Promotion of Prostitution

Texas Penal Code § 43.03

Aggravated Kidnapping with Intent to Commit Certain Offenses

Texas Penal Code § 20.04

Continuous Sexual Abuse of Young Child or Children (CW age 3 or under; 2 sex abuse at least 30 days apart)

Texas Penal Code § 21.02

25-life in prison; no parole; fine up to $10,000

Sexual Assault of a Child (CW 14-16)

Texas Penal Code § 22.011

2 to 20 years in prison; fine up to $10,000

Injury to a Child, Elderly Individual, or Disabled Individual with Intent to Commit Certain Offenses

Texas Penal Code § 22.04

Varies considerably— research it well!)

Defending Sex Crimes

Aggravated Sexual Assault of Child (CW age 13 or under) Super Agg. Sex Assault of Child (CW age 5 or under) Indecency with a Child Contact Indecency with a Child Exposure

Punishment Range 2 to 20 years in prison; fine up to $10,000 5 years to life imprisonment; fine up to $10,000 25-life in prison; no parole; fine up to $10,000 2 to 20 years in prison; fine up to $10,000 2 to 10 years in prison; fine up to $10,000 Up to 180 days in jail; fine up to $2,000 0-365 days in county jail, up to $4,000 fine Up to 180 days in jail; fine up to $2,000 Varies based on circumstances 5 years to life imprisonment; fine up to $10,000

Defending Sex Crimes

Sex Criminal Offense Online Solicitation of a Minor (communicates or distributes material) Online Solicitation of a Minor (solicits to meet)

Sexual Performance by a Child (employ, authorize, induce)

Sexual Performance by a Child (produce, direct, promote)

Possession of Child Pornography

Promotion of Child Pornography

Statute

Punishment Range

Texas Penal Code § 33.021 (b)

2 to 10 years in prison; fine up to $10,000 (can be enhanced)

Texas Penal Code § 33.021 (c)

2 to 20 years in prison; fine up to $10,000

Texas Penal Code § 43.25 (b)

Texas Penal Code § 43.25 (d)

Texas Penal Code §§ 43.26 (a)

Texas Penal Code §§ 43.26 (e)

2 to 20 years in prison; fine up to $10,000 OR 5 years to life imprisonment; fine up to $10,000 (CW =13 or under) 2 to 10 years in prison; fine up to $10,000 OR 2 to 20 years in prison; fine up to $10,000 (CW =13 or under) 2 to 10 years in prison; fine up to $10,000 (can be enhanced) 5 years to life imprisonment; fine up to $10,000 2 to 20 years in prison; fine up to $10,000 (can be enhanced) 5 years to life imprisonment; fine up to $10,000

Prohibited Sexual Conduct

Texas Penal Code § 25.02

180 days – 2 years State Jail Facility

Invasive Visual Recording

Texas Penal Code § 21.15

180 days – 2 years State Jail Facility 78

Sex Criminal Offense

Statute

Punishment Range

Improper Relationship Between Educator and Student

Texas Penal Code § 21.12

2 to 20 years in prison; fine up to $10,000

Texas Penal Code § 20.02

Texas Penal Code § 25.04 Enticing a Child

Up to 180 days in jail; fine up to $2,000 OR 2 to 10 years in prison; fine up to $10,000 2 to 10 years in prison; fine up to $10,000

Please note that the punishment ranges provided are general guidelines and may vary depending on factors such as prior criminal history, aggravating circumstances, and the discretion of the judge sentencing the defendant. It's essential to consult the specific statutes and legal guidelines for each offense and seek guidance from a qualified legal professional for accurate advice and representation. Hopefully, this paper—my on-going labor of love-- has been helpful to you! Now go fight! -HB

Defending Sex Crimes

Unlawful Restraint (CW under 17)

0-365 days in county jail, up to $4,000 fine OR 180 days – 2 years State Jail Facility

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Speaker:

Co-Author:

Rene Valladares

Federal Rules of Evidence Update

The Busy Lawyer’s Federal Rules of Evidence Update

Federal PD 411 East Bonneville Ave, #250 Las Vegas, NV 89101 555.555.555 phone 555.555.555 fax rene_valladares@fd.org email www.website.com website

Hannah Nelson

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

THE BUSY LAWYER’S FEDERAL RULES OF EVIDENCE UPDATE—SPRING 2024 By: Rene L. Valladares and Hannah Nelson Introduction As criminal defense lawyers, we often think of the Federal Rules of Evidence as being immutable and outside our influence, but recent amendments to the Federal Rules of Evidence show that this is a myth: the law of evidence is rapidly evolving. Three important amendments to

Federal Rules of Evidence Update

the Rules became effective December 1, 2023: •

Rule 106 (Rule of Completeness),

•

Rule 615 (Rule of Exclusion), and

•

Rule 702 (Experts).

This short article will discuss these brand-new amendments and how they impact our practices as criminal defense lawyers. In addition, this article will preview several amendments scheduled to become effective on December 1, 2024. 2023 Amendments •

The Rule of Completeness Federal Rule of Evidence 106, which codified the common law rule of completeness, has

been amended in two important ways that, overall, should prove to be favorable to criminal defendants: if the Rule requires completion, that completion can now be done (1) with any statement, even if that statement is not written or recorded, and (2) over a hearsay objection. Prior to this amendment, Rule 106 provided: Remainder of or Related Writings or Recorded Statements If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. 1 1

While this former Rule was, in theory, grounded in fairness, some courts interpreted it rigidly and in a way that posed two significant problems for criminal defendants. First, because the Rule’s language specified completion with “a writing or recorded statement,” many courts interpreted this language to mean that oral statements were not covered. 2 Second, some courts did not allow completion with hearsay statements. 3 Since it is typically the prosecution that is in control of the process of generating and committing to writing or recording statements, Rule 106 typically benefitted the prosecution. The following scenario illustrates the problems with the way some courts were interpreting Rule 106 prior to its amendment: 4 Assume that a defendant in a murder case is

he admits to owning the gun involved in the murder. The agent, however, conveniently does not record the part of the interview where the defendant states that he had sold the gun prior to the murder. At trial the prosecution could introduce the statement through the agent as an opposing party statement under Federal Rule of Evidence 801(d)(2)(A). Under former Rule 106, however, defense counsel would encounter two roadblocks in introducing the suspect’s oral statement clarifying that he sold the gun prior to the murder. First, the prosecution could object that, since the statement was in oral form, it did not qualify as a “a writing or recorded statement” under Rule 106. Second, the prosecution could argue that the suspect’s oral statement is hearsay and therefore must be excluded at trial. After all, the statement is offered by the party making it, and does not qualify as an opposing party statement under Rule 801(d)(2)(A). To avoid these problems amended Rule 106 now reads: Remainder of or Related Statements If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part—or any other 2

Federal Rules of Evidence Update

interviewed by an FBI Special Agent who records the portion of the defendant’s statement where

statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection. 5 The Rule, as amended, solves both problems present in the gun hypothetical discussed above: the defendant’s statement that he had sold the gun prior to the murder would come in over a government hearsay objection and even though the statement was not in writing or recorded. •

The Rule of Exclusion Federal Rule of Evidence 615, the rule of exclusion, has been amended to clarify that

exclusion means exclusion from the courtroom. Prior to this amendment the Rule stated:

Federal Rules of Evidence Update

Excluding Witnesses At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: (a) a party who is a natural person; (b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney; (c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or (d) a person authorized by statute to be present. 6 Under Rule 615, as amended, an invocation of the rule of exclusion without more only triggers exclusion of the witnesses from the courtroom. A party must now specifically request that the court enter an order specifying that testimony should not be disclosed to other witnesses or that witnesses do not access testimony. The new Rule reads: Excluding Witnesses from the Courtroom: Preventing an Excluded Witness’s Access to Trial Testimony (a) Excluding Witnesses. At a party’s request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: 3

(1) a party who is a natural person; (2) one officer or employee of a party that is not a natural person if that officer or employee has been designated as the party’s representative by its attorney; (3) any person whose presence a party shows to be essential to presenting the party’s claim or defense; or (4) a person authorized by statute to be present. (b) Additional Orders to Prevent Disclosing and Accessing Testimony. An order under (a) operates only to exclude witnesses from the courtroom. But the court may also, by order:

(2) prohibit excluded witnesses from accessing trial testimony. 7 This amendment to Rule 615 will require that defense lawyers become more proactive in ensuring that the court is covering all aspects of witness exclusion. Additionally, prior to the recent amendment, Rule 615 exempted from exclusion several categories of individuals including, under Rule 615(c) case agents (“a person whose presence a party shows to be essential to presenting the party’s claim or defense”). 8 Rule 615(a)(2) now limits exemption from exclusion for entity representatives to one person. 9 The purpose is to create parity between entity parties (the government) and individuals. But Rule 615(a)(3) does allow an entity party to make a showing that more than one witness-representative needs to be exempted from exclusion because they are “essential.” 10 •

Expert Witnesses A significant problem confronted by the criminal defense bar is the fact that courts often

apply Federal Rule of Evidence 702 in a lax fashion that allows government “expert” evidence to be admitted without the judge engaging in the gatekeeping function demanded by this Rule and 4

Federal Rules of Evidence Update

(1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and

by Daubert and its progeny. 11 In addition, courts often allow government experts to overrepresent their conclusions to the jury. Prior to being amended Rule 702 read: Testimony by Expert Witnesses. A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier or fact to understand the evidence or determine a fact in issue;

Federal Rules of Evidence Update

(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 12 The problem of faulty forensic evidence offered by the prosecution remains a grave one. Much of the forensic evidence regularly used by the government in federal court is not supported by science and amounts to little more than pseudo-science. 13 The problem is so widespread that some commentators have labeled it an “epidemic.” 14 Two prestigious national studies have concluded that this is a significant problem in criminal law and that it negatively impacts defendants charged in federal court. The first study was the 2009 National Academy of Sciences Report (“2009 NAS Report”). 15 This was followed by the 2016 President’s Council of Advisors on Science and Technology Report (“2016 PCAST Report”). 16 The 2009 NAS and 2016 PCAST Reports looked at various forensic areas including: •

Handwriting comparisons;

•

Firearms and toolmark examinations;

•

Fingerprint examination;

•

Hair analysis;

•

Bite mark analysis;

•

DNA analysis of complex-mixture samples; and

•

Shoe print comparisons.

Both reports were highly critical of forensic evidence routinely used by the government in federal trials. The NAS report noted that despite the “serious issues regarding the capacity and quality of the current forensic science system . . . courts continue to rely on forensic evidence without fully understanding and addressing the limitations of different forensic science disciplines.” 17 The NAS found that, except for nuclear DNA analysis, no forensic method has

or sources. 18 Additionally, the report concluded there are significant problems with scientific validation of bitemark, hair, fingerprint, firearm, and tool mark identification. 19 The 2016 PCAST Report reemphasized the weaknesses that continue to plague forensic science, finding that many forensic methods lacked validation studies. 20 The amendment to Rule 702 now explicitly requires that the party offering expert evidence must demonstrate that it is more likely than not that the evidence meets the requirements of Rule 702 (helpfulness to the jury, reliability, etc.) and that the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case. The amendment emphasizes a court’s obligation to find under Federal Rule of Evidence 104(a) that an expert’s testimony meets the reliability requirements of Federal Rule of Evidence 702. As such, Federal Rule of Evidence 702 now reads: Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: 6

Federal Rules of Evidence Update

been thoroughly shown to have the capacity to connect forensic evidence to specific individuals

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case. (emphasis added). 21 The amendment to Rule 702 should help criminal defense lawyers press courts for more robust oversight of government expert evidence and advance arguments that the types of government sponsored evidence criticized by the NAS and PCAST reports should be excluded.

Federal Rules of Evidence Update

Amendments Scheduled to Become Effective in 2024 A new Federal Rule of Evidence dealing with illustrative aids and several amendments to the Federal Rules of Evidence dealing with witness’s prior statements, statements against interest and summary exhibits are scheduled to become effective on December 1, 2024. The new Rule and the amendments will impact criminal defense practitioners. •

Illustrative Aids Currently, there are no standards governing the use of illustrative aids, which has created

confusion amongst the courts. “The distinction between ‘demonstrative evidence’ (admitted into evidence and used substantively to prove disputed issues at trial) and ‘illustrative aids’ (not admitted into evidence but used solely to assist the trier of fact in understanding evidence) is sometimes a difficult one to draw, and the standards for allowing the use of an illustrative aid are not made clear in the case law, in part because there is no specific rule that sets any standards.” 22 The proposed new Rule 107 is designed to address these problems by providing standards for illustrative aids. Such standards would allow illustrative aids to be used at trial after the court balances the probative value of the illustrative aid with its prejudicial impact under Federal Rule

of Evidence 403. 23 Rule 107 would also cover the use of illustrative aids in opening and closing statements. •

Witness’s Prior Statement Rule 613(b) currently states, in relevant part, that “extrinsic evidence of a witness’s prior

statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given the opportunity to examine the witness about it.” 24 The Rule, however, does not specify whether the witness must be given the opportunity to “explain or deny” prior to the extrinsic evidence being presented. Many courts presently require that witnesses be given the opportunity to explain the prior statement prior to extrinsic evidence

•

Statements Against Interest Federal Rule of Evidence 804(b)(3) provides that a statement against interest is not

excluded as hearsay. To qualify under this Rule, the proponent of the statement must establish that (1) the declarant is unavailable under Rule 804(a); (2) the statement exposes the declarant to (among other things) criminal liability, and (3) “if it is offered in a criminal case as one that tends to expose he declarant to criminal liability” the statement is “supported by corroborating circumstances that clearly indicate its trustworthiness.” 26 Courts have interpreted the meaning of “corroborating circumstances” differently and often to the detriment of criminal defendants by looking only at corroborating circumstances surrounding the statement but not external to it. Professor Liesa L. Richter offers an illustration of this problem: Suppose a defendant is tried for the murder of Joe. The defendant offers a statement by a now-deceased declarant stating: “I’m the one who killed Joe.” ... Now assume that the defendant can show that the declarant’s fingerprints are on the murder weapon, or that a witness saw the 8

Federal Rules of Evidence Update

being presented, 25 and this amendment would embody that trend.

declarant in the vicinity of the murder just before it occurred. These facts corroborate the declarant’s account, and help to establish that the declarant is telling the truth. However, they are not circumstantial guarantees of trustworthiness inherent in the making of the statement. Courts that insist on circumstantial guarantees of trustworthiness would disregard important corroborative evidence like the fingerprints and the eyewitness in evaluating admissibility under Rule 804(b)(3). 27 The amendment to this Rule would make it clear that a court needs to look at corroborating circumstances both surrounding the statements and external to it. •

Summary Exhibits

Federal Rules of Evidence Update

Federal Rule of Evidence 1006 provides that the proponent of evidence that includes “voluminous writings, recordings, or photographs that cannot be conveniently examined in court” can use a summary or chart to prove their contents. 28 The proposed amendment to Rule 1006 would address several problems with courts’ interpretations of the Rule. First, it would clarify that this type of evidence is not merely an “illustrative aid.” Instead, the summaries come in as evidence. Second, the amendment would clarify that, for the summary exhibit to be admitted into evidence, the documents supporting it do not have to be admitted into evidence. Often, it is the government that uses summary exhibits, and this part of the amended Rule will probably favor the government. There are some important guardrails in the amendment, however, that can benefit criminal defendants. For instance, the Committee Note makes it clear that to be admissible, a summary must pass the balancing test of Rule 403. According to the Note, “if the summary does not accurately reflect the underlying voluminous evidence, or if it is argumentative, its probative value may be substantially outweighed by the risk of unfair prejudice or confusion.” 29 Likewise, the Committee Note states that “the amendment requires that the proponent of a Rule 1006 summary make the underlying voluminous records available to other parties at a reasonable time and place.” 30 9

Conclusion There are significant changes to the Federal Rules of Evidence that will impact the practice of criminal defense lawyers. Three important amendments to the Federal Rules of Evidence have recently become effective. The amendment to the Rule of completeness (Rule 106) should make it easier for defense lawyers to introduce statements—particularly those of their clients—that help explain the one-sided versions of events oftentimes presented by prosecutors. The amendment to the Rule of exclusion (Rule 615) will require that defense lawyers be more proactive in requesting that the court order not just exclusion from the courtroom, but also order that testimony should not be disclosed to witnesses and that witnesses

defense lawyers to argue that courts need to act as true gatekeepers of government evidence and not simply give the government a pass when it comes to expert evidence. This year, 2024, will also be a big year for the Rules of Evidence. A new evidence rule (Rule 107) and several amendments are scheduled to become effective December 1, 2024. Finally, the Supreme Court has two cases on its docket that deal with the Confrontation Clause and the scope of what government witnesses can do under Federal Rule of Evidence 704(b). These changes illustrate how critically important it is for criminal defense lawyers to stay on top of the rapidly evolving law of federal evidence.

Federal Rules of Evidence Update

should not access testimony. And the amendment to the Rule on experts (Rule 702) allows

WINTER 2023 FEDERAL RULES OF EVIDENCE UPDATE QUICK-CHECKLIST Amendments became effective December 1, 2023 Rule • 106—Rule of Completeness

615—Rule of Exclusion

Federal Rules of Evidence Update

•

702—Experts

Changes • The former Rule provided for completion only with written or recording statements, the new Rule now permits completion with oral statements •

The new Rule now permits completion over a hearsay objection

•

Invocation of the new Rule only triggers exclusion of witnesses from the courtroom

•

The new Rule now requires that counsel ask the court for an order prohibiting disclosure of trial testimony to witnesses that have been excluded

•

The new Rule now requires that counsel ask the court for an order prohibiting witnesses that have been excluded from accessing trial testimony

•

The new Rule limits the number of case agents that are exempted from rule of exclusion to one (Rule 615 (a)(2) o But it still gives a party the opportunity to request exemption from the Rule for any person whose presence is shown to be essential to presenting the party’s claim or defense under Rule 615(a)(3)

•

The new Rule emphasizes that a party demonstrate that it is “more likely than not” that the evidence meets the requirements of Rule 702

•

The new Rule clarifies that the expert’s opinion must reflect a reliable application of the principles and methods to the facts of the case

WINTER 2024 SUPREME COURT EVIDENCE CERT ALERT The Supreme Court has granted certiorari in the following cases involving evidence issues Smith v. Arizona 22-899 Topic: Confrontation Clause

Topic: Federal Rule of Evidence 704—Opinion on an Ultimate Issue. Exception

Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst's statements are offered not for their truth but to explain the expert's opinion, and (b) the defendant did not independently seek to subpoena the analyst. Issue presented: Federal Rule of Evidence 704(b) provides: “In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Fed. R. Evid. 704(b). The question is: In a prosecution for drug trafficking-where an element of the offense is that the defendant knew she was carrying illegal drugs-does Rule 704(b) permit a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters?

Federal Rules of Evidence Update

Diaz v. United States 23-14

Issue presented:

FED. R. EVID. 106 (as amended eff. Dec. 1, 2011) (emphasis added). See, e.g., United States v. Liera-Morales, 759 F.3d 1105, 1111 (9th Cir. 2014) (noting that by its terms, Rule 106 “applies only to written and recorded statements”). 3 See, e.g., United States v. Faruki, 803 F.3d 847, 856 (7th Cir. 2015) (noting that the district court did not err in precluding the defendant from introducing statements into evidence because such statements would have violated the hearsay rule). 4 H.R. Doc. No. 118-33, at 10 (2023), available at https://www.govinfo.gov/content/pkg/CDOC118hdoc33/pdf/CDOC-118hdoc33.pdf. 5 FED. R. EVID. 106 (as amended effect. Dec. 1, 2023) (emphasis added). 6 FED. R. EVID. 615 (as amended effect. Dec. 1, 2011). 7 FED. R. EVID. 615 (as amended effect. Dec. 1, 2023). 8 FED. R. EVID. 615(c) (as amended effect. Dec. 1, 2011). 9 FED. R. EVID. 615(a)(2) (as amended effect. Dec. 1, 2023). 10 See Advisory Committee Note to Federal Rule of Evidence 615. 11 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 12 FED. R. EVID. 702 (as amended effect. Dec. 1, 2011). 13 See generally, Rene L. Valladares, & Hannah Nelson, The Busy Lawyer’s Guide to Excluding Prosecution Expert Evidence, THE CHAMPION, Aug. 2022 (portions of this article are used with permission from THE CHAMPION in the present article). 14 See generally, E.G. “Gerry” Morris, Flawed Science in the Courtroom. Is Excluding it Really that Difficult?, THE CHAMPION, Nov. 2015; Janis C. Puracal & Aliza B. Kaplan, Science in the Courtroom: Challenging Faulty Forensics, THE CHAMPION, Jan.-Feb. 2020; Brandon L. Garrett, Unpacking the Source of Error in Forensic Evidence, THE CHAMPION, June 2021. 15 COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCI. CMTY. & NAT’L RES. COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD (2009), available at https://www.ojp.gov/pdffiles1/nij/grants/228091.pdf. (“2009 NAS Report”). 16 See PRESIDENT’S COUNCIL OF ADVISORS ON SCI. & TECH., EXEC. OFFICE OF THE PRESIDENT, FORENSIC SCIENCE IN CRIMINAL COURTS: ENSURING SCIENTIFIC VALIDITY OF FEATURECOMPARISON METHODS (2016), available at https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_ science_report_final.pdf. (“2016 PCAST Report”). 17 2009 NAS Report at 85. 18 Id. at 7. 19 Id. at 43, 107–09. 20 See generally, 2016 PCAST Report. 21 FED. R. EVID. 615 (as amended effect. Dec. 1, 2023) (emphasis added). 22 Memorandum of Scott S. Harris, Clerk, S. Ct., Summary of Proposed New & Am. Fed. R. P. (Oct. 23, 2023) at 1096, available at https://www.uscourts.gov/sites/default/files/2023_scotus_package_final_0.pdf. 23 Id. at 1095–96. 24 FED. R. EVID. 613(b). 25 See, e.g., United States v. Beverly, 369 F.3d 516, 542 (6th Cir. 2004) (noting that “Federal Rule of Evidence 613(b) states that extrinsic evidence of a prior inconsistent statement by a witness is not admissible if the witness has not had an opportunity to explain the prior inconsistency”).

Federal Rules of Evidence Update

FED. R. EVID. 804(b)(3). Professor Liesa L. Richter, Rule 804(b)(3): Corroborating Circumstances Requirement, Memorandum to Advisory Committee on Evidence Rules (April 1, 2022), https://www.uscourts.gov/sites/default/files/evidence_agenda_book_may_6_2022.pdf 28 FED. R. EVID. 1006. 29 Memorandum of Scott S. Harris, supra note 22 at 1095. 30 Id. 27

Federal Rules of Evidence Update

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Same Game, Different Rules – Defending Juveniles Speaker:

Kameron D. Johnson

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

Juvenile Law

Johnson Roberts LLP 15808 Ranch Road 620 N, Suite 200 Austin, TX 78717 512.761.4766 phone kameron.johnson@johnsonrobertsllp.com email http://www.johnsonrobertsllp.com/ website

SAME GAME, DIFFERENT RULES— DEFENDING JUVENILES

37TH ANNUAL ADVANCED RUSTY DUNCAN ADVANCED CRIMINAL LAW COURSE

Juvenile Law

JUNE 13-15, 2024 SAN ANTONIO, TEXAS

KAMERON D. JOHNSON JOHNSON ROBERTS LLP 15808 RR 620 N., SUITE 200 AUSTIN, TEXAS 78717 OFFICE 512.761.4766 EMAIL: KAMERON.JOHNSON@JOHNSONROBERTSLLP.COM

TABLE OF CONTENTS I.

Introduction ............................................................................................................. 1

II.

Due Process and Constitutional Safeguards ............................................................ 2

In Re Gault .......................................................................................................... 3

Right to Counsel .................................................................................................. 4

Sources Of Law Governing Juvenile Justice ........................................................ 5

III. Age Limits and Juvenile Jurisdiction ....................................................................... 5 A.

Age of Child ......................................................................................................... 6

Raising Objections to Age ................................................................................... 6

The Petition ......................................................................................................... 7

Procedure For Challenging Pleadings in Juvenile Court..................................... 7

IV. Serious Offenses: Determinate Sentence & Certifications ...................................... 8

Determinate Sentence .......................................................................................... 8

Grand Jury ........................................................................................................ 9

Adjudication Hearing......................................................................................10

Disposition Hearings ......................................................................................10

Probation .........................................................................................................10

Parole and Minimum Lengths of Stay ............................................................ 11

Transfer Hearings ........................................................................................... 11

2007 Legislative Changes ................................................................................12

Summary .........................................................................................................12

Certifications ...................................................................................................... 12

Certification Eligibility ....................................................................................14

Perjury .............................................................................................................15

Under Age Eighteen .......................................................................................15

Eighteen Or Older...........................................................................................15

Certifications For Capital Murder and Murder ...............................................17

Notice Of Petition or Motion for Discretionary Transfer ...............................18

Criminal Transaction ......................................................................................18

Juvenile Law

Diagnostic Study, Social Evaluation

and Investigation ...............................19

Diagnostic Study .............................................................................................19

Full Investigation ........................................................................................... 20

9. The Hearing ................................................................................................... 21 10. Right Of Counsel ........................................................................................... 22 11. Evidence ......................................................................................................... 22 12. Factors To Be Considered by The Court ....................................................... 23 13. Required Findings.......................................................................................... 24 14. Community Welfare Provision ....................................................................... 24 15. Criminal Transaction ..................................................................................... 25 16. Order .............................................................................................................. 25 17. Mandatory Certification ................................................................................. 25 Once Certified Always Certified ............................................................................ 25 18. Appeals ........................................................................................................... 26 19. Miscellaneous Certification ............................................................................ 26 20. Certification Summary ................................................................................... 27 Conclusion ............................................................................................................. 27

Juvenile Law

iii

Introduction Specialized juvenile justice courts were established well over a century ago when the first formally recognized juvenile court in the United States was established.1 The first court established in Illinois, arose out of a reform movement to address the deplorable conditions and practices of incarcerating juveniles with adult inmates. The early reformers were appalled by adult procedures and penalties, and by the fact that children could be given long prison sentences and mixed in jails with hardened criminals. Youth advocates were profoundly convinced that society's duty to children could not be confined by the concept of justice alone. They believed that society's role was not to ascertain whether the child was “guilty” or “innocent,” but “[w]hat is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career.” In Re Gault, 387 U.S. 1, 14, 87 S. Ct. 1428, 1437, 18 L. Ed. 2d 527, 539 (1967) citing Julian Mack, The Juvenile Court, 23 Harv. L. Rev. 104, 119-120 (1909). Prior to the enactment of specialized juvenile courts; no special court system for handling cases involving minors existed. After the establishment of the first court dedicated to resolving cases with minors in 1899 the concept of dedicated juvenile courts quickly spread throughout the nation. 2 Currently Texas is like every state other state and the District of Columbia in the nation

3 Sally Green, Prosecutorial Waiver into Adult Criminal Court: A

1 Illinois Juvenile Court Act of 1899; In Re Gault, 387

Conflict of Interests Violation Amounting to the States' Legislative Abrogation of Juveniles' Due Process Rights, 110 Penn St. L. Rev. 233 (2005). 4 Robert O. Dawson, TEXAS JUVENILE LAW § 1 (9th ed. 2018).

U.S. 1, 14, 87 S. Ct. 1428, 1437, 18 L. Ed. 2d 527, 539 (1967). See also, Davis et al., Children in the Legal System 742-43 (2nd ed. 1997). 2 Davis et al., Children in the Legal System 745 (2nd ed. 1997).

Juvenile Law

which have dedicated or specialized juvenile courts. Initially juvenile courts were established under the doctrine of “parens patriae” (literally “the state as parent”). 3 Under the doctrine of parens patriae juvenile courts transacted without much procedure or due process. Most juvenile judges were not lawyers and it was rare for prosecutors or counsel for the juvenile to even appear in court.4 The courts took the view that the judges had unlimited discretion to determine the fate of children charged with crimes or other misconduct. In addressing the history of juvenile courts, the United States Supreme Court stated, “the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context.” The court was referring to the concept that “the right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right ‘not to liberty but to custody.’ He can be made to attorn to his parents, to go to school, etc. If his parent’s default in effectively performing their custodial functions -- that is, if the child is ‘delinquent’ -- the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the ‘custody’ to which the child is entitled. On this basis, proceedings involving juveniles were described as ‘civil’ not ‘criminal’ and therefore not subject to the requirements which restrict the state

Juvenile Law

necessary for his welfare or in the interest of public safety and when a child is removed from his family, to give him the care that should be provided by parents; 5. to provide a simple judicial procedure through which the provisions of Title Three are executed enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.8

when it seeks to deprive a person of his liberty.5 Proceedings in juvenile court are considered civil in nature and have been designed to remove the “taint of criminality from children” and to focus on treatment, training and rehabilitation of the child.6 In 1973 the Texas legislature promulgated Title III of the Family Code. The enactment of Title III was in response in part to U.S. Supreme Court decisions, increases in juvenile crime and an overall desire for Texas officials to be progressive.7 The initial goals of Title III were 1. to provide for the care, the protection, and the wholesome moral, mental, and physical development of children coming within its provisions; 2. to protect the welfare of the community and to control the commission of unlawful acts of children; 3. consistent with the protection of the public interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation; 4. to achieve the foregoing purposes in a family environment whenever possible, separating the child from his parents only when

II.

Due Process and Constitutional Safeguards

Juvenile law took a dramatic turn during the era of the Warren Court. The Supreme Court articulated minimum levels of constitutional protections and due process necessary in juvenile proceedings in a landmark series of cases beginning in 1966 with Kent v. United States.9 In Kent the Court stated a juvenile “hearing must measure up to the essentials of due process and fair treatment.” Prior to Kent, the states enacted various legislation to set procedures for juvenile proceedings. However, since juvenile courts were operating under the doctrine of “parens patriae” and hearings were deemed civil and not criminal, procedural safeguards afforded adults were vastly lacking in juvenile courts. Beginning in Kent and following immediately with Gault, the Supreme Court for the first time promulgated constitutional protections applicable to juvenile proceedings. In Gault the Court stated “[j]uvenile court history has again

See, e. g., Shears, Legal Problems Peculiar to Children's Courts, 48 A. B. A. J. 719, 720 (1962) (“The basic right of a juvenile is not to liberty but to custody. He has the right to have someone take care of him, and if his parents do not afford him this custodial privilege, the law must do so.”); Ex parte Crouse, 4 Whart. 9, 11 (Sup. Ct. Pa. 1839); Petition of Ferrier, 103 Ill. 367, 371-373 (1882). Kent v. United States, 383 U.S. 541 (1966). 6 TEX. FAM. CODE § 51.01. 7 29 THOMAS S. MORGAN, TEXAS PRACTICE, JUVENILE LAW AND PRACTICE §1 (1985). 5

original TEX. FAM. CODE §§51.02 (1-5). Amended. 9 Kent v. United States, 383 U.S. 541 (1966).

8 See

A. In Re Gault In In Re Gault, the Respondent Gerald Gault was fifteen at the time he was arrested and taken into custody by the police for essentially what could be described as a telephone call in which the caller or callers made lewd or indecent remarks. The Court described the calls as being “of the irritatingly offensive, adolescent, sex variety.”11 At the time the Respondent was arrested his mother and father were both at work. No notice was given to the juvenile’s parents that he was being taken into custody was left at the home. When Gerald’s mother arrived home at about 6 o'clock, Gerald was not there. Gerald's older brother was sent to look for him at the trailer home of the Lewis family. The family learned that Gerald was in custody. Gerald’s mother went to the juvenile detention were she was told In Re Gault, 387 U.S. at 541. Gerald Francis Gault, age 15, and Ronald Lewis made an obscene phone call to a neighbor, Mrs. Cook. The obscene phone call included the following statements: “Do you give any?” “Do you have big bombers?” and “Are your cherries ripe today?” Incensed, Mrs. Cook called the sheriff, who arrested Gault and Lewis, placing them in a detention facility. Gault’s parents were not informed that he had been detained; Gault’s mother learned about the detention from the Lewis family. Mrs. Cook did not attend the hearing the next day, so she did not identify the boys as the callers or offer any testimony. The judge claimed that Gault had admitted to making the lewd statements, but Gault denied making any such confession, claiming that he had only dialed the number. Kent v. United States, 383 U.S. 541 (1966). 10 11

Juvenile Law

why her son was in custody and that he would have a hearing the next day. The deputy probation officer, who was also superintendent of the Detention Home filed a petition with the juvenile court on the hearing day, but the petition was never served on Gerald’s parents. The petition was cursory at best in that it made no reference to any factual basis for the judicial action which it initiated. It recited only that “said minor is under the age of eighteen years and is in need of the protection of this Honorable Court; [and that] said minor is a delinquent minor.” It prayed for a hearing and an order regarding “the care and custody of said minor.” The next day Gerald, his mother, his older brother, and probation officers appeared before the Juvenile Judge in chambers. Gerald's father was not there. He was at work outside of the city. The complainant Mrs. Cook was not present at the hearing. No one was sworn at this hearing. No transcript or recording was made. No memorandum or record of the substance of the proceedings was prepared. At the conclusion of the hearing, the judge said he would “think about it.” Gerald was taken back to the Detention Home. He was not sent to his own home with his parents. Less than a week later at the final hearing a “referral report” made by the probation officers was filed with the court, although not disclosed to Gerald or his parents. This listed the charge as “Lewd Phone Calls.” At the conclusion of the hearing, the judge committed Gerald as a juvenile delinquent to the State Industrial School “for the period of his minority [that is, until 21], unless sooner discharged by due process of law.” An order to that effect was entered. It recites that “after a full hearing and due deliberation the Court finds that said minor

demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.” 10 The Gault decision was a landmark ruling and is considered the most influential decision in juvenile law.

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to violate the Constitution, especially the constitutional provisions as to due process that are involved in moving a child from its home. The indispensable elements of due process are: first, a tribunal with jurisdiction; second, notice of a hearing to the proper parties; and finally, a fair hearing. All three must be present if we are to treat the child as an individual human being and not to revert, in spite of good intentions, to the more primitive days when he was treated as a chattel.” We are warned that the system must not “degenerate into a star chamber proceeding with the judge imposing his own particular brand of culture and morals on indigent people ” Where a person, infant or adult, can be seized by the State, charged, and convicted for violating a state criminal law, and then ordered by the State to be confined for six years, I think the Constitution requires that he be tried in accordance with the guarantees of all the provisions of the Bill of Rights made applicable to the States by the Fourteenth Amendment.

is a delinquent child, and that said minor is of the age of 15 years.” Under state law no appeal of the judge’s decision was permitted. In reversing the decision of the Arizona Supreme Court, the Gault Court opined “the highest motives and most enlightened impulses led to a peculiar system for juveniles, unknown to our law in any comparable context. The constitutional and theoretical basis for this peculiar system is -- to say the least -- debatable. And in practice, …the results have not been entirely satisfactory. Juvenile Court history has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. In 1937, Dean Pound wrote: “The powers of the Star Chamber were a trifle in comparison with those of our juvenile courts . . . .” The absence of substantive standards has not necessarily meant that children receive careful, compassionate, individualized treatment. The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness…There is evidence . . . that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”12 The Court further stated “[i]n their zeal to care for children neither juvenile judges nor welfare workers can be permitted

B. Right to Counsel One of the bedrock guarantees affirmed by the Court in In Re Gault was the right to counsel in juvenile proceedings. 13 In addressing the right to counsel in Gault the Court stated, “[a] proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to

12 383 U.S., at 556, citing Handler, The Juvenile Court and the

Adversary System: Problems of Function and Form, 1965 Wis. L. Rev. 7; Harvard Law Review Note; and various congressional materials set forth in 383 U.S., at 546, n. 5.

13 In Re Gault, 387 U.S. at 541.

and the Code of Criminal Procedure. The primary authority for juvenile law is Title 3 of the Texas Family Code. The Texas Family Code was promulgated in 1973 and has undergone legislative changes and revisions since its enactment. Additionally, as juvenile proceedings are considered civil proceedings the Texas Rules of Civil Procedure are applicable20. As the Family Code is the primary source of law for juvenile proceedings it is important to understand that the Family Code is the controlling basis of authority for juvenile procedure. Section 51.17 Texas Family Code provides that the Texas Rules of Civil Procedure govern juvenile proceedings, however, discovery is governed by the Code of Criminal Procedure the Texas Rules of Evidence applicable to criminal cases and Chapter 38 Code of Criminal Procedure. Additionally, the Tex. Code of Criminal Procedure governs with respect to all statute of limitations and limitation periods. 21 under Chapter 12, With the various sources of law utilized in juvenile proceedings it is vital for a practitioner to familiarize himself with the various sources of law. III.

Age Limits Jurisdiction

and

Juvenile

C. Sources of Law Governing Juvenile Justice 20 TEX. FAM. CODE §51.17

Criminal jurisprudence in Texas is governed primarily by the Texas Penal Code

21 See Tex. Fam. Code $51.19

(a) The limitation periods and the procedures for applying the limitation periods under Chapter 12, Code of Criminal Procedure, and other statutory law apply to proceedings under this title. (b) For purposes of computing a limitation period, a petition filed in juvenile court for a transfer, or an adjudication hearing is equivalent to an indictment or information and is treated as presented when the petition is filed in the proper court. (c) The limitation period is two years for an offense or conduct that is not given a specific limitation period under Chapter 12, Code of Criminal Procedure, or other statutory law.

14 In Re Gault, 387 U.S. at 541 [quoting from Powell v. Alabama,

287 U.S. 45, 53 S. Ct. 55 (1932)].

15 Tex. Fam. Code §51.10. 16 Tex. Fam. Code §51.10.

17 Tex. Fam. Code §51.10(b).

See, K.J.O., 27 S.W.3d 340 (Tex. App.—Dallas 2000, pet denied). 19 466 U.S. 668, 104 S. Ct. 2502, 80 L. Ed. 2d 674 (1984). 18

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prepare and submit it. The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’”14 Texas law has extended the right to counsel for juveniles.15 Texas law goes beyond the requirements of the Constitution in several respects. Foremost, it provides that the child has a right to counsel “at every stage of proceedings”, not just at trial or adjudication proceedings. 16 Second, there are certain instances where the right to counsel is mandatory and cannot be waived even with the consent of the juvenile or his family17. The Texas Family Code provides that the right to counsel cannot be waived in specified proceedings such as hearings to transfer to adult court (certification); (2) adjudication proceedings, (3) disposition proceedings, (4) hearings dealing with mental illness or mental retardation and (5) those modification of disposition proceedings in which commitment to the Texas Juvenile Justice Department (TJJD) are sought. Concurrent with the right of counsel is the right to effective assistance of counsel.18 As in adult cases counsel’s level of effectiveness is measured by the standard articulated by the Court in Strickland v. Washington.19

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B. Raising Objections to Age In Texas, juvenile courts have exclusive original jurisdiction in all cases involving delinquent It is important to note that although the age of a child conduct or conduct indicating a need for at the time an alleged offense is committed is supervision involving juveniles between the ages of fundamental to the juvenile court exercising 10 and 17.22 jurisdiction; objections to a juvenile court having jurisdiction of a “child” must be raised at trial or a A. Age of Child hearing to transfer a child to adult court. 27 Further Under Texas juvenile law the definition of Texas Code of Criminal Procedure art. 4.18 requires “child” encompasses juveniles between the age of a written pretrial motion be filed in order to preserve 10 and 17 or individuals between the age of 17 and error to object to the lack of jurisdiction of a criminal 18 who are alleged or found to have engaged in district court because of age.28 delinquent conduct or conduct indicating a need for supervision committed before becoming 17 years of A. a justice or municipal court; age. 23 Historically the age of criminal responsibility or in Texas has been seventeen. Over the last decade B. a county court for conduct there have been legislative proposals to “raise the punishable only by a fine; 3. conduct that violates Section 49.04, age” to eighteen however Texas remains one of 49.05, 49.06, 49.07, or 49.08, Penal Code; or three states in the United States to have the age of 4. conduct that violates Section 106.041, criminal jurisdiction under eighteen.24 Basically, Alcoholic Beverage Code, relating to driving under the delinquent conduct is defined as conduct other than influence of alcohol by a minor (third or subsequent offense). (b) Conduct indicating a need for supervision is: traffic offenses that violate either Texas or Federal 1. subject to Subsection (f), conduct, other penal laws punishable by imprisonment or by than a traffic offense, that violates: A. the penal laws of this state of the confinement in jail.25 Conduct indicating a need for grade of misdemeanor that are punishable by fine only; or supervision are offenses of a relatively minor nature B. the penal ordinances of any such as misdemeanor offenses punishable by fine political subdivision of this state; 2. the absence of a child on 10 or more days only or other offenses such as truancy or runaway or parts of days within a six-month period in the same school offenses.26 year or on three or more days or parts of days within a fourweek period from school; 3. the voluntary absence of a child from the child's home without the consent of the child's parent or guardian for a substantial length of time or without intent to return; 4. conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of paint and other protective coatings or glue and other adhesives and the volatile chemicals itemized in Section 484.002, Health and Safety Code; 5. an act that violates a school districts previously communicated written standards of student conduct for which the child has been expelled under Section 37.007(c), Education Code; or 6. conduct that violates a reasonable and lawful order of a court entered under Section 264.305. 27 See §51.042 Tex. Fam. Code; Adams v. State, 161 S.W.3d (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (Appellant waived his right to challenge the district court’s jurisdiction when he entered a plea without objecting as required by Tex. Code Crim.

22 TEX. FAM. CODE §51.04. 23 TEX. FAM. CODE §51.02.

24 See, e.g. Tex. H.B. 486, 87th Leg., R. S. (2021). 25 TEX. FAM. CODE §51.03.

26 § 51.03. Delinquent Conduct; Conduct Indicating a Need

for Supervision (a) Delinquent conduct is: 1. conduct, other than a traffic offense, which violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail; 2. conduct that violates a lawful order of a court under circumstances that would constitute contempt of that court in:

in the criminal context. Understanding juvenile pleading practice will require a basic facility with the rules that govern pre-trial pleading practice in juvenile proceedings. In order of hierarchical application,31 the sources of law governing pre-trial practice may be identified as those addressing that which must be included in the petition— substantive and formal requirements, and those addressing how defects in pleadings may be raised—procedure. The substantive and formal requirements of petitions are found in three main sources: those sources addressing (1) specific requirements concerning the substance and form of the petition found in the Family Code, 32 (2) the general pleading requirements found in the Code of Civil Procedure,33 and (3) the requirements of form and substance that may be required by constitutional provisions.

C. The Petition The specific formal and substantive requirements of the petition—the primary State pleading—however, are found in statutory requirements set forth, for the most part, in the Family Code.29 The many criminal rules found in the Code of Criminal Procedure and case decisions are not applicable despite the fact that the substantive basis of juvenile pleading is derived from criminal jurisprudence. 30 Criminal pleading practice, however, is not irrelevant to pleading practice in juvenile court. Indeed, the juvenile practitioner should consult and seek guidance from criminal pleading jurisprudence in identifying and drafting challenges to the state’s petition. However, remember the Texas Rules of Civil Procedure are applicable in juvenile proceedings. The main focus of defensive pre-trial pleading practice is limited to challenging the sufficiency of the petition in terms of form and substance. However, the practitioner should not only be aware of what the petition must contain but also how such matters are raised in the context of juvenile proceedings which is very different than the manner of raising such challenges

D. Procedure for Challenging Pleadings in Juvenile Court

Proc. Ann. Art 4.18). 28 See, TEX. CODE CRIM. PROC art 4.18; In re E.D.C., 88 S.W.3d 789 (Tex. App.—El Paso 2002, no writ) (state is no longer required to prove age as an element as a result of this statutory provision). 29 See generally, Tex. Family Code §§ 53.04, 53.05, 53.06. 40 See TEX. R. CIV. PROC. 45, et. seq. (the Family Code provision addressing practice and procedure does not include pleading practice as one of the areas to which criminal procedure is applicable. See TEX. FAM. CODE § 51.17. 30 See e.g., TEX. CODE CRIM. PROC. Art. 21.01. et. seq.

31 See TEX. FAM. CODE §51.17. 32 See TEX. FAM. CODE

§ 53.04. R. CIV. PROC. 45 – 77. 34 TEX. FAM. CODE §53.04; TEX. R. CIV. PROC. 22, 77, 78, - 80. 33 See generally TEX.

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The most important facet of juvenile pleading practice is the application of the civil rules to pleading practice. Unlike with discovery and evidence, criminal procedure governing the challenges to the sufficiency of indictments and informations is not applicable in juvenile proceedings. Juvenile proceedings, being civil in nature, are commenced by petition. 34 The civil nature of the proceeding determines the

the juvenile system. 36 Determinate sentencing arose in Texas as a result of the perception of increasing serious violent criminal acts being committed by young juveniles.37 Prior to the enactment of the Determinate Sentence Act of 1987 juveniles under the age of fifteen could not be certified to stand trial as adults nor receive a commitment to the Texas Juvenile Justice Department beyond the age of twenty-one.38 Numerous legislative options were proposed to address this issue with most centering on reducing the age a juvenile was eligible for transfer to the adult system.39 As initially promulgated in 1987 the determinate sentence legislation covered the six most serious felony offenses: Capital Murder, Murder, Aggravated Kidnapping, Aggravated Sexual Assault, Deadly Assault on a law enforcement officer, Criminal Attempt to Commit Capital Murder.40 Enacted in 1987, the Texas Determinate Statue was the first of its kind in the country. 41 Currently, other states have enacted similar statutes which are commonly referred to as blended or mixed sentences. Under the initial determinate sentence act a youth would receive a sentence where the first portion would be

procedure for raising defects of form and substance in the petition. One of the most notable features of juvenile pleading practice occasioned by the application of the civil rules of procedure is, again, the absence of any requirement that such matters be raised prior to trial at the risk of waiver. Also notable is the lack of various and detailed statutory rules setting forth the requirements of the pleadings as found in the Code of Criminal Procedure. terms of the certainty required in the allegations of the conduct in the state’s petition for which the prosecution is sought. Because the civil rules of procedure are applicable, challenges to the Court’s jurisdiction are made by a plea to the jurisdiction. 35 Additionally, challenges to pleadings are made not by a motion to quash the petition but, rather, by means of special motions peculiar to civil procedure--special exceptions to the petition.

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IV.

Serious Offenses: Determinate Sentence & Certifications Juvenile Courts, although originally enacted as a result of children being treated as adults, have increasingly enacted provisions to address the more serious juvenile offender. A. Determinate Sentence

See, Robert O. Dawson, TEXAS JUVENILE LAW § 21 (8th ed. 2012).; Dawson, Texas Blended Sentencing: An Empirical Study of the Uses of Determinate Sentencing 17 State Bar of Texas Section Report Juvenile Law 5-17 (No. 2, June 2003. 37 Dawson, Texas Blended Sentencing: An Empirical Study of the Uses of Determinate Sentencing, 17 State Bar of Texas Section Report Juvenile Law 5-17 (No. 2, June 2003). 38 Id. 39 See Robert O. Dawson, The Third Justice System: The New Juvenile—Criminal System of Determinate Sentencing for the Youthful Violent Offender in Texas, 19 St. Mary’s L.J. 943-1016 (1988). 40 Robert O. Dawson, TEXAS JUVENILE LAW § 21 (8th ed. 2012). 41 Id. 36

Determinate sentencing is a hybrid dispositional option whereby juveniles who have been adjudicated for severe criminal offenses are given a sentence which includes a term of confinement in the Texas Department of Criminal Justice but begins in 35 See, Tex. Rule Civil Proc. 85.

The purpose of a plea to the jurisdiction is to challenge the court’s subject-matter jurisdiction for example “age.”

•

served at the Texas Juvenile Justice Department (TJJD). Before the juvenile reached his eighteenth birthday a hearing would be conducted in the committing court to ascertain whether the juvenile would be released on TJJD parole, discharged from TJJD altogether or transferred to the Institutional Division of the Texas Department of Criminal Justice to serve the remainder of the juvenile’s sentence.42 Beginning in 1996 widespread changes to the Determinate Sentence Act took effect. 43 First the range of offenses eligible for determinate sentencing cases was greatly expanded. The list of offenses currently includes:

• • • •

•

Second, the range of punishments was changed to account for the various levels of offenses. For third degree felonies the maximum punishment is ten years; second degree felonies twenty years and a maximum of forty years for first degree felonies and capital offenses.45

Murder Capital murder Manslaughter Aggravated kidnapping Aggravated sexual assault Sexual assault Aggravated assault Aggravated robbery Felony injury to a child, elderly, or disabled person Felony deadly conduct involving discharging a firearm Aggravated or first-degree controlled substance felony Criminal solicitation of a capital or firstdegree felony Criminal Attempt of murder, capital murder or an offense listed under Section 3g(a)(1), Article 42.12, Code of Criminal Procedure

1. Grand Jury When seeking to proceed under the Determinate Sentence Act a state prosecutor has essentially unfettered discretion. 46 However, the petition seeking a determinate sentence must be approved by the grand jury.47 In considering a case for approval nine members of the grand jury must vote approval. 48 If nine members do not vote approval the State cannot proceed under the act. If the grand jury rejects approval the State can still proceed with the prosecution of the proceeding either with an Original Petition without a determinate sentence or seek certification if appropriate. Upon approval, section 53.045(d) states the “fact of approval shall be certified to the juvenile court and the certification

See, Id.; TEX. FAM. CODE §54.11 (before 1995 amendment). 43 Dawson, Texas Blended Sentencing: An Empirical Study of the Uses of Determinate Sentencing, 17 State Bar of Texas Section Report Juvenile Law 5-17 (No. 2, June 2003).

44 TEX. FAM. CODE §53.045(a).

45 TEX. FAM. CODE §54.04(3)

In the Matter of S.B.C., 805 S.W.2d 1 (Tex. App.— Tyler 1991, writ denied). 47 TEX. FAM. CODE §53.045(a); §54.04(3). 48 TEX. FAM. CODE §53.045(b).

Juvenile Law

• • • • • • • • •

• • • •

Second-degree felony indecency with a child Criminal solicitation of a minor First degree felony arson Intoxication manslaughter Habitual felony conduct (three consecutive felony adjudications) Criminal Conspiracy.44

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shall be entered in the record of the case”49 Another basis for utilizing the grand jury in juvenile cases is for prosecutors to seek advice from the grand jury about whether to proceed with the case at all.50 Section 53.035 allows a prosecutor to have a grand jury review any juvenile case to determine if charges should be filed. However, if a prosecutor pursues this course of action, then the prosecutor is bound by the decision of the grand jury. If the grand jury denies approval under this provision, then the State may not file any petition in the case unless the same or another grand jury approves the petition.51 2. Adjudication Hearing The requirements for an adjudication hearing for an indeterminate sentence case and a determinate sentence case are the same except for a few differences. In a determinate sentence case only, certain judges can preside over determinate sentence cases. Juvenile court referees, associate judges or constitutional county court judges are prohibited from hearing these cases. 52 Additionally, the jury composition in determinate sentence cases must consist of 12 members even when a county court has jurisdiction.53

3. Disposition Hearings In normal delinquency hearings a juvenile has no right to a jury to determine disposition. 54 In determinate sentence proceedings juveniles have the right to have a jury determine sentencing.55 49 TEX. FAM. CODE

§53.045(d).

50 TEX. FAM. CODE §53.035. 51 Id.

52 TEX. FAM. CODE §54.10(c); TEX. FAM. CODE

§51.04(c). 53 TEX. FAM. CODE §54.03(c). 54 McKeiver Et. Al. v. Pennsylvania, 403 U.S. 528 (1971); TEX. FAM. CODE §54.04.

A requirement for having a jury in the disposition hearing to determine sentencing is that the respondent request or elects in writing before the start of voir dire his desire for a jury.56 4. Probation Juveniles sentenced under a determinate sentence are eligible for probation if the sentence received is less than ten years. 57 This provision was adopted in 1999 with the legislative amendments to the Act. Before this provision change probation and juvenile court jurisdiction of determinate sentence terminated upon a juvenile respondent reaching eighteen years old.58 Determinate sentence probation was a major revision of the Act; the ten year probation period mirrors probation options available in adult cases.59 A ten year probation period gives the juvenile court and juries a wider sentencing option and provides for a better handling of case dispositions. Prior to the changes enacted regarding probation courts were limited in granting probation since probation terminated at the juvenile’s eighteenth birthday; accordingly, it was more probable that a term of years was imposed without probation in those circumstances. Further juries did not impose any of the terms or conditions of probation and both the court and jury merely granted or denied probation. Presently, as in adult cases, once a respondent is assessed a sentence of ten years or less and probation is awarded, the judge makes the determination of the length 55 TEX. FAM. CODE §54.04(a). 56 TEX. FAM. CODE §54.04(a).

57 TEX. FAM. CODE §54.04(q).

58 TEX. FAM. CODE § 54.04(d)(1).

59 TEX. CRIM. PROC. CODE ART. 42.12 § 3, 4(a).

5. Parole

and Minimum Lengths of Stay The determinate sentence statue allows TJJD the ability to parole juveniles without permission from the court once a minimum length of stay is served. For Capital Murder the minimum length of stay is ten years, for first degree felonies the minimum length of stay is three years; two years for a second degree and one year for a third degree felony.61 If a child is released on parole prior to reaching his or her nineteenth birthday the TJJD will supervise him or her until the age of nineteen at which time supervision will be transferred to adult parole.62 If the youth is paroled after the age of nineteen, the youth is immediately placed on adult parole to serve the remainder of the sentence. 6. Transfer Hearings Under current law the Texas Juvenile Justice Department may request the committing juvenile court to conduct a hearing to determine whether to transfer a juvenile sentenced under the Act to prison.63 Section 61.079 states in part: 1. [a]fter a child sentenced to commitment under Section

64 TEX. HUM. RES. CODE §61.079.

60 See

TEX. FAM. CODE § 54.04 (q); compare TEX. CRIM. PROC. CODE ART. 42.12 § 4(b). 61 TEX. HUM. RES. CODE §61.081(f). 62 TEX. HUM. RES. CODE §61.084(g). 63 TEX. HUM. RES. CODE §61.079(a)(2).

65 TEX. HUM. RES. CODE

§61.079(a)(2).

66 TEX. FAM. CODE § 54.11.

See, generally, Matter of C.L., Jr., 874 S.W.2d 880 (Tex. App.—Austin 1974); K.L.M. v. State, 881 S.W.2d 80 (1994). 68 TEX. FAM. CODE §54.11(K). 67

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54.04(d)(3), 54.04(m), or 54.05(f), Family Code, becomes sixteen years of age but before the child becomes 19 years of age, the commission may refer the child to the juvenile court that entered the order of commitment for approval of the child’s transfer to the institutional division of the Texas Department of Criminal Justice if: a. the child has not completed the sentence; and b. the child’s conduct, regardless of whether the child was released under supervision under Section 61.081, indicates that the welfare of the community requires the transfer.64 This provision allows TJJD to request transfer to adult prison those youth who are not working the programs or progressing satisfactorily towards rehabilitation. Once a youth turns sixteen years old and has been at TJJD for at least six months transfer can be requested.65 The decision regarding transfer to prison will be made by the committing court without a jury. 66 In making a decision regarding transfer the court has wide discretion;67 the court may consider various factors such as the child’s history before and after being committed to TJJD, the nature of the original offense, and the 68 recommendation of TJJD. When the purpose of the hearing is to consider transfer the court may either transfer the respondent to adult prison or return the

of probation. 60 If probation is granted juvenile probation will provide supervision. Probation will expire at the juvenile’s eighteenth birthday unless the prosecuting attorney requests a hearing prior to the child’s eighteenth birthday and the court orders probation transferred to adult probation. Once transferred, adult probation will provide supervision.

receiving a determinate sentence has the potential of serving his or her sentence in a juvenile prison where rehabilitation and education are not the primary purpose of the adult system. A juvenile who receives a determinate sentence can never have his record sealed and even if not transferred to the Institutional Division of the Texas Department of Corrections can be under the supervision of adult parole for up to forty years. However, determinate sentence can be a very beneficial option when facing the most serious of juvenile cases—the waiver of jurisdiction and transfer to adult court.

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child to TJJD.69 The procedures and guidelines to be adhered to in a transfer hearing are addressed in §54.11. 7. 2007 Legislative Changes During the 2007 80th Texas Legislative Session major changes were enacted which dealt with the Texas Juvenile Justice Department and juvenile justice. The legislative revisions were the result of reports of widespread physical and sexual abuse of children at TJJD facilities. As a result of the new legislation a major overhaul resulted in the handling of juveniles committed to the Texas Juvenile Justice Department. First, the age of control was reduced; now the maximum age of TJJD jurisdiction is 19. 70 This reduction will greatly affect determinate sentencing in that this reduces the amount of time juveniles can remain under TJJD control. Secondly, no longer can juveniles with misdemeanor adjudications be committed to TJJD. Jury trials were also affected. Juveniles facing a determinate sentence must now request a jury for disposition prior to voir dire or if not requested timely must have permission from the State and the Court.71

B. Certifications The process of trying juveniles as adults is available in every state in the country. States vary on the requirements of trying juveniles as adults however there exist three basic types of transfer hearings. The most prevalent type of statute to transfer juveniles to adult court is judicial waiver. Judicial waiver is the process in which a juvenile court judge makes the determination to transfer a child to adult court after a hearing. By far judicial waiver is the most common type of transfer or certification.73

8. Summary Determinate sentencing was enacted in response to an increase in violent crimes being committed by juveniles. Although many offenses are eligible for determinate sentencing, few cases are actually filed as determinate sentenced. 72 A juvenile

Section Report Juvenile Law 5-17 (No. 2, June 2003). 73 Currently, forty-six states have judicial waiver provisions, in which juvenile court judges clear the way for criminal court prosecutions by waiving jurisdiction over individual juveniles. Under a waiver law, a case against an offender of juvenile age must at least originate in juvenile court; it cannot be channeled elsewhere without a juvenile court judge's formal approval. While all states prescribe standards that must be consulted in waiver decision-making, most leave the decision largely to the judge's discretion (45 states). However, some set up presumptions in favor of waiver in certain classes of cases (15 states), and some even specify circumstances under which waiver is mandatory (15 states). See, Patrick Griffin, National Center for Juvenile Justice “National Overviews,” State Juvenile

69 TEX. FAM. CODE §54.11(i).

See generally, TEX. HUM. RES. CODE §§61.079, 61.081, 61.084; TEX. GOV’T CODE §508.156. 71 TEX. FAM. CODE § 54.04(a). 72 For a detailed empirical analysis see, Dawson, Texas Blended Sentencing: An Empirical Study of the Uses of Determinate Sentencing, 17 State Bar of Texas 70

desire for Texas officials to be progressive.76 The initial goals of Title III were

Automatic waiver, legislative waiver or sometimes referred to as statutory exclusion is the transfer process where certain offenses alleged to have been committed by juveniles are statutorily excluded from juvenile court and original jurisdiction rests with the criminal court. Over half of the states in the country have this process. Commonly referred to as automatic waiver because these statutes remove juvenile court jurisdiction “automatically” and no motion or request from the State or even a decision by the juvenile court judge is required.74 Direct file is the transfer process which gives the prosecution the discretion to determine whether to proceed in juvenile court or criminal court against the juvenile. Direct files places sole discretion with the prosecutor to determine if proceedings will be initiated in juvenile court or criminal court.75 In 1973 the Texas legislature promulgated Title III of the Family Code. The enactment of Title III was in response in part to U.S. Supreme Court decisions, increases in juvenile crime and an overall

Justice Profiles, http://www.ncjj.org/stateprofiles/overviews/transfer state_overview.asp (current through 2004 legislative session) (last visited June 25, 2006). Twenty-nine states have statutory exclusion provisions that grant criminal courts original jurisdiction over certain classes of cases involving juveniles. Legislatures in these states have essentially predetermined the question of the appropriate forum for prosecution-taking the decision out of both prosecutors' and judges' hands. Id. 75 Fifteen states have direct file laws, which leave it up to prosecutors to decide, at least in specified classes of cases, whether to initiate cases in juvenile or criminal courts. Id. 74

76 29 THOMAS S. MORGAN, TEXAS PRACTICE, JUVENILE

LAW AND PRACTICE §1 (1985). 77 See original TEX. FAM. CODE §§51.02 (1-5). Amended.

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1. to provide for the care, the protection, and the wholesome moral, mental and physical development of children coming within its provisions; 2. to protect the welfare of the community and to control the commission of unlawful acts of children; 3. consistent with the protection of the public interest, to remove from children committing unlawful acts the taint of criminality and the consequences of criminal behavior and to substitute a program of treatment, training, and rehabilitation; 4. to achieve the foregoing purposes in a family environment whenever possible, separating the child from his parents only when necessary for his welfare or in the interest of public safety and when a child is removed from his family, to give him the care that should be provided by parents; 5. to provide a simple judicial procedure through which the provisions of Title Three are executed enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.77 In Texas the judicial waiver process is used in removing juveniles to adult criminal court and is referred to as discretionary

1. Certification Eligibility The certification proceedings are initiated by the State filing a motion or petition for discretionary transfer and the issuance of a summons. The minimal requirements necessary for certification bestow on State prosecutors a wide range of discretion in determining which cases to seek certification. However, certifications are usually limited to the more serious offenses, juveniles with chronic delinquent history, or individuals over eighteen who are accused of committing offenses when they were younger than seventeen.

transfer, waiver of jurisdiction or most commonly certification. Discretionary transfer to criminal court or certification allows a juvenile judge to make the determination whether a juvenile respondent is transferred from the juvenile system to the adult criminal system. Although certifications account for a relatively small percentage of proceedings in juvenile court, they are extremely important hearings in that the juvenile court is making a decision to transfer a respondent to adult criminal court.78

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Proceedings in juvenile court are considered civil in nature and have been designed to remove the “taint of criminality from children” and to focus on treatment, training and rehabilitation of the child 79 . Once a juvenile is certified to stand trial as an adult all of the protections available in the juvenile system are lost and the adult system takes over.

The juvenile court has exclusive jurisdiction over nearly all criminal offenses committed by juveniles. 80 Texas Penal Code §8.07(b) states: [u]nless the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age except an offense described by Subsections (a)(1)-(5).81

Texas law establishes basically three types of transfer or waiver of jurisdiction proceedings: hearings where the juvenile respondent is under the age of eighteen at the time of the hearing; hearings where the respondent is an adult or over the age of eighteen at the time of the commencement of the hearing; and the mandatory certification where a person has previously been certified and commits a new eligible offense.

The number of certification proceedings has shown on overall decrease over the last decade; Texas Juvenile Probation Commission statistics show 596 actual certifications occurred in 1994 compared to 220 certifications in 2006. See generally, “Who Gets Certified? An Empirical Study of Discretionary Transfers from Juvenile to Criminal Court” Robert O. Dawson, Juvenile Law Section Report December 2002.

See generally, TEX. PEN. CODE 8.07(a)(1)-(5). TEX. PEN. CODE § 8.07(a)(7) was enacted in 2001 to eliminate a potential defense to prosecution under TEX. FAM. CODE § 54.02(j)(2)(A), and now permits prosecution in criminal court of a person eighteen or older charged with murder or capital murder allegedly committed between the ages of ten and fourteen. TEX. FAM. CODE § 51.03(c) (providing exception for perjury). TEX. FAM. CODE § 51.04(a); In the Matter of N.J.A., 997 S.W.2d 554 (Tex. 1999). 81 TEX. PEN. CODE 8.07(b). 80

TEX. FAM. CODE § 51.01.

1. the child is alleged to have violated a penal law of the grade of felony; 2. the child was: a. fourteen or older at the time he is alleged to have committed the offense, if the offense is - a capital felony, - an aggravated controlled 88 substance felony, or - a first degree felony; or and no adjudication hearing has been conducted concerning that offense;

It is important to note that the age limitation is considered jurisdictional.82 Article 4.18 requires that a defendant or underage child raise the issue of being underage by written motion and the issue must also be presented to the district court judge.83 If the issue of underage is not raised by written motion in district court then the issue will be considered waived. 2. Perjury Generally the age limits for juvenile court to have original jurisdiction of a child exists between the ages of ten and seventeen.84 However a general exception to this provision deals with perjury offenses.85 The Family Code §51.03 states “[n]othing in this title prevents criminal proceedings against a child for perjury.”86 Texas Penal Code §8.07 provides that perjury and aggravated perjury cases may be prosecuted in adult court even against defendants under the age of fifteen.87 3. Under Age Eighteen Section 54.02 of the Family Code establishes when a child under eighteen may be transferred to adult court Section 54.02 generally sets forth three requirements for transfer to adult court:

See generally, TEX. CODE CRIM. PROC. Art. 4.18. Id.; Rushing v. State, 85 S.W.3d 283,286 (Tex. Crim. App. 2002); Adams v. State, 161 S.W.3d 113 (Tex. App.— Houston [14th Dist.] 2004); Mays v. State, No. 01-03-01345-CR, 2005 Tex. App. Lexis 3842 (Tex. App.—Houston [1st Dist.] 5/19/05 unpublished). 84 See, TEX. FAM. CODE § 51.03. 85 TEX. PEN. CODE § 8.07(a)(1); See also., Ponce v. 82 83

State, 985 S.W.2D 594 (Tex. App.—Houston [1st Dist.], no pet.) (affirming a criminal conviction for aggravated perjury committed by 13 year old without court having conducted a certification hearing). 86 TEX. FAM. CODE § 51.03 87 TEX. PEN. CODE § 8.07.

A felony that carries a higher minimum term or higher possible fine than a first degree felony such as possession of large amounts of narcotics. 89 TEX. FAM. CODE § 54.02(a).

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b. fifteen or older at the time he or she allegedly committed - a second degree felony, - a third degree felony, or - a state jail felony; and no adjudication hearing has been conducted concerning that offense; 3. after a full investigation and a hearing, the juvenile court finds that: a. there is probable cause to believe that the child committed the offense, and b. because of the seriousness of the offense alleged or the background of the child, the welfare of the community requires criminal 89 proceedings. 4. Eighteen Or Older The Texas Family Code establishes when a respondent age eighteen or over may

the person could not be found; or - a previous transfer order was reversed on appeal or set aside by a district court; and 5. the juvenile court determines that there is probable cause to believe that the person before the court committed the offense alleged.90

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be certified or transferred to adult criminal court as follows: 1. the person is eighteen or older; 2. the person was: a. ten or older and under seventeen at the time he or she allegedly committed a capital felony or murder; b. fourteen or older and under 17 at the time he or she allegedly committed an aggravated controlled substance felony or a first degree felony other than murder, or c. fifteen or older and under seventeen at the time he or she allegedly committed a second or third degree felony or a state jail felony; 3. no adjudication concerning the alleged offense has been made or no adjudication hearing concerning the offense has been conducted; 4. the juvenile court finds from a preponderance of the evidence that: a. for a reason beyond the control of the State, it was not practicable to proceed before the person’s eighteenth birthday, or b. after due diligence of the State, it was not practicable to proceed before the person’s eighteenth birthday because: - the State did not have probable cause to proceed and new evidence has been found since the person’s eighteenth birthday;

In certification hearings involving respondents over the age of eighteen the court only has authority to either waive its jurisdiction or if jurisdiction is not waived to dismiss the State’s petition, or motion to transfer, and any petition seeking to adjudicate the respondent delinquent.91 One of the primary elements of the State’s burden in these hearings is providing justification for the delay beyond the respondent’s eighteenth birthday. 92 In these types of transfer hearings where the State is initially proceeding after the eighteenth birthday of the respondent demonstrating due diligence is mandatory for the State to meet its burden of transfer. If the State cannot justify the delay in proceeding prior to the juvenile turning eighteen the juvenile court has no jurisdiction to transfer.93 Establishing due diligence is a jurisdictional matter and no harm analysis is necessary.94

TEX. FAM. CODE § 54.02(j). Robert O. Dawson, TEXAS JUVENILE LAW § 10 (7th ed. 2008). 92 In justifying a delay, the court in In the Matter of N.M.P., stated [w]e find no authority … holding that the State must search out and use new, unproven scientific theories or test to meet the due diligence requirement. To the contrary, the law requires the State to show that novel scientific evidence is reliable, and thus probative and relevant…. The State would be in an untenable position if it were required to prove that a cutting edge scientific test was reliable when the experts were still developing and refining the technology. In the Matter of N.M.P., 969 S.W.2d 95 (Tex. App.—Amarillo 1998). 90 91

The court in Webb, held it is incumbent upon the State to file and conclude the certification hearing before the respondent’s eighteenth birthday. 95 In Webb, the court opined that the meaning of “proceeding” in juvenile court, meant concluding the hearing before the respondent’s eighteenth birthday, agreeing with the trial court.96 The certification provisions establish four justifications for the delay as follows: 1. not practicable to proceed before age eighteen; 2. new evidence discovered; 3. respondent could not be found; 4. appellate reversal of certification order 5. Certifications For Murder and Murder

are alleged to have committed either Capital Murder or Murder while between the ages of ten and fourteen can be considered for waiver of jurisdiction or certification to adult court.97 This provision of the family code was promulgated by the legislature with the 1999 amendments to the Texas Family Code. The rationale for this provision is that Capital Murder and Murder have no statute of limitations and the juvenile court would have been able to impose a sentence of commitment to the Texas Juvenile Justice Department with a possible transfer to the Texas Department of Criminal Justice for up to a forty year term. 98 Before this legislative change, these offenses would not have been eligible for certification if the person was under fourteen at the time the offense allegedly was committed. If the State, however, was unable to proceed before the eighteenth birthday of the juvenile the juvenile system could not handle the case because the person was over eighteen, and the adult criminal system would also have no jurisdiction since the offense has original jurisdiction with juvenile court.99

Capital

Only individuals eighteen or over who

Title III of the Texas Family Code has adopted the constitutional mandates of Kent, and its progeny in affording procedural protections to respondents in certification hearings. 100 Respondents are entitled to due process in that notice of the charges or allegations are required; the right to counsel is not waivable; the right of confrontation is guaranteed; and the 97

TEX. FAM. CODE § 54.02(j)(2)(A).

98 Robert O. Dawson, TEXAS JUVENILE LAW § 10 (6th ed.

2004). 99 See TEX. PEN. CODE § 8.07. 100 See generally, TEX FAM. CODE § 54.02.

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93 See generally, In the Matter of N.M.P., 969 S.W.2d 95 (Tex. App.—Amarillo 1998)(new DNA testing became available after the respondent turned eighteen); In the Matter of J.C.C., 952 S.W.2d 47 (Tex. App.—San Antonio 1997)(State unable to provide justification for not proceeding against respondent before turning eighteen when it proceeding against his twin brother for the same offense prior to the twin brother turning eighteen). 94 See, Webb v. State, unpublished, No. 08-0000161-CR, 2001 WL 1326894, Juvenile Law Newsletter 01-4-45 (Tex. App.–-El Paso 10/25/01). In Webb, the State did not establish that the delay in proceeding in juvenile court before the defendant’s eighteenth birthday was not beyond its control. In reviewing the decision, the court vacated the murder conviction following certification and dismissed the juvenile proceedings for want of jurisdiction. The defect was held to be jurisdictional, and no harm analysis was necessary. 95 Webb v. State, unpublished, No. 08-00-00161-CR, 2001 WL 1326894, Juvenile Law Newsletter 01-4-45 (Tex. App.—El Paso 10/25/01). 96 Id.

privilege against spelled out in Kent.101

self-incrimination

6. Notice of Petition or Motion for Discretionary Transfer Section 54.02(b) states: “[t]he petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.”102 The requirements of Section 53.04, mandate that the motion for transfer or petition must state:

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1. with reasonable particularity the time, place, and manner of the acts alleged and the penal law or standard of conduct allegedly violated by the acts; 2. the name, age, and residence address, if known, of the child who is the subject of the petition; 3. the names and residence addresses, if known, of the parent, guardian, or custodian of the child and of the child’s spouse, if any; and 4. if the child’s parent, guardian, or custodian does not reside or cannot be found in the state, or if their places of residence are unknown, the name and residence address of any known adult relative residing in the county, or, if there is none, the name and Id. TEX. FAM. CODE § 54.02(b); See also Texas Fam. Code § 54.02 (k)(addressing certifications when respondent over eighteen); See also McBride v. State, 655 S.W.2d 280 (Tex. App.— Houston [14th Dist.] 1983, no writ).

101 102

residence address of the known adult relative residing nearest to the location of the court. Notice to the juveniles’ parents has been considered mandatory.103 In Carlson v. State, the court reversed a conviction for Aggravated Assault were the juvenile plead guilty; the court opined that “although service upon a parent is a ‘waivable right’ pursuant to the waiver provisions in Section 53.06(e), no such waiver occurred in this case. Neither of appellant’s parents attended the hearing nor waived service of the summons in writing. Since the right to service of the summons was not waived, service upon a parent was mandatory.” 104 Additionally, the motion must state “that the hearing is for the purpose of considering discretionary transfer to criminal court.”105 7.

Criminal Transaction Multiple felony offenses pending against the Respondent for which there is probable cause can and should be alleged in the same petition to transfer. If the State files a petition which alleges multiple offenses that constitute more than one criminal transaction, the juvenile court may either retain or transfer all offenses relating to each transaction. It is important to note that the juvenile court waives jurisdiction over a transaction, not a specific statutory offense, so the court may transfer or retain different criminal transactions.106 Section 54.02(g) states “[i]f the petition alleges multiple offenses that constitute more than one criminal transaction, the juvenile court shall either retain or transfer all offenses relating to a single transaction. A child is not subject to criminal court shall either retain or transfer all offenses relating to a single transaction. 103 Carlson v. State, 151 S.W.3d 643 (Tex.

App.—Eastland 2004).

104 Id. 105 TEX. FAM. CODE

§ 54.02(b).

106 TEX. FAM. CODE § 54.02(g)

For example, if a respondent is certified for a criminal transaction which occurred at the age of fourteen only the first degree felony may be prosecuted. These situations would prevent the State from charging any lesser included offenses.110 8. Diagnostic Study, Social Evaluation and Investigation Prior to the actual certification hearing the juvenile court is required to order and have completed various evaluations and reports.111 Section 54.02(d) provides: “[p]rior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.”112 a. Diagnostic Study The legislature has not established or expressly stated what must be included in a diagnostic study. 113 However, the purpose of this diagnostic study is to assist the court in determining whether to exercise its discretion to either retain or waive its jurisdiction. Opinions vary regarding the contents of the diagnostic examination but generally the report is a forensic examination by a clinical psychologist or psychiatrist and social investigation by the juvenile probation department. The report generally addresses such issues as the child’s

Id. Ex parte Allen, 618 S.W.2d 357 (Tex. Crim. App. 1981). 109 See, e.g., Ex Parte Allen, 618 S.W.2d 357 (Tex. Crim. App. 1981); Livar v. State, 929 S.W. 2d 573 (Tex. App.—Fort Worth 1996, pet. ref’d); Brosky v. State, 915 S.W.2d 120 (Tex. App.— Fort Worth, pet. ref’d) 107 108

TEX. CRIM. PROC. CODE § 4.18. TEX. FAM. CODE § 54.02(d). 112 Id. 113 R.E.M. v. State, 532 S.W.2d 645 (Tex. Civ. App.—San Antonio 1975). 110 111

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A child is not subject to criminal prosecution at any time for any offense arising out of a criminal transaction for which the juvenile court retains jurisdiction.” Accordingly, if the court retains jurisdiction over any criminal transaction the respondent is not subject to prosecution for any offense for which the court retains jurisdiction.107 The State upon receiving the transferred case in criminal court may charge any offense or offenses supported by probable cause as long as the offense arose out of a criminal transaction that was transferred by the juvenile court. 108 In Allen, the Court established the principal that the juvenile court in deciding to waive or transfer its jurisdiction assesses the underlying conduct in the waiver hearing. Accordingly, if a respondent is transferred the adult court not only has jurisdiction over the offense transferred and any lesser included offenses but any conduct that resulted from the same criminal transaction. 109 As a result of the Allen principal a defendant transferred to adult court can be prosecuted for any offense the State can prove as long as the offense charged is based on conduct from the criminal transaction from which the juvenile court waived jurisdiction. However, the offense charged by the State must have been an offense for which the respondent was eligible for certification.

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sophistication, maturity, background and family history. 114 The provisions of Section 54.02(d) are mandatory and apply to transfer hearings regardless of the age of the respondent. The only exception are certifications where the state is seeking automatic or “mandatory” transfer proceedings conducted pursuant to the Texas Family Code. 115 If the court fails to order the diagnostic study, evaluation or investigation or to consider the reports in the discretionary transfer hearing the certification hearing is subject to being reversed by a reviewing court.116 In R.E.M. v. State, the court stated: Section 54.02(d) is mandatory…. It is impossible to read Title 3 of the Family Code…without reaching the conclusion that its effect is to give to a juvenile offender the right not to be treated as an adult offender unless he is divested of that right by judicial order entered after complying with the requirements set forth in Section 54.02. The necessary conclusion is that, in the absence of an effective waiver by the child, he can be subjected to treatment as an adult only if there has been compliance with the mandatory provisions of Section 54.02.117 Although it is mandatory for the court to order a diagnostic evaluation, the respondent may choose to exercise his Fifth 114 For a discussion of what information should be included in

the report, see Hays & Solway, The Role of Psychological Evaluation in Certification of Juveniles for Trial as Adults, 9 Hous. L. Rev. 709 (1972). 115 TEX. FAM. CODE § 54.02(n). 116 R.E.M. v. State, 532 S.W.2d 645 (Tex. Civ. App.—San Antonio 1975). 117 Robert O. Dawson, TEXAS JUVENILE LAW § 10 (6th ed. 2004)(citing R.E.M. v. State, 532 S.W.2d 645 (Tex. Civ. App.— San Antonio 1975)).

Amendment right and not answer questions. Further, the use of the examination results has limited results in an adult criminal proceeding if a juvenile is certified to stand trial as an adult. When the psychological examination is used both as the basis of the examiner’s determination that the juvenile should be transferred and as a source of incriminating evidence introduced at trial, it requires additional constitutional 118 safeguards. When used only for its intended purpose, the examination has been held not to be considered a custodial interrogation; however, when the State seeks to use the examination in a subsequent criminal proceeding then the examination serves a dual purpose. In Cantu v. State, the court held that notwithstanding the neutral nature of the psychological examination, the statements a juvenile utters during the examination are not automatically removed from the reach of the Fifth Amendment, if a juvenile is not adequately informed of his Fifth Amendment rights with respect to the diagnostic examination or that his testimony during that examination would be used against him in an adjudicatory proceeding, a waiver of his rights is ineffective.119 b. Full Investigation Also not defined in certification statutes is the term “full investigation of the child, his circumstances, and the circumstances of the alleged offense.”120 In looking at this provision one Texas court opined “[t]he phrase ‘full investigation of Cantu v. State, 994 S.W.2d 721 (Tex. App.—Austin 1999). 119 Id. at 735; See also, Estelle v. Smith, 451 U.S. 454, 465, 101 S. Ct. 1866, 1874, 68 L. Ed. 2d 359 (1981). 120 See e.g., In re I.B., 619 S.W.2d 584 (Tex. Civ. App.—Amarillo 1981). 118

make appropriate and informed decisions regarding when to invoke such rights as privilege against selfincrimination. 124 What various courts do seem to suggest is that counsel for defense can assert constitutional protections but cannot then complain on appeal that the required studies or evaluations are incomplete because of his or her own actions. 125 9. The Hearing Certification hearings in Texas are conducted by the court without a jury. 126 Specifically, §54.02(c) provides: “[t]he juvenile court shall conduct a hearing without a jury to consider transfer of the child for criminal proceedings.” 127 The absence of a jury trial is consistent with the dictates of both state and federal law, since it has been held that juveniles are not constitutionally entitled to jury trials in

the circumstances of the offense’ is not defined in section 54.02. We believe that for good reasons the legislature did not attempt to define the phrase. Of necessity, any inquiry into the circumstances of an offense must be one of degree. It is a matter of common knowledge that the course and scope of an investigation will vary according to the circumstances surrounding the event.”121 The certification statutes allow the juvenile court judge to consider and admit written reports from probation officers and other professionals. 122 The mandatory procedures enunciated in Section 54.02(d) are established with the purpose of providing the court information sufficient enough to make an informed decision regarding waiving jurisdiction. Although mandatory, these procedures must be balanced against the constitutional protections afforded respondents facing transfer to criminal court. Section 54.02(e) seeks to strike a balance by requiring disclosure to counsel for the Respondent prior to the certification hearing 123. Accordingly, an attorney for a child facing transfer or certification must

See e.g., In K.W.M. v. State, 598 S.W.2d 660 (Tex. Civ. App.—Houston[14th Dist.] 1980, no writ) (the court stated that section 54.02(d) does not require a court to order that the child discuss his involvement in the offense, no self-incriminatory statements are required, and if any custodial statement will be used in a later criminal trial, then the Family Code protections must be provided. 125 In R.E.M. v. State, 541 S.W.2d 841 (Tex. Civ. App.—San Antonio 1976, writ ref’d n.r.e.), the respondent refused to cooperate with the professionals who tried to interview him, then claimed on appeal that the report was incomplete. The court stated: “[w]e are not inclined to hold that the statute requires the accomplishment of that which is impossible due to appellant’s attitude.” R.E.M., 541 S.W.2d at 845. The court in R.E.M. held that Texas Family Code 51.09 precluded a waiver of the diagnostic study where the child asserted his right to remain silent but did not waive his right to study. Later cases hold that the respondent’s failure to cooperate does not waive the right to the study but will prevent the child from arguing on appeal that the study was incomplete. See Ortega v. State, unpublished, No. 05-0000086-CR, 2002 WL 14163 (Tex. App.—Dallas 2002); In the Matter of J.S.C., 875 S.W.2d 325 (Tex. App.—Corpus Christi 1994, writ dism’d); and In the Matter of C.C., 930 S.W.2d 929 (Tex. App.—Austin 1996, no writ). 126 TEX. FAM. CODE § 54.02(c) 127 Id. 124

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In re I.B., 619 S.W.2d 584 (Tex. Civ. App.—Amarillo 1981, no writ). See also Price v. State, unpublished, No. 05-01-00588-CR, 2002 WL 664129, 2002 Tex. App. Lexis 2852 (Tex. App.—Dallas 4/24/02)(appellant argued that a “full investigation” required the probation department to personally interview the victims or include the respondent’s version of the circumstances of the offense in the report. The appellate court rejected this argument, finding that the court did not abuse its discretion in concluding that a full investigation was performed.) 122 TEX. FAM. CODE § 54.02(d). 123 TEX. FAM. CODE § 54.02(e) requires one day notice to the attorney representing the child to written reports that will be considered by the court. Act of June 19, 2009, 81st Leg., S.B. 518 (to be codified at TEX. FAM. CODE § 54.02(e) will provide five (5) days notice effective September 1, 2009. 121

juvenile proceedings.128 No deprivation of any constitutional right should be construed in the absence of juries in the certification hearing. Although a right to jury is not available in certification hearings, a waiver hearing before the court is mandatory prior to a court exercising its jurisdiction and transferring a respondent to adult criminal court.129 Further it has been well settled that certification proceedings are not trials on the merits, but hearings to determine whether the juvenile court will waive its original jurisdiction and transfer the case to adult criminal court for trial or retain its jurisdiction and keep the proceedings in juvenile court.130

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10.

Right Of Counsel An attorney cannot be waived in a certification proceeding.131 It has been held that proceeding with the transfer hearing without the presence of counsel for the juvenile is reversible error. 132 It is well established that a juvenile is entitled to the effective assistance of counsel at a certification hearing. 133 In Kent, the court stated “[t]he right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement.

It is of the essence of justice.” 134 The ineffectiveness of counsel in juvenile cases is measured by the Strickland v. Washington, 135 standard just as in adult criminal cases. 11. Evidence The certification statutes do not expressly promulgate the evidentiary procedures which must be adhered to in waiver hearings, however, the Texas Rules of Evidence provides in pertinent part “[e]xcept as otherwise provided by statue, these rules govern civil and criminal proceedings (including examining trials before magistrates) in all courts of Texas, except small claims courts.”136 Many courts have opined that the Texas Rules of Evidence are not applicable in certification proceedings; the primary rationale for this position was that the court needed to make a determination as to whether a grand jury would indict. However, with the amendments to the statute effective in 1996 the grand jury provision was repealed. 137 The issue of hearsay as well as the application of the Sixth Amendment Confrontation clause in certification hearings have been addressed by some appellate courts. 138 However

134 Kent v. United States, 383 U.S. at 561.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984)(whether counsel’s performance fell below an objective standard of reasonableness and, if so, whether a reasonable probability exists that, but for counsel’s unprofessional errors, a different outcome would have resulted.); .See also, In re K.J.O., 27 S.W.3d at 343. 136 TEX. RULES EVID. 101(b). See also TEX. FAM. CODE § 51.17(c) which apply the Texas Rules of Evidence applicable to criminal cases in juvenile proceedings. 137 TEX. FAM. CODE § 54.02(f)(3) repealed. 138 See generally, Milligan v. State, No. 03-0400531-CR, 2006 Tex. App. Lexis 1356, (Tex. App.—Austin 2/16/06) (Neither Sixth Amendment nor Crawford confrontation rights apply at the juvenile 135

See, generally, McKeiver v. Pennsylvania, 403 U.S. 528, 533, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971); Strange v. State, 616 S.W.2d 951 ; In the Matter of P.B.C., 538 S.W.2d 448 (Tex. Civ. App.—El Paso 1976, no writ). 129 Id. 130 M.A.V., Jr. v. Webb County Court at Law, 842 S.W.2d 739 (Tex. App.—San Antonio 1992, writ denied). 131 TEXAS FAM. CODE § 51.10(b)(1). 132 In the Matter of D.L.J., 981 S.W.2d 815 (Tex. App.— Houston [1st Dist.] 1998, no writ). 133 See Kent v. United States, 383 U.S. 541, 561-62 (1966); In re K.J.O., 27 S.W.3d 340, 342 (Tex. App.—Dallas 2000, pet. denied). 128

4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment (to be determined by consultation with the United States Attorney).

neither of the state’s highest courts, the Texas Supreme Court or Court of Criminal Appeals, have yet to address this issue. It is settled that Texas Rules of Evidence applicable to criminal cases are to be used in certification proceedings.139 12. Factors to be Considered by the Court

5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime in the U.S. District Court for the District of Columbia.

In the seminal case, Kent v. United States, the Supreme Court articulated factors which were determinative in addressing whether a judge should waive its jurisdiction and transfer a case to adult criminal court.140 The factors articulated by the Court were

6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.

2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.

7. The record and previous history of the juvenile, including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.

3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.

certification hearing); In the Matter of S.M., No. 2-05-262CV, 2006 Tex. App. Lexis 9056 (Tex. App.—Fort Worth, 10/19/06) (Crawford v. Washington does not apply to determinate sentence transfer hearings since they are not a critical stage of a criminal prosecution) c.f. In the Matter of M.P., No. 10-06-00008-CV, 2007 Tex. App. Lexis— Waco, 2/7/07)(Court held that a juvenile has no Sixth Amendment or Article I, Section 10 of the Texas Constitution right of confrontation during a disposition hearing however, he does have a limited right of confrontation under the Due Process Clause of the Fourteenth Amendment, which requires a balancing test). 139 TEX. FAM. CODE § 51.17 (c). 140 U.S. v. Kent 383 U.S. at 566-567.

8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court.141 The Texas provision of the certification statute §54.02(f) adopts and incorporates the Kent, factors which were promulgated to 141 Id.

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1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.

provide constitutional safeguards to juvenile respondents in transfer hearings.142 Section 54.02(f) requires the juvenile court to consider the following factors in making the decision to waive jurisdiction:

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1. whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person; 2. the sophistication and maturity of the child; 3. the record and previous history of the child; and 4. the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.143 This list is not exhaustive, in that the court may consider other factors which it deems appropriate in determining whether to transfer a case to criminal court. However, the court must “consider” the statutory factors in making its determination.144 13. Required Findings

There are five basic requirements that must be established before the juvenile court may waive its jurisdiction. Prior to transfer the court must make the following findings: 1. the child is alleged to have committed a felony; 2. the child was: 142 Kent v. United States, 383 U.S. 541, 561-62 (1966)

143 TEX. FAM. CODE § 54.02(a). The legislative changes which

took effect on January 1, 1996, eliminated two factors: whether the offense was committed in an aggressive and premeditated manner and whether there was evidence on which a grand jury could be expected to return an indictment. 144 In the Matter of J.R.C., 551 S.W.2d 748 (Tex. Civ. App.— Texarkana 1977, writ ref’d n.r.e.)

a. fourteen or older at the time he or she allegedly committed a capital felony, an aggravated controlled substance felony, or a first degree felony, or b. fifteen or older at the time he or she allegedly committed any other felony; 3. no adjudication hearing has been conducted concerning the offense; 4. there is probable cause to believe that the child before the court committed the alleged offense; and 5. because of the seriousness of the offense or the background of the child, the welfare of the community requires criminal proceedings.145 If the court is proceeding with a hearing where the respondent is over eighteen the court must make the additional findings regarding due diligence. 146 The burden is on the State to prove the allegations in the petition or motion for discretionary transfer by a preponderance of the evidence. 14. Community Welfare Provision

Of most important in a court’s consideration to transfer a juvenile to adult court is whether the evidence dictates that the welfare of the community requires transfer to adult criminal court. 147 This finding will be reviewed by an appellate court on legal and factual sufficiency grounds. 148 If the evidence is deemed 145 TEX. FAM. CODE § 54.02(f).

146 TEX. FAM. CODE § 54.02(j)(4).

147 TEX. FAM. CODE § 54.02(a)(3).

148 Green v. State, unpublished, No. 05-97-01176-CR, 1999

WL 783734, 1999 Tex. App. Lexis 7328, Juvenile Law Newsletter 99-4-14 (Tex. App.—Dallas 10/4/99).

legally insufficient on appellate review the respondent may not be transferred to adult court since judgment should be rendered for the respondent and the waiver petition dismissed with prejudice. 149 15. Criminal Transaction When a juvenile court waives its jurisdiction and transfers a juvenile respondent to adult criminal court it is not actually transferring the respondent for all purposes. In essence what the juvenile court is waiving jurisdiction for a particular criminal conduct or transaction.150 Section 54.02(g) of the Family Code states [i]f the petition alleges multiple offenses that constitute more than one criminal transaction, the juvenile court shall either retain or transfer all offenses relating to a single transaction. A child is not subject to criminal prosecution at any time for any offense arising out of a criminal transaction for which the juvenile court retains jurisdiction151.

Although courts are required to give its reasons for transfer in its order it is well settled that juvenile courts have wide latitude in determining whether to retain or waive jurisdiction in a certification proceeding152. In reviewing a court’s order to transfer a reviewing court will defer to the trial court’s findings. 149 See generally, In the Matter of A.T.S., 694 S.W.2d 252 (Tex. App.—Fort Worth 1985 (Appellate Court held evidence did not support transfer hearing since offense committed was crime of “juvenile nature”). 150 See, Ex Parte Allen, 618 S.W.2d 357 (Tex. Crim. App. 1981). 151 TEX. FAM. CODE §54.02(g). 152 See generally, TEX. FAM. CODE §54.02(h).

1. the child was not indicted by the grand jury in the matter transferred; 2. the child was found not guilty in the matter transferred; 3. the matter transferred was dismissed with prejudice; or 4. the child was convicted in the matter transferred, the conviction

153

TEX. FAM. CODE §54.02(m).

Juvenile Law

16. Order

17. Mandatory Certification—Once Certified Always Certified The third basic type of certification in Texas is often referred to as “mandatory certification.” 153 The mandatory provisions were enacted with the advent of the legislative changes in 1995. The provisions of the code establishing the mandatory transfer proceedings basically codifies the doctrine or practice of “once certified always certified.” Although the statute is commonly referred to as mandatory certification the process is not automatic and not all inclusive. The prosecutor has discretion whether to seek a mandatory transfer or not. However, if the State does seek transfer under this provision and the requirements of the statute are complied with, the juvenile court must transfer the case. Mandatory transfer requires: 1. the child was previously transferred to criminal court for criminal proceedings; and 2. the child has allegedly committed a new felony offense before becoming seventeen years old. The mandatory transfer provision does not apply if at the time of the transfer hearing:

Juvenile Law

was reversed on appeal, and the appeal is final.154 Of major importance to this provision is the requirement that the respondent was previously certified to adult court and a valid transfer order exists and a new felony offense is alleged.155 Additionally, the case which the respondent was previously certified to adult court must be final and not have resulted in an acquittal, dismissal prior to indictment, no billed or reversed on appeal.156 Once the statutory provisions are met transfer to adult court is mandatory; hence the term “mandatory certification.” These procedures were designed to expedite the transfer process and increase judicial economy.157 This streamlined process does away with the requirements of obtaining a complete diagnostic study, social investigation and investigation of the child and the circumstances of the alleged offense. Although the statute calls for an extremely streamlined process and does not address additional proof requirements it should be concluded that probable cause demonstrating the respondent committed a felony offense would still be necessary to be shown by the State.158 18. Appeals A juvenile respondent has a right to appeal the decision of a juvenile court transferring jurisdiction to adult court; however, this right has been severely curtailed. Prior to the 1995 legislative changes to the Family Code direct appeals to the Court of Appeals, then possible review by 154 TEX. FAM. CODE § 54.02(m). 155 Id. 156 Id.

157 See generally, TEX. FAM. CODE § 54.02(n).

158 TEX. FAM. CODE § 54.02(a)(3); Kent v. United States 557; Robert O. Dawson, TEXAS JUVENILE LAW § 10 (6th ed. 2004).

the Texas Supreme Court were available.159 Effective with offenses occurring after January 1, 1996, the right to take a direct appeal from a 160 certification order was eliminated. Presently, Texas law provides that an appeal from a transfer order may be taken only after a conviction and direct appeal in adult criminal court.161 This joint appeal may include claims of error which occurred in the transfer hearing along with any errors from the adult criminal conviction. 162 Additionally, the criminal rules are applicable in the appellate process which result in ultimate state review by the Court of Criminal Appeals instead of the Texas Supreme Court. 19. Miscellaneous Certification Two essentially identical provisions of the juvenile mental health statutes allow for “automatic” transfer of certain cases to adult criminal court. 163 These statutes state 1. The juvenile court shall transfer all pending proceedings from the juvenile court to a criminal court on the eighteenth birthday of a child for whom the juvenile court or a court to which the child’s case is referred under Section 55.12(2) has ordered inpatient mental health services if: 159 TEX. FAM. CODE § 56.01(c)(1).

TEX. FAM. CODE § 56.01(c)(1)(A), which had authorized a direct appeal from an order of transfer, was repealed. See e.g., Silva v. State, S.W.3d , No. 01-0600031-CR, 2007 Tex. App. Lexis 3698 (Tex. App.—Houston [1st Dist.] 5/10/07), Rodriguez v. State, 191 S.W.3d 909 (Tex. App.—Dallas 2006). 161 CCP Art. 44.47; See e.g., Small v. State, 23 S.W.3d 549 (Tex. App.—Houston [1st Dist.] 2000, writ ref’d). 162 CCP Art. 44.47; Vasquez v. State, unpublished, No. 0999-00664-CR, 2000 WL 795328, Juvenile Law Newsletter 00-3-08 (Tex. App. – Austin 6/22/00). 163 See, TEX. FAM. CODE §§ 55.19, 55.44; Robert O. Dawson, TEXAS JUVENILE LAW § 10 (6th ed. 2004). 160

a. The child is not discharged or furloughed from the inpatient mental health facility before reaching eighteen years of age; and b. The child is alleged to have engaged in delinquent conduct that included a violation of a penal law listed in Section 53.045 and no adjudication concerning the alleged conduct has been made.164 These provisions require transfer to adult court juveniles charged with offenses under the Determinate Sentence Act who remain confined under a commitment order at the age of eighteen. Section 55.44 permits adult criminal proceedings when the respondent is competent to stand trial after age eighteen and is charged with an offense under the Determinate Sentence Act. There has been minimal use or litigation of these provisions however the juvenile court has no discretion in its application.165 20.

punishment ranges from probation for ten years to sentencing of forty years. Certification or transfer to adult court immediately transfers a juvenile to adult court where all the protections of the juvenile court are removed; accordingly juvenile court cases can have lasting effect well beyond the child’s 18th birthday. V.

Conclusion

Practicing juvenile law is a specialized area of law and should be treated as such. Representing youth and young adults who are in jeopardy of losing their liberty requires zealousness and a commitment to advocacy. Foremost the practitioner is tasked with representing the expressed interest of our clients while utilizing the highest levels of professionalism and advocacy.

Certification Summary

Juvenile Law

Certifications of juveniles in Texas account for roughly one percent of all juvenile referrals. Although this comprises a relatively small number of juvenile proceedings, these hearings are of utmost importance. Upon transfer to adult court the juvenile protections and safeguards which have been mandated in Texas law since the Gault decision are lost and adult provisions and statutes become applicable. Certification cases along with Determinate Sentence cases can extend the punishment range of cases that begin when an individual is still in their early childhood. Determinate Sentence c a s e s can have a

164 Id.

165 TEX. FAM. CODE §55.44.

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

United States Sentencing Guidelines Amendments Roberto Balli

Webb County Criminal Defense Lawyers PO Box 1058 Laredo, TX 78042-1058 956.712.4999 phone 956.724.5830 fax robertoballi@sbcglobal.net email https://webbcountycriminaldefense.com/ website

U.S. Sentencing Guidelines Amend.

Speaker:

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

United States Sentencing Guidelines Amendments by Roberto Balli NOTE: This Paper addresses the 2023 Sentencing Guideline Amendments. The 2024 Guidelines are not available at the date of the deadline for the article. However, this paper will be supplemented with a new article covering the 2024 amendments. Here is a link to the United States Sentencing Commission’s final version of the 2024 amendments dated April 17, 2024. https://www.ussc.gov/guidelines/amendments/adopted-amendments-effectivenovember-1-2024 Federal Sentencing Guideline Amendments 2023 After years without a quorum, the United States Sentencing Commission finally met and passed some significant and impactful guideline amendments in years. The two most impactful guideline amendments, became effective November 2023, and are already having the immediate effect of lowering the guideline scores in a significant number of cases. These amendments are the new “Zero Point Offender” guideline and the amendment to “Status Points” criminal history guideline. The amendments are referred to as Amendment 821. Importantly, both amendments are being applied retroactively as of February 1, 2024. Zero Point Offenders

(1) the defendant did not receive any criminal history points from Chapter Four, Part A; (2) the defendant did not receive an adjustment under §3A1.4 (Terrorism); (3) the defendant did not use violence or credible threats of violence in connection with the offense;

U.S. Sentencing Guidelines Amend.

The first of these guideline amendments is the Zero Point Offender guideline. The amendment created a new sentencing guideline, §4C1.1, which gives a 2-point reduction to the guideline score to certain defendants that have zero criminal history points. Specifically, §4C1.1(a) provides a 2-level decrease from the offense level determined under Chapters Two and Three if the defendant is not excluded by the following criteria:

(4) the offense did not result in death or serious bodily injury; (5) the instant offense of conviction is not a sex offense; (6) the defendant did not personally cause substantial financial hardship; (7) the defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (8) the instant offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights); (9) the defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and (10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. §848.

U.S. Sentencing Guidelines Amend.

Of note is that some of the excluding criteria relate to the defendant’s conduct and some of the excluding conduct relate to the offense conduct. For example, (a)(3) states that “the defendant did not use violence …,” but (a)(4) states that the offense cannot result in death or serious bodily injury. Emphasis added. This is an important distinction because under (a)(3) the defendant would not be excluded from the Zero Point offender reduction in a case involving violence as long as he did not personally participate in the violence. On the other hand, under (a)(4), regardless of the defendant’s conduct, if a person suffered death or serious bodily injury as part of the offense, the defendant would be excluded from the Zero Point Offender reduction. Another interesting part of the Zero Point offender reduction is that it comes from Chapter 4. Since the sentencing guidelines are applied in the order of the guidelines, this means that the two-point reduction is applied after acceptance of responsibility (which is found in Chapter 3 of the Guidelines). Therefore, this does not affect the additional one-level reduction (by Government motion) for acceptance of responsibility. The last exclusionary criterion is significant because it excludes defendants in continuing criminal enterprise drug conspiracies who receive an aggravating role under the guidelines from qualifying for the Zero Point Offender reduction. The exclusion references 21 U.S.C. §848 for the definition of continuing criminal enterprise in drug cases and would require proof that the drug conspiracy involved at least five participants and that the defendant obtained substantial

income or resources. Therefore, not every person receiving an aggravating role in a drug conspiracy is excluded. Further, those receiving aggravating roles in non-drug conspiracies are not excluded from the Zero Point Offender reduction. As part of the Zero Point Offender Reduction, an amendment was also made to Guideline §5C1.1. The new Application Note 10(A) of §5C1.1 states that for Zero Point offenders falling in “Zone A or B of the Sentencing Table, a sentence other than a sentence of imprisonment . . . is generally appropriate.” Emphasis added. This application note encourages the sentencing court to give a non-prison sentence to a defendant in Zone A and B. As defense counsel, we should be pointing out this part of the amendment to the courts in our sentencing memorandums in all of our cases that fall within Zone A or B. Another important part of the Amendment is Application Note 10(B) of §5C1.1 which provides that for Zero Point Offenders, a “departure, including a departure to a sentence other than a sentence of imprisonment, may be appropriate if . . . the defendant’s applicable guideline range overstates the gravity of the offense because the offense of conviction is not a crime of violence or an otherwise serious offense.” This application note encourages sentences, other than prison sentences for Zero Point Offenders, regardless of the Defendant’s guideline score, by reducing the score with a departure if the offense of conviction is not a crime of violence or a serious offense. It’s difficult to say what a crime violence is anymore or to define what is a non-serious offense, but we must be creative in our arguments and ask for these departures when we feel appropriate. What is and what is not a “serious offense” will vary from judge to judge, but the case can be easily made in many white-collar offenses, misprisions, gambling offenses, and some gun charges. Status Points

U.S. Sentencing Guidelines Amend.

The second significant amendment is to the “Status Point” section in the criminal history guideline §4A1.1. Status Points as points given under §4A1.1 to defendant that “committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” For years, a person would get two points added to their criminal history score as status points. This always has been the “double whammy” because the defendant got criminal history points for the original sentence and then the additional “plus two” because they are still under supervision. This amendment completely removes Status Points for defendants with fewer than seven criminal history points and lowers the Status Points from a two-level increase to a one-level increase for defendants with seven or more criminal history points.

Retroactivity Both the new Zero Point Offender guideline and the Status Point guideline will apply retroactively beginning February 1, 2024, as part of Amendment 821. Motions for retroactive application are filed pursuant to 18 U.S.C. § 3582(c), which provides the vehicle for filing a motion to reduce a sentence based on a guideline amendment that lowers a defendant’s sentencing range. Courts are required to follow Guideline §1B1.10 to determine whether the sentencing reduction applies.

U.S. Sentencing Guidelines Amend.

As part of a Court’s analysis, pursuant to §1B1.10, the Court “shall determine the amended guideline range that would have been applicable to the defendant if the amendment . . . to the guidelines . . . had been effect at the time the defendant was sentenced.” Further, the Court “shall leave all other guideline application decisions unaffected.” Id. In other words, the Court should apply the new guideline to the old scoring, and not reconsider the prior guideline rulings from the original sentencing. However, in a resentencing for an amended guideline, the Court is prohibited from reducing the “. . . defendant's term of imprisonment . . . to a term that is less than the minimum of the amended guideline range . . .”. Id. Therefore, the Court cannot revisit its rulings on other guideline applications at the original sentencing, and the Court cannot sentence the Defendant to a sentence that is lower than the bottom of the guideline range using the Zero Point Offender Guideline or when removing or lowering the Status Points. The only exception to the rule prohibiting Courts from resentencing defendants to less than the minimum of the new guideline is for Defendants that had been given a departure for substantial assistance pursuant to U.S.S.G. §5K1.1 in the original sentencing. In such cases, the Court may re-sentence the Defendant to a “. . . reduction comparably less than the amended guideline range . . .” Id. What does this mean? “Comparably less” could mean either the same number of months that the original sentencing Court departed below the minimum of the guideline range at the original sentencing and subtracting that number from the new minimum guideline. It could also mean using a percentage formula; for example, if the original sentencing court granted a twenty-five percent reduction from the minimum of the old guideline, the Court could resentence the defendant to the same percentage below the minimum amended guideline. When considering 3582 motions, Courts are conducting a resentencing and can consider the sentencing factors found in 18 USC § 3553(a). A Court can consider post-sentencing conduct such rehabilitative efforts or violations committed by the

applicant while in custody. The Court could also consider family circumstances that may have changed. However, the rule that the Court cannot go below the amended minimum guideline still applies. Once the Court receives a motion for retroactive application of the guidelines, the Court is not required to conduct a hearing. 1 Further, even if the Court decides to hold a hearing, pursuant to Federal Rule 43, the Defendant is not required to be present at the hearing. Finally, the Court is not required to appoint counsel for pro se defendants.2 In practice, most of these sentencing reduction motions will be considered on the paper, so the quality of the motion along with any exhibits is important. My Thoughts Having a quorum at the Sentencing Commission after years with no amendments gives the Federal Practice and the Federal Courts some welcomed change. Defendants sentenced to lower terms of imprisonment, are the ones least likely to benefit from the amendments to the guidelines, having probably already or nearly served their time. Defendants with intermediate and longer sentences will stand to benefit in large numbers. As the Sentencing Commission continues it work, next year more positive changes may be coming as the Commission considers either removing or reducing criminal history points for juvenile offenders. Roberto Balli is a board member of CDLP and practices State and Federal Criminal defense in Laredo, Texas, but travels to Federal Courts throughout the State and country. Roberto is a partner Balli & Balli Law Firm, LLP, and is married to his law partner Claudia V. Balli. Their firm is dedicated to Federal and State criminal defense and criminal appeals. Roberto has significant criminal trial and criminal appellate experience. He is a former First Assistant District Attorney in Webb and Zapata Counties. Roberto is Board Certified in Criminal Law by the Texas Board of Legal Specialization and by the National Board of Trial Advocacy.

1 2

See United States v. Alaniz, 961 F.3d 998 (8th Cir. 2020). See United States v. Perez, 623 F.App’x 282 (5th Cir. 2015)

U.S. Sentencing Guidelines Amend.

Roberto can be reached at robertoballi@sbcglobal.net or (956) 712-4999.

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Murder? It’s Self Defense Speaker:

Eric J. Davis

Assistant Harris County Public Defender Trial Bureau Chief Harris County Public Defender’s Office 1201 Franklin St., Ste. 100 Houston, TX 77002 713.368.0016 phone 713.437.8563 fax Eric.davis@pdo.hctx.net email

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

Murder? It’s Self Defense

Texas Criminal Defense Lawyers Association

Murder? It’s Self Defense

MURDER!!??!... IT’S SELF DEFENSE

By:

ERIC J. DAVIS

ASSISTANT HARRIS COUNTY PUBLIC DEFENDER TRIAL BUREAU CHIEF HARRIS COUNTY PUBLIC DEFENDER’S OFFICE 1301 FRANKLIN AVENUE, SUITE 100 HOUSTON, TEXAS 77002 ERIC.DAVIS@PDO.HCTX.NET 713.368.0016 – PHONE 713. 437.8563 – FAX

Eric J. Davis has been a practicing attorney since 1994 and currently serves as the Trial Bureau Chief of the Harris County Public Defender’s Office in Houston, Texas. Mr. Davis is a graduate of the Trial Lawyer’s College where he honed his trial skills by learning from some of the best trial lawyers in the country. Following graduation, Mr. Davis was asked to join the staff of the college. He currently serves on the staff of the Trial Lawyers College and helps train lawyers from across the country. He has successfully defended numerous criminal cases of all levels in Federal and State Courts. Mr. Davis has successfully defended many homicide cases. For example, in 2007 Mr. Davis secured the acquittal of an accused in a double homicide case where his client asserted self-defense. The prosecutor boasted prior to trial that there was no way his client could win. With the client’s approval; Davis rejected the prosecutor’s 40-year plea deal, fought the case at trial and secured his client’s freedom by obtaining a “not guilty” verdict. Additionally, Mr. Davis secured the dismissal of murder charges against one of his client following a hung jury in a case where the state asserted certain limitations to his client’s right to self-defense. And since joining the Public Defender’s Office, Mr. Davis has successfully defended multiple homicide cases where self-defense was at issue. In 2013, Mr. Davis secured the acquittal of a client who asserted self-defense after being charged with murdering her husband by shooting him in the back and in the back of the head. Mr. Davis used a domestic violence expert in the defense of that client. Additionally, Mr. Davis has had multiple hung juries in cases where self-defense was asserted. And one client who was accused of murder, was convicted of a misdemeanor in a case where self-defense was asserted. In 2015, Mr. Davis tried a murder case using self-defense where it was alleged that his armed client provoked an encounter with an unarmed man. That client rejected a 45-year plea deal and went to trial. And although the jury rejected the claim of self-defense, the jury sentenced the client who had multiple prior felony convictions to only 5 years in prison. In 2016, Mr. Davis secured the dismissal of a murder case where his client used self-defense to defend himself and the woman who was nine months pregnant with his child from an assault by an unarmed woman. And in the fall of 2016, Mr. Davis tried a murder case where his client was accused of beating an unarmed man to death with crowbar-like metal rod. After raising self-defense and refuting the State’s arguments regarding the force being excessive, Mr. Davis secured an acquittal. In 2003, the Texas State Legislature passed House Resolution 191 which commended Mr. Davis for his work as Special Counsel for the Texas State Commission on Judicial Conduct. For the Commission, Mr. Davis was lead counsel in a case that removed a judge from office who was abusing the power entrusted to him. Handling the case from beginning to end, Mr. Davis was able to obtain an order that the Judge never be allowed to hold judicial office in the State of Texas again. In 2006, Mr. Davis made national news for his work that exonerated a man who had been wrongfully imprisoned for over 18 years.

Murder? It’s Self Defense

ERIC J. DAVIS - Bio

Murder? It’s Self Defense

MURDER!!??!..... IT’S SELF-DEFENSE Self-defense is a frequently litigated issue in many homicide and assaultive offenses. During the trial of these cases, several recurring issues appear. This paper seeks to help the practitioner by briefly providing relevant law as to some of the more frequent topics that come up in trial. This paper is by no means exhaustive on the issue of self-defense. And although the statutes and cases listed in this paper focus on Texas Self-Defense law, the laws of most other states on these issues are similar to those in Texas. 1 1. The general law of self-defense. a. When Self-Defense Is Justified. § 9.31(a) of the Texas Penal Code provides that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Such force is required to be reasonable and not necessarily accurate. § 9.32(a) provides that a person is justified in using deadly force against another: (1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. b. Limitations on Self-Defense § 9.31(b) of the Texas Penal Code provides that the use of force against another is not justified: (1) in response to verbal provocation alone; (2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c); (3) if the actor consented to the exact force used or attempted by the other;(4) if the actor provoked the other’s use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor; or (5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05. Whether or not a limitation is applicable will generally be a fact question for the jury. The practitioner should argue that the jury is entitled not to believe the evidence offered by the state See, Ward, Cynthia, ""Stand Your Ground" and Self Defense" (2015). Faculty Publications. Paper 1800. http://scholarship.law.wm.edu/facpubs/1800

c. Provocation. The statute codifies the common law doctrine of provocation. Smith v. State, 965 S.W.2d 509, 513 (Tex.Crim.App.1998). “The issue of provocation is not raised merely by prosecution evidence showing that the defendant attacked first.” See Ed Kinkeade & S. Michael McColloch, Texas Penal Code Annotated 85 (2012–2013 ed.) (commentary to section 9.31). Rather, for purposes of section 9.31(b)(4), provocation requires sufficient evidence “(1) that the [defendant] did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other.” Smith, 965 S.W.2d at 513; Id. at 514 (“the common law element of intent is still required under the current codification”). Mayes v. State, _S.W.3d_, 2014 WL 5760688, at *3 (Tex. App.– Amarillo Nov. 5, 2014).

2. Common Issues Related to the law of Self-defense a. Force does not have to be proportionate. First, the Texas Self-defense statute only requires that a person use force of “the degree he reasonably believes…. is immediately necessary.” There is no requirement that the force be proportionate. There is no requirement that there be like force for like force. Second, despite how the language in § 9.32 appears, use of deadly force does not have to be proportionate. § 9.01(3) defines “Deadly force” as force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. § 1.07 (46) of the Texas Penal Code defines “Serious bodily injury” as bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Therefore, the law allows self-defense ending in death to protect oneself against serious bodily

Murder? It’s Self Defense

that allegedly establishes the limitation. Texas Penal Code §9.32 (Deadly Force in Defense of Person) creates a presumption in certain circumstances that the defendant’s use of deadly force is reasonable. §9.32(b). That presumption will not be available to an accused if the state has successfully proven he possessed an illegal weapon at the time he exercised deadly force. Id. However, a charge on the use of deadly force in self-defense is still required, even if the state introduces some evidence of provocation of the decedent by the defendant. Hernandez v. State, 309 S.W.3d 661, 664 (Tex. App. Houston 14th Dist. 2010). The question of whether an act or words were reasonably calculated to cause an attack is a question of fact for the jury to resolve. Garcia v. State, 522 S.W.2d 203, 206 (Tex.Crim.App.1975); Smith v. State, 965 S.W.2d 509, 517 (Tex.Crim.App.1998).

Murder? It’s Self Defense

injury. A person can bring a gun to a fist fight to protect oneself against serious bodily injury (broken jaw or broken nose). 2

b. Self-Defense is judged from the defendant’s standpoint and her standpoint alone. When a jury considers whether a defendant acted in self-defense, it must “view the reasonableness of the defendant's actions solely from the defendant's standpoint.” Ex parte Drinkert, 821 S.W.2d 953, 955 (Tex. Crim. App. 1991) (citing Bennett v. State, 726 S.W.2d 32, 37-38 (Tex. Crim. App. 1986)). As the Court noted in Bennett, the reasonableness of the defendant's fear “must be judged from the standpoint of the accused at the instant he responds to the attack.” Bennett, 726 S.W.2d at 37-38.

c. No Duty to Retreat The “no duty to retreat” provisions of Tex. Penal Code § 9.32(c), (d) are not allencompassing. By their language, they do not apply if the defendant provoked the person against whom force or deadly force was used or if the defendant was engaged in criminal activity at the time. But when these provisions do apply, the defendant has no duty to retreat. In such cases, the prosecutor may not argue the failure to retreat as a factor in determining whether the defendant’s conduct really was immediately necessary. See Tex. Penal Code § 9.32 (d). When 2

Whether an injury is a serious bodily injury is a question of fact for a jury. Davis v. State, 150 Tex. Crim. 131 (Tex. Crim. App. 1947) (broken jaw found to be serious bodily injury). In determining the existence of permanent disfigurement or protracted impairment, courts will considered whether the injury would be permanently disfiguring without medical treatment and whether the victim continues to suffer from the physical effects of the injury. See, e.g., Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. 1980); Bosier v. State, 771 S.W.2d 221, 223 (Tex. App.-Houston [1st Dist.] 1989, pet. ref'd). In Brown v. State, an aggravated rape case, the complainant's nose was broken. Brown, 605 S.W.2d at 575. Although the broken bone was set, there was evidence that the injury would have caused permanent disfigurement and dysfunction absent the medical treatment. Id. The Court of Criminal Appeals held that, because the relevant issue in determining the degree of disfigurement is the damage caused by the wound when inflicted, and not after the effects of the injury are ameliorated or exacerbated by medical treatment, the evidence was sufficient to show serious bodily injury. Id. In Bosier v. State, the Court held that the evidence supported the jury’s finding that the complainant sustained a serious bodily injury when, at trial, the complainant continued to suffer from hearing and balance impairment as a result of the neurological damage caused by the attack.. Bosier, 771 S.W.2d at 223. The finding of serious bodily injury was further supported in Bosier by the expert testimony of a neurosurgeon, who indicated that the injuries sustained by the complainant created a substantial risk of death. Id. In Hernandez v. State, 946 S.W.2d 108, 113 (Tex. App.--El Paso 1997, no pet.), however, the El Paso Court of Appeals held that, where the only evidence of permanent disfigurement was mere scarring, the evidence was insufficient to support a finding of serious bodily injury. The Hernandez court noted that there must be evidence of some significant cosmetic deformity. Id.

d. APPARENT DANGER - Defendant has a right to defend himself against Apparent Danger the same as against a real danger In Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996), the Texas Court of Criminal Appeals reaffirmed its holding that it is not necessary for a jury to find the deceased was using or attempting to use unlawful deadly force against a defendant in order for the defendant’s right of self-defense to exist. A person has the right to defend himself from “apparent danger” to the same extent as he would if the danger were real. Id. Section 9.32(a)(1) provides that a person is justified in using deadly force against another if he would be justified in using non-deadly force against the other under section 9.31. Section 9.31(a) justifies the use of force against another “when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.” This language in section 9.31(a) constitutes the “apparent danger” portion of a self-defense. In Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim. App. 1976), the Court of Criminal Appeals held as follows: [W]here the evidence raises the issue of apparent danger, the [trial] court, in instructing the jury on the law of self-defense, [should] tell [the jury] that a person has [the] right to defend from apparent danger to the same extent as [she] would had the danger been real, provided [she] acted upon a reasonable apprehension of danger as it appeared to [her] from [her] standpoint at the time. Id. (citations omitted); see also Hamel, 916 S.W.2d at 493. Prior to 2007, it was appropriate to instruct the jury on the defendant’s duty to retreat. Since Texas Penal Code §9.32 was amended, the Court of Criminal Appeals has found that it is not a proper to instruct the jury on this point, except when the law requires the court to tell the jury that the defendant had no duty to retreat. “The failure to retreat may be considered in determining whether a defendant reasonably believed that his conduct was immediately necessary to defend himself or a third person. In such cases, the prosecutor may argue the failure to retreat as a factor in determining whether the defendant's conduct really was immediately necessary. Though the matter might still be a relevant evidentiary issue in the prosecution, the unauthorized inclusion of the instruction constitutes a comment on the weight of the evidence.” Morales v. State, 357 S.W.3d 1, 5 (Tex.Crim.App.2011). Therefore, the charge should omit any references to the defendant’s duty to retreat.

Murder? It’s Self Defense

sections § 9.32(c), (d) do not apply, the failure to retreat may be considered in determining whether a defendant reasonably believed that his conduct was immediately necessary to defend himself or a third person. Tex. Penal Code §§ 9.31, 9.32. In such cases, the prosecutor may argue the failure to retreat as a factor in determining whether the defendant’s conduct really was immediately necessary. Or if a fact issue is raised regarding the applicability of the provisions that specifically negate a duty to retreat, the prosecutor can argue that the facts do not satisfy the provisions and then argue the failure to retreat as a factor relevant to the defensive issue. But that does not mean that the trial court should submit a jury instruction regarding a general duty to retreat. 3

Murder? It’s Self Defense

The fact that an accused believed a person would attack him, along with evidence of overt acts or words that would lead him to reasonably believe he would be attacked with deadly force, is sufficient to require a charge on self-defense. Halbert v. State, 881 S.W.2d 121, 125 (Tex. App. – Houston [1st Dist.] 1994, pet. ref’d) (decedent outweighed defendant by 60 pounds, previously threatened defendant, and came towards her making threats). The Penal Code does not require that a defendant intend the death of an attacker in order to be justified in using deadly force in selfdefense. Alonzo v. State, 353 S.W.3d 778, 784 (Tex. Crim. App. 2011).

e. State’s Burden to Prove Beyond a Reasonable Doubt that Self Defense is Inapplicable to the Case The initial burden to produce evidence supporting self-defense rests with the defendant. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once evidence is produced, the burden shifts to the State to disprove the defense beyond a reasonable doubt. Id. This burden of persuasion is not one that requires the production of evidence, but requires only that the State prove its case beyond a reasonable doubt. Id.; Hernandez v. State, 309 S.W.3d 661, 665 (Tex. App. – Houston [14th Dist.] 2010, pet. ref’d). The State must prove, beyond a reasonable doubt, that selfdefense does not apply to the defendant’s conduct. TEXAS PATTERN JURY CHARGES– DEFENSES (2013) §B15.3 (Instruction—Self-Defense Involving Deadly Force to Protect against Deadly Force by Another).

3. Other issues with Self Defense

a. Violent acts of the decedent admissible in homicide cases In a homicide prosecution, a defendant who raises self-defense may introduce evidence of the decedent’s violent character. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing TEX. R. EVID. 404(a)(2)). “Specific, violent acts of misconduct may be admitted to show the reasonableness of the defendant's fear of danger, or to show that the deceased was the first aggressor. But specific acts are admissible only to the extent that they are relevant for a purpose other than character conformity.” Id. (citing TEX. R. EVID. 404(b)). The Court of Criminal Appeals of Texas has recognized testimony from witnesses concerning a victim’s past violence and verbal abuse of a defendant as an established method of proof in self-defense cases, because the law recognizes the fact that future conduct may be reasonably inferred from past conduct. The Court of Criminal Appeals has recognized this type of evidence as “an established method of proof in self-defense cases, because the law recognizes the fact that future conduct may be reasonably inferred from past conduct.” Fielder v. State, 756 S.W.2d 309, 319 (Tex. Crim. App. 1988).

(1)

“Communicated character” offered to prove the Defendant’s state of mind

Evidence allowed: reputation, opinion, or specific instances of conduct. Ex parte Miller, 330 S.W.3d 610, 618 (Tex. Crim. App. 2009). This is called “communicated character” because the defendant is aware of the victim’s violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not. This theory does not invoke Rule 404(a)(2) because Rule 404 bars character evidence only when offered to prove conduct in conformity, i.e., that the victim acted in conformity with his violent character. Id. Under this theory, the defendant may offer testimony of the victim’s reputation, opinion, or specific instances of conduct to show the “reasonableness of defendant’s claim of apprehension of danger” from the victim. Id.; Torres v. State, 117 S.W.3d 891, 894 (Tex. Crim. App. 2003). Evidence is admitted under this theory under Rule 404(b), not Rule 404(a)(3). Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999). The defendant is not attempting to prove the victim was a violent person or the first aggressor; rather, the defendant is “proving his own selfdefensive state of mind and the reasonableness of that state of mind.” Miller at 618-619. Caution: Rule 403 can be used to limit the admissibility of communicated character evidence. Mozon at 846. For example, the prior instances may be so remote or of such low probative value in showing threatening conduct by the victim, while highly prejudicial in showing deplorable morals or a bad character for law-abidingness, that the court may exclude the evidence under Rule 403. Wrongly-decided cases from the 1st and 14th Courts of Appeals: • Smith v. State, 355 S.W.3d 138, 150-51 (Tex. App. – Houston [1st Dist.] 2011, pet. ref’d Aug. 24, 2011)(holding a trial court is within its discretion to exclude prior violent acts if the victim’s conduct was plainly aggressive and no explanation is necessary to show that the defendant reasonably feared for his life). • Allen v. State, 473 S.W.3d 426, 448 (Tex. App. – Houston [14th Dist.] 2015, pet. for discretionary review filed Sept. 24, 2015)(adopting the holding above from Smith).

Some of the research that is the basis of this section was compiled by Craig Still, who is a Senior Litigator with the Harris County Public Defender’s Office. 4

Murder? It’s Self Defense

b. Methods of Offering Violent Character of a Complainant in a Homicide Case 4

Murder? It’s Self Defense

• These cases were wrongly-decided because “the Court of Criminal Appeals has never required a defendant to demonstrate that the victim’s conduct was ambiguous prior to introducing character evidence to support the defendant’s own apprehension of danger. Instead, the Court of Criminal Appeals decisions upon which Smith relies for its ‘unambiguous acts’ requirements are first-aggressor cases…The victim’s conduct, ambiguous or not, is not at issue for the apprehension-of-danger theory of admission. It is the defendant’s state of mind and the reasonableness of such state of mind that is important.” Allen at 460 (concurring opinion by Justice McCally). (2)

“Uncommunicated character” offered to prove the victim was the first aggressor.

Evidence allowed: reputation and opinion testimony only. Miller at 619. A defendant may offer evidence of the victim’s character trait for violence to demonstrate that the victim was, in fact, the first aggressor. Id. Rule 404(a)(3)(A) is directly applicable to this theory and this use is called “uncommunicated character” evidence because it does not matter if the defendant was aware of the victim’s violent character. Id. Under this theory, a witness testifies that the victim made an aggressive move against the defendant; another witness then testifies about the victim’s character for violence. Id. Evidence offered under this theory may only be made through reputation and opinion testimony under Rule 405(a). The defendant may not offer evidence of the victim’s prior specific acts of violence to prove the victim’s violent character and hence that the victim acted in conformity with that character trait at the time of the assault. (3) hostility.

Specific violent acts of the victim offered to prove the victim’s intent, motive, or

“An entirely separate rationale supports the admission of evidence of the victim’s prior specific acts of violence when offered for a non-character purpose – such as his specific intent, motive for an attack on the defendant, or hostility – in the particular case.” Id. at 620. Extraneous offense evidence offered under this theory may be admissible under Rule 404(b). Id.; Torres v. State, 117 S.W.3d 891, 896-897 (Tex. Crim. App. 2003)(defendant was entitled to offer evidence that, several days before the murder, the victim had climbed through his ex-girlfriend’s aunt’s window and threatened her and her children; this evidence was relevant to show the deceased had a specific motive or intent to be the first aggressor when he climbed through his ex-girlfriend’s bedroom window early one morning and the defendant shot him). The proper predicate for the specific violent prior act by the deceased is some act of aggression that tends to raise the issue of self-defense, which the violent act may then help clarify. Thus, it is not necessary for the defendant to raise the issue of self-defense before the introduction

b. Relevant facts related to the history of the parties / Domestic Violence Cases Tex. Code Crim. Proc. Ann. art. 38.36 (a) permits either party to offer evidence of all relevant facts and circumstances surrounding the killing and the prior relationship that existed between the defendant and the decedent, including all such relevant facts and circumstances going to show the condition of the mind of the defendant at the time of the offense. Upon raising selfdefense under Tex. Penal Code Ann. §§ 9.31 or 9.32, the defendant, in order to establish the defendant's reasonable belief that use of force or deadly force was immediately necessary, is permitted to offer relevant evidence that defendant had been the victim of family violence committed by the decedent, and to offer relevant expert testimony as to the condition of the defendant's mind at the time of the offense, including relevant family violence evidence made the basis of the expert's opinion. Tex. Code Crim. Proc. Ann. art. 38.36(b). See Johnson v. State, 271 S.W.3d 359, 367 (Tex. App. Beaumont 2008). NOTE - Expert Testimony Allowed– When a defendant raises a justification under section 9.31, 9.32 or 9.33 of the Texas Penal Code, section 38.36(b) allows the use of expert testimony regarding the condition of the mind of the defendant at the time of the alleged offense. See Fielder v. State, 756 S.W.2d 309, 320-21 (Tex. Crim. App. 1988) (Defendant improperly convicted after shooting her husband seven times with an automatic pistol where the testimony of a defense psychologist should have been admitted as relevant to explain generally the fear that a battered woman might have of her batterer; the evidence was also relevant to defendant’s claim that she shot her husband in self-defense after suffering increasingly severe incidents of sadomasochistic sexual abuse, culminating with the decedent’s pointing a pistol at her after defendant told him she had seen a divorce lawyer, because the decedent feared she had revealed his sexual deviance to the lawyer).

c. Defendant need not testify to raise self-defense A defendant need not testify in order for a defensive issue to be sufficiently raised. Smith v. State, 676 S.W.2d 584, 585, 587 (Tex. Crim. App. 1984); VanBrackle v. State, 179 S.W.3d 708, 712 (Tex. App. Austin 2005). Defensive issues may be raised by the testimony of any witness, even one called by the State. See Woodfox v. State, 742 S.W.2d 408, 410 (Tex. Crim. App. 1987); Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd.).

Murder? It’s Self Defense

of the character evidence as long as there is some evidence of an act of aggression by the deceased. Id. at 895.

Murder? It’s Self Defense

d. Self-defense presumed reasonable under certain circumstances The self-defense statute allows a person, under certain circumstances, to stand his ground while defending himself and that, under certain circumstances, creates a presumption that a defendant's conduct was reasonable. With the 2007 amendments to Tex. Penal Code § 9.32, the Legislature added provisions that require the jury to presume that deadly force was reasonable under certain circumstances. Tex. Penal Code § 9.32(b). The Penal Code requires that a presumption that favors the defendant be submitted to the jury if there is sufficient evidence of the facts that give rise to the presumption unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact. Specifically, § 9.32 (b) provides that the actor’s belief under § 9.32 (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit an offense described by Subsection (a)(2)(B); (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

e. Defense of Others A defendant is justified in defending a third person if, under the circumstances as the defendant reasonably believes them to be, the third person would be justified in defending himself. Tex. Penal Code § 9.33. The self-defense statute provides that deadly force is justified if, among other things, the actor reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Penal Code § 9.32(a)(2)(A).

f. Use of Force to Resist Arrest or Illegal Search Pursuant to Tex. Penal Code § 9.32(c), the use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect

g. Accused must admit the conduct to obtain an instruction Generally, to be entitled to a defensive instruction, a defendant must admit the conduct charged in the indictment and then offer evidence justifying the conduct. See Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999); Hubbard v. State, 133 S.W.3d 797, 799 (Tex. App.-Texarkana 2004, pet. ref'd). Admitting the conduct, however, does not necessarily mean admitting the commission of every statutory element of the offense. Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd). Instead, a defendant who denies the state’s specific allegations may still obtain a defensive instruction if he or she sufficiently admits the conduct underlying the alleged offense. See Young, 991 S.W.2d at 838; Hubbard, 133 S.W.3d at 801-02; Jackson, 110 S.W.3d at 631-32. When the defendant in Holloman v. State, 948 S.W.2d 349, 352 (Tex. App.--Amarillo 1997, no pet.) admitted to the use of force, although not in the exact form as alleged by the state, such an admission tracked the language of the Texas Penal Code that states a person is justified in using "force" under certain circumstances. Id. In Holloman, a husband who was charged with assaulting his wife claimed he acted in self-defense. Id. at 351. He conceded striking his wife, “tussling” with her, falling on her, and possibly hitting her with his legs after falling. Id. The Holloman court held that his testimony sufficiently admitted the conduct alleged, although it was not an outright admission to assault and concluded that this evidence, although possibly feeble, entitled Holloman to raise the issue of self-defense. Id. at 352.

h. Multiple Assailants (Self- Defense when there are multiple attackers) An accused is entitled to a jury instruction regarding her right to defend herself against multiple assailants when there is evidence viewed from the accused’s standpoint that she was in danger of unlawful attack or a threatened attack at the hands of more than one assailant. Frank v. State, 688 S.W.2d 863 (Tex.Crim.App. 1985). The accused is entitled to a jury instruction on self-defense against multiple assailants where his co-defendant admits to using a knife against multiple assailants and the accused could have been convicted as a party. Horn v. State, 647 S.W.2d 283 (Tex.Crim.App. 1983). Multiple assailants impacts the reasonableness of force used, but also the relevant law is useful in enhancing a claim of self-defense. It expands the conduct considered in assessing the reasonableness of the use of deadly force. For example, Texas authorizes self defense, if an accused reasonably believed that their life or person was in danger and there was created in their mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful

Murder? It’s Self Defense

himself against the peace officer's (or other person's) use or attempted use of greater force than necessary. (d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

Murder? It’s Self Defense

deadly force at the hands of the person killed or at the hands other persons with the person killed, or at the hands of any of the other assailants, if the accused was acting under such apprehension and reasonably believing that the use of deadly force on the accused’s part was immediately necessary to protect themselves against any of the assailants use or attempted use of unlawful deadly force or against the use or attempted use of unlawful deadly force (collectively or individually). In other words, if the actions of one of the assailants justified force, then force is justified against any of the other assailants (independent of whether or not their conduct justified the use of deadly force).

Texas Criminal Defense Lawyers Association

June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Federal Trial Nuances

37th Annual Rusty Duncan Advanced Criminal Law Course

Nuances of Federal Criminal Trial Practice Speaker:

Robert Alton Jones Robert A. Jones, P.C. 4101 Greenbriar St, Ste 210 Houston, TX 77098 713.526.1171 phone 713.528.3415 fax rajoneslaw@aol.com email

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

Federal Trial Nuances

Nuances of Federal Criminal Trial Practice

2024 Rusty Duncan Conference TCDLA

Robert Alton Jones, Houston Robert A. Jones, P.C.

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Evolution into Federal Practice After graduating from Thurgood Marshall School of Law in 1972, I began my legal career in a transformative era for Texas law. The voters of Texas had just approved state constitutional amendments adopting an Equal Rights clause and permitting women to serve on juries. I

from the state courts where I had previously worked. Today, I am admitted to practice in the Fifth, Eighth, and Eleventh Circuit Courts of Appeal and primarily practice federal criminal law in the Southern District of Texas. I have tried cases across multiple states including Missouri, Oklahoma, California, Louisiana, Alabama, Georgia, and Wisconsin. My intention for this paper is that it provides you with a framework and approach to federal court practice. For criminal defense attorneys accustomed to state court proceedings, transitioning to the federal court system can be daunting. The federal judiciary operates under distinct rules and structures, which significantly impact defense tactics, plea bargaining, and trial preparation. This document aims to explore these critical differences, offering an in-depth analysis of procedural norms, landmark jurisprudence, sentencing patterns, and strategic considerations essential for effectively managing defense cases within both state and federal frameworks. Such knowledge is invaluable for legal professionals seeking to navigate this complex legal landscape adeptly. 1. Federal and State Jurisdiction Headlines Jurisdiction might not seem like an issue that needs much explanation. After all, most of us think we know a state crime from a federal crime, and we certainly know the difference between a state and a federal indictment. Some of us might even know that at federal sentencing we can argue our client’s state case for the same conduct satisfies the federal interest in punishment and should be taken into consideration when handing down a federal sentence. But this year’s news

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Federal Trial Nuances

transitioned to practicing in the federal system in the late 1980s, a starkly different environment

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headlines have been full of jurisdictional issues and much of what we thought about jurisdiction has been challenged. 1.1

Substantive Jurisdiction

Federal Trial Nuances

The recent court actions in the Fifth Circuit and the U.S. Supreme Court regarding Texas Senate Bill 4 may have criminal law practitioners questioning their understanding of state and federal subject matter jurisdiction. 1 But the federal and state criminal legal systems have long overlapped, and criminal law practitioners may find themselves advocating for their clients on two fronts, which makes knowing the law in both systems important for effective strategy. 1.1.1

Federal Jurisdiction

Federal criminal charges are pursued in cases involving violations of U.S. federal laws, and these typically encompass crimes that extend beyond the jurisdictional reach of any single state or that directly impact federal interests. Common categories include immigration violations (however, Texas is challenging this notion), crimes committed on federal property, and offenses that cross state borders such as drug trafficking and human trafficking. Financial crimes such as tax evasion, bank fraud, and securities fraud also fall under federal jurisdiction due to their implications for national economic stability. Additionally, the federal government prosecutes cases of terrorism, counterfeiting, and crimes involving the internet, which often require the comprehensive investigative resources of federal agencies like the FBI and Homeland Security.

S.B. 4, 88th Leg., 4th Spec. Sess. (Tex. 2023) (codifying TEX. PENAL CODE §51.02. Illegal Entry from Foreign Nation) available at https://capitol.texas.gov/BillLookup/History.aspx?LegSess=884&Bill=SB4. S.B. 4, passed in November 2023 during a special Texas legislative session, makes illegally crossing the Texas border a Class B misdemeanor. Repeat offenders could face a second-degree felony. The bill also requires state judges to order migrants returned to Mexico if they are convicted; local law enforcement would be responsible for transporting migrants to the border. A judge could drop the charges if a migrant agrees to return to Mexico voluntarily.

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This federal scope is designed not only to address crimes that have broad or national ramifications but also to enforce laws where uniformity across states is necessary for effective legal governance. 1.1.2

State Jurisdiction State authority in the United States primarily stems from the police powers reserved to the

regulate for the public health, safety, welfare, and morals of their residents. This foundational power enables states to enact and enforce most criminal laws that govern daily life, from traffic violations and property crimes to assault and murder. State courts therefore handle a diverse array of criminal cases that are intrinsically linked to maintaining order and discipline within their borders. These courts are also responsible for the interpretation and application of state law, ensuring that local values and standards are reflected within their jurisprudence. The extensive reach of state jurisdiction underscores its vital role in the fabric of American criminal justice, making its comprehensive understanding a necessity for any criminal defense practitioner operating within the state legal systems. 1.2

Dual-Sovereignty The “dual sovereignty” principle allows both federal and state governments to prosecute

an individual for the same conduct without breaching double jeopardy protections, as each operates under its own legal authority. For example, Texas and the U.S. government are separate sovereigns and can independently pursue prosecutions for the same actions. This doctrine permits both state and federal courts to prosecute offenses that infringe upon their respective laws, even if based on identical facts. Thus, a federal prosecution does not bar a subsequent state prosecution for the same conduct, and vice versa. An exception exists for sham prosecutions. If a state’s prosecution is merely a cover for a federal case, designed to skirt double jeopardy rules, it is considered invalid.

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Federal Trial Nuances

states by the Tenth Amendment to the U.S. Constitution, which grants them broad authority to

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However, collaboration between state and federal authorities after a failed prosecution does not amount to a sham, thus not violating double jeopardy principles. A term you may encounter when practicing federal criminal law and the issue of dual

Federal Trial Nuances

sovereignty comes up is the “Petite Policy.” The United States Department of Justice has developed this specific policy, the "Petite Policy," to address the propriety of bringing a federal prosecution following a state case. The policy takes its name from Petite v. United States, 361 U.S. 529 (1960). 2 The policy generally bars a federal prosecution following a state prosecution based on the same acts, unless the matter involves a "substantial federal interest" that the state prosecution left “demonstrably unvindicated.” 3 1.2.1

Dual Prosecutions in the News Oddly, much like S.B. 4 has called into question the jurisdiction over immigration issues,

the “dual sovereignty” justification for allowing successive state and federal prosecutions has also come up recently in the news. As I write, former President Donald Trump’s state criminal trial in New York City on 34 felony counts of falsifying business records has begun. Trump, the first expresident ever to face criminal charges, was also indicted in Georgia and Washington, D.C. for plotting to overturn his 2020 election loss, and in Florida for hoarding classified documents. Nothing in the U.S. Constitution or federal law dictates that federal criminal cases get priority over state cases, or that prosecutions proceed in the order in which indictments are issued. The solution ordinarily is that the various prosecutors will negotiate and decide among themselves which case

For a discussion of the history of the doctrine, see Ellen S. Podgor, Department of Justice Guidelines: Balancing "Discretionary Justice, 13 CORNELL J.L. & PUB. POL'Y 167, 177-81 (2004).

See APPENDIX A U.S. Dep't of Justice, U.S. Attorneys' Manual § 9-2.031 (2024).

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should proceed first. Often, the one that involves the most serious charges gets priority, although the availability of key witnesses or evidence could play a role. But once one court has set a trial date, courts in other jurisdictions are likely to schedule around that date. That means the Georgia prosecution—although more serious than the charges

prosecution, as well as the one federal prosecution on classified documents that has a tentative trial date. The Charlottesville Car Attack was also a dual sovereign prosecution. After neo-Nazi James Fields drove his car into a group of protesters at the Unite the Right rally in Charlottesville, Virginia, in 2017, killing one person and injuring others, he was charged with crimes in both federal and state courts. The state homicide trial went first. Then, Fields pleaded guilty to federal hate crime charges after the state conviction and received two life sentences for his crime from both the state and federal charges. The “D.C. sniper” John Allen Muhammad was apprehended at a highway rest stop in Maryland in 2002, after a deadly series of sniper shootings in Maryland, Virginia, and the District of Columbia that killed 10 people and injured three. Maryland police arrested Muhammad. Federal officials were the first to file charges, but Muhammad was first put on trial and convicted of murder in Virginia. 1.2.2

Can Dual Prosecutions Ensure Social Justice? It has been argued that dual sovereignty and the possibility of multiple prosecutions can

provide redundant mechanisms for vindicating important public interests. The case of Rodney King might be considered one such case of a federal prosecution providing justice when the state prosecution failed. In 1991, a video tape captured four white Los Angeles Police Department

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Trump faces in New York—will likely have to work around the schedule for the New York

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Officers beating Rodney King, who was African American. The California state trial ending on April 29, 1992, resulted in the acquittals of Sergeant Stacey C. Koon, Timothy E. Wind, and Theodore J. Briseno on all charges. Officer Laurence M. Powell was acquitted of assault with a

Federal Trial Nuances

deadly weapon and filing a false police report, but the jury was hung on the charge of unnecessary assault under the color of state authority. Widespread uprisings followed the state verdicts. 4 On April 17, 1993, a federal jury convicted Koon and Powell of violating Rodney King's civil rights. Co-defendants Wind and Briseno were acquitted. See United States v. Koon, 833 F. Supp. 769, 774 (C.D. Cal. 1993), aff 'd in part, vacated in part, 34 F.3d 1416 (9th Cir. 1994). Whether in federal or state court, or both, preventing or addressing the indictment will be the next step in your federal defense strategy. 2.

Pre-Indictment Phase Strategy Defendants in federal cases may know they’re a target before a federal grand jury indicts

them. Ideally, someone who becomes the target of a federal investigation calls a lawyer as soon as federal agents make first contact. Heading off a federal criminal indictment has many advantages for advocacy. If your client is involved in a conspiracy, then making contact with the AUSA (Assistant U.S. Attorney) or assigned agent prior to an indictment may give your client the first shot at cooperation and immunity or an opportunity to start your defense. In fact, pre-indictment or post-indictment, the government may be willing to do a reverse proffer which will show the prosecution’s hand without any statement from you or your client. If your client hasn’t been indicted, you might also be able to negotiate for charges that avoid mandatory minimums.

For a description of the events, see Laurie L. Levenson, The Future of State and Federal Civil Rights Prosecutions: The Lessons of the Rodney King Trial, 41 UCLA L. REV. 509, 510-33 (1994).

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Depending on the facts of your case, there may be benefits of pleading pre-indictment. One of those benefits is a pre-indictment plea deal. A second benefit is your client can testify against co-defendants in the grand jury which may go a long way towards getting a 5K substantial assistance motion from the government. A third benefit may be that you are able to negotiate the

lead to pretrial diversion. See APPENDIX A U.S. Dep't of Justice, U.S. Attorneys' Manual § 922.000 (2024). 2.1

Recent U.S. Supreme Court Decisions Reining in White Collar Prosecutions Of course, convincing the government that the charges against your client are unfounded,

or at the very least legally insupportable, is the ideal pre-indictment strategy. While not all overzealous federal prosecutions can be corralled, there have been some relatively recent Supreme Court decisions which may be helpful when challenging white collar crime indictments. 2.1.1

Ciminelli—Liability in Fraud Limited to Property Rights In Ciminelli v. United States, 5 the Court rejected the government’s reliance on the

expansive “right to control theory,” overturning a conviction predicated on that theory and holding that the “right to control theory” is not a viable theory of liability under the federal wire fraud statute. The Supreme Court unanimously reversed the conviction of Louis Ciminelli, holding that the Second Circuit’s “right-to-control” theory does not describe a “valid basis for liability under the federal wire fraud statute,” 18 U.S.C. § 1343. Cimienlli’s conviction was predicated on the theory that Cimenilli’s company deprived Fort Schuyler Management Corporation—a company tasked with implementing then-New York Governor Andrew Cuomo’s “Buffalo Billion” plan—of

Ciminelli v. United States, 598 U.S. 306 (2023).

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charges to which your client pleads. Although rarely granted, pre-indictment negotiations might

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“potentially valuable economic information that it would consider valuable in deciding how to use its assets.” The Court rejected the “right-to-control” [the use of intangible assets like economic

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information] theory as a valid basis to support a § 1343 conviction, holding that the federal fraud statutes “do not vest a general power in ‘the Federal Government . . . to enforce its view of integrity in broad swaths of state and local policymaking.’” Rather, the Court reiterated that under its holding in McNally v. United States, 6 the federal fraud statutes are “limited in scope to the protection of [traditional] property rights,” which do not include the so-called “right to control.” In fact, the Court wrote, the government conceded in its briefing to the Court that the right-to control theory risks “expanding the federal fraud statutes beyond property fraud as defined at common law and as Congress would have understood it.” The Court accordingly rejected this overly-expansive theory, reasoning that should it stand, the theory would “make[] a federal crime of an almost limitless variety of deceptive actions traditionally left to state contract and tort law.” 2.1.2

Percoco —Honest Services Fraud Must Point to Specific Bribe or Kickback In Percoco v. United States, 7 the Court further narrowed the scope and ability of the

government to prosecute under the honest-services fraud statute, overturning a conviction and holding that a private citizen with informal political influence could not be convicted under honest services fraud. The Court held that it was error to instruct a New York jury that Percoco could owe a duty of honest services to the public even if he did not have a formal employment relationship with the state, so long as he “dominated and controlled” government business. In reversing, the

McNally v. United States, 483 U. S. 350 (1987).

Percoco v. United States, 598 U.S. 319 (2023).

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Court looked to Skilling v. United States 8 where it held that the “‘intangible right of honest services’ in § 1346 relates [only] to ‘fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived.’” Skilling, the Court continued, made it clear that § 1346 could not capture a private person’s conduct who merely had “clout.”

sufficient definiteness that ordinary people can understand what conduct is prohibited.” This decision makes it even more clear that the DOJ can only charge a § 1346 crime if it can point to a bribe or a kickback. 2.1.3

Bittner—Statutory Construction of Bank Secrecy Act In Bittner v. United States, 9 the Court declined to adopt the government’s interpretation of

the Bank Secrecy Act and limited the number of penalties the government could impose against a citizen who failed to report his overseas bank accounts. Whether the Bank Secrecy Act’s penalty for non-willful violations of the foreign financial agency reporting requirements, which requires a citizen to file an annual Report of Foreign Bank and Financial Accounts, or “FBAR,” detailing his or her foreign accounts, is calculated on a per-account or per-report basis. If the penalty applied per account, Bittner faced a $2.72 million penalty; if it applied per report, he faced a $50,000 penalty. The Supreme Court decided in a fractured opinion that the Bank Secrecy Act’s maximum penalty for a non-willful violation of the requirement to report foreign financial accounts by filing an FBAR is $10,000 per report, not $10,000 per account. The Court first turned to two relevant statutes to ascertain whether penalties accrued on a per report or per account basis: 31 U.S.C. §

Skilling v. United States, 561 U. S. 358 (2010).

Bittner v. United States, 598 U.S. 85, 143 S. Ct. 713 (2023).

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Such an expansive reading of § 1346 would violate the axiom that a crime must be defined “with

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5314, which outlines reporting requirements; and 31 U.S.C. § 5321(a)(5)(A) and (B), which authorizes the Secretary of the Treasury to penalize non-willful “violations” of those reporting requirements. Section 5314, the Court reasoned, consistently refers to “records,” it does not speak

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of “accounts.” Further, § 5314’s reporting requirement is binary: “Either one files a report ‘in the way and to the extent the Secretary prescribes,’ or one does not.” If an individual falls in the latter camp and does not file a report, § 5321 comes into play. That statute “still does not speak of accounts or their number.” And although the Secretary of the Treasury may impose a per-account penalty for some willful violations, the Court held that the government’s attempt to read that authorization into non-willful violations would violate a traditional rule of statutory construction; namely, “[w]hen Congress includes particular language in one section of a statute but omits it from a neighbor, we normally understand that difference in language to convey a difference in meaning[.]” 2.2

Initial Appearance After arrest, a person must be brought before a judge without unnecessary delay. The initial

appearance is held in front of a magistrate judge who confirms that the arrestee is the person named in the documents requiring the arrestee’s appearance before the court, the basis for the arrest, advisement of rights, addresses circumstances that may allow for release, and consideration of any application for court-appointed counsel. Rule 5 of the Federal Rules of Criminal Procedure governs the Initial Appearance. In practice, for the most part, you will get the summation of the facts and discuss with the AUSA whether or not the government will be seeking detention—if detention is sought there will generally be a hearing on detention within three days of the initial appearance—but no witnesses will be called at an initial appearance. The client will plead not guilty and the judge will give you

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a scheduling order which will give you a trial date within 75 days (unless you waive the Speedy Trial Act or the case is considered complex litigation). 2.3 Joint Defense Agreements A joint defense agreement (JDA) is an agreement between lawyers, with the consent of

as the parties would like. A JDA can be helpful in multi-defendant cases where the defenses align; more so, the parties can terminate a JDA at any time. None of the key cases addressing the joint defense privilege have held that a written joint defense agreement is necessary before the privilege can be invoked. In fact, most of the cases have involved situations where there was not a written joint defense agreement. In those cases, testimony at an evidentiary hearing was relied upon to prove that there had been cooperative efforts of some nature between co-defendants or co-parties. See Wilson P. Abraham Const. v. Armco Steel Corp., 559 F.2d at 251 (5th Cir. 1977) ["At these meetings some efforts allegedly were made to develop a cooperative defense. Exactly what information was exchanged, and the importance of that information, is hotly disputed".]; United States v. Schwimmer, supra. Cf. Waller v. Financial Corp. Of America, supra [written joint defense agreement with specific provisions regarding remedies for a breach of the agreement]. Although oral JDAs have been upheld, the best practice is to have written agreements which explain the terms of the agreement and spell out the consent of all the parties. The existence of a signed joint defense agreement should eliminate most of the concerns over the applicability of the joint defense privilege, absent governmental allegations and proof of any crime/fraud exception.

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their clients, to work together and share information. This agreement can be as broad, or as limited,

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Bail The federal bail provisions are encompassed in FED. R. CRIM. P. Rule 46 and the Bail

Reform Act which is codified in 18 U.S.C. §§3142 and 3143. The Bail Reform Act of 1984 stated

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that all defendants charged in federal court were to be released on their own recognizance unless the “judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community” (18 U.S.C. § 3142(b)). If the judicial officer determined that a defendant posed a risk of nonappearance or danger, he or she could still order release on a condition or combination of conditions that would mitigate the established risk (18 U.S.C. § 3142(c)(1)(A) & (B)). Finally, if the judicial officer found “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.” (18 U.S.C. § 3142(e)(1)). For a comprehensive treatment of federal detention and bail please see Alison Siegler (alisonsiegler@uchicago.edu) Breaking Out of the Cage: Bail Reform Act Fundamentals (Feb. 25, 2021), which is available at https://nyw.fd.org/pdf/BAIL%20--cle_materials_for_breaking_out_of_the_cage_siegler_2-2521-final.pdf. 4.

Grand Jury Federal grand jurors are selected at random with the hope that the entire panel will

collectively represent a fair cross-section of the community or district they serve. They are randomly selected from lists of registered or actual voters, other sources and utilizing other procedures to help assure that the grand jury does not favor certain segments of the community served. Once the panel of potential grand jurors has been assembled, and any requests to be excluded have been considered, the presiding judge will direct the selection of 23 members of the

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panel to become the full grand jury. Note however, that according to Rule 6 of the Federal Rules of Criminal Procedure, a grand jury may have as few as 16 members. Regardless of the size of the grand jury a quorum of at least 16 is required and must be present, and at least 12 jurors must agree.

presentation is a witness who may assist the prosecutor in examining other witnesses. 10 Typically, this is an expert or an investigator who might have information the prosecutor needs to effectively question a witness. There are a number of exceptions to the federal grand jury secrecy rules. One exception is that grand jury witnesses are allowed to disclose their testimony. Another exception permits the government attorney to disclose grand jury information to other government attorneys and employees assisting in the criminal investigation that is the subject of the grand jury inquiry. Still other exceptions allow for the disclosure of grand jury information to a subsequent grand jury panel, disclosure of foreign intelligence to government officials, disclosure in connection with a judicial proceeding, and disclosure upon a defendant’s motion to dismiss an indictment. According to Rule 6 of the Federal Rules of Criminal Procedure, a grand jury may indict only if at least 12 jurors concur. The indictment itself must be returned by the foreperson to the magistrate judge in open court. If a complaint or information is pending against the defendant and 12 jurors do not agree, then the foreperson must notify the magistrate judge in writing that they cannot agree. 4.1

Grand Jury Secrecy and Disclosure Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand

In Re Grand Jury Investigation of William H. Pflaumer & Sons, Inc., 53 F.R.D. 464 (E.D. Pa. 1971).

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The only other person statutorily allowed in the room during an assistant U.S. attorney’s

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jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. United States v. Calandra, 414 U.S. 338, 343 (1974). Of course, the grand jury's subpoena power is not unlimited. It may consider incompetent evidence, but it may not itself violate a valid privilege, whether established by the Constitution, statutes, or the common law. . . . The grand jury is also without power to invade a legitimate privacy interest protected by the Fourth Amendment. A grand jury's subpoena duces tecum will be disallowed if it is ‘far too sweeping in its terms to be regarded as reasonable’ under the Fourth Amendment. . . . Judicial supervision is properly exercised in such cases to prevent the wrong before it occurs. Id. at 346. . . . [T]he grand jury may not force a witness to answer questions in violation of that constitutional guarantee. Rather, the grand jury may override a Fifth Amendment claim only if the witness is granted immunity co-extensive with the privilege against self-incrimination. Id. (citing Kastigar v. United States, 406 U.S. 441 (1972)). The U.S. Supreme Court held in United States v. Procter & Gamble Co. that the policy of maintaining secrecy of grand jury proceedings in the federal courts must not be broken except where there is a compelling necessity shown with particularity. 356 U.S. 677 (1958). However, the Court qualified its holding that grand jury secrecy should be maintained: “We do not reach in this case problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility, and the like. Those are cases of particularized need, where the secrecy of the proceedings is lifted discretely and limitedly.” Procter & Gamble, Co., 356 U.S. at 683. Violation of traditional grand jury secrecy should only be permitted upon showing of particularized and compelling need, but whether such need exists is a matter left initially to trial judge; if reasons for maintaining secrecy do not apply at all in given situation, or apply to only insignificant degree, party seeking disclosure should not be required to demonstrate large compelling need. U. S. Industries, Inc. v. United States Dist. Court, 345 F.2d 18 (9th Cir.), cert. denied, 382 U.S. 814, (1965). The Fifth Circuit has acknowledged that a compelling necessity can 15

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justify breaking otherwise indispensable secrecy of grand jury proceedings; but the Fifth Circuit found no indication of compelling necessity where the brokers requesting grand jury proceedings had no constitutional right to pre-indictment conference and they simply argued that they needed disclosure so they would have a better opportunity to persuade the Government not to indict. In re

Even if grand jury proceedings are secret, that secrecy is pierceable; and the grand jury transcript may provide valuable information about the government’s case and witnesses. When filing a motion to disclose based on Federal Rule of Criminal Procedure 6(e)(3)(E)(i) [“The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter…preliminarily to or in connection with a judicial proceeding.”], factors you can highlight, if present, are: a. None of the reasons for secrecy apply (e.g., investigation terminated); 11 b. Passage of time weakens protections; 12 and c. Criminal proceedings are complete so must examine effect of grand jury evidence on future grand juries. 13

See In re Grand Jury, 583 F.2d 128, 130 (5th Cir. 1978) (“After a grand jury's investigation has terminated, most of the reasons for grand jury secrecy are no longer applicable and the others are less compelling.”).

In re Grand Jury Proceedings, 800 F.2d 1293, 1301 (4th Cir. 1986) (“The need for secrecy may diminish with the passage of time.”) (quoting William Lytton, Grand Jury Secrecy—Time for a Reevaluation, 75 Journal of Cr. Law and Criminology 1100, 1102 (1984) and citing State of Illinois v. Sarbaugh, 552 F.2d 768, 776, n. 12 (7th Cir. 1977), cert. denied, 434 U.S. 889 (1977)).

Id. (citing Douglas Oil, 441 U.S. at 222).

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Grand Jury Proceedings, 613 F.2d 501 (5th Cir.), reh'g denied, 620 F.2d 300 (5th Cir. 1980).

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Discovery Unlike Texas discovery rules under the Michael Morton Act, federal defense practitioners

must beware of triggering reciprocal discovery. Federal Rule of Criminal Procedure, Rule 16(b),

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outlines what the defense must disclose: (b) Defendant’s Disclosure. (1) Information Subject to Disclosure. (A) Documents and Objects. If a defendant requests disclosure under Rule 16(a)(1)(E) and the government complies, then the defendant must permit the government, upon request, to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items if: (i) the item is within the defendant’s possession, custody, or control; and (ii) the defendant intends to use the item in the defendant’s casein-chief at trial. (B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule 16(a)(1)(F) and the government complies, the defendant must permit the government, upon request, to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment if: (i) the item is within the defendant’s possession, custody, or control; and (ii) the defendant intends to use the item in the defendant’s casein-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness’s testimony. (C) Expert Witnesses. (i) Duty to Disclose. At the government’s request, the defendant must disclose to the government, in writing, the information required by (iii) for any testimony that the defendant intends to use under Federal Rule of Evidence 702, 703, or 705 during the defendant’s case-in-chief at trial, if: • the defendant requests disclosure under (a)(1)(G) and the government complies; or • the defendant has given notice under Rule 12.2(b) of an intent to present expert testimony on the defendant’s mental condition. (ii) Time to Disclose. The court, by order or local rule, must set a time for the defendant to make the defendant’s disclosures. The time must be sufficiently before trial to provide a fair

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(iii)

(v)

(vi)

As you can see, discovery requests by the defense may trigger reciprocal discovery, so it’s important to have frank discussions with your client about the facts and witnesses in the case and defense counsel should make investigators, mitigation specialists, and experts aware of the reciprocal discovery triggers. 5.1 Brady Material Brady v. Maryland, 373 U.S. 83 (1963), holds that the government must provide the defense all material exculpatory and impeaching evidence. This constitutional mandate is familiarly known as the “Brady rule.” Brady is both a rule of truth and a rule of fairness. It increases the reliability of guilt determination, and it helps equalize accessibility to probative 18

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(iv)

opportunity for the government to meet the defendant’s evidence. Contents of the Disclosure. The disclosure for each expert witness must contain: • a complete statement of all opinions that the defendant will elicit from the witness in the defendant’s case-inchief; • the bases and reasons for them; • the witness’s qualifications, including a list of all publications authored in the previous 10 years; and • a list of all other cases in which, during the previous 4 years, the witness has testified as an expert at trial or by deposition. Information Previously Disclosed. If the defendant previously provided a report under (B) that contained information required by (iii), that information may be referred to, rather than repeated, in the expert-witness disclosure. Signing the Disclosure. The witness must approve and sign the disclosure, unless the defendant: • states in the disclosure why the defendant could not obtain the witness’s signature through reasonable efforts; or • has previously provided under (B) a report, signed by the witness, that contains all the opinions and the bases and reasons for them required by (iii). Supplementing and Correcting a Disclosure. The defendant must supplement or correct the defendant’s disclosures in accordance with (c).

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evidence. Brady principles apply to evidence disclosure both pre-trial (“front-end” requests) and post-trial (“back-end” requests). Pre-trial Brady claims involve material which, for a variety of reasons, is not routinely producible. Their success will depend upon the nature of a request and the

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jurisdiction. The courts apply a rule of reason and fairness, considering the specific facts of each case in terms of the practicality and specificity of the request, and the probable importance of the information. Brady imposes upon the government a self-executing obligation: the prosecution must produce Brady material even in the absence of a defense request. Paradoxically, the Court in United States v. Agurs 427 U.S. 97 (1976) held that the test of “materiality”—the question of whether the nondisclosure requires a retrial—may be affected by the absence or presence of a defense request. Prior decisions had established that the defendant must bear a heavy burden to prove that the prosecutor's failure to disclose exculpatory evidence constituted a due process violation; the Agurs decision added a standard of materiality for evidence which if not disclosed would justify a new trial. The Court specified that a defense request for evidence is not a prerequisite for a new trial, but that the failure to make a request will cause a court to apply a more stringent test of materiality unless the prosecution uses perjured testimony. In the absence of a request the trial judge must grant a new trial if he believes that the undisclosed evidence creates a reasonable doubt that otherwise does not exist. It is felt that the court should apply a more lenient test if the prosecution either has used perjured testimony or failed to honor a specific request. However, the court in Agurs indicated that the prosecution does not have a constitutional obligation to open its files to the defendant. With post-trial requests, the trial court has the advantage of evaluating suppressed evidence in the context of the entire record. It is therefore in a much better position to determine the prejudice caused by nondisclosure. On the other hand, pre-trial claims must be considered in terms of

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abstract probabilities. Viewing requested information against a bare outline of the prosecution as set forth in the indictment, the court has no way of accurately predicting the effect of missing evidence on a case which has not yet begun. Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure invariably comes into play. This provision states that:

Defense counsel during the pretrial preparation of their clients’ cases must contest the simpleminded argument that the defense should obtain potential Brady material by subpoena under Rule 17 of the Federal Rules of Criminal Procedure rather than Rule 16 which is the principal vehicle for pre-trial discovery in federal criminal actions. 5.2 Jencks Material Jencks material:

A written or recorded statement made by a witness before a trial that a defendant can request to see in order to prepare for crossexamination. This statement can be used to challenge the witness's testimony. This is called Jencks material because it comes from a Supreme Court case called Jencks v. United States 353 U.S. 657 (1957).

Reverse Jencks material: A written or recorded statement made by a defense witness before a trial that a prosecutor can request to see in order to prepare for cross-examination. This statement can be used to challenge the witness's testimony. This is called reverse Jencks material because it is the opposite of Jencks material. As discussed above, in a federal prosecution, the government is generally required to disclose discoverable information pursuant to Rules 16 and 26.2, 18 U.S.C. § 3500 (Jencks Act), Brady v. Maryland, Giglio v. United States, 14 and appropriate Department of Justice policies that

405 U.S. 150 (1972). The DOJ’s policy on Giglio material is contained in DOJ Manual 9-5.100 and is included in APPENDIX A of this paper.

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Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects . . . which are within the possession, and control of the government, and which are material to the preparation of the defendant's defense. . . . (emphasis added)

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have been promulgated pursuant to these authorities. The U.S. Department of Justice (DOJ) regularly issues guidance to federal prosecutors. Two memoranda—one dated Jan. 4, 2010, by then Deputy Attorney General David W. Ogden and one dated March 30, 2011, by then Deputy Attorney

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General James M. Cole— have dealt with discovery obligations and specifically with Jencks Act issues. Part of the Ogden memo instructed federal prosecutors where to search for discoverable information. The investigative agency’s entire investigative file, including documents such as FBI Electronic Communications (ECs), inserts, emails, etc. should be reviewed for discoverable information. If such information is contained in a document that the agency deems to be an “internal” document such as an email, an insert, an administrative document, or an EC, it may not be necessary to produce the internal document, but it will be necessary to produce all of the discoverable information contained in it. The Cole memo was titled “Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases.” It made clear that it is the prosecutor’s sole responsibility to coordinate gathering, reviewing, and producing discovery. The Cole memo specifically noted that it was intended to supplement the Ogden memo. An EC might need to be disclosed pursuant to the Jencks Act, but prosecutors may not even review those statements before calling an agent as a witness. If the defense fails to make a motion pursuant to the Jencks Act or Rule 26.2, the failure to produce witness statements cannot be complained of on appeal. Once an appropriate motion has been made, the various authorities make it clear that the burden is on a federal prosecutor to identify statements that qualify as Jencks Act material and to disclose them as appropriate. 5.3 Touhy Request Should the defense become aware of favorable statements made by a federal agent, the defense may want to call that federal agent; however, if the government does not plan to call that

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agent as a testifying witness, then defense counsel must issue a subpoena for that agent’s appearance at trial. But federal agencies may oppose defense subpoenas of their agents if defense counsel has not complied with Touhy regulations. 15 Federal Housekeeping Statute (Housekeeping Statute) 5 U.S.C. § 301 allows agencies to promulgate internal regulations that govern the

many agencies have promulgated what are now called “Touhy regulations,” which disallow federal employees from answering third-party subpoenas without the permission of certain agency officials. Those designated officials then use balancing tests that examine the agency’s resources, mission, and government neutrality in light of the requested information in acquiescing to, or demurring from, the subpoena. Elizabeth A. O’Connell, Research and Writing Specialist for the Federal Public Defender’s Office for the Western District of Texas, wrote a helpful guide to Touhy regulations called “How to Subpoena A Government Agent: Compliance With Touhy Regulations for ICE, CBP, DEA and FBI” and the guide is included with this paper as APPENDIX B. 6. Motion Practice Unlike state court, in federal court the judge enters—usually at the initial appearance or detention hearing—a scheduling order which sets out the deadlines for filing motions, designating experts, exchanging exhibits, etc. In multi-defendant cases, if you enter into a joint defense

United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). United States ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., 474 F. Supp. 2d 75, 79 (D.D.C. 2007) (“[A] federal agency may adopt procedures—dubbed Touhy regulations after the Supreme Court decision United States ex rel. Touhy v. Ragen—for responding to subpoenas and other requests for testimony or documents.”). The litigant who started it all, Roger Touhy, was an infamous Chicago crime boss who went by the nickname “Touhy the Terrible.” He was best known for two things: his rivalry with Al Capone, and a faked kidnapping of fellow gangster “Jake the Barber” Factor. See Roger “The Terrible” Touhy, FBI.GOV, https://www.fbi.gov/history/famous-cases/roger-the-terribletouhy [https://perma.cc/39LJLMEY]; David Wallechinsky & Irving Wallace, Biography of Gangsters Roger the Terrible Touhy, TRIVIA-LIBRARY.COM, https://www.trivia-library.com/c/biography-of-gangsters-rogerthe-terribletouhy.htm [https://perma.cc/6Y9C- H26D].

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“custody, use, and preservation” of documents, or the “conduct of its employees.” Under § 301,

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agreement, it’s advisable to file a motion adopting the motions filed by co-counsel unless expressly disavowed in a specific motion. At the beginning of trial, put on the record that co-counsel adopt the objections of each other. Unlike state court, motions in limine filed in federal court preserve

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error and the objection need not be renewed at trial. See FED. R. EVID. 103(b). 6.1 Local Rules Before filing your motions and again before going to trial, make sure to check the local rules for the district you are practicing in as well as the particular judge who will be reading your motions and presiding over your client’s trial. The four federal districts generally have the same local rules regarding filing pretrial motions, exhibits, etc., but you’ll notice that each district skips a rule or has a more voluminous version of a local rule than another district. Some districts use forms that other districts do not. You need to familiarize yourself with the district’s local rules so, for example, you don’t draft a motion for a request that the district prefers submission by a form which they have provided. The following links go to the local rules for each district: NDTX: https://www.txnd.uscourts.gov/criminal-rules SDTX: https://www.txs.uscourts.gov/page/local-federal-rules WDTX: https://www.txwd.uscourts.gov/court-information/lcr-introduction/ EDTX: https://www.txed.uscourts.gov/?q=rules-and-orders But if you do nothing else, please check the courtroom procedures for the judge before whom you will be practicing! I will not list the links to each judge’s courtroom procedures, but here are a couple of examples of federal judges who have courtroom procedures or standing orders that must be reviewed before appearing and filing in that court: Chief Judge Randy Crane (SDTX): https://www.txs.uscourts.gov/page/judge-cranes-courtprocedures District Judge Xavier Rodriguez (WDTX): https://www.txwd.uscourts.gov/court-staff/u-s-districtjudge-xavier-rodriguez/ 23

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Chief District Judge Rodney Gilstrap (EDTX): https://www.txed.uscourts.gov/?q=judge/chiefdistrict-judge-rodney-gilstrap 7. Plea Bargaining A defendant may plead guilty, not guilty, or with the consent of the court, nolo contendere.

7.1 Proffer Letter A cautious approach to the “proffer” process often suggests that an attorney first meet with the prosecutor, without the client, to outline the scope and subject matter of a possible proffer session. This approach allows an attorney to gain some level of confidence, prior to agreeing to subjecting the client to a proffer session, that the proffer session is likely to succeed. By outlining the general tone and substance of what the client may be expected to say during the proffer session, an attorney can gauge the prosecutor’s reaction to that information. If the prosecutor’s reaction suggests that the proffer session will simply result in the prosecutor taking the position that the information provided by the client is untruthful or incomplete, then one can advise the client to decline to engage any proffer meetings. The safest proffer is an “attorney proffer” in which the attorney summarizes what the client would say if the client were to meet with the prosecution. Counsel must be extremely careful about what is represented to the prosecutor because if your proffer statement is distinguishably different than your client’s proffer statement then you will lose credibility with the AUSA and your client may lose the opportunity for a favorable agreement with the government. It is a crime to lie to a federal agent and being untruthful invalidates the proffer agreement. In a proffer setting, even during preliminary attorney-to-attorney conferences, some authorities suggest that what an attorney represents can be used against the client should the client later say something contrary to the attorney’s representations. It should be made clear that these initial 24

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FED. R. CRIM. PROC. 11. The first step toward a plea deal may be a “proffer letter.”

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discussions between the prosecutor and attorney are preliminary and any statements made by the attorney are not to be deemed admissions on behalf of the client. Discussing the position of the client in “hypothetical” terms is the wise and cautious approach.

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Many proffer letters include language that seek to cover not only statements made by the client during an “in person” meeting between the client and the government, but also representations made by an attorney during the course of an “attorney proffer.” One must be very clear about the accuracy and truthfulness of any statements made on behalf of the client under such circumstances. One should have clear authority from the client to make such statements and the client should understand the potential for a prosecutor’s use of the attorney’s representative statements. Alternatively, a preferable approach would be to take the position that any conversations between an attorney and government counsel, preliminary to a proffer session, are to be considered more akin to settlement discussions, not binding on the client and are not usable by the government in any manner during any trial. Any language to the contrary in a proffer letter should be stricken and disavowed. 7.2 Immunity Immunity may be an incentive offered to a defendant involved in a multi-defendant case such as wire fraud or drug distribution organization. Immunity statutes may be separated into three categories. Use immunity statutes prohibit only the subsequent use of the compelled testimony in criminal prosecutions against the witness. Use and derivative use immunity statutes prohibit the subsequent use of compelled testimony and any evidence derived from such testimony in criminal prosecutions against the witness. Transactional immunity statutes prohibit the prosecution of the witness in regard to any matter relating to which he testified. Whenever offering immunity, the government may insist on the right to make derivative use of the information provided during the

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proffer session and require your client to waive any potential Kastigar issues. See Kastigar v. United States, 92 S.Ct. 1653 (1972) (where person has been granted immunity, the government has burden of proving in any subsequent prosecution that its evidence was derived wholly independent from immunized testimony). This waiver language may be required by the government, quite

information it received during the proffer session as leads to further its investigation. The government may be concerned that without this protection, if it engages in a proffer session and receives information from a defendant and then no final agreement was reached, the defendant will contend that the government used the information during the proffer session to further its investigation of the defendant. Because there are often many facets to the government’s investigation, the government would be in a very difficult position of trying to separate out what information it learned independent of the proffer session, what impact, if any, the proffer information had in its decision-making as to what leads to follow and what investigative avenues to pursue. By including a Kastigar waiver in a proffer letter, the government seeks to avoid the “taint” argument. For historical perspective, derivative use “taint” is what ultimately proved fatal to the government’s prosecution of Oliver North. See United States v. North, 920 F.2d 940 (D.C. Cir. 1990). North had been granted immunity by Congress and compelled to testify before Congress. In his subsequent prosecution, the government was unable to prove that its evidence and investigation was not influenced or tainted by the government’s exposure and its witnesses’ exposure to the compelled testimony and information provided by Oliver North during his congressional testimony under a grant use and derivative use immunity.

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legitimately, to avoid any subsequent argument that the government improperly used the

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7.2.1

Kastigar Hearing—Prosecution After Immunity Granted In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court ruled that when the

government prosecutes someone after granting that person use or derivative-use immunity, the

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Fifth Amendment requires a hearing to determine if the government's evidence came from an independent source. The Kastigar Court said little about the enforcement of the prohibition but the opinion does tell us: (1) the government must ensure that absolutely no use is made of the compelled testimony against the witness; (2) use of the testimony as an investigatory lead or acquisition of evidence as a result of focusing an investigation on a particular witness is forbidden; (3) any evidence introduced against the witness at a subsequent trial must be derived from an independent source; and (4) the prosecuting authorities have the affirmative burden of showing an independent source. 406 U.S. at 460. These are the only clues which are given as to how the prohibition will be enforced. The Kastigar majority held that the United States need only grant immunity from the use of the compelled testimony and evidence derived therefrom in a subsequent criminal prosecution-use and derivative use immunity. 7.3 Charge vs. Sentencing Bargains The prosecutors will present the defendant with an opportunity to plead guilty to a lesser charge or to the original charge with less than the maximum sentence. However, sentencing bargains are riskier for the defendant because of the Sentencing Guidelines. 7.3.1 Sentencing Guidelines One of the biggest differences between state court and federal court is the Sentencing Guidelines and mandatory minimums. When I first started, the Sentencing Guidelines were not in 27

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place. Before the Sentencing Guidelines were in effect, a federal judge was more like a state judge. Despite a few restrictions a federal judge could give a defendant whatever sentence he deemed appropriate ranging from probation to the maximum sentence. However, in 1987 the federal Sentencing Guidelines went into effect. The Sentencing Guidelines were implemented based on

more uniform sentencing guidelines and correct sentencing disparities. Prior to the SRA, there was a great disparity between the sentencing of defendants charged with white collar crime compared to the heavy sentenced given to minorities. In addition to major fluctuation in the sentences, there was also major disparity in the parole system as well. The SRA’s answer to correcting an unjust and unequal system was to create mandatory minimum sentences. The Sentencing Guidelines aimed to standardize sentencing to address disparities, particularly those affecting minorities and those charged with white-collar crimes. Although it was clear at the implementation of the SRA there were fundamental errors with a one size fits all kind of justice, federal judges handed down Guidelines sentences for 18 years before its strict application was found unconstitutional in United States v. Booker in 2005. Post Booker, there have been some changes but there still is room for more improvement. Now that the Guidelines are no longer mandatory, the most important part of the SRA is that the sentencing judge impose a sentence that is “sufficient, but not greater than necessary” to fulfill the purposes of sentencing as defined in the statue. U.S. Supreme Court precedent holds that federal courts should engage in a three-step approach to federal sentencing. First, a court must apply the sentencing guidelines to correctly calculate the guideline range. See generally Gall v. United States, 552 U.S. 38, 51 (2007) (stating that the District Court should begin all sentencing proceedings by correctly calculating the

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the Sentencing Reform Act of 1984 (SRA). The goal of the Sentencing Guidelines was to provide

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applicable guideline range, and that “to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark”). Second, a court should determine whether a departure is consistent with the guidelines. See, e.g., United States v. McBride, 434 F.3d 470, 477

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(6th Cir. 2006) (holding that guideline departures are still a relevant consideration for determining the appropriate guideline sentence). Third, a court should determine whether a variance (a sentence outside the advisory guideline system) is warranted under the authority of Title 18 U.S.C. § 3553(a). A sentencing court should consider arguments of the parties as to the appropriate sentence to be imposed. See, e.g., United States v. Booker, 543 U.S. 220 (2005), as clarified by Gall v. United States, 552 U.S. 38 (2007), and Kimbrough v. United States, 552 U.S. 85 (2007). A court must look to 18 U.S.C. § 3553(a) and the factors enumerated in that section. After considering the advisory range, the positions of the parties, and the § 3553(a) factors, a sentencing court is to impose a sentence that is sufficient, but not greater than necessary, to achieve the purposes of sentencing. The U.S. Supreme Court has firmly instructed sentencing courts that they “may not presume that the Guideline range is reasonable.” Gall, 552 U.S. at 50 (citing Rita v. United States, 551 U.S. 338, 341 (2007)). Rather, a sentencing court must make an “individualized assessment based on the facts presented.” Id. at 50. Rita made clear, and Kimbrough affirmed, when making individual assessments, sentencing courts are free to disagree with the guidelines’ recommended sentence in any case and may impose a different sentence based on a contrary view of what is appropriate under Title 18 U.S.C. § 3553(a). This includes the freedom to disagree with “policy decisions” of Congress or the Sentencing Commission that are contained in the guidelines. As the Supreme Court noted, “[a]s far as the law is concerned, the judge could disregard the Guidelines. . . .” Rita, 551 U.S. at 353. This broad discretion exists because district courts have a co-equal role with the Sentencing Commission. The courts are not

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subordinate partners in sentencing. As the Supreme Court opined in Rita, “[t]he upshot is that sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.” Id. at 347. Downward departures are part of the sentencing process and offer the opportunity to

departures when the opportunity presents itself and when circumstances require such action to bring about a fair and reasonable sentence.” United States v. Gaskill, 991 F.2d 82, 86 (3d Cir. 1993). “The Guidelines are not a straitjacket for district judges.” United States v. Cook, 938 F.2d 149, 153 (9th Cir. 1991). 7.3.2 Charging Decisions The charge to which a client pleads guilty may be the most significant decision when considering a plea deal. The differences in sentencing for federal vs. state drug offenses is vast. Federal laws, such as the Controlled Substances Act, target large-scale drug trafficking, often resulting in severe penalties like long prison terms. For instance, trafficking 500 grams of cocaine carries a minimum federal sentence of five years. Conversely, state offenses typically address smaller-scale possession or distribution. State penalties can be more lenient, with some states emphasizing rehabilitation over punishment, especially for marijuana, which is increasingly being legalized or decriminalized. Mandatory minimum sentences for drug offenses can make punishment in federal court, for the same conduct which can be found in state court, seem particularly draconian. State courts may also include mandatory minimums but usually allow more

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ameliorate the rigidity of the Guidelines. “District judges, therefore, need not shrink from utilizing

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judicial discretion. This can lead to significantly different sentencing outcomes for similar offenses. In 2005, Gonzales v. Raich, 545 U.S. 1 (2005), highlighted the supremacy of federal law

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in drug enforcement. It involved two California patients who legally used medical marijuana. The Court ruled that federal law, which prohibits marijuana, overrides state laws that legalize it. This case underscores that federal authorities can enforce drug laws even in states with legal marijuana, as local use can impact interstate commerce. Attorney General Merrick Garland issued a memorandum to all federal prosecutors on December 16, 2022, which urged U.S. Attorney’s Offices to avoid charging that would invoke mandatory minimums, recognizing that prosecutors have broad discretion when charging and the charge can reflect the seriousness of the offense without triggering a mandatory minimum which might result in a greater than necessary sentence. This letter is included as APPENDIX C. 8. Trial Many new federal trial practitioners will find trying your case in federal court much more orderly than trials in state court because exhibits have been exchanged and most if not all of the pretrial issues have been ruled on. The courtroom is better equipped with technology and the rules of courtroom conduct and dress are more regular from courtroom to courtroom. One example of federal courtroom practice which may take some adjustment for first-time practitioners is the use of the podium for examination of witnesses and addressing the court. Examination and argument from a podium without the same workspace of counsel’s table or the same nearness of co-counsel at your elbow is difficult to get used to—made more so because you may feel as if you’re standing “alone” at the podium for all to see as you learn to transition to the federal courtroom. But podiums, using JERS – Jury Evidence Recording System—and other federal courtroom formalities may

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seem imposing at first but, before you know it, you’ll be wishing the state courts were as consistent in their courtroom procedures as the federal courts. 8.1 Voir Dire Unlike state court, it’s not guaranteed that attorneys will be allowed to conduct a voir dire

jury questionnaires via pretrial motions). Rule 24, FED. R. CRIM. PROC., governs jury selection. Specifically, Rule 24(a)(1) affords the judge the absolute discretion to either examine the prospective jurors himself, or to permit the attorneys to do so. Under Rule 24(a)(2), where the court examines the prospective jurors, "it must permit the attorneys for the parties to: ((A) ask further questions that the court considers proper; or (B) submit further questions that the court may ask if it considers them proper." On average, federal judges conduct the majority of the questioning, sometimes giving the defendant's counsel ten to twenty minutes to conduct his or her own questioning (even when a jury questionnaire has also been allowed). This may be an accommodation to the mandate of Rule 24(a)(2), which states that when the judge examines the prospective jurors, the judge must permit further questioning by the attorneys or ask such further questions as the attorneys propound and the judge deems proper. 8.2 Jury Charge The jury charge is critical in all trials, so it’s important to consult multiple resources when drafting your first federal jury charge. This paper won’t even be the tip of the iceberg and you will want to have your proposed jury charge vetted well before starting trial. When preparing to draft your jury charge, always consult the Fifth Circuit’s most recent pattern jury instructions for each

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of the jury panel or utilize a jury questionnaire (make sure to request both attorney voir dire and

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of your issues and use them as a resource while drafting your own instructions: https://www.lb5.uscourts.gov/juryinstructions/ Because our topic is the nuances between state and federal trials, it’s worth mentioning that

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federal jury instructions may include an instruction on character. The Supreme Court has held that evidence of good character may, in some circumstances, "be enough to raise a reasonable doubt of guilt and that in the federal courts a jury in a proper case should be so instructed." Michelson v. United States, 335 U.S. 469, 476 & n. 11 (1948) (citing Edgington v. United States,164 U.S. 361 (1896); Wigmore, EVIDENCE (3d ed. 1940) §56; Underhill, CRIMINAL EVIDENCE (4th ed. 1935) §165; 1 Wharton, CRIMINAL EVIDENCE (11th ed. 1935) §§330, 336). A defendant has a right to present evidence of good character in his defense. See United States v. John, 309 F.3d 298, 303-04 (5th Cir. 2002); United States v. Han, 230 F.3d 560, 563-64 (2d Cir. 2000) (harmless); United States v. Darland,6 26 F.2d 1235,1 237 (5th Cir. 1980). Although we all go to trial with the hope of winning, preserving error—especially when it comes to jury instructions—is the key to giving your client a fighting chance should the client decide to appeal. Make sure that even if you, the judge, and opposing counsel, exchange drafts of jury instructions, you file a copy of your proposed jury charge as well. If you only e-mail your proposed jury instructions to the judge, without filing a copy of them, your proposed instructions will not be part of the record on appeal. And if your proposed instructions are not in the record, then you cannot argue on appeal that the trial court erred in refusing one of them. It is important for you to make your objections to the final instructions on the record. Having proposed a jury instruction that differed from the final one might not be sufficient to preserve your argument for appeal. If you think the final instruction is erroneous, you must object on that basis. it is important to place your objections to the final instructions on the record. The court should give you an

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opportunity to do this on the record. If not, make sure you file your objections in writing. If the court has required the parties to present a set of joint instructions, you can place your objections immediately below your opponent’s proposed jury instruction in bold or italics. Consider whether you need to object to: (1) instructions you believe should not be given; (2) instructions that differ

court’s refusal to include instructions you feel should be given. Errors in jury instructions have a good chance of being reversible error. Don’t risk waiving a good jury instruction issue for appeal by failing to get your timely and specific objection on the record! 8.3 Recent Rule Changes I would be remiss if I did not alert you to recent federal rule changes that may affect your trial practice. On December 1, 2023, amendments to three of the Federal Rules of Evidence – Rules 106, 615, and 702 – took effect. The amended rules apply to "all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending." For those who often litigate in federal court, or have open cases in federal court, it will be important to understand the changes and how they will affect your presentation of evidence to the court and at trial. I have included the three rules with their changes in APPENDIX D along with the new Federal Rule of Criminal Procedure 62. Amended Rule 106 will now read as follows: Rule 106. Remainder of or Related Statements If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection. The key changes to note in the amendments to this rule are: (1) the rule now explicitly states that there can be no hearsay objection to admitting the remainder or related statement, if in fairness the remainder or related statement ought to be considered. This change was made because 34

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from the version you proposed (unless you decide the court’s version is sufficient); and (3) the

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"[c]ourts have been in conflict over whether completing evidence properly required for completion under Rule 106 can be admitted over a hearsay objection." (2) the rule now covers all statements, including oral statements that have not been recorded and statements made through conduct or

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sign language. It should be remembered, however, that a party "seeking completion with an unrecorded statement would of course need to provide admissible evidence that the statement was made. Otherwise, there would be no showing that the original statement is misleading, and the request for completion should be denied. In some cases, the court may find that the difficulty in proving the completing statement substantially outweighs its probative value—in which case exclusion is possible under Rule 403." See, COMMITTEE NOTES to Rule 106 Proposed Amendment. Rule 615. Excluding Witnesses from the Courtroom; Preventing an Excluded Witness's Access to Trial Testimony (a) Excluding Witnesses. At a party's request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding: (1) a party who is a natural person; (2) one officer or employee of a party that is not a natural person if that officer or employee has been designated as the party's representative by its attorney; (3) any person whose presence a party shows to be essential to presenting the party's claim or defense; or (4) a person authorized by statute to be present. (b) Additional Orders to Prevent Disclosing and Accessing Testimony. An order under (a) operates only to exclude witnesses from the courtroom. But the court may also, by order: (1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and (2) prohibit excluded witnesses from accessing trial testimony. The Committee Notes to the proposed amendments to Rule 615 explain that is has been amended for two purposes. "(1) Most importantly, the amendment clarifies that the court, in entering an order under this rule, may also prohibit excluded witnesses from learning about, obtaining, or being provided with trial testimony," and not just being excluded from the trial. Thus, under newly added subsection (b), the court has discretion to "extend the sequestration beyond the 35

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courtroom, to prohibit those subject to the order from disclosing trial testimony to excluded witnesses, as well as to directly prohibit excluded witnesses from trying to access trial testimony." "(2) Second, the rule has been amended to clarify that the exception from exclusion for entity representatives is limited to one designated representative per entity…. The rule does not prohibit

for another as the trial progresses, so long as only one witness-representative is exempt at any one time." The new Rule 702 states: Rule 702. Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: (a)

the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b)

the testimony is based on sufficient facts or data;

(c)

the testimony is the product of reliable principles and methods; and

(d)

the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

Rule 702 has been amended in two respects. As explained in the Committee Notes, "First, the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule….This is the preponderance of the evidence standard that applies to most of the admissibility requirements set forth in the evidence rules." See, COMMITTEE NOTES to Proposed Amendment to Rule 702. The rule was amended to include the required language because courts had failed to apply correctly the reliability requirements of the rule, instead defaulting to the adage of these are questions of weight 36

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the court[, however,] from exercising discretion to allow an entity-party to swap one representative

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and not admissibility. Under the correct application of the rule, "once the court has found it more likely than not that the admissibility requirement has been met, any attack by the opponent will go

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only to the weight of the evidence." Second, "Rule 702(d) has also been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert's basis and methodology." As the Committee explains, "the amendment is especially pertinent to the testimony of forensic experts in both criminal and civil cases. Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error. In deciding whether to admit forensic expert testimony, the judge should (where possible) receive an estimate of the known or potential rate of error of the methodology employed…." However, nothing in the amended rule imposes new or specific procedures and the court is not required to "nitpick an expert's opinion…. The [ ] standard does not require perfection." Proposed but not yet adopted amendments: while the amendments to Rules 106, 615 and 702 took effect on December 1, 2023, there are a few other proposed amendments to the Federal Rules of Evidence that are currently in the works and may become effective in December 2024. See again, proposed amendments and COMMITTEE NOTES. These include proposed amendments to the following Rules of Evidence: •

Rule 611 Mode and Order of Examining Witnesses and Presenting Evidence – as explained in the Committee Notes, a new subdivision (d) is added to provide standards for the use of "illustrative aids" (such as blackboard drawings, photographs, diagrams, PowerPoints, video depictions, charts, graphs and

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computer simulations that are used to help the jury understand what is being communicated to them). •

Rule 613 Witness's Prior Statement – according to the Committee Notes,

to explain or deny a prior inconsistent statement prior to the introduction of extrinsic evidence of the statement." •

Rule 801 Definitions That Apply to This Article; Exclusions from Hearsay – an addition is made to subdivision (d)(2) – "If a party's claim or potential liability is directly derived from a declarant or the declarant's principal, a statement that would be admissible against the declarant or the principal under this rule is also admissible against the party."

•

Rule 804 Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness – as explained in the Committee Notes, subdivision (b)(3)(B) has been amended "to require that in assessing whether a statement is supported by corroborating circumstances that clearly indicate its trustworthiness, the court must consider not only the totality of the circumstances under which the statement was made, but also any evidence corroborating or contradicting it."

•

Rule 1006 Summaries to Prove Content – the Committee Notes explain that this rule has been amended to clarify that a party may offer a Rule 1006 summary as evidence. In addition, the rule has been amended to allow a party to offer the summary as evidence regardless of whether the underlying voluminous materials reflected in the summary have been admitted. Finally, the rule has been amended

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subdivision (b) has been amended "to require that a witness receive an opportunity

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to clearly state that illustrative aids are not covered by Rule 1006, but instead are governed by Rule 611(d).

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Just as the federal rules are constantly changing so is the practice of federal criminal law. It has been rewarding work to defend my clients in the U.S. District Courts and I hope my paper and presentation will intrigue you enough to keep learning more.

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Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Speaker:

Ethics of AI

Legal Ethics in the Use of Artificial Intelligence (AI)

Sean Hightower

Hightower, Franklin, & James 115 South Street Nacogdoches, TX 75961 936.560.3300 phone 936.560.5600 fax seanhightower@yahoo.com email https://www.thegoodlawyer.com/ website

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

Legal Ethics in the Use of Artificial Intelligence Lawyers increasingly are using artificial intelligence (“AI”) in their practices to improve the efficiency and accuracy of legal services offered to their clients. But while AI offers cuttingedge advantages and benefits, it also raises complicated questions implicating professional ethics. Lawyers must be aware of the ethical issues involved in using (and not using) AI, and they must have an awareness of how AI may be flawed or biased. Section I of this article provides an overview of AI and the different AI tools used in the practice of law. Section II, in turn, analyzes a lawyer’s ethical duties in connection with AI technology. Finally, Section III explores how bias can affect AI and the importance of using diverse teams when developing AI technology.

Ethics of AI

I. OVERVIEW OF HOW ARTIFICIAL INTELLIGENCE IS CHANGING THE LAW Artificial intelligence promises to change not only the practice of law but our economy as a whole. We clearly are on the cusp of an AI revolution. But what does all this mean, as a practical matter, for lawyers? What is AI? And how is it being used in the practice of law? A.

Defining AI.

Artificial intelligence has been defined as “the capability of a machine to imitate intelligent human behavior.”1 Others have defined it as “cognitive computing” or “machine learning.”2 Although there are many descriptive terms used, AI at its core encompasses tools that are trained rather than programmed. It involves teaching computers how to perform tasks that typically require human intelligence such as perception, pattern recognition, and decision-making.3 B.

How AI Is Being Used In The Practice Of Law

There are many different ways that lawyers today are using AI to improve productivity and provide better legal services to their clients. Below are several of the main examples. As AI becomes even more advanced in the coming years, it fundamentally will transform the practice of law. Lawyers who do not adopt AI will be left behind. 1. Electronic Discovery/Predictive Coding. Lawyers, predictably, use AI for electronic discovery. The process involves an attorney training the computer how to categorize documents in a case. Through a method of predictive coding, the AI technology is able to classify documents as relevant or irrelevant, among other classifications, after extrapolating data gathered from a sample of documents classified by the attorney.4

-1-

2. Litigation Analysis/Predictive Analysis. AI also is being used to predict the outcome of litigation through the method of predictive analytics. AI tools utilize case law, public records, dockets, and jury verdicts to identify patterns in past and current data.5 The AI then analyzes the facts of a lawyer’s case to provide an intelligent prediction of the outcome.6 3. Contract Management. AI tools are being used by lawyers to assist with contract management. This is particularly valuable to inside counsel who quickly need to identify important information in contracts. For example, AI tools can flag termination dates and alert the lawyer about deadlines for sending a notice of renewal. The AI tools also can identify important provisions in contracts, such as most favored nation clauses, indemnification obligations, and choice of law provisions, among others.7 4. Due Diligence Reviews.

5. “Wrong Doing” Detection. AI is being used to search company records to detect bad behavior preemptively. AI is able to see beyond attempts to disguise wrongdoing and identify code words.10 AI can also review employee emails to determine morale, which may lead to identification of wrongdoing.11 For example, in one test using emails of Enron executives, the AI was able to detect tension amongst employees that was correlated with a questionable business deal.12 6. Legal Research. AI traditionally has been used to assist with legal research, but it increasingly is becoming more sophisticated. With AI, lawyers can rely on natural language queries—rather than simple Boolean queries—to return more meaningful and more insightful results.13 AI also can be used to produce basic legal memos. One AI program called Ross Intelligence, which uses IBM’s Watson AI technology, can produce a brief legal memo in response to a lawyer’s legal question.14 Over time, such AI technology will become more and more powerful. 7. AI to Detect Deception. 15 Finally, as AI becomes more advanced, it will be used by lawyers to detect deception. Researchers, for example, are working on developing AI that can detect deception in the courtroom. In one test run, an AI system performed with 92 percent accuracy, which the researchers described as “significantly better” than humans.16 While AI is still being developed for use in courtrooms, it already is being deployed outside the practice of law. For example, the -2-

Ethics of AI

AI is being used to assist in automated due diligence review for corporate transactions to reduce the burden of reviewing large numbers of documents.8 Similar to contract management, due diligence review involves the computer identifying and summarizing key clauses from contracts.9

United States, Canada, and European Union have run pilot programs using deception-detecting kiosks for border security.17 C.

It is Essential for Lawyers to be Aware of AI.

The bottom line is that it is essential for lawyers to be aware of how AI can be used in their practices to the extent they have not done so yet. AI allows lawyers to provide better, faster, and more efficient legal services to companies and organizations. The end result is that lawyers using AI are better counselors for their clients. In the next few years, the use of AI by lawyers will be no different than the use of email by lawyers—an indispensable part of the practice law.18

Ethics of AI

Not surprisingly, given its benefits, more and more business leaders are embracing AI, and they naturally will expect both their in-house lawyers and outside counsel to embrace it as well. Lawyers who already are experienced users of AI technology will have an advantage and will be viewed as more valuable to their organizations and clients. From a professional development standpoint, lawyers need to stay ahead of the curve when it comes to AI. But even apart from the business dynamics, professional ethics requires lawyers to be aware of AI and how it can be used to deliver client services. As explored next, a number of ethical rules apply to lawyers’ use and non-use of AI. II.

THE LEGAL ETHICS OF AI. A.

Several Ethics Rules Apply To Lawyer’s Use (And Non-Use) of AI.

There are a number of ethical duties that apply to the use of (and non-use of) AI by lawyers, including the duties of: (1) competence (and diligence), (2) communication, (3) confidentiality, and (4) supervision. These duties as applied to AI technology are discussed below. 1. Duty of Competence Under Rule 1.1 of the ABA Model Rules, a lawyer must provide competent representation to his or her client. The rule states that “[c]ompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”19 The duty of competence requires lawyers to be informed, and up to date, on current technology. In 2012, this was made clear when the ABA adopted Comment 8 to Rule 1.1 which states that “[t]o maintain the requisite knowledge and skill, lawyers should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology ”20 As one author points out, there does not appear to be any instance “in which AI represents the standard of care in an area of legal practice, such that its use is necessary.”21 Nonetheless, lawyers generally must understand the technology available to improve the legal services they

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provide to clients. Lawyers have a duty to identify the technology that is needed to effectively represent the client, as well as determine if the use of such technology will improve service to the client.22 Under Rule 1.1, lawyers also must have a basic understanding of how AI tools operate. While lawyers cannot be expected to know all the technical intricacies of AI systems, they are required to understand how AI technology produces results. As one legal commentator notes, “[i]f a lawyer uses a tool that suggests answers to legal questions, he must understand the capabilities and limitations of the tool, and the risks and benefits of those answers.”23 2. Duty to Communicate

3. Duty of Confidentiality Under ABA Model Rule 1.6, lawyers owe their clients a generally duty of confidentiality. This duty specifically requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”28 The use of some AI tools may require client confidences to be “shared” with thirdparty vendors. As a result, lawyers must take appropriate steps to ensure that their clients’ information appropriately is safeguarded.29 Appropriate communication with the client also is necessary. To minimize the risks of using AI, a lawyer should discuss with third-party AI providers the confidentiality safeguards in place. A lawyer should inquire about “what type of information is going to be provided, how the information will be stored, what security measures are in place with respect to the storage of the information, and who is going to have access to the information.”30 AI should not be used in the representation unless the lawyer is confident that the client’s confidential information will be secure. 4. Duty to Supervise Under ABA Model Rules 5.1 and 5.3, lawyers have an ethical obligation to supervise lawyers and nonlawyers who are assisting lawyers in the provision of legal services to ensure that their conduct complies with the Rules of Professional Conduct.31 In 2012, the title of Model Rule 5.3 -4-

Ethics of AI

ABA Model Rule 1.4 governs a lawyer’s duty to communicate with clients and requires a lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”24 A lawyer’s duty of communication under Rule 1.4 includes discussing with his or her client the decision to use AI in providing legal services. A lawyer should obtain approval from the client before using AI, and this consent must be informed. The discussion should include the risks and limitations of the AI tool.25 In certain circumstances, a lawyer’s decision not to use AI also may need to be communicated to the client if using AI would benefit the client.26 Indeed, the lawyer’s failure to use AI could implicate ABA Model Rule 1.5, which requires lawyer’s fees to be reasonable. Failing to use AI technology that materially reduces the costs of providing legal services arguably could result in a lawyer charging an unreasonable fee to a client.27

was changed from “Responsibilities Regarding Nonlawyer Assistants” to “Responsibilities Regarding Nonlawyer Assistance.”32 The change clarified that the scope of Rule 5.3 encompasses nonlawyers whether human or not. Under Rules 5.1 and 5.3, lawyers are obligated to supervise the work of the AI utilized in the provision of legal services, and understand the technology well enough to ensure compliance with the lawyer’s ethical duties. This includes making sure that the work product produced by AI is accurate and complete and does not create a risk of disclosing client confidential information.33 There are some tasks that should not be handled by today’s AI technology, and a lawyer must know where to draw the line. At the same time, lawyers should avoid underutilizing AI, which could cause them to serve their clients less efficiently.34 Ultimately, it’s a balancing act. Given that many lawyers are focused on detail and control over their matter, it is easy to see why “the greater danger might very well be underutilization of, rather than overreliance upon, artificial intelligence.”35

Ethics of AI

5. A Cautionary Tale for Lawyers’ In Ex Parte Allen Michael Lee, Lee was denied a bail reduction in his sexual assault case. Chief Justice Tom Gray of the Tenth District Court of Appeals said none of the three published cases cited by Lee’s attorney actually existed, and each citation used a jump-cite that sends the reader to “a different case that has nothing to do with the propositions cited by Lee. Two of the citations take the reader to cases from Missouri.” The state’s response brief, Gray noted, points out that even the Texas cases cited do not correspond with propositions relied upon. In a footnote, Gray referenced U.S. District Judge Brantley Starr’s recent experience in the Northern District of Texas with a faulty AI-generated brief and his reaction: the imposition of a rule that “no portion of any filing in [any] case will be drafted by generative artificial intelligence.” Gray also said he would not report the attorney to the state bar for a potential investigation, nor would he issue a show cause order as occurred in a New York federal case, because the issue was addressed on appeal and he had no information “why the briefing is illogical.” If you're going to be seeking the assistance of AI in something like brief research or even writing, you need to be very, very cautious about reviewing the work. B.

Key Practical Takeaways Relating to The Ethics of AI.

There clearly are a number of ethical rules that apply to lawyers’ use and non-use of AI technology, and they have real-world application. Lawyers must be informed about AI’s ability to deliver efficient and accurate legal services to clients while keeping in mind the ethical requirements and limitations. Ultimately, lawyers must exercise independent judgment, communicate with clients, and supervise the worked performed by AI. In many ways, the ethical issues raised by AI are simply a permutation of ethical issues that lawyers have faced before with regard to other technology. It shows that the legal ethics rules are adaptable to new technologies, and AI is no exception.

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III.

BIAS IN THE AI CONTEXT.

There is a final, often overlooked consideration in a lawyer’s use of AI technology, and that is the problem of bias. For all the advantages that AI offers for lawyers, there also is a genuine concern that AI technology may reflect the biases and prejudices of its developers and trainers, which in turn may lead to skewed results. It is critical for lawyers using AI to understand how bias can impact AI results.

Bias in AI technology stems from the nature of AI tools, which involve machine training rather than programming. If the data used for training is biased, the AI tool will produce a biased result. Microsoft, for example, recently launched an AI tool that could have text-based conversations with individuals.38 The tool continuously learned how to respond in conversations based on previous conversations. Unfortunately, the tool began to mimic the discriminatory viewpoints of the people it previously engaged in conversation.39 As yet another example, the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) software used by some courts to predict the likelihood of recidivism in criminal defendants has been shown by studies to be biased against African-Americans.40 For these reasons, it is important to have diverse teams developing AI to ensure that biases are minimized. The data used for training AI should also be carefully reviewed in order to prevent bias. In the AI world, there has been a movement away from “black box” AI, in which an AI model is not able to explain how it generated its output based on the input.41 The preferred model is now “explainable AI,”42 which is able to provide the reasoning for how decisions are reached. The importance of transparency in the use of AI is being recognized by governments. New York City, for example, recently passed a law that requires creation of a task force that monitors algorithms used by its government, such as those used to assign children to public schools.43 One of the task force’s responsibilities is to determine how to share with the public the factors that go into the algorithms.44 Ultimately, the need for lawyers to understand how AI generates outputs is important for combatting bias and providing good counsel to clients. And it may be required by legal ethics. As detailed above, lawyers have a duty to communicate with clients, and explaining why AI -6-

Ethics of AI

The problem of bias in the development and use of AI potentially implicates professional ethics. In August 2016, the ABA adopted Model Rule 8.4(g), which prohibits harassment and discrimination by lawyers against eleven protected classes.36 Rule 8.4(g) states that it is professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”37 About 20 states already have some variation of ABA Model Rule 8.4 on the books, and several other states are considering whether to adopt ABA’s new expansive rule. Lawyers in jurisdictions that have adopted some form of Rule 8.4 must consider whether their use of AI is consistent with the rule. Moreover, even in jurisdictions that have not adopted some form of Rule 8.4, lawyers must consider how bias in the use of AI could create risks for clients.

generates a particular outcome may be included as part of that duty. The good news is that while AI has the potential to be biased, AI is much more predictable than humans. It is easier to remedy bias in machines than it is in humans. Given their role as officers of the court, it is critical for lawyers to be on the forefront of understanding how bias in the use of can impact outcomes achieved by the legal profession and society as a whole. CONCLUSION Without a doubt, AI promises to fundamentally transform the practice of law. AI holds out the promise of freeing lawyers from mundane tasks and allowing them to devote more of their time to counseling clients, which after all is the core of what lawyers do. Lawyers should not fear AI, but rather should embrace it. Professional ethics requires them to do so.

Artificial Intelligence, MERRIAM-WEBSTER (April 6, 2017), available at https://www.merriamwebster.com/dictionary/artificial%20intelligence. 1

Lisa Morgan, 4 Types of Machine Intelligence You Should Know, Information Week (Apr. 10, 2018) https://www.informationweek.com/big-data/ai-machine-learning/4-types-of-machine-intelligence-you-shouldknow/a/d-id/1331480.

Ethics of AI

3 Sterling Miller, Artificial Intelligence – What Every Legal Department Really Needs To Know, Ten Things You Need to Know as In-House Counsel (Aug. 15, 2017), https://hilgersgraben.com/blogs/blogshidden.html/article/2017/08/15/ten-things-artificial-intelligence-what-every-legal-department-really-needs-to-know

David L. Gordon & Rebecca L. Ambrose, The Ethics of Artificial Intelligence, The Jackson Lewis Corporate Counsel Conference (2017), https://www.jacksonlewis.com/sites/default/files/docs/Final_The%20Ethics%20of%20Artificial%20Intelligence_Go rdon%20and%20Ambrose.pdf. 4

Supra, note 3.

Id.

Lauri Donahue, A Primer on Using Artificial Intelligence in the Legal Profession, Harvard Journal of Law and Technology (Jan. 3, 2018) https://jolt.law.harvard.edu/digest/a-primer-on-using-artificial-intelligence-in-the-legalprofession. 9

Sterling Miller, Artificial Intelligence and its Impact on Legal Technology: To Boldly Go Where No Legal Department Has Gone Before, Thomson Reuters, https://legal.thomsonreuters.com/en/insights/articles/AI-and-itsimpact-on-legal-technology. 10

Frank Partnoy, What Your Boss Could Learn by Reading the Whole Company’s Emails, The Atlantic (Sep. 2018) https://www.theatlantic.com/magazine/archive/2018/09/the-secrets-in-your-inbox/565745/. 11

Id.

Supra, note 3.

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Steve Lohr, A.I. Is Doing Legal Work. But It Won’t Replace Lawyers, Yet, New York Times (Mar. 9, 2017) https://www.nytimes.com/2017/03/19/technology/lawyers-artificial-intelligence.html.

Shivali Best, The Robot That Knows When You're Lying, DailyMail (Dec. 20, 2017), http://www.dailymail.co.uk/sciencetech/article-5197747/AI-detects-expressions-tell-people-lie-court.html. 15

Id.

Jeff Daniels, Lie-detecting Computer Kiosks Equipped with Artificial Intelligence Look Like the Future of Border Security, CNBC (May 15, 2018) https://www.cnbc.com/2018/05/15/lie-detectors-with-artificial-intelligence-arefuture-of-border-security.html. 17

Supra, note 3.

ABA Model Rule 1.1

Hedda Litwin, The Ethical Duty of Technology Competence: What Does it Mean for You?, National Association of Attorneys General, https://www.naag.org/publications/nagtri-journal/volume-2-issue-4/the-ethical-duty-oftechnology-competence-what-does-it-mean-for-you.php. 20

James Q. Walker, What’s Artificial About Intelligence? The Ethical and Practical Considerations When Lawyers Use AI Technology, Bloomberg Law (2018), https://www.rkollp.com/newsroom-publications-443.html.

Supra, note 4.

David Lat, The Ethical Implications of Artificial Intelligence, Above the Law: Law2020, https://abovethelaw.com/law2020/the-ethical-implications-of-artificial-intelligence/.

ABA Model Rule 1.4.

Supra, note 4.

Id.

Ethical Use of Artificial Intelligence in the Legal Industry: The Rules of Professional Conduct, Emerging Industries and Technology Committee Newsletter, (March 2018), https://insolvencyintel.abi.org/bankruptcyarticles/ethical-use-of-artificial-intelligence-in-the-legal-industry-therules-of-professional-conduct. 27

ABA Model Rule 1.6.

Supra, note 4.

Id.

Variations of the ABA Model Rules of Professional Conduct, ABA CPR Policy Implementation Committee (Sep. 29, 2017) https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_5_3.pdf. 32

Supra, note 4.

Supra, note 22.

Id.

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Ethics of AI

ABA Rule 8.4 Finding Few Followers, but Sparking Lots of Encouraging Discussion, ABA (Aug. 3, 2018) https://www.americanbar.org/news/abanews/aba-news-archives/2018/08/aba_rule_8_4_finding/. 36

ABA Model Rule 8.4(g).

Jonathon Vanian, Unmasking A.I.’s Bias Problem, Fortune (June 25, 2018) https://www.fortune.com/longform/aibias-problem/. 38

Id.

Julia Angwin, et. al., Machine Bias, ProPublica (May 23, 2016) https://www.propublica.org/article/machine-biasrisk-assessments-in-criminal-sentencing. 40

Jason Bloomberg, Don’t Trust Artificial Intelligence? Time to Open the AI ‘Black Box’, Forbes (Sep. 16, 2018) https://www.forbes.com/sites/jasonbloomberg/2018/09/16/dont-trust-artificial-intelligence-time-to-open-the-aiblack-box/#56c1d9a3b4a7. 41

Opening AI’s Black Box Will Become a Priority, PwC, https://www.pwc.com/us/en/services/consulting/library/artificial-intelligence-predictions/explainable-ai.html. 42

Elizabeth Zima, Could New York City’s AI Transparency Bill Be a Model for the Country?, Government Technology (Jan. 4, 2018), https://www.govtech.com/policy/Could-New-York-Citys-AI-Transparency-Bill-Be-AModel-for-the-Country.html.

Ethics of AI

Id.

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Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Significant Decisions: United States Supreme Court & The Court of Criminal Appeals From September 2023 – March 2024 Hon. David C. Newell Judge, Place 9 Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 512.463.1570 phone

Co-Author:

Kathleen Neilson

Co-Author:

Tiffany Talamantez

Briefing Attorney

Staff Attorney

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

Case Law Update

Speaker:

SIGNIFICANT DECISIONS UNITED STATES SUPREME COURT AND THE COURT OF CRIMINAL APPEALS FROM SEPTEMBER 2023 THRU MARCH 2024

Case Law Update

HON. DAVID C. NEWELL JUDGE, PLACE 9 Court of Criminal Appeals Paper prepared by Kathleen Neilson Briefing Attorney and Tiffany Talamantez Staff Attorney

Court of Criminal Appeals P.O. Box 12308 Austin, TX 78744 (512) 463-1570

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

Acknowledgement This paper was largely drafted by my law clerk, Kathleen Neilson, and my staff attorney, Tiffany Talamantez. If there is anything smart in here or there is some insight that helps you in your practice it comes from them. Conversely, if there is a formatting problem or a use of brackets that you disagree with, that probably came from me. Also, “trail” not “trial” is probably my fault. I hope something in here helps you. It certainly helped me. As did Ms. Neilson and Ms. Talamantez, and I cannot acknowledge them enough.

Case Law Update

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

Table of Contents I.

INTRODUCTION ..............................................................................................................................................................1

II.

SEARCH AND SEIZURE .................................................................................................................................................1 A.

REASONABLE SUSPICION .......................................................................................................................................................1 1. Officer had reasonable suspicion to conduct traffic stop of driver for failure to maintain a single marked lane . despite officer’s mistaken reliance upon CCA’s misinterpretation of the statute in a non-binding and subsequently . disavowed portion of Leming v. State ...............................................................................................................................................1 2. Lawful refusal to consent may not be considered when determining if the facts gave rise to reasonable suspicion........2 B. SUSPICIOUS PLACES – GAS STATION AFTER A HIT-AND-RUN WAS A SUSPICIOUS PLACE IN LIGHT OF INTOXICATED DRIVER’S ADMISSION THAT HE HAD HIT SOMETHING, EVIDENCE OF COLLISION ON HIS VEHICLE, AND EXISTENCE OF EXIGENT CIRCUMSTANCES. ................................................................................................................................................................... 2 III.

BAIL ......................................................................................................................................................................................4 Under the Damon Allen Act, a public safety report must be reviewed by a magistrate when making a bail determination and appellate courts must review that report through the proper channels..............................................4 2. Bond Forfeiture - Sureties are not liable for civil filing fees that the State is exempt from paying unless a statute expressly requires a civil defendant to pay a fee if the State prevails, but sureties cannot be required to pay a fee that improperly duplicates a fee already charged. ..................................................................................................................5 B. INDICTMENTS.........................................................................................................................................................................5 1. In cases involving multi-count indictments, facial constitutional challenges are cognizable in a pretrial writ of habeas corpus if a grant of relief on would result in immediate release from prosecution for at least one count. ......................5 2. State was not required to prove elements alleged in facially valid indictment for sexual assault without consent despite information in caption that indicated victim of sexual assault was a child under the age of 17 who could not legally consent. .............................................................................................................................................................................6 3. State was not required to elect particular manner and means of committing alleged offense because indictment alleged every statutory manner and means for committing the offense. ...........................................................................7 4. Defendant's claim that his indictment was time-barred was cognizable in a pretrial habeas writ, and his indictment was time-barred because it was brought more than two days after the offense. ..............................................................8 C. WAIVER OF COUNSEL - THE STATUTORY RIGHT TO WITHDRAW A WAIVER OF COUNSEL “AT ANY TIME” IS NOT ABSOLUTE, AND DEFENDANT WAS ADEQUATELY ADVISED OF THE DANGERS OF SELF-REPRESENTATION IN LIGHT OF HIS ALTERNATION BETWEEN SELF-REPRESENTATION AND REPRESENTATION THROUGH COUNSEL DURING THE PROCEEDINGS. .......................... 8 D. ALTERNATE JURORS - AN ALTERNATE JUROR'S ERRONEOUS PARTICIPATION IN JURY DELIBERATIONS VIOLATED STATUTE

Case Law Update

TRIAL PROCEDURE .......................................................................................................................................................4 1.

PROHIBITING PEOPLE OTHER THAN THE JURY FROM BEING WITH THE JURY DURING DELIBERATIONS AS WELL AS

E. F. IV. A. V.

CONVERSATIONS WITH JURORS ABOUT A CASE ON TRIAL. .................................................................................................... 10

DOUBLE JEOPARDY - JURY’S VERDICT OF “NOT GUILTY BY REASON OF INSANITY” WAS AN ACQUITTAL FOR PURPOSES OF THE FIFTH AMENDMENT’S DOUBLE JEOPARDY CLAUSE. ..................................................................................................... 12 RESTITUTION - DEFENDANT’S OFFENSES DID NOT CAUSE PROPERTY DAMAGE, AND THUS, RESTITUTION FOR DAMAGED PROPERTY COULD NOT BE IMPOSED AGAINST HIM. ............................................................................................................... 13 EVIDENCE ....................................................................................................................................................................... 13 JUROR AFFIDAVIT REGARDING DELIBERATIONS AFTER ALTERNATE JUROR WAS EXCUSED FROM JURY ROOM WAS ADMISSIBLE UNDER RULE 606(B)......................................................................................................................................... 13 OFFENSES ....................................................................................................................................................................... 14

A. B.

SEXUAL ASSAULT – FACT THAT VICTIM OF SEXUAL ASSAULT WAS A CHILD DID NOT ESTABLISH THAT SEXUAL ASSAULT OCCURRED “WITHOUT CONSENT.”........................................................................................................................................ 14 FORGERY - THE FORGERY VALUE LADDER UNDER SUBSECTION (E-1) OF SEC. 32.21 OF THE TEXAS PENAL CODE OPERATES AS A STATUTORY ELEMENT TO BE PROVEN AT THE GUILT-INNOCENCE PHASE, BUT THE STATE IS NOT REQUIRED TO NEGATE

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024 ITS APPLICABILITY IF IT ALLEGES A PARTICULAR TYPE OF FORGED INSTRUMENT UNDER SUBSECTIONS (D) AND (E) OF THE

C. D. VI. A.

FORGERY STATUTE. .............................................................................................................................................................. 15

TAMPERING WITH PHYSICAL EVIDENCE – DEFENDANT CONCEALED EVIDENCE WHEN HE THREW MARIJUANA OUT OF HIS VEHICLE’S WINDOW WHILE REFUSING TO STOP HIS VEHICLE FOR A VALID TRAFFIC STOP. .................................................... 17 EVADING ARREST OR DETENTION – STATE IS NOT REQUIRED TO PROVE A DEFENDANT KNOWS HIS ATTEMPTED ARREST OR DETENTION IS LAWFUL TO CONVICT FOR EVADING ARREST OR DETENTION. ......................................................................... 17 JURY INSTRUCTIONS .................................................................................................................................................. 19 ATTEMPTED SEXUAL ASSAULT JURY CHARGE THAT DID NOT LIMIT THE DEFINITION OF SEXUAL ASSAULT TO THE CONDUCT ALLEGED IN THE INDICTMENT WAS NOT EGREGIOUSLY HARMFUL BECAUSE THE CASE DID NOT CONCERN AN ALTERNATIVE MEANS OF COMMITTING THE OFFENSE.................................................................................................................................. 19

VII.

APPEALS .......................................................................................................................................................................... 19

MOTION FOR NEW TRIAL - TRIAL COURT DID NOT HAVE AUTHORITY TO EXTEND THE DEADLINE AND PRESIDE OVER A HEARING ON A MOTION FOR NEW TRIAL AFTER 75-DAY PERIOD EXPIRED. ............................................................................ 19 STATUTORY HARM – REVIEWING COURTS DO NOT NEED TO RELY UPON A REBUTTABLE PRESUMPTION OF HARM FOR STATUTORY ERROR ARISING FROM ALTERNATE JUROR’S PARTICIPATION IN JURY DELIBERATIONS. ..................................... 20 DEFENDANT’S APPEAL WAS PERMANENTLY ABATED ON THE STATE’S MOTION WHEN THE DEFENDANT DIED WHILE HIS REMAND TO THE COURT OF APPEALS WAS STILL PENDING. ................................................................................................... 20

B. C. VIII. A.

HABEAS CORPUS .......................................................................................................................................................... 21 FALSE EVIDENCE RELATING TO STATISTICAL PROBABILITY ESTIMATES FOR CERTAIN DNA MIXTURES WAS NOT MATERIAL WHEN IT WAS NOT SHOWN THAT THERE WAS A REASONABLE LIKELIHOOD THAT THE OUTCOME WOULD HAVE BEEN

B. C. IX.

HABEAS COURT DID NOT HAVE AUTHORITY UNDER ART. 11.071, SEC. 3 OF THE TEXAS CODE OF CRIMINAL PROCEDURE TO ISSUE AN EX PARTE ORDER COMPELLING A THIRD PARTY TO CREATE NEW EVIDENCE. .......................................................... 22 HABEAS APPLICANT’S DEATH SENTENCE WAS REFORMED TO LIFE IMPRISONMENT WITHOUT PAROLE BECAUSE HE MET THE DIAGNOSTIC CRITERIA FOR INTELLECTUAL DISABILITY. ....................................................................................................... 22 FEDERAL LAW .............................................................................................................................................................. 25 MANDATORY MINIMUM SENTENCING GUIDELINES - A DEFENDANT FACING A MANDATORY MINIMUM SENTENCE IS ELIGIBLE FOR SAFETY-VALVE RELIEF UNDER 18 U. S. C. SEC. 3553(F)(1) ONLY IF EACH OF THE PROVISION’S THREE CONDITIONS ARE SATISFIED. ................................................................................................................................................ 25 LAWSUIT PLACING AIRLINE PASSENGER ON “NO FLY LIST” WAS NOT RENDERED MOOT BY THE FBI’S DECLARATION THAT AN AIRLINE PASSENGER “WILL NOT BE PLACED ON THE NO FLY LIST IN THE FUTURE” BECAUSE THE CHALLENGED PRACTICE COULD STILL RECUR. ............................................................................................................................................................ 26 FIRST AMENDMENT .................................................................................................................................................... 26

A PUBLIC OFFICIAL WHO PREVENTS SOMEONE FROM COMMENTING ON THE OFFICIAL’S SOCIAL MEDIA PAGE ENGAGES IN STATE ACTION SUPPRESSING SPEECH IN VIOLATION OF THE FIRST AMENDMENT ONLY IF THE OFFICIAL BOTH (1) POSSESSED ACTUAL AUTHORITY TO SPEAK ON THE STATE’S BEHALF ON A PARTICULAR MATTER; AND (2) PURPORTED TO EXERCISE THAT AUTHORITY WHEN SPEAKING IN THE RELEVANT SOCIAL MEDIA POSTS. ...................................................................... 26

Case Law Update

DIFFERENT HAD THE FALSE EVIDENCE BEEN REPLACED WITH THE ACCURATE EVIDENCE. .................................................... 21

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

SCOTUS/CCA Update

indication that Daniel’s failure to maintain a single marked lane was unsafe. During the traffic stop, the officer smelled alcohol on Daniel’s breath. Daniel admitted that he had been drinking but refused a field sobriety test. The officer obtained a warrant for a blood sample, and the tests showed that Daniel’s blood alcohol content was over the legal limit.

Significant Decisions from September 2023 to March 2024 I.

INTRODUCTION

Case Law Update

This paper covers the published opinions issued by the Court of Criminal Appeals between September 6, 2023 and March 31, 2024. It also includes the significant criminal cases from the United States Supreme Court that have broad applicability, issued between October 1, 2023 and March 31, 2024. If you feel that a particular case was overlooked, please email me through Nichole Reedy at nichole.reedy@txcourts .gov and we’ll do our best to fix any perceived error. The paper is updated throughout the various terms so if you would like the final version of the paper, please remember to email Nichole Reedy and she will put you on the list to get it when we finish it.

Daniel filed a pre-trial motion to suppress, contending that the officer did not have the requisite reasonable suspicion required for the traffic stop. During the suppression hearing, Daniel argued that Sec. 545.060(a) of the Texas Transportation Code requires the motorist to have strayed from his lane when it was not safe to do so. Because there were no vehicles near Daniel at the time when he crossed into another lane, he did not act in an unsafe manner. The trial court denied Daniel’s motion and concluded that the officer had probable cause for the traffic stop. Daniel was convicted for driving while intoxicated, which was elevated to a felony based on his prior criminal history. Daniel challenged the denial of his motion to suppress on appeal. The court of appeals reversed Daniel’s conviction, relying on its prior decision in Hernandez v. State, S.W.2d 867 (Tex. App.—Austin 1998, pet. ref’d). In that case, the Third Court of Appeals had held that a violation of Sec. 545.060(a) is a single offense, and a violation does not occur without unsafe movement. The court of appeals reasoned in Daniel’s case that because the movement of Daniel’s vehicle was not unsafe, he did not commit a traffic offense and the officer lacked reasonable suspicion to conduct the traffic stop.

Additionally, we’ve included hyperlinks to the location where you can read the opinion on the web. I apologize in advance if it doesn’t work, but that does not translate into me or my staff acting as an IT help desk. I mean, I sure hope it works, and generally it pulls the opinions from the respective websites up on Google Chrome whenever I try it, but if it doesn’t work for you, neither I nor Nichole would have any idea how to help you. Not that we wouldn’t desperately want to help you, just that it’s not in our area of knowledge or expertise. So, if it doesn’t work for you, I apologize and I wish you way more than luck. II. SEARCH AND SEIZURE A. Reasonable Suspicion 1. Officer had reasonable suspicion to conduct traffic stop of driver for failure to maintain a single marked lane despite officer’s mistaken reliance upon CCA’s misinterpretation of the statute in a non-binding and subsequently disavowed portion of Leming v. State. An officer initiated a traffic stop after observing Bernard Daniel failing to remain in a single lane of traffic. At the time of the offense, there were no other vehicles near Daniel’s vehicle, nor did it appear that Daniel was violating any other traffic laws. There was no 1

The Court of Criminal Appeals reversed the court of appeals’ decision and affirmed the trial court’s judgment. Daniel v. State, 683 S.W.3d 777 (Tex. Crim. App. Feb. 14, 2024) (7:1:1). Writing for the Court, Judge McClure explained that since the enactment of Sec. 545.060(a) in 1995, interpretations of the statute have varied amongst the intermediate courts. In 2016, the Court issued a fractured opinion in Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016). In that case, four judges construed Sec. 545.060(a) as two separate offenses. According to four judges, it was one offense to change marked lanes when it is unsafe, and it was another offense to fail to remain entirely within a marked lane regardless of whether the deviation was unsafe. In 2022, however, a

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

conduct the canine sniff of his vehicle. The trial court denied the motion and a jury found Lall guilty. On appeal, Lall argued that the trial court erred in denying his motion to suppress. The court of appeals held that the officer had reasonable suspicion to prolong the stop for the canine sniff, relying in part on the fact that Lall refused consent for the officer to search his vehicle.

majority of the Court rejected this approach in Hardin v. State, 664 S.W.3d 867 (Tex. Crim. App. 2022). In Hardin, the court essentially adopted the approach articulated in Hernandez, that the failure to maintain a single marked lane must be unsafe to give rise to a traffic stop for that traffic offense. In Daniel, The State argued that it was reasonable for the officer to believe that the statute only required Daniel to have failed to maintain a single lane of traffic, even if it was not unsafe for him to have done so, regardless of the various statutory interpretations amongst the courts. The Court agreed; since Daniel’s offense occurred in 2017, Judge McClure reasoned that a controlling interpretation of Sec. 545.060(a) did not exist until 2022—when the Court issued its opinion in Hardin. Thus, the Court found that the officer’s mistaken interpretation of the statute was entirely reasonable given the nuanced statutory language and the conflicting case law from the Court and the lower courts. Judge Yeary filed a concurring opinion, writing separately to share his opinion (as articulated in Leming) that the Court’s opinion in Hardin was incorrect because it mandated adherence to an erroneous interpretation of Sec. 545.060(a). Believing the statute to identify two distinct ways to commit the offense, he declared that Hardin should be overruled. Judge Walker filed a dissenting opinion. Because Hernandez had been the law in Bell County since 1998, officers enforcing the law had known for twenty-five years that a stop for failing to maintain a single marked lane required a showing that the vehicle's movement was also unsafe. Therefore, Judge Walker opined that the officer’s mistake of the law was not reasonable. 2. Lawful refusal to consent may not be considered when determining if the facts gave rise to reasonable suspicion. Police pulled Marlon Juna Lall over for a traffic violation. After the purpose of the stop had concluded, the officer prolonged the stop for a canine sniff of the vehicle without Lall’s consent. Lall was subsequently charged with possession with intent to deliver more than four but less than 200 grams of methamphetamine based in part upon evidence seized after the canine sniff. Before trial, Lall filed a motion to suppress, arguing that the officer lacked reasonable suspicion to prolong the traffic stop to

Presiding Judge Keller and Judge Keel concurred without written opinion. B. Suspicious Places – Gas station after a hit-andrun was a suspicious place in light of intoxicated driver’s admission that he had hit something, evidence of collision on his vehicle, and existence of exigent circumstances. While driving with his wife as a passenger, Sean McGuire hit a motorcycle with his vehicle, killing the motorcyclist. McGuire drove to a nearby gas station and called his mother and two law 2

Case Law Update

The Court of Criminal Appeals vacated the judgment of the court of appeals. Lall v. State, --S.W.3d ----, 2024 WL 1289270 (Tex. Crim. App. Mar. 27, 2024) (7:2:0). In a per curium opinion, the Court clarified its holding in Wade v. State that the lawful refusal to consent could not be the prominent factor in the reasonable suspicion calculus. Wade v. State, 422 S.W.3d 661 (Tex. Crim. App. 2013). In Wade, the Court held that police lacked reasonable suspicion to prolong a traffic stop based on the suspect’s refusal to consent and nervousness. In so holding, the Court had suggested that a person’s refusal to cooperate with police during a consensual encounter could be a factor in determining whether an investigative detention was justified, so long as it was not the triggering fact. However, the Court explained that statement was at odds with its conclusion in Wade that the lawful refusal to cooperate, by itself, cannot provide the basis for a detention. To further clarify its proposition in Wade, the Court explained that exercising a constitutionally protected right cannot give rise to reasonable suspicion; otherwise, it is not a right. The Court concluded that the court of appeals should not have considered Lall’s lawful refusal to consent to the search of his vehicle when determining if the facts of his case gave rise to reasonable suspicion. The Court remanded the case so that the court of appeals could conduct a reasonable suspicion analysis without considering Lall’s refusal to consent.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

695765 (Tex. Crim. App. Feb. 21, 2024) (4:1:4:0). Writing for the Court, Judge Richardson explained that regardless of whether exigent circumstances are absolutely required under Art. 14.03(a)(1), the Court found that exigent circumstances existed in McGuire’s case which justified his warrantless arrest. The officers’ observations at the scene of the accident and at the gas station were sufficient to give officers probable cause to arrest McGuire. Though the issue of exigency was not properly raised, the totality of the facts showed that McGuire was in a suspicious place and that exigent circumstances existed. The Court found the following circumstances supported a finding of exigency: the need to collect and preserve physical evidence at the scene, the need to preserve evidence of intoxication in McGuire’s blood, and the general difficulty of getting a warrant at night. Because exigency existed in McGuire’s case, there was no need to disavow Swain at this time.

enforcement friends. At the scene of the accident, officers found evidence indicating that McGuire had hit the motorcyclist with his vehicle. An officer responding to the collision went to the gas station to investigate, where he encountered McGuire, his wife, and his mother. Another officer who arrived at the gas station observed parts of the motorcycle wrapped around the front of McGuire’s vehicle. McGuire admitted to the officer that he hit something while driving and that his wife told him that he hit a person. McGuire showed signs of intoxication. After failing to take a field sobriety test, he was taken to the hospital to have a blood draw performed.

Case Law Update

The State charged McGuire with felony murder for causing the motorcyclist’s death while driving intoxicated, intoxication manslaughter with a vehicle, and failure to stop and render aid. The jury convicted him of felony murder and failure to stop and render aid. On appeal, the court of appeals reversed the felony murder conviction in light of Missouri v. McNeely, 569 U.S. 141 (2013), but affirmed the conviction for failure to stop and render aid. The case was remanded for a new trial without evidence of the blood draw.

Judge Keel filed a concurring opinion joined by Judges Yeary, Slaughter, and Presiding Judge Keller. Because the Court did not answer the question before it—whether exigency is needed to justify a warrantless arrest under Art. 14.03(a)(1)—Judge Keel concurred only in the judgment. She explained that the Legislature has never imposed an exigency requirement on Art. 14.03(a)(1), which is notable because other statutes governing warrantless arrests in the code of criminal procedure explicitly require exigency. Further, this Court has never imposed an exigency requirement on Art. 14.03(a)(1), but rather, we have included exigency in the totality of circumstances that must be analyzed to assess an arrest’s validity under this statute. McGuire’s warrantless arrest was justified under Art. 14.03(a)(1), notwithstanding any exigency, because he was located a few hundred feet from the crash site, motorcycle parts were stuck in the grill of McGuire’s truck, he showed signs of intoxication, he admitted to hitting something, and his wife stated that he hit a person.

Before his second trial began, McGuire filed a motion to suppress evidence stemming from his warrantless arrest. He argued that the only exception to a warrantless arrest that applied to his case was under Art. 14.01(b) which required the offense to have been committed within the presence of law enforcement. The State argued that the warrantless arrest was lawful under Art. 14.03(a)(1) because McGuire was found in a suspicious place. At the suppression hearing, the trial court granted McGuire’s motion but excluded from the motion any physical evidence obtained from the warrantless arrest. On the State’s appeal, the court of appeals relied on Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005) to hold that exigency was required under the definition of suspicious places found in Art. 14.03(a)(1). Because the State did not provide evidence of exigency, the court of appeals held that the requirements of Art. 14.03(a)(1) had not been met and affirmed the trial court.

Judge McClure concurred without written opinion. [Commentary: Notably the Court unanimously upheld the warrantless arrest and overturned the trial court’s suppression. However, no single rationale prevailed. This means we may see this issue raised

The Court of Criminal Appeals reversed the lower courts’ suppression of all evidence stemming from McGuire’s arrest and remanded the case back to the trial court. State v. McGuire, --- S.W.3d ---, 2024 WL 3

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

setting but it did not apply to his bail reconsideration setting because it occurred after the exemption date. Therefore, the trial court was required to review Gayosso’s public safety report when it made its bail determination. Because the record was unclear as to whether the trial court considered Gayosso’s public safety report, his Petition for Discretionary Review was dismissed without prejudice, and his case was remanded to the court of appeals for further proceedings consistent with the Court’s opinion. The State filed a motion for rehearing, expressing concern that the Court’s opinion implied that public safety reports should be added to the appellate record and, in doing so, would violate existing laws that require data privacy of criminal history records. The Court of Criminal Appeals denied the State’s motion.

again, but with an entirely different make-up of the Court reviewing it.] III. TRIAL PROCEDURE A. Bail 1. Under the Damon Allen Act, a public safety report must be reviewed by a magistrate when making a bail determination and appellate courts must review that report through the proper channels. Effective January 1, 2022, the Damon Allen Act requires a magistrate to consider a public safety report before setting bail for a person charged with a Class B misdemeanor offense or higher. The Act had an exemption period that expired on June 1, 2022, which exempted magistrates from having to consider the public safety report during a bail consideration that took place before April 1, 2022.

Presiding Judge Keller filed a concurring opinion addressing the State’s concerns. Judge Keller explained that the Court’s opinion observed that public safety reports can be reviewed through the proper channels, but that statement was only a recognition that the report the trial court reviews will not be in the appellate record. To review the report through the proper channels, appellate courts must re-run the report in accordance with the requirements of the Damon Allen Act.

Appellant sought discretionary review to seek to lower the bond further, but the Court refused his grounds for discretionary review. Instead, the Court granted review on its own motion and vacated the court of appeal’s decision. Ex parte Gayosso, 685 S.W.3d 100 (Tex. Crim. App. Dec. 6, 2023). Writing for the Court, Presiding Judge Keller explained that the court of appeals was mistaken when it concluded that the record did not contain the date of Gayosso’s arrest because he testified at his bail hearing that he turned himself in on February 15, 2022. In deciding whether the exemption applied to Gayosso, the Court determined that the exemption applied to his initial bail 4

Judge Newell filed a dissenting opinion in which Judges Hervey, Richardson, and Slaughter joined, noting that Gayosso’s argument has always been that the trial court improperly balanced statutory considerations when making its bail determination— not that the trial court failed to consider the Damon Allen Act. Nor did either party make that argument on discretionary review. Therefore, the Court’s decision to grant and remand on its own motion injected unnecessary complications into the proceedings. Judge Newell further noted that the Court’s remand for the court of appeals to seek out a public safety report through proper channels was inconsistent with its preference that complaints on appeal be preserved in the trial court, supported by the record, and advanced by the complaining party. And because the Court assumed error from a silent record and remanded the case, it seemed to have engrafted a “show your work” requirement into the Act without being prompted by either party; this will likely lead to sua sponte abatements by courts of appeals for findings and

Case Law Update

During his initial bail hearing on February 15, 2022, the trial court initially set Guillermo Gayosso’s bail at $500,000. On June 16, 2022, the trial court reconsidered its decision and lowered his bail to $250,000. On appeal, the court of appeals wrote in a footnote that it was unsure whether the Act applied to Gayosso’s case because the record did not indicate when he was arrested but then the court included the date of Gayosso’s arrest in the body of its opinion. The court of appeals noted that the record showed that the trial court considered Gayosso’s criminal background history, which it presumed would have been drawn from a public safety report. The court also noted that there was no argument on appeal that the trial court did not consider all the circumstances and factors required by law.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

proceedings deriving from criminal prosecutions are criminal matters despite being procedurally controlled by the Rules of Civil Procedure. The Court reasoned that the State is liable for most civil filing fees even if it loses but is exempt from paying some fees. Since those exempt fees are never charged, a losing civil defendant does not have to pay them unless a statute expressly authorizes payment. The Court concluded that a surety must only pay the filing fees the State would have to pay if it lost unless a statute requires a defendant to pay the filing fee when the State wins. Further, a surety cannot be required to pay a fee that improperly duplicates a fee already charged. The Court did not make a final determination regarding the fees Continental Heritage was charged, but instead remanded the case for further proceedings consistent with its opinion.

conclusions to clarify the record which will only result in holdings that the error was harmless or not preserved. Judge Newell would have granted the State’s motion, withdrew the Court’s opinion in this case, and refused discretionary review outright.

Case Law Update

[Commentary: Since the Court issued its opinion in Gayosso the Fort Worth Court of Appeals has alternatively held that any error in failing to consider the public safety report was harmless and that any complaint on that issue was not preserved. See Ex parte Delong, 2024 WL 725111 (Tex. App. – Fort Worth, Feb. 22, 2024) (holding that any error in the trial court’s failure to consider the public safety report was harmless); see also Ex parte Chavez, 2024 WL 1207302 (Tex. App. – Fort Worth, Mar. 21, 2024) (holding any unraised complaint regarding the trial court’s failure to consider the public safety report was not preserved for review). The Amarillo Court of Appeals considered the issue after assuming it was preserved, but then held any possible error was harmless. See Ex parte Segovia, 2024 WL 1642141 (Tex. App. – Amarillo, Apr. 16, 2024).]

Subsequently, the Court granted Continental Heritage’s motion for rehearing and withdrew its original opinion. The Court corrected its opinion to clarify that formal rules governing civil suits existed before 1941 but explained that its statement that they did not in the original opinion did not require the Court to change its decision. The Court explained that if the Legislature intended for bond-forfeiture proceedings to be governed solely by the Rules of Civil Procedure, the Legislature could have easily said so, but it did not.

2. Bond Forfeiture - Sureties are not liable for civil filing fees that the State is exempt from paying unless a statute expressly requires a civil defendant to pay a fee if the State prevails, but sureties cannot be required to pay a fee that improperly duplicates a fee already charged. Darrell David was indicted for unlawful possession of a firearm by a felon and failed to appear at a trial setting. A judgment nisi was entered for the forfeiture of his bond. After the final judgment of forfeiture was signed, the clerk issued a bill of court costs. David’s surety, Continental Heritage, filed a motion to correct costs, contending that civil filing fees were not authorized in bond forfeiture proceedings since bond forfeiture cases are criminal cases. The trial court denied Continental Heritage’s motion to revise the court costs. On appeal, the court of appeals concluded that civil filing fees could be assessed in a bond forfeiture proceeding.

[Commentary: For those paying attention to votes, Judge Newell concurred to the original opinion, but joined the new opinion after the motion for rehearing was granted.] B.

Indictments

1. In cases involving multi-count indictments, facial constitutional challenges are cognizable in a pretrial writ of habeas corpus if a grant of relief on would result in immediate release from prosecution for at least one count. The Court of Criminal Appeals consolidated two cases into one opinion. In one case, Tonya Couch challenged her four indictments for money laundering, seeking relief on the ground that Sec. 34.02(a)(4) of the Texas Penal Code was facially unconstitutional because it criminalizes thought, namely the intent to finance or invest. The trial court denied relief, and the court of appeals affirmed the trial court’s ruling. In the second case, Glenda Hammons

The Court of Criminal Appeals vacated the judgment of the court of appeals. Continental Heritage Insurance Company v. State, 683 S.W.3d 407 (Tex. Crim. App. Jan. 17, 2024) (9:0). Writing for the Court, Presiding Judge Keller explained that bond forfeiture 5

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

prosecution for the other two alleged offenses, and trial on those counts would not proceed.

challenged two counts of her three-count indictment for injury to a child, seeking relief on the ground that Sec. 22.04(a)(2) of the Texas Penal Code was unconstitutionally vague for its failure to define “serious mental deficiency, impairment, or injury.” The trial court denied relief, and the court of appeals upheld the trial court’s ruling

Judge Yeary concurred without written opinion. 2. State was not required to prove elements alleged in facially valid indictment for sexual assault without consent despite information in caption that indicated victim of sexual assault was a child under the age of 17 who could not legally consent. The State indicted Francisco Delarosa Jr. on three counts of sexual assault. The body of the indictment charged Delarosa with three counts of sexual assault for nonconsensual contact between his sexual organ and that of the pseudonymous complainant LAM. On the other hand, the caption of the indictment referred to the three counts as “sexual assault of a child” under Sec. 22.011(a)(2) which only required the State to prove that the complainant was a child younger than 17.

In Couch’s case, the Court of Criminal Appeals vacated the judgment of the court of appeals and remanded to the court of appeals to address the cognizability of Couch’s claim. In Hammons’ case, the the Court of Criminal Appeals refused Hammons’ petition or discretionary review, but granted review on its own motion and remanded Hammons’ case to address the cognizability of Hammons’ claim. On remand, the court of appeals held that the claims in both cases were not cognizable on a pretrial writ. In Couch’s case, the claim was not cognizable because she would not be immediately released from prosecution, finding that intending to finance or invest were different manner and means of committing money laundering. In Hammons’ case, the claim was not cognizable because she would not be immediately released from prosecution even if two of the counts in her three-count indictment were quashed. Both Couch and Hammons filed petitions for discretionary review with the Court of Criminal Appeals.

The Court of Criminal Appeals reversed the judgment of the lower court and entered a judgment of acquittal for each count of sexual assault. Delarosa v. State, 677 S.W.3d 668 (Tex. Crim. App. Oct. 4, 2023) (5:4). In concluding the evidence was legally insufficient to support Delarosa’s conviction, the Court held that the State was required to prove beyond a reasonable doubt that Delarosa committed three counts of sexual assault without the complainant’s consent, but the State did not do so. Writing for the Court, Judge Keel explained that the body of the indictment alleged a facially complete offense of non-consensual sexual assault, and the State was obligated to prove what it alleged. The Court also explained that the captions reference to the victim as a child did not render the indictment as a whole ambiguous. 6

Case Law Update

The Court of Criminal Appeals affirmed the judgment of the court of appeals in Couch’s case but reversed the judgment of the court of appeals in Hammons’ case. Ex parte Couch & Ex parte Hammons, 678 S.W.3d 1 (Tex. Crim. App. Oct. 25, 2023) (8:1:0). The Court held that Couch’s claim was not cognizable, but that Hammons’ claim was. Writing for the Court, Judge Keel explained that Couch’s single-count indictment alleged four different manner and means in which one commits the single offense of money laundering—not four different offenses. Thus, granting Couch relief on her claim would not release her from prosecution for the offense alleged in her indictment. Accordingly, Couch’s claim was not cognizable in a pretrial habeas application. On the other hand, Hammons’ claim was cognizable in a pretrial habeas application because she challenged the statute’s constitutionality that defined two counts of her three-count indictment. Even if Hammons could be tried on the third count, she would be released from

On appeal, Delarosa argued that the evidence was insufficient to prove that non-consensual sexual contact occurred, as required by the indictment. The court of appeals held the evidence was sufficient to uphold the conviction. The court reasoned that the State proved a lack of consent when it proved the complainant’s age and Delarosa’s awareness of the complainant’s age. The court of appeals affirmed Delarosa’s conviction but remanded to the trial court to correct the judgments to reflect three counts of sexual assault instead of sexual assault of a child.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

3. State was not required to elect particular manner and means of committing alleged offense because indictment alleged every statutory manner and means for committing the offense. The State indicted Jemadari Chinua Williams for aggravated promotion of prostitution. The indictment tracked the statutory language, to allege six different manner and means of committing a single offense. Williams filed a pre-trial motion to quash, arguing that the indictment failed to notify him which of the six possible methods of committing the offense he was being charged with. The State responded that the indictment was sufficient because it tracked the statutory language and that the State was not required to elect which manner or means it intended to prove at trial. The trial court denied the motion to quash, and Williams was convicted. On appeal, Williams argued that the State failed to specify which of the six manner and means of committing the offense in its indictment, and the court of appeals agreed. The court of appeals found that under Ross, the State must, upon timely request from the defendant, allege the particular manner or means it seeks to establish. See State v. Ross, 573 S.W.3d 817 (Tex. Crim. App. 2019). The court of appeals reversed Williams’ conviction and remanded the case back to the trial court with instructions to dismiss the indictment.

Presiding Judge Keller filed a dissenting opinion, joined by Judge Hervey, in which she would have found the indictment defective. However, though defective, Judge Keller would also have found that the indictment sufficiently alleged sexual assault of a child. Since the jury was authorized to return a verdict on that offense, the Court should have upheld its verdict against Delarosa’s sufficiency challenge. Judge Yeary filed a dissenting opinion in which he would have found the evidence legally sufficient to show that Delarosa committed sexual assault of a child because the jury’s verdicts and Delarosa’s judgment both reflect convictions for that offense.

Case Law Update

Judge Slaughter dissented without written opinion. [Commentary: I realize that this is a “sufficiency” case, but the impact of this case, as you can discern from the dissenting opinions, is more likely to be felt in cases involving the evaluation of indictments. Though not expressly stated, the Court seems to draw a distinction between a facially valid indictment in felony court that merely alleges a misdemeanor offense and one that actually alleges a felony, albeit one the State did not intend to charge. The Court seems to hold that in a case in which there is something missing from the body of the indictment then resort to the caption to clarify the ambiguity is appropriate particularly when subject-matter jurisdiction can be established through reference to information in the caption. The dissenters positions depend upon a rejection of Judge Keel’s interpretation of the sufficiency of the indictment, which is why this case seems to impact charging instruments more than sufficiency. That said, practitioners will probably hate that the sufficiency of the indictment issue is reached through the circuitous route of the hypothetically correct jury charge. It’s not a straight up motion to quash issue, though Judge Keel makes a good point on that front. She notes for the Court that it is unreasonable to require the defendant to object to a facially valid charging instrument that charges him with a lesser offense than the one the State intended to charge. We’ll see how quickly that hot take ages. As for the truly “sufficiency” related issues, those are discussed in greater detail below under the Offenses section.]

The Court of Criminal Appeals reversed the court of appeals’ judgment. Williams v. State, 685 S.W.3d 110 (Tex. Crim. App. Jan. 10, 2024) (6:0:1:2). The Court held that the court of appeals misconstrued Ross—the statement that the State must specify the particular statutory method on which it will rely appears to be dicta. Writing for the Court, Presiding Judge Keller explained that when a statutory term or element is further defined by statute, the charging instrument does not ordinarily need to allege the definition. The exception to that rule was articulated in Ferguson: when an act or omission is statutorily defined, and that definition provides for more than one manner or means to commit that act or omission, then upon timely request, the State must allege the particular manner or means it seeks to establish. Ferguson v. State, 622 S.W.2d 846 (Tex. Crim. App. 1981). The principle articulated by Ferguson and recited in Ross developed as an exception to the general rule that statutory definitions do not have to be included in a 7

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

barred under Art. 12.04 of the Texas Code of Criminal Procedure because it was filed two days after the twoyear statute of limitations period for aggravated assault ended. The State argued that when considering both Art. 12.04 and Sec. 311.014(c) of the Texas Government Code, the indictment was timely filed. The court of appeals concluded that the indictment was within the statute of limitations period, reasoning that the date of the offense and the date of the indictment are excluded from the computation of time.

charging instrument. Thus, the State is not required to elect between alternative statutory methods of committing an offense alleged in an indictment when it choses to plead every statutory method. Judge Yeary filed a dissenting opinion. He would not have resolved this issue of statutory construction as the Court did—by assuming that the offense statute specified the manner and means of committing aggravated promotion of prostitution—rather than the elements of six distinct offenses, simply because Williams used the words “manner and means” at trial and before the court of appeals. Instead, he would have remanded Williams’ case to the court of appeals to determine the correct construction of the offense statute before addressing the issue on discretionary review. Judge Newell filed a dissenting opinion, joined by Judge Walker. In Ferguson, the Court held the indictment deficient because it left the defense to guess or assume that the State was going to prove one or all types of conduct. In most cases, a charging instrument that tracks the statutory text will provide adequate notice. But if the prohibited conduct is statutorily defined to include more than one manner or means of commission, the State must, upon timely request, allege the particular manner or means it seeks to establish. Judge Newell would have found that given the indefinite meaning of the statutory terms, the State’s refusal to clarify which manner and means it intended to prove failed to provide Williams with adequate notice of the charges against him. [Commentary: Note that the Court assumes away the issue of whether these are different offenses or different ways of committing the same offense. And while the Court may be correct in concluding that the question of how to construe the statute was not before the court, that leaves a large issue open for the future.]

Judge Keel concurred without written opinion. C. Waiver of Counsel - The statutory right to withdraw a waiver of counsel “at any time” is not absolute, and defendant was adequately advised of the dangers of self-representation in light of his alternation between self-representation and representation through counsel during the proceedings. The State indicted Noel Christopher Huggins for the state jail felony offense of possession of methamphetamine enhanced by two prior felony convictions. At his arraignment, Huggins elected to represent himself. The trial court reviewed portions of a written waiver of counsel with Huggins. The trial

4. Defendant's claim that his indictment was time-barred was cognizable in a pretrial habeas writ, and his indictment was time-barred because it was brought more than two days after the offense. The State indicted Lucas Vieira for the offense of aggravated assault by threat on July 9, 2021. The offense, as alleged in the indictment, was committed on July 7, 2019. Vieira filed a pretrial application for writ of habeas corpus, claiming the indictment was time8

Case Law Update

The Court of Criminal Appeals reversed the judgments of the lower courts and dismissed the indictment. Ex parte Vieira, 676 S.W.3d 654 (Tex. Crim. App. Sept. 27, 2023) (8:1:0). Writing for the Court, Presiding Judge Keller reviewed the language of both statutes to conclude that the indictment was untimely filed. Art. 12.04’s plain language required the indictment to have been filed on July 8, 2021—one day too late. Sec. 311.014(c), as relied on by the State, required the indictment to have been filed on July 7, 2021—two days too late. The Court found that the language of both statutes excludes the same first day; Art. 12.04 excludes the date of the offense, and Sec. 311.014(c) excludes the date in the first month that the statutory limitation period is computed from, which is the date of the offense. The State argued that these two statutes worked in tandem to give the State an extra day beyond the two-year period, but the Court disagreed. If both statutes were applied together, the clear meaning of the statutes’ text would be violated. Therefore, the Court concluded that Vieira’s indictment was timebarred because it was not brought within the two-year statute of limitations.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

withdrawal of his second waiver would not delay trial or prejudice the State.

court highlighted Huggins rights to representation, appointed counsel, a reasonable opportunity to hire an attorney, self-representation, and withdrawal of his waiver of counsel. After reading the waiver, Huggins returned the signed waiver to the trial court and acknowledged that he had been fully advised of his right to counsel and the dangers and disadvantages of self-representation. The trial court granted Huggins’ waiver of counsel.

The Court of Criminal Appeals affirmed the court of appeals’ judgment. Huggins v. State, 674 S.W.3d 538 (Tex. Crim. App. Sept. 6, 2023) (7:1:1). Writing for the Court, Judge Keel concluded that additional admonishments about the dangers and disadvantages of self-representation were unnecessary in Huggins’ case because he was aware of those dangers and disadvantages. The record revealed that Huggins knew that self-representation was foolish, and that in representing himself previously in one of the enhancement cases, he knew that he lacked the legal knowledge to effectively represent himself. The Court found that additional admonishments were unnecessary but warned that, under different circumstances, additional admonishments may be required and that trial courts may want to provide them out of an abundance of caution.

Case Law Update

At the following hearing, Huggins stated that he still wished to represent himself. At a later pretrial hearing, however, Huggins made a request for counsel, and the trial court appointed him an attorney. Soon thereafter, Huggins informed the trial court that he had fired his attorney and wanted to represent himself again. Huggins’ attorney withdrew as counsel, and the trial court appointed a second attorney simultaneously. At the following hearing, Huggins was represented by his second attorney. At a subsequent hearing, Huggins again stated that he wanted to represent himself, so he fired his second attorney and signed a second waiver of counsel which the trial court granted.

The Court further explained that under Art. 1.051(h), the language “at any time” does not mean under any circumstances. The Court furthered that a defendant’s right to self-representation or counsel cannot be manipulated to delay the proceedings or interfere with the administration of justice. See Culverhouse v. State, 755 S.W.2d 856, 861 (Tex. Crim. App. 1988); Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976). The statute does not require the trial court to unconditionally accommodate a defendant’s teetering between counseled- and self-representation, and by following Huggins’ interpretation, the statute would enable manipulation of the court. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). In Huggin’s case, the trial court did not abuse its discretion by denying his request to withdraw his second waiver of counsel.

On the day of trial, Huggins stated that he wanted to waive his right to a jury trial, plead guilty, and have the court assess punishment. The State explained the paperwork to Huggins, and the trial court confirmed his understanding of the punishment range, as well as his rights to a jury trial, an appeal, and an appointed counsel for an appeal. Huggins pleaded guilty to the possession offense, pleaedd “true” to the first enhancement, and “not true” to the second enhancement. During his punishment hearing the next day, Huggins stated he no longer wanted to represent himself and needed an attorney. The trial court denied Huggins’ request for a third attorney and, in finding both enhancement paragraphs “true,” sentenced him to 18 years.

Judge Hervey concurred without written opinion.

On appeal, Huggins argued that his second waiver of counsel was not knowing or intelligent because the trial court failed to admonish him of the dangers of self-representation, and that the trial court violated Art. 1.051(h) of the Texas Code of Criminal Procedure by failing to allow him to withdraw his waiver. The court of appeals affirmed the trial court and found that Huggins’ waiver was knowing, voluntary, and intelligent, and that he failed to establish that

Judge Yeary filed a dissenting opinion. He agreed that both waivers were knowingly and voluntarily rendered but disagreed with the Court’s reasoning. Referring to Geeslin v. State, he would find that an accused’s prior experience cannot serve to validate a waiver of counsel when the accused was not adequately admonished under See Faretta v. California. Geeslin v. State, 600 S.W.2d 309 (Tex. Crim. App. 1980); Faretta 9

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

support of his motion for new trial, Becerra included an affidavit from one of the petit jury members which stated that the jury did not revote on the issue of guilt after the alternate juror was removed. The State objected to the admission of the juror’s affidavit pursuant to Rule 606(b) of the Texas Rules of Evidence. A hearing was held, and the trial court overruled the State’s objection, finding that the affidavit fell within an exception to the prohibition on juror testimony concerning whether there was an outside influence upon any juror. Ultimately, the court denied Becerra’s motion for new trial. The trial court concluded that Becerra’s complaints about the alternate juror were waived and that, even if preserved, any error was harmless.

v. California, 422 U.S. 806 (1975). But Yeary furthered that Faretta was not applicable to Huggins’ case because there is no constitutional right to selfrepresentation at the punishment stage. Judge Yeary disagreed with the Court’s statutory interpretation and would have found that the language of Art. 1.051(h) allowed a defendant to withdraw his waiver and obtain prospective assistance of counsel from that point on regardless of the circumstances of the withdrawal.

Subsequently, Becerra filed a motion for new trial alleging that the alternate juror’s participation in deliberations and a preliminary vote on his guilt violated his constitutional and statutory right to a jury composed of twelve people under Art. V, sec. 13 of the Texas Constitution and Art. 33.01 of the Texas Code of Criminal Procedure. He also alleged that the alternate’s presence in the jury room and improper participation in a preliminary vote on his guilt violated Art. 36.22 of the Texas Code of Criminal Procedure, which prohibits non-jurors from talking with jurors about the case or being with the jury during deliberations. As to harm, Becerra argued that Art. 36.22 of the Texas Code of Criminal Procedure shifted the burden to the State to show a lack of harm. In

On appeal, Becerra complained that his constitutional right to a jury composed of twelve people under Art. V, sec. 13 of the Texas Constitution was violated, Art. 31.011, 33.011, and 36.22 of the Texas Code of Criminal Procedure were violated, and the trial court erred in failing to grant a mistrial or new trial. The court of appeals concluded that Becerra's constitutional and statutory claims were not preserved because the objection and motion for mistrial were not timely made when the alternate retired to deliberate with the jury. Becerra petitioned the Court of Criminal Appeals to review the lower court's determination that these claims were defaulted. The Court granted review and held that because Becerra objected as soon as he became aware of the error, he had preserved his constitutional and statutory claims for review. The Court reversed and remanded for the court of appeals to consider the merits of Becerra’s complaints.

Upon remand, the court of appeals held that the trial court did not abuse its discretion by denying Becerra's request for a mistrial or motion for new trial. At the time of the request for a mistrial, the court reasoned there had been no showing that the alternate juror participated in deliberations or communicated with the regular jurors about the case. Thus, while Art. 36.22 prohibits persons from being with the jury while it deliberates or conversing with jurors about the case on trial, Becerra failed to meet his burden to raise a presumption of harm at the time of the motion for mistrial. In considering the juror's affidavit, the court held that only a portion was admissible under Rule 606(b) because nothing in the remainder of the

Case Law Update

D. Alternate Jurors - An alternate juror's erroneous participation in jury deliberations violated statute prohibiting people other than the jury from being with the jury during deliberations as well as conversations with jurors about a case on trial. The State charged Joe Luis Becerra with unlawful possession of a firearm by a felon, and he proceeded to trial before a jury. A petit jury of twelve was selected and sworn in and one alternate juror was also selected. After closing arguments, the jury retired to deliberate, and, unbeknownst to either party, the alternate juror retired to the jury room with the regular jury. Approximately forty-six minutes later, the State realized there were thirteen people in the jury room, and once notified, the trial court immediately removed the alternate juror. The court held a hearing regarding the alternate juror and the parties agreed to the court instructing the jury to disregard anything the alternate said and restart deliberations. Becerra moved for a mistrial, which the court denied. After the court gave its instructions, the jury resumed deliberations and returned a guilty verdict, with each juror confirming the verdict when polled individually.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

unauthorized persons being present with the jury while the jury is deliberating, and its prohibition against conversing with the jury about the case. The Court explained that an alternate juror is distinct from a member of the petit jury and does not become member of the regular jury until the trial court replaces a disqualified member of the regular jury with the alternate. This is consistent with the historical understanding of the text of the statute which predated the existence of alternate jurors. Given the statutory history, the use of the word “jury” in the statute could only have been understood to mean a member of the petit jury constituted by the trial court. Similarly, the statutory use of the word “juror” could only have been understood as a reference to a member of the regular jury not an alternate juror. With this understanding an alternate juror is necessarily an “other” person prohibited from being with the jury during deliberations and conversing with the jury about the case. The Court remanded the case for a statutory harm analysis in light of the statutory violation.

Case Law Update

affidavit indicated whether the alternate juror participated in deliberations beyond voting on guilt or innocence prior to the alternate’s removal. The court of appeals then held that Art. V, sec. 13 of the Texas Constitution and Art. 33.01 were not violated because the “ultimate verdict” rendered was voted on by a panel of twelve jurors. In considering Becerra’s claim that Art. 36.22 was violated, the court found no rule that established that the presence of the alternate jurors in the jury room during deliberations is absolutely improper. Thus, the court of appeals concluded that the trial court did not abuse its discretion in denying the motion for new trial because neither the alternate juror's presence nor his initial participation in voting was sufficient to create a reasonable probability that the alternate juror's outside influence had a prejudicial effect. The Court of Criminal Appeals remanded the case to the court of appeals for further proceedings consistent with its opinion. Becerra v. State, 685 S.W.3d 120 (Tex. Crim. App. Feb. 7, 2024) (5:0:3:1). Writing for the Court, Judge Newell explained found that the inadvertent presence and participation of the alternate juror in the jury's initial deliberations did not implicate Appellant's right to a jury of twelve people under the Texas Constitution and Art. 33.01 because the trial court only composed a petit jury of twelve people. Nor did the alternate juror’s presence and participation in a portion of the jury’s deliberations violate Art. 33.011 because the alternate was properly discharged after the jury rendered its verdict in accordance with the statute. In a felony case, the only way the constitutional and statutory provisions can be violated is if a district court impanels a jury greater or fewer than twelve. That a district court qualifies alternate jurors does not alter the composition of the impaneled jury. The Court’s suggestion in Trinidad that there might be a constitutional or statutory violation of the twelve-person jury requirement if an alternate participates in the jury’s “ultimate verdict” was unsupported dicta because Trinidad did not deal with a situation in which the alternate juror participated in deliberations at all. Consequently, the Court expressly disavowed that language. Though the alternate’s participation in deliberations did not rise to the level of a constitutional violation, it violated Art. 36.22’s prohibition on

Judge Yeary filed a dissenting opinion. In disagreeing with the Court, Judge Yeary believed the presence and participation of an alternate during jury deliberations violated Art. V, sec. 13 of the Texas Constitution and Art. 33.01 of the Texas Code of Criminal Procedure. He also would not conclude that the error was harmless beyond a reasonable doubt, as did the court of appeals, and he would have reversed the judgment on that basis alone. Judge Yeary agrees with the Court in that the alternate juror's presence and participation during jury deliberations constituted a violation of Art. 36.22. However, he would not have addressed the question of harm under Rule 44.2(b) because that question wasn’t before the Court.

Judge Keel filed a dissenting opinion in which Presiding Judge Keller and Judge Slaughter joined. Judge Keel opined that the alternate juror’s participation and vote in jury deliberations before the verdict was returned was not error, reasoning that the jury was never composed of more than twelve people. Since alternates are treated the same as jurors under Art. 33.011, there was also no violation of Art. 36.22 because this statute does not apply to jurors. But assuming there was error, there was no harm because twelve jurors ultimately convicted Becerra. Even if there were a thirteenth juror, Becerra would not be

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

Under Georgia law, a jury may give a verdict of “not guilty by reason of insanity” if the jury found the defendant did not have the mental capacity to distinguish between right and wrong, or if the act was committed because of a delusional compulsion that the defendant’s will could not overpower. At trial, the jury returned a split verdict: “not guilty by reason of insanity” on the malice murder count and “guilty but mentally ill” on the other two counts. The aggravatedassault conviction served as the predicate for felonymurder and those two convictions merged. McElrath was sentenced to life imprisonment for the felonymurder conviction.

harmed because a greater number of fact finders would generally benefit the defense.

On appeal, McElrath argued that his conviction should be vacated because the “guilty but mentally ill” verdict conflicted with the “not guilty by reason of insanity” verdict. Under Georgia law, a jury’s verdict in a criminal case may be set aside if the verdict involves findings by the jury that are not legally and logically possible of existing simultaneously. The Supreme Court of Georgia agreed and concluded that the two verdicts were incompatible because each verdict required a different mental state that could not exist at the same time. The court vacated both verdicts and authorized a retrial. On remand, McElrath argued that Georgia was prohibited from retrying him for malice murder under the Double Jeopardy Clause of the Fifth Amendment because he had been found “not guilty by reason of insanity.” The trial court rejected this argument. McElrath appealed. The Supreme Court of Georgia affirmed the lower court and concluded that, for double jeopardy purposes, inconsistent verdicts were equivalent to mistrials where the jury is unable to reach a verdict. The Supreme Court of the United States granted certiorari.

E. Double Jeopardy - Jury’s verdict of “not guilty by reason of insanity” was an acquittal for purposes of the Fifth Amendment’s Double Jeopardy Clause. Damian McElrath, who had recently been diagnosed with schizophrenia, killed his mother because he believed she was poisoning him. McElrath immediately called 911 and told the dispatcher that he killed his mother and asked if what he did was wrong. He later admitted to officers that he killed his mother during an interrogation. McElrath was charged with malice murder, felony murder, and aggravated assault, and his case went to trial. 12

The Supreme Court of the United States reversed the judgment of the Supreme Court of Georgia. McElrath v. Georgia, 601 U.S. 87 (Feb. 21, 2024) (9:1:0). Delivering the opinion of the unanimous Court, Justice Jackson held that the jury’s verdict of “not guilty by reason of insanity” on the malice murder count meant that the prosecution’s proof was insufficient to prove McElrath was criminally liable for the offense. Georgia argued that because the “not guilty by reason of insanity” was inconsistent with the jury’s other two verdicts, all three were legally void. The United States Supreme Court disagreed. According

Case Law Update

[Commentary: Note that this case also deals with the admissibility of juror affidavits under Rule 606(b) which is discussed below. It also deals with how courts should conduct a proper statutory harm analysis for this type of error which is discussed below under Appeals. On the big question of the case, namely whether this is a constitutional rather than a statutory violation, the Court notes that Becerra only raised a challenge to the make up of the jury. He did not argue that having more than 12 jurors violated his personal right to a jury trial. The United States Supreme Court has held in Williams v. Florida, 399 U.S. 78 (1970) that the right to a jury of 12 is not part of a defendant’s personal right to a jury trial. However, recently in Khorrami v. Arizona, 143 S.Ct. 22 (Nov. 7, 2022) the United States Supreme Court denied certiorari on the question of whether the right to a jury trial for a felony included a right to at least 12 jurors. I mention this because Justice Gorsuch dissented and went on at great length to criticize Williams. The basic import was that historically the founding fathers would have understood the right to a jury trial as necessarily including a jury of 12. Whether he would take this argument to mean that a jury of 13 is also unconstitutional remains to be seen. But I point this out to note that there may be some room for a defendant to argue that an alternate juror’s participation in jury deliberations violates a right to a jury trial even if it doesn’t alter the composition of the jury. I have no idea if such an arguement would be successful. I am just pointing out that the argument was not made in this case.]

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

was also charged under Sec. 550.002 for failing to comply with a duty when, after being involved in an accident causing damage to a vehicle because he did not stop to notify the owner of the antique truck. The jury convicted Johnson of the lesser-included offenses of attempt to commit those offenses and assessed punishment at a $200 fine for each offense. The trial court imposed restitution of $200 for the utility pole offense and $10,000 for the vehicle offense. On appeal, the court of appeals held that restitution was improper because the offenses for which Johnson was convicted did not cause damage to the pole and truck. The court of appeals deleted the restitution awards.

to the Court, an acquittal occurs when there has been a ruling on the question of guilt or innocence. In McElrath’s case, the jury’s verdict of “not guilty by reason of insanity” constituted a ruling that the prosecution’s proof was insufficient to establish criminal liability for the offense of malice murder. The Court further explained that an acquittal is still an acquittal, even if the jury returns inconsistent verdicts. To ascertain the basis of the jury’s verdict, Georgia argued, acquittals can only apply to general verdicts. The Court rejected this argument, concluding that, after an acquittal, the Double Jeopardy Clause forbids courts from speculating on the reasoning behind the jury’s determination.

The Court of Criminal Appeals affirmed the judgment of the court of appeals. Johnson v. State, 680 S.W.3d 616 (Tex. Crim. App. Dec. 20, 2023) (7:2). Writing for the Court, Presiding Judge Keller explained that Art. 42.037 of the Texas Code of Criminal Procedure provides that the offense for which a defendant is convicted must be the cause of the damage for which restitution is awarded. Therefore, it is not enough for the State to show that a defendant caused the damage; the State must show that the offense for which a defendant was convicted caused the damage. In Johnson’s case, the State did not show that his failure to perform his duty was the cause of the damage to the pole and the truck.

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Justice Alito concurred with the Court but wrote separately to clarify its holding. In his view, McElrath’s case differs from cases where a trial judge refuses to accept inconsistent verdicts on separate counts and sends the jury back to further deliberate. Alito concludes that the Court’s holding does not express any view on whether a trial court’s rejection of inconsistent verdicts on separate counts constitutes an acquittal for double jeopardy purposes. [Commentary: While the type of inconsistent verdict at issue in this case was based upon Georgia’s insanity defense, this case can apply to other jurisdictions on the broader question of what constitutes an acquittal. The Court unanimously holds that the existence of a double jeopardy issue flows from the jury’s ruling on the question of guilt or innocence. And in this case the Court did not hold that there was an acquittal because of logically inconsistent verdicts but instead the jury entered a verdict of “not guilty by reason of insanity” on the case that he State subsequently sought to retry the defendant on.]

Judge Newell filed a dissenting opinion, joined by Judge Walker. Under Art. 42.037 of the Texas Code of Criminal Procedure, restitution is part of a criminal judgment if a defendant is convicted of an offense that results in damage to or destruction of property. According to Judge Newell, there is no offense unless there is a collision, and after the collision, the duty to provide information arose. Johnson was involved in a collision that resulted in damage even if his failure to comply with the duty to provide information didn’t cause the damage by itself. Judge Newell would have held that the trial court had the authority to impose restitution as part of its judgment in both causes.

F. Restitution - Defendant’s offenses did not cause property damage, and thus, restitution for damaged property could not be imposed against him. While driving in Bowie County, Zimbabwe Raymond Johnson collided with a utility pole and an antique truck but continued driving until his car became incapable of continuing. Johnson was charged under Sec. 550.025 of the Texas Transportation Code for failing to comply with a duty when, after striking a fixture because he did not take reasonable steps to inform the owner or person in charge of the fixture. He

IV. EVIDENCE A. Juror affidavit regarding deliberations after alternate juror was excused from jury room was admissible under Rule 606(b). This case is discussed above in greater detail about the issue of an 13

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

juror affidavit when evaluating whether the alternate juror's presence and participation during deliberations affected Becerra's substantial rights. Becerra v. State, 685 S.W.3d 120 (Tex. Crim. App. Feb. 7, 2024) (5:0:3:1).

alternate juror’s participation in jury deliberations. This summary focuses solely upon the issue of the admissibility of a juror affidavit regarding the effect of the alternate juror’s participation. As a refresher on the facts of the case, the State charged Joe Luis Becerra with unlawful possession of a firearm by a felon, and he proceeded to trial before a jury. During jury deliberations the alternate juror retired to the jury room with the regular jury unbeknownst to either party. Becerra moved for mistrial and later Becerra filed a motion for new trial to complain about the alternate juror’s participation. In support of his motion for new trial, Becerra included an affidavit from one of the petit jury members which stated that the alternate juror participated in a preliminary vote and that the jury did not revote on the issue of guilt after the alternate juror was removed. The State objected to the admission of the juror’s affidavit pursuant to Rule 606(b) of the Texas Rules of Evidence. A hearing was held, and the trial court overruled the State’s objection, finding that the affidavit fell within an exception to the prohibition on juror testimony concerning whether there was an outside influence upon any juror. Ultimately, the court denied Becerra’s motion for new trial. In its analysis, the court of appeals considered the portion of the affidavit detailing the alternate juror’s participation in a preliminary vote, but it held the remainder of the affidavit inadmissible.

[Commentary: The big issue in this case involved the alternate juror’s participation in jury deliberations. That is discussed in greater detail above in the Trial Procedure section of the paper. Additionally, the proper harm standard for this type of error is discussed in greater detail in the Appeals section of the paper. And while there were two dissents in this case, neither focused on the evidentiary admissibility issue.] V. OFFENSES

Ultimately, the Court of Criminal Appeals held that the alternate juror’s participation in jury deliberations violated Art. 36.22, which prohibits unauthorized presence with the jury during deliberations and unauthorized communication with the jury about the case. The Court remanded the case for a statutory harm analysis. With regard to the admissibility of the juror affidavit, the Court held that the court of appeals must consider the entire juror affidavit. The Court explained that the affidavit in this case could have provided a slight nudge to show that either the jury was affected by the alternate juror's previous participation or that the jurors followed the trial court's instructions to disregard the alternate juror's participation. Consequently, the court of appeals erred to not consider the entire affidavit because the trial court's ruling admitting the entirety of the affidavit was not outside of the zone of reasonable disagreement. On remand, the court of appeals should consider the entire

The abstract portion of the jury charge defined sexual assault of a child in terms of non-consensual sexual contact. The jury charge informed the jury that Delarosa had been charged with “sexual assault of a child, but the abstract portion of the charge described non-consensual sexual assault. But the application paragraphs allowed the jury to find Delarosa guilty if it found that he had committed sexual assault of child. It did not require the jury to find the assault occurred without consent. The jury found Delarosa guilty of 14

Case Law Update

A. Sexual Assault – Fact that victim of sexual assault was a child did not establish that sexual assault occurred “without consent.” The State indicted Francisco Delarosa Jr. on three counts of sexual assault. The body of the indictment charged Delarosa with three counts of sexual assault for nonconsensual contact between his sexual organ and that of the pseudonymous complainant LAM. On the other hand, the caption of the indictment referred to the three counts as “sexual assault of a child” under Sec. 22.011(a)(2) which only required the State to prove that the complainant was a child younger than 17. At trial, the State established that Delarosa had met the victim after Delarosa’s daughter became good friends with the victim. The victim testified that she and Delarosa had sex almost every weekend when she was between fourteen and seventeen years old. She believed she was in love with Delarosa, but wrote in her journal that she was aware that as a minor she was unable to give consent. No one asked her if she had consented to the sexual assault.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

sufficiency of the evidence under the elements of the offense of sexual assault of a child rather than sexual assault without consent. Because the jury was authorized to return a verdict on that offense, the Court should have upheld its verdict against Delarosa’s sufficiency challenge.

three counts of sexual assault of a child, as was listed on the jury verdict forms. The judgment form stated that Delarosa was convicted of sexual assault of a child.

Case Law Update

On appeal, Delarosa argued that the evidence was insufficient to prove that non-consensual sexual contact occurred, as required by the indictment. The court of appeals held the evidence was sufficient to uphold the conviction. The court reasoned that the State proved a lack of consent when it proved the complainant’s age and Delarosa’s awareness of the complainant’s age. The court of appeals affirmed Delarosa’s conviction, but remanded to the trial court to reform the judgement to reflect convictions for three counts of sexual assault instead of sexual assault of a child.

Judge Yeary filed a dissenting opinion in which he would have found the evidence legally sufficient to show that Delarosa committed sexual assault of a child because the jury’s verdicts and Delarosa’s judgment both reflect convictions for that offense. Judge Slaughter dissented without written opinion. [Commentary: As discussed above, this case is probably more interesting as a holding regarding the sufficiency of the indictment. And the dissenter’s arguments regarding sufficiency depend upon disagreement with that portion of the opinion. But if you agree with Judge Keel that the hypothetically correct jury charge required proof of a lack of consent, then it is hard to argue that the evidence in this case was legally sufficient. If you want to read more about the aspect of the case dealing with the sufficiency of the indictment, it is under the Trial Procedure section above.]

The Court of Criminal Appeals reversed and entered a judgment of acquittal for each count of sexual assault. Delarosa v. State, 677 S.W.3d 668 (Tex. Crim. App. Oct. 4, 2023) (5:0:2:1:1). Writing for the Court, Judge Keel explained that the State was required to prove beyond a reasonable doubt that Delarosa committed three counts of sexual assault without the complainant’s consent. The body of the indictment alleged a facially complete offense of non-consensual sexual assault, and the State was obligated to prove what it alleged. The Court rejected the argument that “child” is a proxy for “without consent” because had the Legislature intended “child” to be a proxy for “without consent,” it wouldn’t have created two ways of charging sexual assault—lack of consent and sexual contact with a child. The Court also rejected the argument that “mental defect” includes the diminished capacity of a minor because the Legislature included references to “youth” in other similarly worded sections of the Penal Code and thus, would have included that language in Sec. 22.011 if that was its intent. All the evidence in the case suggested that the relationship between Delarosa and his child victim was otherwise consensual despite being super awful. Because the State failed to prove a lack of consent, it failed to provide sufficient evidence to prove each element of the offense alleged beyond a reasonable doubt.

B. Forgery - The forgery value ladder under subsection (e-1) of Sec. 32.21 of the Texas Penal Code operates as a statutory element to be proven at the guilt-innocence phase, but the State is not required to negate its applicability if it alleges a particular type of forged instrument under subsections (d) and (e) of the forgery statute. On this issue, the Court of Criminal Appeals consolidated two cases into one opinion. In one case, Trenton Kyle Green was indicted for a third-degree felony under Sec. 32.21(e) for making a counterfeit $20 bill. The indictment did not allege whether Green engaged in this forgery to obtain property or services. In Green’s pretrial motion to quash, Green argued that he must be prosecuted under subsection (e-1) because the indictment, as alleged, would require a showing that he committed the forgery to obtain a property or service and the facts will show Green attempted to pass a counterfeit $20 bill in exchange for a $2 lighter. Because the value of the obtained property was less than $100, Green argued that the offense would be a

Presiding Judge Keller filed a dissenting opinion, joined by Judge Hervey. Presiding Judge Keller took issue with the indictment and would have analyzed the 15

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

Class C misdemeanor under (e-1) and would remove jurisdiction from the district court. The trial court agreed and granted Green’s motion to quash.

reformed the judgments to three Class B misdemeanors and remanded the case to the trial court to hold a new punishment trial.

In the second case, Bobby Carl Lennox was tried and convicted on three counts of state-jail felony forgery under Sec. 32.21(d) for forging stolen checks in the amounts of $137, $130, and $150 and passing them at a convenience store. On appeal, Lennox argued that his sentence was illegal because, given the value ladder in subsection (e-1) and the value of the checks passed, his offenses were Class B misdemeanors. He also argued that the jury charge was erroneous because it improperly charged the offenses as state-jail felonies when they should have been charged as Class B misdemeanors; this issue was treated as an unobjectedto-jury charge error.

It only gets more complicated from here on out.

In Green’s case, the court of appeals held that Sec. 32.21 divided forgery offenses into two groups: those where the defendant forged the writing to obtain or attempt to obtain a property or service and those where the defendant forged a particular type of writing for some reason other than to obtain or attempt to obtain a property or service. The court further explained that the defendant’s specific purpose in forging the document determines the offense classification. the court of appeals concluded that the State failed to provide notice to Green of the offense classification the State was charging him with because it had failed to allege a purpose in the indictment. The court of appeals upheld the trial court’s order quashing the indictment because the State failed to allege facts necessary to determine jurisdiction of the court.

But to make matters complicated, if a defendant forges a writing to obtain or attempt to obtain a product or service the degree of offense is tied to a value ladder in subsection (e-1). So, if the defendant forges a writing (any type of writing) in order to obtain a property or service under (e-1) the degree of offense is based upon the value of the property or service that the defendant obtains or attempts to obtain. The Legislature added this “value ladder” as a floor amendment with little to no discussion, and the text of the statute makes subsection (d) or (e) is also “subject to” subsection (e-1).

The court of appeals issued its opinion in Lennox’s case on the same day as it issued its opinion in Green’s case. Relying on its reasoning in Green’s case, the court of appeals held in Lennox’s case that the guilt-phase jury charge contained egregious error because the jury charge should have charged the offenses as Class B misdemeanors under the value ladder in subsection (e-1). The court reasoned that because Lennox’s purpose in forging the checks was the element that would elevate the offense from a Class B misdemeanor under subsection (e-1) to a state-jail felony under subsection (d), the failure to ask the jury to resolve that issue was error under Apprendi v. New Jersey, 530 U.S. 466 (2000). The court of appeals

According to the Court, subsection (e-1) was intended to operate as a statutory element, meaning that Sec. 32.21 contains four separate forgery offenses: the Class A misdemeanor offense under subsection (b); the state-jail and third-degree felony offenses under 16

Case Law Update

The Court of Criminal Appeals vacated the court of appeals’ judgments. State v. Green & Lennox v. State, 682 S.W.3d 253 (Tex. Crim. App. Jan 17, 2024) (8:1:0). Writing for the Court, Judge Slaughter explained that the court of appeals’ holdings were based on an erroneous understanding of the structure of Sec. 32.21 and due process requirements under Apprendi. Under sec. 32.21 (the forgery statute), a defendant commits an offense if he forges a writing with the intent to defraud or harm another. An offense under this statute is generally a class A misdemeanor unless the writing is a particular type of writing under subsection (d) or (e). For example, if a defendant forges a writing that purports to be a check, then the offense is a state jail felony under subsection (d). For another example, if a defendant forges a writing that purports to be an issue of money, the offense is a thirddegree felony under subsection (e). For reference, the State in Green’s case alleged that Green had forged a $20 dollar bill (to buy a $2 lighter), so his offense would be a third-degree felony if the State prosecuted him under subsection (e). And in Lennox’s case, the State alleged that Lennox forged a check which would be a state-jail felony under subsection (d).

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

were, the officer activated his siren so that he could return to the exact location where the objects were thrown. During the traffic stop, the officer noticed the windows were rolled down, but they had been rolled up when he first witnessed McPherson’s truck. The officer asked McPherson what he had thrown out of his truck, and McPherson told him that they were napkins. McPherson was issued a speeding ticket, and the officer let him go. The officer reviewed the video recording from his vehicle and recorded the GPS coordinates of where he had previously activated his siren. After returning to the area, the officer found five marijuana joints wrapped in brown cigar paper. McPherson was detained shortly thereafter.

subsections (d) and (e); and the forgery to obtain property or services offense under subsection (e-1). So, if the State charges a forgery offense under subsections (d) or (e) of Sec. 32.21, but the facts show that the defendant’s offense could also fall under the value ladder in subsection (e-1) and (e-1) would result in a reduced offense classification, then the defendant is entitled to be convicted and punished under (e-1). Under those circumstances, the defendant may raise a claim that he is being prosecuted under the wrong subsection of Sec. 32.21 as a basis for having his offense reduced under the value ladder. The Court, however, did not decide whether a defendant can raise this claim pretrial. And finally, the Court held that the “subject to” clause in subsections (d) and (e) does not require the State to negate the applicability of subsection (e-1) because the Legislature did not use the precise statutory language giving rise to an exception. The Court remanded these causes for further proceedings consistent with its opinion.

On appeal, McPherson argued that the evidence did not support his conviction because he did not conceal the evidence. The court of appeals agreed with McPherson and found that a rational jury could not have reasonably inferred that McPherson concealed the joints. The court reasoned that McPherson had revealed that which was previously concealed from the officer, the officer knew where the joints landed, and the joints were in plain view on the side of the highway. The court of appeals reformed the judgment to attempted tampering.

Case Law Update

Judge Yeary concurred without written opinion. [Commentary: This is a very complicated opinion because the statute at issue is poorly drafted. Practitioners should read it very carefully. I would add that in Williams, discussed above, the State can allege every manner and means and the defendant is not entitled to have the State elect which one. But here, the defendant is apparently entitled to have the degree of offense he is charged with reduced if the facts show he sought to forge something to obtain property or services that’s of such a low value that the crime drops below a state-jail or third-degree felony. Not sure how that will play out in practice. I am confident it will lead to mischief. This is not a criticism of the opinion, of course. This statute is just really challenging.]

The Court of Criminal Appeals reversed, holding that McPherson concealed the marijuana joints while an investigation was in progress. McPherson v. State, 677 S.W.3d 663 (Tex. Crim. App. Sept. 27, 2023) (8:1:0). Writing for the Court, Judge Keel reasoned that when McPherson threw the joints from his moving truck and led the officer miles away from where they landed, he concealed the evidence, and the concealment continued until the officer found the joints. That the officer eventually found the joints did not negate that McPherson had concealed the evidence.

C. Tampering with Physical Evidence – Defendant concealed evidence when he threw marijuana out of his vehicle’s window while refusing to stop his vehicle for a valid traffic stop. Texas Highway Patrol observed Desean Laverne McPherson driving over the speed limit and initiated a traffic stop. Upon activating the overhead lights and pulling behind McPherson’s truck, McPherson moved to the shoulder of the highway but kept driving. The officer noticed brown objects being thrown out of McPherson’s vehicle. Not knowing what these objects

Judge Newell concurred without written opinion. D. Evading Arrest or Detention – State is not required to prove a defendant knows his attempted arrest or detention is lawful to convict for evading arrest or detention. An officer observed Harry Donald Nicholson, Jr. sitting inside his vehicle in a gas station parking lot and throwing trash out of his window. The officer approached Nicholson about the littering. Upon request, Nicholson provided the officer 17

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

but disagreeing with the remand for a new trial based on a trial error that the Court did not address on the merits. He argued that the Court answered a question regarding an issue that did not appear to impact the court of appeals’ ultimate disposition: whether Sec. 38.04(a) required proof of knowledge that the arrest was lawful. Judge Yeary believed it more appropriate for the Court to affirm the court of appeals’ judgment remanding for trial error.

with his driver’s license number and exited his truck to pick up the litter. Dispatch alerted the officer that Nicholson had active felony warrants. The officer then attempted to arrest Nicholson, but Nicholson maneuvered away from the officer, got into his vehicle, and started driving away. Unfortunately for everyone involved, Nicholson drove his truck into another officer’s vehicle while attempting to leave the parking lot. A jury convicted Nicholson of aggravated assault of a public servant and evading arrest or detention with a vehicle.

Judge Keel concurred without an opinion. Judges Walker and McClure dissented without written opinion.

On appeal, the court of appeals affirmed the aggravated assault charge but found that improper jury instructions on the evading arrest or detention charge egregiously harmed Nicholson. The court of appeals explained that the trial court erred by not including a required element of the offense in the jury charge—that Nicholson knew that the officer was attempting to arrest or detain him. However, because the majority found the evidence sufficient to support his conviction for evading arrest, the court of appeals reversed and remanded Nicholson’s case for a new trial on the evading charge only. The Court of Criminal Appeals affirmed the court of appeals in reversing Nicholson’s conviction of evasion of arrest and remanded for a new trial. Nicholson v. State, 682 S.W.3d 238 (Tex. Crim. App. Jan. 17, 2024) (5:1:1:2). Writing for the Court, Judge Richardson explained that Sec. 38.04 of the Texas Penal Code was ambiguous because it leads to two reasonable constructions where one construction leads to an absurd result, namely, a defendant would be responsible for determining the lawfulness of the stop. After considering the legislative history and the statute’s apparent purpose, the Court found that the evading person must only know that the person arresting or detaining him is a peace officer. The Court concluded that Nicholson was egregiously harmed when the jury failed to include the element that Nicholson knew the officer was attempting to arrest him and that the evidence was sufficient to conclude that Nicholson knew the officer was attempting to arrest or detain him. Judge Yeary filed a concurring opinion agreeing with the Court’s disposition of the case by affirming the court of appeals’ reversal on the jury charge error 18

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[Commentary: Read the opinion for yourself and pay attention to the statutory history. This problem seems to have stemmed from the fact that the evading arrest statute did not used to have the word “lawfully” inserted into the statutory requirements. Court had interpreted that version of the statute as requiring the State to prove that the defendant knew police were trying to arrest or detain him. Additionally, a separate statutory section created an exception to the offense if the arrest or detention was unlawful. With this exception provision the State was essentially required to prove that the attempted arrest or detention was lawful but not that the defendant knew it was lawful. Then the Legislature amended the statute with the stated purpose of streamlining the text and it removed the exception section and placed the word “lawfully” in the text of the offense itself. So it was clear that the Legislature did not actually intend to require the State to prove that a defendant knew his attempted arrest or detention was lawful, but the text of the statute opened up that interpretation. It seems that a more holistic view of the statute including its history and resort to extra-textual sources gets to what the legislature actually intended, but “deferring” to the Legislature’s text seems at odds with what the Legislature was actually trying to accomplish. I am not necessarily making a point that one approach is better than another, just noting that perhaps the Legislature isn’t always putting the care into drafting statutes that reviewing courts attribute to it (cough, cough, forgery value ladder, cough, cough).]

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

VI. JURY INSTRUCTIONS

victim’s claim that she did not consent to Reed using his sexual organ, or Reed’s claim that the victim gave him consent to use his mouth. The case largely revolved around the issue of consent, so the erroneous jury instruction did not affect the basis of Reed’s case, deprive him of a valuable right, nor vitally affect his defensive theory. Because the court of appeals declined to address Reed’s other two issues on appeal, his case was remanded for the court of appeals to consider his remaining issues.

Case Law Update

A. Attempted sexual assault jury charge that did not limit the definition of sexual assault to the conduct alleged in the indictment was not egregiously harmful because the case did not concern an alternative means of committing the offense. Brian Christopher Reed was indicted for sexual assault for allegedly penetrating the complainant’s sexual organ with his sexual organ without consent. At trial, the court instructed the jury on attempted sexual assault and assault by offensive or provocative touch. The application paragraph for the attempted sexual assault offense stated that the jury should convict Reed if it found that he had the intent to commit “sexual assault” and did an act that amounted to more than mere preparation to commit that offense. “Sexual assault” was defined in the statutory language but was also defined to the jury as intentionally and knowingly penetrating the anus or sexual organ of another person, not his spouse, by any means without the person’s consent. The jury convicted Reed of the lesser-included offense of attempted sexual assault.

Judges Hervey and Yeary concurred in the result without written opinion. Judge Keel dissented without written opinion. VII. APPEALS A. Motion for New Trial - Trial court did not have authority to extend the deadline and preside over a hearing on a motion for new trial after 75-day period expired. Roberto Medina Flores was convicted of second-degree felony sexual assault and timely moved for a motion for a new trial. Under Sec. 22.0035(b) of the Texas Government Code, the trial court had until April 25, 2020 to rule on Flores’ motion. Before that deadline, the Texas Supreme Court and Court of Criminal Appeals issued a joint emergency order in response to the COVID-19 pandemic that allowed criminal and civil courts to modify or suspend any deadlines and procedures subject only to constitutional limitations. Citing the emergency order, Flores moved to extend the court’s 75-day deadline to rule on his motion, which the trial court granted. On May 8, 2020, the trial court denied Flores’ motion for a new trial. On appeal, the court of appeals concluded that the trial court erred because the 75-day plenary period is jurisdictional, not procedural, and the trial court could not create jurisdiction based on the emergency order.

On appeal, Reed argued that the trial court’s charge for attempted sexual assault should have been limited to the indictment’s allegation that he used his sexual organ, not that he committed the offense by any means as the trial court instructed. The court of appeals concluded that the jury charge was erroneous because it expanded the theory of liability beyond the language of the indictment and found the error to have caused egregious harm. The court of appeals reversed Reed’s conviction. The Court of Criminal Appeals reversed the court of appeal’s judgment. Reed v. State, 680 S.W.3d 620 (Tex. Crim. App. Dec. 20, 2023) (6:2:1). The Court assumed, without deciding, that the jury instruction for the lesser-included offense of attempted sexual assault was erroneous. In assuming the instruction was erroneous, the Court concluded that any harm to Reed was theoretical when considering the entire jury charge, the state of the evidence, and the final arguments of the parties. Writing for the Court, Judge Walker explained that although there was an evidentiary conflict regarding whether Reed used his sexual organ or his mouth, this conflict was related to the more significant question of whether to believe the

The Court of Criminal Appeals affirmed the judgment of the court of appeals. Flores v. State, 679 S.W.3d 695 (Tex. Crim. App. Dec. 13, 2023) (9:0). Writing for the unanimous Court, Judge Hervey explained that In re State ex rel. Ogg made it clear that a trial court cannot expand its jurisdiction by relying on an order like the emergency order at issue in Flores’ case. In re State ex rel. Ogg, 618 S.W.3d 361 (Tex. Crim. App. 2021). The trial court entered an order 19

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

the lack of such burdens when assessing harm from other similar errors. Further, assigning a burden to show or rebut a presumption of harm is particularly appropriate in Becerra’s case given that neither party was responsible for the error of allowing the alternate juror to participate in part of the jury deliberations. This rebuttable presumption of harm arose prior to the promulgation of Rule 44.2(b) of the Rules of Appellate Procedure that only speaks in terms of a difference between constitutional and statutory harm without regard to burdens or presumptions. And finally, reliance upon a rebuttable presumption in practice has been indistinguishable from an ordinary harm analysis. Thus, Rule 44.2(b) is the appropriate standard for evaluating harm when an alternate juror participates in jury deliberations in violation of Art. 36.22. In remanding the case back to the court of appeals for a harm analysis pursuant to 44.2(b), the Court instructed that the court of appeals must examine the record as a whole to determine whether the error affected Becerra’s substantial rights.

purporting to expand its jurisdiction by seven days, but the requirement that a court must have jurisdiction is not procedural. Therefore, the 75-day jurisdictional deadline cannot be suspended. Judge Hervey concluded that the trial court did not have the authority to preside over the hearing on Flores’ motion for a new trial, and its overruling of that motion was void. Flores’ motion for a new trial was overruled by operation of law when the 75-day plenary period expired.

Judge Yeary filed a dissenting opinion explaining that he would not have addressed the application of the presumption of harm under Rule 44.2(b) because that question wasn’t before the Court. Judge Keel filed a dissenting opinion in which Presiding Judge Keller and Judge Slaughter joined. Judge Keel opined that even assuming there was error, there was no harm because twelve jurors ultimately convicted Becerra. Even if there were a thirteenth juror, Becerra would not be harmed because a greater number of fact finders would generally benefit the defense.

On the issue of harm, Becerra argued that Art. 36.22 of the Texas Code of Criminal Procedure shifted the burden to the State to show a lack of harm, and the state never rebutted that presumption of harm. The court of appeals did not analyze harm consistent with this presumption. He sought discretionary review on this issue with the Court of Criminal Appeals.

[Commentary: I suppose this is as good a place as any to point out that this isn’t exactly a 5-4 case. Three of the dissenters would have gone farther than the majority and essentially held that there could never be harmless error from allowing an alternate juror to participate in jury deliberations. Only one dissenter argued that the error was harmful.]

The Court of Criminal Appeals clarified the proper standard for assessing statutory harm and remanded the case to the court of appeals for further proceedings consistent with its opinion. Becerra v. State, 685 S.W.3d 120 (Tex. Crim. App. Feb. 7, 2024) (5:0:3:1). Writing for the Court, Judge Newell acknowledged that the Court had held in Mauney v. State, 85 Tex. Crim. 184 (1919) that a violation of the previous version of Art. 36.22 gave rise to a rebuttable presumption of harm. However, the placement of “burdens” upon the parties for the assessment of harm is inconsistent with

C. Defendant’s appeal was permanently abated on the State’s motion when the defendant died while his remand to the court of appeals was still pending. A jury convicted William Rogers of burglary of a habitation. On direct appeal, he challenged the trial court’s failure to instruct the jury on certain defensive issues. The court of appeals 20

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B. Statutory Harm – Reviewing courts do not need to rely upon a rebuttable presumption of harm for statutory error arising from alternate juror’s participation in jury deliberations. This case was discussed above in subsection E of the Trial Procedure section of the paper. This summary will only discuss the appellate issue of harm. To refresh on the facts, the State charged Joe Luis Becerra with unlawful possession of a firearm by a felon, and he proceeded to trial before a jury. During jury deliberations, an alternate juror retired to the jury room with the regular jury unbeknownst to either party. The Court of Criminal Appeals held that this error was not a violation of the constitutional right to a twelve-person jury. Instead, it was a violation of Article 36.22 which prohibits improper presence in the jury room during deliberations as well as unauthorized communications with the jury about the case.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

and the court of appeals) of any precedential value, it remains to be seen how advocates might use the opinion in the future. I look forward to seeing the proper citation form.]

concluded any error was harmless. The Court of Criminal Appeals granted Rogers’ Petition for Discretionary Review and concluded that if error existed, it was harmful. The Court remanded to the court of appeals to decide whether the trial court erred in failing to instruct on the defensive issues. On remand, the court of appeals held that the trial court did not err. Rogers filed his second Petition for Discretionary Review with the Court. The Court issued an opinion reversing the court of appeals, holding that Rogers was entitled to jury instructions on the defensive issues. During the period within which the State was entitled to file a motion for rehearing (though the State acknowledged that it did not intend to file a motion for rehearing), Rogers died. The State filed a “Motion to Withdraw Appellate Opinions and Permanently Abate the Appeal” because Rogers had died before the case had become final.

VIII.

A. False evidence relating to statistical probability estimates for certain DNA mixtures was not material when it was not shown that there was a reasonable likelihood that the outcome would have been different had the false evidence been replaced with the accurate evidence. A jury convicted Arieli Escobar of capital murder and the trial court sentenced him to death based on the jury’s answers to the special issues. The Court of Criminal Appeals affirmed his conviction on direct appeal and denied his initial postconviction habeas application. Escobar filed a second post-conviction habeas application, and the Court remanded his claims to the convicting court for consideration on the merits. The convicting court recommended that relief be granted on two of Escobar’s claims: (1) the DNA evidence relied upon by the State was scientifically unreliable, and (2) his right to due process was violated by the use of false DNA evidence. Thereafter, the State filed a document objecting to numerous findings and conclusions made by the convicting court but stated that it agreed with the convicting court that Escobar was entitled to relief on those two claims.

In a per curiam opinion, the Court of Criminal Appeals granted the State’s motion, withdrew both of its opinions, and ordered the court of appeals to also withdraw both opinions. Rogers v. State, 677 S.W.3d 705 (Tex. Crim. App. Oct. 18, 2023) (7:4:2). Rogers’ entire appeal was permanently abated to a higher court. See Brown v. State, 439 S.W.3d 929 (Tex. Crim. App. 2014) (granting State’s motion to permanently abate the appellant’s appeal after he died).

Case Law Update

HABEAS CORPUS

Judge Richardson filed a concurring opinion, joined by Judges Hervey, Walker, and Slaughter. Judge Richardson explained that the Court was correct in permanently abating Rogers’ appeal but concurred to include the Court’s majority opinion from Rogers’ second petition for discretionary review in hopes of preventing other defendants from suffering the same deprivations of equal justice under the law as Rogers had suffered.

The Court disagreed with the convicting court’s recommendation to grant relief and dismissed Escobar’s second application. After the dismissal, the State filed a suggestion for reconsideration to the Court, conceding that Escobar was entitled to relief. The Court denied without the State’s request without written order. Escobar then submitted a petition for writ of certiorari to the Supreme Court of the United States. In its response to the petition, the State conceded error. Specifically, the State believed that the DNA evidence used to convict Escobar may have been contaminated because contamination issues were found at the lab where Escobar’s evidence was processed. The State furthered that reversal of the Court of Criminal Appeals’ judgment was warranted. The Supreme Court granted certiorari, vacated the Court’s judgment, and remanded Escobar’s case back to the

Presiding Judge Keller and Judge Keel dissented without written opinion. [Commentary: This is an esoteric aspect of criminal appellate law. If a defendant dies before his appeal becomes final, the case is permanently abated. Sort of like an unresolvable tie. But here, Judge Richardson published a side opinion to the abatement order and included the original majority opinion. While the abatement deprives the original opinions (in the CCA 21

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

The Court of Criminal Appeals granted leave to file and granted UTMB’s Petition for a Writ of Mandamus, which was to be issued if the habeas court failed to comply with its opinion. In re University of Texas Medical Branch-Galveston, 677 S.W.3d 696 (Tex. Crim. App. Oct. 18, 2023) (6:3:0). Writing for the Court, Judge Newell explained that Sec. 3 of Art. 11.071 authorizes a habeas court to entertain ex parte requests in only two instances: (1) a request for prepayment of expenses, including expert fees, to investigate and present potential habeas corpus claims, and (2) a claim for reimbursement for expenses for habeas corpus investigation that are reasonably necessary and reasonably incurred. The ex parte order compelling UTMB to administer brain imaging did not involve a request for prepayment of expenses nor a claim for reimbursement of expenses. Thus, the habeas court did not have authority under Sec. 3 of Art. 11.071 to enter the order at issue ex parte.

Court for further consideration due to the State’s concession of error. After considering the arguments made on certiorari and reviewing Escobar’s supplemental evidentiary materials, the Court of Criminal Appeals reaffirmed its denial of relief. Ex parte Areli Escobar, 676 S.W.3d 664 (Tex. Crim. App. Sept. 27, 2023) (5:1:3). Writing for the Court, Presiding Judge Keller explained that neither the concession of error on certiorari nor the evidence submitted on remand, changed its conclusion that no due process violation had occurred in Escobar’s case. Although the statistical estimates for certain DNA mixtures used to convict Escobar constituted false evidence, the Court reasoned that the correctly revised DNA estimates did not show a reasonable likelihood that Escobar would not have been convicted because the corrected estimates would still inculpate him. Judge Richardson concurred without written opinion.

Judge Slaughter filed a concurring opinion agreeing with the Court’s conclusion that the habeas court lacked authority to issue the order compelling UTMB to conduct brain imaging but disagreed that this case could be resolved by relying on the ex parte nature of the habeas court’s order. Instead, Judge Slaughter maintains that a habeas judge has implicit authority to order pre-application discovery under Art. 11.071.

Judges Hervey, Newell, and Walker dissented without written opinion. [Commentary: Applicant has filed a petition for certiorari in this case. As of this writing, the State has yet to respond. We’ll see how it turns out.]

[Commentary: It is worth pointing out that the habeas court’s order actually combined two different things. It not only ordered brain imaging, it also ordered a transfer of the prisoner to have UTMB conduct the brain imaging. It is not clear whether UTMB was being ordered to conduct brain imaging without payment or whether it was agreeing to conduct brain imaging for agreed payment. The statute seems to contemplate that a defendant can seek payment or reimbursement for brain imaging, but the request in this case was for the imaging itself not the payment for the imaging. Exit question: What if the habeas court’s order had just been a prisoner transfer order rather than a prisoner transfer order and an order for imaging?] C. Habeas applicant’s death sentence was reformed to life imprisonment without parole 22

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Judges Keel and McClure concurred without written opinion.

B. Habeas court did not have authority under Art. 11.071, Sec. 3 of the Texas Code of Criminal Procedure to issue an ex parte order compelling a third party to create new evidence. Pursuant to its post-conviction investigation, the Office of Capital and Forensic Writs sought and received a sealed ex parte order from the habeas court, compelling the University of Texas Medical Branch-Galveston to conduct brain imaging on OCFW’s client. UTMB challenged the ex parte order by filing a motion to set aside the discovery order. While the habeas court initially granted the motion, it subsequently denied the order and reinstated the original ex parte order. UTMB sought leave from the Court of Criminal Appeals to file a Petition for a Writ of Mandamus and requested the Court vacate the remaining ex parte order. OCFW argued that the habeas court had the authority to issue the ex parte order under Art. 11.071, Sec. 3 of the Texas Code of Criminal Procedure.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

Case Law Update

because he met the diagnostic criteria for intellectual disability. In 2008, a jury convicted Randall Wayne Mays of capital murder for the shooting death of a law enforcement officer. After the jury answered the special issues submitted to it, the trial court sentenced Mays to death. The Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. Thereafter, Mays filed his first application for habeas corpus, raising nine claims, including a claim that that he had a mental illness and, thus, his pending execution was not constitutionally permissible. The Court denied relief. Mays also filed a habeas corpus petition in federal court, which argued that he should not be executed because he had an intellectual disability. The federal district court denied relief, and the Fifth Circuit denied a certificate of appealability. The Supreme Court of the United States denied certiorari.

habeas corpus unless clear and convincing evidence shows that no rational juror would have answered in the state's favor on one or more of the special issues). The Court stayed Mays’ execution and remanded to the trial court to review the merits of the intellectual disability claim. In 2022, the trial court held a hearing, and Mays submitted the medical reports from two of his experts. The first expert’s report concluded that Mays met the criteria for a diagnosis of mild intellectual disability according to the 5th Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR ) and the 11th Edition of Intellectual Disability: Definition, Classification, and Systems of Support. The second expert’s report said that Mays met the full diagnostic criteria for intellectual disability according to current standards. In 2023, the trial court signed its “Agreed Findings of Fact and Conclusions of Law” and recommended that relief be granted on Mays’ intellectual disability claim, specifically citing the DSM-5-TR. The court concluded that Mays had shown by clear and convincing evidence that no rational factfinder would fail to find him intellectually disabled.

When Mays’ execution date was set, he challenged his competency to be executed under Art. 46.05 of the Texas Code of Criminal Procedure in the trial court. See Tex. Code Crim. Pro. Ann. art. 46.05 (“A person who is incompetent to be executed may not be executed.”). The trial court denied his challenge. The Court, however, determined that Mays had made a sufficient threshold showing for the appointment of experts. The trial court later determined that Mays was competent to be executed, and the Court affirmed that decision. Mays again challenged his competency to be executed after his second execution date was set. The trial court denied the challenge, and Mays appealed the decision to the Court, which was still pending on the date this opinion was published. In 2020, Mays filed a subsequent writ of habeas corpus with the Court and a motion for a stay of execution. In his subsequent writ, Mays raised four claims challenging the validity of this conviction and the resulting sentence of death. In one of his claims, Mays asserted that he is intellectually disabled and ineligible for the death penalty under Atkins. See Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executions of persons with intellectual disabilities are prohibited under the Eighth Amendment). The Court determined that Mays’ intellectual disability claim satisfied Art. 11.071, Sec. 5 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Pro. Ann. art. 11.071 (relief not granted on subsequent writ of

The Court of Criminal Appeals granted relief by reforming Mays’ sentence of death to life imprisonment without parole. Mays v. State, --S.W.3d ---, 2024 WL 1288675 (Tex. Crim. App. March 27, 2024) (5:4). In its per curiam opinion, the Court found that Mays met the diagnostic criteria for intellectual disability under Atkins and Moore. See Moore v. Texas, 137 S. Ct. 1039 (2017); Moore v. Texas, 139 S. Ct. 666 (2019). However, Mays’ other claims failed to satisfy the requirements of Art. 11.071, Sec. 5, and were dismissed as an abuse of the writ without reviewing the merits. Presiding Judge Keller filed a dissenting opinion in which Judge Slaughter joined, disagreeing with the Court’s remedy in granting Mays relief on his intellectual disability claim. Presiding Judge Keller believed this remedy conflicts with Texas Code of Criminal Procedure Art. 1.13, which requires a jury trial in death penalty cases. Because the question of intellectual disability is a factual issue, the Court should have remanded for a new punishment hearing at which a jury could decide the intellectual disability issue. 23

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

[Commentary: I have observed in an opinion before that the criteria for determining whether someone is intellectually disabled has become untethered from the rationale relied upon by the United States Supreme Court in Atkins to hold that an intellectually disabled criminal defendant’s lessened moral blameworthiness is exempt from the death penalty. See Ex Parte Wood, 568 S.W.3d 678, 686 (Tex. Crim. App. 2018) (Newell, J. concurring) (“But to the extent that Applicant can build a claim of intellectual disability upon the shifting sands of clinical psychological standards detailed in Moore, this case demonstrates that the determination of intellectual disability has become untethered from the original rationale for the exception to the imposition of the death penalty announced in Atkins.”). And in Petetan v. State, 622 S.W.3d 321, 332 (Tex. Crim. App. 2021) the Court noted the inherent tension between the clinical perspective attendant to a diagnosis of intellectual development disorder and the legal determination of moral blameworthiness. As the Court explained, “At its core, Atkins seems to rest its justification for a death-penalty exemption upon the assumption that intellectual disability is a character trait that lessens moral culpability and so the retributive value of punishment. But the clinical criteria for 24

Case Law Update

diagnosing someone with intellectual development disorder seems to look forward to how the diagnosis can better assist the individual function in society without regard to any consideration of moral blameworthiness.” I point these things out not just because I am vain, but to direct practitioners to the one problem inherent with remanding for a new punishment hearing. Having a jury make another determination of intellectual disability will be inherently fraught because all the experts will be forced to rely upon the same diagnostic criteria in evaluating the defendant that resulted in the determination of intellectual disability on the writ. Under that diagnostic criterion, the defendant is intellectually disabled regardless of how morally blameworthy people might feel he is. And to the extent that the Court wants to have a jury consider moral blameworthiness based upon factors outside of diagnostic criteria, the Court tried that already. See, e.g., Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004). It didn’t end well. See Moore v. State, 581 U.S. 1 (2017) (Moore I); see also Moore v. Texas, 139 S.Ct. 666 (Moore II); see also Ex parte Moore, 587 S.W.3d 787 (Tex. Crim. App. 2019). The reality is that Atkins and Moore have tied the determination of intellectual disability to ever-changing diagnostic criteria and even if the Court were to say it is not bound by such criteria that wouldn’t solve the problem. Seeking out other criteria to assist in a “moral blameworthiness” diagnosis seems likely to result in reliance upon the same type of criteria listed in Briseno and rejected in Moore. Even more problematic is the question of how the State should litigate the issue of intellectual disability to a jury when it will be forced to concede that all the diagnostic evidence points to a determination that the defendant is intellectually disabled. Such a course of action seems to invite emotional (and by definition irrational) jury decisionmaking. But maybe there are some answers on the horizon? There is currently a petition before the United States Supreme Court in Smith v. Alabama, 67 F. 4th 1335 (11th Cir. 2023) (cert. filed) asking for clarification regarding Supreme Court precedent in this area. Perhaps this case will clarify this area of the law. If certiorari is granted.]

Judge Yeary filed a dissenting opinion, joined by Presiding Judge Keller. Judge Yeary questioned whether Mays procedurally defaulted his intellectual disability claim because he did not raise that claim at trial, on appeal, or in his first application for writ of habeas corpus. Because Mays was tried eight years after Atkins, he could have raised intellectual disability at trial. He also questioned whether Mays’ claim of intellectual disability was properly measured under the diagnostic criteria adopted by the latest DSM manual. Judge Yeary believes each successive DSM manual contains less rigorous diagnostic criteria and may no longer correspond to society’s “so-called” evolving standards of decency under the Eighth Amendment. Nor is he convinced that no rational jury would fail to find that Mays is intellectually disabled based on the evidence, even under the current DSM-5-TR standards. Lastly, Judge Yeary questioned the relief granted by the Court because he thought the more appropriate disposition may have been to remand the case to empanel a new jury to determine the issue of Mays’ intellectual disability.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

Case Law Update

IX. FEDERAL LAW

paragraph (f)(1), the Government’s interpretation is the only plausible statutory construction. Pulsifer’s interpretation, on the other hand, would create two issues. First, subparagraph (A) would be rendered meaningless because a defendant who meets the requirements under (B) and (C) would always have more than four criminal history points under (A). Second, Pulsifer’s interpretation would grant relief to defendants with a more serious criminal history while barring relief from defendants with a lesser criminal history. For example, a defendant who had a threepoint offense under (B) and a two-point violent offense under (C) would be denied relief. But a second defendant with multiple three-point offenses, satisfying (A) and (B), could get relief only because he does not have a two-point violent offense. Pulsifer’s interpretation would distort the intent of the provision—to assess which defendants should have entitlement to a lesser sentence based on the seriousness of their criminal history.

A. Mandatory Minimum Sentencing Guidelines - A defendant facing a mandatory minimum sentence is eligible for safety-valve relief under 18 U. S. C. Sec. 3553(f)(1) only if each of the provision’s three conditions are satisfied. Mark Pulsifer pleaded guilty to distributing at least 50 grams of methamphetamine and faced a mandatory minimum sentence of 15 years. At his sentencing, Pulsifer claimed that the court could sentence him without considering the mandatory minimum under the federal “safety valve” provision. The “safety valve” provision exempts qualified defendants from being sentenced to the mandatory minimum. To qualify for this provision, the sentencing court must find that the defendant does not have: (A) “more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense,” (B) “a prior 3-point offense,” and (C) “a prior 2-point violent offense.” 18 U.S.C.A. § 3553(f)(1). Because Pulsifer did not have a prior 2point violent offense conviction as required by subparagraph (C), he argued that he was eligible to be sentenced without regard to the mandatory minimum. Under Pulsifer’s interpretation, a defendant would only be ineligible for the “safety valve” provision if he met all three requirements. The Government argued that Pulsifer was ineligible because he had two prior threepoint offenses. Under the Government’s view, Pulsifer was disqualified under subparagraphs (A) and (B) because he had six criminal history points. The district court agreed with the Government’s interpretation, and the Eighth Circuit affirmed.

Pulsifer contended that even if his interpretation created these two issues, that ultimately did not matter because a sentencing judge retained complete discretion to impose a lengthy sentence. Justice Kagan replied that if sentencing guidelines could always overpower the provision, then Congress wouldn’t have created the provision. Congress amended the provision to expand eligibility for relief for defendants with a less serious criminal history. Though Pulsifer argued that his interpretation was more aligned with the intent of Congress because it affords more opportunity for relief to defendants, that does not advise how the statute should be interpreted. Both parties’ interpretations expand eligibility for relief; because Pulsifer’s interpretation would grant more relief than the Government’s does not automatically make it the better interpretation. Lastly, the Court rejected Pulsifer’s invocation of the rule of lenity. While there are two grammatically correct interpretations of the provision, there is only one contextually possible interpretation— the Government’s interpretation.

The Supreme Court of the United States granted certiorari because the courts of appeals were split over how to read the “safety valve” provision’s criminal history requirement, and subsequently affirmed the Eighth Circuit. Pulsifer v. United States, 144 S. Ct. 718 (March 15, 2024) (6:3). Delivering the opinion of the Court, Justice Kagan believed that both parties offered a grammatically permissible reading of the provision. Pulsifer argued that the word “and” joined subparagraphs (A), (B), and (C); thus, ineligibility for the provision required that he met all three requirements. The Government argued that the word “and” meant that Pulsifer could only be eligible if he did not meet all three requirements. When considering the sentencing guidelines with the text and context of 25

Justice Gorsuch filed a dissenting opinion, in which Justices Sotomayor and Jackson joined. Congress amended the provision to give more defendants a chance to avoid mandatory minimum sentences and instead receive sentences that correspond more appropriately to a defendant’s criminal history.

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

reasons. Before the district court, an FBI official filed a declaration stating that Fikre “will not be placed on the No Fly List in the future based on the currently available information.” The district court again dismissed Fikre’s case as moot. And again, the Ninth Circuit reversed because the FBI’s declaration did not indicate why Fikre had been placed on the list in the first place, nor did it ensure that he wouldn’t be placed on the list again.

After the amendment, a defendant may be eligible for the “safety valve” if he “does not have” all three traits found under (A), (B), and (C). The Government’s interpretation would mean that a defendant could only be eligible if he does not meet any of the three traits. Justice Gorsuch concluded that adopting this interpretation guarantees that more defendants will be denied eligibility for individualized sentencing. Furthermore, nothing would prevent the Government from interpreting any other statute in this way to attain its preferred result.

The Supreme Court of the United States affirmed the judgment of the Ninth Circuit. Federal Bureau of Investigation v. Fikre, 144 S.Ct. 771 (Mar. 19, 2024) (9:2:0). Justice Gorsuch delivered the unanimous opinion of the Court, explaining that a defendant’s “voluntary cessation of a challenged practice” will render a case moot only if the defendant shows that “the practice cannot reasonably be expected to recur,” and this principle applied to governmental defendants. At this stage of litigation, the Court held that the FBI official’s declaration was not sufficient to establish that Fikre would not be placed back on the “No Fly List” because he was not informed of the conduct that got him on the list in the first place. Under the facts alleged at this preliminary stage, the FBI failed to meet its burden of proving that Fikre’s case was moot.

In May 2016, the FBI informed Fikre that he had been removed from the list but did explain why. Subsequently, the district court dismissed Fike’s case as moot due to the removal. The Ninth Circuit reinstated Fikre’s case because it was unclear whether he could be put back on the list for the same unknown

Justice Alito filed a concurring opinion, which Justice Kavanaugh joined, to clarify his understanding of the Court’s decision does not suggest that the Government must disclose classified information to prove mootness. Instead, non-classified or discovery information may suffice to show that the alleged unlawful conduct is not likely to recur. X. FIRST AMENDMENT A. A public official who prevents someone from commenting on the official’s social media page engages in state action suppressing speech in violation of the First Amendment only if the official both (1) possessed actual authority to speak on the State’s behalf on a particular matter; and (2) purported to exercise that authority when speaking in the relevant social media posts. James Freed converted his private Facebook profile to a public profile. Because his profile was public, anyone could leave comments on Freed’s posts. Years later, Freed was appointed city manager of Port Huron, Michigan, 26

Case Law Update

B. Lawsuit placing airline passenger on “No Fly List” was not rendered moot by the FBI’s declaration that an airline passenger “will not be placed on the No Fly List in the future” because the challenged practice could still recur. In 2009, Yonas Fikre, a U.S. citizen and Sudanese emigrant, traveled by plane from Portland, Oregon, to Sudan for business. While in Sudan, Fikre visited the U.S. embassy, where FBI agents informed him that the United States Government had placed him on the “No Fly List.” The agents questioned Fikre about the mosque he attended and told him that he could be removed him from the list if he became an FBI informant against the members of his religious community in Portland; Fikre declined. Fikre then traveled to the United Arab Emirates, where he was interrogated, tortured, and detained by authorities at the alleged request of the FBI. Fikre then sought asylum in Sweden and remained there until February 2015, when he returned to Portland. While in Sweden, Fikre filed suit against the FBI, alleging that his procedural due process rights were violated because he was not provided notice that he was added to the “No Fly List,” nor did the FBI provide him with a remedy that would remove him from the list. Fikre further alleged that the FBI unconstitutionally placed him on the list because of his race, national origin, and religious beliefs. He sought a declaratory judgment that the FBI had violated his constitutional rights and an injunction prohibiting the FBI from keeping Fikre on the “No Fly List.”

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

purported to exercise that authority when speaking on social media. Under the first prong, Lindke must show that Freed had more than just some authority to speak on behalf of the state, meaning Lindke’s censorship must be connected to speech on a matter that was within Freed’s official scope of authority. Under the second prong, Lindke must show that Freed was speaking in furtherance of his official responsibilities which requires fact-specific categorization of Freed’s Facebook posts. To prevail, Lindke must show that Freed purported to exercise state authority in specific Facebook posts with the type of social media technology used being critical to the analysis. Facebook’s blocking feature, for example, operates on a user’s entire page, and thus, a court must consider whether Freed engaged in state action with respect to all of Freed’s posts on which Lindke wanted to comment. With this guidance, the Court remanded the case for further proceedings consistent with its opinion.

and updated his Facebook profile to reflect his new position: “City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” Freed continued to operate his own profile, mostly posting about his personal life but he also posted information that related to his government position. He often responded to comments left by residents on his posts that concerned the local community but would sometimes delete comments he deemed inappropriate.

Case Law Update

During the COVID-19 pandemic, Kevin Lindke left comments on Freed’s posts about his dissatisfaction with Port Huron’s response to the pandemic. Freed deleted Lindke’s comments and eventually, Freed blocked Lindke from being able to comment on his profile at all. Lindke sued Freed, arguing that his First Amendment rights were violated because Freed’s Facebook profile was a public forum. By deleting Lindke’s comments and blocking his access to Freed’s page, Freed was engaging in impermissible viewpoint discrimination. The district court concluded that Freed managed his Facebook profile in a private capacity and granted summary judgment to Freed. The Sixth Circuit affirmed and held that an official’s activity is state action only if state law required officials to maintain a social media account, the official used state resources to manage the account, or the account belonged to a state office. The Supreme Court of the United States vacated the judgment of the Sixth Circuit. Lindke v. Freed, 144 S.Ct. 756 (March 15, 2024) (9:0). Delivering the opinion of the unanimous Court, Justice Barrett explained that the question before the Court was whether Freed, a state official, was engaged in state action when deleting and blocking Lindke’s comments from his Facebook page. According to the Court, social media posts that expressly invoke state authority to make an announcement not available elsewhere are state speech, whereas posts that repeat or share information available elsewhere are likely personal speech. If Freed was acting as a state official he violated Lindke’s First Amendment rights, but if he was acting as a private citizen, then he did not. Based upon analogous cases addressing the identification of state action it the First Amendment context, the Court held that a public official’s social media activities will constitute state action if the official: (1) had actual authority to speak on the state’s behalf, and (2)

[Commentary: In a similar case decided on the same day, O’Connor-Ratcliff v. Garnier, 144 S.Ct. 717 (March 15, 2024) (per curiam), the Supreme Court of the United States vacated the judgment of the Ninth Circuit and remanded the case for further proceedings consistent with its opinion in Lindke v. Freed. In that case, Michelle O’Connor-Ratcliff and T.J. Zane created public Facebook pages to promote their election campaigns for the Poway Unified School District (PUSD) Board of Trustees. Both O’Connor-Ratcliff and Zane won their elections and continued to post content regarding PUSD on their public pages and to communicate with their constituents. Their Facebook profiles noted their official positions. O’ConnorRatcliff also created a public Twitter page, which she used for the same purpose as her Facebook page. When Christopher and Kimberly Garnier’s children (who attended PUSD schools) posted lengthy and repetitious critical comments on O’Connor-Ratcliff and Zane’s social media O’Connor-Ratcliff and Zane deleted these comments. They eventually blocked the Garniers from commenting altogether. We’ll have to see how those cases turn out on remand.] [The. End.]

U.S. Supreme Court & Court of Criminal Appeals Update September 2023 – March 2024

Judge David Newell was elected to the Court of Criminal Appeals on November 4, 2014. The son of Thomas and Linda Newell, David was born at the Bethesda Naval Hospital in Maryland, though he grew up in Sugar Land, Texas with his much taller, older brother, Robert Newell. David graduated cum laude from William P. Clements High School. He earned his undergraduate degree in English with a concentration in Creative Writing at the University of Houston. He graduated magna cum laude, earning University honors and honors in his major. He received his J.D. from the University of Texas School of Law in 1997 before returning home to work in the Fort Bend County District Attorney's Office. He served as an appellate prosecutor for 16 years, first in Fort Bend County and later in the Harris County District Attorney's Office from 2007 until his election to the Court. Judge Newell has twice served as the Chairman of the Editorial Board for the Texas District and County Attorney's bi-monthly journal, The Texas Prosecutor. He also co-authored a regular byline for the journal, "As the Judges Saw It," a column that analyzed and summarized the significant decisions of the Court of Criminal Appeals and the United States Supreme Court. He served repeatedly on the planning committee for the Advanced Criminal Law Course for the State Bar of Texas. And he has presented the Court of Criminal Appeals Update at the Texas Conference on Criminal Appeals, the TDCAA Criminal and Civil Law Update, and the Texas State Bar's Advanced Criminal Law Course. On the Court, he served as the Chairperson of the Court of Criminal Appeals Rules Advisory Committee from 2019-2022. He is also the co-course director, along with Judge Barbara Hervey, for the “Robert O. Dawson Conference on Criminal Appeals,” a biennial criminal appellate seminar for the University of Texas School of Law CLE.

Case Law Update

Judge Newell is board certified by the Texas Board of Legal Specialization in both criminal law and criminal appellate law. He is also licensed by the State Bar of Texas and admitted to practice before the Fifth Circuit Court of Appeals and the United States Supreme Court. In 2013, David received the C. Chris Marshall Award for Distinguished Faculty from the Texas District and County Attorneys' Association. In 2021 he received the Exemplary Speaker Award from the Texas Center for the Judiciary. That same year he was nominated for and elected to membership in the American Law Institute. David and his beautiful wife, Shayne, currently live in the Houston area with their two sons.

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Crimmigration Jordan Pollock

Public Defender 133 N. Riverfront Blvd., LB2 Dallas, TX 75207 214.653.3579 phone Jordan.Pollock@dallascounty.org email

Crimmigration

Speaker:

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

Crimmigration Paper by Jordan Pollock, Dallas County Public Defender’s Office Many thanks to Kathy Brady (Immigrant Legal Resource Center) and Gabriella McDonald (Texas Appleseed) who edited a previous version of this paper that appeared in the printed version of the Immigration Consequences Manual, now available at www.immigrationconsequencestx.org INTRODUCTION We are in a time of unprecedented overlap between the criminal justice and immigration systems. These systems were fused together with major changes to the immigration code, formally titled The Immigration and Nationality Act, in 1996. Before 1996, immigration judges had broad discretion to balance positive factors against criminal conduct when deciding the fate of a non-citizen in removal proceedings. State court criminal judges could even issue a judicial recommendation against deportation as part of a criminal sentence. After 1996, the immigration code was re-written to include many mandatory bars to immigration relief, creating new grounds of removability for those lawfully present in the United States. Consequently, the criminal case is now the determining factor in whether a non-citizen can remain in the country. In fact, according to Transactional Records Access Clearinghouse (TRAC), 96% of all interior deportations occur as a result of contact with the criminal justice system. The criminal courts are the gateway to the deportation pipeline for non-citizens that reside in the Unites States. These sweeping changes to the immigration code affect all immigrants—even immigrants who are lawfully present and have extensive ties to the U.S. Finally, TRAC data from 2023 shows that over 80% of immigrants in removal proceedings in Texas do not have access to counsel. Thus, for many non-citizens, defense counsel is the only attorney they will ever have. Padilla v. Kentucky and its progeny In 2010, the Supreme Court issued Padilla v. Kentucky, a watershed decision, requiring criminal defense counsel to competently advise their clients of the potential immigration consequences of criminal charges or plea bargains.

When Mr. Padilla found out he was subject to what was essentially automatic deportation as an “Aggravated Felon” under the immigration code, he filed for post-conviction relief, alleging ineffective assistance of counsel. The Kentucky Supreme Court held that deportation was a collateral consequence of his criminal plea and thus outside the scope of the Sixth Amendment. Mr. Padilla appealed to the U.S. Supreme Court.

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Mr. Padilla, a Vietnam War veteran, had been a Lawful Permanent Resident (LPR) for forty years when he was charged with transporting a large quantity of marijuana. Mr. Padilla pled guilty to drug trafficking after his defense attorney told him he was not at risk for deportation because he was a long-term resident and a war veteran.

The U.S. Supreme Court observed the increasing harshness of changes in immigration laws since 1996 and noted that immigration outcomes are direct consequences of the criminal charge and thus not categorically removed from the ambit of Sixth Amendment. The Court found that immigration consequences were not properly characterized as “collateral” but were instead “intrinsically intertwined” with the penalty. Furthermore, the Court found that constitutionallycompetent counsel would have advised Mr. Padilla that his conviction made him subject to automatic deportation. Padilla is also a decision about proportionality. The Court recognized that immigrants are often punished twice for a crime: once by the criminal court, and again via the immigration court, with the latter punishment often being more severe and more important to the defendant. With this in mind, for a non-citizen to receive proportionate and just punishments, immigration status must come into play in the negotiations between the prosecutor and the defense. In fact, the Court references the role of a prosecutor and the defense in trying to fashion “immigration-neutral” pleas, which can result in “better outcomes for both parties.” In the years since Padilla was decided, federal courts have continued to elaborate on defense counsel’s obligations to non-citizen defendants. Violations of Padilla are evaluated under the Strickland test for ineffective assistance of counsel. For a defendant to succeed under Strickland they must show two things: (1) that their lawyer’s performance fell below an "objective standard of reasonableness" and was thus ineffective, and (2) that there was a reasonable probability that, but for counsel's unprofessional errors, a rational defendant would have proceeded differently, i.e., prejudice. There is extensive caselaw on how Padilla violations play out in both steps of this test. More recently, the Supreme Court addressed the second prong of Strickland within the Padilla context in Lee v. US. In Lee, the Court held that a non-citizen can establish he was prejudiced by taking a plea with negative immigration consequences even though the evidence of his guilt was strong and his likelihood of success at trial was low. The Court found that is rational for an immigrant defendant to decide to go trial in order to have even a small chance of avoiding deportation.

Crimmigration

Reading Padilla and its progeny together, it is clear that understanding a client’s immigration status and goals, providing specific and detailed immigration advice, and attempting to negotiate an immigration neutral disposition, is the obligation of competent defense counsel. DEFENSE COUNSEL’S OBLIGATIONS UNDER PADILLA The Standard Under Padilla Although the Padilla decision itself does not go into much detail on what a defense attorney must do for each case, reading the decision with its progeny offers insight on the variety of things competent defense counsel should do. Competent counsel should: 1. Evaluate their client’s immigration status; Page 2 of 23

2. 3. 4. 5. 6. 7.

Advise the non-citizen defendant whether they will be placed in removal proceedings; Advise whether the defendant will be eligible for future immigration relief; Advise whether the defendant will be subject to mandatory detention; Advise whether the defendant can travel abroad; Advise whether the defendant can naturalize; and Negotiate with the district attorney to avoid negative outcomes.

While not required, there are key advantages to giving the defendant advice in writing. Because the defendant is often advised about a myriad of topics before a plea (from discovery rights to appellate rights), the relevant immigration advice can often get lost in the shuffle. Providing advice in writing allows the defendant to consider their options before their plea and, should they choose, share key information with their family. Additionally, because most indigent non-citizen defendants will not have any counsel when they get to immigration court, a written advisal letter allows the defendant to have some documentation regarding their plea. This advisal letter is particularly essential if counsel has preserved relief and the argument is complex. So how does one comply with this standard of representation of non-citizens? Research The Court in Padilla is very clear that defense counsel must do at least a basic level of immigration research to understand the requirements of their client’s immigration status, available forms of immigration relief, immigration consequences of a charged offense, and to identify immigration-neutral alternative dispositions. The Court in Padilla also discusses clear and unclear immigration consequences, noting that advice must be specific if the outcome is clear, but less so if the outcome is unclear. But to even begin to assess if advice is clear or unclear, defense counsel must do initial immigration research or reach out to a competent expert to assist them. Advice

Negotiate The Court in Padilla makes clear that negotiation between the prosecution and defense counsel is essential in order to create proportionate outcomes. Being armed with the immigration research and an understanding of the client’s priorities, defense counsel can hopefully suggest a plea that will protect the client’s immigration options, but also meet the prosecution’s needs. Page 3 of 23

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Once defense counsel has completed the necessary immigration research (or spoken to an expert), it is important to discuss the options with the client. Counsel may be surprised to know that non-citizen defendants often are less concerned about avoiding time in jail or prison and more concerned about the immigration outcome of their case. Explaining the risks and benefits, while understanding the client’s priorities, prepares defense counsel to negotiate with the prosecution.

Resolve If an agreement cannot be reached, defense counsel can consider trial or discuss with the defendant if they wish to plead, understanding the immigration consequences. What is Insufficient Under Padilla Given ongoing discussion regarding the standard of representation for a non-citizen defendant, it is important to know some common ways that counsel may be attempting to comply with Padilla, but unfortunately falling short of the standard, as currently established. General Advice While it is appropriate for the judge to give a generalized judicial admonition, this generalized one size fits all statement falls short of defense counsel’s obligations. Defense counsel’s advice needs to be specific and based on research on the individual defendant’s particular situation including the defendant’s immigration status, available forms of immigration relief, and the specific consequences of a particular charge. If, after researching the issue (or speaking to an expert) there is ambiguity in the law, counsel can explain that there is ambiguity, and give advice about general outcomes. However, giving generalized advice right “off the bat” is never appropriate. As a judge once aptly framed this issue: “I know every time I get on a plane that it might crash, but if I’m told specifically it will crash that will lead to a different outcome.” Advice that is Wrong In an attempt to avoid being found ineffective, defense counsel - or courts - often try to give what they believe is overarching, stern warnings, such as telling all defendants they will be deported if convicted. This is a bad practice because there are criminal offenses that clearly do not result in deportation. Giving a defendant incorrect legal advice is no more acceptable in the Padilla context than it would be in any other.

Crimmigration

Referring Out Because Padilla places the burden on defense counsel to advise the defendant about the immigration consequences of a plea, asking the defendant to contact an immigration attorney to get this same advice is inappropriate. Just as counsel would not require the defendant to do their own discovery, here too the burden is on defense counsel to give the advice. That being said, a defense counsel untrained in immigration law may indeed contact an immigration attorney/crimmigration expert themselves. Also there is no reason defense counsel should not work with an immigration attorney if the defendant has already hired one. But it is essential that defense counsel speak themselves with immigration counsel so they can understand the exact advice they need to give the defendant. Developing a working relationship with a crimmigration expert is the best way for defense counsel to meet their obligations.

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Relying on Judicial Admonition If defense counsel does not adequately advise their defendants of the immigration consequences of the charge and plea, there is nothing a judge can say that will cure this error. Padilla advisals are a Sixth Amendment obligation and cannot be cured by a Fifth Amendment admonition from the judge. Failing to Negotiate for an Immigration Neutral Disposition Although there may not be a way to resolve all cases so that they avoid immigration consequences, defense counsel is obligated to at least negotiate with this in mind. Both Padilla and its progeny made clear that negotiation with the prosecution with the goal of creating an immigration neutral plea is required. Once defense counsel understands the priorities of the defendant, there are a variety of ways that defense counsel may be able to offer plea options that satisfy both the prosecution and the defendant. That said, if defense counsel and the prosecution cannot come to an agreement, and the defendant wishes to plead, so long as the defendant is fully informed of the immigration consequences of that plea, all the requirements of Padilla have been met. Padilla does not require defense counsel to go to trial, only that the defendant be given the necessary information to make an informed decision. WHAT HAPPENS AFTER THE PLEA OR TRIAL With the current surge of immigration enforcement, careful pleading is particularly critical, as many defendants will end up before an immigration judge immediately after their criminal case concludes. U.S. Immigration and Customs Enforcement (ICE) detainers, which ask local law enforcement to hold non-citizens until ICE takes custody, are present in the majority of cases for incarcerated undocumented immigrants in Texas. They are also increasingly present for immigrants with lawful status but who have criminal history. Although most defendants will have contact with immigration enforcement, there is a great deal of valuable work for a defense attorney to do. Careful pleading can help lawful immigrants avoid being placed in removal proceedings and can preserve relief for undocumented defendants. Even in cases where removal seems likely, a good plea deal can leave open the opportunity for the defendant to return lawfully in the future.

The first immigration court hearing is called a Master hearing, where the immigration charges are read, and the defendant can request more time to find a lawyer. If the defendant is found removable, but wishes to seek relief, then a Merits hearing is scheduled and the defendant has the chance to put forward applications for specific relief with supporting documents. At the Merits hearing, testimony is given and the judge will either issue a verbal ruling or re-set the case to Page 5 of 23

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Procedurally, after being picked up on an ICE detainer, the non-citizen will go to an ICE office for book-in; ICE will then have the ability to make a custody determination. ICE can set a bond, release the defendant under an Order of Recognizance (or other non-detention alternative), or they can send them to an ICE detention center, asserting either that the defendant is bond ineligible or that the bond decision will be left to the immigration judge. Detained defendants will have court dates usually within a few weeks.

provide a written ruling. There is no right to court-appointed counsel in immigration proceedings, so most immgirants appear pro se. The Florence Project has excellent pro se guides on various forms of relief that are available online: https://firrp.org/resources/prose/. Defense counsel may wish to print some of these resources for their client at the conclusion of the criminal case. If the defendant is granted relief in immigration court and no appeal is taken, they are released. If they are denied relief, ICE will try and arrange removal except in a few limited exceptions where due to diplomatic reasons, ICE cannot effectuate physical removal. The defendant and the government both have a right to appeal, and removal is stayed at the first level of appeal only. ADVISING NON-CITIZENS: A 3-PIECE PUZZLE Part 1: Gathering Information To advise a non-citizen defendant, defense counsel will need to do some information gathering before they can even begin to start legal research. There are three key categories of information defense counsel will need from the defendant: 1. The defendant’s current and prior immigration statuses; 2. The defendant’s prior criminal history; and 3. The defendant’s future immigration goals and options.

Crimmigration

Below is a sample intake sheet that should help counsel obtain the key information they need to do the analysis of possible immigration consequences for a defendant. Once defense counsel knows what status the defendant has, and what relief the defendant may want to seek, then defense counsel can analyze what plea options would protect that status or leave open the possibility of relief. This sheet is also the ideal way to share relevant information with a crimmigration expert who might be consulting on defense counsel’s case.

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EXAMPLE INTAKE FORM (PRINT DOUBLE SIDED WITH NEXT PAGE) o o o o

FILL OUT THE ATTACHED FORM COMPLETELY WITH CLIENT RE-SET CASE IF SEEKING OUTSIDE EXPERT IMMIGRATION ADVICE PRINT OUT THE INFORMATION/INDICTMENT IF YOU ARE WORKING WITH AN OUTSIDE EXPERT: Have your client sign the following statement either in Spanish or English: Formulario de Divulgación para Remisión a Especialista en Inmigración Yo, _______________________________ (nombre del cliente), permito que mi abogado/a solicite la asociación de la _____________ (nombre del experto) en este caso, y entiendo que el privilegio de abogado/a-cliente se extiende para incluir la Especialista en Inmigración, según la Regla de Texas Reglas Disciplinarias de Conducta Profesional 1.01 (A)(1) y la Regla 105. ________________________ Firma del Cliente

______________ Fecha

Disclosure Form for Referral to Immigration Specialist I, _____________________________ (client name), allow my attorney to seek the association of _____________ (name of expert) in this case, and I understand that the attorney-client privilege is extended to include the Immigration Specialist, as per Rule Texas Disciplinary Rules of Professional Conduct 1.01(A)(1) and Rule 105. ________________________ Signature of Client

______________ Date

Crimmigration

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Non-Citizen Defendant Worksheet/Referral Defendant Name: ____________________________________ Referring Attorney: ______________________ DOB: ___________ Language: ______________________ Referral Date: ___________________________ Defendant is: ☐Not in custody ☐In custody Booking #:______________________________ ICE Detainer? ☐Yes ☐No Detainer Copy? ☐Yes ☐No Arresting Officer:________________________ Met with ICE? ☐Yes, on (date) ☐No Reset Date: Immigration Status: Place of Birth/ Citizenship (note if more than 1) :_______________ ☐ LPR – Lawful Permanent Resident (greencard) Since when? _____________________ ☐ Refugee or granted asylum status Since when? _____________________ ☐ Entered without documentation Date of entry __________________ Age on entry _____ ☐ Entered with a visa that expired/expires on______________ ☐ Previously deported? If yes, when? _______________ ☐By ICE ☐Saw Immigration Judge Alien/ A number_________________________ U.S./Family Ties: * Other may be Asylee/Refugee or other valid immigration status SPOUSE: ☐ USC ☐ LPR ☐ Undocumented ☐ Other________ PARTNER: ☐ USC ☐ LPR ☐ Undocumented ☐Other_______ CHILDREN: How many?____ Ages?_______________________ ☐ USC ☐ LPR ☐ Undocumented ☐ Other _________ MOTHER: ☐ USC ☐ LPR ☐ Undocumented ☐Other_______

Contact Info: Name of contact in the U.S.:________________________ Phone:_______________________________________________ Permission to contact? ☐Yes ☐No Current Charge(s): Cause #:__________________________ Court:____________ Offense and level: ____________________________________ Plea offer: __________________________________________ Cause #:__________________________ Court:____________ Offense level: ________________________________________ Plea offer: __________________________________________ Cause #:__________________________ Court:____________ Offense level: ________________________________________ Plea offer: __________________________________________ Complete Criminal History: (ATTACH Information/Indictment, JI55 and include offense, date of conviction and sentence here, even if it appears on FORVUS. Include arrests, Deferred Adjudications, memo agreements or divert programs, juvenile history and any other resolutions) IF NO CRIMINAL HISTORY, INDICATE THAT BY WRITING “NONE”.

FATHER: ☐ USC ☐ LPR ☐ Undocumented ☐ Other_______ # of USC Grandparents? _______ # of USC Siblings? ________ Options for Relief: Currently in H.S.? _____ Diploma? _______ GED? _______

Crimmigration

Did your family or an employer ever file a petition for you? _____ If so, when? _______________ Have you ever filed for any immigration relief in past?________ If so, what type of relief?_______________________________ Were you ever a victim of crime and reported it to the police?_____ (Qualifying crimes: incest, assault, DV, false imprisonment, extortion, obstruction of justice, sex abuse or related crimes) Do you fear return to home country/suffered past persecution?____

Defendant’s Goals re: Immigration Consequences ☐ Avoid conviction that triggers deportation ☐ Preserve eligibility to obtain future immigration benefits (e.g. LPR status or citizenship) or keep lawful status & stay in U.S. ☐ Get out of jail ASAP ☐ Immigration consequences, including deportation, are not a priority ☐ Other goals re immigration consequences:

Were you ever a victim of Domestic Violence or Trafficking?_____

____________________________________________

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Part 2: Determining the Potential Immigration Consequences This analysis is rooted in immigration law and it is best for defense counsel to contact a crimmigration expert to confirm defense counsel’s analysis and conclusions. However, included here is a helpful overview of the major areas of immigration law defense counsel should evaluate if they choose to do this analysis themselves. Inadmissibility vs. Deportability The first inquiry asks if the defendant can be placed in removal proceedings. There are two different standards that are used. Generally, inadmissibility is the standard used to see if undocumented people will be placed in removal, and deportability is the standard used to see if those with valid immigration status (or who entered with valid status) will be placed in removal proceedings. These standards will come up in other places in the immigration code, but they first will be examined at this initial inquiry: will the defendant be placed in removal proceedings? Non-citizens may be found removable from the United States for criminal violations that fall under both the inadmissibility grounds under INA § 212(a)(2) and the deportability grounds under INA § 237(a)(2). Criminal Inadmissibility Grounds [INA § 212(a)(2)] Applies when the non-citizen does not have immigration status (e.g., undocumented), is seeking status, or sometimes when a resident is returning from travel abroad.

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1. The defendant has been convicted of, or admits to having committed: a. a Crime Involving Moral Turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime; i. Exception for a single offense if: 1. person was under the age of 18 when the crime was committed, and the crime was committed more than 5 years before the date of an application (Youthful Offender Exception); OR maximum penalty possible for the crime is 1 year, and the person was not sentenced to a term of imprisonment exceeding 6 months (Petty Offense Exception). b. a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act ) 2. Multiple criminal convictions – person is convicted of 2 or more offenses (other than purely political offenses), for which the aggregate sentences of confinement were 5 years or more. 3. Person is or has been an illicit trafficker of any controlled substance or of any listed chemical, under 21 U.S.C. § 802, or is or has been a known aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking of any such controlled or listed substance, or endeavored to do so; (ii) spouse, son, or daughter of person inadmissible under (i), has, within the previous 5 years, obtained any financial or

other benefit from the illicit activity of the person, and knew or reasonably should have known that the benefit was the product of such illicit activity. Person (i) came to the United States to engage in prostitution, or has engaged in prostitution within 10 years of the date of application, (ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives (or within such 10-year period) received, the proceeds of prostitution, or (iii) is coming to the United States to engage in any other unlawful commercial vice. Committed a serious criminal offense in the United States, as defined by 8 U.S.C. § 1101(h), for whom immunity from criminal jurisdiction was granted, who as a consequence of the offense and exercise of immunity departed from the United States, and who has not subsequently submitted to the jurisdiction of the federal court with jurisdiction over such offense. Person commits or conspires to commit human trafficking offenses in or outside of the United States, or the person is known or believed to be a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons; (ii) known or believed to be the spouse or child of a person in (i), and has, within the past 5 years, obtained any financial or other benefit from the illicit activity, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity. Person believed to have engaged, is engaging, or seeks to enter the United States to engage, in money laundering (as described in 18 U.S.C. § 1956-1957); (ii) known to be a knowing aider, abettor, assister, conspirator, or colluder with others in a money laundering offense.

Criminal Deportability Grounds [INA § 237(a)(2)]

Crimmigration

Applies when the non-citizen has or had some sort of immigration status (e.g., lawful permanent resident). This is what ICE has to prove to try and remove someone with immigration status. 1. Convicted of a Crime Involving Moral Turpitude committed within five years after date of admission (10 years if provided lawful permanent resident status), and a sentence of one year or longer may be imposed. 2. Convicted of two or more Crimes Involving Moral Turpitude after admission. 3. Convicted of an Aggravated Felony at any time after admission. 4. Convicted of high speed flight from an immigration checkpoint (18 U.S.C. § 758). 5. Fails to register as a sex offender (18 U.S.C. § 2250). 6. Convicted after admission of violating any federal or state or foreign law relating to a controlled substance (as defined in section 102 of the Controlled Substances Act) a. Exception: a single offense involving possession of marijuana (up to 30 grams) for personal use. 7. Drug abuser or addict at any time after admission. 8. Convicted under any firearm or destructive device law after admission. 9. At any time has been convicted of, or has been convicted of a conspiracy or attempt to violate, any offense relating to espionage (18 U.S.C. Chapter 37), sabotage (18 Page 10 of 23

U.S.C. Chapter 105), or treason or sedition (18 U.S.C. Chapter 115) for which a term of imprisonment of 5 or more years may be imposed; threats against the President or expedition against friendly nation (18 U.S.C. § 871, 960); Military Selective Service Act (50 U.S.C. § 3801 et seq.); Trading with the Enemy Act (50 U.S.C. § 4301 et seq); travel of citizens and aliens (8 U.S.C. § 1185, 1328). 10. Convicted of domestic violence, stalking, child abuse, child neglect, or child abandonment any time after admission; person found in violation of the terms of a protective order at any time after admission. 11. Person (i) commits or conspires to commit human trafficking offenses in or outside of the United States, or the person is known or believed to be a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons; (ii) known or believed to be the spouse or child of a person in (i), and has, within the past 5 years, obtained any financial or other benefit from the illicit activity, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity. Non-Criminal Inadmissibility and Deportability Grounds It is important to understand that the grounds of inadmissibility and deportability are not limited to criminal conduct. There are many more grounds than can be detailed here that could trigger inadmissibility and deportability, from health-relating grounds to terrorism. But there are two non-criminal grounds that are particularly essential to know. 1. Inadmissibility for being present without inspection - Under INA § 212(a)(6), a person can be placed in removal proceedings for being in the United States without having been lawfully admitted, i.e. for having entered illegally (regardless of how long ago that occurred). This means for many undocumented defendants, defense counsel can advise that the defendant can be placed in removal merely for being here without a valid admission to the U.S. 2. Deportability for being present after the expiration of lawful status - Under INA § 237(a)(1) a person can be placed in removal proceedings if they remain in the U.S. after the expiration of their lawful status (and without any other application for status pending). This means for defendants who came on a visa that has since expired, defense counsel can advise that the defendant could be placed in removal just based on their lack of valid immigration status.

For many defendants, this is where the key advocacy needs to be done. If the defendant already has an ICE detainer and will be placed in removal, defense counsel needs to focus on trying to preserve some future relief for the defendant. Again, this inquiry relates to detailed provisions of the immigration code and warrants contacting a crimmigration expert. Below is some basic information on the most common forms of relief. 1. Family-based immigration Page 11 of 23

Crimmigration

Eligibility for Relief

a. Who can get it? i. Can apply for residence now if they are the spouse, parent of a child over 21, or child under age 21 of a U.S. citizen. ii. Will have to wait to file for residence if they are spouse or child under 21 of a resident, the child over 21 of a citizen or resident, married child of a citizen, or sibling of a citizen. b. What bars this relief? i. If the person is inadmissible 1. Unless subject to the two exceptions (Petty Offense and Youthful Offender) 2. Or unless granted discretionary 212(h) waiver a. 212(h) waives: Crimes of Moral Turpitude; two convictions with aggregate 5 years imposed; Prostitution; First offense of “simple possession of 30 grams or less of marijuana”; unlikely to waive a “violent or dangerous crime.” b. Who can request it? i. Must be spouse, parent, or child of USC or LPR who would suffer extreme hardship; OR ii. Became inadmissible more than 15 years ago and inadmissible only for prostitution; OR iii. Violence Against Women Act -eligible. c. Note that there are other bars to relief regarding prior immigration violations, mental health disorders that pose a risk to people or property, health grounds, etc.

Crimmigration

2. Cancellation of Removal for Non-Residents a. Who can get it? i. Persons with 10 years of continuous presence in the U.S.; ii. Whose U.S. citizen or LPR spouse, child or parent would suffer exceptional and extremely unusual hardship b. What bars this relief? i. Lack of good moral character (under INA §101(f)); ii. Conviction for an inadmissible offense; iii. Conviction for a deportable offense. 3. Cancellation of Removal for Lawful Permanent Residents a. Who can get it? i. Continuous residence of 7 years after being “admitted” in any status, e.g., tourist, student, LPR 1. Note time stops counting at commission of a removable offense listed in 212(a)(2). ii. LPR at least 5 years b. What bars this relief? i. Aggravated Felony conviction; ii. Can only be granted once. 4. Asylum, Withholding and relief under the Convention Against Torture Page 12 of 23

a. Who can get it? i. Those who fear persecution based on their race, religion, political opinion, national origin or membership in a particular social group. b. What bars this relief? i. Asylum: Aggravated Felony ii. Withholding: Particularly Serious Crime (PSC) 5. Adjustment of Status for Asylum recipients (Asylees) and Refugees a. Who can get it? i. People are already Asylees or Refugees who have not yet applied to become residents who have been present for at least one year in Asylee/Refugee status. ii. Asylum or refugee status can be terminated for conviction of an Aggravated felony or PSC – but the asylee or refugee can ask as a defense removal to adjust their status to that of a resident before termination. b. What bars this relief? i. Inadmissibility, but there is a good waiver: 1. INA 209(c) discretionary but technically can waive any ground except “reason to believe” drug trafficker. 2. Adjustment could be denied as a matter of discretion if conviction is for a “dangerous or violent” offense. 6. U/T Visas and VAWA a. Who can get it? i. The U visa is for a victim of crime (assault, incest, DV, sexual abuse, etc.) who has, will, or would cooperate in the investigation or prosecution of the crime. Requires law enforcement certification of helpfulness and victimization. Person gets temporary status and can later apply for permanent status. ii. T is for trafficking victims. Need law enforcement sign off. Person gets temporary status and can later apply for permanent status. iii. VAWA: Married to USC/LPR, abused. b. What bars this relief? i. U and T are subject to inadmissibility but there is a very discretionary waiver of all grounds except terrorism and national security. ii. VAWA must show good moral character but can use the 212(h) waiver.

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Crimmigration

7. Deferred Action for Childhood Arrivals (DACA) a. Who can get it? i. As of February 2018 only renewals permitted, no new filings. b. What bars this relief? i. Any felony; ii. A “significant misdemeanor:” 1. DWI, domestic violence, Sex abuse, Burglary, Unlawful firearm, Drug sales; iii. More than 2 misdemeanors (unless same scheme of misconduct);

iv. A misdemeanor with sentence of 90 days or more. 8. Temporary Protected Status (TPS) a. What bars relief? i. Inadmissible offenses. ii. Two misdemeanors 1. Class C should not trigger. iii. One felony

Crimmigration

9. Maintaining Current non-immigrant visa status a. Student Visas and Tourist Visas i. What bars relief? 1. Deportable offense; 2. Inadmissible offense that would have barred them from getting visa in the first place. 10. Voluntary Departure a. Who can get it? i. Any person in removal who does not wish to fight their case, but also does not want the additional penalty of a deportation on their record. ii. What bars relief? 1. Pre-hearing Voluntary (i.e. asking before they seek any other relief) a. Aggravated Felony. 2. Post-hearing Voluntary (i.e. they sought other relief and lost) a. Lack of good moral character in past five years; b. Aggravated Felony. 11. Naturalization a. Who can apply? i. 5 years of LPR status (3 in special circumstances); ii. Special Rules for Veterans/Active Duty Military. b. What are the bars? i. Lack of Good Moral Character for five years before filing. ii. Barred for five years if convicted of a: 1. CIMT (unless Petty Offense Exception); 2. 2 + offenses with aggregate 5 years’ incarceration; 3. 2 gambling offenses; 4. Actual confinement to jail for aggregate of 180 days. iii. Conviction of an Aggravated Felony after November 29, 1990 is a permanent bar. c. Danger: If a deportable LPR applies for naturalization, likely to be placed in removal proceedings.

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12. Preserving Ability to Travel a. LPRs returning from abroad after having certain criminal convictions will be evaluated under the grounds of inadmissibility and could be barred from re-entry if they are convicted of (or admit at the border): i. A CIMT that is not subject to Petty Offense; ii. A drug offense (there is no exception for 30 grams of marijuana); iii. Any offenses with an aggregate of 5 years in jail; or iv. Prostitution (generally a pattern). Mandatory Detention Mandatory Detention references when a person is statutorily not able to bond out of ICE custody. A person is subject to mandatory detention if they are inadmissible or deportable for certain offenses. Statute: INA §236(c) Inadmissible Crime involving Moral Turpitude (CIMT) if no exception Controlled Substance Violations Multiple convictions with aggregate sentence of 5 years Reason to believe a drug or human trafficking Prostitution

Deportable Two CIMTs CIMT with a sentence of a year or more Controlled Substance (except less than 30 grams of marijuana) Firearms Aggravated Felony

Part 3: Analyzing Texas Statutes Now that defense counsel knows which immigration grounds are relevant, they can turn to the Texas statute at issue and begin the legal analysis to see if the Texas criminal statute at issue will trigger the immigration grounds specific to the defendant. A Primer on Researching the Texas Statutes In order to research the Texas statute in the context of the immigration grounds, it is helpful to understand some of the sources of law at issue. Below is a basic primer on how to complete the legal research to see if a Texas criminal statute triggers a specific immigration outcome.

Case Law & Appeals Process All immigration cases begin in one of two places: If the person is not being deported, but is simply seeking an immigration benefit, it is an affirmative case and will be adjudicated by USCIS or the U.S. Consulate abroad (none of these cases are available online). Page 15 of 23

Crimmigration

Immigration Law Background & Issues

1. Affirmative cases are appealed first to Administrative Appeals Office (AAO). 2. Find these cases under the Administrative Tab in Lexis/Westlaw. 3. Generally, AAO cases are never “published” but can be used as persuasive authority. If the person is in removal proceedings, they will be seeking relief defensively in the Immigration Court (none of these cases are available online). 1. Defensive cases from the Immigration court are appealed to the Board of Immigration Appeals (BIA). 2. Find these cases under the Administrative Tab in Lexis/Westlaw. 3. Only some BIA cases are “published.” After the first level of appeals, all cases can be appealed to the Fifth Circuit and then to the Supreme Court. These decisions will be under the Cases Tab in Lexis/Westlaw. Sources of Law Supreme Court and Fifth Circuit Case Law: • •

Crimmigration

•

Immigration Cases: As noted above, affirmative and defensive cases that go beyond the initial level of appeal will go to the Circuit Court and then to the Supreme Court. Sentencing Cases: Defense counsel can understand some immigration consequences by looking at Federal Sentencing Cases. a. The categorical approach (discussed below) is used in both the immigration context and the sentencing context; thus, much of the case law involving certain sections of the Texas Penal Code will apply in the same manner, whether the case is in immigration or sentencing context. b. Caveat re: Federal Sentencing Cases: Sentencing cases are good if the analysis relates to the Aggravated Felony ground (or helps us understand a generic definition), but be careful, as the term Crime of Violence used in sentencing cases has a slightly different definition than the Aggravated Felony grounds. Federal District Court: Defense counsel will see a few district court cases dealing with immigration. They are usually Habeas cases and a few specific immigration matters, like declaration of citizenship.

Administrative Case Law: • •

Administrative appeals found in AAO (non-deportation cases). Board of Immigration appeals found in BIA (deportation cases).

Texas State Court Cases:

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• •

Padilla claim cases: Defense counsel can see the court reference the consequence of a particular statute as the Court analyzes if the attorney did or did not properly advise the defendant about these consequences. State court cases are the best way to understand what the elements of a state statute are versus what the means are in the statute. Also state court cases help defense counsel prove what conduct has a realistic probability of being prosecuted in Texas.

THE CATEGORICAL APPROACH The categorical approach refers to the analysis utilized to determine if a state offense triggers an immigration result. Under the categorical approach, the court compares the exact state statute of conviction against the generic or federal definition referenced in the immigration code. If they match, the state offense triggers the immigration result. When comparing the statutes, the court must look at the statute of conviction – NOT the underlying conduct that led to the offense. In other words, the court is looking at the minimum conduct required to trigger conviction under the state statute, not the actual conduct of the defendant. There is one exception: the court may only look at the defendant’s actual charging document if the statute is “divisible,” and only to see which sub-section the defendant was convicted under. How to conduct the categorical approach: a. Identify the generic or federal definition that appears in the removal ground or bar to relief; b. Identify the minimum conduct required to violate the state statute; c. Compare them to see if there is a match, or if there is any way the defendant could violate the state statute that would not violate the federal definition; d. If there is a match, or all the conduct under the state status would be punishable under the federal definition, then it is a match that triggers the immigration result. e. If there is not a match, it does not trigger the immigration result. What if the statute defines multiple offenses?

How to distinguish Elements vs. Means For it to be an element, there must be jury unanimity between the alternatives to find a defendant guilty, and the prosecutor must prove each of those elements beyond a reasonable doubt. Different levels of punishment are a clear indicator of separate offenses, as opposed to separate means. Page 17 of 23

Crimmigration

Determine if the state statutes actually defines multiple offenses, or if they are just means. A statute is only “divisible” if alternative crimes exist within the same statute. This means that existing within one statute are offenses with different elements, not just various means, and at least one of the offenses created by these alternatives is a categorical match to (or comes within) the generic/federal definition.

If they are separate offenses (i.e., offenses with different elements), do the above analysis based on the subsection at issue in the defendant’s case. Defense counsel can tell the subsection at issue by looking at the record of conviction. If they are means, compare the least culpable conduct under the whole statute to the federal definition. Realistic Probability of Prosecution Finally, it is important for defense counsel to check that the minimum conduct under the state offense they are using as a point of comparison has a realistic probability of actually being charged or pled to in Texas. Meaning defense counsel may need to show that this theory of violating the statute was actually prosecuted in the past. This can be shown with an indictment or judicial confession from another case, the defendants own case or from the case law. For a more detailed explanation of the Categorical Approach, please refer to the excellent guide from the Immigrant Legal Resource Center, available at: https://www.ilrc.org/resources/howuse-categorical-approach-now-2021 ADVISE THE DEFENDANT Once defense counsel has collected the information from the client, determined the key immigration consequences, and researched if the criminal charge triggers those consequences, it is time to discuss options with the defendant. CONSULTATION WITH AN IMMIGRATION ATTORNEY/CRIMMIGRATION EXPERT Given the complexity of the immigration consequences analysis, it is always best practice to speak with an attorney who has expertise in this area. This area of the law is very complex and there is no substitute to having a trained attorney look at the facts of the case. NEGOTIATING WITH THE PROSECUTOR

Crimmigration

Once defense counsel has spoken to the defendant about the risks associated with their charge and their client’s ultimate immigration goals, defense counsel has the information needed to negotiate with the prosecutor. Getting the Prosecutor to Consider Immigration Consequences Often prosecutors do not understand their role in the system set up in the Padilla decision. If the prosecutor is resistant to discussing the immigration consequences of the charges, here are a few good arguments for defense counsel to make: It is part of the system Padilla lays out Page 18 of 23

Many prosecutors are unaware that the Padilla decision also addresses the role of the state. In Padilla, the Court encouraged both the defense and the prosecution to consider immigration consequences in the plea bargaining process in order to “reach agreements that better satisfy the interests of both parties” and “to plea bargain creatively . . . in order to craft a conviction and sentence that reduce the likelihood of deportation.” See Padilla at 373. This makes sense, as the entire system outlined in Padilla would not function if the state were unable to consider immigration consequences. Often prosecutors will say they have no responsibility when it comes to the immigration consequences because that is a separate proceeding, but remember that if immigration consequences are within the ambit of the Sixth Amendment for defense counsel, they clearly flow directly from the actions of the prosecutor, as well. The Padilla decision itself has several great quotes about the role of the prosecutor that may be worthwhile to print out. Proportionality Additionally, as the Padilla Court noted, considering immigration consequences is an essential way to achieve proportional punishments. Banishment is among the harshest punishments imaginable thus considering the immigration consequences that are triggered by the criminal charge is integral to the prosecutor’s duty to promote proportionate punishments. Knowing the immigration consequence flows directly from the state criminal charge means the prosecutor should be tailoring a punishment appropriate to the offense. Avoiding double punishment When a prosecutor tells defense counsel that they can’t offer a better deal to a non-citizen then they would to a citizen, it is helpful to reframe the issue for the prosecutor. Considering immigration consequences is not asking for a better deal, but rather trying to avoid a double and more serious punishment for the non-citizen. Remind the prosecutor that they will defend the writ

Serving the community at large As part of the prosecutor’s duties to serve the public, it can be helpful to remind them of the impact on the community if the defendant is removed. Defense counsel can explain how losing the sole breadwinner of a family or removing the emotional support to a traumatized child has

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Crimmigration

If there is any issue with the initial plea, the defendant may well file a writ, and the prosecutor is the person in Texas who will be tasked with defending the conviction. It is helpful to remind the prosecutor that it is better to get the plea done right the first time. Additionally, Prosecutors are charged with serving the public and are expected to “respect the constitutional and legal rights of . . . defendants.” (Standards for Criminal Justice: Prosecution Function Standard 3-1.2 (Am. Bar Ass’n, 4th ed. 2015). Considering immigration consequences is an excellent way to promote the integrity of convictions and also to protect the defendant’s constitutional rights.

large community impacts. There are many ways to help the prosecutor see that their charter to serve the public is met by considering the immigration consequences. Give them something in writing for their file While making these points verbally to a prosecutor is helpful, it can help to also have something in writing. Since often a prosecutor’s decision is reviewed by other attorneys in their office, giving them a written document about why they should consider these issues may help them feel more comfortable working out a creative plea. Not asking for a dismissal Finally, it is important that the prosecutor understand that considering immigration consequences during plea bargaining does not necessarily mean a dismissal. In some instances, during the plea bargaining phase, a noncitizen defendant may need to take more jail time or plead to a potentially more serious offense if it is better for immigration purposes. Creative Pleading with the Prosecutor The Court in Padilla repeatedly references creative pleading, but does not give a roadmap on how to do that. Creative pleading requires digging back into the initial research defense counsel did about what immigration consequences are at issue. Then counsel figures out if there is a plea option that does not trigger those consequences, but would give the prosecutor some sort of punishment that they seek. Below are a few potential ideas for creative pleading, although there are many more options than those outlined below. Suggest pre-plea diversion if possible

Crimmigration

Pre-plea diversion programs are probably the best bright line solution for creative pleading so long as the program does not require an admission to the alleged conduct. These programs allow prosecutors to address the root cause of the crime, such as substance use and mental health issues, thus promoting public safety while also minimizing immigration consequences for noncitizens. It is important to review the contract for these programs as any program that requires a plea or admission would not benefit the non-citizen as it would be considered a conviction. Even if there is no formal pre-plea program available, there may be a way to create a similar informal program where the defendant agrees to do classes, community service, voluntary testing in exchange for a dismissal or a plea to an offense that does not trigger immigration consequences. Even defendants in custody may be able to attend classes in the jail in exchange for a dismissal or reduction. Pleading to different subsections or creating an ambiguous record Sometimes it is the particular subsection of the offense that is risky for a defendant and defense counsel can suggest doing a judicial confession to another subsection to protect immigration Page 20 of 23

relief. In some cases, particularly if the defendant is a lawful permanent resident and it is the government’s burden to prove deportability, creating an ambiguous record could preserve the defendant’s immigration status or relief. Pleading to a particular offense, sometimes with a larger punishment in exchange for dismissal of other charges If a defendant is charged with multiple offenses, sometimes it could be advantageous to agree to a longer a sentence on the charge that does not trigger immigration consequences in exchange for a reduction or dismissal on the charges that do have immigration consequences. This is why if defense counsel is only appointed on one of several pending charges, it is not a good practice to resolve that charge alone, since negotiating the charges as a group is likely advantageous. TALKING TO THE JUDGE The judge also has a unique role to play under Padilla. Because the judge has a Fifth Amendment duty to assure the defendant enters a knowing and voluntary plea, the judge has an express interest in making sure Padilla is complied with. Additionally, the judge is in a unique position to help ensure the defendant’s constitutional rights under Padilla are protected. Grant Continuances Defense counsel should not hesitate to ask a judge for a continuance if it is to get qualified immigration advice. If the judge pushes back, this is the moment for defense counsel to remind the judge of their duty to protect the defendant’s rights and to enter a knowing and voluntary plea, which can only be done once the defendant is properly informed. Encourage Collaboration Additionally, in the interest in judicial economy, it is advantageous to have the prosecutor and defense work out a plea that does not cause severe immigration consequences, as the case will be less likely to come back on writ. Thus, judges should encourage the collaboration between the prosecutor and defense, with immigration consequences in mind. Not Overstep on Admonition

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Crimmigration

While judges in Texas have a duty to admonish the defendant on the record under the Texas Criminal Procedures Code that a plea could result in negative immigration consequences, it does not give the judge carte blanche to solicit prejudicial immigration information on the record, nor to offer specific legal advice to a defendant. The admonition is basically a way for the judge to ensure the plea is knowing and voluntary, but it is not an opportunity for the judge to give legal advice to the defendant. Additionally, because state court records are public, defense counsel should urge the judge not to solicit detailed immigration information on the record. Defense counsel can tell the judge the defendant has been advised, particularly if it was in writing, without putting that advice or any information about the defendant’s immigration status into the record.

Allocate Funds for Hiring an Crimmigration Expert for Consultation Finally, defense counsel should absolutely push the judge to provide funds to pay for an immigration consultation for indigent defendants. Just as the judge would allocate funding for an investigator or other expert, there is no reason defense counsel should not push for similar funding allocations to meet the requirements of Padilla. Glossary

Crimmigration

Important Note: This glossary exists because there are a variety of terms used in this guide that are unique to the immigration context or mean something entirely different from what the same term(s) mean when used in other legal contexts. 212(h) Waiver: A discretionary waiver of certain inadmissibility grounds. Affirmative Case: When a non-citizen files for immigration relief (ie such as status through a spouse) but is not in removal proceedings. Aggravated Felony: A category of criminal offenses with serious immigration consequences, although these offenses may not even be felonies under the state criminal code. Asylee: A person who has been granted Asylum. Asylum: Humanitarian relief granted in the U.S. to persons fleeing specific types of persecution. Categorical Approach: The method for determining if a state conviction triggers an immigration result. Charging Document: The document filed by the prosecutor with the state court to allege a criminal offense. Controlled Substance Offense: An offense relating to a substance on the Federal list of Controlled Substances. Convictions: Generally in the immigration context, a conviction is any adjudication or admission of guilt with some form of punishment. Crime Involving Moral Turpitude (CIMT): A category of criminal offenses with immigration consequences but no statutory definition in the immigration code. Crime of Domestic Violence, Stalking and Child Abuse: A category of criminal offenses that trigger deportability. Crimmigration Expert: Attorney who specializes in the intersection of immigration law and criminal law. Many Texas counties have such a person working at the public defender or for the managed assigned counsel system, if not myPadilla.com is an excellent resource. Defensive Case: A case heard in immigration court where the non-citizen is defending themselves against the government’s attempt to have them deported. Deferred Action for Childhood Arrivals (DACA): Special temporary relief granted during the Obama administration for non-citizens brought to the U.S. as children who meet certain requirements; the program is currently under litigation. Deportability: Generally the standard used to decide if a person who has or had valid status can be placed in removal proceedings. Divisible: A term to describe if a criminal offense encompasses a variety of separate offenses. Elements: What a jury must find beyond a reasonable doubt to convict some one of a particular offense. Page 22 of 23

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Crimmigration

Firearms Offense: Any offense in which a firearm is an element of the offense; this is a ground of deportability. ICE Detainer: A request from ICE to local law enforcement to hold a non-citizen for up to 48 hours after the termination of the criminal case (or posting bond) so that ICE can come retrieve the person. Inadmissibility: Generally, the standard used to decide if a person can qualify for many forms of immigration relief, the standard to decide if an undocumented person can be placed in removal proceedings and the standard that certain returning residents are subjected to after travel abroad. LPR: Lawful Permanent Resident or a “green-card” holder, this is not the same as being a U.S. citizen. Mandatory Detention: A group of offenses that require non-citizens to be detained by ICE during the pendency of their removal proceedings. Master Hearing: Preliminary immigration court hearing where the government alleges why the non-citizen can be removed and where the non-citizen responds to the allegations and states their options for relief. Means: A term to describe the various ways a single offense may be violated but which do not need to be found beyond a reasonable doubt by the jury. Merits Hearing: The final immigration court hearing; basically a trial on immigration relief. Naturalization: The process by which a Lawful Permanent Resident applies to become a U.S. citizen. Particularly Serious Crime: A category of crimes that bar Withholding of Removal. Prostitution: A specific ground of inadmissibility in the immigration code. Refugee: A status a person is granted abroad based on specific types of persecution. Sentence: In the immigration context, any period of confinement contemplated by the court even if suspended. Student Visa: A non-immigrant visa granted to a student for a specific period of time/course of study that can be terminated based on criminal violations. Temporary Protected Status (TPS): A temporary status granted to non-citizens from certain designated countries (usually based on natural disaster), which is renewed annually until the designation for that country is terminated (or until the TPS holder no longer meets the qualifications). Tourist Visa: Also known as a B-2 visa, although often granted for 10 years, the visa holder is only permitted to enter the U.S. for a specific period of time on each visit indicated by Border Patrol, usually six months. T Visa: A visa for victims of trafficking who cooperate with law enforcement. U Visa: A visa for victims of a series of enumerated crimes who cooperate with law enforcement. Voluntary Departure: Immigration relief granted by ICE or the Immigration judge to a noncitizen in removal where the non-citizen agrees to depart the U.S. voluntarily and thus avoid the additional penalties associated with a formal deportation order. Withholding of Removal: A form of relief which is similar to Asylum but with slightly different requirements.

Cross Exam

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Cross Exam

Speaker:

Michael Gross

Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, TX 78215 210.354.1919 phone 210.354.1920 fax lawofcmg@gmail.com email https://www.txmilitarylaw.com/ website

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

MICHAEL C. GROSS Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 www.txmilitarylaw.com Lawofcmg@gmail.com (210) 354-1919

TCDLA Rusty Duncan San Antonio, Texas June 13-15, 2024

Cross Exam

CROSS EXAM

Cross Exam

GROSS & ESPARZA, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 lawofcmg@gmail.com www.txmilitarylaw.com (210) 354-1919 MICHAEL C. GROSS CURRICULUM VITAE EDUCATION B.A., Trinity University, San Antonio, Texas, 1984 J.D., St. Mary’s University, San Antonio, Texas, 1987 PROFESSIONAL ACTIVITIES AND RECOGNITIONS Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012 Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995 Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011 President, Texas Criminal Defense Lawyers Association, 2011-2012 President, San Antonio Criminal Defense Lawyers Association, 2011-2012 Board of Disciplinary Appeals, Vice Chair 2021-present, Member 2018-present Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009 Named in Best Lawyers in America, 2005 - 2024 Named Best Lawyers San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017, 2024 Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2024 Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014 Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble COURT ADMISSIONS Supreme Court of the United States, 1991 Supreme Court of the State of Texas, 1987 United States Court of Appeals for the Armed Forces, 1990 United States Court of Appeals for the Fifth Circuit, 1990 United States Court of Appeals for the Tenth Circuit, 1998 United States District Court for the Northern District of Texas, 1990 United States District Court for the Southern District of Texas, 1991 United States District Court for the Eastern District of Texas, 1991 United States District Court for the Western District of Texas, 1992

Investigation and Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Courthouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. Criminal record check. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Divorce records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3. Civil suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4. Property records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5. Assumed name records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6. Marriage license records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7. Voter registration records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8. Witness list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Internet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. Lexis/Westlaw. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Google/Yahoo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3. Publicdata.com . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4. Social media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5. Bcad.org . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6. Tdcj.state.tx.us . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7. Mysanantonio.com . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C. Subpoenas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. Jail records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. School records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3. TDC records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4. Phone records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5. Apartment records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6. Probation officer files . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7. Work records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8. Crime lab/ME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 9. Counseling records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 D. Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 E. Interviews/contacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

Cross-Examination and the Rules of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. The proper mindset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 B. General rules for cross-examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1. Do you need to cross-examine the witness . . . . . . . . . . . . . . . . . . . . . . 2 2. Watch the witness during direct examination. . . . . . . . . . . . . . . . . . . . 3 3. Be courteous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. Be professional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5. Speak succinctly and plainly. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 C. Do the rules of evidence apply, and how do they apply . . . . . . . . . . . . . . . . . . 3 1. TRE 101(d) - Hierarchy of the rules . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. TRE 101(e) - When the rules do not apply . . . . . . . . . . . . . . . . . . . . . . 3 3. TRE 104(a) - Preliminary questions . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4. TRE 611 - Mode and order of examining witnesses. . . . . . . . . . . . . . . 3 5. TRE 705 - Disclosing underlying facts/data and examining expert . . . 4 6. TRE 612 - Writing used to refresh a witness’ memory . . . . . . . . . . . . 4 7. TRE 803(5) - Recorded recollection. . . . . . . . . . . . . . . . . . . . . . . . . . . 5 8. TRE 615 - Producing a witness’ statement in criminal cases. . . . . . . . 5 9. TRE 607 - Who may impeach a witness. . . . . . . . . . . . . . . . . . . . . . . . 5 10. TRE 608(b) - Truthfulness witness impeached w/specific instances . . 6 iii

Cross Exam

TABLE OF CONTENTS

Cross Exam

11. 12. 13.

TRE 609 - Impeachment by evidence of a criminal conviction . . . . . . 7 TRE 613 - Witness’ prior statement and bias or interest . . . . . . . . . . . 7 TRE 412 - Evidence of previous sexual conduct in criminal cases . . . 9

APPENDIX Writing used by a witness to refresh memory under TRE 612 Impeachment with a prior inconsistent statement under TRE 613(a) Impeachment with bias or interest under TRE 613(b) Recorded recollection under TRE 803(5) Correct false impression and witness’s credibility and collateral matter Asking witness if another witness was lying during testimony Cross-examination of a snitch

INVESTIGATION PREPARATION

Courthouse

global search:

AND

1. Lexis/Westlaw - run the name of the witness to see if caselaw has covered that witness before (Dr. Death, police, etc.).

The courthouse is a good source and good starting point for background information on witnesses:

2. Google/Yahoo - run the name to see what internet sources have talked about the witness.

1. Criminal record check pending cases, past cases, violations of probation, pretrial bond information (prior addresses, financial information, character references, bond forfeitures), previous attorneys, complainants, co-defendant’s stipulations (police reports, lab reports).

3. publicdata.com - driver’s license, criminal history, VIN’s, license plates. 4. twitter, etc.

2. Divorce records - identity of former spouse, grounds for divorce, financial information, prior addresses, allegations of abuse, drug use, child abuse, failure to pay child support, previous attorneys.

5. bcad.org - land values, owners, addresses, layout of properties. 6. tdcj.state.tx.us - prior incarcerations and TDC numbers for current and former inmates.

3. Civil suits - previous and pending suits against people, previous and pending suits against the witness, financial information, prior places of employment, fraudulent suits.

7. mysananton i o.com archives research for Express News articles naming the witness (these articles are at the San Antonio Public Library on microfilm rolls).

4. Property records - homes bought or sold, identity of people who have conducted financial transactions with the witness, loan application information, mortgage companies, previous attorneys.

Subponeas

Send a business records affidavit to comply with Texas Rule of Evidence 902(10) at the same time you obtain the documents. Obtain instanter subpoenas for those documents with which you need to impeach the witness or support the witness. If you encounter entities that balk at timely producing the documents, suggest that early production of the documents is much more convenient that sitting on the benches in the courthouse hallways waiting to testify as the custodian. Most entities have no problem timely producing documents once they have a subpoena:

5. Assumed name records names of business associates, businesses owned by the witness, previous attorneys. 6. Marriage license records current and former spouses and addresses. 7. Voter registration - current address and date of birth. 8. Witness list - the criminal district clerk will print this for you. B.

Social media - facebook,

1. Jail records - disciplinary, classification review, visitation, medical, criminal history, and booking information/ photo.

Internet

After conducting the initial background search, go online for a more 1

Cross Exam

officers, teachers, managers, family, and other witnesses.

2. School records - special education, regular education, testing, counseling, attendance, and disciplinary.

If you cannot afford an investigator or a notary, have friendly witnesses fill out a voluntary statement in their own handwriting.

3. TDC records - disciplinary, investigative, incident reports, admission summary, social and criminal history, IQ, medical, classification, pen packets. 4. Phone records - history of cell phone and other telephone calls, addresses, and billing information.

6. Probation officer files conditions probation, violations probation, references, phone numbers, dates birth, prior convictions, truthfulness of witness. 7. Work records - references, prior work history, work application, disciplinary history resumes, CV’s. 8.

Crime lab/ME - notes and

9. Counseling records psychiatric records, counseling records. D.

Discovery

File a Michael Morton Act request for a list of the state’s lay and expert witnesses. File a motion for discovery to obtain plea agreements, contracts, payment records for snitches, letters of immunity, criminal history, lab reports, lab notes, lab testing, ME records. Do not rely on the DA file for the above information since the file is not always complete.

The proper mindset

B. General examination

Printed public information parts of the police report are available at the PD for a fee. E.

CROSS-EXAMINATION AND THE RULES OF EVIDENCE

“Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent . . . But defense counsel has no comparable obligation to ascertain or present the truth . . . If [defense counsel] can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth . . . more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.” United States v. Wade, 388 U.S. 218, 256-258, 87 S.Ct. 1926, 1947-1948, 18 L.Ed.2d 1149 (1967) (White, J., dissenting in part and concurring in part).

5. Apartment records - rental agreements, credit checks, references.

tests.

II.

rules

for

cross-

The following rules are taken from Francis L. Wellman’s The Art of CrossExamination (Macmillan Publishing Co., 4th Ed., 1962).

Interviews/contacts

Neighbors, co-workers, former coworkers, employers, former employers, former spouses or significant others, officers, estranged children, probation

1. The first inquiries are: Has the witness testified to anything that is material against us? Has his testimony 2

2. TRE 101(e)(1) states that these rules do not apply to the determination of questions of fact preliminary to admissibility of evidence under Rule 104.

2. A skillful cross-examiner seldom takes his eye from an important witness while he is being examined by his adversary since this helps estimate his integrity.

The rules of evidence do not apply to suppression hearings. Granados v. State, 85 S.W.3d 217, 227-230 (Tex. Crim. App. 2002).

3. Be courteous and conciliatory toward the witness since the sympathies of the jury are invariably on the side of the witness, and they are quick to resent any discourtesy toward the witness.

3. Rule 104(a) states that preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

4. The counsel who has a pleasant personality; who speaks with apparent frankness; who appears to be an earnest searcher after truth; who is courteous to those who testify against him; who avoids delaying constantly the progress of the trial by innumerable objections and exceptions to perhaps incompetent but harmless evidence; who seems to know what he is about and sits down when he has accomplished it, exhibiting a spirit of fair play on all occasions – he it is who creates an atmosphere in favor of the side which he represents, a powerful though subconscious influence with the jury in arriving at their verdict. Even if, owing to the weight of testimony, the verdict is against him, yet the amount will be far less than the client has schooled himself to expect.

If the state intends to offer a coconspirator’s statement against your client, the trial judge must first determine pursuant to Rule 104, the existence of a conspiracy, its pendency, whether our client was a member, and whether the statement was made in furtherance of the conspiracy. Casillas v. State, 733 S.W.2d 158, 166-168 (Tex. Crim. App. 1986). The trial judge also decides, for instance, whether an expert is qualified to testify under Rule 702 and whether experts in a field reasonably rely on particular data under Rule 703. Gregory v. State, 56 S.W.3d 164, 178 (Tex. App. Houston [14th Dist.] 2001, pet. granted); St. Paul Medical Center v. Cecil, 842 S.W.2d 808, 815 (Tex. App. - Dallas 1992, no writ).

5. Speak distinctly yourself, and compel your witness to do so. Bring out your points so clearly that people of the most ordinary intelligence can understand them.

4. TRE 611 states that the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. A witness may be crossexamined on any matter relevant to any issue in the case, including credibility. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony

C. Do the rules of evidence apply, and how do they apply? 1. TRE 101(d) states that, despite the rules of evidence, a court must admit or exclude evidence if required to do so by the United States or Texas Constitution, a federal or Texas statute, or a rule prescribed by the United States or Texas Supreme Court or Court of Criminal Appeals. Where possible, inconsistency is 3

Cross Exam

to be removed by reasonable construction.

injured our side of the case? Is it necessary for us to cross-examine him at all?

Cross Exam

1995). Counsel may voir dire the expert as to the validity of the theory. Chisum v. State, 988 S.W.2d 244, 248-250 (Tex. App. - Texarkana 1998, pet. ref’d). Counsel may then challenge the reliability of the expert’s opinion and cross-examine the expert in front of the jury without undue fear of i nadvertently eliciting damagi n g information. Alba v. State, 905 S.W.2d 581, 588 (Tex. Crim. App. 1995); Goss v. State, supra.

of the witness. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. A trial judge acts properly in admonishing counsel to avoid being repetitious. Hoang v. State, 997 S.W.2d 678, 681-682 (Tex. App. - Texarkana 1999, no pet.). A trial judge acts properly in refusing to allow a witness to testify in a narrative form. Schermbeck v. State, 690 S.W.2d 315, 317 (Tex. App. - Dallas 1985, no pet.). Questions which assume facts not in evidence are improper. Turcola v. State, 643 S.W.2d 164, 167 (Tex. App. - Dallas 1982, no pet.). Questions which ask a witness to speculate are impermissible. Id.

6. TRE 612 states that if a witness uses a writing to refresh memory for the purpose of testifying either while testifying or before testifying, in criminal cases; an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

The scope of your cross-examination should not be curtailed by the trial judge. Refusing to allow counsel, for instance, to cross-examine the state’s witness about a pending charge against the witness to establish bias violates a defendant’s constitutional rights. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). In Texas, the scope of cross-examination is wide open. Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992).

TRE 612 allows a witness to use a writing while testifying to refresh the witness’ memory. If the witness states that she does not remember a certain matter, counsel may show the witness a writing and allow the witness to read it to herself. Callahan v. State, 937 S.W.2d 553, 560 (Tex. App. - Texarkana 1996, no pet.). Counsel must establish that the witness is having difficulty recalling an event before showing the witness a document to refresh recollection. Id. (Emphasis added). If the witness then states her memory has been jogged and the witness now recalls the matter independent of the writing, the witness may testify to that independent recollection. Welch v. State, 576 S.W.2d 638, 641 (Tex. Crim. App. 1979); Callahan v. State, supra. If the witness still cannot recall the matter, however, she cannot testify unless counsel lays the proper predicate for admitting the contents of the writing under Rule 803(5) for past recollection recorded. Id. A trial judge should confirm whether the witness is testifying upon a record or upon his own recollection. Unites States v. Riccardi, 174 F.2d 883, 889 (3rd Cir. 1949). Circumstances may convince the trial judge that a witness’ claim of revived recollection is implausible. Wilhoit v. State, 638 S.W.2d

5. TRE 705(b) states that prior to the expert giving the expert’s opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury. Defense counsel is undeniably entitled to voir dire experts pursuant to this rule and denial of a timely motion to voir dire the expert is error. Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992). This voir dire concerns the underlying facts or data of the expert’s opinion and not the qualifications of the expert. Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 4

7. TRE 803(5) states that one exception to the hearsay rule is a record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.

Once a witness testifies for the state, the defense is entitled to inspect any previous written statements made by that witness. Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1961). This is the Gaskin rule. Rule 615 expanded the Gaskin rule to include some statements that have not been reduced to writing such as an audio taped interview. Jordan v. State, 897 S.W.2d 909, 914 (Tex. App. - Fort Worth 1995, no pet.). Another rule, the “use before the jury” rule, allows counsel to obtain a writing used to refresh the witness’ memory at trial, or a writing used or exhibited or read from at trial regardless of who wrote the document. Bailey v. State, 365 S.W.2d 170 (Tex. Crim. App. 1963). Rule 615 allows a trial judge to order disclosure only of those statements in the possession of the party calling the witness. Marquez v. State, 757 S.W.2d 101, 103 (Tex. App. - San Antonio 1988, pet. ref’d).

TRE 803(5) requires that the writing was made or adopted by the witness when the matter was fresh in her memory. Welch v. State, supra. The evidence must establish that the witness had personal knowledge or that the writing was accurate when made. Johnson v. State, 967 S.W.2d 410, 415-417 (Tex. Crim. App. 1998). Remember that Rule 803(8)(A)(ii) excludes police reports from the hearsay exception. The purpose of defense counsel inspecting the writing used to refresh recollection is to cross-examine the witness and test whether his memory really has been revived and highlight inconsistencies between the writing and the witness’ testimony. Powell v. State, 5 S.W.3d 369, 381-382 (Tex. App. - Texarkana 1999, pet. ref’d). The purpose of admitting a writing under Rule 612 is not for the truth of the matter asserted, but for testing the credibility of the witness. Robertson v. State, 871 S.W.2d 701, 709 (Tex. Crim. App. 1993).

9. TRE 607 states that the credibility of a witness may be attacked by any party, including the party calling the witness. Impeachment of a witness means adducing proof that such witness is unworthy of belief or credit. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995). Impeachment is aimed at attacking the credibility of a witness. Adams v. State, 862 S.W.2d 139, 147 (Tex. App. - San Antonio 1993, pet. ref’d). The defense has the right to cross-examine a state witness and to impeach that witness with evidence that might reflect bias, interest, prejudice, prior inconsistent statements, character traits affecting credibility, lack of capacity, and contradiction. Roberts v. State, 963 S.W.2d 894, 900 (Tex. App. - Texarkana 1998, no pet.).

8. TRE 615 states that in criminal cases after a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant’s attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified. 5

Cross Exam

If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party.

489, 496-497 (Tex. Crim. App. 1982); Guerra v. State, 676 S.W.2d 181 (Tex. App. - Corpus Christi 1984, pet. ref’d).

Cross Exam

Exposing a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Davis v. Alaska, 415 U.S. 308, 316-317, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). A defendant has the right to test the witness’ recollection, to probe into the details of his alibi, or to sift his conscience so that the jury might judge for itself whether the witness is worthy of belief. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045-1046, 35 L.Ed.2d 297 (1973). Impeachment evidence is inadmissible if it is inadmissible hearsay. Tucker v. State, 771 S.W.2d 523, 531-532 (Tex. Crim. App. 1988). Defense may cross-examine witness about pending felony charge and possible punishment. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). Defense may cross-examine witness about witness’ mental illness around time of event in question and time of trial. Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1987). Defense may crossexamine witness about alleged bigotry. Hurd v. State, 725 S.W.2d 249, 250-252 (Tex. Crim. App. 1987). Defense may cross-examine witness about motive or bias to testify. Harris v. State, 642 S.W.2d 471 (Tex. Crim. App. 1982). Defense may cross-examine DWI arresting officer about quota system for DWI arrests. Alexander v. State, 949 S.W.2d 772 (Tex. App. - Dallas 1997, pet. ref’d). Defense may crossexam i ne wi t nes s abou t al l eged nymphomania in sexual assault case since evidence would tend to prove both consent and motive to lie. Chew v. State, 804 S.W.2d 633 (Tex. App. - San Antonio 1991, pet. ref’d).

a gun in the past year. Gutierrez v. State, 764 S.W.2d 796 (Tex. Crim. App. 1989). Facts which are not collateral include facts which would be independently provable by extrinsic evidence, apart from the contradiction, to impeach or disqualify the witness such as facts showing bias, interest, convictions, and want of capacity or opportunity for knowledge. Bates v. State, 587 S.W.2d 121, 141 (Tex. Crim. App. 1979). Counsel may cross-examine witness regarding witness’ lack of powers of observation or witness’ lack of opportunity to exercise his powers of observation. San Antonio Transit Co. v. McCurry, 212 S.W.2d 645 (Tex. App. - San Antonio 1948, writ ref’d n.r.e.). Counsel may crossexamine the witness regarding the witness’ intoxication at the time the event was witnessed. Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996). Drug use is also fair game provided in each case that the alcohol or drug use was recent or so extensive as to affect the witness’ ability to observe. Courtney v. State, 735 S.W.2d 949, 951-952 (Tex. App. - Beaumont 1987, no pet.). 10. TRE 608 states that a witness’ credibility may be attacked by testimony about the witness’ reputation for being untruthful or opinion evidence that the witness is untruthful. TRE 608(b) states that specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

If a witness is cross-examined on a collateral matter even to impeach his testimony, the cross-examiner cannot then contradict the witness. Arechiga v. State, 462 S.W.2d 1, 2 (Tex. Crim. App. 1971). You are stuck with the answer. Goldstein v. State, 803 S.W.2d 777, 793-794 (Tex. App. - Dallas 1991, pet. ref’d). When a witness stated he had not seen the complainant carry a gun in the past year, counsel was not permitted to introduce extrinsic evidence that the complainant had been seen carrying

You can cross-examine the witness on specific instances of conduct if the witness makes a blanket statement concerning his exemplary conduct such as he had never been charged or convicted of any offense. Stephens v. State, 417 S.W.2d 286, 288 (Tex. Crim. App. 1967). Each time the witness volunteers additional information, you are justified in asking for 6

11. TRE 609 states that for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party. TRE 609 applies to all witnesses, party and non-party alike. Nelson v. State, 765 S.W.2d 401, 404 (Tex. Crim. App. 1989). Deferred adjudication is not admissible under Rule 609 but is admissible to show a witness’s bias, motive, or ill will emanating from the witness’ status of deferred adjudication. Juneau v. State, 49 S.W.3d 387, 389-390 (Tex. App. - Fort Worth 2000, pet. ref’d).

A foundation must be laid before impeaching a witness with a prior inconsistent statement. L.M.W. v. State, 891 S.W.2d 754, 759 (Tex. App. - Forth Worth 1994, no pet.). A proper foundation includes establishing where, when, and to whom the statement was made. Downen v. Texas Gulf Shrimp Co., 846 S.W.2d 506, 512 (Tex. App. - Corpus Christi 1993, writ denied). Counsel must allow the witness to admit or deny making the prior statement. Id. The witness is then allowed to admit having made the statement or explain or deny the statement. Alvarez-Mason v. State, 801 S.W.2d 592, 595 (Tex. App. - Corpus Christi 1990, no pet.). Extrinsic evidence of the prior statement is inadmissible unless counsel first tells the witness about the contents of the statement and affords the witness the chance to explain or deny the statement. Osteen v. State, 61 S.W.3d 90 (Tex. App. - Waco 2001, no pet.). The statement may be oral, written, sworn, or unsworn. Stapleton v. State, 868 S.W.2d 781 (Tex. Crim. App. 1993); McGary v. State, 750 S.W.2d 782, 787 (Tex. Crim. App. 1988).

12. TRE 613(a) states that in examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).

Extrinsic evidence of the prior statement is admissible if the witness recalls giving the prior statement but cannot recall the specific prior statement. Ramsey v. Luck Stores, 853 S.W.2d 623, 636-637 (Tex. App. - Houston [1st Dist.] 1993, writ denied). Likewise if the witness claims he might have made the prior statement but he

TRE 613(b) states that in impeaching a witness by proof of circumstances or statements showing bias or interest on the part of such witness, and before further cross-examination concerning, or extrinsic evidence of, such bias or interest may be allowed, the 7

Cross Exam

circumstances supporting such claim or the details of such statement, including the contents and where, when and to whom made, must be made known to the witness, and the witness must be given an opportunity to explain or to deny such circumstances or statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits such bias or interest, extrinsic evidence of same shall not be admitted. A party shall be permitted to present evidence rebutting any evidence impeaching one of said party’s witnesses on grounds of bias or interest.

clarification. Feldman v. State, 71 S.W.3d 738, 756 (Tex. Crim. App. 2002).

Cross Exam

must have been made by the witness or imputed to the witness, and not by another person. A witness, for example, cannot be impeached with hearsay statements made by police officers. Mosquera v. State, 877 S.W.2d 40 (Tex. App. - Corpus Christi 1994, no pet.).

does not remember. Downen v. Texas Gulf Shrimp Co., 846 S.W.2d 506, 512-513 (Tex. App. - Corpus Christi 1993, writ denied). If the witness admits having made the prior statement, counsel can still cross-examine the witness about the details of the prior inconsistent statement which are inconsistent with the witness’ testimony. Ferguson v. State, 97 S.W.3d 293, 295-297 (Tex. App. - Houston [14th Dist.] 2003, pet. ref’d).

The prior statements are inconsistent if they indicate evasive answers, inability to remember, silence, or changes of position. Allen v. State, 788 S.W.2d 637, 642 (Tex. App. - Houston [14th Dist.] 1990, pet. ref’d)(Sears, J., dissenting). The witness’ statements need not directly contradict each other. Id. A witness’ testimony may be impeached with prior statements that are inconsistent with the impression created by the testimony. Id. Counsel may crossexamine a witness about failure to come forward with information prior to trial. Abney v. State, 1 S.W.3d 271, 275-276 (Tex. App. - Houston [14th Dist.] 1999, pet. ref’d). The rule of admissibility of evidence of prior inconsistent statements should be liberally construed and the trial judge should have discretion to receive any evidence which gives promise of exposing a falsehood. Aranda v. State, 736 S.W.2d 702, 707 (Tex. Crim. App. 1987).

Trial judge deprives a defendant of constitutional right to effective crossexamination by refusing to grant continuance so defendant could obtain transcript of prosecution witnesses’ testimony from prior trial since the credibility and perceptions of these eyewitnesses was essential to the state’s case. White v. State, 823 S.W.2d 296, 300 (Tex. Crim. App. 1992). It is essential that a defendant have the means to adequately impeach these witnesses. Id. The general theory of impeachment by proof of a prior inconsistent statement by the same witness is to show that he has a capacity for making errors. Cirilo v. Cook Paint and Varnish Co., 476 S.W.2d 742, 748 (Tex. App. Houston [1st Dist.] 1972, writ ref’d n.r.e.). Given the witness’ previous statement and his present testimony are contradictory, one of them must be erroneous. Id.

Counsel may cross-examine a witness about his motivation to testify for or against the defendant or the state. Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998). Counsel must be able to attack the credibility of a witness by proving the witness’ ill-feeling, bias, motive, and animus. Id. A trial judge must allow some cross-examination of a witness to show bias. United States v. Abel, 469 U.S. 45, 50, 105 S.Ct. 465, 468, 83 L.Ed.2d 450 (1984). A witness’ bias is a relevant issue to trial and the Confrontation Clause provides counsel the right to explore potential biases of an accusing witness through cross-examination. Hoyos v. State, 982 S.W.2d 419, 420-421 (Tex. Crim. App. 1998). Wide latitude is allowed in cross-examination here since the jury is entitled to know any relevant facts that would tend to influence the witness’ testimony. Adams v. Petrade Int’l, Inc., 754 S.W.2d 696, 711 (Tex. App. - Houston [1st

Prior inconsistent statements that are hearsay are not substantive evidence. Willover v. State, 70 S.W.3d 841, 846 (Tex. Crim. App. 2002). Therefore, prior inconsistent statements made by a state witness could not be used by a defendant as evidence to support a claim that if guilty at all, he was guilty only of lesser included offense. Gillum v. State, 792 S.W.2d 745, 747 (Tex. App. - Houston [14th Dist.] 1990, pet. ref’d). Pursuant to Rule of Evidence 105(a), however, a party may not complain on appeal if evidence is admitted without limitation if the party failed to timely request a limiting instruction. Garcia v. State, 887 S.W.2d 862, 878-879 (Tex. Crim. App. 1994). The prior inconsistent statements 8

Cross-examination is proper regarding bias when witness has a pending civil suit against the defendant arising out of the same incident. Rodriguez v. State, 90 S.W.3d 340, 362 (Tex. App. - El Paso 2001, pet. ref‘d). Counsel must first establish a specific connection between the witness’ testimony and the cause, disclosing an actual bias or motive. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995). The evidence which may show bias covers a wide range and the field of external circumstances from which probable bias may be inferred is infinite. Jackson v. State, 482 S.W.2d 864, 868 (Tex. Crim. App. 1972). In a DWI case, for example, if the defendant rear ended the complainant’s car, possible bias is demonstrated through proof of his civil claims relating to the rear ending. Grady v. State, 962 S.W.2d 128, 130-131 (Tex. App. - Houston [1st Dist.] 1997, pet. ref’d). Counsel may crossexamine a state’s witness on the status of his deferred adjudication probation to show a potential motive, bias or interest to testify for the state. Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010). Cross-examination is proper regarding possible plea agreements. McDuff v. State, 939 S.W.2d 607, 617-618 (Tex. Crim. App. 1997). Cross-examination is proper against an accomplice witness that a criminal charge is pending and the witness is hoping for favorable treatment. Lewis v. State, 815 S.W.2d 560, 565-566 (Tex. Crim. App. 1991). Cross-examination is proper regarding details of plea bargain agreement. Virts v. State, 739 S.W.2d 25, 30-31 (Tex. Crim. App. 1987).

The unfair prejudice language includes prejudice to the complainant who will potentially be stigmatized if the defendant is able to introduce evidence of sexual behavior. Stephens v. State, 978 S.W.2d 728, 733 (Tex. App. - Austin 1998, pet. ref’d). Counsel should have evidence of prior sexual conduct and not simply rely on questioning of the complainant because if complainant denies previous sexual conduct, trial judge may refuse to allow counsel to question the complainant since a mere denial of prior sexual conduct does nothing to explain or rebut medical evidence. Landry v. State, 958 S.W.2d 942, 943-944 (Tex. App. - Beaumont 1998, pet. ref’d). Counsel may cross-examine regarding complainant’s sexual intercourse with other people to explain medical testimony about trauma to vagina. Miles v. State, 61 S.W.3d 682 (Tex. App. - Houston [1st Dist.] 2001, pet. ref’d). Counsel may cross-examine complainant regarding relationship with another man to show complainant had motive to falsely accuse defendant of rape. Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988).

Cross Exam

13. TRE 412 states that in a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible, unless it is evidence: (A) that is necessary to rebut or explain scientific or medical evidence offered by the State; (B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; (C) that relates to the motive or bias of the alleged victim; (D) is admissible under Rule 609; or (E) that is constitutionally required to be admitted; and its probative value outweighs the danger of unfair prejudice.

Dist.] 1988, writ denied). The rule regarding cross-examination for bias encompasses all facts and circumstances which when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping or harming a particular litigant’s position for reasons unrelated to the merits of the suit. Carroll v. State, 916 S.W.2d 494, 497-499 (Tex. Crim. App. 1996). A pending criminal charge is an appropriate area of cross-examination. Id.

Cross Exam

WRITING USED BY A WITNESS TO REFRESH MEMORY UNDER TRE 612 1. Question presented. What are the options counsel has when a writing has been used to refresh a witness’ memory? 2.

Summary of facts. A witness uses a writing to refresh the witness’ memory.

3. Discussion. When a writing is used by a witness to refresh the witness’ memory, the opposing party, pursuant to TRE 612, upon request can inspect the document and use it for purposes of cross-examination. Robertson v. State, 871 S.W.2d 701, 708 (Tex. Crim. App. 1993). Further, the opposing party can introduce the document, not for the truth of the matter asserted, but for use by the jury in comparing the document to the witness’ testimony. Id. However, if it is claimed by the party calling the witness that the writing contains matters not related to the subject matter of the testimony, the trial court must review the writing to determine whether it contains unrelated portions. Id. If so, those portions are redacted from the document and preserved for appellate review. Id. Failure to produce the document upon request results in the court must strike the witness’s testimony or, if justice so requires, a mistrial. TRE 612(c).

Question presented. How can you impeach a person with a prior inconsistent statement?

Discussion. You must do the following under Rule 613(a): 1. Tell the witness about the contents of the statement; 2. Tell the witness about when, where, and to whom the statement was made; 3. Ask the witness if he made the alleged contradictory statement; 4. Ask the witness if the prior statement was different from his current trial testimony or if his prior statement was silent in the respects complained about or why he failed to make a statement concerning those matters (remember post arrest silence always inadmissible); 5. Allow the witness to deny it and attempt to disprove it, or if he admits making it, to explain the statement; 6. If the witness denies making the statement, extrinsic evidence of it becomes admissible under Rule 613(a).

Beauchamp v. State, 870 S.W.2d 649, 652 (Tex. App. - EI Paso 1994, pet. ref’d); Allen v. State, 788 S.W.2d 637, 640-641 (Tex. App. - Houston [14th Dist.] 1990, pet. rerd).

Cross Exam

IMPEACHMENT WITH A PRIOR INCONSISTENT STATEMENT UNDER TRE 613(a)

Cross Exam

IMPEACHMENT WITH BIAS OR INTEREST UNDER TRE 613(b) 1.

Question presented. How can you impeach a person regarding bias or interest?

Discussion.

A witness may be impeached by showing the witness has reason to slant his testimony against or in favor of a party to the case. “Exposing a witness’ motivation to testify for or against the accused or the State is a proper and important purpose of cross-examination.” Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998). There should be given “great latitude in showing any fact which would tend to establish ill feeling, bias, or motive for fabrication on the part of any witness testifying against the accused.” Richardson v. State, 744 S.W.2d 65, 79 (Tex. Crim. App. 1987), vacated on other grounds, 492 U.S. 914, 109 S.Ct. 3235, 106 L.Ed.2d 583 (1989). There is an “overwhelming weight of authority” that a trial judge must allow some cross-examination of a witness to show bias. United States v. Abel, 469 U.S. 45, 50, 105 S.Ct. 465, 468, 83 L.Ed.2d 450 (1984). The impeaching party must establish a witness’ attitude results in the witness favoring or disfavoring a particular party’s position for reasons unrelated to the merits of the case. Carroll v. State, 916 S.W.2d 494, 497-498 (Tex. Crim. App. 1996). The impeaching party must establish a specific connection between the witness’ testimony and the cause, disclosing an actual bias or motive. Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995). Examples include evidence that charges are pending against the witness, a financial stake in the case, an attempt to divert suspicion from the witness, or relationships that engender affection, hostility, prejudice, loyalty, or other emotions, to name a few.

Question presented. May the prosecutor impeach a witness using recorded recollection?

Discussion.

“The predicate for past recollection recorded is set forth in TRE 803(5) and requires that four elements be met: (1) the witness must have had firsthand knowledge of the event, (2) the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4) the witness must vouch for the accuracy of the written memorandum.” Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998). “In particular, to meet the fourth element, the witness may testify that she presently remembers recording the fact correctly or remembers recognizing the writing as accurate when she read it at an earlier time.” Id. “But if her present memory is less effective, it is sufficient if the witness testifies that she knows the memorandum is correct because of a habit or practice to record matters accurately or to check them for accuracy.” Id. “At the extreme, it is even sufficient if the individual testifies to recognizing her signature on the statement and believes the statement is correct because she would not have signed it if she had not believed it true at the time.” Id. “However, the witness must acknowledge at trial the accuracy of the statement.” Id. “An assertion of the statement’s accuracy in the acknowledgment line of a written memorandum or such an acknowledgment made previously under oath will not be sufficient.” Id. “No statement should be allowed to verify itself, especially by boilerplate language routinely added by police, lawyers, or others experienced in litigation.” Id. “Given the record before us, it is apparent that the State did not lay a proper predicate for the admissibility of Taylor’s statement under Rule 803(5). As noted before, the Rule requires that four elements be met. In this case there was no testimony given to satisfy the first element requirement of firsthand knowledge. Taylor did not testify regarding the basis of the allegations contained in his statement, i.e., whether he was present during the commission of the offense. Nor was there any testimony given which supported the fourth element. Taylor never guaranteed that his memory was correctly transcribed or that the factual assertions contained in the statement were true. Consequently, the statement read into evidence was inadmissible hearsay.”

Cross Exam

RECORDED RECOLLECTION UNDER TRE 803(5)

Cross Exam

CORRECT FALSE IMPRESSION AND WITNESS’S CREDIBILITY AND COLLATERAL MATTER 1.

Question presented. May defense counsel question a witness on a collateral matter?

2. Summary of facts. A witness testifies and leaves a false impression of his “trouble” with the police. Defense counsel intends to cross-examine the witness on this collateral matter. 3. Discussion. The general rule is that a party is not entitled to impeach a witness on a collateral matter. Ramirez v. State, 802 S.W.2d 674 (Tex. Crim. App. 1990). The test as to whether a matter is collateral is whether the cross-examining party would be entitled to prove it as a part of his case tending to establish his plea. Id. There is, however, an exception to the general rule that a party is not entitled to impeach a witness on a collateral matter. Id. When a witness leaves a false impression concerning a matter relating to his or her credibility, the opposing party is allowed to correct that false impression. Id.

1. Question presented. May the State ask a witness if another witness was lying during their testimony? 2. Summary of facts. The State asks a witness if another witness was lying during their testimony. 3.

Discussion.

The following is from Temple v. State, 342 S.W.3d 572 (Tex. App. - Houston [14th Dist.] 2010, no pet.). To preserve error for appellate review, a defendant must timely object to the error during trial. Tex. R. App. P. 33.1(a). If the objection is overruled, the defendant has preserved error. When the objection is sustained, and the defendant desires to preserve argument that the error incurably infected his right to a fair trial, he should request an instruction to disregard and move for a mistrial. Jackson v. State, 287 S.W.3d 346, 353-354 (Tex. App. Houston [14th Dist.] 2009, no pet.). Failure to request additional relief after an objection is sustained preserves nothing for review. Caron v. State, 162 S.W.3d 614, 617 (Tex. App. Houston [14th Dist.] 2005, no pet.). Appellant contends that the State’s questions relative to witness veracity abrogated his due-process rights. When objecting to these questions, appellant did not object on the basis that the questions violated his due-process rights. Thus, appellant has waived his due-process complaints. On the first day of appellant’s cross-examination, the prosecutor asked appellant whether a witness “just made all that up” regarding a fact issue. One of counsel’s objections was, “It’s asking one witness to comment on . . . the truth of the testimony of another.” It is well-settled that an attorney may not impeach one witness’s testimony with the testimony of other witnesses. Lopez v. State, 200 S.W.3d 246, 257 (Tex. App. - Houston [14 Dist.] 2006, pet. ref’d) (citing Ex parte McFarland, 163 S.W.3d 743, 755 n.37 (Tex. Crim. App. 2005)). Thus, we hold that the trial court erred by overruling appellant’s objection to the prosecutor’s veracity questions.

Cross Exam

ASKING WITNESS IF ANOTHER WITNESS WAS LYING DURING TESTIMONY

Cross Exam

CROSS-EXAMINATION OF A SNITCH

Cross Exam

Texas Criminal Defense Lawyers Association

June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Practical Punishment Procedures

37th Annual Rusty Duncan Advanced Criminal Law Course

Practical Punishment Procedures Speaker:

Jeep Darnell

Jim Darnell, P.C. 310 N Mesa St Ste 212 El Paso, TX 79901 915.532.2442 phone 915.532.4549 fax jedarnell@jdarnell.com email http://www.jdarnell.com/ website

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

Practical Punishment Procedures

PRACTICAL PUNISHMENT PROCEDURES Rusty Duncan Advanced Criminal Law Seminar Federal Boot Camp Texas Criminal Defense Lawyers Association Thursday, June 13, 2024 San Antonio, Texas

Jeep Darnell jedarnell@jdarnell.com Jim Darnell, P.C. 310 N. Mesa St., Ste. 212 El Paso, Texas 79901 Phone: (915) 532-2442 Fax: (915) 532-4549

(a) Factors To Be Considered in Imposing a Sentence.CThe court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall considerC (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposedC (A) to reflect the seriousness of the offense, to 2

Practical Punishment Procedures

It is well known that the United States Sentencing Guidelines and, thanks to the decision in United States v. Booker, 543 U.S. 220 (2005), the objectives of sentencing set forth in 18 U.S.C. ' 3553(a) are the giudeposts that govern sentencing in Federal cases. Prior to Booker, courts often used the Guidelines as mandatory sentences that dictated the outcome of every Federal plea or trial conviction. However, since Booker, the Guidelines have become advisory, or a starting place, for courts to consider when beginning the process of determining Aa sentence sufficient, but not greater than necessary, to comply with the purposes . . .@ of 18 U.S.C. ' 3553(a). As a means of providing the necessary information to consider throughout this paper, 18 U.S.C. ' 3553(a) states as follows:

Practical Punishment Procedures

promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established forC (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelinesC (i)

issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to 3

be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); (5) any pertinent policy statementC (A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be 4

Practical Punishment Procedures

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

Practical Punishment Procedures

incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced. (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense. From a pragmatic standpoint, a practitioner should always begin with determining what the sentencing range is pursuant to the Guidelines, taking into account possible enhancements and arguments against those enhancements, then begin working towards driving the end number down. Too often, Federal practitioners spend their time only making objections to the presentence report produced by the probation officer and the report=s application of the Guidelines, instead of providing an alternative sentencing calculation in a sentencing memorandum. If one looks at the vast majority of sentencing memorandums, they rarely make any detailed analysis of the factors to be considered in 18 U.S.C. ' 3553(a), but instead rely on the Guidelines to provide what amounts to a mathematical 5

calculation that does not take into account the A. . . history and characteristics of the defendant.@ 18 U.S.C. ' 3553(a)(1).

Practical Punishment Procedures

There are no more important six words from the defender=s perspective in the arena of Federal sentencing. Those six words, (A. . . history and characteristics of the defendant,@ id.), are the mine from which we should dig for gold. Those six words place no limits or restrictions on our duty to provide the sentencing court with a full picture of who our client is and was. The government and probation office will almost always argue that the history of the defendant is his criminal history, but we all know that our client=s history cannot be summed up in a simple table of what he or she did wrong. What we all need to learn is how to show a court what the rest of our client=s history is and who he or she is in real life. Let=s face it, some of our client=s don=t have a lot of redeeming characteristics. However, just as we would at a state punishment phase proceeding, we still have a duty to put up some evidence of mitigation or that counters what the government offers against him. Character letters are often provided as a method of showing a Court how people close to our client feel, but those letters can easily be disregarded. Instead, when a live person is permitted to testify to discuss our client and the sentencing court can see the emotions invoked by speaking on behalf of our client, we stand some greater chance of success. Not every Federal court will allow live witnesses at sentencing, but the practitioner should never be leary of asking, especially when there is a person or people who can actually provide raw insight into the good that exists within our client.

Practical Punishment Procedures

Other options include offering videos of witness testimonials about our client, or even pictures and videos of our client from past times when they were different than the Adefendant@ before the court. More and more, our lives and our clients= lives are recorded forever through the use of cell phones. Everyday people record important and even innocuous moments on their phones, all of which can be mined to show happy moments. Pictures with grandparents, videos with our clients= babies or kids, important moments in their lives where they were not convicts, but real people achieving some major or minor milestone. Gaining access to this information can only serve to humanize our clients and help to make them something more than the sum of a guideline calculation standing before the sentencing court. Furthermore, a large number of those pictures and videos can be put together to produce a sentencing video for the court=s review prior to sentencing. While a letter may be made up of a great number of words, a picture and/or video is worth a greater number of words and emotions. Too often we leave our imaginations at the door when we leave state court to walk into a Federal courthouse. We should not and cannot. We must use the relevance provided by the 18 U.S.C. ' 3553(a) and push the limits of latitude to provide a full and complete picture of our client=s Ahistory and characteristics.@ If we are shut down, object and preserve the issue for appeal, but respectfully continue to push open the door to fully litigate the issue of the true person being sentenced.

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Speaker:

Jason Parrish

Texas Rules of Evidence

Holmes, Moore, Waldron & Parrish, PLLC 110 W Methvin St Longview, TX 75601 903.758.2200 phone 903.758.7864 fax jparrish@holmesmoore.com email

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

Rusty Duncan 2024 Texas Rules of Evidence Texas Rules of Evidence

Jason L. Parrish Attorney at Law Holmes, Moore, Waldron & Parrish, PLLC 110 W. Methvin St. Longview, TX 75601 903-758-2200 (c) 903-399-8678

Introduction Many papers have been written on the Texas Rules of Evidence. This paper will discuss important evidentiary topics that any criminal practitioner should be familiar with. As a criminal defense lawyer, we must always evaluate the strengths and weaknesses of a case. The rules obviously help us evaluate such. This is important, as it helps us decide the bargaining power we have when negotiating against the government. To evaluate a case, one must visualize how any criminal matter would present itself in trial under the evidentiary rules. Questions to consider are what evidence can the State introduce? What evidence can I legally prohibit? And of course, what evidence, if any, do I have to work with? I hope this paper can assist you in evaluating and understanding what potential defenses you have when evaluating the rules for your cases. I.

Applicability of the Rules-Article I Rule 101

-Preliminary hearings on competency -Bail hearings EXCEPT to deny, revoke or increase -Justification for pre-trial detention not involving bail -Applications for search and arrest warrants -Pretrial hearings on admissibility of confessions -Proceedings in a direct contempt determination See Tex. R. Evidence 101 The Rules of Evidence do apply to bail hearings when bond is increased. Bail is an area of constant litigation due to bail increases after our clients have been indicted. Probable cause was made at the time of arrest, so I see no reason for a bond increase based upon the formal accusation. One must file a writ of habeas corpus alleging violations of due process while litigating that the new bond is excessive. See Ex Gomez, 624 S.W.3d 573 (Tex. Crim. App. 2021) See Tex. Code. Crim. Proc. Art. 17.09 Sec. 3 and compare Tex. Code Crim. Proc. Art 17.091. At a minimum, the courts need to allow a defendant the right to a hearing before a bail increase is imposed. In sum, be sure to read Rule 101 to make sure the Rules of Evidence apply to your hearing.

Texas Rules of Evidence

The rules of evidence do not always apply! Most often overlooked and forgotten is Rule 101 of the Texas Rules of Evidence. As a criminal practitioner, our hearings can range from pretrial matters involving bond to post trial writs of habeas corpus and everything in-between. Rule 101 specifically says that the Rules of Evidence apply to all trials. The rules except for those on privilege DO NOT apply to:

II. Privileges- Article 5 Rules 501-513 The Rules of Evidence always apply to privilege. I am not going to cover every rule of privilege but will discuss those most asserted. The assertion of a privilege entitles one to refuse to be a witness; refuse to disclose any matter; refuse to provide evidentiary items; or prevent another from doing so. Tex. R. Evid 501. When evaluating whether a privilege is applicable, be sure to study the rule as applied to your facts and make sure that an exception does not exist under this Article or any other code provision.

Texas Rules of Evidence

RULE 504 SPOUSAL PRIVILEGE Rule 504 governs spousal privilege. A person has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made to the person’s spouse while they are married. The privilege does survive the termination of the marriage as long as the communication was made during the marriage. Tex. R. Evid. 504 (a)(2). A communication is confidential if a person makes it PRIVATELY to the person’s spouse and DOES NOT INTEND its disclosure to any other person. Tex. R. Evid. 504 (a)(1). This rule does extend to individuals who can prove to be common law married. Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998). There are many exceptions to this rule which include: spousal abuse, communications in furtherance of a crime, and crimes against a household member or a child. Tex. R. Evid. 504 [(4)(A)-(E)]; Tex. Code. Crim. Proc. Art 38.10.

RULE 505 COMMUNICATIONS TO CLERGY If you want to assert a privilege for a communication made to a clergy member, study Rule 505 of the Rules of Evidence. A communication is confidential if made PRIVATELY and not INTENDED for further disclosure, except to persons present to further the purpose of the communication. You have a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made by the communicant to a clergy member in the clergy member’s professional capacity as a spiritual adviser. Tex. R. Evid 505 (a)(3) (b). “The privilege only extends to communications addressed to a clergyman in his professional capacity as a spiritual adviser, not to every private communication made to a clergy member. Thus, statements made during administrative and disciplinary hearings do not fall under the privilege” Maldonado v. State, 59 S.W.3d 251, 253 (Tex. App.—Corpus Christi 2001, pet. ref’d). In a criminal case involving the abuse or neglect of a child, evidence may not be excluded on the assertion of this privilege. Almendarez v. State, 153 S.W.3d 727 (Tex. App.—Dallas, 2005, no pet.); Bordman v. State, 56 S.W.3d 63 0Tex. App. Houston 14th Dist. 2001, pet. ref’d); See Also Tex. Fam. Code 261.101 & 261.202.

RULE 508 INFORMANT Rule 508 allows the Government to refuse to disclose a person’s identity if the person has furnished information to a law enforcement officer conducting an investigation of a violation of the law and the information relates to or assists in the investigation. Tex. R. Evid 508 (a)(1)(2). This privilege does not apply if after a hearing, the court finds that a reasonable probability exists that the informer can give testimony necessary to a fair determination of guilt or innocence. If the court makes this finding and the public entity elects not to disclose: (1) the Court MUST dismiss on the Defendant’s motion to which the charge relates to; or (2) the Court on its own motion may dismiss the charges to which the testimony would relate. Tex. Rule of Evid. 508 (c)(2)(A). The court may order the disclosure of a confidential information if the information from an informer is relied upon to establish the legality of the means by which the evidence was obtained AND the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible. Tex. Rule Evid. 508 (c)(3)(A). A court may order the disclosure to be made in camera and neither party may attend. This request can be made by either the State or the Defense. Bodin v. State, 807 S.W.2d 313 (Tex. Crim. App. 1991). The Court must seal and preserve the record for appeal. Tex. Rule Evid. 508 (c)(3)(B).

Unfortunately, there is NO physician patient privilege in a state criminal proceeding. Tex. R. Evid. 509 (b). If you want to limit information provided because of medical treatment, you will need to rely on the Health Insurance Portability Act (HIPAA) and the Texas Medical Records Privacy Act (TMRPA).

RULE 511 WAIVER BY VOLUNTARY DISCLOSURE Privileges can be waived if the person, while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged or the person calls a character witness to testify to a trait and such disclosure is relevant to such trait. Tex. R. Evid. 511

III. Preservation of Error-Article I Rule 103 RULE 103-RULINGS ON EVIDENCE A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and if the party objects or moves to strike OR moves to strike and states the specific ground , unless it was apparent from the context or if the ruling excludes

Texas Rules of Evidence

RULE 509 PHYSICIAN PATIENT

evidence a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. Tex. R. Evid. 103 (a). You must immediately object and clearly state your objection. It is imperative that you get a ruling, so you MUST force the judge to sustain or overrule your objection. If the court overrules your objection you are done, but if the Court sustains the objection, follow up with an instruction to disregard along with a request for mistrial. Remember, you must object every time at the time the matter is raised unless you request, and the court GRANTS a running objection. Ethington v. State, 819 S.W.2d 854 (Tex. Crim. App. 1991). If you intend to offer evidence that has been excluded by the court, it is extremely important to do an offer of proof. Do not ever assume that it is obvious from the context. If the court is not going to allow you to introduce beneficial evidence for your client, then take the time to do a proffer. An offer of proof may be in question or answer form, or it may be in the form of a concise statement by counsel. Just be certain to give a detailed summary of the evidence in the appropriate form as this will allow the appellate courts to properly evaluate the court’s decision. Warner v. State, 969 S.W. 2d 1 (Tex. Crim App. 1998).

Texas Rules of Evidence

IV. Witnesses-Article VI Rule 608 & 613 RULE 608-CHARACTER FOR TRUTHFULNESS/UNTRUTHFULNESS The credibility of a witness can be challenged or bolstered about the reputation of a witness for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about THAT character, but only after the witness’s character has been attacked. Tex. R. Evid. 608 (a). Except for the conviction of a crime under 609, you may not inquire into or offer extrinsic evidence or prove specific instances of conduct in order to attack or support the witness’s character for truthfulness. Tex. R. Evid. 608 (b). “Rule 608 may be liberally employed to attacks on truthful character and there need only be a loose fit between the rebuttal evidence and the predicate attacks on character.” Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). Schutz articulated that a party may attack a witness’ or other declarant’s GENERAL capacity OR disposition to tell the truth and allows the other party to respond to the attack supporting that person’s GENERAL capacity or disposition for truthfulness. Id. The Court noted that general capacity evidence includes whether a person can distinguish between reality and fantasy and whether a person’s mental or physical capacity can impact their ability to accurately perceive events. Id.

Character witnesses must have personal knowledge of the general capacity or reputation about which they are testifying, and it is generally limited to veracity rather than character generally. So, when the prosecutors call your key witness a liar, be prepared to have a witness ready to testify to the veracity of that witness. When a prosecutor attacks your witness’s credibility through inconsistent statements, be aware that you are not automatically entitled to rehabilitate a witness under 608 (b). Be sure to argue that a reasonable juror would believe that your witness was attacked for truthfulness, which then does allow you to rehabilitate such witness. See Michael v. State, 235 S.W.3d 723, 725 (Tex. Crim. App. 2007).

RULE 613-WITNESS’S PRIOR STATEMENT AND BIAS OR INTEREST “Tex. R. Evid. 613 (a) governs impeachment of a witness by use of prior inconsistent

“Tex. R. Evid. 613 (b) governs impeachment by use of bias or interest. In impeaching a witness by proof of CIRCUMSTANCES or statements that show bias or interest, the party must tell the witness the contents, time, and place of the statement and to whom the statement was made. Tex. R. Evid. 613 (b)(1). The witness must be given an opportunity to explain or deny the CIRCUMSTANCES or statement. Tex. R. Evid. 613 (b)(3). If written, the writing need not be shown but shall be shown to opposing counsel if requested. Tex. R. Evid 613(b)(2). If the witness unequivocally admits bias or interest, extrinsic evidence of bias or interest shall not be admitted. If the witness does NOT unequivocally admit bias or interest, extrinsic evidence will be allowed. Tex. R. Evid 613(b)(4). A party is permitted to present evidence rebutting the impeachment of that witness on those grounds.” Rachel Roosth, Tex. Practice Guide Evidence 6:259 (2023-2024). Unless you have an admission by party opponent under, Tex. R. Evid. 804(c), Tex. R. Evid. 613 (c) provides that a witness’s CONSISTENT statement is not admissible if offered solely to enhance the witness’s credibility. Tex. R. Evid 613 (c).

DOCTRINE OF CHANCES The “Doctrine of Chances,” is a legal theory based on the concept of logical implausibility. “If A while hunting with B hears the bullet from B’s gun whistling past his head, he is willing accept his bad aim; but if shortly afterwards the same thing happens again, and on the third

Texas Rules of Evidence

statements. Before cross-examination about, or extrinsic evidence of, a prior inconsistent statement, the witness being impeached must be told of the contents, the time and place, and the person to whom made to, and the witness must be afforded an opportunity to explain or dent the statement. If the statement was written, the writing need not be shown to the witness, but upon request must be shown to opposing counsel. Tex. R. Evid 613 (a)(2). Extrinsic evidence is not admissible if the witness unequivocally admits having made the statement. Tex. R. Evid 613 (a) does not apply to admissions of a party-opponent as defined by Tex. R. Evid. 801 (e)(2).” Rachel Roosth, Tex. Practice Guide Evidence 6:259 (2023-2024).

occasion A is shot by B then it is certain B was shooting at since the chances of an inadvertent shooting on three successive similar occasions are extremely small.” De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009). The doctrine tells us that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance. For example, a spouse accuses you of assault and thereafter books tickets to the Caribbean with a new lover and you have also discovered that this has happened to your spouse’s previous lovers. Obviously, you would want to introduce evidence of such to show that this is a fabricated allegation. Your spouse just wants to make off with the new person of interest! Simply put, these unusual events make it less likely that your client assaulted his/her spouse. As noted in Fox, this doctrine may be utilized by the defense. A defendant may use the “doctrine of chances” defensively if a series of unusual events, alone or with other evidence, tends to negate the defendant’s guilt of the crime charged.

V. Relevancy & Its Limits-Article IV Rules 401, 403, 404, 405

Texas Rules of Evidence

RULE(s) 401 403-TEST FOR RELEVANT EVIDENCE Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action. Tex. R. Evid 401. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: (1) unfair prejudice, (2) confusing the issues, (3) misleading the jury, (4) undue delay, and (5) needlessly presenting cumulative evidence. The State’s favorite objection is confusing the issues or misleading the jury. If the Judge sustains an objection to evidence that you believe is relevant, make sure to do a proffer of the evidence the judge is excluding so the issue can be preserved for appeal.

RULE 404-CHARACTER EVIDENCE Propensity evidence is not allowed against an accused. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. Tex. R. Evid. 404(a)(1). In a criminal case, a defendant may offer evidence of the defendant’s pertinent trait, and if admitted, the prosecutor may offer evidence to rebut such. Tex. R. Evid 404(a)(2)(A). Also, subject to 412, a defendant may offer evidence of a victim’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it. Tex. R. Evid 404(a)(3)(A). In a homicide case, the prosecutor may offer evidence of the victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor. Tex. R. Evid 404 (a)(3)(B). “A pertinent trait is one that has a relation to a trait involved in the offense charged or the defense raised.” Generally, truthfulness and honesty are not traits related to possession of a controlled offense crime. See Spector v. State, 746 S.W.2d 946 (Tex. App.—Austin 1988 pet.

ref’d). However, aggression and other aggressive acts by the victim in a homicide prosecution wherein the Defendant is raising self-defense could arguably be a pertinent trait that could be raised in a self-defense claim. Tex. R. Evid. 404(3)(B); See Torres v. State, 117 S.W.3d 891 (Tex. Crim. App. 2003) See also Tex. Code Crim Proc. Art 38.36 Evidence in Prosecutions for Murder.

When faced with whether extraneous offense(s) or bad acts that might be admissible against your client, consider the following provisions in the Texas Code of Criminal Procedure: (1) Article 38.36 Evidence in Prosecutions for Murder; (2) Article 38.37 Evidence of Extraneous Bad Acts; (3) Article 38.371 Evidence of Offen Committed Against Member of Defendant’s Family or Household or Person in Dating Relationship with Defendant; (4) Article 38.46 Evidence in Prosecutions for Stalking; (5) Article 38.471 Evidence in Prosecution for Exploitation of Child, Elderly or Disabled; and (6) Article 38.48 Evidence in Prosecution for Tampering with Witness or Witness Involving Family Violence. Note, other than 38.37, most of the provisions above do and are subject to the Rules of Evidence. Be sure and object prior to the introduction of this type of evidence and request the Judge to do a 401/403 analysis and make your 402 United States and Texas Constitutional objections. Obviously, file a motion in limine prohibiting the State from referring to this type of evidence in front of the jury. Request that the State present the evidence outside the presence of the jury so the Judge can determine whether the jury may find beyond a reasonable doubt that the

Texas Rules of Evidence

Again, propensity evidence is not allowed against an accused. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character to show that on a particular occasion the person acted in accordance with the character. Tex. R. Evid 404 (b). However, this type of evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence, of mistake or lack of accident. ON TIMELY REQUEST BY A DEFENDANT, in a criminal case, the prosecutor must provide REASONABLE notice before trial that the prosecution intends to introduce such evidence-other than that arising in the same transaction—in its case in chief. You must request notice for purposes of 404 (b) and if you file a request for notice and serve copy on the State then you do not have to obtain a ruling. Jaubert v. State, 74 S.W.3d 1 (Tex. Crim. App. 2002); Dabney v. State, 492 S.W.3d 309 (Tex. Crim. App. 2016). However, if you file a motion, you must follow up and get a ruling on your motion. Espinosa v. State, 853 S.W.2d 36 (Tex. Crim. App. 1993). Interestingly, be sure and cross-reference the lack of notice requirement under CCP 38.37, which provides that the STATE SHALL give the defendant notice of the state’s intent to introduce in the case in chief evidence described…..not later than the 30th day before the date of the defendant’s trial. Tex. Code Crim. Proc. Sec. 3.

Defendant committed such bad act. Valadez v. State, 663 S.W.3d 133 (Tex. Crim. App. 2022). This allows you to cross-examine the witnesses ahead of time. Remember, when the State is permitted to present evidence of your client’s bad acts for a limited purpose, you have the burden of requesting a jury instruction. Your instruction should demand that the jury not consider such act unless the State has proved such act beyond a reasonable doubt and if so proved, the jury must limit its consideration of such acts for the specific purpose proffered. Ex Parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001).

VI. Hearsay-Article VIII

Texas Rules of Evidence

RULE 801 Hearsay means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers evidence to prove the truth of the matter asserted in the statement. Tex. R. Evid 801. A statement is not hearsay if the declarant testifies and is subject to cross examination about a prior statement and the statement is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing or other proceeding---except a grand jury proceeding—or in a deposition TRE 801e(1)(A); a statement that is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying TRE 801 e(1)(b); or the statement is offered against the opposing party in was made by the coconspirator during and furtherance f the conspiracy TRE 801 e(2)(E). Exceptions to the rule regardless of witness availability include: (1) Present Sense Impression 803(1) (2) Excited Utterances 803(2) (3) Statement of Declarant’s then existing state of mind, emotion, sensation or physical condition 803(3) (4) Statement made for purposes of medical diagnosis and treatment 803(4) (5) Prior written record by witness about matters they once had personal knowledge of but now can’t recall 803 (5) (6) Regularly kept official records (803(6)-15) and (17)) (7) Reputation testimony (803(19)-21)) (8) Defendant’s prior judgments (803(22)) (9) Statement against interest (803(24))

Execptions to the Hearsay rule if declarant is unavailable include: (1) Former testimony where both parties were able to cross-examine 804 (b)(1) (2) Dying declaration 804 (b)(2) (3) Statement of Personal or Family History Remember, when the State is seeking to introduce damaging hearsay that fits within an exception, make sure and object and argue that the Texas Constitution and the United States “Confrontation Clause bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.” Idaho v. Wright, 497 U.S. 805, 814 (1990); Tex. R. Evid. Rule 101 (d).

VII. Authentication and Identifying Evidence-Article IX Authentication or identification is a condition precedent to admissibility. Evidence can be authenticated or identified by a witness with personal knowledge, non-expert opinion, comparison by the trier of fact, by an expert witness or distinctive characteristics and the like. The burden is on the proponent of the evidence, so the proponent must demonstrate, and the Court must be satisfied by sufficient evidence that the item is what the proponent claims it is. Foundational requirements can include: 1. 2. 3. 4. 5. 6.

Do you recognize this exhibit? Do you know that is? What is this? How do you know? Has it been altered or changed? AND Is it a fair and accurate depiction?

When the State is offering evidence and they ask a witness, “What is this?” Be ready to object, as you do not want the witness testifying to an objectionable piece of evidence. This is important, as you do not want a state’s witness testifying to what evidence is before it is admitted. Digital evidence is obviously a hot topic. We live in a digital world; thus, the admission of digital evidence is evolving. Before a party can introduce a piece of evidence the offering party must establish the item is authentic and if the item is alterable, the party must show that it hasn’t been changed or altered since it was gathered. A sample predicate that is useful to admitting digital evidence would the following:

Texas Rules of Evidence

RULE 901 AUTHENTICATION OR IDENTIFICATION

• • • • • • • • •

Do you recognize this exhibit? What is it? Were you the recipient of these (text messages or emails or photographs)? Who sent you these (text messages or emails or photographs)? How do you know __ sent you these messages? Is this (email address, phone number, or saved contact) associated with ___? Have you corresponded back-and-forth with ___ using this (number or address)? Do the contents of these messages or photos refer to prior communications you’ve had with ___? Have you altered or deleted any portions of the (text message or emails or photographs) depicted in this exhibit? Is this a fair & accurate representation of the (texts or emails or photographs) you exchanged with __?

The following is an excerpt from Tienda v. State, 358 S.W.3d 33 (Tex. Crim. App. 2012):

Texas Rules of Evidence

•

Like our own courts of appeals here in Texas,27 jurisdictions across the country have recognized that HN6 electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and its various state analogs. Printouts of emails, internet chat room dialogues, and cellular phone text messages have all been [**18] admitted into evidence when found to be sufficiently linked to the purported author so as to justify submission to the jury for its ultimate determination of authenticity.28 Such prima facie authentication [*640] has taken various forms. In some cases, the purported sender actually admitted to authorship, either in whole or in part,29 or was seen composing it.30 In others, the business records of an internet service provider or a cell phone company have shown that the message originated with the purported sender's personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone.31 Sometimes the communication has contained information that only the purported sender could be expected to know.32 [*641] Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact the author of the particular communication, the authentication of which is in issue.33 [**19] And sometimes other circumstances, peculiar to the facts of the particular case, have sufficed to establish at least a prima facie showing of authentication.34 However, mindful that the provenance of such electronic writings can sometimes be open to question—computers can be hacked, protected passwords can be compromised, and cell phones can be purloined—courts in other cases have held that not even the prima facie demonstration required to submit the issue of

authentication to the jury has been satisfied.35 That an email on its face purports [*642] to come from a certain person's email address, that the respondent in an internet chat room dialogue purports to identify himself, or that a text message emanates from a cell phone number assigned to the purported author—none of these circumstances, without more, has typically been regarded as sufficient to

support a finding of authenticity.36

Make sure and review Tienda, when you are wanting to admit digital evidence that would be helpful to your client. Butler v. State, 459 S.W.3d 595 (Tex. Crim. App. 2015, is a great case that discusses text messages. The following is a great excerpt from Butler regarding the authentication of text messages: •

Of course, there are times that we do not want digital evidence introduced and used against our clients. Unfortunately, our clients seem to use their cell phones for improper purposes which end up getting confiscated by law enforcement. So be ready to consider all valid objections and make sure that law enforcement conducted their search of any digital device pursuant to a warrant.

VIII. Experts-Article RULE 703 & ARTICLE 39.14 (b)

Texas Rules of Evidence

Text messages are "short messages [sent] over a cellular phone network, typically by means of a short message service (SMS)." Steven Goode, The Admissibility of Electronic Evidence, 29 REV. LITIG. 1, 16 n.66 (Fall 2009). HN3 As with other types of evidence, text messages may be authenticated by "evidence sufficient to [*601] support a finding that the matter is what its proponent claims." TEX. R. EVID. 901(a). This can be accomplished in myriad ways, depending upon the unique facts and circumstances of each case, including through the testimony of a witness with knowledge or through evidence showing distinctive characteristics. TEX. R. EVID. 901(b)(1) (testimony of a witness with knowledge); TEX. R. EVID. 901(b)(4) (distinctive characteristics and the like); see, also Goode, supra, at 16-19, 31-33.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the experts scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or to determine a fact in issue. Tex. R. Evid. 703. In order to qualify an individual as an expert they must be qualified, reliable, and the subject matter or opinion as to the testimony must be relevant. Article 39.14. of the Texas Code of Criminal Procedure governs the notice requirements. “On a party’s request before the date that jury selection in the trial is scheduled to begin or in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use a t trial to present evidence under 702, 703, and 705. Disclosure must be made not later than the 20th day before the date that jury selection is set to begin.” Tex. Code Crim. Proce Art. 39.14 (b).

Texas Rules of Evidence

TESTIFYING EXPERT v. CONSULTING EXPERTS Do not ever put the cart before the horse! If you identify a case that needs an expert, get that individual hired as early as possible. Your expert is always a consulting expert until you say otherwise. The importance is that all communications and information generated is protected by the attorney work product privilege. But once you notice your expert, the State is free to contact your expert. Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). Even if I notice my expert, I do not give my expert permission to talk to the State as I normally force the State to request a 705 hearing.

RULE 705 DISCLOSING THE UNDERLYING FACTS OR DATA Before an expert gives an opinion or discloses the underlying facts or data, an adverse party must be permitted to examine the expert about the underlying facts or data outside the presence of the jury. Tex. R. Evid. 705 (b). Understand that an expert may give an opinion without disclosing facts or supporting data, so you need to file a motion requesting a 705 (b) hearing prior to the State calling such expert witness. A 705 hearing allows you the time to examine and challenge the admissibility of the expert’s opinion. Do not waive this as this is your only opportunity to pin the expert down. Finally, you should file a motion in limine prohibiting the State from discussing or alluding to the testimony of any expert witness until AFTER you have had an opportunity to have a 705 hearing and the Judge has ruled on the admissibility.

Conclusion

In summary, I hope this paper was a good refresher. If you have any questions, never hesitate to call me. Good luck!

Texas Rules of Evidence

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Family Violence Procedures & Rules

Author:

Paul Tu

Arrington, Tu Burnett 200 South 10th Street Richmond, TX 77469 713.774.2800 phone 713.774.2808 fax paul@atblawfirm.com email http://www.atblawfirm.com/ website

Clay B. Steadman

Family Violence Procedures & Rules

Speaker:

Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, TX 78028 830.257.5005 phone 830.896.1563 fax Csteadman612@hotmail.com email

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

37th Annual Rusty Duncan Advanced Criminal Law Course

FAMILY VIOLENCE Procedures and Rules PAUL F. TU Arrington, Tu & Burnett LLP 200 South 10th Street Richmond, TX 77469

Family Violence Procedures & Rules

Paul@Atblawfirm.com This article is a revision and update of Clay Steadman’s extensive paper on Family Violence from 36th Annual Rusty Duncan.

Introduction Defending a family violence case is the intercut mix of discovering the client’s story, applying the current statutes, and figuring out how to limit the State’s case with motions and rules of evidence. Inevitably, there is a story or a pattern of toxic behavior. Whether there is a bad ending to a relationship, or building frustrations of unresolved disappointment, or even misleading allegations for custodial, financial, and/or emotional advantage. An allegation of family violence can be charged and result in your client’s arrest based upon the word of just one individual and depending upon the circumstances, can be substantiated upon the statement of just that same individual. The questions that surround a charge, (i.e.: Why would that person lie? How could a person possibly make something like that up? What is that person’s motive to lie, both then and now?) often creates this presumption of guilt. Given these circumstances, we still must find a way of changing the narrative of the case and create a situation in trial which will allow us to challenge the basis and motivation of the allegation itself. 1|Page

Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course

First, this paper will focus on the rules and definitions surrounding an allegation of family violence. Then we will discuss specific Texas Rules of Evidence and Texas Code of Criminal Procedure statutes used in prosecution of these cases and then we will finish with a brief outline of possible defenses to these highly emotional and often difficult cases.

Family Violence Procedures & Rules

2|Page

Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course

I. Definitions under the Texas Family Code. A family violence allegation is found in the Texas Penal Code centered largely on a charge of assault, but the definitions of dating relationship, family, or household is found in the Texas Family Code, Sections 71.0021(b), 71.003 and 71.005, respectively. The applicable provisions of the Family Code are as follows: § 71.0021(b). Dating Relationship is defined as: (b) … a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: (1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship. (c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a "dating relationship" under Subsection (b).

Family Violence Procedures & Rules

§ 71.003 Family is defined as: “Family” includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together. Example of Degree of Consanguinity: A parent and child are related in the first degree, a grandparent and grandchild in the second degree, an aunt and nephew in the third degree and so on. Note: In limited circumstances, a divorce can terminate the family relationships established by marriage. For example, after an executed divorce decree, Husband and exwife’s father are no longer family. § 71.005 a Household is defined as: A unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. Note: platonic roommates are eligible for family violence allegations. § 71.006 a Member of a Household is defined as: Member of a Household includes a person who previously lived in a household. 3|Page

Fatal Attraction Family Violence Paper 36th Annual Rusty Duncan Advanced Criminal Law Course

§ 71.004 Family Violence is defined as: (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; (2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or (3) dating violence, as that term is defined by Section 71.0021 These definitions are far reaching into the past relationship, status of a client’s domicile, legal marital status or even mental and physical intimacy. Therefore, it is widely important to have a thorough pretrial investigation, especially comprehensive and sometimes intrusive client communication.

II. Offenses under Texas Penal Code. Assault - Texas Penal § 22.01 (a) A person commits an offense if the person:

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. (b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: (1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if: 4|Page

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(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;

(A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or (B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth; Aggravated Assault - Texas Penal § 22.02 (a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault. (b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if: (1) the actor uses a deadly weapon during the commission of the assault and causes: (A) serious bodily injury to a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;

Family Violence Procedures & Rules

Continuous Violence Against the Family – Texas Penal § 25.11 (a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code. (b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a), the exact date when that conduct occurred, or the county in which each instance of the conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a). (c) A defendant may not be convicted in the same criminal action of another offense the victim of which is an alleged victim of the offense under Subsection (a) and an element of which is any conduct that is alleged as an element of the offense under Subsection (a) unless the other offense: (1) is charged in the alternative; (2) occurred outside the period in which the offense alleged under Subsection (a) was committed; or (3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (a).

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(d) A defendant may not be charged with more than one count under Subsection (a) if all of the specific conduct that is alleged to have been engaged in is alleged to have been committed against a single victim or members of the same household, as defined by Section 71.005, Family Code. (e) An offense under this section is a felony of the third degree. III. Various Penal Code Offense Interference with Emergency Request for Assistance - Texas Penal Code § 42.062 (Commonly Referred to As Interference with a 911 Call) (a) An individual commits an offense if the individual knowingly prevents or interferes with another individual’s ability to place an emergency call or to request assistance, including a request for assistance using an electronic communications device, in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals. (b) An individual commits an offense if the individual recklessly renders unusable an electronic communications device, including a telephone, that would otherwise be used by another individual to place an emergency call or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals. (c) An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if the actor has previously been convicted under this section.

Terroristic Threat – Texas Penal Code § 22.07 (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to: (1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies; (2) place any person in fear of imminent serious bodily injury; (3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place; (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; (5) place the public or a substantial group of the public in fear of serious bodily injury; or 6|Page

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(d) In this section, “emergency” means a condition or circumstance in which any individual is or is reasonably believed by the individual making a call or requesting assistance to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the call or requesting assistance to be in imminent danger of damage or destruction.

(6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state. (b) An offense under Subsection (a)(1) is a Class B misdemeanor. (c) An offense under Subsection (a)(2) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense: (1) is committed against a member of the person’s family or household or otherwise constitutes family violence; or (2) is committed against a public servant. (c-1)Notwithstanding Subsection (c)(2), an offense under Subsection (a)(2) is a state jail felony if the offense is committed against a person the actor knows is a peace officer or judge. (d) An offense under Subsection (a)(3) is a Class A misdemeanor, unless the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance, in which event the offense is a state jail felony. (e) An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third degree. (f) In this section: (1) “Family” has the meaning assigned by Section 71.003, Family Code. (2) “Family violence” has the meaning assigned by Section 71.004, Family Code. (3) “Household” has the meaning assigned by Section 71.005, Family Code. (g) For purposes of Subsection (d), the amount of pecuniary loss is the amount of economic loss suffered by the owner of the building, room, place, or conveyance as a result of the prevention or interruption of the occupation or use of the building, room, place, or conveyance. Harassment - Texas Penal § 42.07

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(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person: (1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene; (2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property; (3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury; (4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; (5) makes a telephone call and intentionally fails to hang up or disengage the connection; (6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or 7|Page

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(8) publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern. (b) In this section: (1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes: (A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and (B) a communication made to a pager. (2) “Family” and “household” have the meaning assigned by Chapter 71, Family Code. (3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function. (c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if: (1) the actor has previously been convicted under this section; or

Stalking – Texas Penal Code § 42.072 (a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that: (1) constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person’s family or household or for an individual with whom the other person has a dating relationship; or (C) that an offense will be committed against the other person’s property; (2) causes the other person, a member of the other person’s family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person’s property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and 8|Page

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Family Violence Procedures & Rules

(2) the offense was committed under Subsection (a)(7) or (8) and: (A) the offense was committed against a child under 18 years of age with the intent that the child: (i) commit suicide; or (ii) engage in conduct causing serious bodily injury to the child; or (B) the actor has previously violated a temporary restraining order or injunction issued under Chapter 129A, Civil Practice and Remedies Code.

(3) would cause a reasonable person to: (A) fear bodily injury or death for himself or herself; (B) fear bodily injury or death for a member of the person’s family or household or for an individual with whom the person has a dating relationship; (C) fear that an offense will be committed against the person’s property; or (D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. (b) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted of an offense under this section or of an offense under any of the following laws that contains elements that are substantially similar to the elements of an offense under this section: (1) the laws of another state; (2) the laws of a federally recognized Indian tribe; (3) the laws of a territory of the United States; or (4) federal law. (c) For purposes of this section, a trier of fact may find that different types of conduct described by Subsection (a), if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct. (d) In this section:

Family Violence Procedures & Rules

(1) “Dating relationship,” “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code. Violation of Certain Court Orders or Conditions of Bond in a Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Indecent Assault, Stalking, or Trafficking Case – Texas Penal Code § 25.07 (a) A person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault or abuse, indecent assault, stalking, or trafficking case and related to the safety of a victim or the safety of the community, an order issued under Subchapter A, Chapter 7B, Code of Criminal Procedure, an order issued under Article 17.292, Code of Criminal Procedure, an order issued under Section 6.504, Family Code, Chapter 83, Family Code, if the temporary ex parte order has been served on the person, Chapter 85, Family Code, or Subchapter F, Chapter 261, Family Code, or an order issued by another jurisdiction as provided by Chapter 88, Family Code, the person knowingly or intentionally: (1) commits family violence or an act in furtherance of an offense under Section 20A.02, 22.011, 22.012, 22.021, or 42.072; (2) communicates: (A) directly with a protected individual or a member of the family or household in a threatening or harassing manner; (B) a threat through any person to a protected individual or a member of the family or household; or (C) in any manner with the protected individual or a member of the family or household except through the person’s attorney or a person appointed by the court, if the violation is of an order described 9|Page

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by this subsection and the order prohibits any communication with a protected individual or a member of the family or household; (3) goes to or near any of the following places as specifically described in the order or condition of bond: (A) the residence or place of employment or business of a protected individual or a member of the family or household; or (B) any child care facility, residence, or school where a child protected by the order or condition of bond normally resides or attends; (4) possesses a firearm; (5) harms, threatens, or interferes with the care, custody, or control of a pet, companion animal, or assistance animal that is possessed by a person protected by the order or condition of bond; or (6) removes, attempts to remove, or otherwise tampers with the normal functioning of a global positioning monitoring system. (a-1)For purposes of Subsection (a)(5), possession of a pet, companion animal, or assistance animal by a person means:(1) actual care, custody, control, or management of a pet, companion animal, or assistance animal by the person; or (2) constructive possession of a pet, companion animal, or assistance animal owned by the person or for which the person has been the primary caregiver.

(c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections. (d) Reconciliatory actions or agreements made by persons affected by an order do not affect the validity of the order or the duty of a peace officer to enforce this section. (e) A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may not arrest a person protected by that order for a violation of that order. (f) It is not a defense to prosecution under this section that certain information has been excluded, as provided by Section 85.007, Family Code, or Article 17.292, Code of Criminal Procedure, from an order to which this section applies. (g) As amended by Acts 2021, 87th Leg., ch. 787 (HB 39) An offense under this section is a Class A misdemeanor, except the offense is: (1) subject to Subdivision (2), a state jail felony if it is shown at the trial of the offense that the defendant violated an order issued under Subchapter A, Chapter 7B, Code of Criminal Procedure, following the defendant’s conviction of or placement on deferred adjudication community supervision for an offense, if the order was issued with respect

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(b) For the purposes of this section: (1) “Family violence,” “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code. (2) “Firearm” has the meaning assigned by Chapter 46. (2-a) “Global positioning monitoring system” has the meaning assigned by Article 17.49, Code of Criminal Procedure. (3) “Assistance animal” has the meaning assigned by Section 121.002, Human Resources Code. (4) “Sexual abuse” means any act as described by Section 21.02 or 21.11. (5) “Sexual assault” means any act as described by Section 22.011 or 22.021. (6) “Stalking” means any conduct that constitutes an offense under Section 42.072. (7) “Trafficking” means any conduct that constitutes an offense under Section 20A.02. (8) “Indecent assault” means any conduct that constitutes an offense under Section 22.012.

to a victim of that offense; or (2) a felony of the third degree if it is shown on the trial of the offense that the defendant: (A) has previously been convicted two or more times of an offense under this section or two or more times of an offense under Section 25.072, or has previously been convicted of an offense under this section and an offense under Section 25.072; or (B) has violated the order or condition of bond by committing an assault or the offense of stalking. (g) As amended by Acts 2021, 87th Leg., ch. 915 (HB 3607) An offense under this section is a Class A misdemeanor, except the offense is: (1) subject to Subdivision (2), a state jail felony if it is shown at the trial of the offense that the defendant violated an order issued as a result of an application filed under Article 7B.001(a-1), Code of Criminal Procedure; or (2) a felony of the third degree if it is shown on the trial of the offense that the defendant: (A) has previously been convicted two or more times of an offense under this section or two or more times of an offense under Section 25.072 or has previously been convicted of an offense under this section and an offense under Section 25.072; or (B) has violated the order or condition of bond by committing an assault or the offense of stalking. (h) For purposes of Subsection (g), a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense under this section or Section 25.072 is considered to be a conviction under this section or Section 25.072, as applicable. Unlawful Installation of Tracking Device – Texas Penal Code § 16.06

Family Violence Procedures & Rules

(a) In this section: (1) “Electronic or mechanical tracking device” means a device capable of emitting an electronic frequency or other signal that may be used by a person to identify, monitor, or record the location of another person or object. (2) “Motor vehicle” has the meaning assigned by Section 501.002, Transportation Code. (b) A person commits an offense if the person knowingly installs an electronic or mechanical tracking device on a motor vehicle owned or leased by another person. (c) An offense under this section is a Class A misdemeanor. (d) It is an affirmative defense to prosecution under this section that the person: (1) obtained the effective consent of the owner or lessee of the motor vehicle before the electronic or mechanical tracking device was installed; (2) assisted another whom the person reasonably believed to be a peace officer authorized to install the device in the course of a criminal investigation or pursuant to an order of a court to gather information for a law enforcement agency; or (3) was a private investigator licensed under Chapter 1702, Occupations Code, who installed the device: (A) with written consent: (i) to install the device given by the owner or lessee of the motor vehicle; and (ii) to enter private residential property, if that entry was necessary to install the device, given by the owner or lessee of the property; or (B) pursuant to an order of or other authorization from a court to gather information. (e) This section does not apply to a peace officer who installed the device in the course of a criminal investigation or pursuant to an order of a court to gather information for a law enforcement agency. Indecent Assault - Texas Penal § 22.012 11 | P a g e

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(a) A person commits an offense if, without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person, the person: (1) touches the anus, breast, or any part of the genitals of another person; (2) touches another person with the anus, breast, or any part of the genitals of any person; (3) exposes or attempts to expose another person’s genitals, pubic area, anus, buttocks, or female areola; or (4) causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of any person. (b) An offense under this section is a Class A misdemeanor. (c) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both. Note based on how this statute is worded that a person can be prosecuted for assault family violence and this statute simultaneously, as per § 22.012 (4)(c). If prosecuted solely under this statute there is not a specific finding of family violence, and as such, no collateral consequences which would necessarily follow a conviction with a finding of family violence.

IV. Rules & Procedures to Know Texas Rules of Evidence Which can Impact Assault Family Violence Cases: 1. Rule 403 [Relevance Balancing Test]

Gigliobianco v. State, outlines the 6 distinct issues that the Court must balance and consider under a 403 analysis, as follows: (a) Inherent probative force of the proffered evidence along with (b) Proponent’s need for the evidence against (c) Any tendency of the evidence to suggest decision on an improper basis (d) Any tendency of the evidence to confuse or distract the jury from the main issues of the case, 12 | P a g e

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You can and should request a gatekeeper hearing outside of the presence of the jury regarding the prejudicial effect of certain types of evidence, should the Court have overruled your basic objection as to relevance under Rule 401. You should object and explain to the Court that if the Court has found the evidence to be relevant, you would further move to exclude the evidence under Rule 403 in that the probative value of the evidence is substantially outweighed by its prejudicial effect. You can require that the Court engage in a balancing test based upon an objection made under Rule 403. See Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999).

(e) Any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (f) Likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. See Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006). 2. Rule 412 [Evidence of Previous Sexual Conduct – Rape Shield Rule] This rule has limited applicability in an Assault Family Violence case but can apply when the assaultive allegations are coupled with other allegations including rape. In an Assault Family Violence case this rule will usually only apply in those cases which involve adults. In those instances, generally speaking reputation/opinion evidence and evidence of specific instances of sexual conduct are not admissible. There are exceptions to this general rule of exclusion such as:

Family Violence Procedures & Rules

a. Evidence is necessary to rebut or explain scientific or medical evidence offered by the State (i.e.: the tears to the anus were due to another sexual encounter). b. Evidence is offered on the premise to establish the previous sexual behavior between the accused and the victim, for purposes of establishing consent. Note: If the state offers testimony to establish the relationship between the parties, you should certainly attempt to introduce this type of evidence because the State has opened the door. c. Motive or bias of the alleged victim. d. Constitutionally required, and e. Probative value outweighs the danger of undue prejudice. If you intend to introduce this type of evidence, prior to questioning the alleged victim, you must inform the court and request a hearing outside of the presence of the jury. The Court will then conduct an “in camera” hearing, recorded by the court reporter, to determine what if any evidence of this type will be admissible, and will limit questioning accordingly. After concluding this hearing, the Court will seal the entire contents of the “in camera” hearing which was conducted for appellate purposes, and the record shall be sealed. If you are limited or otherwise prohibited from questioning the alleged victim under Rule 412, you must make a record and object, and require the Court to conduct a mandatory “in camera” hearing, and as such, you have effectively made the Court a gatekeeper of this evidence for purposes of appeal. 3. Rule 703 [Expert Opinions] An expert can rely on basically any evidence including hearsay evidence, which would otherwise be inadmissible, in forming the basis of an opinion, so long as it is the type of information, facts or data reasonably relied upon by experts in a particular field. 13 | P a g e

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4. Rule 704 [Expert Can Give an Opinion on an Ultimate Issue] If the Expert gives an opinion regarding an ultimate issue in the case, to be decided by the jury (i.e.: causation), it is not objectionable because it involves an ultimate issue reserved to the jury. Note: While I understand the meaning of this rule, if the prosecutor asks an expert did my client sexually assault that child or person, I am going to object because that goes beyond the ultimate issue itself and is an attempt to usurp the jury’s function. This objection may not work, but fundamental fairness and due process of law should require the Court to not allow such testimony as unfairly prejudicial. 5. Rule 705 [Gatekeeper Hearing] The Court, upon request generally in the form of a pre-trial motion and/or notice, require that the expert appear and testify under a type of voir dire process, outside the presence of the jury, regarding their opinion and the underlying facts and data supporting said opinion. For the expert to be allowed to testify as to their opinion, it must be established that there is a sufficient basis for their opinion, otherwise the opinion is inadmissible. Further, the Court can conduct a balancing test when the underlying facts and data would be otherwise inadmissible, if the danger exists that they will be used for a purpose other than as an explanation or support for the expert’s opinion is outweighed by their unfairly prejudicial value. In this instance, you can request a limiting instruction.

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Family Violence Procedures & Rules

Note: Keep in mind that the Texas Rules of Evidence, are in fact rules of exclusion, with some exceptions. In cases involving sexual assault or aggravated sexual assault you need to have a firm command of these rules of evidence, and the applicable case precedent, to successfully defend your client and preserve error for appellate purposes.

hearing outside of the presence of the jury such that you can cross examine the State’s witnesses regarding this proffer. The Court must make a finding, at the conclusion of this proffer, that the jury could find that the extraneous conduct was committed beyond a reasonable doubt. You must require the Court to make this finding on the record, and subject to your continued objection. You should also request that the State premise on which basis and for what purpose under 404(b) the State requesting that the jury consider this evidence. Once the evidence and/or testimony is admitted, over your objection, you must request a limiting instruction regarding the evidence and/or testimony. If you do not follow these steps in some form, you will not preserve your objection for purposes of appeal, and you will not be entitled to a jury instruction regarding the extraneous conduct. Important Cases: Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008) Extraneous offenses type evidence may be admissible to rebut defensive theories of fabrication, frame up, or retaliation. Therefore, be aware of fact if you believe the child is lying because the mother is retaliating against you for some reason, you may have just opened the door to an otherwise inadmissible extraneous act.

Family Violence Procedures & Rules

Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005) Leaving a false impression with the jury. If a defendant makes a general statement like I would never have sex with a minor, he may have opened the door to a relevant act or character trait. An extraneous act which tends to rebut such testimony may be admissible to impeach the defendant. However, when evidence of this nature is introduced at trial the jury may not consider it as substantive of the charged offense, but only as evidence that the defendant misrepresented himself. Note: Ultimately, this rule of evidence is used in conjunction with TCCP 38.37 in child sexual assault cases, to introduce all types of extraneous acts to leave the impression with the jury that your client did it once, so therefore it is logical to assume he did it again. Our recourse is to continue to object and hold the State to its burden regarding the proffer of testimony and/or evidence and require the Court to do its job in assessing the credibility of the testimony and/or evidence and give the Defendant an appropriate limiting instruction. Articles of TCCP Which can Impact Assault Family Violence Cases 1. TCCP 38.07 [Testimony in Corroboration of Victim of Sexual Offense] This provision provides that a conviction for Sexual Assault, and Aggravated Sexual Assault is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is said to have occurred. 15 | P a g e

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This provision does not apply to on offense where the alleged victim is 17 years of age or younger; a person 65 years of age or older; or a person 18 years of age or older who because of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person’s need for food, shelter, medical care or protection from harm. 2. TCCP 38.071 [Testimony of Child who is Victim of Offense] This provision provides the Court with guidance regarding the hearing to conduct in which the court determines that a child who is less than 13 years of age would be unavailable to testify in the presence of the defendant about an allegation regarding Indecency with a Child, Sexual Assault, and Aggravated Sexual Assault. There are other criminal offenses to which this section applies but have no application in this paper. This provision basically provides the Court with the parameters and guidelines by which it must determine during a hearing how and if the recorded statement of a child, made before the indictment is returned or complaint filed, is admissible into evidence. This provision allows for the child to testify in another room other than the courtroom and be viewed by the jury. This provision also allows for the propounding of written interrogatories to the child. If the Court determines that the testimony of the child is to be taken under Sections 3 or 4 of this article or if the Court finds that the testimony of the child taken under Subsection 2 or 5 of this article is admissible into evidence, the Court may not require the child to testify in Court at the proceeding for which the testimony was taken, unless the Court finds there is good cause. There are additional provisions for how the questioning and cross examination is to take place, and if the child is required to testify in Court, the reasonable steps necessary to protect the child’s psychological well-being including allowing the child to testify via closed circuit video.

Coronado v. State, 351 S.W. 315 (Tex. Crim. App. 2011) A list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is not a constitutional substitute for live cross-examination and confrontation. (Videotape procedures under Art. 38.071, §2, with use of written interrogatories in lieu of live testimony and cross-examination, did not satisfy Crawford v. Washington). 3. TCCP 38.072 [Hearsay Statement of Certain Abuse Victims] The outcry statement is the statement made by the child regarding the alleged assault to the first person 18 years of age or older describing in sufficient detail the alleged offense. The statement must be otherwise admissible under Article 38.37 of TCCP and Rules 404 and 405 of TRE. This article applies only in cases in which the child which makes the statement is less than 14 years old. A statement which meets the description as provided for under Subsection 16 | P a g e

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Family Violence Procedures & Rules

Note: Be aware of the confrontation clause if this issue is raised, and object and require the Court to conduct the required hearing and argue that any type of accommodation which does not provide you with the ability to adequately crossexamine the alleged child victim violates the tenants of the confrontation clause of the U.S. Constitution.

(a) of 38.072 is not inadmissible as hearsay if the State gives notice of its intent to use said statement, provides the subject matter of the statement, and by whom the statement is made. The Court shall conduct a hearing outside of the jury’s presence to determine if the statement is reliable. Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) The outcry witness is the first person 18 years of age or older, to whom the child makes a statement that is some discernable manner describes the alleged offense. Note: You do not necessarily need to request notice of the outcry, as it is specifically required by statute if the State intends to use such a statement. 4. TCCP 38.37 [Evidence of Extraneous Offenses or Acts]

Family Violence Procedures & Rules

This provision under Sec. 1 allows the State to use evidence of other crimes, wrongs, acts, if committed against a child victim less than 17 years of age for its bearing on relevant matters, including the state of mind of the defendant and the child; and the previous and subsequent relationship existing between the defendant and the child. This is in addition to and in some cases circumvention of TRE 404 and 405. This is the way the State attempts to circumvent the requirements of TRE 404 (b) and its limited use regarding other crimes, wrongs, or acts, which may have been committed by the Defendant. You should always request notice of extraneous offenses by way of a filed notice request and/or motion. If you file a motion requesting notice you must get a ruling and order stating how many days prior to trial, must the State give you notice of said extraneous acts. Under Sec. 2 of this article, if the State gives you at least 30 days’ notice of its intent to introduce evidence that the defendant has committed a separate criminal offense which is listed under Sec. 2 ((a) (b)) – (basically all listed offenses which are sexually related offenses), they are entitled to admit same into evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Note: This is basically the kitchen sink approach when it comes to extraneous offenses and their admissibility at trial. The hearing must be conducted outside the presence of the jury for the Court to determine whether a jury could find that the separate offense was committed beyond a reasonable doubt. Always object to any evidence admitted under this article and request the appropriate limiting instruction. Also, you should object to relevance under TRE 403, after you have sufficiently objected to this evidence on other grounds. 5. TCCP 38.371 [Evidence in Prosecutions of Certain Offenses Involving Family Violence]

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Between this article and TCCP 38.37, the State can put our clients to trial over any allegation, whether they have requisite proof or not because they have the ability to convict a defendant of the charged offense, because he has previously been convicted of a similar type of criminal offense. This statute can become troublesome as it applies to all cases involving assault, and aggravated assault. The problem with this article is that the State may now introduce this type of evidence, subject to the TRE or any other applicable law, and so long as it would assist the jury. While this provision does not allow the presentation of character evidence that would be otherwise inadmissible under the TRE or other applicable law, either party may offer testimony or other evidence of all relevant facts and circumstances that would assist the jury in determining whether the defendant committed the offense, including testimony or evidence regarding the nature of the relationship between the defendant and the alleged victim. Note: The applicability of this specific article will not likely come up very often in a case involving sexual or aggravated sexual assault, unless the State has charged in a multi count indictment, allegations of sexual assault and aggravated assault. The jury can only consider this type of evidence for determining those acts as alleged in said multi-count indictment if one of the counts involves a type of family violence assault. You may want to consider requesting that the aggravated and/or other type of assaultive offense be severed from the allegations regarding sexual assault on this very basis. This is because, regardless of the limiting instruction given or the jury instruction requested, information of this nature if admitted will likely be considered by the jury for all purposes.

You should become very familiar with these articles under the TCCP, as they can be extremely pertinent and relevant in defending an Assault Family Violence allegation.

V. Defenses Consent While a somewhat rare defense, there are circumstances where the act(s), which may be considered assaultive, are invited. This is a situation in a relationship where the parties are participating in consensual acts, when viewed independently of the relationship, would be considered assaultive in nature. Such as, a couple that enjoys rough sex, or other sexual stimulus such as erotic asphyxiation (also known as asphyxiophilia, hypoxyphilia or breath control play). This is a situation where the couple purposely engage in one of them intentionally restricting the air flow and flow of oxygen to the brain of their partner, for the purposes of sexual arousal. Under these types of circumstances, the party complaining after the event is now alleging that they didn’t 18 | P a g e

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Note: I would request notice similar to the manner in which notice is requested under TRE 404 (b) and TCCP 38.37. I would also require the State to make a sufficient proffer outside of the jury’s presence, and request that the State determine if a jury could find that the defendant committed the alleged extraneous act beyond a reasonable doubt.

agree to that act or conduct, and it wasn’t consensual. Can be difficult to defend because you will likely have some type of visible injury if they have made such a complaint to law enforcement. Specifically, while Texas Penal Code § 22.06 is available for use under subsection (a), it is also applicable to the defense of self-defense, which will be discussed in detail below. Also, if you are investigating and developing a defensive strategy which involves a claim of consent as a defense, you must remember that you need to put on sufficient evidence in some manner, such that you can request a jury instruction on consent. This is not burden shifting, but if the jury does not hear or is presented any evidence which would support an instruction on consent, then the Court will not allow your requested jury instruction on consent. This can be accomplished based upon the effective cross-examination of the complaining witness, or through calling witnesses in your case-in-chief, after the State has rested. It can be raised through an audio or video that is entered into evidence which refers to the circumstances of the event and offers an explanation such as “they like to be choked”. However, the requested instruction must be based upon evidence which has been admitted for the jury’s consideration, and not argument of counsel. It certainly can be raised by calling your client to testify, but again this type of decision is going to be based upon your desired trial strategy. Consent as a Defense to Assaultive Conduct – Texas Penal Code § 22.06

Family Violence Procedures & Rules

(a) The victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to prosecution under Section 22.01 (Assault), 22.02 (Aggravated Assault), or 22.05 (Deadly Conduct) if: (1) the conduct did not threaten or inflict serious bodily injury; or (2) the victim knew the conduct was a risk of: (A) his occupation; (B) recognized medical treatment; or (C) a scientific experiment conducted by recognized methods. (b) The defense to prosecution provided by Subsection (a) is not available to a defendant who commits an offense described by Subsection (a) as a condition of the defendant’s or the victim’s initiation or continued membership in a criminal street gang, as defined by Section 71.01. Self-Defense Self-defense is the claim that your client, based on the circumstances involved, reasonably perceived an imminent threat, and responded in a proportional manner, and was not the initial aggressor. This type of defense is a defense that can excuse criminal responsibility even if the prosecutor proves the elements of the crimes charged. However, self-defense is not an affirmative defense because the burden of proof does not shift and remains the prosecutor’s responsibility. If you are investigating and developing a defensive strategy which involves a claim of self-defense, you must remember that you need to put on sufficient evidence in some manner, such that you can request a jury instruction on self-defense. Again, as in the consent defense, this is not a burden 19 | P a g e

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shifting argument, but if the jury is not presented with any evidence which would support an instruction on self-defense, the Court will not allow your requested instruction on self-defense. Again, much like a consent defense, this can be accomplished based upon the effective cross-examination of the complaining witness, or through calling witnesses in your case-in-chief, after the State has rested. It can be raised through an audio or video that is entered into evidence which refers to the circumstances of the event and offers an explanation such as “they came at me with a knife and hit me first”. However, the requested instruction must be based upon evidence which has been admitted for the jury’s consideration, and not argument of counsel. It certainly can be raised by calling your client to testify, but again this type of decision is going to be based upon your desired trial strategy and may be risky depending upon your client’s criminal history. Specifically, in order to raise self-defense as an issue for the jury to consider, there must be some evidence on aggression on the part of the complaining witness, or under very unfortunate circumstances the deceased individual. If you find yourself in a situation defending a family violence type assault which resulted in your client using deadly force, you need to be aware of the term “reasonably believes” as provided for in Texas Penal Code § 9.32 as it encompasses a traditional holding that a defendant is justified in defending against danger as he reasonably perceives it. See Hamel v. State, 916 S.W.2d 491 (Tex. Crim. App. 1996). This concept of reasonableness is couched in and interpreted from the defendant’s perspective at the time they acted. See Generally, Contreras v. State, 73 S.W.3d 314 (Tex.App.- Amarillo 2001, pet. ref’d). The key component in utilizing self-defense at trial is the reasonableness of the accused action(s) under the circumstances. This is because as we argue that it was reasonable that our client used force to defend themselves against the complaining witness, we must explain the circumstances which dictated the need for the use force or deadly force, and that it was reasonable in that instance. Self-Defense - Texas Penal Code § 9.31

(1) knew or had reason to believe that the person against whom the force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; (2) did not provoke the person against whom the force was used; and 20 | P a g e

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(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (b) The use of force against another is not justified: (1) in response to verbal provocation alone; (2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c); (3) if the actor consented to the exact force used or attempted by the other; (4) if the actor provoked the other’s use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor; or (5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05.

Family Violence Procedures & Rules

(c) The use of force to resist an arrest or search is justified: (1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and (2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary. (d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34. (e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section. (f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat. There is a Lack of Evidence 21 | P a g e

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This is generally speaking our strongest line of defense, because simply put you argue given the circumstances and facts available the State does not have enough credible evidence to convict your client beyond a reasonable doubt. I believe in these types of cases, often as in sexual assault cases (children or adults), the State places a huge amount of pressure on the jury to find a way to convict, because people just don’t lie about things of this nature. That is simply an ideological and naïve view of our society. We are generally a selfish group of individuals that are capable of saying or doing anything to prove the point we believe needs to be made. It is not about seeking the truth with a complaining witness that has decided that the ends justify the means. I also don’t expect the State to exercise restraint if they believe the complaining witness. But I do believe we can fashion our argument to the jury, such that they understand the pressure they feel is not being applied by the defense, and their duty is to follow the law and render a verdict based on evidence, not emotion. We start this process in voir dire and emphasize the State’s burden of proof at each phase of the trial. Lack of proof is a viable defense in a swearing match case, even if injuries are present, that is why helping the jury understand the relationship between the parties is critical in demonstrating the lack of proof, and as such, the State cannot meet its burden. I know in these types of emotional cases the client wants to be vindicated. I don’t know about you, but I am not in the vindication business, I am seeking a “not guilty” and sending my client back home to his family.

Conclusion

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An Assault Family Violence allegation can be one of the most difficult type cases to defend, because of the nature of the allegation itself. We sometimes must force our clients to tell us their story because of their feelings of shame, cultural bias or even fear of the unknown. We should strive to give them the safe space to discuss their trauma and help develop a defensive strategy. Other times, we are needed by our clients to express their frustration, feelings of manipulation and loss or downright anger over the situation. Either way, giving clients an opportunity to cool off and separating their feelings from the ongoing and potential additional criminal liabilities enlightens their understanding. I hope this paper and presentation have aided you, even just a little, to continue the fight for our client’s liberty and freedom.

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Post-Conviction Litigation of State Court Convictions Allison Clayton

The Law Office of Allison Clayton PO Box 64752 Lubbock, TX 79412 806.773.6889 phone 888.688.4515 fax allison@allisonclaytonlaw.com email http://www.allisonclaytonlaw.com/ website

Post-Conviction Litigation

Speaker:

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

Post-Convic�on Li�ga�on of State Court Convic�ons

Post-Conviction Litigation

Allison Clayton Law Oﬃce of Allison Clayton P.O. Box 64752 Lubbock, Texas 79412 (806) 773-6889 Allison@AllisonClaytonLaw.com

Post-Conviction Litigation

Table of Contents I.

Acknowledgements .................................................................................................... 1

II.

Introduc�on ............................................................................................................... 1

III.

Dra�ing and Timing ................................................................................................. 1 III.A. One Writ ......................................................................................................... 1 III.B. One Form ......................................................................................................... 1 III.C. One Year ......................................................................................................... 2

IV.

Inves�ga�on .............................................................................................................. 2

Substan�ve Maters ................................................................................................... 3 V.A. Authority ........................................................................................................... 4 V.B. Grounds for Relief ............................................................................................. 4 V.B.1. Actual Innocence............................................................................................... 4 V.B.2. Atacks on Guilty Pleas .................................................................... 7 V.B.3. Confessions ..................................................................................... 7 V.B.4. Conﬂict of Interest .......................................................................... 8 V.B.5. Denial of Counsel ............................................................................ 8 V.B.6. Denial of Right to Appeal/File PDR ................................................. 9 V.B.7. Double Jeopardy ............................................................................. 9 V.B.8. False Evidence ................................................................................. 9 V.B.9. Improper/Illegal Sentences ........................................................... 11 V.B.10. Ineﬀec�ve Assistance of Counsel .................................................. 12 V.B.11. Parole Considera�ons ................................................................... 15 V.B.12. Prosecutorial / Law Enforcement Misconduct.............................. 15 V.C. Hurdles or Defenses ........................................................................................ 16 V.C.1. Non-Cognizable claims .................................................................. 17 V.C.2. Law of the case ............................................................................. 17 V.C.3. Direct appeal default..................................................................... 17 V.C.4. State cons�tu�onal and statutory claims ..................................... 18 V.C.5. Finality ........................................................................................... 18 V.C.6. Trial procedural default ................................................................. 19 V.C.7. Repeated applica�ons................................................................... 19 V.C.8. Restraint requirement ................................................................... 20 V.C.9. Juveniles ........................................................................................ 21 V.C.10. Exhaus�on of other remedies....................................................... 21 V.C.11. Laches............................................................................................ 21 V.C.12. Dual forum rule ............................................................................. 21

Table of Contents cont’d Procedural Maters ................................................................................................... 22 VI.A. In the Trial Court ............................................................................................. 22 VI.B. In the Court of Criminal Appeals..................................................................... 23

VII.

Ar�cle 11.071 ........................................................................................................... 24 VII.A. Applica�on to Death Penalty Case .................................................................. 24 VII.B. Cons�tu�onality of the Statute ...................................................................... 24 VII.C. What Is and Is Not a Writ ................................................................................ 24 VII.D. Representa�on by Counsel ............................................................................. 25 VII.D.1. Trial court responsible for appointment .................................... 25 VII.D.2. Appointment subject to approval by Court of Criminal Appeals25 VII.D.3. Counsel must be statutorily competent .................................... 25 VII.D.4. The Applicant need not be competent ...................................... 25 VII.D.5. On to federal court ..................................................................... 25 VII.E. Maters of Money ........................................................................................... 26 VII.F. Inves�ga�on of Grounds ................................................................................. 26 VII.G. Filing of Applica�on ........................................................................................ 26 VII.G.1. Time limit to file ......................................................................... 26 VII.G.2. 90 day extension to file .............................................................. 26 VII.G.3. The �me limit to file is strict some of the �me.......................... 27 VII.H. Requisites of the Applica�on .......................................................................... 27 VII.H.1. No form required ....................................................................... 27 VII.H.2. The minimum to include ............................................................ 27 VII.H.3. Plead the facts............................................................................ 27 VII.H.4. Oath or declara�on .................................................................... 28 VII.I. Subsequent Applica�on .................................................................................. 28 VII.I.1. Four statutory excep�ons .......................................................... 28 VII.I.2. CCA screens for excep�on.......................................................... 29 VII.J. Answer to Applica�on ..................................................................................... 29 VII.K. Trial Court Resolu�on...................................................................................... 29 VII.K.1. No issues to resolve ................................................................... 29 VII.K.2. Issues to resolve ......................................................................... 29 VII.K.3. Discovery .................................................................................... 30 VII.K.4. The burden of proving claims .................................................... 30 VII.K.5. The burden of proving harm ...................................................... 30 VII.L. Review by Court of Criminal Appeals.............................................................. 31

Post-Conviction Litigation

VI.

Post-Conviction Litigation

Table of Contents Cont’d VIII.

Ar�cle 11.072 ........................................................................................................... 31 VIII.A. Authority ......................................................................................................... 31 VIII.B. Community Supervision .................................................................................. 31 VIII.C. Dra�ing and Procedures ................................................................................. 32 VIII.D. Misdemeanor Convic�ons .............................................................................. 32 VIII.D.1. Authority .................................................................................... 32 VIII.D.2. Grounds...................................................................................... 32 VIII.D.3. Dra�ing ...................................................................................... 32 VIII.E. Appeals from the Denial of Relief ................................................................... 32

IX.

Ar�cle 11.073 ........................................................................................................... 33

Conclusion ............................................................................................................... 34

ACKNOWLEDGMENTS

II.

INTRODUCTION

III.

DRAFTING AND TIMING

The scaﬀolding of this paper has long been in circula�on, ge�ng updated along the way. It was originally dra�ed by Vice President and Associate Dean Catherine Burnet from South Texas College of Law, borrowed and updated by Richard Wetzel of Aus�n, then again updated by Philip Wischkaemper of Lubbock. Philip is the one who shared it with me, and I have done my best to update and substan�ally add to it.

The goal of this paper is to bring some clarity to the o�en confusing requirements surrounding post-convic�on writs of habeas corpus and post-convic�on DNA tes�ng. The writ has a noble heritage, da�ng back to Twel�h Century England. In the American criminal jus�ce system, the post-convic�on writ is the primary vehicle by which state and federal prisoners can atack the cons�tu�onal validity of their confinement. Beginning with the passage in 1996 of the An�terrorism Effec�ve Death Penalty Act (AEDPA), the availability of the writ on the federal level (that is, a federal writ challenging a state convic�on) has been severely curtailed. However despite these limita�ons, it remains one of the most vital mechanisms for enforcing Bill of Rights protec�ons. This paper will focus primarily on Texas felony convic�ons atacked in state court through post-convic�on writs. Original writs, atacks on misdemeanor convic�ons, and challenges to community supervision orders are also discussed, but with less detail. Chapter 64 mo�ons are also discussed. In that post-convic�on writs are writen documents, filed following convic�on, they are o�en treated as species of appeal or appellate prac�ce. But writs are much more than that. Unlike the direct appeal, the post-convic�on writ is a vehicle that allows the convicted defendant to develop extra record evidence in support of his claim that his confinement is unlawful. Alleging or defending against a writ, therefore, requires that the prac��oner blend the skills of both trial and appellate counsel.

The general rule in Texas is that an applicant has one chance to ﬁle a writ, using one required form, within one year of the �me the convic�on becomes ﬁnal.

III.B.

ONE FORM Eﬀec�ve January 1, 2001, the Texas Court of Criminal Appeals has a required applica�on for writs of habeas corpus that must be followed in any Ar�cle 11.07 atack. The form is available -1-

Post-Conviction Litigation

III.A. ONE WRIT With few excep�ons, a Texas prisoner will have only one chance to atack the cons�tu�onality of his convic�on. In order to prevail on a subsequent writ applica�on, the Texas applicant must sa�sfy one of the two condi�ons of Ar�cle 11.07, Sec�on 4. Facts must be pled to demonstrate the existence of a statutory excep�on. Ex parte Sowell, 956 S.W.2d 39 (Tex. Crim. App. 1997).

online from the web page of the Texas Court of Criminal Appeals. It may be downloaded in PDF, Word, or WordPerfect formats. The Court of Criminal Appeals has been very strict in requiring compliance with the form. In Ex parte Blacklock, 191 S.W.3d 718 (Tex. Crim. App. 2006), the Court of Criminal Appeals dismissed an applica�on which failed to set forth on the form the claims presented and a concise factual statement in support of the claims. The applicant in that case had filled out the form, but he did not fill out the sec�on of the form for the grounds and suppor�ng facts, instead op�ng to atach a two-page handwriten memo se�ng forth the grounds and suppor�ng facts. The court stone cold dismissed the case because “the form was not filled out as required by the appellate rules in that the sec�ons of the form that require a list of the grounds for relief and the suppor�ng facts were not completed.” Id. at 718. So, what I do in my prac�ce is I will fill out the form completely and then at the �me I file the pe��on (i.e. the completed form), I will also file a fullon brief in support. III.C.

ONE YEAR There is no statutory limita�ons period during which a state Ar�cle 11.07 writ must be filed. However, if applicant intends to pursue the claim of a cons�tu�onal viola�on in the state court proceedings to federal court, then the provisions of AEDPA impose a one-year filing deadline from the �me the convic�on becomes final. The federal statute does provide for tolling of this one-year statute of limita�ons during the pendency of a state writ applica�on, and it does provide for limited excep�ons to the rule.

Post-Conviction Litigation

IV.

INVESTIGATION

The type of inves�ga�on necessary to raise the extra-record factual basis to support a legal claim for relief will vary in each case. A claim of double jeopardy, for example, presents different inves�ga�ve challenges than a claim of ineffec�ve assistance of counsel. The prac��oner must be able to adapt to the inves�ga�on challenges unique both to the subject mater of the claim for relief and her client’s case. It will almost never be sufficient for habeas corpus counsel to rely solely on the transcript, statement of facts, and clerk’s record from the convic�on, be it upon a plea of guilty or following trial either to the court or before a jury. Prac�ce manuals devoted to habeas corpus procedures list poten�al sources of factual informa�on in support of claims of post-convic�on relief in state or federal court. Frequently these non-exhaus�ve lists are inventories of individuals whom counsel should interview and lists of records and physical items that habeas counsel should examine. Here are some poten�al sources of factual informa�on for writ counsel to consult in working up a writ: • Client • Members of client’s family • Par�cipants in the defendant’s defense (lawyers, inves�gators, para-professionals, and expert witnesses) • Co-defendants (including trial counsel and members of the defense team of all codefendants) -2-

•

• • • • • • •

• •

• • •

The defendant’s acquaintances, including friends, companions at the �me of the offense, teachers, counselors, coaches, employees and employers, spiritual advisors and church members, medical doctors and other health professionals, mental health professionals, social workers and other government or private social service personnel, proba�on and parole officers, and jail and prison officials Law enforcement personnel involved in preparing or presen�ng the case at trial Prosecu�on and defense witnesses at trial (both those called and those who were available but never called) Newspaper or media reporters The official record in the case and in the cases of all co-defendants (both clerk’s file and trial transcript) Any state post-convic�on record (pleadings, answers, mo�ons, hearing transcripts, exhibits, memorandums of law, court orders, and post-convic�on appellate record) Trial and appellate counsels’ files Law enforcement’s files, as well as documents and other evidence (including police reports, inventory logs, crime scene photographs, applicant’s mug shots, reports on any medical or forensic examina�ons, jail records, police and prosecutorial policy manuals, and any federal agency inves�ga�ve files pertaining to the case tried in state court) Inspec�on of the scene of the offense, as well as the scene of the arrest and any police searches or any inves�gatory procedures Records rela�ng to client’s character and background (including all school records, records rela�ng to medical or physical condi�on, records rela�ng to mental health or substance abuse, employment records, military records, records of previous incarcera�ons) General arrest and convic�on records Correspondence, pictures and memorabilia rela�ng to applicant’s childhood, family life and general background Newspaper and other media reports (both print and audio/video tapes) concerning the client’s background, the offense, police inves�ga�on, pretrial proceedings, the trial, sentencing proceedings, any post-convic�on proceedings, appellate oral argument, and all similar records for co-defendants

SUBSTANTIVE MATTERS

-3-

Post-Conviction Litigation

The state writ of habeas corpus is a powerful statutory vehicle for challenging the cons�tu�onality of a convic�on or sentence. It is a powerful tool for developing extra record evidence that is not available from the transcript of the underlying convic�on, be it the result of guilty plea or trial. A state writ of habeas corpus is not a subs�tute for direct appeal, nor is it a rehashing of issues raised on direct appeal. Ex parte Clore, 690 S.W.2d 899 (Tex. Crim. App. 1985). An 11.07 proceeding may not be brought concerning a proceeding which did not result in confinement. Ex parte Baker, 185 S.W.3d 894, 898 (Tex. Crim. App. 2006) (refusing to consider claim of denial of effec�ve counsel on post-convic�on DNA tes�ng mo�on because Chapter 64 tes�ng procedure was not the basis of confinement on aggravated sexual assault convic�on).

The importance of properly pleading facts in support of a claim for relief cannot be overemphasized. The applica�on must contain facts which, if true, would warrant the gran�ng of relief. Applica�ons which merely contain conclusions of fact or law will not result in relief to the applicant. Any factual asser�on should be sworn to by the applicant or supported by a proffer of proof by way of an affidavit or declara�on from a prospec�ve witness. If the applica�on properly alleges facts, the State will have an opportunity to respond by way of its answer. Finally, credibility determina�ons are the province of the trial court. Whether resolved by hearing or compe�ng affidavits, the trial court should make credibility determina�ons and find the facts cri�cal to a proper disposi�on of the claims presented. If the trial court’s factual determina�ons are supported by the record, they are virtually bulletproof and will carry the day in the Court of Criminal Appeals. V.A.

AUTHORITY Chapter Eleven of the Texas Code of Criminal Procedure is the statutory authority governing writs of habeas corpus. It deﬁnes the writ of habeas corpus as the remedy to be used when any person is restrained in his liberty. Post-convic�on writ procedures for felony cases are set out in Art. 11.07 and 11.071. Art.11.07 applies to applicants seeking relief from all felony judgments other than capital murder prosecu�ons in which the death penalty has been assessed. Art. 11.071 applies to capital murder convic�ons in which the death penalty has been assessed. Ar�cle 11.072 applies to misdemeanor cases. GROUNDS FOR RELIEF Post-convic�on habeas relief is available for jurisdic�onal defects, viola�ons of certain fundamental rights, and viola�ons of cons�tu�onal rights. Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002). It is not available for viola�ons of procedural statutes, even when the statute is mandatory. McCain v. State, 67 S.W.3d 204(Tex. Crim. App. 2002) (holding that although Art. 1.13(c)of the Code of Criminal Procedure states that the trial court must appoint an atorney to represent a felony defendant before the defendant may waive jury trial, the statutory provision does not embody a cons�tu�onal or fundamental right); Ex parte Sanchez, 918 S.W.2d 526 (Tex. Crim. App. 1996). In the subcategories that follow, examples are given of claims that are cognizable in an Art. 11.07 state writ, together with examples of treatment of those issues by the Texas courts.

Post-Conviction Litigation

V.B.

V.B.1. Actual Innocence An actual innocence claim is not the same as an atack on the suﬃciency of evidence to support convic�on. Ex parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002). A suﬃciency of the evidence claim is not cognizable in a post-convic�on writ whereas an actual innocence claim is. Under current federal jurisprudence, there are two types of actual innocence claims. One is a bare innocence claim which involves a substan�ve claim in which the applicant asserts his innocence based solely on newly discovered evidence. This is called a Herrera type claim a�er the Supreme Court’s decision in Herrera v. Collins, 506 U. S. 390 (1993). The Court of Criminal Appeals has stressed that Herrera type claims are meant to act as a mechanism for freeing the innocent, not as a vehicle for out of �me mo�ons for new trial. Ex parte Thompson, 153 S.W.3d 416, 420 (Tex. Crim. App. 2005). -4-

The second type of innocence claim is referred to as a Schlup type claim. It is a procedural claim in which the applicant’s asser�on of innocence does not provide a basis for relief, but rather is �ed to a showing of cons�tu�onal error at trial. It derives its name from the United States Supreme Court’s decision in Schlup v. Delo, 513 U.S. 298 (1995). Two notes on state jurisprudence. First, the Texas Legislature has effec�vely codified Schlup in Ar�cle 11.04, Sec�on 4(a)(2), which permits a subsequent writ when “by a preponderance of the evidence, but for a viola�on of the United States Cons�tu�on no ra�onal juror could have found the applicant guilty beyond a reasonable doubt.” This sec�on was successfully used (alongside Schlup) in Ex parte Allen, Nos. AP-75,580, -75,581, 2009 WL 282739 (Tex. Crim. App. Feb. 4, 2009). Second, while there is no freestanding federal actual innocence claim in federal law, there is in state law. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). The court’s ra�onale for gran�ng relief is that incarcera�on of an innocent person offends federal due process. However, the Court of Criminal Appeals has cau�oned that a convic�on should not be overturned lightly, and thus it has placed a burden on the applicant to show that the new evidence unques�onably establishes his innocence. The court uses a clear and convincing evidence standard. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). The court has extended the reasoning of Elizondo to also apply in the context of an applicant who pled guilty at the trial court. Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002). It should be noted, however, that even though in Texas we have a free-standing actual innocence claim, simply asser�ng innocence is not enough. “An actual innocence claim must be accompanied by new ‘affirma�ve evidence of the applicant’s innocence.’” Ex parte Fournier, 473 S.W.3d 789 (2015). In the Schlup type of claim, innocence is considered a gateway through which the habeas applicant must pass to have his otherwise barred cons�tu�onal claim considered on the merits. Accordingly, the applicant might show that the cons�tu�onal error probably resulted in the convic�on of one who was actually innocent. Schlup, 513 U.S. at 326-327. This is a more likely than not standard. Id. at 327. This is by no means an exhaus�ve list, but here are examples of the types of fact paterns that might support a claim of actual innocence on collateral post-convic�on atack: • Critical non-DNA physical evidence: Ex parte Reyos, No. WR-28,073-02, 2023 WL 6458560 (Tex. Crim. App. Oct. 4, 2023) (exonera�on based on newly discovered fingerprint evidence along with an exposed false confession) Exculpatory scientific evidence/DNA evidence: see the Ar�cle 11.073 Sec�on below

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False Confessions: We’ve all heard – and maybe even thought it ourselves – “I would never confess to doing something I didn’t actually do.” This very understandable thinking is one of the reasons why false confessions are so pernicious in the criminal jus�ce system. According to the Na�onal Registry of Exonera�ons, however, approximately 13% of wrongful convic�ons involved a false confession. Clearly hundreds of known defendants have falsely confessed to a crime. So, what happened?

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Post-Conviction Litigation

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Post-Conviction Litigation

The answer depends on what’s going on with the confessor. While anyone can be vic�m to a false confession, given the right scenario, young people and people with mental disabili�es are par�cularly vulnerable. There are three types of false confessions: (i) voluntary false confessions, (ii) persuaded (or internalized) false confessions, and (iii) compliant false confessions. In a voluntary false confession, the person just confesses without any pressure from outside par�es. This is usually due to psychological or psychiatric disorders, but can also be the result of intoxica�on. In the case of Ex parte Reyos, No. WR-28,073-02, 2023 WL 6458560 (Tex. Crim. App. Oct. 4, 2023), Mr. Reyos was the vic�m of a voluntary false confession brought on by a variety of internal pressures. Compliant false confessions are where interroga�on tac�cs cause an innocent person to genuinely believe that he is guilty—that his memory is simply wrong and that he in fact did do this horrible thing. Persuaded false confessions are what most people think about when they think of false confessions. This is when a third party (usually law enforcement) uses decep�on, in�mida�on, force, coercive tac�cs, and more. The Christopher Ochoa case (which isn’t even in Westlaw, but you can ﬁnd it on the Court of Criminal Appeal’s website, No. AP-74,246 (Dec. 19, 2001)) involved a lengthy interroga�on that resulted in a false confession. Years later, DNA proved Mr. Ochoa was innocent. Another case, Ex parte Brodie, No. AP-76,449, 2010 WL 4524654 (Tex. Crim. App. Nov. 10, 2010), involved a deaf man who was interrogated without a sign language interpreter for 18 hours over 8 days. He confessed and pled guilty, but ﬁngerprint and hair tes�ng later proved he was innocent. •

Legal Errors: Ex parte Johnson, 2023 WL 2995187 (Tex. Crim. App. 2023) (reversing convic�on for failure to register as a sex oﬀender, upon a guilty plea, because applicant did not, in fact, have to register as sex oﬀender); Ex parte Williams, 2023 WL 7179448 (same); Ex parte Wahlgren, 2017 WL 1496966 (Tex. Crim. App. 2017) (same); Ex parte Harbin, 297 S.W.3d 283 (Tex. Crim. App. 2009) (same)

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Miscellaneous: Ex parte Jimenez, No. WR-75,266-04, 2023 WL 3733662 (Tex. Crim. App. May 31, 2023) (exonera�on based on “false and misleading medical tes�mony” at trial); Ex parte Kelley, No. WR-87,470-01, 2019 WL 5788034 (Tex. Crim. App. Nov. 6, 2019) (exonera�on based on new evidence of two other viable suspects, one of whom had confessed to mul�ple credible witnesses); Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) (convic�on reversed based on new developments in biomechanics undermined medical trial tes�mony (note this may have been a good 11.073 issue, but the case occurred before 11.073 was passed))

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Suppression of Brady evidence proving actual innocence: Ex parte Nicholson, Nos. WR-92,799-01, -02, -03, 2021 WL 5229424 (Tex. Crim. App. Nov. 10, 2021); Ex parte Wyatt, No. AP-76,797, 2012 WL 1647004 (Tex. Crim. App. May 9, 2012) (state withheld picture and police reports suppor�ng the misiden�ﬁca�on defense); Ex parte Morton, No. AP-76,663, 2011 WL 4827841 (Tex. Crim. App. Oct. 12, 2011) (exonera�on based on newly discovered exculpatory evidence inten�onally hidden by prosecutor); Ex -6-

parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) (state suppressed witnesses’ prior inconsistent statements); Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989) (state suppressed evidence of other likely perpetrators) •

Trustworthy witness recantation: Ex parte Reed, No. WR-92,146-01, 2023 WL 3729867 (Tex. Crim. App. May 31, 2023) (exonera�on based on recanta�on of complainant, which was supported by medical tes�mony); Ex parte Quinney, No. WR94,186-01, 2023 WL 2000091 (Tex. Crim. App. Feb. 15, 2023) (exonera�on based on recanta�on of child complainant); Ex parte May, No. WR-93,399-01, 2022 WL 4088524 (Tex. Crim. App. 2022) (exonera�on based on recanta�on of sexual assault complainant); Ex parte Hawkins, No. WR-93,841-01, 2022 WL 3640504 (Tex. Crim. App. Aug. 24, 2022) (same); Ex parte Mayhugh, 512 S.W.3d 285 (Tex. Crim. App. 2016) (recanta�on of one of the two complainant’s, along with recanta�on of trial expert, jus�fied exonera�on); Ex parte Navarijo, 433 S.W.3d 558 (Tex. Crim. App. 2014) (recanta�on of complainant insufficient to support reversal given the en�re record); Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2017) (recanta�on of eyewitness, along with newly discovered evidence and the turning over of two previously undisclosed police reports supported exonera�on); Ex parte Calderon, 309 S.W.3d 64 (Tex. Crim. App. 2010) (recanta�on of child complainant was newly discovered evidence sufficient to secure exonera�on); Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006) (recanta�on of child complainant and complainant’s mom, though newly discovered, was too “dubious” to jus�fy reversal of the convic�on); Ex parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006) (exonera�on following recanta�on of complainant and one other witness); Ex parte Thompson, 153 S.W.3d 416 (Tex. Crim. App. 2005) (recanta�on of child complainant and complainant’s mom was credible, and (with support of expert tes�mony) jus�fied exonera�on); Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002) (recanta�on of complainant jus�fied exonera�on even though applicant had pled guilty)

V.B.3. Confessions Challenges to confessions on cons�tu�onal grounds are cognizable on collateral atack, even though they are more o�en raised on direct appeal. Withrow v. Williams, 507 U.S. 680 (1993) -7-

Post-Conviction Litigation

V.B.2. Atacks on Guilty Pleas In order to successfully atack a guilty plea, the applicant must show that the alleged deﬁciencies caused the plea to be unknowing and involuntary. Rodriguez v. State, 899 S.W.2d 658 (Tex. Crim. App. 1995). Among the grounds atacking guilty pleas that have been raised in the past are the following: • Erroneous admonishments by the trial court. Ex parte Smith, 678 S.W.2d 78 (Tex. Crim. App. 1984). Relief is not required if the applicant does not demonstrate that he would not have pled guilty and accepted the plea bargain had he been correctly admonished. See,e.g., Eatmon v. State, 678 S.W.2d 310(Tex. Crim. App. 1989). • State failed to abide by terms of plea bargain. Ex parte Green, 644 S.W.2d 9 (Tex. Crim. App. 1983).

(voluntariness of confession subject to independent federal review). Among the issues that might be considered on collateral atack are the following: • Whether applicant requested counsel during an interroga�on. Edwards v. Arizona, 451 U.S. 477 (1981). • Whether applicant was in custody and subject to interroga�on at the �me he made inculpatory statements in the absence of Miranda warnings (or the related issue of whether the applicant waived Miranda rights). Brewer v. Williams, 430 U. S. 387 (1977). In the event the mater of an improper confession was defaulted by failing to object at trial, the claim can be raised on habeas when coupled with a claim of ineﬀec�ve trial counsel. By the same token, if the mater was defaulted on direct appeal, the claim can be raised on habeas when coupled with a claim of ineﬀec�ve appellate counsel.

Post-Conviction Litigation

V.B.4. Conflict of Interest Allega�ons of conflicts of interest may be considered a subset of the larger topic of ineffec�ve assistance of counsel. Typically, these claims arise when there has been dual representa�on of mul�ple defendants by one lawyer. In order to prevail on habeas, an actual conflict of interest must be shown in the absence of an objec�on at the trial court level. Ex parte Acosta, 672 S.W.2d 470 (Tex. Crim. App. 1984). Joint representa�on is not considered ineffec�ve per se. Hurley v. State, 606 S.W.2d 887 (Tex. Crim. App. 1980). However, prejudice is presumed if an actual conflict is shown (even in the absence of an objec�on). Ex Parte Parajm, 611S.W.2d103 (Tex. Crim. App. 1981). Generally, in determining if an actual conflict of interest has been shown, the test is whether one defendant stands to gain significantly when counsel adduces proba�ve evidence or possible arguments that are damaging to a codefendant also represented by the same atorney. Foster v. State, 693 S.W.2d 412(Tex. Crim. App. 1985). Another way in which a conflict of interest may arise is if defense counsel represents both par�es to a lawsuit. For example, when the applicant’s atorney at the �me the applicant received proba�on later became a prosecutor and then represented the State of Texas at the mo�on to revoke hearing, there was a conflict of interest sufficient to grant relief and set aside the revoca�on. Ex parte Morgan, 616 S.W.2d 625(Tex. Crim. App. 1981). V.B.5. Denial of Counsel Denial of counsel at any cri�cal stage of the proceedings en�tles the writ applicant to relief. Ex parte Sanders, 588 S.W.2d 383 (Tex. Crim. App. 1979). A mo�on to revoke proba�on is considered a cri�cal stage in Texas. Ex parte Richardson, 496 S.W.2d 611 (Tex. Crim. App. 1973). A difficult proof area when the claim is denial of counsel concerns the presump�on of regularity that ataches to court documents. These documents include docket sheets and judgments. The tes�mony of an applicant that he was without counsel is not sufficient to overcome such presump�ons in a state habeas ac�on. Ex parte Reed, 620 S.W.2d 495 (Tex. Crim. App. 1981); Ex parte Mulcahey, 31 S.W.2d 602 (Tex. Crim. App. 1981). An interes�ng decision concerning denial of counsel on appeal is found in Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003). The Court of Criminal Appeals held that the defendant sufficiently manifested his desire to pursue an appeal so as to put the trial court on no�ce that -8-

the judge would have to determine indigence and possibly appoint counsel. In Jones the Court of Appeals had held that because the defendant had not filed writen no�ce of appeal or mo�on for new trial, he failed to inform the trial court either of his desire to appeal or the need to appoint appellate counsel. The Court of Criminal Appeals did not agree. In doing so, it relied on its prior decision in Ex parte Axel, 57 S.W.2d 369 (Tex. Crim. App. 1988), in which the court set out the independent du�es of both trial counsel and the trial judge regarding the ini�al stages of the appellate process. The remedy was to reverse the judgment of the Court of Appeals and remand the cause with instruc�ons to grant an out of �me appeal and remand the cause to the trial court for a determina�on of indigence and, if necessary, the appointment of appellate counsel. The denial of counsel may be actual or construc�ve. An example of the construc�ve denial of counsel involves a lawyer sleeping through significant por�ons of the trial. See Burdine v. Johnson, 266 F.3d 336 (5th Cir. 2001) (presuming prejudice under United States v. Cronic, 466 U.S. 684 (1984) due to counsel’s naps during trial). In Ex parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005), the Court rejected a claim of construc�ve denial of counsel because the second chair appointed lawyer managed to stay awake during trial even though the first chair retained lawyer slept habitually during all phases of trial.

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Post-Conviction Litigation

V.B.6. Denial of Right to Appeal/File Pe��on for Discre�onary Review Claims the applicant was denied his right of appeal or right to file a PDR are cognizable on a state writ. Such claims, if supported by the record, consistently result in the gran�ng of relief to those applicants who have been denied their right to appeal or file a PDR. A claim concerning denial of the right to appeal should be brought under Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). A claim concerning denial of the right to file a PDR should be brought under Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). The mere fact no appeal was taken or PDR filed is insufficient proof for the applicant to sustain his burden. In Ex parte Scott, 190 S.W.3d 672 (Tex. Crim. App. 2006), the applicant complained that twelve years prior his lawyer failed to tell him of the affirmance of his convic�on and right to file a pro se PDR. Counsel could not locate his file and stated his custom and prac�ce was to be effec�ve and appropriately no�fy clients under Wilson. Although the trial court recommended relief be granted, the Court of Criminal Appeals denied relief a�er finding the applicant did not carry his burden of proof. Ex parte Scott, 2006 WL 931624. Three judges concurred on the basis that any applicant bringing an ineffec�ve assistance of counsel claim outside the four-year limita�on period to file a grievance against counsel should be subject to a presump�on of no credibility. Assuming the applicant can overcome the proof requirement and show he was improperly denied an appeal or the right to file a PDR, neither claim is subject to the Strickland prejudice requirement to the extent the applicant must demonstrate he has a meritorious point of error or ground for review he was prevented from presen�ng due to counsel’s deficient conduct. If counsel’s ineffec�veness resulted in the denial of the opportunity to appeal or file a PDR, structural error is present, and harm has been shown as a result of the applicant being denied an opportunity to appeal or file a PDR. Ex parte Crow, 180 S.W.3d 135, 138 (Tex. Crim. App. 2005).

Post-Conviction Litigation

V.B.7. Double Jeopardy A double jeopardy claim is cognizable for writ relief under Art. 11.07. This is true even if the applicant failed to raise the issue in the trial court. Ex parte Chappell, 957 S.W.2d 627 (Tex. Crim. App. 1998). A double jeopardy claim may be raised for the first �me on appeal when the undisputed facts show the double jeopardy viola�on is clearly apparent on the fact of the record and when enforcement of the usual rules of procedural default serves no legi�mate state interest. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2002). V.B.8. False Evidence / Lying Jailhouse Informants For almost seventy years, the na�on’s courts have found one form of false evidence pernicious: tes�mony from jailhouse informants. Par�cularly confounding is tes�mony about whether the informant is incen�vized to lie, i.e. whether he is expec�ng a deal in exchange for his tes�mony. See Banks v. Dretke, 540 U.S. 668, 701-02 (2004) (“This Court has long recognized the ‘serious ques�ons of credibility’ informers pose.”); Lee v. United States, 343 U.S. 747, 757 (1952) (“The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious ques�ons of credibility.”). It is an issue that is just as highly debated today as it was in the 1950s. See Pamela Colloff, False Witness: How This Con Man’s Wild Testimony Sent Dozens to Jail, and 4 to Death Row, N.Y. Times Sun. Mag., at 22 (Dec. 8, 2019). If the jury knows a witness is ge�ng something in exchange for helping the State, that tes�mony may lose its weight. A�er all, “[i]t is difficult to imagine a greater mo�va�on to lie than the inducement of a reduced sentence.” United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987). As the Supreme Court observed in Wearry v. Cain, 577 U.S. 385, 394 (2016), jurors who know a witness is tes�fying even for the mere hope of a benefit “might [think] differently” about that person’s tes�mony. Moreover, the nature of criminal informants and their circumstances create an environment ripe for manufactured evidence. Plascencia v. Alameida, 467 F .3d 1190, 1199 (9th Cir. 2006). Deal making with jailhouse informants provides an incen�ve to lie simply for the sake of the deal itself, with no addi�onal mo�ve required. United States v. Levenite, 277 F.3d 454, 462 (4th Cir. 2002). The unreliability of jailhouse informant tes�mony is compounded further s�ll when the defendant is innocent of the accused crime but nevertheless caught up in some form of criminal ac�vity. The jailhouse snitch problem is a concentrated version of a more general danger associated with criminal informant use, and that is the threat to innocent suspects who happen to be incarcerated, who have criminal records, or who are otherwise associated with a criminal milieu such as drug use. Innocent people with criminal associa�ons are more suscep�ble to informant targe�ng and convic�on because law enforcement and jurors alike are predisposed to believe in their guilt. Incarcerated or recidivist suspects are thus par�cularly vulnerable to wrongful convic�on based on unreliable snitch informa�on because it is harder for them to defend against informant lies. - 10 -

The trial in the instant Application occurred in 2015, two years before the reforms were passed. - 11 -

Post-Conviction Litigation

ALEXANDRA NATAPOFF, SNITCHING 72 (2009). The Due Process Clause prohibits the State from using false evidence to obtain convic�ons. Napue v. People of State of Ill., 360 U.S. 264, 269 (1959) (referring to Pyle v. State of Kansas, 317 U.S. 213 (1942)); Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009). The false evidence itself is what the Due Process Clause refuses to countenance. “The dignity of the United States Government will not permit the convic�on of any person on tainted tes�mony.” Mesarosh v. United States, 352 U.S. 1, 13-14 (1956). Simply put, “[t]he law abhors perjury” because it “fundamentally corrupt[s]” the truth finding process. Anne Bowen Poulin, Convictions Based on Lies: Defining Due Process Protection, 116 PENN. ST. L. REV. 331, 334 (2011). Consequently, the viola�on occurs regardless of whether the prosecu�on or defense knew it was false at the �me it was presented. Napue, 360 U.S. at 269; Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011); Chabot, 300 S.W.3d at 770-71. The source of the cons�tu�onal error is the admission of false evidence in the first place. As soon as the false evidence is admited and goes uncorrected, a due process viola�on has occurred. Texas courts adopted Napue over fi�y years ago. See Means v. State, 429 S.W.2d 490, 494 (Tex. Crim. App. 1968). Since that �me, Texas has consistently reversed convic�ons based on the false tes�mony of a jailhouse informant lying about the expecta�on of a deal. It most recently did so six months ago. See Ex parte Powell, No. WR-80,713-02, 2019 WL 2607170, at *1 (Tex. Crim. App. June 26, 2019). Apart from Texas courts, the Texas Legislature openly recognizes the proclivity of jailhouse informant tes�mony to cause wrongful convic�ons. In 2017, it ins�tuted a series of landmark protec�ons regula�ng jailhouse informants. See Tex. Code Crim. Proc. Ann. arts. 2.024, 2.32. The sweeping reform had been recommended by the Timothy Cole Exonera�on Review Commission, which reviews maters related to the cause and preven�on of wrongful convic�ons in Texas. Timothy Cole Exonera�on Rev. Comm’n, Report to Texas Gov. Greg Abbot, Tex. Legislature, & Tex. Judicial Council (Dec. 9, 2016) available at htp://www.txcourts.gov/media/ 1436589/tcerc-final-report-december-9-2016.pdf. The Commission highlighted the importance of the judge, jury, and defense knowing about any benefits a jailhouse informant was receiving in exchange for his tes�mony, as that informa�on is necessary “ . . . [to] have an accurate representa�on of the jailhouse informant’s situa�on and to properly weigh the credibility of their tes�mony.” Id. at 15. The Legislature listened and implemented the Commission’s recommenda�ons so as “to prevent wrongful convic�ons.” 1 House Comm. on Crim. Jur., Bill Analysis, Tex. H.B. 34, 85th Leg., R.S. (2017). The landmark reform has garnered Texas na�onwide praise ever since. See Tex. Code Crim. Proc. Ann. arts. 2.024, 2.32; Dave Collins, Lying Prisoners: New Laws Crack Down on Jailhouse Informants, Ass'd Press, Sept. 14, 2019; A Crackdown on the Market for Snitches, N.Y. Times, July 16, 2017, at SR10. Under the new provisions, law enforcement officers must record and disclose to the defense all discussions they have with jailhouse informants and “any benefits offered or provided” to a jailhouse informant. TEX. CODE CRIM. PROC. ANN. arts. 2.024(b)(2), 2.32(b).

Post-Conviction Litigation

V.B.9. Improper / Illegal Sentences (including affirma�ve findings) Generally, a writ of habeas corpus does not lie to correct an inaccurate criminal judgment. The proper method of correc�ng an inaccurate judgment is to pursue a nunc pro tunc mo�on and order. Ex parte Paterson,141 S.W.2d 319 (Tex. Crim. App. 1940). The purpose of a nunc pro tunc order is to correct clerical errors in the judgment records of the trial court. The Court of Criminal Appeals defines clerical errors as those that do not result from any judicial reasoning or determina�on. They are most easily thought of as transposi�onal errors. Alvarez v. State, 605 S.W.2d 615 (Tex. Crim. App. 1980). However, habeas relief is appropriate for a void or illegal sentence. A void or illegal sentence is a sentence that is not authorized by law. Ex parte Johnson, 697 S.W.2d 605 (Tex. Crim. App. 1985). The Court of Criminal Appeals generally considers errors in the judgment or sentence to be in the type of error that cannot be waived. Thus, they are always subject to collateral atack. Ex parte Seidel, 39 S.W.3d 221 (Tex. Crim. App. 2001). A sentence is void when the punishment is not authorized by law. Ex parte McIver, 586 S.W.2d 851 (Tex. Crim. App. 1979). In Ex parte Pena, 71 S.W.3d 336 (Tex. Crim. App. 2002), the court denied habeas relief when a jury did not impose a fine as part of the applicant’s punishment but the writen judgment from the court included a $10,000 fine as well as the jury-assessed tenyear probated prison sentence. The court labeled applicant’s claim as one that the judgment was inaccurate. That type of claim is not a claim of jurisdic�onal defect; similarly, it is not a claim of viola�on of cons�tu�onal or fundamental rights. Thus, it is not cognizable on post-convic�on habeas atack. In contrast, a judgment imposing consecu�ve sentences despite an earlier oral pronouncement of concurrent sentences violates due process and is cognizable on postconvic�on atack. Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002). The theory underlying a grant of relief on collateral atack is that a criminal defendant has a due process legi�mate expecta�on that the sentence he heard orally pronounced in the courtroom would be reflected in the judgment he is required to serve. Thus in Ex parte Vasquez, 712 S.W.2d 754 (Tex. Crim. App. 1986), the court granted relief when the cumula�on order in the writen judgment had not been orally pronounced at the defendant’s sentencing. The court deemed the judgment void, using the term as a shorthand rendi�on for a longer legal proposi�on: the due process requirement that the defendant be given no�ce of punishment. Ex parte Madding, 70 S.W.2d at 136. There is one significant limita�on on the availability of habeas relief for atacking judgments and sentences when they involve calcula�on of prison �me credits. The Court of Criminal Appeals is frequently called upon to address the ques�on of �me served credits. For example, in Ex parte Millard, 48 S.W.3d 190 (Tex. Crim. App. 2001) the majority of the court concluded the applicant was en�tled to credit on a burglary sentence for the period of �me he was at liberty because he had never officially been designated as paroled and hence his release was not authorized. For an inmate to reach the Court or Criminal Appeals on a �me credit case, the inmate must first exhaust available administra�ve remedies. These administra�ve requirements are found in the Texas Government Code 501.0081. That statute specifically requires an inmate to file a dispute resolu�on request with the designated office of the Texas Department of Criminal Jus�ce (the Time Credit Dispute Resolu�on Office). The inmate must receive a writen decision from that office before he files an applica�on for writ of habeas corpus. - 12 -

The only excep�ons are if the department fails to respond to the inmate’s request within 180 days or if the inmate is within 180 days of his parole release date. When trial courts receive a writen applica�on under 501.0081 without a copy of the rejec�on leter from the TDCJ Dispute Resolu�on Oﬃce, the trial court must recommend dismissal of the writ. A similar procedure is followed at the Court of Criminal Appeals. Ex parte Shepherd, 65 S.W.3d 673 (Tex. Crim. App. 2002) (Opinion of Judge Cochran concurring with dismissal). If a claim is brought for pretrial jail �me, the applicant is not able to use habeas as his remedy. Rather, the applicant must resort to a nunc pro tunc mo�on in the trial court and then a request for mandamus relief in the appropriate Court of Appeals. Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim. App. 2004).

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Failure to: - 13 -

Post-Conviction Litigation

V.B.10. Ineffec�ve Assistance of Counsel Each year the Court of Criminal Appeals is inundated with claims challenging the adequacy of representa�on either at the trial court or on appeal. The Court of Criminal Appeals has gone so far as to vocalize weariness with the number of ineffec�ve assistance claims it receives on an annual basis. See Ex parte Chandler, 182 S.W.3d 350 (Tex. Crim. App. 2005). Nevertheless, some of these claims have proved successful. The legal standard for determining whether an atorney rendered effec�ve assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984). In gauging the effec�veness of counsel the defendant must show that counsel ‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not func�oning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687. This two-part test is the vehicle by which the ul�mate ques�on is addressed: Did counsel’s conduct so compromise the proper func�oning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.2d 3d 808 (Tex. Crim. App. 1999). Strickland applies to both appointed and retained counsel; the same standard is used to gauge the performance of each. Cuyler v. Sullivan, 446 U. S. 335 (1980). It applies to both stages of a trial in Texas the guilt innocence determina�on and the punishment hearing. Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Although a claim of ineffec�ve assistance of counsel can be raised on direct appeal, Texas courts have long recognized that a writ of habeas corpus is the preferred method for raising this type of challenge. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997). The United States Supreme Court has recognized the same limita�on on the ability to raise ineffec�ve assistance of counsel claims on direct appeal in Massaro v. United States, 538 U.S. 500 (2003). The Fi�h Circuit has likewise recognized that a claim of ineffec�ve assistance of counsel should not be raised for the first �me on direct appeal unless the record is fully developed. United States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005). Here is an alphabe�cal list of cases that won based on ineffec�ve assistance of counsel claims, along with the claims they asserted:

Post-Conviction Litigation

o File Application for Probation (when defendant was eligible for community supervision): Ex parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998) o Object to Improper Opinion Testimony: Garcia v. State, 712 S.W. 2d 249, 253 (Tex. App.—El Paso 1986, pet. ref’d) o Object to Inadmissible Comments on Post-Arrest Silence: Thomas v. State, 812 S.W. 2d 346, 350 (Tex. App.—Dallas 1991, pet. ref’d); San Roman v. State, 681 S.W. 2d 872, 875 (Tex. App.—El Paso 1984, pet. ref’d); Winn v. State, 871 S.W. 2d 756, 763 (Tex. App.—Corpus Chris� 1993, no pet.) (failure to object to refusal to consent to search) o Object to Indictment and Charge Based on Invalid Theory of Felony Murder: Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991) o Object to Inadmissible Extraneous Offenses: Jackson v. State, 857 S.W. 2d 678, 683 (Tex. App.—Houston [14th Dist.] 1993, no pet.); Wenzy v. State, 855 S.W. 2d 52, 58 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d); Riascos v. State, 792 S.W. 2d 754, 758 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d); Doles v. State, 786 S.W. 2d 741, 746 (Tex. App.—Tyler 1989, no pet.) o Object to Inadmissible Statements: Mitchell v. State, 762 S.W. 2d 916, 920 (Tex. App.— San Antonio 1988, pet. ref’d); Sanders v. State, 715 S.W. 2d 771, 774-776 (Tex. App.— Tyler 1986, no pet.) o Object to Inadmissible Prior Offenses: Ex parte Menchaca, 854 S.W. 2d 128, 133 (Tex. Crim. App. 1993) o Preserve Error Concerning the Denial of a Challenge for Cause: Winn v. State, 871 S.W. 2d 756, 762-63 (Tex. App.—Corpus Chris� 1993, no pet.) o Request Jury Instruction on Defense Raised by Evidence: Ex parte Zepeda, 819 S.W. 2d 874, 877 (Tex. Crim. App. 1990) (failure to request an instruc�on on accomplice witness tes�mony where this was raised by the evidence); Vasquez v. State, 830 S.W. 2d 948, 951 (Tex. Crim. App. 1992); Green v. State, 899 S.W. 2d 245, 248 (Tex. App.— San Antonio 1995, no pet.) (failure to request instruc�on on the only defense applicable in his case); Watrous v. State, 842 S.W. 2d 792, 794 (Tex. App.—El Paso 1992, no pet.) (failure to request medical purpose defense in aggravated sexual assault case); Banks v. State, 819 S.W. 2d 676, 682 (Tex. App.—San Antonio 1991, pet. ref’d) (failure to object to jury charge which improperly instructed the jury that injury to a child was not a result-oriented crime) o Request Limiting Instructions: Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) o Secure Expert Testimony Regarding Physical Evidence: Winn v. State, 871 S.W. 2d 756, 761 (Tex. App.—Corpus Chris� 1993, no pet.) o Timely Inform Defendant of a Plea Offer: Randle v. State, 847 S.W. 2d 576, 580-81 (Tex. Crim. App. 1993) •

Inadequately Advised Guilty Pleas: Padilla v. Kentucky, 559 U.S 356 (2010) (counsel did not properly inform the defendant of the immigra�on consequences of a plea); Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999) (counsel did not properly advise guilty plea defendant whether state sentence would run concurrently with outstanding federal sentence) - 14 -

•

Inadequate Investigation: Ex parte Hill, 863 S.W. 2d 488, 489 (Tex. Crim. App. 1993); Ex parte Welborn, 785 S.W. 2d 391, 393 (Tex. Crim. App. 1990); Butler v. State, 716 S.W. 2d 48, 54 (Tex. Crim. App. 1986); Jackson v. State, 857 S.W. 2d 678, 683 (Tex. App.—Houston [14th Dist.] 1993, no pet.); Doherty v. State, 781 S.W. 2d 439, 442 (Tex. App.-Houston [1st Dist.] 1989, no pet.) o Inadequate Investigation of Medical Evidence: Ex parte Overton, 444 S.W.3d 632 (Tex. Crim. App. 2014); Ex parte Briggs, 187 S.W.3d 458, 468 (Tex. Crim. App. 2005) o Inadequate Investigation of Validity of Prior Convictions: Ex parte Jordan, 879 S.W. 2d 61, 62 (Tex. Crim. App. 1994); Ex parte Langley, 833 S.W. 2d 141, 143 (Tex. Crim. App. 1992) (failure to inves�gate availability of nonﬁnal convic�on); Ex parte Felton, 815 S.W. 2d 733, 734-35 (Tex. Crim. App. 1991) (failure to inves�gate prior convic�on with invalid jury waiver); Ex parte Pool, 738 S.W. 2d 285, 285 (Tex. Crim. App. 1987) (failure to inves�gate validity of prior convic�ons used for enhancement)

•

Inadequate Voir Dire: Miles v. State, 644 S.W. 2d 23, 24 (Tex. App.—El Paso 1982, no pet.); see also Ex parte Welborn, 785 S.W. 2d 391, 392-394 (Tex. Crim. App. 1990); Winn v. State, 871 S.W. 2d 756, 763 (Tex. App.-Corpus Chris� 1993, no pet.); San Roman v. State, 681 S.W. 2d 872, 874 (Tex. App.—El Paso 1984, pet. ref’d)

•

Improper Elicitation by Defense Counsel: Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006) (elicita�on, by defense counsel, of prior convic�ons which were currently on appeal and would not have been admissible under Tex. R. Evid. 609 if oﬀered by the state); Green v. State, 899 S.W. 2d 245, 249 (Tex. App.—San Antonio 1995, no pet.) (same); Montez v. State, 824 S.W. 2d 308, 310 (Tex. App.—San Antonio 1992, no pet.)

V.B.11. Parole Considera�ons In certain instances, habeas review is available to address claims regarding parole related maters such as revoca�on. Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998). The Court has also recognized a due process right to no�ce and an opportunity to be heard in rela�on to a decision on mandatory release by the Board. Ex parte Shook, 59 S.W.3d 174 (Tex. Crim. App. 2001); Ex parte Geiken, 28 S.W.3d 553 (Tex. Crim. App. 2000). Writen no�ce that the inmate will be up for parole review “at some unspecified �me in the future, coupled with a request that he submit relevant materials ‘as soon as possible,’ is cons�tu�onally deficient no�ce.” Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004).

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Post-Conviction Litigation

V.B.12. Prosecutorial /Law Enforcement Misconduct The Cons�tu�on provides that a criminal defendant has the right to receive from prosecutors exculpatory evidence, including impeachment material. This right is part of the Cons�tu�on’s basic fair trial guarantee. Brady v. Maryland, 373 U. S. 83 (1963). Exculpatory evidence includes not only evidence tending to show the defendant is not guilty of the crime; it also includes evidence aﬀec�ng a witness’s credibility when that witness’s reliability is likely to be determina�ve of guilt or innocence. Giglio v. United States, 405 U. S. 150,154 (1972). However, the United States Supreme Court has held that the federal Cons�tu�on does not require the government to disclose impeachment informa�on or informa�on bearing on an aﬃrma�ve defense before the defendant enters into a guilty plea. United States v. Ruiz, 536 U.S. 88 (2002).

Post-Conviction Litigation

In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Court held “that the suppression by the prosecu�on of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespec�ve of the good faith or bad faith of the prosecu�on.” The issue in United States v. Bagley, 473 U.S. 667 (1985), concerned the standard of materiality to be applied to determine whether a convic�on should be reversed for failure to disclose impeachment evidence. In rendering its decision, the Court clarified several things about discovery: (i) the adversary system is s�ll the primary means of discovering the truth. The Brady rule, however, which is founded on due process, is meant to ensure that a miscarriage of jus�ce does not occur. “Thus, the prosecutor is not required to deliver his en�re file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.” Id. at 675. (ii) “Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule.” Id. at 676. The Court makes no dis�nc�on between impeachment evidence and exculpatory evidence. Id (iii) Reversal is not automa�c for a Brady viola�on. Instead, “the convic�on must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial.” Id. at 678. (iv) Finally, the Court determined the standard of materiality applicable to undisclosed evidence. Previously, the Court had recognized at least three different standards, depending on the nature of the evidence, and the type of request made by defendant. In Bagley, the Court decided that only one test for materiality is required. “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. at 682. The judgment in Bagley was reversed and remanded to the court of appeals for a determina�on whether, had the impeachment evidence been disclosed to the defense, there is a reasonable probability that the result of the trial would have been different. Id. at 684. The Supreme Court has consistently reaffirmed the three components of a Brady viola�on: (1) the evidence must be favorable to the accused, either because it is exculpatory or impeaching; (2) the State must have either willful or inadvertently suppressed the evidence; and (3) prejudice must have ensued. Prejudice is shown by demonstra�ng there is a reasonable probability the result of the trial would have been different if the suppressed documents had been disclosed to the defense. Graves v. Dretke, 442 F.2d 334 (5th Cir. 2006); Banks v. Dretke, 540 U.S 668 (2004). Absent a showing the trial resulted in a verdict unworthy of confidence, no prejudice has been shown. Strickler v. Greene, 527 U.S. 263 (1999); see Kyles v. Whitley, 514 U. S. 419 (1995). DA’s are not the only ones who can create Brady viola�ons. The use of an inves�ga�ve procedure which, judged by the totality of circumstances, results in a depriva�on of due process by suppressing favorable evidence and by crea�ng false tes�mony and inherently unreliable tes�mony is also cognizable in a post-convic�on writ. Ex parte Brandley, 781 S.W. 2d 886, 894 (Tex. Crim. App. 1989). For example, in Ex parte Mitchell, 853 S.W.2d 1 (Tex. Crim. App. 1993), a - 16 -

Smith County capital murder convic�on was set aside on habeas due to Brady viola�on. During trial, accomplice tes�fied to circumstances surrounding applicant’s murder of an individual at a fireworks stand. Inves�ga�on by Smith County Sheriff’s Office revealed that game warden and deputy sheriff may have seen vic�m alive a�er �me accomplices claimed applicant shot vic�m. Such informa�on was never revealed by the Sheriff’s Office to the DA’s office or defense counsel despite a Brady mo�on. The Court of Criminal Appeals granted relief a�er finding informa�on suppressed by Sheriff’s Office was exculpatory and material in the sense it created a probability sufficient to undermine confidence in the outcome of the proceedings. In another case, a tes�fying police officer covered up for the perjury of an eyewitness who lied about having iden�fied the defendant in a lineup. Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989). And, of course, there are also all of the Gerald Goines cases s�ll working their way through the system in Houston, all of which involve an officer lying in search warrant affidavits. See Ex parte Mitchell, No. WR-95,208-01, 2023 WL 8613824 (Tex. Crim. App. Dec. 13, 2023); Ex parte McGinnis, No. WR95,123-01, 2023 WL 6457610 (Tex. Crim. App. Oct. 4, 2023); Ex parte Jeffery, No. WR-92,544-01, 2022 WL 4088689 (Tex. Crim. App. Sept. 7, 2022); Ex parte Mathews, 638 S.W.3d 685 (Tex. Crim. App. 2022); Ex parte Mallet, 620 S.W.3d 797 (Tex. Crim. App. 2021). Note that under Giglio v. United States, 405 U.S. 150 (1972), knowledge of exculpatory material is imputed to the prosecu�on, meaning if law enforcement knows of the evidence but does not share it with the DA’s office, it is s�ll imputed to the DA’s office and it s�ll counts as Brady. V.C.

HURDLES OR DEFENSES A state habeas applicant, even assuming that his claim for relief is cognizable on an Ar�cle 11.07 writ, s�ll faces statutory and procedural bars. Some of these bars pertain to when a claim can be raised. Others address repeated or successive writs by the same applicant challenging the same state convic�on. Others pertain to ques�ons of status and whether the applicant is suﬀering a restraint on his liberty. S�ll others require exhaus�on of administra�ve remedies in certain context, such as request for �me credits, while s�ll addi�onal burdens may be imposed by applica�on of the procedural default rule.

• • •

Illegal Searches and Seizures: Stone v. Powell, 428 U.S 465, 494-95 (1976) Insuﬃcient Evidence to Support the Conviction: Ex parte McWilliams, 634 S.W.2d 815 (Tex. Crim. App. 1982); Ex parte Ashcraft, 565 S.W.2d 926 (Tex. Crim. App. 1978); Ex parte Ash 514 S.W.2d 762 (Tex. Crim. App. 1974) Prison Disciplinary Actions: Ex parte Palomo, 759 S.W.2d 671, 674 (Tex. Crim. App. 1988); Ex parte Brager, 704 S.W.2d 46 (Tex. Crim. App. 1986) - 17 -

Post-Conviction Litigation

V.C.1. Non-Cognizable Claims A claim that can be a proper ground for relief on habeas corpus is said to be cognizable. Ex parte McCullough, 966 S.W. 2d 529, 531 (Tex. Crim. App.1998). Tradi�onally, habeas corpus is available only to review jurisdic�onal defects, denial of fundamental rights, or denial of cons�tu�onal rights. Ex parte Sanchez, 918 S.W.2d 526 (Tex. Crim. App. 1996). The following are some of the more common claims that are not cognizable in an 11.07 writ:

Post-Conviction Litigation

V.C.2. Law of the Case Habeas corpus is not available to reli�gate maters that were (or could have been) addressed on appeal. Ex parte Schuessler, 846 S.W.2d 850 (Tex. Crim. App 1993). However, a previously li�gated issue is subject to collateral atack where the prior judgment is subsequently rendered void or where the court has decided to apply relief retroac�vely a�er a subsequent change in the law. Ex parte Drake, 883 S.W.2d 213, 215 (Tex. Crim. App. 1994). Writs based on ineffec�ve assistance of counsel claims that were raised on appeal are tricky. Usually, if it was raised on appeal, it is barred in writ. The Court of Criminal Appeals carved out a slim excep�on to this rule, as it relates to ineffec�ve assistance of counsel claims, in Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). In that case, the court ruled the doctrine that issues raised on direct appeal are not cognizable in writ “should not be applied where [1] direct appeal cannot be expected to provide an adequate record to evaluate the claim in ques�on, and [2] the claim might be substan�ated through addi�onal evidence gathering in a habeas corpus proceeding.” If, however, the applicant raised ineffec�ve assistance of counsel on direct appeal and the appellate court denies that claim on the merits, then that issue becomes law of the case and is not viable in writ. “[S]pecific allega�ons of deficient atorney performance that were rejected on direct appeal are not cognizable on habeas corpus as a part of a larger ineffec�ve assistance of counsel claim when the defendant does not offer addi�onal evidence to support that specific claim of deficient performance in the habeas proceeding.” Ex parte Nailor, 149 S.W.3d 125, 131–32 (Tex. Crim. App. 2004). V.C.3. Direct Appeal Default A writ of habeas corpus will not lie as a subs�tute for a direct appeal. Ex parte Groves, 571 S.W.2d 888 (Tex. Crim. App. 1978). Therefore, an applica�on should not be used to li�gate maters which should and could have been raised on direct appeal. Ex parte Goodman, 816 S.W.2d 383 (Tex. Crim. App. 1991). The Court of Criminal Appeals has greatly expanded this bar to habeas relief. In Ex parte Townsend, 137 S.W.3d 79 (Tex. Crim. App. 2004), the Court declined to grant habeas relief for an improper cumula�on order because the mater had not been raised on direct appeal. Likewise, in Ex parte Nelson, 137 S.W.3d 666 (Tex. Crim. App. 2004), the Court declined to grant habeas relief for an improper affirma�ve finding because the mater had not been raised on direct appeal. It should be noted that neither Townsend nor Nelson actually appealed their convic�ons. In Ex parte Ramos, 977 S.W.2d 616 (Tex. Crim. App. 1998) the applicant presented two jury charge complaints apparent from the record which had not been raised on direct appeal. The Court declined to address the claims because they should have been raised on direct appeal and habeas will not lie as a subs�tute for an appeal. Id. at 617. In Ex parte Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1998), the court refused to consider a viola�on of applicant’s Fi�h Amendment rights pursuant to Estelle v. Smith, 451 U.S. 454 (1981), because Applicant had an opportunity to raise this claim on direct appeal as the record from the direct appeal indicates applicant relied on Estelle v. Smith, to claim admission of Griffith’s tes�mony violated his Sixth Amendment right to counsel. There is no valid reason why applicant could not have raised on direct appeal the Estelle v. Smith claim he asserts in this proceeding. It is well setled that the writ of - 18 -

habeas corpus should not be used to li�gate maters which should have been raised on direct appeal. Id. at 199. V.C.4. State Cons�tu�onal and Statutory Claims Claims premised on the Texas Cons�tu�on which are subject to a harm analysis are at best voidable and are therefore not cognizable in a post-convic�on writ of habeas corpus. Ex parte Dutchover, 779 S.W.2d 76 (Tex. Crim. App. 1989) (erroneous admission of videotape in viola�on of Ar�cle I, § 10 of the Texas Cons�tu�on); accord Ex parte McKay, 819 S.W.2d 478, 481(Tex. Crim. App. 1990) (although a habeas corpus applica�on may be predicated on viola�ons of state cons�tu�onal rights, the claim may not be cognizable via habeas corpus when the alleged error, if commited, is nevertheless subject to a harm analysis). Habeas relief is generally not available for mere statutory viola�ons. The failure to adhere to a legisla�ve direc�ve or mode of proceeding designed to safeguard a cons�tu�onal right will lead to relief only where the omission results in the denial of a cons�tu�onal protec�on. Ex parte Sadberry, 864 S.W.2d 541(Tex. Crim. App. 1993) (no habeas relief for jury waiver not in compliance with Ar�cle 13 of the Code of Criminal Procedure absent a claim that the decision to waive jury was involuntary). V.C.5. Finality The Court of Criminal Appeals does not have jurisdic�on to consider an applica�on for writ of habeas corpus under Ar�cle 11.07 un�l the felony judgment which is being atacked is final. If a direct appeal was taken from the convic�on, the case is not final un�l the mandate from the Court of Appeals issues. Prior to issuance of the mandate, a judgment is not final. Thus, any writ filed during the pendency of the appeal must be dismissed because the Court of Criminal Appeals lacks jurisdic�on to entertain it. Ex parte Johnson, 12 S.W.3d 472 (Tex. Crim. App.2000); see Beal v. State, 91 S.W.3d 794 (Tex. Crim. App.2002) (no�ng prior offense alleged for enhancement was not final at the �me defendant commited primary offense because mandate of affirmance did not issue un�l one month a�er primary commited). Similarly, where a habeas corpus applicant has been granted community supervision or a finding of guilt deferred, the defendant is not confined and the convic�on is not final for purposes of Art. 11.07. Rodriquez v. Court of Appeals, 769 S.W.2d 554 (Tex. Crim. App. 1989). In that case, counsel should consider an alterna�ve habeas vehicle as discussed below such as an 11.072 or 11.08 applica�on.

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Post-Conviction Litigation

V.C.6. Trial Procedural Default As is the case with direct appeal, a failure to object contemporaneously with the commission of the error at the trial court level waives review of the claim on the merits. Thus, generally if an objec�on is not voiced at the �me the error is commited, the claim is not available in a par�cular case even though the subject mater is one that is generally cognizable in postconvic�on atacks. There are some excep�ons to this general rule. For example, if an error is so novel that no objec�on is required to preserve it for review a�er convic�on, the merits of the claim can be considered in an Ar�cle 11.07 atack. Ex parte Crispen, 777 S.W.2d 103 (Tex. Crim. App. 1989).

Post-Conviction Litigation

Another area in which a contemporaneous objec�on is not needed relates to void sentences. A void sentence may be atacked on habeas corpus on the theory that the sentence was void from the �me it was entered either because prohibited by law or simply not authorized by law. La Porte v. State, 832 S.W.2d 597 (Tex. Crim. App. 1992). Similarly double jeopardy is the type of claim that can support habeas relief despite the applicant’s failure to raise the issue in the trial court. Ex parte Chappell, 959 S.W.2d 627 (Tex. Crim. App. 1998). The common thread with both the void sentencing line of cases and the double jeopardy line of cases is that the ac�on of the trial court was improper from the beginning. Thus, claims of this type are excused from the general rule of contemporaneous objec�ons. The purpose of the contemporaneous objec�on rule on writ, as on direct appeal, is to provide the trial court with no�ce of a perceived defect and the opportunity to remedy that defect. Trial counsel’s lying behind the log is considered a waiver or deliberate bypass of a subsequent challenge to the trial court’s conduct. Many writ claims, however, do not manifest themselves un�l a�er trial has been concluded. In those instances, there would never be an opportunity for a contemporaneous objec�on to be raised. Examples might include: • Claims of ineffec�ve assistance of counsel when the applicant subsequently learns that trial counsel failed to convey a plea bargain offer from the prosecutor • A newly discovered claim of actual innocence following DNA tes�ng • Post trial discovery of the prosecutor’s knowing use of perjured tes�mony • Or any similar claims listed in the “Actual Innocence” sec�on above Even if a claim appears to be supported by the record on direct appeal, there may be circumstances in which the beter prac�ce is to defer raising that claim un�l a habeas challenge may be made under Ar�cle 11.07. Generally, maters raised on direct appeal cannot be reli�gated on habeas. Ex parte Drake, 883 S.W.2d 213 (Tex. Crim. App. 1994). The most frequently encountered scenario in which a claim might be raised on direct appeal but should be delayed un�l habeas review is ineffec�ve assistance of counsel challenges. V.C.7. Repeated Applica�ons Ar�cle 11.07 contains a statutory limit on repeat writ applica�ons. If a subsequent applica�on for writ of habeas corpus is filed a�er final disposi�on of an ini�al applica�on challenging that convic�on, a court cannot consider the merits of the claim or grant relief based on the subsequent applica�on unless the applica�on contains sufficient facts to establish one of two scenarios. First, the current claims and issues have not been and could not have been presented previously in an original applica�on because the factual or legal basis for the claim was unavailable on the day the applicant filed the previous applica�on. Second, if the applicant can show by a preponderance of the evidence that but for a viola�on of the Cons�tu�on, no ra�onal juror could have found the applicant guilty beyond a reasonable doubt. TEX. CODE CRIM. PROC. ANN. art. 11.07 § 4. Once an applicant files a writ challenging the convic�on, any subsequent writs concerning the same convic�on must meet one of these two statutory condi�ons. Ex parte Whiteside, 12 S.W.3d 819 (Tex. Crim. App. 2000). On the other hand, if the ini�al applica�on did not challenge the convic�on, a second applica�on will not be viewed as a subsequent applica�on. See Ex parte McPherson, 32 S.W.3d 860 (Tex. Crim. App. 2000) (ini�al writ seeking an out of �me appeal was - 20 -

not a challenge to the convic�on); Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998) (ini�al writ challenging parole revoca�on was not a challenge to the convic�on). An example of an applicant who was successfully able to qualify under one of these two condi�ons is found in Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2002). The applicant filed an original applica�on alleging that he was deprived of effec�ve assistance of counsel. The ini�al writ was denied by the Court of Criminal Appeals in May 1995. Six months later Lemke filed a second applica�on for writ of habeas corpus alleging he was denied effec�ve assistance of counsel on a different ground. The Court of Criminal Appeals concluded that the second applica�on was not barred as a subsequent applica�on under Sec�on 4 because the applicant had previously asked his trial atorney about the existence of plea bargain offers and had been told that none were made. The applicant subsequently discovered that a plea bargain offer had in fact been made; however, at the �me of the ini�al applica�on he had no reason to doubt his atorney’s representa�ons to him. Thus, the applicant was able to sa�sfy the Sec�on 4 requirement of reasonable diligence. In addi�on to statutory abuse authority, the Court of Criminal Appeals has made it clear it retains the authority to cite an applicant for common law abuse of the writ. In Ex parte Denton, 207 S.W.3d 768 (Tex. Crim. App. 2006), the applicant submited a forged affidavit in support of his claim of newly discovered evidence of actual innocence. The affidavit, purportedly from the mother of the aggravated sexual assault vic�m, claimed the vic�m had tes�fied falsely at the applicant’s trial. The court denied the applica�on, cited the applicant for common law abuse of the writ, and found the ac�on to cons�tute a frivolous lawsuit. V.C.8. Restraint Requirement Typically, the habeas applicant will be in custody and thus easily sa�sfy the statutory requirement that a writ of habeas corpus is available only for persons restrained in their liberty. Likewise, parole is considered a form of restraint which allows an applicant to pursue the remedies afforded under Art. 11.07. Board of Pardons & Paroles ex rel Keene v. Eight Circuit Court of Appeals, 910 S.W.2d 481 (Tex. Crim. App. 1995). Thus, an applicant may seek habeas relief under Art. 11.07 if she is on parole at the �me she files an applica�on challenging the underlying convic�on. Ex parte Elliott, 746 S.W.2d 762 (Tex. Crim. App. 1988). Generally, a claim that parole or other form of administra�ve release has been unlawfully revoked does not reach the validity of the underlined convic�on. However, it can s�ll properly be the subject of an 11.07 atack. The court’s ra�onale is that parole revoca�on affects confinement under the authority of the convic�on. Ex parte Woodward, 619 S.W.2d 179 (Tex. Crim. App. 1981).

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Post-Conviction Litigation

V.C.9. Juveniles An adjudica�on of having engaged in delinquent conduct is not a ﬁnal felony convic�on for purposes of Art. 11.07. Thus, habeas corpus does not lie. Ex parte Valle, 104 S.W.3d 888 (Tex. Crim. App 2003). The Court of Criminal Appeals reasoned that because all juvenile adjudica�ons (including appeals) remain on the civil side of the Texas judicial system unless transferred to a criminal court, the provisions of Ar�cle 11.07 should not be used to transport juvenile cases over to the criminal side for the single, speciﬁc proceeding of an applica�on of a writ of habeas corpus. The court did note, however, that Art. V, Sec�on 8 of the Texas Cons�tu�on gives the district court

plenary powers to issue a writ of habeas corpus. Ex parte Haggar, 819 S.W. 2d 866 (Tex. Crim. App. 1991). For those who were juveniles at the �me of the offense and never cer�fied as adults, habeas relief is available because the adult district court never acquired jurisdic�on over the defendant. Ex parte Levine, 2005 WL 3310317 (Tex. Crim. App. 2005). V.C.10. Exhaus�on of Other Remedies As discussed above, in certain instances an applicant may not raise a claim for �me credit served on sentencing un�l he has exhausted administra�ve remedies under the Texas Government Code. Similarly, a claim for pretrial jail �me credit must take the route of a mo�on for judgment nunc pro tunc in the convic�ng court followed by mandamus in the Court of Appeals. V.C.11. Laches While the introduc�on of the doctrine of laches has thus far been kept at bay by the majority of the Court of Criminal Appeals in writ maters, its advancement has consistently been advocated for by certain members of the court. In 2014 the Court adopted a new test for laches in this area. The old test was whether the delay would cause prejudice to the state’s ability to respond. Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999. The “new” test, however is a totality-of-the-circumstances analysis. This tracks the common law approach. Ex parte Perez, 445 S.W.3d 719 (Tex. Crim. App. 2014). V.C.12. Dual Forum Rule An applicant cannot proceed by state habeas at the same �me he has a writ pending in a federal court which relates to the same convic�on or same mater. Ex parte Powers, 487 S.W.2d 101 (Tex. Crim. App. 1972). The absten�on doctrine has generally been jus�fied on the basis of comity, avoidance of piecemeal li�ga�on or inconsistent results, and judicial economy. The Court of Criminal Appeals has relaxed the dual forum rule in the limited situa�on in which a subsequent applica�on presents a claim not otherwise barred from considera�on if the federal court with jurisdic�on over a parallel writ enters an order staying its proceedings to allow the applicant to return to the appropriate state court to exhaust his state remedies. Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004).

Post-Conviction Litigation

VI.

PROCEDURAL MATTERS

Ar�cle 11.07 details procedures in both the trial court and the Court of Criminal Appeals when a post-convic�on felony writ is filed. Ar�cle 11.07 is the exclusive means to challenge a final non-death penalty felony convic�on in Texas. Jurisdic�on to grant post-convic�on habeas corpus relief on a final felony convic�on rests exclusively with the Court of Criminal Appeals. Any other proceedings purpor�ng to grant relief would be considered void and of no force and effect in discharging the prisoner. Board of Pardons & Paroles ex rel Keene v. Eighth Court of Appeals, 910 S.W.2d 481 (Tex. Crim. App. 1995). VI.A. IN THE TRIAL COURT A�er final convic�on in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas. TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3(a). The applica�on is filed in - 22 -

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Post-Conviction Litigation

the court of convic�on. Id. § 3(b). In Deleon v. District Clerk, 187 S.W.3d 473 (Tex. Crim. App. 2006), the applicant complained the district clerk of Lynn County refused to file his 11.07 ac�ons and returned the mail unopened. The clerk defended herself on the basis she had adopted a policy not to accept any inmate filings unless the documents had been screened for anthrax contamina�on. The Court granted mandamus relief against the clerk a�er finding she had a ministerial duty to accept the pleadings and her failure to do so violated the applicant’s cons�tu�onal and statutory right to seek habeas relief. When the applica�on is received by the convic�ng court, a writ of habeas corpus, returnable to the Court of Criminal Appeals, issues by opera�on of law. If the applica�on is erroneously filed in a court other than in the county of convic�on, it can simply be dismissed rather than transferred to the appropriate court in the appropriate county. Ex parte Burgess, 152 S.W.3d 123, 124 (Tex. Crim. App. 2004). By the �me I file a writ, I have already reached out to the prosecutor and they know to expect it. So when I file my applica�on and brief in support, I always e-serve opposing counsel. The clerk of the convic�ng should also send a copy of the applica�on to the atorney represen�ng the state. The prosecutor then has fi�een days in which to answer the applica�on. Maters alleged in the applica�on that are not admited by the state are deemed denied. Within twenty days of the �me in which the prosecu�on is allowed to answer, the convic�ng court must decide whether there are controverted, previously unresolved facts material to the claimed illegality of confinement. If the convic�ng court decides there are no such issues, the clerk immediately transmits the applica�on, any answers, and the court’s finding to the Court of Criminal Appeals. If the trial court does not act within the allowed twenty days, the failure to act cons�tutes a finding of no contested issues. The statute does not supply authority for the trial court to extend the �me limita�ons of Sec�on 3(c), other than by �mely entry of an order designa�ng issues to be resolved. In the absence of such an order, the clerk is required to forward the file to the Court of Criminal Appeals. Martin v. Hamlin, 25 S.W.3d 718 (Tex. Crim. App. 2000). If the convic�ng court decides that there are controverted, previously unresolved facts, the judge enters an order within twenty days of the expira�on of the �me allowed for the state to reply. In that order the judge must designate issues of fact to be resolved. In resolving the issues, the judge of the convic�ng court may order affidavits, deposi�ons, interrogatories, and hearings. Addi�onally, the judge may use personal recollec�on. The convic�ng court may appoint an atorney or magistrate to hold a hearing and make findings of fact. A�er the convic�ng court makes findings of facts or approves the findings of the person designated to make them (the atorney or magistrate) then the clerk of the convic�ng court transmits the en�re package to the Court of Criminal Appeals. This packet includes the applica�on, any answers filed, any mo�ons filed, transcripts of all deposi�ons and hearings, all affidavits, and any other mater such as official records that were used by the convic�ng court in resolving issues of fact. Any objec�ons to the trial court’s findings and conclusions must be filed first with the convic�ng court and a copy served on opposing counsel. Objec�ons filed directly with the Court of Criminal Appeals will be returned to counsel or the applicant for proper filing with the convic�ng court and transmital to the Court of Criminal Appeals by way of a supplemental transcript.

Post-Conviction Litigation

VI.B. IN THE COURT OF CRIMINAL APPEALS The Court of Criminal Appeals is not bound by the trial court’s findings and conclusions of law. Rather, the Court of Criminal Appeals is obligated to determine if the record developed supports the trial judge s findings. Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989). The court has made it clear it will not consider new evidence or addi�onal evidence in support of the applica�on which is presented for the first �me to the Court of Criminal Appeals rather than the trial court. In Ex parte Simpson, 136 S.W.3d 660 (Tex. Crim. App. 2004), the Court dismissed an atempt to present evidence of mental retarda�on directly to that Court rather than to the trial court in the first instance. Art. 11.07 requires all evidence to first be submited to the convic�ng court for review. The Court of Criminal Appeals has two usual orders that are filed if relief is not granted. Disposi�ons rela�ng to the merits of a habeas claim are labeled denials while disposi�ons unrelated to merits are labeled dismissals. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1987). Typically when an applica�on is received by the Court of Criminal Appeals it is assigned to the court ‘s central staff for processing and is given a docket number. That number is unique to the person for whom relief is sought. Consequently, it will follow the applicant in any subsequent habeas proceedings. Following administra�ve review, the applica�on is sent by the staff to an individual judge of the Court. This is done in rota�on. The judge to whom the writ is assigned makes an ini�al review of the applica�on and in most cases will deny the applica�on on his or her own authority without the other judges of the court ever seeing the applica�on. Only those cases in which there is a recommenda�on for the Court to take some ac�on other than denial are actually discussed by the en banc court. If the court does consider the case during en banc conference, it may vote to deny the writ, to remand it for further fact findings, or to file and set the writ for argument. If the writ is denied, a denial no�ce is sent to the applicant. There is no rehearing from this denial. Tex. R. App. P. 79.2 (d). If, on the other hand, the Court of Criminal Appeals determines that further facts are needed for disposi�on of the writ, the case will be remanded to the trial court with an order to conduct a hearing or gather other informa�on through the vehicles authorized by Ar�cle 11.07 (i.e., affidavits or deposi�ons An applica�on may be filed and set for submission to the court. In that case the writ is assigned a new docket number, and is treated somewhat like a direct appeal. However, the Court of Criminal Appeals does not usually require briefs on habeas corpus cases that have been filed and set for submission. Oral argument takes place only at the court’s invita�on.

VII.

ARTICLE 11.071

The purpose of this sec�on of the paper is to discuss the li�ga�on of writs of habeas corpus in state court following a convic�on for capital murder in which the death penalty was assessed. VII.A. APPLICATION TO DEATH PENALTY CASE The Court of Criminal Appeals has held Ar�cle 11.071 contains the exclusive procedure for the exercise of the court’s habeas corpus jurisdic�on in death penalty cases. Ex parte Davis, - 24 -

947 S.W.2d 216, 224(Tex. Crim. App. 1996). Any eﬀort to invoke the court’s original jurisdic�on will fail. Ex parte Smith, 977 S.W.2d 610 (Tex. Crim. App. 1998). VII.B. CONSTITUTIONALITY OF THE STATUTE The Court of Criminal Appeals has rejected several cons�tu�onal challenges to Ar�cle 11.071 itself, including that it violates the Separa�on of Powers Clause of the state cons�tu�on; the provision of the state cons�tu�on that prohibits suspension of the writ of habeas corpus; the provision of the state cons�tu�on prohibi�ng ex post facto laws; the federal and state cons�tu�onal guarantees of equal protec�on and due process and due course of law; the federal and state cons�tu�onal guarantees of eﬀec�ve assistance of counsel; and the state cons�tu�onal provision guaranteeing open courts. Ex parte Davis, 947 S.W.2d 216, 218 (Tex. Crim. App. 1996).

VII.D. REPRESENTATION BY COUNSEL VII.D.1. Trial Court Responsible for Appointment Unless the recently convicted capital murder defendant decides to proceed pro se on habeas, the trial court shall determine whether he is indigent and desires the appointment of - 25 -

Post-Conviction Litigation

VII.C. WHAT IS AND IS NOT A WRIT A writ of habeas corpus is an order from a judge commanding a party, who is alleged to be restraining the applicant in some way, to appear before the court with the object of alleged restraint and explain the reasons for the restraint. Ex parte Hargett, 819 S.W. 2d 866, 868 (Tex. Crim. App. 1991). The purpose of the writ of habeas corpus is simple—it is a process u�lized to determine the lawfulness of conﬁnement. Ex parte Adams, 768 S.W. 2d 281, 287 (Tex. Crim. App. 1989). The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by a court or judge of competent jurisdic�on, directed to anyone having a person in his custody, or under his restraint, commanding him to produce such person, at a �me and place named in the writ, and show why he is held in custody or under restraint. TEX. CODE CRIM. PROC. ANN. art. 11.01. Because of the unique nature of the remedy, habeas corpus relief is underscored by elements of fairness and equity. Ex parte Drake, 883 S.W. 2d 213, 215 (Tex. Crim. App. 1994). An applica�on for habeas relief which does not challenge the validity of the underlying judgment or imposi�on of the sentence is not an applica�on for purposes of Art. 11.071. In Ex parte Kerr, 64 S.W.3d 414 (Tex. Crim. App. 2002), the court found an ini�al applica�on which merely challenged the procedure of 11.071 and presented no complaints as to the validity of the underlying capital murder convic�on did not qualify as an ini�al applica�on. However, in Ex parte O’Brien, 190 S.W3d 677 (Tex. Crim. App. 2006) (Cochran, J., concurring) a plurality of the court found a challenge to the lethal injec�on protocol maintained by TDCJ presented a cognizable claim under 11.071. The applica�on in O’Brien did not present a challenge to the judgment of convic�on or the method of execu�on, only a challenge to the chemicals used during the execu�on procedure. Likewise, a request for DNA tes�ng in the trial court does not cons�tute a habeas applica�on because such a mo�on, by itself, cannot result in relief from a judgment imposing a death sentence. Thacker v. State, 177 S.W.3d 926 (Tex. Crim. App. 2005). Consequently, there is no en�tlement to a stay of execu�on while an appeal from the denial of DNA tes�ng is pending. Thacker, 177 S.W.3d 926, 927.

counsel for purposes of a writ of habeas corpus. TEX. CODE CRIM. PROC. ANN. art. 11.07 § 2(c). If counsel is desired and the defendant is indigent, the trial court is required to appoint counsel within 30 days of entry of the judgment. Id. § 2(c). The Office of Capital and Forensic Writs is the default representa�on unless they are conflicted out, in which case the trial court has to appoint “other competent counsel.” Id. VII.D.2. Appointment Subject to Approval by Court of Criminal Appeals The writ lawyer appointed by the trial court is subject to approval by the Court of Criminal Appeals. Up-to-date informa�on on the death penalty qualified atorney appointment lists, including procedures for the death penalty qualified atorneys and the approved atorney appointment list are kept by the Administra�ve Judicial Regions website, htps://www.txcourts.gov/organiza�ons/policy-funding/ administra�ve-judicial-regions/ VII.D.3. Counsel Must Be Statutorily Competent The Cons�tu�on does not require appointment of counsel to death row inmates for the purpose of pursuing collateral atacks on their sentences. Murray v. Giarratano, 492 U.S.1 (1989); DeLuna v. Lynaugh, 873 F.2d 757, 760 (5th Cir. 1989). The Court of Criminal Appeals has found the competence required by Art. 11.071 refers to the qualifica�ons of counsel at the �me of appointment by the trial court rather than cons�tu�onal competence in a Sixth Amendment sense. Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002). VII.D.4. The Applicant Need Not Be Competent In Ex parte Mines, 26 S.W.3d 910 (Tex. Crim. App. 2000), the court reject the no�on an applicant must be competent to assist habeas counsel in the prepara�on and presenta�on of the applica�on. The holding was based on the rules that an applicant has no cons�tu�onal right to counsel on habeas and has no right to atend any habeas hearings.

Post-Conviction Litigation

VII.D.5. On to Federal Court If applicant loses in the Court of Criminal Appeals, ar�cle 11.071 Sec�on 2(g) requires counsel to move to be appointed as counsel, or move for the appointment of other counsel, in federal court within 15 days, pursuant to 21 U.S.C. 848(q). VII.E. MATTERS OF MONEY The state is required to reimburse a county for compensa�on of appointed and payment of expenses. The total amount of reimbursement to which a county is en�tled under this sec�on for an applica�on under this ar�cle may not exceed $25,000. Compensa�on and expenses in excess of the $25,000 reimbursement provided by the state are the obliga�on of the county. VII.F. INVESTIGATION OF GROUNDS Not later than the 30th day before the date the applica�on for a writ of habeas corpus is filed with the convic�ng court, counsel may file with the convic�ng court an ex parte, verified, and confiden�al request for prepayment of expenses, including expert fees, to inves�gate and present poten�al habeas corpus claims. - 26 -

The court is required to grant a request for expenses in whole or in part if the request for expenses is �mely and reasonable. If the court denies in whole or in part the request for expenses, the court shall briefly state the reasons for the denial in a writen order provided to the applicant. Counsel may incur expenses for habeas corpus inves�ga�on, including expenses for experts, without prior approval by the convic�ng court. On presenta�on of a claim for reimbursement, which may be presented ex parte, the court shall order reimbursement of counsel for expenses, if the expenses are reasonably necessary and reasonably incurred. If the court denies in whole or in part the request for expenses, the court shall briefly state the reasons for the denial in a writen order provided to the applicant. The applicant may request reconsidera�on of the denial for reimbursement. Expedi�ous inves�ga�on, factual and legal, is mandated by the statute. Get a competent inves�gator appointed. Ar�cle 11.071 Sec�on 3(b) permits you to request prepayment of inves�ga�ve expenses, no later than 30 days prior to filing the applica�on for writ of habeas corpus, by a confiden�al, verified and ex parte mo�on, which states the claims of the applica�on to be inves�gated; specific facts that suggest that a claim of possible merit may exist; and an itemized list of an�cipated expenses for each claim. Or, you can incur expenses without prior approval and seek reimbursement by an ex parte mo�on for all reasonable and necessary expenses. See TEX. CODE CRIM. PROC. ANN. art. art.11.071 § 3(d). VII.G. FILING OF APPLICATION VII.G.1. Time Limit to File An applica�on for a writ of habeas corpus, returnable to the Court of Criminal Appeals, must be filed in the convic�ng court not later than the 180th day a�er the date the convic�ng court appoints counsel or not later than the 45th day a�er the date the state’s original brief is filed on direct appeal with the court of criminal appeals, whichever date is later. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 4(a). VII.G.2. 90 Day Extension to File The convic�ng court may for good cause shown and a�er no�ce and an opportunity to be heard by the atorney represen�ng the state grant one 90-day extension to file the applica�on. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 4(b).

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Post-Conviction Litigation

VII.G.3. The Time Limit to File Is Strict Some of the Time The deadlines established by Ar�cle 11.071 are strict. The court dismissed the applica�on in Ex parte Smith, 977 S.W. 2d 610 (Tex. Crim. App. 1998), because it was filed 129 days late. In Ex parte Ramos, 977 S.W.2d 616 (Tex. Crim. App. 1998), the trial court granted an extension to file and miscounted the days. The applica�on was filed within the extension on the 272nd day, but un�mely under Sec�on 4 the Court of Criminal Appeals found counsel was en�tled to rely on the trial court’s extension. Applica�on of the Sec�on 4 deadline would deny due course of law under Art. I, Sec. 19 of the Texas Cons�tu�on. Therefore, the applica�on would be treated as �mely filed. The filing of a skeletal or shell applica�on merely to toll ADEPA one year filing period is sufficient to sa�sfy Sec�on 4 filing requirement. Ex parte Smith, 977S.W.2d 610 (Tex. Crim. App. 1998).

VII.H. REQUISITES OF THE APPLICATION VII.H.1. No Form Required Ar�cle 11.071 itself is silent on the form of the applica�on. Unlike Art. 11.07, the Court of Criminal Appeals does not mandate the use of a form for an applica�on under Art. 11.071.

Post-Conviction Litigation

VII.H.2. The Minimum to Include Because there is no form required for 11.071 cases, most prac��oners revert to Ar�cle 11.14 of the Texas Code of Criminal Procedure, cap�oned “Applica�on Requirements,” for guidance on how to structure the 11.071 writ applica�on: (a) An applica�on for a writ of habeas corpus must state substan�ally: 1. That the applicant is illegally restrained in the applicant’s liberty, and by whom, naming both par�es, if their names are known, or if unknown, designa�ng and describing them; 2. When the applicant is confined or restrained by virtue of any writ, order or process, or under color of either, a copy shall be annexed to the applica�on, or it shall be stated that a copy cannot be obtained; 3. When the confinement or restraint is not by virtue of any writ, order or process, the applica�on may state only that the applicant is illegally confined or restrained in the applicant’s liberty; 4. There must be a prayer in the applica�on for the writ of habeas corpus; and 5. Oath must be made that the allega�ons of the applica�on are true, according to the belief of the applicant or pe��oner. (b) In addi�on to the requirements under Subsec�on (a), a pe��oner must state in the applica�on and under oath that the pe��oner is presen�ng the applica�on with the applicant’s knowing and voluntary consent. VII.H.3. Plead the Facts In a post-convic�on collateral atack, the burden is on the applicant to allege and prove facts which, if true, en�tle him to relief. Ex parte Maldonado, 688 S.W. 2d 114, 116 (Tex. Crim. App. 1985). The burden of alleging facts which en�tle the applicant to relief cannot be overstated. That’s why, if it is at all possible, you atach affidavits and expert reports to your brief in support of your applica�on. Merely alleging the denial of a fair and impar�al trial or the denial of due process of law is insufficient. Such allega�ons are litle more than conclusions of law and do not meet the pleading requirement for a habeas applica�on. Ex parte San Migel, 973 S.W.2d 310 (Tex. Crim. App. 1998). Where a contemporaneous objec�on is required to preserve error in order to obtain collateral relief under Ar�cle 11.071, the applicant must allege in his pe��on that this objec�on was made. The failure to voice the required objec�on can be the basis of a claim of ineffec�ve counsel.

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VII.H.4. Oath or Declara�on The applica�on must be verified. At one �me, the oath had to be unqualified. That is, it was insufficient to merely swear that the allega�ons were true to the best of the applicant’s belief. That is no longer true. Now, the so-called qualified oath provided by the Code of Criminal Procedure is sufficient. The oath must be made that the allega�ons of the pe��on are true, according to the belief of the applicant or pe��oner. TEX. CODE CRIM. PROC. ANN. art. 11.14(a)(5). VII.I.

SUBSEQUENT APPLICATION If a subsequent applica�on for a writ of habeas corpus is filed a�er filing an ini�al applica�on, a court may not consider the merits of or grant relief based on the subsequent applica�on unless the applica�on contains sufficient specific facts establishing one of the four statutory excep�ons allowing the filing of a subsequent applica�on.

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Post-Conviction Litigation

VII.I.1. Four Statutory Excep�ons The statute recognizes four excep�ons to the filing of a subsequent applica�on. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a). First and second, the current claims and issues have not been and could not have been presented previously in a �mely ini�al applica�on or in a previously considered applica�on filed under Ar�cle 11.071 or Ar�cle 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous applica�on. Id. § 5(a)(1). Third, but for a viola�on of the United States Cons�tu�on no ra�onal juror could have found the applicant guilty beyond a reasonable doubt. Id. § 5(a)(2). Fourth, but for a viola�on of the United States Cons�tu�on no ra�onal juror would have answered in the state’s favor one or more of the special issues that were submited to the jury in the applicant’s trial under Ar�cle 37.071, 37.0711, or 37.072. Id. § 5(a)(3). The first and second excep�ons allow for the considera�on of legal and factual claims previously unavailable. See Black v. State, 816 S.W.2d 350 (Tex. Crim. App. 1991); Ex parte Chambers, 688 S.W.2d 483 (Tex. Crim. App. 1984). The court has found the Supreme Court opinion in Atkins v. Virginia, 536 U.S. 304 (2002) (barring execu�on of the mentally handicapped) sa�sfies the legal unavailability excep�on, which allows an applicant to present the claim for the first �me in a subsequent applica�on filed a�er Atkins was decided. See Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004). The third excep�on allows for the considera�on of a cons�tu�onal viola�on which probably resulted in the convic�on of an innocent person. See Schlup v. Delo, 513 U.S. 298 (1995). The fourth excep�on allows for the considera�on of a cons�tu�onal viola�on which would render the applicant ineligible for the death penalty. See Sawyer v. Whitley, 505 U.S. 333 (1992). In Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002), the Court made it clear it would construe the statutory excep�ons narrowly and refuse to recognize any excep�on to a subsequent applica�on other than those specifically authorized by the legislature. The Court con�nues to give an extremely narrow reading to those claims which may be addressed in a subsequent applica�on. See Ex parte Staley, 160 S.W.3d 56 (Tex. Crim. App. 2005) (holding Penry II complaint barred in a subsequent applica�on because claim could have been raised in first applica�on filed in 1997 even though Penry II was decided in 2001).

VII.I.2. CCA Screens for Excep�on If the convic�ng court receives a subsequent applica�on, the clerk of the court shall immediately send to the court of criminal appeals a copy of the applica�on. On receipt of the copies of the documents from the clerk, the court of criminal appeals shall determine whether the requirements of one of the four statutory excep�ons have been met. The convic�ng court may not take further ac�on on the applica�on before the court of criminal appeals issues an order finding that the requirements have been sa�sfied. If the court of criminal appeals determines that the requirements have not been sa�sfied, the court shall issue an order dismissing the applica�on as an abuse of the writ. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(b)-(c). Under this sec�on, a legal basis of a claim is “unavailable” if it “was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdic�on of this state” on or before the prior applica�on. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(d). A factual basis of a claim is “unavailable” if it “was not ascertainable through the exercise of reasonable diligence” on or before the prior applica�on. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(e).

Post-Conviction Litigation

VII.J. ANSWER TO APPLICATION The state is required to file an answer to the applica�on for a writ of habeas corpus not later than the 120th day a�er the date the state receives no�ce of issuance of the writ. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 7(a). The state shall serve the answer on counsel for the applicant or, if the applicant is proceeding pro se, on the applicant. The state may request from the convic�ng court an extension of �me in which to answer the applica�on by showing par�cularized jus�fying circumstances for the extension, but in no event may the court permit the state to file an answer later than the 180th day a�er the date the state receives no�ce of issuance of the writ. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 7(a). Just as the applicant must plead the facts, the State should likewise plead facts showing the applicant is not en�tled to the relief which he seeks. When appropriate, affidavits and proffers of proof should be atached to the State’s answer. Finally, any maters not specifically answered by the State are deemed denied. VII.K. TRIAL COURT RESOLUTION VII.K.1. No Issues to Resolve Not later than 20 days a�er the State files an answer, the trial court is required to determine whether controverted, previously unresolved factual issues material to the legality of the applicant’s confinement exist. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 8(a). If the convic�ng court determines the issues do not exist, the par�es shall file proposed findings of fact and conclusions of law for the court to consider. Id. § 8(b). VII.K.2. Issues to Resolve If the convic�ng court determines that controverted, previously unresolved factual issues material to the legality of the applicant’s confinement exist, the court shall enter an order, designa�ng the issues of fact to be resolved and the manner in which the issues shall be resolved. TEX. CODE CRIM. PROC. ANN. art. 11.072 § 9(a). To resolve the issues, the court may require affidavits, deposi�ons, interrogatories, and eviden�ary hearings and may use personal recollec�on. Id. - 30 -

The presiding judge of the convic�ng court shall conduct the hearing unless another judge presided over the original capital felony trial, in which event that judge, if qualified for assignment under Sec�on 74.054 or 74.055, Government Code, may preside over the hearing. Id. § 9(c). The par�es shall file proposed findings of fact and conclusions of law for the convic�ng court to consider in resolving the issues presented. VII.K.3. Discovery The habeas statute makes no provision for discovery prior to filing the pe��on. In Ex parte Patrick, 977 S.W. 2d 588 (Tex. Crim. App. 1998), the defendant complained that he had been denied the effec�ve assistance of counsel because the habeas judge would not order discovery of the state’s file. Judge Baird, in a concurring opinion, noted that the prudent course would be for the state to allow the defense access to its files. Exculpatory informa�on, of course, must be disclosed. “And this disclosure may be accomplished by court order, even though the statute contains no express provisions controlling post-convic�on discovery.” VII.K.4. The Burden of Proving the Claims The burden of proof in a post-convic�on habeas corpus proceeding is on the applicant. Ex parte Alexander, 598 S.W. 2d 308, 309 (Tex. Crim. App.1980) (finding that when neither applicant nor his atorney could remember whether an examining trial was held is not proof that it was not). Applicant must prove his factual allega�ons by a preponderance of the evidence. Ex parte Adams, 768 S.W. 2d 281, 287 88 (Tex. Crim. App. 1989). The sworn or verified allega�ons of the applicant do not cons�tute proof in support of the applica�on. Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998). VII.K.5. The Burden of Proving Harm In addi�on to proving his allega�ons, the applicant bears the burden of proving harm by a preponderance of the evidence. In Ex parte Fierro, 934 S.W.2d 370 (Tex. Crim. App. 1996), the Court of Criminal Appeals adopted the federal habeas harm standard for purposes of state collateral review of trial errors. That burden, under Brecht v. Abrahamson, 507 U. S. 619 (1993), requires the applicant to prove the error had a substan�al and injurious effect or influence in determining the jury’s verdict. The standard, unlike that in Chapman v. California, 386 U.S. 18 (1967), places the burden on the applicant and requires the showing of a probability rather than the disproving of a possibility.

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Post-Conviction Litigation

VII.L. REVIEW BY COURT OF CRIMINAL APPEALS The Court of Criminal Appeals is required to expedi�ously review all applica�ons for a writ of habeas corpus submited under Art. 11.071. The court may set the cause for oral argument and may request further brieﬁng of the issues by the applicant or the state. A�er reviewing the record, the court shall enter its judgment remanding the applicant to custody or ordering the applicant’s release, as the law and facts may jus�fy. The court may deny relief based upon its own review of the applica�on or may issue such other instruc�ons or orders as may be appropriate. Tex. R. App. P. 73.4. Unlike 11.07 applica�ons challenging noncapital convic�ons, 11.071 applica�ons are reviewed by all of the judges before a decision is made on the disposi�on of the applica�on.

The court of criminal appeals is not bound by the trial judge’s conclusions if not supported by the record. Ex parte McKay, 819 S.W.2d 478, 480 (Tex. Crim. App. 1990); Ex parte Adams, 768 S.W.2d 281,288 (Tex. Crim. App. 1989) (“[A]lthough this Court has the ul�mate power to decide maters of fact in habeas proceedings, generally if the trial court’s ﬁndings are supported by the record, they should be accepted and followed.”).

VIII. ARTICLE 11.072

In limited instances, the Ar�cle 11.07 post-convic�on writ is not a viable op�on for a defendant because there has been no ﬁnal felony convic�on. In those instances, the defendant must rely on a statutory writ other than Art. 11.07. Other writs are available.

Post-Conviction Litigation

VIII.A. AUTHORITY Courts authorized by statute to grant writs include the Court of Criminal Appeals, the district court, the county courts, or the judges of any of those courts. Specifically omited from the statute are the various Texas Courts of Appeals. Greenville v. State, 798 S.W.2d 361 (Tex. App.—Beaumont 1990, no pet.). VIII.B. COMMUNITY SUPERVISION Some poten�al habeas applicants do not have the necessary final convic�on to make them eligible for relief under Ar�cle 11.07. Applicants who are on community supervision have not been finally convicted for purposes of Art. 11.07. Rodriquez v. Court of Appeals, 769 S.W.2d 554 (Tex. Crim. App. 1989). Art. 11.072 became effec�ve on June 20, 2003, and provides a vehicle to challenge felony or misdemeanor cases in which the applicant is or has been on community supervision. The applicant may challenge the validity of the convic�on for which or order in which community supervision was imposed. The applicant may also challenge a condi�on of community supervision on cons�tu�onal grounds if the trial court has denied a mo�on to modify the challenged condi�on. An appeal may be taken by either side from an unfavorable ruling to the appropriate Court of Appeals. Writ relief has been granted to remove challenged aspects of proba�on condi�ons, including the following examples of community supervision held to be unreasonable include: • Ex parte Gingell, 842 S.W.2d 284 (Tex. Crim. App. 1992): Electronic monitoring was held to be an unreasonable condi�on of deferred adjudica�on proba�on. • Ex parte Shillings, 641 S.W.2d 538 (Tex. Crim. App. 1982): Relief granted a�er trial court ordered applicant to spend thirty days in jail as a condi�on of deferred adjudica�on. A limita�on on Art. 11.072 is that relief may not be sought by way of habeas if the iden�cal relief is available by way of an appeal. TEX. CODE CRIM. PROC. ANN. art. § 3(a). In Ex parte Wilson, 171 S.W.3d 925 (Tex. App.—Dallas 2005, no pet.), the court declined to review the 11.072 applica�on because the defendant had bypassed a direct appeal and proceeded directly to habeas in an effort to obtain relief.

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VIII.C. DRAFTING AND PROCEDURES Unlike the Ar�cle 11.07 writ, here there are no required statutory or court ordered applica�on forms. Prac��oners should refer to the dra�ing guidelines and procedures typically used to challenge procedures prior to convic�on. For example, pre-convic�on writs such as those dealing with bail or double jeopardy. Sample forms for these pre convic�on writs can be found in Texas prac�ce guides as well as in the manuals and on the brief banks of various defender organiza�ons. VIII.D. MISDEMEANOR CONVICTIONS There are many fewer habeas challenges in misdemeanor cases than there are following felony convic�ons. This may be a func�on of the expense of pursuing writ relief. VIII.D.1. Authority County courts, district courts, and the Court of Criminal Appeals have original jurisdic�on in habeas corpus proceedings when an atack is made on the validity of a misdemeanor convic�on. District courts may grant relief for misdemeanor writs. TEX. CODE CRIM. PROC. ANN. art. 11.09. If writ relief is denied, the applicant may appeal to the appropriate Court of Appeals, subject to discre�onary review from the Court of Criminal Appeals. Ex parte Renier, 734 S.W.2d 349 (Tex. Crim. App. 1987). In Ex parte Schmidt, 109 S.W.3d480 (Tex. Crim. App. 2003), the Court noted a statutory county court at law has the authority to grant habeas relief when a person is retrained by an accusa�on or convic�on for a misdemeanor. There, the applicant sought to challenge the validity of prior misdemeanor DWI convic�ons alleged in a felony DWI case. VIII.D.2. Grounds The same types of substan�ve issues that may be raised apply to misdemeanor convic�ons just as they do to felonies. VIII.D.3. Dra�ing There are no required forms for the habeas corpus pe��on atacking a misdemeanor convic�on in county or district court. In this way, the dra�ing procedures are unlike those now required for Art. 11.07 writs ﬁled in the district court and made returnable to the Texas Court of Criminal Appeals.

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Post-Conviction Litigation

VIII.E. APPEALS FROM THE DENIAL OF RELIEF Unsuccessful 11.072 writ applicants may appeal the denial of relief to the appropriate Court of Appeals. Ex parte Jordan, 659 S.W.2d 827 (Tex. Crim. App. 1983). Although no appeal may be taken from a refusal to issue a writ of habeas corpus, an appeal is proper if the trial court denies relief a�er considering the merits of the applica�on. Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991). An appellate court generally reviews a trial court’s decision to grant or deny relief on a writ of habeas corpus under an abuse of discre�on standard. Ex parte Peralta, 87 S.W.3d 642 (Tex. App.—San Antonio, 2002, no pet.). However, an abuse of discre�on review of a trial court’s decision is not necessarily appropriate in the context of applica�on of law to facts when the decision does not turn on the credibility or demeanor of witnesses. Ex parte Martin, 6 S.W.3d 524

(Tex. Crim. App. 1999). Instead, an appellate court will conduct a de novo review when the trial judge is not in an appreciably beter posi�on than the reviewing court to make the determina�on on the denial of habeas relief. Ex parte Peralta, 87 S.W.3d at 645; Ex parte Mann, 34 S.W.3d 716 (Tex. App.—Fort Worth 2000, no pet.).

Post-Conviction Litigation

IX.

ARTICLE 11.073

The field of science is inherently interwoven into the prac�ce of criminal law. Accordingly, the legal system must find a way to be flexible enough to adjust for major developments in the scien�fic community in areas where juries are led to believe their convic�ons are scien�fically supported beyond a reasonable doubt. In 2013 the Texas Legislature recognized and addressed this necessity by crea�ng the “junk science writ.” TEX. CODE CRIM. PROC. ANN. art. 11.073. Ar�cle 11.073, by its language, applies to relevant scien�fic evidence that (i) was not available to be offered by a convicted person at the convicted person’s trial or (ii) contradicts scien�fic evidence relied on by the state at trial. TEX. CODE CRIM. PROC. ANN. art. 11.073(a). In other words, if the science is new or if new revela�ons have revealed the science is “junk,” then an 11.073 writ is proper. The parlance is “11.073 writ,” but really it’s more accurate to say 11.073 claim as such a claim s�ll has to be laid out in the 11.07, 11.071, or 11.072 writ (depending on the punishment). See TEX. CODE CRIM. PROC. ANN. art. 11.073(b)(1). Note that you cannot raise a junk science claim in an 11.09 writ (one based off of a misdemeanor). See id.; Ex parte Herod, No. 01-15-00494-CR, 2016 WL 1470079 (Tex. App.—Houston [1st Dist.] Apr. 14, 2016). In the writ, the applicant has to allege “specific facts” showing, (A) relevant scien�fic evidence is currently available and was not available at the �me of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and (B) the scien�fic evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the applica�on. TEX. CODE CRIM. PROC. ANN. art. 11.073(b)(1)(A)-(B). The standard that the applicant has to meet is preponderance of the evidence, specifically, the trial court has to find that “had the scien�fic evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.” TEX. CODE CRIM. PROC. ANN. art. 11.073(b)(2); see Ex parte White, 506 S.W.3d 39 (Tex. Crim. App. 2016) (no�ng the conviction itself must have been con�ngent on the junk science at issue, not just the sentence received at the punishment stage). A variety of convic�ons that have been overturned on junk science grounds are provided below. Keep in mind as a prac��oner it is best prac�ce to keep up with developments in forensics as this list will only con�nue to grow as science progresses with �me. With that said, here is a sampling of 11.073 claims that have gained trac�on: • Arson: Ex parte Cacy, 543 S.W.3d 802 (Tex. Crim. App. 2016) •

Bite mark evidence: Ex parte Chaney, 563 S.W.3d 239 (Tex. Crim. App. 2018)

•

Cell Tower Location Data: Ex parte Fischer, No. WR-76,039-02, 2021 WL 900679 (Tex. Crim. App. Mar. 10, 2021) - 34 -

•

DNA Analysis: In re Clark, No. WR-13,739-06, 2023 WL 8613823 (Tex. Crim. App. Dec. 13, 2023) (exonera�ng applicant based on results of subsequent DNA analysis done with technology not available at the �me of the trial); In re Santillan, No. WR-49,763-02, 2023 WL 2150874 (Tex. Crim. App. Feb. 22, 2023) (DNA tes�ng of shirt le� at scene by real killer exonerated applicant); Ex parte Grant, 622 S.W.3d 392 (Tex. Crim. App. 2021) (exonera�ng applicant based on newly tested DNA, along with the confession of the real perpetrator); Ex parte Kassmaul, 548 S.W.3d 606 (Tex. Crim. App. 2018) (exonera�on based on favorable Y-STR DNA tes�ng); but see Ex parte Chanthakoummane, No. WR-78,107-02, 2020 WL 5927442 (Tex. Crim. App. Oct. 7, 2020) (rejec�ng a claim where DNA sta�s�cal recalcula�on jus�ﬁed exonera�on under Ar�cle 11.073)

•

Miscellaneous: Ex parte Robbins, 478 S.W.3d 678 (Tex. Crim. App. 2014) (Medical examiner could no longer stand by her trial tes�mony claiming the cause of death was homicide. The scien�ﬁc evidence relied on by the State in obtaining the ini�al convic�on was contradicted by scien�ﬁc evidence that was not available at trial because the medical examiner re-evaluated her opinion a�er the trial.)

CONCLUSION

I hope this paper brings some clarity to the o�en confusing requirements surrounding writs of habeas corpus. When all else fails, don’t forget the poten�al vehicle of habeas corpus relief. Good luck in your habeas prac�ce.

Post-Conviction Litigation

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37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Collateral Consequences of Family Violence Cases

Speaker:

Betty Blackwell

Law Office of Betty Blackwell 1306 Nueces St Austin, TX 78701 512.479.0149 Phone 512.320.8743 Fax bettyblackwell@bettyblackwell.com Email www.bettyblackwell.com website

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

Collateral Consequences Family Violence Cases

Texas Criminal Defense Lawyers Association

Collateral Consequences Family Violence Cases

Collateral Consequences of Family Violence Cases

Betty Blackwell Attorney at law Board certified in Criminal law 1306 Nueces St. Austin, Texas 78701 512-479-0149 bettyblackwell@bettyblackwell.com

Bonding………………………………………………………………………p.3 Evidentiary Issues Forfeiture by wrongdoing………………………. …………………..p.4 Article 38.371 …………………………………………………………p.5 Punishment Enhancements ……………………………………………… p.6 Immigration …………………………………………………………………p.7 Guns ………………………………………………………………………….p.8 Family Code issues Managing conservator……………………………………………… p.10 Spousal maintenance …………………………………………………p.11 Employment Issues ………………………………………………………… p.12 Law enforcement…………………………………………………… p.14 Fast fingerprinting ………………………………………………………. p.14 FACT Clearinghouse ………………………………………………………. p.14 School District…………………………………………………………p.14 Attorneys………………………………………………………………p.15 National reentry…………………………………………………………… p.15 Credit reports……………………………………………………………… p.16 Housing ………………………………………………………………………p.17 Security clearance……………………………………………………………p.18 DNA database………………………………………………………………. p.18 Removal from database………………………………………………p.19 College……………………………………………………………………… p.20 Volunteering…………………………………………………………………p.20 Notifications………………………………………………………………… p.20 Finding of F.V. ………………………………………………………………p.21 Conclusion ………………………………………………………………… p.21 National Inventory of Collateral Consequences…………………….p.21

Collateral Consequences Family Violence Cases

Table of Contents:

Collateral Consequences Family Violence Cases

Bonding: From the first moments of being charged with any case involving Family violence many consequences flow as a result, beginning with being released from jail. Article 17.03 was amended by SB 6 passed during the 2021 legislative session which prohibits personal bond for those charged with offense involving violence. An offense involving violence includes Section 22.01(a)(1) assault if it is a felony of the 2nd degree or punishable as a felony and involved “family violence”, Section 25.072 (repeat violation of certain court orders of conditions of bond in family violence cases); or Section 25.11 (continuance violence against the family).In addition Article 17.03 (b-2) states a defendant cannot be released on personal bond if while released on bail or community supervision for an offense involving violence, the defendant is charged with committing, among other charges, and offense under Section 22.01(a)(1) assault; 22:05 (deadly conduct); Section 22;07 (terroristic threat) or Section 42.02(a)(7) or (8) disorderly conduct involving a firearm. Beginning January 1, 2022, all magistrates shall consider the public safety report before setting bail and submit a bail form. The magistrate shall consider, pursuant to Article 17.028 CCP, the safety of the community, law enforcement, and the victim of the alleged offense. Any changes, modifications, or reductions in bail also much be reported. The magistrate must also consider the defendant’s criminal history, including whether the defendant has ever been charged with an offense involving family violence. Conditions of Bond: All conditions of a bond granted in any offense involving family violence as defined by Section 71.004, Family Code must be sent to the sheriff and the sheriff must enter the information in the department of Public Safety’s Crime information center database. Also, the victim must be given notice of these conditions. See Article 17.50, 17.51 and 17.52 CCP. Conditions of bond can include stay away order and order to prohibits the defendant from going to or near a child care facility or school and GPS monitoring under Article 17.49 CCP which was amended to include prohibiting the defendant 3

Evidentiary issues: Forfeiture by wrongdoing: The Court of Criminal Appeals held that murdering the victim forfeits the defendant’s 6th amendment claim that admission of the victim’s statements to police violated his right to confront the witness. Gonzales v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006). However, the Supreme Court in Giles v. California, 128 4

Collateral Consequences Family Violence Cases

from tracking the victim or their vehicle and from following the victim or causing another to follow the victim. Article 17.291 of the Code of Criminal Procedure allows for detention after bond has been posted in cases involving family violence for four hours and up to 48 hours if certain conditions are met. Denial of Bond: Article 17.152 allows the denial of bond for violation of certain court orders or conditions of bond in a family violence case after a hearing and a finding by the preponderance of the evidence that the defendant violated a condition of bond related to the safety of the victim or the safety of the community. If the allegation is that the defendant went to a prohibited place, he/she can be denied bail if it is shown by a preponderance of the evidence that the intent was to commit or threated family violence or and act in furtherance of an offense of Stalking. The Texas Constitution was amended to allow this denial of bond. Emergency Protective Orders: Under Article 17.292 CCP the magistrate may grant a protective order, which can include a prohibition of possessing a firearm and suspension of any license to carry a handgun. In cases involving family violence that involves serious bodily injury or the use or exhibition of a deadly weapon, the magistrate SHALL grant a protective order. Protective Orders after notice and a hearing: Rahimi v. U.S., the 5th circuit held in a case where the defendant was charged with unlawful possession of a firearm by someone subject to a domestic violence restraining order, was unconstitutional holding 18 USC 922 (g)(8) unconstitutional as a violation of the 2nd amendment to the U.S. Constitution. 61 F.4th 443 (5th Circuit 2023) certiorari granted 6/30/23. As of the date of this paper the Supreme Court has not ruled. Article 18 USC 922 applies only to cases where the defendant had notice of the hearing and an opportunity to be heard, before the condition of “no firearms” was entered. Therefore an EPO prohibiting the possession of a firearm where no notice is provided may very well be unconstitutional.

Collateral Consequences Family Violence Cases

S.Ct. 2678 (2008) held that the scope of the forfeiture rule applies only when the defendant engaged in conduct designed to prevent the witness from testifying. Mr. Giles was accused of shooting and killing his ex-girlfriend. Prosecutors introduced out of court statements the deceased had made to the police about 3 weeks before the shooting alleging that the defendant had assaulted her and threatened to kill her. The trial court admitted the statements because they concluded that he had committed the murder for which he was on trial and therefore he had made the witness unavailable to testify. The Supreme Court held, “The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior judicial assessment that the defendant is guilty as charged, does not sit well with the right to trial by jury. It is akin, one might say, to “dispensing with jury trial because a defendant is obviously guilty.” The Court noted that common law uniformly excluded unconfronted inculpatory testimony by murder victims (except dying declarations) in the numerous cases in which the defendant was on trial for killing the victim but was not shown to have done so for the purpose of preventing testimony. The Court also stated that in family violence cases “where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution-rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.” The Supreme Court reversed the case for admitting the deceased statements. On remand, the Supreme Court stated the lower court would be allowed to consider the intent of the defendant, something they had not done believing it was irrelevant to the issue of forfeiture. Article 38.49 C.C.P. is the specific Texas law on forfeiture by wrongdoing enacted in 2013 and amended in 2015. Because §(1) states that the party offering the evidence is not required to show that the actor’s sole intent was to wrongfully cause the witness’s or prospective witness’s unavailability, the statute appears in direct conflict with the Supreme Court holding in Giles, and therefore maybe unconstitutional. Article 38.371 to the Texas Code of Criminal Procedure which became effective September 1, 2015 and applies to all criminal proceedings that commence on or after that date. Article 38.371 Evidence in prosecutions of certain offense involving 5

PUNISHMENT ENHANCEMENTS Article 22.01 of the Texas Penal Code was amended on September 1, 1999 to change the punishment range on a Class A misdemeanor assault based on a finding that the offense involved family violence and the defendant had been previously convicted of an offense involving a family member. Article 22.01 (b) (2). The Class A misdemeanor is raised to a third degree felony. The 2005 law also enlarged the group of victims from family members to include household members and those with whom the person has had a dating relationship as defined by the Family Code. Household members do not include cell mates. Davis v. State, 533 S.W.3d 498 (Tex. App. Corpus Christi 2017) Applicable Family Code provisions: Section 71.003: “Family” includes individuals related by consanguinity or affinity, as determined under Section 573.022 and 573.024 Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parents, without regard to whether those individuals reside together. Section 71.005 “Household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. Section 71.006 “Member of a household” includes a person who previously 6

Collateral Consequences Family Violence Cases

family violence. (a) This article applies to a proceeding in the prosecution of a defendant for an offense, or for an attempt or conspiracy to commit an offense, that is committed under: (1) Section 22.01 or 22.02, Penal Code, against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005 Family Code; or (2) Section 25.07 or 25.072, Penal Code, if the offense is based on a violation of an order or a condition of bond in a case involving family violence. (b)In the prosecution of an offense described by Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim. (c)This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.

Collateral Consequences Family Violence Cases

lived in a household. Haynes v. State, 254 S.W.3d 466 (Tex. App. Hous.[1Dist.]2007) reviewed the sufficiency of the evidence to elevate an assault to a 3rd degree felony when the only evidence presented was that the victim had previously been a member of the defendant’s household. Household is defined in Section 71.005 of the family code as a unit of persons living together. Section 71.006 provides that household includes persons who previously lived in a household. Section 22.01 Penal Code does not include Section 71.006. In Haynes, the appellate court was called on to determine if a former member of the household met the statutory definition. The Court held that it did not. The Court points out that the legislature could have incorporated the expanded version of Section 71.006 of the Family Code into the Penal Code, but it did not. Article 22.01 Penal Code (f) was amended to allow the use of deferred adjudication as proof of a prior conviction. However, this law cannot be applied retroactively. The simplest case upon which to obtain a third degree felony assault conviction based on a prior deferred adjudication is where the deferred adjudication for family violence assault occurred after September 1, 1999. IMMIGRATION: Deportation Any alien who is convicted at any time of a crime of domestic violence is deportable. Any alien convicted of violating a protective order is deportable. In 1996, Congress changed the definition of “conviction” to include “if adjudication of guilt has been withheld where (i) the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” Convictions, therefore, include deferred adjudication. From 2006-2014 assault family violence was not deportable because it was not a crime of violence. U. S. V. Villegas-Hernandez, 468 F3d 874(5th Cir. 2006) It required a showing of injury but not necessarily a use of force which was required for a crime of violence which is included in the definition of domestic violence, so they were not subject to deportation. However, in 2014, intentionally and knowingly causing bodily injury was held to be a crime of violence as defined in domestic violence in U. S. v. Castleman 134 S.Ct. 1405 (2014). Thus, assault family violence was held to be a crime of violence and the holding was retroactive. See Mulcahey v. Catalanotte 77 S.Ct. 1025 (1957). Then in 2021 the court held that recklessly causing bodily injury assault family violence that has the mens rea 7

The text of the Federal Immigration Code is as follows: 8 USC 1227(a)(2) says: (2) Criminal offenses (E) Crimes of domestic violence, stalking, or violation of protection order, crimes against children (i) Domestic violence, stalking, and child abuse Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual. 18 U.S.C. 16 (2021): The term "crime of violence" means— (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, ii) Violators of protection orders Any alien who at any time after admission is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. GUNS: CHL: A person is ineligible for a concealed handgun permit if they have been 8

Collateral Consequences Family Violence Cases

of recklessness did not qualify as a crime of violence under the ACCA, prohibiting gun ownership. Borden v. U.S. 141 S.Ct. 1817 (2021). It would appear that this definition should be extended to the definition in the immigration code, but that has yet to be decided. Undocumented aliens can be deported for assault family violence arrests and DACA also has the prohibition of assault family violence cases.

Collateral Consequences Family Violence Cases

convicted or received deferred adjudication for any felony in Title 5 of the Penal Code, which includes felony assault family violence. A person is ineligible if they have within the last 5 years been convicted of a class A or B misdemeanor or if they are under a protective or restraining order affecting the spousal relationship. Section 411.172 and 411.173(a) Government Code. This section has been held unconstitutional for requiring the applicant to be 21 years of age or older. 623 F. Supp. 3rd 740 Firarms v. McCraw of DPS (N.D. of Texas 2022). Federal Firearms ban: Federal law bans possession of firearms and ammunition under 18 USC 922 if the person pursuant to (g) (9) has been convicted in any court of a misdemeanor crime of domestic violence; or (8) who is subject to a court order that-(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate. (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury. U.S. v. Castleman, 135 S.Ct. 1405 (2014) found that intentionally or knowingly causing bodily injury was sufficient to qualify as a domestic violence conviction to ban possession of a firearm under federal law. The entire section was held facially unconstitutional by a Illinois District court even as to convicted felons in U. S. v. Neal 2024 WL833607 (2024) under the N.Y. v. Bruen . (142 S.Ct. 2111)(2022)) standard which held NY’s license to carry unconstitutional in which Justice Thomas said that the 2nd amendment protects a person’s right to carry a handgun for self-defense outside the home. Deferred adjudication does not count as a conviction because there is no finding of guilt. In 2016 the Supreme Court held that reckless domestic assault qualified as a crime of domestic violence to prohibit possession of a firearm after conviction. Voisine v. U.S., 136 S.Ct. 2272(2016), then in Borden v. U.S. 141 S.Ct.1817 (2021) held that Tennessee’s reckless aggravated assault that only requires a mens rea of recklessness cannot count as a violent felony under the ACCA. Looking at 9

State Law violations: Penal code 46.04: (b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person's family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of: (1) the date of the person's release from confinement following conviction of the misdemeanor; or (2) the date of the person's release from community supervision following conviction of the misdemeanor. A person, other than a peace officer, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Subchapter A, Chapter 7B,1 Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order. U.S. v. Rahimi, 61 F4th 443 (5th Cir. 2023) held that federal prohibition of possession of a firearm while under a protective order violated the 2nd amendment was unconstitutional. Certiorari was granted by the Supreme Court on 6/30/2023. As of this paper, no decision has come down from the Supreme Court. A felon in Texas can possess a firearm 5 years after the release from confinement or community supervision or parole, but after that time period, only at his home. Section 46.04 Penal Code. Article 42.0131 of the Code of Criminal Procedure requires the court to advise a person convicted of a misdemeanor involving family violence as defined by Section 71.004, Family Code that it is unlawful for the person to possess or transfer a firearm or ammunition. Family Code: Presumption of Managing Conservator If the Court makes a finding of family violence in the criminal case or a protective order hearing, your client may find himself/herself automatically disqualified from being considered to be appointed joint managing conservators of their children under Texas Family Code § 153.131 (b). 10

Collateral Consequences Family Violence Cases

the same definition of crime of violence, the court held that the “against” phrase in 18 U.S.C 16, indeed sets out a mens rea requirement—of purposeful or knowing conduct, effectively overruling Voisine.

Collateral Consequences Family Violence Cases

Presumption That Parent to Be Appointed Managing Conservator - Texas Family Code § 153.131 (a) (b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection. (b) History of Domestic Violence or Sexual Abuse – Texas Family Code § 153.004(a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator. (d) The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that: (1) there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit; or (2) the parent engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent’s child. State law contemplates the loss of the ability to be a managing conservator or joint conservator of a minor child and potentially the loss of the ability to have access to the child. In addition, one can lose the right to foster or adopt a child under Texas law. The Family Code allows a party to petition to change the custody based on a finding of family violence. Modification of Orders § 156.1045. Modification of Order on Conviction for Family Violence Currentness (a) The conviction or an order deferring adjudication of a person who is a possessory conservator or a sole or joint managing conservator for an offense involving family violence is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship or for the possession of or access to a child to conform the order to the requirements of Section 153.004(d). 11

Employment issues: Both the Occupation Code and Texas Administrative Code contain disqualifies for individuals with criminal convictions/or deferred adjudications who are applying for licenses in the State of Texas. For example, 37 TAC Section 351.30 states: (c) Disqualification from Employment. (1) Criminal History. A person with the following criminal history shall be disqualified from employment as a short-term juvenile detention officer, supervisor of juvenile detention officers, or administrative officer, including a misdemeanor conviction or deferred adjudication within the last 5 years. Occupational license Code Section 51.356 addresses deferred adjudication and provides: (a) The commission may deny, suspend, revoke, or refuse to renew a license or other authorization issued by a program regulated by the department if: 12

Collateral Consequences Family Violence Cases

Spousal Maintenance: Section 8.051 of the Texas Family Code provides for spousal maintenance in the dissolution of a marriage that lasted more than 10 years. However, if a spouse was convicted of or received deferred adjudication for a criminal offense that constitutes an act of family violence, the person’s spouse is eligible for maintenance regardless of the length of marriage as long as the conviction occurred within two years of filing the suit for dissolution of the marriage and the spouse does not have sufficient property to provide for minimum reasonable needs. 2011 legislation changed the statutory requirements and raised the amount up to $5000.00 for up to five years unless the marriage was more than 10 years in length. See §8.054 and §8.055 Texas Family Code. Section 6.702 Family Code provides there is no waiting period to finalize a divorce if the respondent has been finally convicted of or received deferred adjudication for an offense involving family violence as defined by Section 71.004 against the petitioner or a member of the petitioner's household; or (2) the petitioner has an active protective order under Title 41 or an active magistrate's order for emergency protection under Article 17.292, Code of Criminal Procedure, based on a finding of family violence, against the respondent because of family violence committed during the marriage. If CPS removes a child, it is not required to provide information to an individual if the department determines providing information is inappropriate because the individual has a criminal history or a history of family violence. See Family Code 262.1095.

Collateral Consequences Family Violence Cases

(1) the person holding or seeking the license received deferred adjudication for: (A) any offense described by Article 62.001(5), Code of Criminal Procedure; or (B) an offense other than an offense described by Paragraph (A) if: (i) the person has not completed the period of deferred adjudication, or the person completed the period of deferred adjudication less than five years before the date the person applied for the license; or (ii) a conviction for the offense would make the person ineligible for the license by operation of law; and (2) the commission determines that the deferred adjudication makes the person unfit for the license. This applies to plumbers and electricians and any agency that issues licenses for the state. Chapter 53 of the Occupational Code discusses the consequences of criminal convictions. In 2021 the Legislature amended the occupation code to try and help individuals keeps their state licenses. Chapter 53 specifically says that it is trying to help those who have been convicted of an offense but have discharged their sentence. However, it goes on to say that upon any final felony conviction the license shall be revoked. 53.021(b) It provides that deferred adjudication will not be considered a conviction unless the person has not completed the period of supervision or it has not been five years since the completion. Some examples of Texas law provides for the denial of a license is the denial of professional employer services license. Texas Lab. Code 91.013, denial of landscape architect certification. 22 TAC 3.149, denial of law enforcement license 37 TAC 223.15 and revocation of a law enforcement license 37 TAC 223.19. As stated under the Occupation Code, deferred adjudication is considered a conviction for law enforcement licenses. Section 53.0211 provides for licensing with a prior conviction but specifically says that it does not apply to those who provide law enforcement services, public health, education or safety services, or financial services. Certain agencies have their own licensing requirements and may revoke a previously issued license if the licensee is convicted of a crime of moral turpitude. Family violence offenses may be classified as crimes of moral turpitude. Hardeman v. State, 868 S.W.2d 404 (Tex. App. Austin 1993) held that assault by a man on a woman was a crime of moral turpitude. Ludwig v. State, 969 S.W.2d 22, 29 (Tex. App.—Fort Worth 1998, pet. ref’d), held that violation of a protective order was a crime of moral turpitude. A conviction for the misdemeanor offense of violation of a protective order will be considered a crime of moral turpitude when the underlying, uncharged offense is one of family violence or the direct 13

FAST—fingerprinting FAST is a service of the DPS that provides the electronic capture and submission of fingerprints for a fingerprint background check. If an applicant submits their fingerprints through FAST they are agreeing that the information released: “I authorize the Texas Department of Public Safety (DPS) to access Texas and Federal criminal history record information that pertains to me and disseminate that information to the designated Authorized Agency or Qualified Entity with which I am or am seeking to be employed or to serve as a volunteer, through the DPS Fingerprint-based Applicant Clearinghouse of Texas and as authorized by Texas Government Code Chapter 411 and any other applicable state or federal statute or policy”. DPS has created a clearinghouse for these records. What is FACT Clearinghouse? The FACT Clearinghouse is a repository of the DPS and the FBI fingerprintbased criminal history results. The FACT Clearinghouse allows an authorized entity access to a consolidated response of the DPS and FBI criminal history fingerprint results, including an electronic subscription and notification service for 14

Collateral Consequences Family Violence Cases

threat of family violence. Campos v. State, 458 S.W.3d 120 (Houston 1st 2015) reversed on other grounds and then affirmed on remand, held that assault family violence conviction on a minor child was a crime of moral turpitude. However, no court has held that assault family violence, without looking at the underlying facts, is a crime of moral turpitude. Old case law had held that misdemeanor assault was not a crime of moral turpitude. Garza v. State, 160 S.W.2d 926 (Tex. Crim. App. 1947) Law Enforcement Law enforcement officers can have their licenses immediately suspended upon arrest or indictment for a felony “involving assaultive offenses”. 37 TAC Section 223.18. Upon conviction for any offense higher than a class C the law enforcement license is suspended. 37 TAC Section 223.15. Upon conviction of a felony, the law enforcement license is revoked. Upon conviction or community supervision for an offense involving family violence, the license is revoked. 37 TAC Section 223.19. A license cannot be issued to someone who has ever been convicted or placed on community supervision for an offense involving family violence. 37 TAC Section 217.1(b)(7).

Collateral Consequences Family Violence Cases

new arrest activity on subscribed persons. Only persons processed through Fingerprint Applicant Services of Texas (FAST) are eligible for FACT. A qualified entity or authorized agency may apply for a subscription to the FACT clearinghouse. Subscription Service The subscription service notifies an entity of new activity to a Texas criminal history record and now with the implementation of FBI Rap Back, new activity on an individual’s national criminal history. Not only will the subscribing entity receive notifications of events that occurred within Texas, they will also receive notifications of events that occurred elsewhere in the nation. Events that can generate a notification are arrests, record updates, Sex Offender Registry activity, and death notices. These notifications will help eliminate the need to re-fingerprint employees to determine if new activity has been received after the initial check. All school districts are required to have a subscription service with FACT. Which means that if a teacher is arrested, their school is immediately notified of the arrest. Police agencies also have access to this information about their police officers. Hospitals have access to this, which means that doctors and nurses may have their employer notified upon arrest. See Government code 411 section F for the long list of entities that can subscribe to the FACT system, including the State Bar of Texas, the Medical Board, Nursing board, Board of Dental examiners, and chiropractors, just to name a few. Attorneys bar license: Rule 8.04 of the Texas Rules of Professional Conduct provides that a lawyer shall not commit a serious crime or commit any other criminal act that reflects adversely on the lawyers honesty, trustworthiness, or fitness as a lawyer in other respects. 8.04(b) defines serious crime as barratry, any felony involving moral turpitude; any misdemeanor involving theft, embezzlement or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy or solicitation of another to commit any of the foregoing crimes. In re Lock, 54 S.W.3rd 305 (Tex. S.Ct.) held that felony possession of a controlled substance is not a serious crime involving moral turpitude warranting compulsory discipline. Deferred adjudication is considered a conviction. As of 2018 attorneys have an obligation to report convictions and deferred adjudications to the State Bar of Texas. Even though misdemeanor assault with a family violence finding could be a crime of moral turpitude, it will not result in Compulsory Discipline instigated by 15

Organizations trying to address the issue of employing those with criminal histories have come up with the following: National re-entry fact sheet: If an employer is aware of a conviction or incarceration, that information should only bar someone from employment when the conviction is closely related to the job, after considering: • The nature of the job, • The nature and seriousness of the offense, and • The length of time since it occurred. Since an arrest alone does not necessarily mean that someone has committed a crime, an employer should not assume that someone who has been arrested, but not convicted, did in fact commit the offense. Instead, the employer should allow the person to explain the circumstances of the arrest. If it appears that he or she engaged in the alleged unlawful conduct, the employer should assess whether the conduct is closely enough related to the job to justify denial of employment. Credit Reports Arrest records are now routinely contained in credit reports. Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (FCRA). Under FCRA, a CRA generally may not report records of arrests that did not result in entry of a judgment of conviction, where the arrests occurred more than seven years ago. However, they may report convictions indefinitely. CRA stands for credit reporting agency. Although an arrest record standing alone may not be used to deny an employment 16

Collateral Consequences Family Violence Cases

the bar. However, felony assault or strangulation, with the family violence finding, could be considered a crime of moral turpitude in which the State Bar could move to disbar the attorney. Hardeman v. State, 868 S.W.2d 404 (Tex. App. Austin 1993). Compulsory discipline goes to the Board of Disciplinary Appeals and the rules provide that they shall disbar the attorney or under Rule 8.06 the board can suspend the attorney’s license to practice law. Rule 8.06 provides that if the attorney receives probation or deferred adjudication, the attorney’s license to practice law shall be suspended during the term of probation. This is contained in the Texas Rules of Disciplinary Procedure.

Collateral Consequences Family Violence Cases

opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes. The Fair Credit Reporting Acts also provides: When taking an adverse action (for example, not hiring an applicant or firing an employee) based on background information obtained through a company in the business of compiling background information, the FCRA has additional requirements: Before you take an adverse employment action, you must give the applicant or employee: a notice that includes a copy of the consumer report you relied on to make your decision. Equal Employment Opportunity Act, which applies to businesses with 15 or more employees, prohibits discrimination in employment because of: Race Color National Origin Religion Sex (including gender identity and sexual orientation) Age (Over 40) Disability Because refusing to hire someone due to an arrest record may adversely affect the minority population, employers are cautioned to not just use records of arrest that did not result in a conviction. Housing: Potential Denial of Housing: The Texas Department of Housing and Community Affairs is proposing that people with certain criminal convictions be temporarily or permanently blocked from living in tax-supported “supportive housing” developments. In 2016, HUD issued guidance on applying Fair Housing Act Standards to the use of criminal records screening in housing-related transactions. In 2022, HUD issued a memo, which further clarifies its 2016 guidance on this topic and even recommends that private housing providers avoid using criminal history to screen tenants for housing. This guidance prohibits: Denying housing based on arrest records. 17

Denial Based on Criminal History Individuals can legally be denied housing if their recent criminal record makes them dangerous and a risk to other tenants or neighbors. The denial must be based on reliable evidence and not be hypothetical or speculative. Denials also: Must provide evidence proving that the housing provider has substantial, legitimate, nondiscriminatory interest supporting the denial. Must show that the housing policy accurately distinguishes between criminal conduct that indicates a demonstrable risk to resident safety/property and criminal conduct that does not. HUD regulations governing some federally assisted housing require two permanent bans: applicants with a lifetime requirement to register as a sex offender, and applicants convicted of manufacturing methamphetamine on federally-assisted property. Many standard leases in Texas provide that upon arrest for Family/Domestic violence the renter may be evicted from the premises and the property manager may terminate the lease. This was so common that the Legislature decided that they had to step in and provide some safety net for the victims of domestic violence so that they could stay in their apartment. Security clearance: Federal Security clearance: The existence of a criminal record may result in the denial of a federal security clearance, which is a prerequisite for a variety of positions with the federal government and federal government contractors. Expedited airport screening clearance may also revoked based upon an arrest. DNA database Texas Government Code 18

Collateral Consequences Family Violence Cases

Blanket bans on anyone with a criminal record. Conducting background checks inconsistently, performing them on some and not others based on stereotypes or fear. Further, a landlord must: Consider individuals on a case-by-case basis and evaluate the nature and severity of the crime and consider the length of time that has passed since that crime was committed. Make a determination based on facts and evidence, and not a perceived threat.

Collateral Consequences Family Violence Cases

DPS has a database of DNA records collected from those who are arrested, those who are convicted and those who have been ordered to provide a DNA sample. The DNA profile is stored on CODIS and CODIS is part of the National DNA index. 411.1471. DNA RECORDS OF PERSONS ARRESTED FOR OR CONVICTED OF CERTAIN OFFENSES. This section applies to a defendant who is: (1) arrested for any offense punishable as a felony; or effective 9/1/2023 (2) convicted of an offense: (A) under Title 5, Penal Code, (*offense against the person Chapter 22 assault) that is punishable as a Class A misdemeanor, except for an offense punishable as a Class A misdemeanor under Section 22.05, (deadly conduct) Penal Code; or (B) punishable as a Class A or B misdemeanor, as applicable, under Section 21.08, 25.04, or 43.24, Penal Code. The Code of Criminal Procedure provides for DNA collection as a condition of bail: 17.47 DNA CONDITIONS REQUIRING SUBMISSION OF SPECIMEN. (a) A magistrate may require as a condition of release on bail or bond of a defendant that the defendant provide to a local law enforcement agency one or more specimens for the purpose of creating a DNA record under Subchapter G, Chapter 411, Government Code. (b) A magistrate shall require as a condition of release on bail or bond of a defendant described by Section 411.1471(a), Government Code, that the defendant provide to a local law enforcement agency one or more specimens for the purpose of creating a DNA record under Subchapter G, Chapter 411, Government Code. Removal from the DNA database: Removal of record if acquitted: (e) As soon as practicable after the acquittal of a defendant described by Subsection (a)(1) or dismissal of the case against the defendant, or after a defendant has been granted relief in accordance with a writ of habeas corpus that is based on a court finding or determination that the defendant is actually innocent of a crime for which the defendant was sentenced, the court shall provide notice of the acquittal, dismissal, or grant of relief to the law enforcement agency that took the specimen and the department and shall request that the director expunge the defendant's DNA record from the DNA database under Section 411.151. On receipt of the notice, the law enforcement agency shall immediately destroy the record of the collection of the specimen, and the department shall destroy the 19

Laboratories participating in the National DNA Index are required to expunge qualifying profiles from the National Index under the following circumstances: For convicted offenders, if the participating laboratory receives a certified copy of a final court order documenting the conviction has been overturned; and For arrestees, if the participating laboratory receives a certified copy of a final court order documenting the charge has been dismissed, resulted in an acquittal, or no charges have been brought within the applicable time period. Texas Government Code Section 411.151 : The director shall expunge a DNA record of an individual from a DNA database if [the person]: (1) the director receives: (A) an order of expunction under Article 55.02, Code of Criminal Procedure [notifies the director in writing that the DNA record has been ordered to be expunged under this section or Chapter 55, Code of Criminal Procedure, and provides the director with a certified copy of the court order that expunges the DNA record]; or (B) a request from a court under Section 411.1471(e); or (2) the person provides the director with a certified copy of a court order issued under Subchapter C–1, Chapter 58, Family Code, that seals the juvenile record of the adjudication that resulted in the DNA record. Attendance at colleges and universities: The Texas Education Code requires each institution of higher learning to have policies on dating violence and disciplinary procedures related to dating violence. Any student attending a college or university may be expelled for having been found to have engaged in dating violence. Volunteering: Many school districts and other places where parents wish to volunteer run background checks before allowing someone to volunteer on their campus. A conviction or community supervision for a family violence case could result in a parent being unable to volunteer at their children’s school. Notifications: 20

Collateral Consequences Family Violence Cases

specimen and the record of its receipt. The court shall promptly notify the defendant and the defendant's attorney after the notices required by this subsection have been provided .

Collateral Consequences Family Violence Cases

Article 42.0183 of the Code of Criminal Procedure requires that the clerk notify the military installation to which the defendant is assigned, if he/she is convicted of an offense that constitutes family violence or placed on deferred adjudication for such offense. Finding of family violence: Certain offenses necessarily indicate family violence (e.g. assault family violence). But many other crimes against persons can involve family violence, such as class “c” assault, sexual assault and unlawful restraint but are not exclusively designated as family violence offenses. If convicted of any offense under Title 5 of the Texas Penal Code, the court can include an AFV in the judgment , which means family violence was involved. The AFV is then noted in the record and can have the same effects as a conviction for a family violence offense. If the judge makes an AFV or the crime involves family violence in any way, the defendant is ineligible to petition for an Order of Nondisclosure for that specific offense or any subsequent offenses, no matter the nature. Please note that a finding under Article 42.013 CCP is not required to render a defendant ineligible for a Nondisclosure under Texas Government Code 411.074, if the offense “involved family violence, as defined by Section 71.004, Family Code”. Conclusion: Family Violence cases have a myriad of consequences both upon arrest and conviction or deferred adjudication. This paper is an attempt to focus on the most troublesome for many of our clients, it is not exhaustive. Perils exist and will continue to exist as long as the Legislature is in session. It raises the real question of whether more cases should be tried to avoid all these horrific results that occur accepting a plea and deferred adjudication, which will never be removed from the person’s record. Sometimes the client is trying to avoid a possible or probable jail sentence or prison sentence and probation sounds like win, but they will not believe so, unless they have been fully advised of negative consequences that will arise from accepting the offer. Documentation is paramount for the criminal law practitioner to be able to show that these consequences were discussed prior to resolving the case. One helpful website is Collateral Consequences Inventory | National Inventory of Collateral Consequences of Criminal Conviction (nationalreentryresourcecenter.org).

Texas Criminal Defense Lawyers Association

June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

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37th Annual Rusty Duncan Advanced Criminal Law Course

The Law on Selecting and Seating a Texas Jury Speaker:

Chris Downey

The Downey Law Firm 2814 Hamilton St Houston, TX 77004 713.651.0400 phone 713.395.1311 fax chris@downeylawfirm.com email http://www.downeylawfirm.com/ website

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

The Law on Selecting and Seating a Texas Jury Christopher Downey Houston, Texas

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2024

This paper is meant to provide a readable summary of the myriad of statutes, rules, and case law governing the composition of the jury array and the selection of jurors in any criminal case and to highlight those cases which contradict common improper practices a trial lawyer in Texas courts will likely encounter. Composing Jury Array/Venire In the event any person originally summoned to be part of the jury array should not appear when called for selection, an order of attachment can be issued at the request of either party, however, no trial “shall be unreasonably delated on account of his absence.” TEX. CODE CRIM. PRO. ART. 35.01. On rare occasions, the array itself may not reflect a cross-section of the community in which the case is being tried. In order to lodge a challenge to the constitution of the array itself, namely, that it does not reflect a ‘cross-section’ of the community, the complaining party must show an ‘identifiable class’ has been excluded from the venire. Dowthitt v. State, 931 S.W.2d 244, 251-52 (Tex. Crim. App. 1996). However, the failure of the array to reflect the community has to be a function of more than mere happenstance. In order for a defense lawyer to establish a prima facie showing that a violation of the requirement that there be a fair cross section of the community has occurred, the movant must show that: 1. The group alleged to be excluded is a ‘distinctive’ group in the community; 2. That the representation of this group in the venire from which juries are selected in that jurisdiction is not fair and reasonable in relation to the number of such persons in that community; 3. That this underrepresentation is due to systemic exclusion of the group in the jury selection process. Pondexter v. State, 942 S.W.2d 577, 580 (Tex. Crim. App. 1996). A challenge to the array, when made by the defense must be in the form of a written pleading that distinctly sets forth the grounds for the challenge. The written pleading must be supported by a sworn affidavit. TEX. CODE CRIM. PRO. ART. 35.07. The Jury Shuffle Both the state and the defense have the authority to demand a jury shuffle. TEX. CODE CRIM. PRO. ART. 35.11. However, only one shuffle is authorized. Compliance with the statute

is had when counsel for either the State or the defendant is allowed the opportunity to view the venire seated in the courtroom in proper sequence and is thereafter allowed an opportunity to exercise his or her option to have the names shuffled. Chappell v. State, 850 S.W.2d 508, 511 (Tex. Crim. App. 1993). A shuffle must be requested before voir dire begins. Voir dire in a noncapital case commences when the State begins its examination of prospective jurors- not when the court begins its instructions. Davis v. State, 782 S.W.2d 211, 214 (Tex. Crim. App. 1989). Merely allowing the panel to read written questionnaires does not equate to starting voir dire. Garza v. State, 7 SW3d. 164, 166 (Tex. Crim. App. 1999). Each member of the venire must possess three qualifications: 1. Be a qualified voter in the county and state. However, a person is not unqualified if that person is merely unregistered; 2. Not be convicted of theft or any felony offense; 3. Not be under indictment or any legal accusation for theft or any felony offense. A juror whose past criminal incident has been sealed pursuant to an order of nondisclosure is permitted to respond that “the matter in question has been sealed.” TEX. CODE CRIM. PRO. ART. 35.12. Challenges for Cause Challenges for cause by either party are statutorily described as falling into ten categories. They are that a particular juror: 1. Is not a qualified voter in the state and county in which the trial is taking place. However, a failure to register to vote is not grounds for disqualification; 2. Has been convicted of a misdemeanor theft or of a felony; 3. Presently under indictment for a misdemeanor theft or a felony; 4. Is insane; 5. Has such a defect of sight, feeling, hearing, mental defect or disease that the juror is rendered unfit for jury service or that the court is not satisfied that the juror is fit for service; 6. Is a witness in the case; 7. Served on the grand jury that returned the indictment; 8. Served on a jury in a former trial of the same case; 9. Has a bias or prejudice in favor of or against the defendant; 10. In his mind, has established such a conclusion as to the guilt or innocence of the defendant such that it would influence the juror in finding a verdict; 11. Cannot read or write. TEX. CODE CRIM. PRO. ART. 35.16. By statute, the State can challenge a juror for cause for three additional reasons:

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Predicate Qualifications for the Jury Venire

1. That in a case in which the State is seeking death, the juror has “conscientious scruples” in regard to the imposition of the death penalty; 2. That the juror is related to the defendant within the “third degree of consanguinity or affinity”; 3. That the juror has a bias or prejudice “against any phase of the law upon which the State is entitled to rely for conviction or punishment.” Id.

Voir Dire

By statute the defense can challenge a juror for cause for two additional reasons: 1. That the juror is related within the “third degree of consanguinity or affinity to the person injured in the offense or to any prosecutor in the case; 4. That he has a bias or prejudice “against the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.” Id. A person is related by consanguinity to a juror if he is the descendant of the juror or if they share a common ancestor. TEX GOV’T CODE Sec. 573.022. A third degree of consanguinity would be that line of relationships existing between a great grandparent and a great grandchild. TEX GOV’T CODE Sec. 573.023. To be related by affinity means that two individuals are married to each other or the spouse of one of the individuals is related by consanguinity to the other individual. A divorce or death of a spouse ends relationships by affinity unless the marriage gave rise to a child. In the event a child exists, the marriage continues as long as the child of that marriage is alive. TEX GOV’T CODE Sec. 573.024. Stated otherwise, an individual’s relatives are within the third degree of affinity if they are the great grandparent, grandparent, parent, child, grandchild or great grandchild of the individual’s spouse along with the spouse of any one of those people. TEX GOV’T CODE Sec. 573.025. Cousins are not relatives who fall within these definitions of consanguinity or affinity. Ex Parte Fierro, 79 S.W.3d 54 (Tex. Crim. App. 2002). Before a juror can be excused for a cause on the basis that he harbors a bias or prejudice, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views. The burden of doing so rests upon the proponent of the challenge. Tracy v. State, 597 S.W.3d 502, 512 (Tex. Crim. App. 2020). The grounds for a challenge for cause are not limited to those listed by statute. The overarching question is whether the prospective juror would be “incapable or unfit to serve on the jury.” Mason v. State, 905 S.W.2d 570, 577-78 (Tex. Crim. App. 1995). A lawyer must be diligent in asking all pertinent questions to reveal potential bias. When a juror later discloses a relationship with a witness, the juror is considered to have withheld information. The focus will then become whether the withheld information is ‘material.’ Defense counsel must show that the defense has been denied an impartial jury in order for error to exist. This will require that the defense establish that the juror harbored a bias or prejudice to such a

degree that the juror should have been excused. A relationship between a juror and a witness is only material if there is a potential for bias or prejudice. See Lopez v. State, 261 S.W.3d 106107(Tex. App. San Antonio, 2008, pet. ref’d.). A venireman who is unable to believe that a police officer would tell a willful falsehood is challengeable for cause because such an answer provides evidence of an attitude toward police officers constituting a bias against the defendant. Hernandez v. State, 563 S.W.2d 947, 950 (Tex. Crim. App. 1978).

It was error to refuse to allow the defense to ask the panel whether they understood that the standard of proof beyond a reasonable doubt constituted a level of confidence that was higher than a preponderance of the evidence or clear and convincing evidence. Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012). It is error to not allow the defense an opportunity to question a juror the State has challenged for cause- upon the defense’s specific request to do so. Simpson v. State, 119 S.W.3d 262, 265 (Tex. Crim. App. 2003). “Commitment’ Questions: What is a “commitment question”? An attorney cannot ask a question of the panel that seeks to bind or commit a prospective juror to a verdict based on a hypothetical set of facts. Commitment questions are those that seek to commit a prospective juror to resolve, or refrain from resolving, an issue a certain way after learning a particular fact. However, not all commitment questions are improper if the law requires a certain commitment from jurors. In such a circumstance the attorneys may ask the jurors whether they can follow the law in that regard. For example, the defense can legitimately ask prospective jurors whether they could follow a law that requires them to disregard illegally obtained evidence, whether they could follow an instruction requiring corroboration of accomplice witness testimony, or whether they could follow a law that precludes them from holding against the defendant his failure to testify. These types of questions test the prospective jurors' ability to follow various legal requirements and are not impermissible commitment questions. Standefer v. State, 59 S.W.3d 177, 181 fn 16 (Tex. Crim. App. 2001). The inquiry to determine an improper commitment question has two parts: 1. Is the question a commitment question; 2. Does the question include facts that lead to a valid challenge for cause?

Voir Dire

A venireman who refuses to render a guilty verdict on the basis of only one eyewitness is not challengeable for cause so long as his refusal is predicated upon a reasonable understanding of what constitutes proof beyond a reasonable doubt. Zinger v. State, 932 S.W.2d 511, 514 (Tex. Crim. App. 1996). As stated in Judge Meyers concurring opinion, No prospective juror may be excluded for cause from jury service just because he is sure that the testimony of a single witness will not convince him beyond reasonable doubt of the defendant's guilt. He is excludable only if he states "I doubt I could be convinced beyond reasonable doubt with only one witness, but even if I was convinced, I still could not convict that person." Id at 515.

If the answers are “yes” and “no” then the question is improper. Id at 179. Examples of improper commitment questions: •

Voir Dire

• • •

Do each of you feel as though you could evaluate a witness and his testimony and decide if he’s being truthful without automatically dismissing his testimony because of some criminal history? Could you find someone guilty on the testimony of one witness? Could you find someone guilty on circumstantial evidence alone? Could you consider probation in a case where the victim is a nun? Wingo v. State, 189 S.W.3d 270 (Tex. Crim. App. 2006).

The Court of Criminal Appeals has held that a juror is not subject to challenge for cause merely because he indicates he would require more evidence than the legal minimum in order to satisfy his definition of what constitutes reasonable doubt. Garrett v. State, 851 S.W.2d 853, 859 (Tex.Crim.App. 1993). Preserving Error in Denying a Challenge For Cause: Preserving error when seeking to appeal a Court’s denial of a challenge for cause requires four steps: 1. defense counsel must lodge a clear and specific objection on the record to the challenge for cause citing the basis for the objection; 2. the defense must use one of its peremptory challenges on the objectionable juror; 3. the defense must exhaust its peremptories and request additional peremptory strike(s) from the court; 4. the defense must cite in the record the harm- namely, the objectionable juror who was seated on the jury whom the defense would have struck if it had been granted the additional peremptory strike(s) from the court. This articulation of harm should point out the characteristics or answers which formed the rationale for drawing the conclusion that the juror was objectionable to the defense. Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996); Sells v. State, 121 S.W.2d 386, 394 Tex. Crim. App. 1998). A mnemonic method to remember these four steps is “OPRAH”: 1. 2. 3. 4.

O P RA H

= = = =

Object ( be clear and specific) Peremptories (must be used on the objectionable juror(s) Request Additional (strikes) Harm (articulate it).

It is considered an abuse of discretion for the Court to refuse to allow the defense to correct a mistake in exercising its peremptory strikes. Truong v. State, 782 S.W.2d 904, 905 (Tex. App. Houston [14th Dist.] 1989, pet ref’d).

Batson Challenges: In 1987, Texas codified the Batson challenge into statute. TEXAS CODE CRIM. PRO. ART. 35.261. Pursuant to the statute, if the defendant is a member of an identifiable racial group and the State exercised its peremptory challenges for the purpose of excluding prospective jurors based on their race and the defendant offers evidence of relevant facts that tend to show the State’s challenges were made based on race, the Court shall grant a defense motion to dismiss the array.

Pursuant to the statute, the effect of a successful challenge is the dismissal of the array and calling a new array in the case, not the seating of the challenged juror. Courts have held, however, that seating the previously challenged juror is permissible. State ex rel Curry v. Bowman, 885 S.W.2d 421 (Tex. Crim. App. 1993). Making a prima facie case will require, at a minimum, establishing that the defendant is a member of a cognizable racial group, that the State moved to remove members of his race, and that the circumstances raise an inference that the State used its peremptory challenges to exclude the juror on the basis of his race. Batson v. Kentucky, 476 U.S. 79, 89 (1986). Some factors which weigh against the legitimacy of race-neutral explanations include: • • • •

The reason given for exercising the peremptory is not related to the facts of the case; There was a lack of questioning to the challenged juror; Disparate treatment- persons with similar characteristics were not struck; Disparate examination- questioning the juror to evoke a response but not questioning others in a similar fashion;

Whitsey v. State, 796 S.W.2d 707, 713-714 (Tex. Crim. App. 1989). Gender, like race, is an impermissible basis for a peremptory challenge. J.E.B. v. Alabama, 511 U.S. 127, 130 (1994). Religious affiliation is not. Casarez v. State, 913 S.W.2d 468 Tex. Crim. App. 1995). Peremptory Challenges: In death penalty cases, the State and defense are each entitled to 15 peremptory challenges. When two defendants are being tried together in such a case, each side shall be assigned 8 challenges per defendant. TEX. CODE CRIM. PRO. ART. 35.15(a). In a felony case, the State and the defense are entitled to 10 peremptory challenges. In the event co-defendants are being tried together, each defendant shall be entitled to 6 challenges and the State is entitled to an equal amount. TEX. CODE CRIM. PRO. ART. 35.15(b).

Voir Dire

In such a circumstance, the defense must make a prima facie case that an impermissible strike occurred, and the burden then shifts to the State to give a racially neutral explanation for its use of the peremptory challenge in question. The burden of persuasion, however, always remains with the defense to establish purposeful discrimination.

In a misdemeanor case, each side is entitled to 3 challenges. In the event co-defendants are being tried together, each defendant is entitled to 3 challenges and the State is entitled to an equal amount. TEX. CODE CRIM. PRO. ART. 35.15(c) In the event the case on trial is a misdemeanor being tried in a district court, each side receives 5 peremptory challenges. Id.

Voir Dire

Each side is entitled to one additional peremptory challenge if the Court is seating one or two alternate jurors and two peremptory challenges per side if the Court will seat three to four alternative jurors. TEX. CODE CRIM. PRO. ART. 35.15(d) Peremptory challenges granted to either side relating to the selection of alternate jurors may only be used upon alternate jurors. Similarly, peremptory challenges assigned to strike regular jurors may only be used upon those jurors falling in that category. Id. Cooks v. State, 844 S.W.2d 697, 721 (Tex. Crim. App. 1992). Choosing and Seating Alternates: Not more than four alternates can be placed on a felony jury. TEX. CODE CRIM. PRO. ART. 33.011. Not more than two alternates can be seated on a misdemeanor jury. When replacing jurors, alternates are to be placed in the order in which they were originally called. Id. Because alternate jurors can be placed on the panel at any time, the Code dictates that alternates shall be discharged after the jury has rendered its verdict over the matters with which the jury has been tasked, including punishment, if applicable. Id. Juror Information Sheets and Jury Lists: A Court is not authorized to order the return of juror information sheets to the clerk. Only the jury list. Saur v. State, 918 S.W.2d 64 66-67 (Tex. App.-San Antonio 1996, no pet.).

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Speaker:

Author:

Laurie Key

Search & Seizure

Search & Seizure – Anatomy of Suppression

Law Office of Laurie Key 1213 Ave. K Lubbock, TX 79401 806.771.3933 phone 806.771.3935 fax lauriekeylaw@gmail.com email http://www.lauriekeylaw.com/ website

Charles Blevins

The Law Office of Charles Blevins 1005 Broadway Lubbock, TX 79401 806.370.2277 phone 806.370.2149 fax charles@attorneyinlubbock.com email

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

Search & Seizure

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX Family Violence – Categories & Types Speaker:

Monique Sparks

The Sparks Law Firm 1923 Blodgett St Houston, TX 77004 713.766.1039 phone 713.520.7013 fax monique@thesparkslawfirm.com email http://www.thesparkslawfirm.com/ website

AFV – Dealing with the Procedures, Rules & Protective Orders Speaker: Nicole DeBorde Hochglaube Hochglaube & DeBorde, PC 3515 Fannin St. Houston, TX 77004 713.526.6300 phone 713.808.9444 fax Nicole@HoustonCriminalDefense.com email http://www.debordelawfirm.com/ website

Speaker:

Family Violence | AFV

- AND -

Clay B. Steadman

Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, TX 78028 830.257.5005 phone 830.896.1563 fax Csteadman612@hotmail.com email

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

37th Annual

Family Violence | AFV

Rusty Duncan Advanced Criminal Law Course

TCDLA STRONG Assault Family Violence Categories & Types Dealing with the Procedures, Rules & Protective Orders 1|Page

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Authors & Presenters Monique Sparks The Sparks Law Firm 1923 Blodgett Street Houston, Texas 77004 Ph.:

(713) 766-1039

Email: monique@thesparkslawfirm.com Nicole DeBorde Hochglaube Hochglaube and DeBorde P.C. 3515 Fannin Street Houston, Texas 77004 Ph.:

(713) 526-6300

Fax:

(713) 808-9444

Email: nicole@houstoncriminaldefense.com

Law Offices of Jesko & Steadman 612 Earl Garrett Kerrville, Texas 78028 Ph.:

(830) 257-5005

Fax:

(830) 896-1563

Email: csteadman612@hotmail.com

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

Clay B. Steadman

I. Basics of a Family Violence A family violence allegation has its origin in the Texas Penal Code based upon a charge of assault as committed against a member of their household as defined under the Texas Family Code. The applicable provisions of the Texas Penal Code and Family Code are as follows: Applicable provisions of Texas Family Code. Under § 71.003 Family is defined as: Family includes individuals related by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together. Under § 71.004 Family Violence is defined as: (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; (2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or

Family Violence | AFV

(3) dating violence, as that term is defined by Section 71.0021 Under § 71.006 a Member of a Household is defined as: Member of a Household includes a person who previously lived in a household. Applicable provisions of the Texas Penal Code. Assault - Texas Penal § 22.01 (a) A person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against: (1) a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant; (2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if: (A) it is shown on the trial of the offense that the defendant has been previously convicted of an offense under this chapter, Chapter 19, or Section 20.03, 20.04, 21.11, or 25.11 against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code; or (B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth; Continuous Violence Against the Family – Texas Penal § 25.11 (a) A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 22.01(a)(1) against another person or persons whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code.

(c) A defendant may not be convicted in the same criminal action of another offense the victim of which is an alleged victim of the offense under Subsection (a) and an element of which is any conduct that is alleged as an element of the offense under Subsection (a) unless the other offense: (1) is charged in the alternative; (2) occurred outside the period in which the offense alleged under Subsection (a) was committed; or (3) is considered by the trier of fact to be a lesser included offense of the offense alleged under Subsection (a). (d) A defendant may not be charged with more than one count under Subsection (a) if all of the specific conduct that is alleged to have been engaged in is alleged to have been committed against a single victim or members of the same household, as defined by Section 71.005, Family Code. (e) An offense under this section is a felony of the third degree.

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

(b) If the jury is the trier of fact, members of the jury are not required to agree unanimously on the specific conduct in which the defendant engaged that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a), the exact date when that conduct occurred, or the county in which each instance of the conduct occurred. The jury must agree unanimously that the defendant, during a period that is 12 months or less in duration, two or more times engaged in conduct that constituted an offense under Section 22.01(a)(1) against the person or persons described by Subsection (a).

Statute of Limitations: Last year legislation was passed that affected any cases involving family violence. Specifically, any misdemeanor assault family violence case now has a three (3) year statute of limitations period, rather than the previous two (2) year statute of limitations period. Further, any felony type case involving assault family violence, whether it be assault family violence impeding of breath or continuous violence against the family now have a five (5) year statute of limitations period, rather than the previous three (3) year statute of limitation period.

II. The Circumstances

Family Violence | AFV

The most common situation we find in defending these types of cases are the assault allegation that has been made in the context of: (1)

A Divorce;

(2)

Any Type of Ex-Lover;

(3)

Relationship Involving a Child;

(4)

A Stressed Relationship;

(5)

The Family That cannot get Along;

(6)

Meddling Parents;

(7)

The Jilted Boyfriend/Girlfriend; and

(8)

The obsessed Boyfriend/Girlfriend.

We often find our clients in these situations which when we objectively examine the situation were likely avoidable. In these situations, our client will tell us; I did not do that, I pushed her, but I did not push her down, she/he hit me first, and was defending myself to name a few. It is often the case that the relationship with the complaining witness has not been stable for some time, and that the parties (both of them) have chosen to stay in the relationship. As such, the client has placed themselves in the crosshairs and now needs you to remedy this situation. Our client can control their actions and behavior in a divorce, the ending of a relationship, establishing how to parent a child in two different households, dealing with a meddling parent or family member, and handling the end of an intimate relationship. Deconstructing the nature of the relationship can develop our defensive strategy. Afterall, this is one of the few criminal offenses which specifically depends upon the establishment of some type of family relationship. Without the existence of this defined relationship this case is simply another allegation of a fight without the baggage of a hot button issue. Angry people will say and do almost anything to be proven right. That person does not care who goes to jail, so long as the public understands they are right, and they are the victim. Often when complaining witnesses come forward with a complaint of assault, relationship secrets, which were otherwise consensual, now become the building blocks of the criminal 5|Page

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

complaint. An example of this can be in a complaint of assault family violence involving asphyxiation (choking), where the parties have this consensual rough type of sexual relationship, and it is consensual until it is not. The complaining witness is angry or upset at their partner, and what was a consensual act, is now alleged criminal behavior. It is a scary situation for the accused because that type of change in behavior can be as simple as flipping a light switch. That is why it is critical for us to understand the nature of the parties’ relationship, so we know how we got from Point A (honeymoon period) to Point B (devastation and destruction).

III. Collateral Offenses That May Arise Below are just some of the collateral types of criminal offenses, which although are not assaultive type offenses or involve a finding of “family violence”, are nevertheless offenses that we often see as emanating and extending beyond the initial assaultive complaint. This is because of the relationships involved, and specifically the relationship which exists between the complaining witness and the alleged perpetrator. Unlawful Installation of Tracking Device – Texas Penal Code § 16.06 (a) In this section: (1) “Electronic or mechanical tracking device” means a device capable of emitting an electronic frequency or other signal that may be used by a person to identify, monitor, or record the location of another person or object. (2) “Motor vehicle” has the meaning assigned by Section 501.002, Transportation Code.

(c) An offense under this section is a Class A misdemeanor. (d) It is an affirmative defense to prosecution under this section that the person: (1) obtained the effective consent of the owner or lessee of the motor vehicle before the electronic or mechanical tracking device was installed; (2) assisted another whom the person reasonably believed to be a peace officer authorized to install the device in the course of a criminal investigation or pursuant to an order of a court to gather information for a law enforcement agency; or (3) was a private investigator licensed under Chapter 1702, Occupations Code, who installed the device: (A) with written consent: (i) to install the device given by the owner or lessee of the motor vehicle; and (ii) to enter private residential property, if that entry was necessary to install the device, given by the owner or lessee of the property; or (B) pursuant to an order of or other authorization from a court to gather information. (e) This section does not apply to a peace officer who installed the device in the course of a criminal investigation or pursuant to an order of a court to gather information for a law enforcement agency.

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

(b) A person commits an offense if the person knowingly installs an electronic or mechanical tracking device on a motor vehicle owned or leased by another person.

Indecent Assault - Texas Penal § 22.012 (a) A person commits an offense if, without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person, the person: (1) touches the anus, breast, or any part of the genitals of another person; (2) touches another person with the anus, breast, or any part of the genitals of any person; (3) exposes or attempts to expose another person’s genitals, pubic area, anus, buttocks, or female areola; or (4) causes another person to contact the blood, seminal fluid, vaginal fluid, saliva, urine, or feces of any person. (b) An offense under this section is a Class A misdemeanor. (c) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both. Note based on how this statute is worded that a person can be prosecuted for assault family violence and this statute simultaneously, as per § 22.012 (4)(c). If prosecuted solely under this statute there is not a specific finding of family violence, and as such, no collateral consequences which would necessarily follow a conviction with a finding of family violence. Terroristic Threat – Texas Penal Code § 22.07 (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:

Family Violence | AFV

(1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies; (2) place any person in fear of imminent serious bodily injury; (3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place; (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service; (5) place the public or a substantial group of the public in fear of serious bodily injury; or (6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state. (b) An offense under Subsection (a)(1) is a Class B misdemeanor. (c) An offense under Subsection (a)(2) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense: (1) is committed against a member of the person’s family or household or otherwise constitutes family violence; or (2) is committed against a public servant. (c-1)Notwithstanding Subsection (c)(2), an offense under Subsection (a)(2) is a state jail felony if the offense is committed against a person the actor knows is a peace officer or judge. 7|Page

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

(d) An offense under Subsection (a)(3) is a Class A misdemeanor, unless the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance, in which event the offense is a state jail felony. (e) An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third degree. (f) In this section: (1) “Family” has the meaning assigned by Section 71.003, Family Code. (2) “Family violence” has the meaning assigned by Section 71.004, Family Code. (3) “Household” has the meaning assigned by Section 71.005, Family Code. (g) For purposes of Subsection (d), the amount of pecuniary loss is the amount of economic loss suffered by the owner of the building, room, place, or conveyance as a result of the prevention or interruption of the occupation or use of the building, room, place, or conveyance. Violation of Certain Court Orders or Conditions of Bond in a Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Indecent Assault, Stalking, or Trafficking Case – Texas Penal Code § 25.07 (a) A person commits an offense if, in violation of a condition of bond set in a family violence, sexual assault or abuse, indecent assault, stalking, or trafficking case and related to the safety of a victim or the safety of the community, an order issued under Subchapter A, Chapter 7B, Code of Criminal Procedure, an order issued under Article 17.292, Code of Criminal Procedure, an order issued under Section 6.504, Family Code, Chapter 83, Family Code, if the temporary ex parte order has been served on the person, Chapter 85, Family Code, or Subchapter F, Chapter 261, Family Code, or an order issued by another jurisdiction as provided by Chapter 88, Family Code, the person knowingly or intentionally:

(2) communicates: (A) directly with a protected individual or a member of the family or household in a threatening or harassing manner; (B) a threat through any person to a protected individual or a member of the family or household; or (C) in any manner with the protected individual or a member of the family or household except through the person’s attorney or a person appointed by the court, if the violation is of an order described by this subsection and the order prohibits any communication with a protected individual or a member of the family or household; (3) goes to or near any of the following places as specifically described in the order or condition of bond: (A) the residence or place of employment or business of a protected individual or a member of the family or household; or (B) any child care facility, residence, or school where a child protected by the order or condition of bond normally resides or attends; (4) possesses a firearm; (5) harms, threatens, or interferes with the care, custody, or control of a pet, companion animal, or assistance animal that is possessed by a person protected by the order or condition of bond; or 8|Page

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

(1) commits family violence or an act in furtherance of an offense under Section 20A.02, 22.011, 22.012, 22.021, or 42.072;

(6) removes, attempts to remove, or otherwise tampers with the normal functioning of a global positioning monitoring system. (a-1)For purposes of Subsection (a)(5), possession of a pet, companion animal, or assistance animal by a person means:(1) actual care, custody, control, or management of a pet, companion animal, or assistance animal by the person; or (2) constructive possession of a pet, companion animal, or assistance animal owned by the person or for which the person has been the primary caregiver. (b) For the purposes of this section: (1) “Family violence,” “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code. (2) “Firearm” has the meaning assigned by Chapter 46. (2-a) “Global positioning monitoring system” has the meaning assigned by Article 17.49, Code of Criminal Procedure. (3) “Assistance animal” has the meaning assigned by Section 121.002, Human Resources Code. (4) “Sexual abuse” means any act as described by Section 21.02 or 21.11. (5) “Sexual assault” means any act as described by Section 22.011 or 22.021. (6) “Stalking” means any conduct that constitutes an offense under Section 42.072. (7) “Trafficking” means any conduct that constitutes an offense under Section 20A.02. (8) “Indecent assault” means any conduct that constitutes an offense under Section 22.012. (c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections. (d) Reconciliatory actions or agreements made by persons affected by an order do not affect the validity of the order or the duty of a peace officer to enforce this section.

Family Violence | AFV

(e) A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may not arrest a person protected by that order for a violation of that order. (f) It is not a defense to prosecution under this section that certain information has been excluded, as provided by Section 85.007, Family Code, or Article 17.292, Code of Criminal Procedure, from an order to which this section applies. (g) As amended by Acts 2021, 87th Leg., ch. 787 (HB 39) An offense under this section is a Class A misdemeanor, except the offense is: (1) subject to Subdivision (2), a state jail felony if it is shown at the trial of the offense that the defendant violated an order issued under Subchapter A, Chapter 7B, Code of Criminal Procedure, following the defendant’s conviction of or placement on deferred adjudication community supervision for an offense, if the order was issued with respect to a victim of that offense; or (2) a felony of the third degree if it is shown on the trial of the offense that the defendant: (A) has previously been convicted two or more times of an offense under this section or two or more times of an offense under Section 25.072, or has previously been convicted of an offense under this section and an offense under Section 25.072; or (B) has violated the order or condition of bond by committing an assault or the offense of stalking. (g) As amended by Acts 2021, 87th Leg., ch. 915 (HB 3607) An offense under this section is a Class A misdemeanor, except the offense is: (1) subject to Subdivision (2), a state jail felony if it is shown at the trial of the offense that the defendant violated an order issued as a result of an application filed under Article 7B.001(a-1), Code of Criminal Procedure; or (2) a felony of the third degree if it is shown on the trial of the offense that the defendant:

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

(A) has previously been convicted two or more times of an offense under this section or two or more times of an offense under Section 25.072, or has previously been convicted of an offense under this section and an offense under Section 25.072; or (B) has violated the order or condition of bond by committing an assault or the offense of stalking. (h) For purposes of Subsection (g), a conviction under the laws of another state for an offense containing elements that are substantially similar to the elements of an offense under this section or Section 25.072 is considered to be a conviction under this section or Section 25.072, as applicable. Violation of Protective Order Preventing Offense Caused by Bias or Prejudice – Texas Penal Code § 25.071 (a) A person commits an offense if, in violation of an order issued under Subchapter C, Chapter 7B, Code of Criminal Procedure, the person knowingly or intentionally: (1) commits an offense under Title 5 or Section 28.02, 28.03, or 28.08 and commits the offense because of bias or prejudice as described by Article 42.014, Code of Criminal Procedure; (2) communicates: (A) directly with a protected individual in a threatening or harassing manner; (B) a threat through any person to a protected individual; or (C) in any manner with the protected individual, if the order prohibits any communication with a protected individual; or (3) goes to or near the residence or place of employment or business of a protected individual. (b) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.

(d) An offense under this section is a Class A misdemeanor unless it is shown on the trial of the offense that the defendant has previously been convicted under this section two or more times or has violated the protective order by committing an assault, in which event the offense is a third degree felony. Interference with Emergency Request for Assistance - Texas Penal Code § 42.062 (Commonly Referred to As Interference with a 911 Call) (a) An individual commits an offense if the individual knowingly prevents or interferes with another individual’s ability to place an emergency call or to request assistance, including a request for assistance using an electronic communications device, in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals. (b) An individual commits an offense if the individual recklessly renders unusable an electronic communications device, including a telephone, that would otherwise be used by another individual to place an emergency call or to request assistance in an emergency from a law 10 | P a g e

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(c) A peace officer investigating conduct that may constitute an offense under this section for a violation of an order may not arrest a person protected by that order for a violation of that order.

enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals. (c) An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if the actor has previously been convicted under this section. (d) In this section, “emergency” means a condition or circumstance in which any individual is or is reasonably believed by the individual making a call or requesting assistance to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the call or requesting assistance to be in imminent danger of damage or destruction. Harassment - Texas Penal § 42.07 (a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person: (1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene; (2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property;

Family Violence | AFV

(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury; (4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; (5) makes a telephone call and intentionally fails to hang up or disengage the connection; (6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or (8) publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern. (b) In this section: (1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes: (A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of 11 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and (B) a communication made to a pager. (2) “Family” and “household” have the meaning assigned by Chapter 71, Family Code. (3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function. (c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if: (1) the actor has previously been convicted under this section; or (2) the offense was committed under Subsection (a)(7) or (8) and: (A) the offense was committed against a child under 18 years of age with the intent that the child: (i) commit suicide; or (ii) engage in conduct causing serious bodily injury to the child; or (B) the actor has previously violated a temporary restraining order or injunction issued under Chapter 129A, Civil Practice and Remedies Code. Stalking – Texas Penal Code § 42.072 (a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that:

(2) causes the other person, a member of the other person’s family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person’s property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and (3) would cause a reasonable person to: (A) fear bodily injury or death for himself or herself; (B) fear bodily injury or death for a member of the person’s family or household or for an individual with whom the person has a dating relationship; (C) fear that an offense will be committed against the person’s property; or (D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. (b) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted of an offense under this section or of an offense under any of the following laws that contains elements that are substantially similar to the elements of an offense under this section: 12 | P a g e

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(1) constitutes an offense under Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person’s family or household or for an individual with whom the other person has a dating relationship; or (C) that an offense will be committed against the other person’s property;

(1) the laws of another state; (2) the laws of a federally recognized Indian tribe; (3) the laws of a territory of the United States; or (4) federal law. (c) For purposes of this section, a trier of fact may find that different types of conduct described by Subsection (a), if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct. (d) In this section: (1) “Dating relationship,” “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code. (2) “Property” includes a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code.

Family Violence | AFV

How and Why? These types of collateral criminal act(s) will usually come up during a divorce, custody dispute, or the end of a bad relationship when your client does not believe the court system is an adequate means to address his concerns. The client attempts to speak to the complaining witness because this is all a big misunderstanding, or your client decides to take matters into his or her own hands and try and catch the offending party red-handed. This of course results in conduct that may be labeled as harassment or stalking by the State. Worse yet, the client violates a protective order or bond condition in an attempt to explain themselves to their ex. It is often our client’s own obsessive conduct which assists the State in making their case. Many times, the accused cannot help themselves because they believe that if they can just show the State the complaining witness is a liar and cheat, all will be forgiven. This is not how this process will unfold, it is best not to communicate with the complaining witness under any circumstances. It is not advisable for the client to start their own private investigation of the pending matter which may result in them violating a protective order or bond condition. These types of cases, if they have been charged as subsequent conduct against the client, can be avoided if your client just leaves it alone and allows the process to play out in court. As an example, bad divorce and child custody situation, your client’s own super-sleuthing skill set leads them to purchase a GPS tracking device from Amazon or any other retailer that carries it. The client, as noble as they may be, is under the impression that if Amazon or Best Buy sells this type of device it must be legal. This is a hard conversation to have with your client, and consent is the only likely viable defense to such a charge. Mistake of Law will not be a defense to this type of accusation. When this occurs, options for positive resolution on the initial case become more narrow. Where a family lawyer is also involved, it is helpful to communicate with that lawyer about the expectations of the criminal court and where problems could arise. While these types of offenses are not the focus of this paper, we need to be aware of them and how intertwined they can become in a family violence situation. Again, it is the relationship and family dynamics which play a pivotal role in when an accusation of Assault Family Violence is made, and what the specific circumstances of that accusation are known to be. The accusation of Assault Family Violence is bad enough, but the truth of the allegation itself can often take months or years to resolve, and as we know our clients are not always patient. Sometimes we have to counsel and protect our clients from themselves, especially in a situation where the 13 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

emotional context of an ex-spouse and children are contributing factors to the emotional angst of the situation.

IV. Defenses There are basically three general ways in which to defend a criminal case. 1.

I did not do it;

I did it, but I had a reason; or

I did it and I am sorry (punishment case).

Within each type of criminal case which we defend there are multiple manners in which to develop your given defensive strategy. For the purposes of defending a Family Violence Assault case, we will focus on the defense of “I didn’t do it officer”. When developing this defense, we need to focus on the available components of the offense from which we can defend our client. Some possible avenues of attack to consider for the Assault Family Violence case are set out below. 1.

They Arrested the Wrong Person

I was not there (alibi defense), and I could not have assaulted her/him. They got the wrong guy, they should talk to her current boyfriend. This defense can be somewhat tricky as we generally have to establish a motive as to why the complaining witness would lie and make this type of allegation against the client. 2.

False Accusation

Consent

While a somewhat rare defense, there are circumstances where the act(s), which may be considered assaultive, are invited. This is a situation in a relationship where the parties are participating in consensual acts, when viewed independently of the relationship, would be considered assaultive in nature. Such as, a couple that enjoys rough sex, or other sexual stimulus such as erotic asphyxiation (also known as asphyxiophilia, hypoxyphilia or breath control play). This is a situation where the couple purposely engage in one of them intentionally restricting the air flow and flow of oxygen to the brain of their partner, for the purposes of sexual arousal. Under these types of circumstances, the party complaining after the event is now alleging that they did not agree to that act or conduct, and it was not consensual. Can be difficult to defend 14 | P a g e

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This defense is based upon the motivation of the complaining witness to lie. Bias, prejudice, jealousy, spite, vindictiveness, or revenge to name a few. This type of defense is akin to what we discussed above, because if they got the wrong guy there has to be a motivation to lie on the part of the complaining witness. This type of defense will often be the focus in an Assault Family Violence Case, which has manifested itself out of a divorce or child custody dispute. A spouse or ex-spouse is capable of terrible lies and false accusations to make a point, and certainly to make sure the client never gets to see their children.

because you will likely have some type of visible injury if they have made such a complaint to law enforcement. Specifically, while Texas Penal Code § 22.06 is available for use under subsection (a), it is also applicable to the defense of self-defense, which will be discussed in detail below. Also, if you are investigating and developing a defensive strategy which involves a claim of consent as a defense, you must remember that you need to put on sufficient evidence in some manner, such that you can request a jury instruction on consent. If the jury does not hear or is not presented any evidence which would support an instruction on consent, then the court will not allow your requested jury instruction on consent. This can be accomplished based upon the effective cross-examination of the complaining witness, or through calling witnesses in your case-in-chief, after the State has rested. It can be raised through an audio or video that is entered into evidence which refers to the circumstances of the event and offers an explanation such as “they like to be choked”. However, the requested instruction must be based upon evidence which has been admitted for the jury’s consideration, and not argument of counsel. It certainly can be raised by calling your client to testify, but again this type of decision is going to be based upon your desired trial strategy. Consent as a Defense to Assaultive Conduct – Texas Penal Code § 22.06

Family Violence | AFV

Self-Defense

Self-defense is the claim that your client, based on the circumstances involved, reasonably perceived an imminent threat, and responded in a proportional manner, and was not the initial aggressor. This type of defense is a defense that can excuse criminal responsibility even if the prosecutor proves the elements of the crimes charged. However, self-defense is not an affirmative defense because the burden of proof does not shift and remains the prosecutor’s responsibility. However, once the issue of self defense is raised by the defense, the prosecution does have the burden to disprove it. If you are investigating and developing a defensive strategy which involves a claim of self-defense, you must remember that you need to put on sufficient evidence in some manner, such that you can request a jury instruction on self-defense. Again, as 15 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

in the consent defense, this is not a burden shifting argument, but if the jury is not presented with any evidence which would support an instruction on self-defense, the court will not allow your requested instruction on self-defense. Again, much like a consent defense, this can be accomplished based upon the effective cross-examination of the complaining witness, or through calling witnesses in your case-in-chief, after the State has rested. It can be raised through an audio or video that is entered into evidence which refers to the circumstances of the event and offers an explanation such as “they came at me with a knife and hit me first”. However, the requested instruction must be based upon evidence which has been admitted for the jury’s consideration, and not argument of counsel. It certainly can be raised by calling your client to testify, but again this type of decision is going to be based upon your desired trial strategy and may be risky depending upon your client’s criminal history. Specifically, in order to raise self-defense as an issue for the jury to consider, there must be some evidence on aggression on the part of the complaining witness, or under very unfortunate circumstances the deceased individual. If you find yourself in a situation defending a family violence type assault which resulted in your client using deadly force, you need to be aware of the term “reasonably believes” as provided for in Texas Penal Code § 9.32 as it encompasses a traditional holding that a defendant is justified in defending against danger as he reasonably perceives it. See Hamel v. State, 916 S.W.2d 491 (Tex. Crim. App. 1996). This concept of reasonableness is couched in and interpreted from the defendant’s perspective at the time they acted. See Generally, Contreras v. State, 73 S.W.3d 314 (Tex.App.- Amarillo 2001, pet. ref’d). The key component in utilizing self-defense at trial is the reasonableness of the accused action(s) under the circumstances. This is because as we argue that it was reasonable that our client used force to defend themselves against the complaining witness, we must explain the circumstances which dictated the need for the use force or deadly force, and that it was reasonable in that instance. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; 16 | P a g e

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Self-Defense - Texas Penal Code § 9.31

(2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (b) The use of force against another is not justified: (1) in response to verbal provocation alone; (2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c); (3) if the actor consented to the exact force used or attempted by the other; (4) if the actor provoked the other’s use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor; or (5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was: (A) carrying a weapon in violation of Section 46.02; or (B) possessing or transporting a weapon in violation of Section 46.05.

Family Violence | AFV

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

There is a Lack of Evidence

V. Voir Dire Telling your client’s story begins in voir dire. While you cannot reference specific case facts in voir dire, you can question the panel on the beliefs and opinion regarding general facts concerning the accusation of Assault Family Violence. The issues we are faced with during voir dire are exposing and getting the jury panel members to discuss the multiple elephants in the room. We focus on areas during voir dire such as: 1.

Credibility of Witnesses

Law Enforcement (Capable of Making Mistakes/Taking Shortcuts)

Any Victims of Assault on the Panel

Personal Issues of Panel Members (Issues = They cannot be Fair)

Personal Feelings About the Charge

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This is often a defense which is used in combination with the defense of false accusation, wrong person, and even consent. Even in instances of a self defense strategy, this method can be employed because the prosecution may lack the prove to disprove the self-defense This is generally speaking our strongest line of defense, because simply put you argue given the circumstances and facts available the State does not have enough credible evidence to convict your client beyond a reasonable doubt. In these types of cases, often as in sexual assault cases (children or adults), the State places a huge amount of pressure on the jury to find a way to convict, because thye claim people just do not lie about things of this nature. That is simply an ideological and naïve view of our society. We are generally a selfish group of individuals that are capable of saying or doing anything to prove the point we believe needs to be made. It is not about seeking the truth with a complaining witness that has decided that the ends justify the means. Do not expect the State to exercise restraint if they believe the complaining witness. We can fashion our argument to the jury, such that they understand the pressure they feel is not being applied by the defense, and their duty is to follow the law and render a verdict based on evidence, not emotion. We start this process in voir dire and emphasize the State’s burden of proof at each phase of the trial. Lack of proof is a viable defense in a swearing match case, even if injuries are present, that is why helping the jury understand the relationship between the parties is critical in demonstrating the lack of proof, and as such, the State cannot meet its burden. I know in these types of emotional cases the client wants to be vindicated. I do not know about you, but I am in the vindication business, I am seeking a “not guilty” and sending my client back home to his family. We should reserve the platitudes in the art of criminal defense for the media and talking heads, our job is to do everything we can to make sure the client goes out the same door of the courtroom he came in.

Know the Complaining Witness (Happens in Small Areas)

Use of Counselors or Therapist [Do they trust them = Can they be fair]

The Bad Divorce or Break-up [Panel Members Experiences]

Sample Questions: 1.

Anyone ever been a victim of domestic abuse/violence? -Are you comfortable talking about it? -What happened? -Resolved to your satisfaction? -In your mind how should it have been resolved? -Reflecting on that, how do you feel about that situation now? -Given those feelings, can you be fair, are you biased against the Defendant? [This last question should be done up at the bench and potentially used for a challenge for cause]

[Can repeat same line of questioning for people that have family members or friends which were victims of domestic abuse/violence] 2.

Anyone ever actually witnessed an act of what you consider to be domestic violence?

Family Violence | AFV

-Are you comfortable talking about it? -What did you witness? -How did it make you feel as you witnessed it? -Did you get involved and give a statement to law enforcement? -Reflecting on that, how do you feel about that situation now? -Given those feelings, can you be fair, are you biased against the Defendant? [This last question should be done up at the bench and potentially used for a challenge for cause] 3. Can anyone think of a situation when a spouse, significant other, or family member is justified in using physical force against their spouse, significant other or family member? 4.

When is a person justified in using force to defend themselves? [Use with claim of self-defense]

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5. Under what circumstances is a person allowed to defend themselves against a spouse, significant other or family member? 6. How do you feel about a situation where a person initially complains of assault, but then says nothing happened? 7.

Why would a spouse or significant other lie?

Ever had a spouse or significant other cheat on you? -How did that make you feel? -Can we agree that they lied to you?

Can we agree that a spouse, significant other or family member is capable of lying?

10.

Why do people lie?

[Should be able to get the jury talking specifics of why people lie, and start looping between the jurors] [My experience is that female panel members are usually more vocal about this issue, so I tend to focus on women, but in the situation where you can get that man to speak up you are going to want to loop back to him with each female response] [This purpose becomes much clearer once you get feedback on this issue, because if I am defending a husband/boyfriend against the complaints of the wife/girlfriend, I want to use this exercise to build a case for challenges for cause against any female jurors that may prejudiced against the husband/boyfriend in this situation]

12. Do you think it could be difficult to walk that statement back once you made it to a member of law enforcement? These are just some sample questions I will generally outline prior to trial, but much of my voir dire could change depending upon how the State conducts its voir dire. My experience with the State’s voir dire practice in assault cases is that the prosecutor will often times ask a line of specific questions which focus on intimidation and manipulation. The State is doing this to try and educate the jury panel on the subtle and even overt types of intimidation and manipulation which occur. If this is the State’s focus you can be pretty sure the State is laying the groundwork to explain (1) why a witness may not testify, (2) why a witness would recant, (3) show the jury how this manipulation and intimidation is just another form of abuse, and (4) why the State’s case does not have a smoking gun piece of evidence. The State will often do this in a very subtle way by asking scaled questions. An example of such a scaled question is: 20 | P a g e

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11. Ever made a statement or allegation against a loved one or friend out of anger (heat of the moment), knowing it is not true?

1. If a wife does not report her husband assaulting immediately after the act does that make her complaint less true? -Strongly Agree -Agree -Disagree -Strongly Disagree [Depending upon how the question is phrased from a scaled perspective you will need to watch for a committal type question] [Your follow-up committal questions on this topic tend to be connected to those who strongly agree, because that is who the State wants to strike] When the State starts down this path, I will usually make note of those assertions, as you will have to diffuse this type of questioning during your voir dire by addressing the State’s scaled questions. I believe that scaled questions are just a manner in which a side (State of Defense) is attempting to get the panel member to cheerlead for their cause. This is because I can neutralize those same panel members by using the timing of the complaint against the State. Defense follow-up questions on this issue could be:

Family Violence | AFV

1. If they waited a couple days to report the assault, we can agree it could give them more time to organize their story. 2. Can we agree that if we don’t take pictures of the supposed injuries at or near the time the act occurred, we can’t be sure where those injuries came from? 3.

Why would anyone need time to organize their story?

Why would anyone need time to organize the truth?

Much of what you may have to accomplish during your voir dire may be in response to these issues the State has raised. Keep in mind you have the ability to adapt and reform your voir dire after having heard the State’s voir dire, and there is no rebuttal. I would have a general voir dire outline completed which focuses on your defense and trial strategy, but I would also have some questions ready for what you anticipate the State may ask given the weaknesses you have identified in their case.

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VI. Defensive Strategy Case Details Most assault family violence cases, whether it involves an adult or a child, involve similar details which must be investigated. I have organized these details into subject matter topics as follows: The Complaint of Assault a. When was it made in relation to when it occurred? b. How was it made and under what circumstances? c. If not law enforcement, who did they initially complain to?

The Alleged Victim [Personal and Medical History] a. Age b. Medical History c. Relationship to your client d. Family History e. Educational level and background f. Child Protective Services History (Sometimes Applicable)]

Were any Physical Injuries Sustained [Types] a. Bruises b. Scratches c. Abrasions d. Tears (On about or near Vaginal Cavity and/or Anus)

Practice Note: 4.

A qualified medical expert can assist you in identifying and working with the type and causation of certain injuries that may have been sustained.

Circumstances of the Alleged Assault a. Time and date when it occurred b. What is the description of the physical location where act allegedly occurred c. Type of lighting available d. If occurred inside, what are the dimensions of the location and what type of furnishings were present e. Is it a crowded neighborhood, and did anyone hear or see anything [If crowded neighborhood who else had access to the location and the alleged victim] f. Are there any cam recording devices either in the location itself or located outside of the location (i.e.: a security cam at a convenient store may provide information) g. Canvas the area and location of the alleged assault to gather information regarding the circumstances

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

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Relationships a. Between your client and the alleged victim b. Motive and bias to lie c Family members often attempt to lie or cover up for the real perpetrator d. Between the alleged victim and their family e. Possible other suspects f. Any other family members have violent, or drug related criminal histories g. Motive and bias to lie h. Bad breakup or divorce

Client’s background and history a. b. c. d. e. f.

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Medical history (physical anomalies of client’s anatomy) Mental health history Criminal history Child Protective Services history Employment history Family background

Develop a Timeline of Events a. [Using your breakdown of the alleged victim, the witnesses, family members, the location, any injuries sustained and causation, and any other material case facts, you will begin to develop a timeline of events] b. Does your client have an alibi? c. Who else was and/or could have been present when assault allegedly occurred d. What were the physical circumstances which were present and/or should have been present?

Who, What, When, Where, How and Why The process of investigating an allegation of assault family violence, as in most cases, begins with relevant questions which surround who, what, where, when, how and why. 1. 2. 3. 4. 5. 6.

What is your client accused of doing? Who are they accused of assaulting? When did they assault the complainant? Where did the assault happen? How did the assault occur? Why did the assault occur?

Have to start investigating the possible answers to these questions to understand the expert’s involvement and how they are going to assist the State during trial. 1.

Investigate the Cast of Characters

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

a. The nature of the relationship between your client and the alleged victim. [Motive or Bias] b. Identify the witnesses that have observed the relationship between your client and the alleged victim. [Motive or Bias] c. The nature of the relationship between the identified witnesses and your client. [Motive or Bias] d. The nature of the relationship between the identified witnesses and the alleged victim. [Motive or Bias] e. The relationship between the physical circumstances (ie: location, time of day, date of occurrence) involved concerning the crime as alleged, and your client. [Alibi Defense] f. What is the relationship between the physical circumstances (ie: location, time of day, date of occurrence) involved concerning the crime as alleged, and the alleged victim. [Eye-Witness ID] g. What is the relationship between the physical circumstances (ie: location, time of day, date of occurrence) involved concerning the crime as alleged, and the identified witnesses. [Motive or Bias/Eye-Witness ID] h. Identify the injuries sustained by the alleged victim. You will need any to determine if the alleged victim had any pre-existing injuries and/or previously sustained similar type injuries? If possible, determine the time and date of the injuries. Based on the allegations, should injuries be present and visible, and they are not? [Request Medical Records] This list of issues is not intended to be all inclusive, but can help you identify the relationships that exist, and the facts and information which should be investigated, in order to develop your defensive theory. Investigate the Crime Scene a. Investigate and document the entire crime scene. b. If the crime scene is a residence, what are the dimensions and square footage of the residence? c. What furnishings were present during the occurrence of any alleged injuries? d. What is your client’s connection to the crime scene? e. What is the alleged victim’s connection to the crime scene? f. Do any of the witnesses have a connection to the crime scene? g. Is the crime scene in a remote location or populated area (this would possibly lead to other witnesses or possibly video of the offense)? h. If applicable, how long did it take law enforcement and/or emergency medical services to respond to the 911 call and arrive at the crime scene? 3.

Investigate the Circumstances of the Crime a. What was the weather? b. When did it occur? c. What time of day did it occur?

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

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d. Was it light or dark out? e. What were the environmental conditions (ie: cloudy, rainy, foggy, etc.) f. Did the street have lighting? g. Was the dwelling lit up? h. How was the furniture arranged? i. What type of neighborhood was involved? j. Were the neighbors home? k. Who called the police? l. Did the neighbors hear anything? m. Should the neighbors have heard anything? 4.

Resources to Utilize

Video of surrounding businesses or residences. Again, as I stated previously you should and need to canvass the neighborhood for any potential witnesses or information.

Family Violence | AFV

a. b. c. d. e. f. g.

Subpoena 911 call and dispatch records. Google Maps and Google Earth. Surveillance cameras. Home security cameras. Busybody neighbors. Use a property records search to determine ownership and possession. If possible, review your client’s, the child’s family, and any witness’s social media accounts to establish any connections between them and the crime scene. (It is surprising what people will tweet, post on Facebook, or put on Instagram or Pinterest) h. Determine square footage, and distances to other residence(s) or building (ie: if occurred in an apartment complex, usually can get a copy of floor plan of each type of unit, or is online) i. Sometimes you need to just bring a tape measure and a camera. 5.

Use Caution

These types of cases are often emotionally charged and involve varied personalities which are not capable of a rationale thought process. Again, we need to assume that in most cases it is more important for the complaining witness and their supporters to be right than it is to be truthful. With that being said, we need to be cautious about how we approach certain witnesses and handle certain information. a. Affidavits of Non-Prosecution (i) If you have an investigator, allow your investigator to make initial contact with the complaining witness. You will need to monitor the content of how your investigator should communicate with this individual. In my opinion, it is not wise to allow your investigator to get too involved in procuring the affidavit, because you do not want to sacrifice the credibility of your investigator or jeopardize their continued involvement in the case. 25 | P a g e

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(ii)

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

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Be aware that once you reach out to the complaining witness, it is likely that they will notify the State or law enforcement of your actions. (iii) In contacting the complaining witness, you need to be familiar with the rights of privacy, and other rights they may have under Chapter 56 of the Texas Code of Criminal Procedure (Rights of Crime Victims). (iv) Initially, as a general rule I will not contact or have my investigator contact the complaining witness unless I have received information that they desire to cooperate with our investigation. (v) If the complaining witness desires an Affidavit of Non-Prosecution, it can be accomplished for any specified reason as explained in the affidavit, but the basic rationale rests on two premises; (1) they no longer desires to pursue the prosecution of the defendant, and the interests of justice are served by a dismissal of the charges, and (2) they have recanted their previous statement as being untrue, and as a result the defendant should not be prosecuted. (vi) Do not give legal advice to the complaining witness. If I end up meeting with the complaining witness, I will record the meeting with their consent, and explain to them that I cannot give them legal advice. (vii) It is my experience that most Affidavits of Non-Prosecution are executed because the complaining witness no longer desires to pursue the prosecution. (viii) You need to explain to your client and the complaining witness, that regardless of whether or not an Affidavit of Non-Prosecution is executed, the State will still have the sole prerogative to pursue criminal charges. (ix) Based on my experience, other than notarizing the affidavit, if necessary, your staff should not discuss or play any role in obtaining the Affidavit of NonProsecution. b. Interviewing and getting a statement from the complainant (i) It is always preferable to use an investigator to get a statement from the complaining witness. (ii) Other than notarizing the statement if it is sworn too or acknowledged, your staff should not discuss or play any role in obtaining a statement from the child’s family. (iii) In the event that the complaining witness is recanting their statement, you need to document this information, and if possible, reduce this recantation to a written and/or recorded form. It is advisable that you and/or your investigator should have recorded documentation regarding this recantation or have a witness present who can verify the recantation. (iv) In contacting and getting a statement from the complaining witness, whether it is you or your investigator, be aware of Texas Penal Code Sections 36.05 (Tampering With Witness) and 36.06 (Obstruction or Retaliation). (v) If your client’s family or friends are cooperating with your investigation, and they are assisting in contacting or getting a statement from any of these individuals, they need to be made aware of Texas Penal Code Sections 36.05 (Tampering With Witness) and 36.06 ( Obstruction or Retaliation).

(vi)

The purpose of mentioning these penal code statutes is based on my previous experience you may get a call from the State or law enforcement suggesting a line has been crossed, and you need to be familiar with them so you can respond appropriately. c. Interviewing and getting a statement from a witness (i) Many of the same caveats and precautions which apply in interviewing and obtaining a statement from the complaining witness apply to other witnesses as well. (ii) It is always preferable to use an investigator in obtaining a witness statement. (iii) Again, other than notarizing the statement if it is sworn too or acknowledged, your staff should not discuss or play any role in obtaining a statement from a witness.

VII. Experts Based on the facts and evidence, the State in these types of cases may bring in an expert to review the facts, including but not limited to law enforcement officers involved in the investigation of the case and arrest of the Defendant.

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Examples of the Many Types of Experts Which Could Get Involved: 1. 2. 3. 4. 5. 6. 7. 8.

SANE Nurse Medical Doctor Pediatrician Psychologist Psychiatrist Trauma and/or ER Physician Pathologist Other Medical Doctors or Professionals ((Pre-existing Injuries and Susceptibility to Injury (i.e.: alleged victim bruises easily)) 9. DNA, Molecular Biology and Forensic Molecular Biology 10. Child Psychologist for Purposes of CAC Forensic Interview 11. CAC Forensic Interviewer 12. Forensic Psychologist (Testing – Punishment Issue) 13. Sex Offender Treatment Provider (Counseling – Punishment Issue) 14. Counselor and Therapist 15. Fingerprint Expert 16. Ballistics Expert 17. Arson Expert 18. Bite Mark Expert 19. Botanist 20. Computer Expert

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

21. Future Dangerousness Expert 22. Engineer 23. Accident Reconstruction Expert 24. Weather Expert 25. Eyewitness Identification Expert 26. Linguistics Expert 27. Speechreading – Lip Reading Expert 28. Body Language Expert 29. Polygraph Examiner 30. Entomology (Study of Insects) 31. Construction Expert 32. Toxicologist 33. Pharmacological Expert 34. Blood Technician 35. Breath Test Analysis Expert

As criminal defense attorneys have gotten better at taking on the State’s case and holding them to their burden of proof, the State has gotten better at moving the goal posts to achieve a conviction. So, to effectively take on the State’s Experts we must investigate all aspects of our case as we prepare for trial, including understanding the Who, Where, What, When, How and Why as it concerns the expert’s involvement in the case. Benjamin Franklin said it best, “By failing to prepare, you are preparing to fail”.

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

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The list itself is only limited by your imagination and that of the State’s prosecutor. It really has only been in the last thirty to forty years that the criminal defense arena has exploded with the State’s use of experts. The State will likely take the position that this is because since the mid 70’s we have become much more technologically advanced in the areas of forensic science and investigations. However, it is much more than something as simple as well we put a man on the moon so of course we have better scientific resources available. Yes, we have a wealth of scientific resources available in this day and age, but I believe in many instances the State needs an expert to bolster its case because what they lack in motive and actual evidence, they will make up in the area of opinions and hyperbole. This can be especially true in an Assault Family Violence case, where we may have multiple experts involved, such as psychologist, therapist, or counselor, and the vaunted “Cycle of Abuse” expert (which we will address in detail later in this paper).

Who is the Expert

[Building the Expert’s Profile]

We need to know their personal details. (1) How old are they, (2) What is their family situation, (3) Where were they educated (4) What is their level of education, (5) How long have they been practicing in their given field of expertise, (6) Have they published any articles or books on topic, (7) What type of continuing education or training do they have, (8) What is their standard compensation for testifying, (9) Who do they generally testify for at trial, (10) Have they been excluded from testifying, (11) What treatises or reference materials have they relied upon in the past in developing an opinion in their field. The basics are easy to obtain, such as their age, family situation, and educational level and experience. If the educational information on a given expert is limited, you may want to explore the possibility of two options to further develop this part of their profile. (1) Request the State to provide the expert’s CV, as many times the State may already have this information, and/or (2) Once you know who the expert is and the field of expertise call them up and ask them their level of education, where they went to school and how long have, they been practicing in the particular field of expertise. The other information which may be necessary to complete the profile is often times harder to come by unless the expert has a noted history and track record so to speak. If they do not, then you may have to question the expert further on their experience and training and the information they have relied upon in reaching their opinion or conclusion. They may not share this information with you, especially if the State has told them that they do not have to speak with us, but I am fine with asking those questions during trial, as follows:

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a. “Dr. Smith, I called and spoke to you on the phone on December 3, 2022, correct? Yes. b. When I asked you your level of training and experience, you refused to answer me, correct? c. When I asked you how much you were being paid to review the State’s case, you refused to answer me, correct? d. When I asked you what information or materials, if any, you relied upon in reaching any opinions or conclusions, you refused to answer me, correct? e. If we are all interested in getting to the truth, can you understand my confusion as to why you refused to answer me? [Do not’ care what the response is] f. Can we agree that I was respectful and professional when speaking to you? g. Can we agree that the only reason you refused to answer my questions is that the State told you not to speak to me, correct? h. If the State is interested in getting to the truth and seeking justice, do you know why they would not want you to speak to me? [Do not care what the response is] I have not had to use this particular course of action with an expert in years, because the State will not risk instructing them to not agree to speak with us. Tactically, 29 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

the State is giving you the golden ticket to discrediting their expert if they instruct them not to speak to us regarding their opinion and/or report. If science does not lie, then the State should not hide their experts in a cave. If the State’s expert exclusively testifies for the State, we can generally locate this information through our friends in the defense bar, and by just investigating their work history. Prior transcripts of experts are of great use, and you can ask your friends and neighbors if they are available or even get on the TCDLA listserve and inquire as to their existence. If they only play for Team State, then our cross-examination takes on an additional aspect as to who they are, because we now want to show that they are biased and have tunnel vision. We can do this in a number of ways, such as: a. Dr. Smith, you have never testified on behalf of a Defendant, correct? b. You exclusively testify on behalf of the government, correct? c. You are being paid by the government for your testimony today, correct? d. You are being paid the sum of XXX Dollars to render an opinion consistent with the State’s case, correct? e. We can agree that the State would not have you come over here to give an opinion contrary to their case, be crazy, wouldn’t it?

f. We can agree that you have been wrong before, correct? g. Or we can at least agree that a jury of this great State disagreed with your opinion, correct? h. Mr. Jones was acquitted in a trial in which you testified for the State, correct? i. We can agree that Dr. XYZ has stated openly that your theory of _______________, is not supported by empirical evidence? 30 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

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Tip: This line of questioning to follow can work if you have information that the expert has been excluded from testifying or the Defendant was acquitted despite the expert’s testimony. If those issues cannot be established it is not effective, and more importantly if not carried out expeditiously you will draw an objection as to relevance, or the Court may stop you. If the Court stops you or sustains a relevance objection, I would ask the Court to excuse the jury so you can put on a Bill of Exception as to this line of questioning because I think it is relevant and based on the testimony history of the expert could prove more relevant over time. Many times, over the course of several years some experts and their field of study have been exposed as junk science, and if they have been wrong and a jury or their peers have disagreed with their previous opinion, it is relevant.

j. We can agree that your opinion on this theory of __________________, has not been peer reviewed and has not been widely accepted as a valid scientific premise in the field of ______________? 2.

How is the Expert Assisting the State?

This is the trap question and will require not only a fair amount of investigation, as noted above, but may require you to at least consult with your own expert on the subject matter. Further, you will need to educate yourself in their specific field of expertise as it concerns the assault family violence allegations, so you can understand and communicate with these experts on their level. Some expert roles that you should become familiar with in an Assault Family Violence case are: -

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Therapist/Counselor DNA Defensive Injuries Bruising Psychology of Family Violence [Behaviors Inherent in Assault Family Violence Victims] Cycle of Abuse - Family Violence Psychology of Intimidation Psychology of Control and Manipulation

These fields of study are easy to recognize, and you can quickly start putting together the pieces to construct a cross-examination of the State’s expert specific to their report and/or findings. However, some fields of scientific study are not so readily apparent and require further investigation. It may be a case of Soft Science versus Hard Science. Hard science is a field of scientific study that strictly adheres to the scientific method. Generally speaking, hard sciences include fields of scientific expertise such as physics, math, chemistry, biology, DNA, human physiology, astronomy. Hard sciences are often referred to as the natural sciences. Soft science is a scientific discipline which is loosely based upon the scientific method. The soft sciences are the social sciences and can include disciplines such as sociology, psychology, future dangerousness, and the effect of trauma and pre-disposition of PTSD as a result of trauma. There is an inherent problem with the complex nature of a soft science wherein something cannot be measured with precision, such as in a hard science. When we are dealing with something labeled as a cognitive science, which generally falls into the realm of human behavior and emotions (ie: psychology), this is a soft science and we should approach the State’s expert in this field with a certain amount of subjective cynicism, because the expert can sometimes make a round peg appear that it can fit in that square hole. We should never shy away from confronting a soft science expert regarding the subjective nature of their field of study, in fact if they are as qualified as they will say they are they will expect this type of inquiry and should be able to explain their role in assisting the jury. This becomes our ground zero for attacking the subjective 31 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

nature of that type of testimony, because other possibilities can also be true, as that opinion cannot be measured or accurately quantified for the jury. My experience is that in an Assault Family Violence case, outside of medical and biological evidence, most of the State’s experts you will be confronting will be in the areas of soft science.

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In the case of human anatomy, we can accurately predict a person’s heart rate with a scientific device, however, we cannot measure with any accuracy the emotions of that same person. This is an example of hard vs. soft science. This is why sometimes you will see in the counseling notes in an assault case a reference that the victim’s account or statement, and their emotional reaction is consistent with a history of assault. It is also consistent with a history of a person that is lying or numerous other possibilities. If there is physical evidence that has been obtained and connected to the accused that is a hard scientific fact, as opposed to an educated guess based on experience and training. DNA can be established as a hard scientific fact if it is detected and recovered. However, DNA does not in and of itself tell a story. The presence of your client’s DNA does not mean your client is guilty of assault, nor can it rule out any number of defenses that may explain or justify the circumstances of the alleged assault. A more simplistic way of breaking down this process is to perceive that hard science is objective and can be accurately measured and attested to, and soft science is generally subjective and not accurately measured. This is a case of an objective versus subjective scientific basis, and you can initially quantify and prepare for the cross-examination of the State’s Expert on that basis. Therefore, when preparing your cross-examination of the State’s Expert understanding their field of expertise and determining if it involves an objective vs. subjective intent and criteria, is critical to a successful cross of said expert. You will need to educate yourself in that field of expertise, and there are numerous resources that are available to the public and attorneys for that purpose. I cannot provide a comprehensive list in this paper for this purpose, because it is only limited by the type and nature of the field of the expertise of the State’s Expert. Again, when constructing the profile of the State’s Expert we are gathering information regarding their background and opinion, and this necessarily includes what type of resources are generally relied upon in their field of expertise. Once you have determined who the State’s expert is and what is their particular field of expertise (hard vs. soft science), the hard work begins as you now should be outlining your potential cross examination for purposes of trial preparation. At this time, it is helpful to consider and make a determination on three distinct issues: (1) Ranking the Expert, (2) Using a Defense Expert, and (3) The State’s Zero-Sum Game. 3.

Rank their Expert

Once you have reviewed the offense report and any available opinions from the State’s Expert you should be able to make a determination of what type of witness the expert will be at trial. I usually use a scale of 0 – 3 to rank experts, even my own experts for use at trial. (a) 0 = Would be an expert you can use to our advantage. You can use this expert to develop your defensive theory. You would co-opt this expert for your own use. Generally, this will apply to hard science experts because it is based on a strict scientific method which can be precisely measured. Examples of this would be a DNA expert, medical examiner or toxicologist. 33 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

(b) 1 = Neutral is the expert that really does not hurt the defense case. Again, this would normally be a hard science expert because facts and science are not normally subject to some type of false narrative or explanation. However, with a State’s Expert that I rank as neutral, I would be wary of their opinion and just how far the expert may attempt to extend that opinion. I have found that in situations involving this type of expert when they stray from the direct line questioning of their opinion based on science that relevance and speculation objections can be successful and limit the expert’s attempt to opine on issues outside of their field. You may find yourself in a situation upon re-cross that you are attempting to reel in the expert’s opinion because upon re-direct they realized that they were not advocating sufficiently to appease the State. Actually, you may find yourself faced with a law enforcement official whose testimony is factually based but tends to stray from the confines of those facts to illicit an opinion that advocates the State’s theory of the case.

(d) 3 = This expert is just another prosecutor in the courtroom. You need to treat this expert as an adverse party from the moment you start to question them on cross. This will necessarily start on listening to their testimony on direct and making the necessary objections during their direct examination. You will need to have a TRE 705 hearing on this expert and their testimony prior to them taking the stand for direct examination. It is critical to educate yourself both personally and professionally regarding this expert and their testimony. Bias is going to be a key component that will need to be exposed. Do not debate with this witness in front of the jury. Limit their testimony during the 705 hearing and ask only those questions on cross which assist in developing your defensive theory. If the Court is going to allow their opinion into evidence over your TRE 705 objection, do not debate that conclusion with the expert. All that will do is have them repeat this information over and over again. Make your point with this expert, it is sometimes a good strategy to make a chart of sorts and have the expert agree to certain facts which are beyond dispute and ask the question which implies that you do not agree with their conclusion. This is a premise laid question which suggests the answer, and once I am not concerned that the expert did not agree with my suggestion. This is also the type of expert where 34 | P a g e

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(c) 2 = This is an expert that is pro-state. A pseudo advocate for the alleged victim. I have found that most of these experts fall into the realm of the soft sciences. However, for example you could have a situation where a law enforcement official is designated as an expert on gang affiliations or behavior. This is a situation where the State will attempt to demonstrate the fact that certain gangs are prone to XYZ, etc., and relate that opinion to your client’s current case. This is an attempt to disguise soft science as hard scientific facts and should be exposed as such. It is simply an educated guess, one that the expert may be allowed to give, but it is still a guess. We should treat these experts carefully, and not allow their opinion to vary from the exact field of expertise. While we will discuss the use of TRE 705 (Gatekeeper Function of the Court) later in this paper, this is a situation where the use of a “gatekeeper” motion and hearing should be utilized to discover and limit the ability of the expert to opine on certain issues and facts. Unfortunately, in a case involving family violence, law enforcement and other persons such as Cycle of Abuse experts, and therapist/counselors are going to fall into this category.

you will usually have your own expert prepared to testify as the subject matter at issue. Again, this will be a distinct problem with the use of this type of expert in a family violence case because you will have the therapist, counselor, psychologist, family violence shelter personnel, all appear to advocate on the complaining witnesses’ behalf. It is not about their testimony so much as it is the unbridled disregard some of these types of professionals have when it comes to the accuracy and consistency of the complaining witnesses’ allegation(s). In my opinion these experts are advocates and we will have to treat them as such, however uncomfortable that may be in the context of the trial.

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Using a Defense Expert

I believe you make this determination after you have reviewed the offense report and the State’s Expert report. At a minimum if you are not familiar with the exact science and methodology employed by the State’s Expert, it is best to retain your own expert for purposes of consultation. You can determine at a later date whether you want to use your expert for purposes of offering testimony or submitting their own report. Article 39.14 of the Texas Code of Criminal Procedure does not require defense counsel to designate their testifying experts until 20 days prior to trial. The Court can order any party to disclose the names of its expert witnesses that will offer testimony under TRE 702, 703 and 705, no later than the 20th day before the trial begins. See Osburn v. State 59 S.W.3rd 809 (Tex.App. – Austin 2001), affirmed 92 S.W.3d 531 (Tex. Crim. App. 2002). Further, a caveat I would offer is do not designate an expert for purposes of testifying unless you are fairly certain that you need their testimony at trial. Once designated the State’s Expert can comment on your expert’s credentials, and any conversations they had concerning situations where they have sent information to them for review. See Pope v. State 207 S.W.3d 352 (Tex. Crim. App. 2006). Further, it is well settled that the State in closing arguments can comment on the fact that defense counsel failed to call an available and designated expert witness. Id. I am of the opinion that it is always best to investigate, then consult with, and lastly prior to trial designate if I am fairly certain the expert can assist at trial. I am not of the opinion that this is always the case, because I have had occasion to designate an expert and not call them, but it was a trial strategy decision based on the evidence admitted at trial, and I was prepared to argue why it was not necessary for my expert to testify. If you do have the luxury of having your own expert always consult with them regarding how and on what topics to cross examine the State’s Expert. If your expert is going to testify this will prove as an invaluable segue from the subject matter of the State’s Expert opinion and your expert’s opinion. As an example, when reviewing the State’s DNA litigation packet for a certain case, your expert will need that litigation packet for review and consultation with you regarding the case. If I have not designated a DNA expert I would object if they referenced the same just because they knew I had the litigation packet reviewed. In my opinion, that expert is not an available witness as I would have only consulted with them on that information and my conversations with them are privileged. However, you do have to be careful in having your expert converse with the State’s Expert for purposes of gathering information and more importantly the litigation packet on a given scientific topic. At this juncture of the investigation, I have normally made the decision on 35 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

whether or not my expert can assist me at trial before I would agree to allow them to converse with the State’s expert regarding requesting information out of the lab’s litigation packet. In some instances, I want the State to be aware of my expert. As an example, the State has certain evidence swabbed for DNA. In my review of the offense report no traces of any DNA are present where I think it should be. I am not a DNA expert so I consult with a DNA expert and retain them because sometimes it is just as important if DNA is not detected on an item tested, under circumstances where you would presume some type of biological evidence would be present. Hopefully, given this type of situation the I am playing chess and the State is still playing checkers. I do not necessarily believe you need an expert to counter the State’s cycle of abuse expert unless it is a situation wherein the expert could assist you in dispelling the State’s contention that a cycle of abuse existed in the relationship. If the family violence allegation involves a child abuse accusation, a child forensic psychologist would be helpful in reviewing and preparing a cross-examination regarding the child’s forensic interview and the behavior and actions of a child witness. 5.

State’s Zero-Sum Game

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

What do we mean by this in the context of a trial? In my experience trial work involves a lot of critical thinking because we have such a short time to convey a voluminous amount of information to the jury all the while persuading them to agree with us. Keeping that in mind the zero-sum game simply put is a situation where there are two sides, and the resulting outcome is an advantage for one side and disadvantage for the other side. Specifically, there is a winner and there will be a corresponding loser. In trial we cannot afford to compound a win by the State with an expert with a corresponding loss by our expert. In those cases, once we have reviewed the file and investigated, we can determine if we are treating that State Expert as a zero-sum game. If the State’s Expert is sound and the science supports his opinion, we can look to expose any undisputed facts they will have to agree with, but we do not want to give them repeated opportunities to express their opinion. Simply put, how many times do you want the State and the Court to refer to them as an expert. Under those circumstances my belief is that the client is best served by getting that type of expert off the stand as quickly as possible. Further, if your expert agrees with the State’s Expert’s opinion, get that in writing and put it in your file. I would consult with your expert to try and come up with some line of questioning which will slow down that expert’s momentum on the stand, but you cannot afford to debate someone who has the science on their side. This will generally apply to a situation where a hard science discipline is involved and has been subjected to a rigorous testing under the scientific method. In my experience these types of experts can range anywhere from a 1 – 3 in terms of ranking their posture in the courtroom. However, on certain occasions you will confront that State Expert that has a zero-sum mentality. This is a situation where the State’s Expert wants to argue and debate the point with you, as they perceive themselves as the heroin in the State’s case. An expert that adopts a zero-sum mentality is so entrenched in being correct that they shut down the conversation and create a sense of apathy in the courtroom. We all know that expert that no

Family Violence | AFV

matter what is said or asked of them, they are going to loudly and express their opinion in a very divisive and belittling manner, because they believe it assists them in winning what they perceive as an argument. I do not like these situations and I do not believe a jury likes them either. The jury is not getting the information they need to assist them in the case. If you find yourself with this type of expert, I find it helpful to listen to the State’s direct examination and within the context of your cross-examination reverse the nature of the question to see if you get the same response. An example would be if the State asked, “Officer when you approached the scene describe the Defendant? He appeared intoxicated and had blood on his hands. I may rephrase the question and add something like, Officer is not it true when you arrived on the scene while you say the Defendant appeared intoxicated, he did not flee the scene and the blood on his hands may have come from the cuts under his eye and forehead. Sometimes many police officers never want to agree with us because they believe we are trying to trick them, but facts are facts. If the officer does not agree with you, I start charting the questions on cross that basically asked the same question on direct but in a different manner, and then illustrate to the jury why the answers are different when the questions are basically the same. If the witness is being combative because they play for the State of Texas, you should be able to expose this to the jury, and in closing suggest their opinion cannot be trusted because they are biased. Science is not biased, and it should not take a side, much like facts. I once spoke to our local sheriff’s department during one of their training sessions and someone in the audience asked me what is the most critical mistake you see law enforcement officers make during cross-examination, and I told them they try to argue with me about what I know the facts to be rather than just testify to what the facts are that existed. This is important because many times certain law enforcement officers who investigated the case are designated as experts, and if they are the investigating the case, I perceive their role first and foremost as a fact gathering machine not an opinionated sycophant for the State. Again, in cases involving an allegation of family violence, I believe that you can guarantee yourself that most of the State’s witnesses will be emotionally vested in the complaining witness, and that includes their therapist/counselor, family violence shelter advocate, and the potential cycle of abuse psychological expert. You have to pick your avenues of attack for cross-examination carefully, because you want to reach a consensus in those areas you can agree, make your point quickly, and do not linger or debate with the witness. If you allow this type of witness to hang around it will turn into an argument, and we then lose the ability to effectively tell our client’s story to the jury. 6.

Why is the State Using this Expert This may be redundant because focusing on why the State is using an expert or a particular type of expert involves who they are and how they are being used. However, I have found that we can take this part of the process a little further in determining why they are being used, and it usually falls into two categories, the latter of which is what I would focus on:

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

(1) Captain Obvious: We know from reviewing the offense report the State must have an expert. In my experience I would say that most of the obvious experts fall into the hard/objective scientific arena, and I would normally rank them as a 1 or 2 for purposes of trial preparation. However, you can run into certain hard science experts, such as child abuse experts (medical professionals) who remain adamant despite other potential possibilities, that certain injuries to children are always going to be classified as nonaccidental, which means they are indicators of abuse. We have all been practicing long enough in our respective corridors of the state to know and recognize these individuals. In situations such as this I will likely retain my own expert to consult with to at a minimum confirm the State’s Expert’s findings. In these instances, you should have a fair amount of information available on these experts as their reputations generally precede them. In family violence cases involving allegations of child abuse, I would recommend that you become familiar with the local crisis shelter or children’s forensic interview domain and their connection to your jurisdictions multi-disciplinary team (how they are organized and function). I know in the jurisdiction(s) in which I practice much of this information can be obtained online through their websites or Facebook pages. (2) The Enabling Expert:

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

These experts I would usually rank as 2 or 3 for purposes of classification, and normally fall into the soft/subjective science area and discipline. My experience with the State’s use of these experts is primarily about shoring up or supporting their theory of prosecution and the complaining witnesses’ allegations. We have all seen these types of experts before, such as the counselor who states that the alleged victim’s account and behavior is consistent with trauma induced by assault. Again, we cannot accurately measure trauma or for that matter its exact cause. The State needs this expert to support the outcry of their alleged victim, because in many cases there is no corroborating physical evidence. An example would be a rape case where your client has claimed the defense of consent. Assume the parties had sexual intercourse and it is a he-said /she-said account. No signs of assault or resistance, she was scared for her life. The counselor will undoubtedly come to support their patients recount and the trauma they have experienced. However, I always keep this in mind when considering these situations, garbage in = garbage out. I believe people can convince themselves that they are a victim, and, in that instance, I do not believe you are going to see their counselor not support their version of the events. As I referred to previously, it does not matter that their story is inconsistent or even not

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logical, the subjective nature of their experience with their patient does not allow them to entertain the idea they are lying or at a minimum exaggerating the known facts. This type of expert plays exclusively for the State so we are not going to convince them we are right or have that Perry Mason moment. Instead, we should be focusing on the facts that we can control and know to be undisputed. Such as: a. Your patient is Ms. Jones, correct? b. You work for and are an advocate for your patient, correct? c. You were not present in the apartment on November 4, 2022, correct? d. You did not see anything happen, correct? e. Your only account of what happened between your patient and my client is what she told you once she began counseling, correct? f. We can agree that people will sometimes have to agree to disagree on certain issues? g. However, we can agree that there were no physical injuries apparent to Ms. Jones, correct? h. We can agree that she reported there was a struggle, but no injuries were apparent, correct? i. We can agree that no scratches, bruises, bite marks, red marks, ligature marks were present on her after she says she resisted there was a struggle while she was being raped, correct? j. We can agree that physical injuries can be interpreted as an indicator of a struggle, correct? k. We can agree that if there are statements your patient made that were inconsistent with certain established facts that would not change your opinion of her diagnosis, correct? l. Objectively, you would agree with me that there are no physical or measured signs or evidence of a struggle between your patient and my client on November 4, 2022, correct? As you can see, I never once debated with her over her opinion or conclusion regarding her patient, because I recognize her as an enabling expert. That counselor is testifying to add credence to the alleged victim’s story. The counselor assumes without hesitation that their patient is a victim, and the State is complicit in this charade by using an expert like this to establish that she is a victim because she went to counseling. We see situations like this all the time where the State designates an expert on family violence and the cycle of abuse. They are not even the alleged victim’s counselor or therapist sometimes, just a person that is called to explain to the jury what family violence is and how it can affect a person. In that instance, you need to have your 705 “gatekeeper” hearing, because I would argue that the probative value of this otherwise inadmissible information is outweighed by the prejudicial effect. I have used experts on “Battered Spousal Syndrome” in self-defense situations, but I do so knowing that this 39 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

type of evaluation by an expert can be exposed upon cross-examination. Trial, as anything else in life, can be weighed and measured under a risk vs. reward scenario. We take calculated risks at trial, just at the State will do, and the only thing that can circumvent the effectiveness of this type of expert testimony, is to educate yourself on the subject matter, at a minimum get your own consulting expert on the subject matter and understand where your battle is going to be with this witness. It is not a case of changing their mind, it is a case of showing the jury they are enabling the State and the alleged victim in this false narrative. We should begin to sow the seeds of doubt of the enabler during voir dire, as referenced above. Asking the panel members can we trust a therapist to tell the truth or recognize that their understanding of the truth is limited by what the complaining witness has said to them during their therapy sessions. The counselor or therapist will have to admit that all persons are capable of lying, and that the information they receive from the complaining witness is only as factually accurate and dependable as the source. Again, garbage results in garbage out. Definition of Enabler: Used as a Noun 1. a person or thing that makes something possible: "the people who run these workshops are crime enablers" · o

a person who encourages or enables negative or self-destructive behavior in another: "being an enabler to an addict does more harm than good"

Used as a Verb enabling (present participle) 1. give (someone or something) the authority or means to do something: "the evidence would enable us to arrive at firm conclusions" synonyms: authorize · sanction · warrant · license · qualify · allow · permit · entitle · o

make possible: "a number of courses are available to enable an understanding of a broad range of issues" synonyms:

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

Definition of Enabling:

allow · permit · give permission to · give leave to · authorize · We can see how these types of experts are utilized by the State, and we not only have to be aware of them, but we have to discover as much information as we can about them and their practice before they testify. Information regarding these types of experts is getting harder to obtain because many prosecutors are moving to quash our subpoenas and arguing this type of information is confidential and not discoverable. I know this from personal experience because I am seeing the State move to quash more of my subpoena duces tecum requests on this basis, and objecting to my specific discovery requests on these issues. We have to be vigilant, and I would tell you to be aware of the Texas Government Code Chapter 420 Subchapter D, as this now requires us to request and make a showing to the Court as to why this confidential information should be produced. I do not know how I can accurately explain to a court that these types of records contain potential Brady information, when I have not seen the records. While I understand that the victim advocate groups are pushing the narrative that by getting this information, we are re-victimizing the survivor, but what about our constitutional protections of right to counsel, effective representation, and due process of law. My experience now is that the State will not even agree to produce these confidential records for “in-camera” inspection, which I have been agreeable to, because I have not met the requirements under Texas Government Code Chapter 420.

Family Violence | AFV

So, this fight continues, and we will need to argue for our client’s due process rights in obtaining this information so we can effectively prepare for cross-examination of the alleged victim. However, it does not change my initial preparation for an enabling State’s expert, because I know going in there are five critical points to remember: 1. 2. 3. 4. 5.

They work for and advocate for their patient = alleged victim. You are never going to change their mind or reasoning. The strength of your cross lies in their unwavering support of the alleged victim. They cannot disagree with the facts that are beyond dispute. When you question them never let them rationalize or explain the meaning or context of those facts beyond dispute.

Using this type of approach and outline, as well as making sure that they stay in their lane can be successful at trial.

VIII. Cycle of Abuse The “Cycle of Abuse” is a pattern that has been used by professionals in the field that assist in identifying a pattern of abuse in a relationship. This process is a four-part pattern used to identify abuse in relationships. The cycle is said to continue because of the power imbalance which exists in the relationship. This is generally taken to mean that one party has direct control and hold over the other party. 41 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

To gain some perspective on this theory of relationship dynamics pertaining to abuse, we need to briefly examine its origin. This concept of the abuse cycle was researched decades ago when Dr. Lenore Walker, a psychologist, developed “cycle of abuse” as a social cycle theory in 1979 to explain what she determined were patterns of behavior in an abusive relationship. This phrase is also used generally to describe any set of conditions which perpetuate abusive and dysfunctional relationships. Dr. Walker interviewed 1,500 women who had been subjected to domestic violence and determined there were similar patterns of abuse and labeled these patterns “cycle of abuse”. Dr. Walker initially proposed that the “cycle of abuse” described patriarchal behavior in men who felt entitled to abuse their spouse in order to maintain control over them. Dr. Walker implemented terms such as “the battering cycle” and “battered woman syndrome” to this discussion. The term “cycle of abuse” was used predominately for different reasons, such as: 1. Maintain objectivity because this “cycle of abuse” does not always lead to physical abuse; and 2. Symptoms of the syndrome have been observed in both men and women and are not necessarily limited to marital and dating relationship. Critics of this theory have long argued and suggested that it was based upon an inadequate research criterion, and therefore cannot be generalized as was promulgated by Dr. Walker.

(1) Tension Building: The pressures of the relationship build up through various contributing factors such as, problems in the marriage, conflicts over children, misunderstandings, other family conflicts, illness in the family, legal problems, financial distress, or catastrophic events (war which affects family members or natural disasters). During these stressful periods the tension builds because the abuser feels threatened in the relationship, ignored, or wronged. This type of tension can last minutes, hours, days, or months. (2) Incident: This is the stage during which the abuser commits an act or acts to attempt to dominate and control their victim. This outburst of violence and abuse may be verbal, psychological, or physical. This release of energy by the abuser reduces the tension build up and may result in the abuser expressing to their partner that they had that coming. (3) Reconciliation: After commission of these acts of abuse, however, they occurred, the abuser will begin to experience remorse and feel guilty about their actions. The victim of the abuse may feel 42 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

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There are four phases of the “cycle of abuse” consisting of (1) Tension Building, (2) Incident, (3) Reconciliation, and (4) Calm. As promulgated by the experts that generalize and support applying this theory of abuse to every situation involving such an allegation, the “cycle of abuse” will usually follow the above stated order and repeat until the conflict and relationship is terminated. This cycle can repeat itself hundreds of times over the course of an abusive and dysfunctional relationship and can take only a few hours or more than a year to run its course. The four phases are described as follows:

pain, fear, humiliation, disrespect, and confusion and mistakenly reach the conclusion they are responsible. After the violence has ended the abuser assures their partner it will never happen again, shows affection, and apologizes about the incident. The abuser may even give substantial gifts and show a great amount of love and affection toward the victim. The abuser may also use threats or actions involving self-harm, such as suicide, to gain sympathy or stop the victim from leaving the relationship.

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(4) Calm: During this phase the relationship is blissful and calm. Often called the honeymoon phase. It may include the abuser continuing to seek forgiveness and perhaps even agreeing to counseling. The sex and gift giving may be over the top at times during this phase. The apologies and request for forgiveness dissipate over time, and eventually the abusive behavior returns, and the cycle repeats itself. See

Domestic Violence: Causes and Cures and Anger Management, Willis C. Newman, Esmeralda Newman, May 12, 2010 ISBN 789-1-4528-4323 page 9.

See

Physical Abusers and Sexual Offenders: Forensic and Clinical Strategies, Scott Allen Johnson, CRC Press: July 13, 2006 page 31.

See

The Battered Woman, Lenore E. Walker, New York: Harper and Row (1979).

See

Helping Her Get Free, Susan Brewster, Seal Press ISBN 1-58005-167-7, 2006.

As stated previously, over the years there have been critics of Dr. Walker’s theory of “cycle of abuse”, claiming it was too simplistic and general. Scott Allen Johnson developed a 14-stage cycle that broke down the tension building, incident, and calm stages in more detail. Donald Dutton and Susan Golant agree that Dr. Walker’s “cycle of abuse” describes all of the cyclically abusive relationships they studied but noted that her initial research was based almost solely on anecdotal data from a small subset of 1500 women who were in abusive relationships. Dr. Walker specifically noted in her research that the women studied were not randomly selected and they cannot be considered a legitimate data base from which to make specific generalizations. See The Batterer: A Psychological Profile, Donald G. Dutton and Susan Golant, ISBN 0465033881, 1997. See

Physical Abusers and Sexual Offenders: Forensic and Clinical Strategies, Scott Allen Johnson, CRC Press: July 13, 2006 pages 31-35

As you can see even the experts cannot agree on the development, specific characteristics and the generalized conclusions which can be reached in explaining the “cycle of abuse” and its application to situations involving domestic violence. Therefore, you will have to become familiar with this theory as the State may likely call such an expert in a family violence case to explain the recantation of an allegation or abuse, why law enforcement was not initially called, or why the victim would return to an abusive relationship. The problem with this theory is just that, the State’s expert will probably testify in generalities to explain this behavior, but this type of behavior can also be consistent with a spouse that fabricates an allegation of abuse because 43 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

they are angry, jealous, or frustrated with your client. The source of the information is critical, and the “cycle of abuse” while an established and accepted theory of abuse and dysfunction within a relationship, does not apply to a fabricated allegation. The State’s expert was not present during the alleged abuse, so you will have to treat this expert as such, reminding the expert they were not present, and their opinion is limited to only the hypothetical and not the actual factual events. Often, you can limit this type of expert’s impact at trial by breaking down the four phases of the “cycle of abuse” by emphasizing a missing phase or factor of a phase of the cycle itself. These types of experts often will be an advocate for the alleged victim or the State’s overall prosecuting strategy of stopping family violence. Again, you will need to address this type of expert with that in mind and remember to not debate this type of expert. Make your salient points regarding the facts of this case not meeting the pattern of abuse and identify this type of expert as an advocate, so the jury sees they have an agenda. If possible, find out as much information as possible on this type of expert, including any copies of transcripts of their previous testimony, how many times they have testified for the State, and their training and educational background. Very often, these experts are outspoken advocates within their industry and profession, so gathering information on their background and training is not as difficult as you might imagine. If you have funds available, you may consider retaining your own expert to consult on this issue and preparing for cross-examination of the State’s expert on the theory of “cycle of abuse”.

IX. Pre-Trial Motions The use of certain pre-trial motions is required in most family violence assault cases whether the alleged victim is an adult or a child. In a family violence assault case, I will generally file the following motions at the very beginning of my representation of the client: 1. 2. 3. 4. 5. 6.

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Motion to Designate Experts; and Motion for Voir Dire of State’s Experts (TRE 701-705); and Motion for Notice of Extraneous Offenses (TRE 404 (b) and TCCP 38.37); and Request for Hearing Outside Presence of the Jury TRE 403); Motion to Disclose Confidential Information of the Complaining Witness; and Motion for Discovery of Arrest and Conviction Records of State’s Witnesses. (This excludes law enforcement personnel, as the State should give you some type of “Brady” notice if any of their law enforcement witnesses have past criminal convictions)

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

You will also want to file a Motion to Voir Dire the State’s Expert, as this will require the Court to conduct what we commonly refer to as a 705 Gatekeeper Hearing. This is the manner in which you can inquire about the State’s expert’s work experience and educational background, and their review of certain facts pertaining to the case and any opinions they may hold which are applicable to the case. This is also the process by which you challenge the admissibility of this type of expert opinion by asserting it is not trustworthy and cannot assist the jury. Becoming familiar with the “cycle of abuse” will enable you to prepare and confront this type of State’s expert which is critical to preparing your defensive trial strategy.

I sometimes prefer to file these types of motions early in the case, to get ahead of how the State expects me to proceed after I have reviewed the discoverable information provided by the State. As to the specifics of receiving discoverable materials from the State, I will generally send the State a discovery and notice letter, which sets out specific materials I am requesting in accordance with TCCP Art. 39.14. The basic premise in any type of specific pre-trial motion you file is that it must be substance driven. What I mean by substance driven is that the motion should have some basic components: 1.

Must have a basis for relief. Such as we need this information, or this information provided by the State is not complete, or I am entitled to question the bases of the State’s specific information, or the information proffered by the State is not admissible, or the State’s proffer of information is so broad this is tantamount to no notice at all, or since we can’t resolve this dispute over the information we defer to the Court.

Motion must be specific and target the problem.

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We cannot afford to waste the court’s time and resources combing our kitchen sink request. The court will lose interest and specifically case precedent supports the proposition that we should be succinct and to the point so the court can easily identify the issue and rule upon same. As referenced above in the Watkins Motion for Discovery, it is a very general motion at first glance, but it does request specific information such as any work product or other material information as defined under Article 39.14 of the Texas Code of Criminal Procedure. This is important when arguing this motion because the courts are well aware of the Watkins decision and its affect on how we define material under Article 39.14. I usually find myself arguing to the court that I am not accusing the State of hiding any information, but the Watkins decision does not require that the failure to disclose material information be intentional, it can be a mistake as well. This type of motion preserves that argument for further development at trial, and to preserve same properly for appellate purposes. 3.

Motion must cite case precedence or reference statutory authority. You will never get any relief without asking for it in a specific manner and have some way of supporting your request based upon case law. Never be afraid to ask the court for relief, but always be prepared to logically justify why you are entitled to relief. Often times we are in unchartered territory and we find ourselves piecing together various elements of statutory law and case precedent. I find it helpful in these type of situations to rely upon making my argument within a constitutional construct as it applies to both

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Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

the U.S. and Texas Constitutions. Arguments such as violation of the 4th, 5th, and 6th amendments to the constitution and violation of due process of law are common examples of how to configure these types of arguments. 4.

Motion must request relief and propose a resolution. You cannot get relief if you do not request it. Being told no is not the end of the world, but not asking for relief is a tactical mistake. Articulate the relief your requesting in your motion and propose a resolution. As an example this can be done in a discovery request proposing that the requested information be delivered “in camera” to the court for review, prior to dissemination to the defense. I do not generally have a problem with this type of resolution because if I am not given the information I request that the “in camera” records be sealed for appellate purposes. If the court refuses the request for an “in camera” review as a proposed solution you will need to perfect the record for purposes of appellate review citing to the court that the refusal to allow you to have access in any form to this information is a violation of your client’s constitutional due process protections under the Texas and U.S. Constitution. Further, the court’s refusal to allow you to investigate this matter may render your legal assistance ineffective in violation of the 6th amendment to the U.S. Constitution and the standards of review for effective assistance of counsel under Strickland v. Washington.

Once I have received the offense report and other discoverable materials from the State, it is at that point that I will make a list of potential documents and information which I believe need to be collected and reviewed. This list of documents and information which need to be collected may vary based on the type of sexual assault with which the client is charged, and the circumstances surrounding the allegation. Abuse Case Involving a Child – General Documents to Collect 1. 2. 3. 4. 5. 6.

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School Records Counseling/Therapy Records CPS Records Psychological Records Medical and Hospital Records Court Records

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

You are only limited by your creativity in drafting a pre-trial motion requesting some form of relief from the trial court. However, as discussed above it has to have a purpose, be detailed, give the court authority, and seek a specific result. I would never file a motion, discovery related or otherwise, as a perfunctory motion that serves no purpose.

Abuse Case Involving an Adult – General Documents to Collect 1. 2. 3. 4. 5.

Counseling/Therapy Records Court Records Psychological Records Medical and Hospital Records Employment Records

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You can file a general and specific Motion for Discovery to collect this type of information. I do not always file a general Motion for Discovery, unless I am having difficulty getting information from the State or there are gaps in the information I have received. Once I have reviewed the discoverable materials and offense report I will begin to draft and file specific or supplemental Motions for Discovery, where I am requesting certain detailed information from the State. In following up on this issue with a specific or supplemental Motion for Discovery, I will request that the information be produced, but if the information is not in the State’s possession or is not readily obtainable by the State, I will request that the Court order that I shall be allowed to subpoena said records “in camera” to the Court for review. On occasions certain entities will not respond to a subpoena request for records, but if I attach a copy of the Court’s Order stating I can subpoena the records “in camera”, I will generally receive the records after the Court’s “in camera” inspection is complete. Procedurally, if the Court refuses to give you the subpoenaed records after the “in camera” inspection, you need to object to the Court’s decision regarding this issue and have all the records marked as a sealed Defendant’s Appellate Exhibit. A specific Motion for Discovery can be a useful tool in pointing out to the State that there are problems with the case, and it requires additional investigation. This lack of information or an incomplete investigation can lead to productive plea negotiations and a potential resolution of the case, without having to proceed to trial. Your efforts in attempting to draft a general or specific Motions for Discovery should mirror your work in subpoenaing any necessary records or information. As such, always follow up your Motion for Discovery with any applicable subpoena request. I do not consider these efforts duplicative or repetitive, but thorough. One way or another you need to get this information, as your defense strategy will likely depend on it. As you begin to collect and gather information, depending upon the circumstances of the client’s case, you will invariably need to retain an investigator and/or certain experts. In court appointed cases or those cases in which you may have been retained but your client has no other available resources for an investigator or expert(s), you will need to request funds from the Court to retain these types of professionals. I will almost always file motions for experts “Ex Parte” as motions filed in this regard will have some information which can infer or tip your trial strategy. I will not usually file a motion to authorize funds for an investigator “Ex Parte”, because I do not believe it involves trial strategy, but this motion can also be filed “Ex Parte” so long as you illustrate to the Court it involves an issue concerning your trial strategy. From a practical standpoint I do not file any motions requesting funding for an investigator “Ex Parte”, because your investigator is usually out in the community following up with witnesses and sometimes is getting information directly from law enforcement personnel. If the Court denies any “Ex Parte” motion filed by you requesting investigator or expert assistance, you will need to request that the 47 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Court provide you a hearing outside the presence of the State, such that you can enumerate on the record the reasonableness and necessity of your request. Use of Subpoenas for Certain Information Arguing Against the State’s Motion to Quash

Sec. 420.074. Disclosure of Privileged Communications or Other Information in Criminal Proceeding. (a) Subject to the provisions of this chapter, not later than the 30th day before the date of the trial, a defendant in a criminal proceeding may make a motion for disclosure of a communication or record that is privileged under this chapter. The motion must include a supporting affidavit showing reasonable grounds to believe the privileged communication or record contains exculpatory evidence. (b) The defendant shall serve the motion on the attorney representing the state and the person who holds the privilege with regard to the communication or record at issue. (c) The court shall order the privileged communication or record to be produced for the court under seal and shall examine the communication or record in camera if the court 48 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

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Within the last several years it has become increasingly more difficult to subpoena records of the complaining witness without continual interference from the State. I have experienced on numerous occasions situations where the State has filed motions to quash my subpoena requests for school records, therapy and counseling records, medical records, mental health records, institutional records, and sometimes even CPS records although this is usually a rare occurrence. Recently, the State has used the motion to quash to inform the court that by subpoenaing these types of records I am abusing the subpoena process and violating the constraints under the Texas Code of Criminal Procedure as am going on a fishing expedition. Further, the State is arguing that I am violating Chapter 420 of the Texas Government Code in seeking this type of confidential information. If you are not familiar with Chapter 420 of the Government Code, I would get acquainted with it fairly quickly. Chapter 420 of the Government Code provides a method by which defendant’s in criminal cases must use to seek confidential information of the alleged victim, or as referenced in the various applicable sections of Chapter 420 the “survivor”. This is a new statutory provision and went into effect in September of 2021. It basically requires defense attorneys to navigate multiple obstacles in filing a motion to seek this information that must be sworn to. Moreover, it requires us to somehow show the court that we know there is a reasonable grounds to believe that the supposed confidential information contains exculpatory information. Section 420.074 of the Government Code can invariably be used in various cases as it pertains to what is being classified as a “privileged communication” in a criminal proceeding. I have seen this section used by prosecutors in both family violence and sexual assault cases. The example detailed below was a sexual assault case in which we were seeking confidential counseling records, but the manner in which we attacked this issue is in my opinion universally applicable to any type of case involving a situation where the State is attempting to block defense counsel from obtaining certain privileged or confidential information of the complaining witness.

finds by a preponderance of the evidence that: (1) there is a good-faith, specific, and reasonable basis for believing that the privileged communication or record is relevant, material, and exculpatory upon the issue of guilt for the offense charged; and (2) the privileged communication or record would not be duplicative of other evidence or information available or already obtained by the defendant.

Family Violence | AFV

(d) The court shall disclose to the defendant and to the state only the evidence that the court finds to be exculpatory on the issue of guilt for the offense charged. The question is, how can you make a showing of reasonable grounds that this confidential information is exculpatory, when you have not had the opportunity to review same. It is the horse before the cart argument in a nutshell. I do not know how or why this was passed, other than some survivor groups lobbied for it under the auspices of re-victimization of the survivor, but this statute presupposes and is directly contrary to the defendant’s presumption of innocence. Moving forward in addressing this issue, given the accused right to a fair trial, due process of law, and the presumption of innocence, we are left with the basic premise of how we ended up in a situation where we have a statute that potentially protects exculpatory and impeachment evidence as it concerns a complaining witness, in spite of the accused constitutional rights which are involved. A couple of years ago, I moved forward in this process by investigating and gathering the information available on CAC centers and their organizational structure. In my jurisdiction, the CAC center is in Kerrville and is ostensibly connected to the Hill Country Crisis Council, which oversees the counseling and any necessary supporting services for sexual and physical abuse victims. It is recommended that you research your local CAC center so that you can have a basic understanding of their structure, so that when you start requesting this type of information you can logically connect the CAC interview process with a staff counselor at the local crisis shelter. Any statements made to a crisis counselor concerning a specific set of circumstances pertaining to your client’s current criminal charges, while they may be confidential under Texas Government Code Sec. 420.074, should be discoverable and this issue alone potentially puts this statute at odds with TCCP 39.14. To restrict your investigative methods and procedures, which limits the information you can potentially obtain, creates a set of circumstances that violates the client’s presumption of innocence and his constitutionally protected right to effective assistance of counsel and due process of law. Again, a copy of the motion used to obtain this type of information is provided in the document appendix to this paper. Ex Parte Motions As you begin to collect and gather information, depending upon the circumstances of the client’s case, you will invariably need to retain an investigator and/or certain experts. In court appointed cases or those cases in which you may have been retained but your client has no other available resources for an investigator or expert(s), you will need to request funds from the Court to retain these types of professionals. I will almost always file motions for experts “Ex Parte” as motions filed in this regard will have some information which can infer or tip your trial strategy. I will not usually file a motion to authorize funds for an investigator “Ex Parte”, because I do not believe it involves trial strategy, but this motion can also be filed “Ex Parte” so long as you illustrate to the Court it involves an issue concerning your trial strategy. From a practical 49 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

standpoint I do not file any motions requesting funding for an investigator “Ex Parte”, because your investigator is usually out in the community following up with witnesses and sometimes is getting information directly from law enforcement personnel. If the Court denies any “Ex Parte” motion filed by you requesting investigator or expert assistance, you will need to request that the Court provide you a hearing outside the presence of the State, such that you can enumerate on the record the reasonableness and necessity of your request. As a matter of being thorough in drafting any “Ex Parte” motion for an investigator or expert, you should articulate with specificity the following:

Generally, I have not had to file sworn “Ex Parte” motions in order to receive requested funding, but I do notify the Court if they intend to reduce or deny the requested funding that I will require an “Ex Parte” hearing to preserve same for purposes of appeal. It has been my experience that this request will normally satisfy the Court’s inquiry regarding same, and I have not had to present further information or swear to the motion 50 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

Family Violence | AFV

1. You expect the State to have available to it and to present at trial certain testimony attributed to an expert or investigator, which you as legal counsel are not qualified to interpret or rebut for that purpose; and 2. How the specific professional services you are seeking are necessary to your client’s defense; and 3. Elaborate on the necessity and reasonableness, given the circumstances of your client’s case, for you to have access to these professional services for assistance in trial preparation and through trial; and 4. Detail to the Court that if you are not provided with access to the specific type of professional services requested, you may not be able to provide your client with effective assistance of counsel while investigating the facts of your client’s case and through trial; and 5. When detailing the funding required, you should put in the motion, based on your conversation with qualified experts, what you expect an initial retainer to be, include a reference to the proposed expert’s hourly rate and number of hours estimated (if applicable), and ultimately the estimated total expense of these types of services through trial; or 6. If you have a specific professional in mind to provide the services you require, put in the individual’s name, their professional title, and their fee structure. (I will sometimes attach their CV and fee estimate as an exhibit to the motion) 7. In order to properly preserve error, this type of “Ex Parte” motion is required to be sworn to or have an attached affidavit supporting same. The supporting affidavit can be signed by the expert you intend to use which specifically describes the services to be provided and necessity of the services requested. If you request and receive a hearing on an “Ex Parte” motion for funding, this satisfies the requirement that it otherwise be sworn to or supported by affidavit. However, whether you have previously sworn to the motion or support same by affidavit, I would insist that the court schedule a “Ex Parte hearing regarding same, such that you can elaborate and expand upon your rationale for the requested funding.

itself to have same granted. However, if you are practicing before a Judge who is not prone to grant funding requests in non-capital cases, then I believe that you must swear to this type of motion or support same with an affidavit from your chosen expert and set same for an “Ex Parte” hearing before the Court. It is my opinion that how you initially present an “Ex Parte” motion for funds to the Court is tactical decision you must make as the trial attorney based on your relationship and prior history with Court.

Family Violence | AFV

Over the last couple of years, I have had several cases in which it has been necessary to file a Motion to Quash. Specifically, those motions have dealt with the issue of recklessly, as that specific term is sometimes used in an indictment or the fact that the indictment does not charge the offense in ordinary and concise language, such that your client has notice of that which he or she finds themselves charged with. This issue does not come up very often in sexually related cases, because the conduct in question is alleged as intentionally and knowingly, and not recklessly. However, there are some situations in which the sexually related case is accompanied with an aggravated assault count in which a reckless form of conduct is alleged. There is also the situation where based upon the convoluted nature of the allegation, the State has a difficult time articulating in the indictment just how your client committed a criminal offense, such as a case where an attempted offense is alleged. The purpose of a motion to quash is to give notice to the Court that the State’s indictment does not provide the degree of certainty necessary to give the Defendant notice of the particular offense with which he or she is charged. Further, an indictment must specify the manner and means by which the Defendant has committed the offense. I would leave you with this thought regarding filing a motion to quash, if after reviewing the State’s indictment against your client you do not have a clear and concise understanding of the following, you need to file a motion to quash: 1. Who your client accused of assaulting (child case may involve the use of a pseudonym); and 2. The general circumstances of the accusation; and 3. The manner and means by which your client is alleged to have committed the assault (ie: use of a weapon, striking with hands or feet, or threats made).

X. Rules & Procedures Texas Rules of Evidence Which can Impact Assault Family Violence Cases: 1. Rule 403 [Relevance Balancing Test] You can and should request a gatekeeper hearing outside of the presence of the jury regarding the prejudicial effect of certain types of evidence, should the Court have overruled your basic objection as to relevance under Rule 401. You should object and explain to the Court that if the Court has found the evidence to be relevant, you would further move to exclude the evidence under Rule 403 in that the probative value of the evidence is 51 | P a g e

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substantially outweighed by its prejudicial effect. You can require that the Court engage in a balancing test based upon an objection made under Rule 403. See Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999). Gigliobianco v. State, outlines the 6 distinct issues that the Court must balance and consider under a 403 analysis, as follows: (a) Inherent probative force of the proffered evidence along with (b) Proponent’s need for the evidence against (c) Any tendency of the evidence to suggest decision on an improper basis (d) Any tendency of the evidence to confuse or distract the jury from the main issues of the case, (e) Any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (f) Likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. See Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006). 2. Rule 412 [Evidence of Previous Sexual Conduct – Rape Shield Rule]

There are exceptions to this general rule of exclusion such as: a. Evidence is necessary to rebut or explain scientific or medical evidence offered by the State (i.e.: the tears to the anus were due to another sexual encounter). b. Evidence is offered on the premise to establish the previous sexual behavior between the accused and the victim, for purposes of establishing consent. Note: If the state offers testimony to establish the relationship between the parties, you should certainly attempt to introduce this type of evidence because the State has opened the door. c. Motive or bias of the alleged victim. d. Constitutionally required, and e. Probative value outweighs the danger of undue prejudice. If you intend to introduce this type of evidence, prior to questioning the alleged victim, you must inform the court and request a hearing outside of the presence of the jury. The Court will then conduct an “in camera” hearing, recorded by the court reporter, to determine what if any evidence of this type will be admissible, and will limit questioning accordingly. After 52 | P a g e

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Family Violence | AFV

This rule has limited applicability in an Assault Family Violence case but can apply when the assaultive allegations are coupled with other allegations including rape. In an Assault Family Violence case this rule will usually only apply in those cases which involve adults. In those instances, generally speaking reputation/opinion evidence and evidence of specific instances of sexual conduct are not admissible.

concluding this hearing, the Court will seal the entire contents of the “in camera” hearing which was conducted for appellate purposes, and the record shall be sealed. If you are limited or otherwise prohibited from questioning the alleged victim under Rule 412, you must make a record and object, and require the Court to conduct a mandatory “in camera” hearing, and as such, you have effectively made the Court a gatekeeper of this evidence for purposes of appeal. 3. Rule 703 [Expert Opinions] An expert can rely on basically any evidence including hearsay evidence, which would otherwise be inadmissible, in forming the basis of an opinion, so long as it is the type of information, facts or data reasonably relied upon by experts in a particular field. 4. Rule 704 [Expert Can Give an Opinion on an Ultimate Issue] If the Expert gives an opinion regarding an ultimate issue in the case, to be decided by the jury (i.e.: causation), it is not objectionable because it involves an ultimate issue reserved to the jury. Note: While I understand the meaning of this rule, if the prosecutor asks an expert did my client sexually assault that child or person, I am going to object because that goes beyond the ultimate issue itself and is an attempt to usurp the jury’s function. This objection may not work, but fundamental fairness and due process of law should require the Court to not allow such testimony as unfairly prejudicial.

Family Violence | AFV

5. Rule 705 [Gatekeeper Hearing] The Court, upon request generally in the form of a pre-trial motion and/or notice, require that the expert appear and testify under a type of voir dire process, outside the presence of the jury, regarding their opinion and the underlying facts and data supporting said opinion. For the expert to be allowed to testify as to their opinion, it must be established that there is a sufficient basis for their opinion, otherwise the opinion is inadmissible. Further, the Court can conduct a balancing test when the underlying facts and data would be otherwise inadmissible, if the danger exists that they will be used for a purpose other than as an explanation or support for the expert’s opinion is outweighed by their unfairly prejudicial value. In this instance, you can request a limiting instruction. Note:

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Keep in mind that the Texas Rules of Evidence, are in fact rules of exclusion, with some exceptions. In cases involving sexual assault or aggravated sexual assault you need to have a firm command of these rules of evidence, and the applicable case precedent, to successfully defend your client and preserve error for appellate purposes.

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

6. Rules 404 (b) [Extraneous Offenses] Other crimes, wrongs, or acts are not admissible to prove the character of a person to show action in conformity therewith. However, this type of evidence may be admissible for limited purposes such as to prove (1) motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity, (8) absence of mistake or accident. Must request notice and/or file a motion requesting notice. If you file a motion requesting notice you must get it ruled on and request a certain time frame in which to receive this information in advance of trial. You will need this time to investigate the nature of the alleged extraneous offenses. Even if the state gives proper notice, you must make the State make an appropriate and sufficient proffer to the Court regarding the extraneous conduct allegation. Always request a hearing outside of the presence of the jury such that you can cross examine the State’s witnesses regarding this proffer of proof. The Court must make a finding, at the conclusion of this proffer, that the jury could find that the extraneous conduct was committed beyond a reasonable doubt. You must require the Court to make this finding on the record, and subject to your continued objection. You should also request that the State premise on which basis and for what purpose under 404(b) the State requesting that the jury consider this evidence. Once the evidence and/or testimony is admitted, over your objection, you must request a limiting instruction regarding the evidence and/or testimony. If you do not follow these steps in some form, you will not preserve your objection for purposes of appeal, and you will not be entitled to a jury instruction regarding the extraneous conduct. Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008) Extraneous offenses type evidence may be admissible to rebut defensive theories of fabrication, frame up, or retaliation. Therefore, be aware of fact if you believe the child is lying because the mother is retaliating against you for some reason, you may have just opened the door to an otherwise inadmissible extraneous act. Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005) Leaving a false impression with the jury. If a defendant makes a general statement like I would never have sex with a minor, he may have opened the door to a relevant act or character trait. An extraneous act which tends to rebut such testimony may be admissible to impeach the defendant. However, when evidence of this nature is introduced at trial the jury may not consider it as substantive of the charged offense, but only as evidence that the defendant misrepresented himself. 54 | P a g e

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Important Cases:

Note: Ultimately, this rule of evidence is used in conjunction with TCCP 38.37 in child sexual assault cases, to introduce all types of extraneous acts to leave the impression with the jury that your client did it once, so therefore it is logical to assume he did it again. Our recourse is to continue to object and hold the State to its burden regarding the proffer of testimony and/or evidence and require the Court to do its job in assessing the credibility of the testimony and/or evidence and give the Defendant an appropriate limiting instruction. Articles of TCCP Which can Impact Assault Family Violence Cases 1. TCCP 38.07 [Testimony in Corroboration of Victim of Sexual Offense] This provision provides that a conviction for Sexual Assault, and Aggravated Sexual Assault is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is said to have occurred. This provision does not apply to on offense where the alleged victim is 17 years of age or younger; a person 65 years of age or older; or a person 18 years of age or older who because of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person’s need for food, shelter, medical care or protection from harm.

Family Violence | AFV

2. TCCP 38.071 [Testimony of Child who is Victim of Offense] This provision provides the Court with guidance regarding the hearing to conduct in which the court determines that a child who is less than 13 years of age would be unavailable to testify in the presence of the defendant about an allegation regarding Indecency with a Child, Sexual Assault, and Aggravated Sexual Assault. There are other criminal offenses to which this section applies but have no application in this paper. This provision basically provides the Court with the parameters and guidelines by which it must determine during a hearing how and if the recorded statement of a child, made before the indictment is returned or complaint filed, is admissible into evidence. This provision allows for the child to testify in another room other than the courtroom and be viewed by the jury. This provision also allows for the propounding of written interrogatories to the child. If the Court determines that the testimony of the child is to be taken under Sections 3 or 4 of this article or if the Court finds that the testimony of the child taken under Subsection 2 or 5 of this article is admissible into evidence, the Court may not require the child to testify in Court at the proceeding for which the testimony was taken, unless the Court finds there is good cause. There are additional provisions for how the questioning and cross examination is to take place, and if the child is required to testify in Court, the reasonable steps necessary to protect the child’s psychological well-being including allowing the child to testify via closed circuit video. Note: 55 | P a g e

Be aware of the confrontation clause if this issue is raised, and object and require the Court to conduct the required hearing and argue that any type

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

of accommodation which does not provide you with the ability to adequately cross-examine the alleged child victim violates the tenants of the confrontation clause of the U.S. Constitution. Coronado v. State, 351 S.W. 315 (Tex. Crim. App. 2011) A list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is not a constitutional substitute for live cross-examination and confrontation. (Videotape procedures under Art. 38.071, §2, with use of written interrogatories in lieu of live testimony and cross-examination, did not satisfy Crawford v. Washington). 3. TCCP 38.072 [Hearsay Statement of Certain Abuse Victims] The outcry statement is the statement made by the child regarding the alleged assault to the first person 18 years of age or older describing in sufficient detail the alleged offense. The statement must be otherwise admissible under Article 38.37 of TCCP and Rules 404 and 405 of TRE. This article applies only in cases in which the child which makes the statement is less than 14 years old. A statement which meets the description as provided for under Subsection (a) of 38.072 is not inadmissible as hearsay if the State gives notice of its intent to use said statement, provides the subject matter of the statement, and by whom the statement is made. The Court shall conduct a hearing outside of the jury’s presence to determine if the statement is reliable. Garcia v. State, 792 S.W.2d 88 (Tex. Crim. App. 1990) The outcry witness is the first person 18 years of age or older, to whom the child makes a statement that is some discernable manner describes the alleged offense. You do not necessarily need to request notice of the outcry, as it is specifically required by statute if the State intends to use such a statement.

4. TCCP 38.37 [Evidence of Extraneous Offenses or Acts] This provision under Sec. 1 allows the State to use evidence of other crimes, wrongs, acts, if committed against a child victim less than 17 years of age for its bearing on relevant matters, including the state of mind of the defendant and the child; and the previous and subsequent relationship existing between the defendant and the child. This is in addition to and in some cases circumvention of TRE 404 and 405. This is the way the State attempts to circumvent the requirements of TRE 404 (b) and its limited use regarding other crimes, wrongs, or acts, which may have been committed by the Defendant. You should always request notice of extraneous offenses by way of a filed notice request and/or motion. If you file a motion requesting notice you must get a ruling and order stating how many days prior to trial, must the State give you notice of said extraneous acts.

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Note:

Under Sec. 2 of this article, if the State gives you at least 30 days’ notice of its intent to introduce evidence that the defendant has committed a separate criminal offense which is listed under Sec. 2 ((a) (b)) – (basically all listed offenses which are sexually related offenses), they are entitled to admit same into evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. This is basically the kitchen sink approach when it comes to extraneous offenses and their admissibility at trial. The hearing must be conducted outside the presence of the jury for the Court to determine whether a jury could find that the separate offense was committed beyond a reasonable doubt. Note:

Always object to any evidence coming in under this article and request the appropriate limiting instruction. Also, you should object to relevance under TRE 403, after you have sufficiently objected to this evidence on other grounds.

Family Violence | AFV

5. TCCP 38.371 [Evidence in Prosecutions of Certain Offenses Involving Family Violence] Between this article and TCCP 38.37, the State can put our clients to trial over any allegation, whether they have requisite proof or not because they have the ability to convict a defendant of the charged offense, because he has previously been convicted of a similar type of criminal offense. This statute can become troublesome as it applies to all cases involving assault, and aggravated assault. The problem with this article is that the State may now introduce this type of evidence, subject to the TRE or any other applicable law, and so long as it would assist the jury. While this provision does not allow the presentation of character evidence that would be otherwise inadmissible under the TRE or other applicable law, either party may offer testimony or other evidence of all relevant facts and circumstances that would assist the jury in determining whether the defendant committed the offense, including testimony or evidence regarding the nature of the relationship between the defendant and the alleged victim. Note:

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The applicability of this specific article will not likely come up very often in a case involving sexual or aggravated sexual assault, unless the State has charged in a multi count indictment, allegations of sexual assault and aggravated assault. The jury can only consider this type of evidence for determining those acts as alleged in said multi-count indictment if one of the counts involves a type of family violence assault. You may want to consider requesting that the aggravated and/or other type of assaultive offense be severed from the allegations regarding sexual assault on this very basis. This is because, regardless of the limiting instruction given or

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

the jury instruction requested, information of this nature if admitted will likely be considered by the jury for all purposes. Note:

I would request notice similar to the manner in which notice is requested under TRE 404 (b) and TCCP 38.37. I would also require the State to make a sufficient proffer outside of the jury’s presence, and request that the State determine if a jury could find that the defendant committed the alleged extraneous act beyond a reasonable doubt.

You should become very familiar with these articles under the TCCP, as they can be extremely pertinent and relevant in defending an Assault Family Violence allegation.

XI. Collateral Consequences of a Finding of Family Violence & Assault Family Violence Conviction While many of the consequences surrounding an arrest conviction of Assault Family Violence are obvious, you still need to be aware of the repercussions to this type of situation which results in a conviction and subsequent finding of family violence. Collateral consequences are always the result of an AFV conviction, and some of those include the following: 1.

Protective Orders

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In addition to being arrested for Assault Family Violence your client may find himself in a situation where the local prosecutor or even a private attorney, if the assault is connected to a divorce or child custody situation, will seek a protective order. The party seeking a protective order may end up initially consulting with the local family violence shelter, legal aid, county or district attorney’s office, or hire a private attorney. There is even a DYI protective order kit available online at TexasLawHelp.org. As such, there is not a lack of resources for alleged victims seeking this type of assistance or leverage. If retained early in the process and the alleged victim is seeking a protective order, you will need to make sure you make an appearance on your client’s behalf and treat this process as a type of preliminary hearing. In most situations, your client should not testify at this stage of the process, but you should do everything you can to avoid a finding of family violence. This is because a finding of family can in some instances result in your client’s visitation and access to their children being restricted and supervised, and have other collateral consequences as discussed below. A protective order is usually sought for a period of two years or less, but in some instances, it can be sought for a longer period of time based upon the discretion of the Court if it makes the appropriate findings under Texas Family Code § 85.025 (a-1). Protective Orders of this nature are sought in civil proceedings, and civil costs can be assessed. Be aware that this may include attorneys fees.

Duration of Protective Order - Texas Family Code § 85.025 (a) Except as otherwise provided by this section, an order under this subtitle is effective: (1) for the period stated in the order, not to exceed two years; or (2) if a period is not stated in the order, until the second anniversary of the date the order was issued. (a-1) The court may render a protective order sufficient to protect the applicant and members of the applicant's family or household that is effective for a period that exceeds two years if the court finds that the person who is the subject of the protective order: (1) committed an act constituting a felony offense involving family violence against the applicant or a member of the applicant's family or household, regardless of whether the person has been charged with or convicted of the offense; (2) caused serious bodily injury to the applicant or a member of the applicant's family or household; or (3) was the subject of two or more previous protective orders rendered: (A) to protect the person on whose behalf the current protective order is sought; and

Family Violence | AFV

(B) after a finding by the court that the subject of the protective order: (i) has committed family violence; and (ii) is likely to commit family violence in the future. (b) A person who is the subject of a protective order may file a motion not earlier than the first anniversary of the date on which the order was rendered requesting that the court review the protective order and determine whether there is a continuing need for the order. (b-1) Following the filing of a motion under Subsection (b), a person who is the subject of a protective order issued under Subsection (a-1) that is effective for a period that exceeds two years may file not more than one subsequent motion requesting that the court review the protective order and determine whether there is a continuing need for the order. The subsequent motion may not be filed earlier than the first anniversary of the date on which the court rendered an order on the previous motion by the person. (b-2) After a hearing on a motion under Subsection (b) or (b-1), if the court does not make a finding that there is no continuing need for the protective order, the protective order remains in 59 | P a g e

Assault Family Violence Categories & Types Dealing with Procedures, Rules & Protective Orders 37th Annual Rusty Duncan Advanced Criminal Law Course

effect until the date the order expires under this section. Evidence of the movant's compliance with the protective order does not by itself support a finding by the court that there is no continuing need for the protective order. If the court finds there is no continuing need for the protective order, the court shall order that the protective order expires on a date set by the court. (b-3) Subsection (b) does not apply to a protective order issued under Subchapter A, Chapter 7B, Code of Criminal Procedure. (c) If a person who is the subject of a protective order is confined or imprisoned on the date the protective order would expire under Subsection (a) or (a-1), or if the protective order would expire not later than the first anniversary of the date the person is released from confinement or imprisonment, the period for which the order is effective is extended, and the order expires on: (1) the first anniversary of the date the person is released from confinement or imprisonment, if the person was sentenced to confinement or imprisonment for more than five years; or (2) the second anniversary of the date the person is released from confinement or imprisonment if the person was sentenced to confinement or imprisonment for five years or less. 2.

Presumption of Managing Conservator

Presumption That Parent to Be Appointed Managing Conservator - Texas Family Code § 153.131 (a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. (b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.

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If the Court makes a finding of family violence in a disposition of an Assault Family Violence case or a protective order hearing, your client may find himself automatically disqualified from being considered to be appointed joint managing conservators of their children under Texas Family Code § 153.131 (b).

Family Violence | AFV

History of Domestic Violence or Sexual Abuse – Texas Family Code § 153.004 (a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. (b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child. A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child. (c) The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator. (d) The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that: (1) there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit; or (2) the parent engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent’s child. (d-1)Notwithstanding Subsection (d), the court may allow a parent to have access to a child if the court: (1) finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and (2) renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent and that may include a requirement that: (A) the periods of access be continuously supervised by an entity or person chosen by the court; (B) the exchange of possession of the child occur in a protective setting; (C) the parent abstain from the consumption of alcohol or a controlled substance, as defined by Chapter 481, Health and Safety Code, within 12 hours prior to or during the period of access to the child; or (D) the parent attend and complete a battering intervention and prevention program as provided by Article 42.141, Code of Criminal Procedure, or, if such a program is not available, complete a course of treatment under Section 153.010. (e) It is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present child neglect or abuse or family violence by: (1) that parent; or (2) any person who resides in that parent’s household or who is permitted by that parent to have unsupervised access to the child 61 | P a g e

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during that parent’s periods of possession of or access to the child. (f) In determining under this section whether there is credible evidence of a history or pattern of past or present child neglect or abuse or family violence by a parent or other person, as applicable, the court shall consider whether a protective order was rendered under Chapter 85, Title 4, against the parent or other person during the two-year period preceding the filing of the suit or during the pendency of the suit. (g) In this section: (1) “Abuse” and “neglect” have the meanings assigned by Section 261.001. (2) “Family violence” has the meaning assigned by Section 71.004. As is evident from a perusal of these sections of the Texas Family Code, one can gather that a finding of family violence and/or a conviction of Assault Family Violence, can render a healthy and future ongoing relationship between your client and their children unlikely. I handle a fair number of divorces and child custody disputes and I can tell you that a finding of family violence in any forum can make it extremely difficult for your client’s future relationship with their children. Once a finding such as family violence is made or a conviction of Assault Family Violence is rendered make no mistake that in a contested divorce or child custody dispute, the opposing side will use this information at will to disturb and disrupt your client’s relationship with his children. Again, if at all possible, in defending these types of cases you should avoid the conviction and if possible, any family violence finding. Further, it is possible that this type of conviction may prohibit you from adopting children in the future. 3.

Right to Possess of Firearm

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Family Violence | AFV

In Texas, if you are convicted of Assault Family Violence, you will forfeit your right to possess a firearm under Texas law for a period of 5 years after you have been discharged or released from the penalty of your conviction (ie: discharge your jail-prison sentence or complete your probation). If your resultant conviction is a felony, you may not possess a firearm for at least 5 years from your discharge from the offense (ie: completion of your prison sentence or probation), and then only in your home. This is the restraint exercised under the Texas Penal Code for possession of a firearm following a conviction for Assault Family Violence. Under federal law, you cannot possess a firearm under any circumstances if you have been convicted of Assault Family Violence as provided for under United States Code § 922 (g). This type of conviction and/or finding is the gift that keeps on giving, such is the reason you must be very aware of the consequences that befall the client when convicted of this kind of criminal offense. In Texas, this type of development can literally change the way an individual has to live, as their ability to hunt with a firearm is restricted and prohibited. Possessing a firearm after this type of criminal conviction may lead to subsequent and more serious criminal charges being filed both at a state and federal level. PLEASE NOTE: THIS AREA OF THE LAW IS IN FLUX DUE TO BRUEN. New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). SCOTUS is still considering this issue in US v. Rahimi, a 5th Circ. which was argued in November of 2023.

Lose Your Job

In certain professions your client if convicted of Assault Family Violence may lose their livelihood. If you are a teacher, nurse, or doctor you may be ineligible to hold that type of position with a conviction for Assault Family Violence. Those types of professionals will need to contact their licensing board to determine what if any consequences they may be subject to, including the loss of their license, for a subsequent Assault Family Violence conviction. Further, depending upon the disposition of the case there are certain professional licenses that are at risk should the client be involved in a case involving an allegation of Assault Family Violence. In the event of an arrest for Assault Family Violence, most of these consequences and procedures which apply and must be addressed with the various licensing agencies in Texas, are on their websites. You and your client should carefully review those procedures and licensing regulations when considering how this arrest and a subsequent conviction could affect your client’s future employment opportunities. This is why it is critical, even in a case involving bad facts, to thoroughly investigate all options of resolution which do not involve a final conviction or finding of family violence.

Family Violence | AFV

Permanent Criminal History

If convicted of Assault Family Violence your client will have a permanent criminal record. Even in the event of your client receiving a deferred disposition for their Assault Family Violence case, it will be a permanent record of the deferred disposition because this type of criminal offense (even at the misdemeanor level) is ineligible to be non-disclosed in the future. Any type of conviction and finding of family violence, even for a Class C misdemeanor Assault Family Violence matter, can be used by the State to enhance any other future allegations involving Assault Family Violence. As such, your client that was convicted of Assault with an affirmative finding of Family Violence on a Class C misdemeanor offense, for which they paid a fine and went on their way, allows the State to file subsequent allegations of Assault Family Violence as a felony. It is a slippery slope because of the nature of the disposition and the consequences of that disposition coupled with the affirmative finding of family violence. Unlawful Possession of Firearm – Texas Penal Code § 46.04 (a) A person who has been convicted of a felony commits an offense if he possesses a firearm: (1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or (2) after the period described by Subdivision (1), at any location other than the premises at which the person lives. (a-1) A person who is a member of a criminal street gang, as defined by Section 71.01, commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft.

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Unlawful Possession of Firearm – United States Code § 922 (g) (g) It shall be unlawful for any person: (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; (2) who is a fugitive from justice; (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)); (4) who has been adjudicated as a mental defective or who has been committed to a mental institution; (5) who, being an alien— (A) is illegally or unlawfully in the United States; or 64 | P a g e

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Family Violence | AFV

(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of: (1) the date of the person’s release from confinement following conviction of the misdemeanor; or (2) the date of the person’s release from community supervision following conviction of the misdemeanor. (c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Subchapter A, Chapter 7B, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order. (d) In this section, “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code. (e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (a-1), (b), or (c) is a Class A misdemeanor. (f) For the purposes of this section, an offense under the laws of this state, another state, or the United States is, except as provided by Subsection (g), a felony if, at the time it is committed, the offense: (1) is designated by a law of this state as a felony; (2) contains all the elements of an offense designated by a law of this state as a felony; or (3) is punishable by confinement for one year or more in a penitentiary. (g) An offense is not considered a felony for purposes of Subsection (f) if, at the time the person possesses a firearm, the offense: (1) is not designated by a law of this state as a felony; and (2) does not contain all the elements of any offense designated by a law of this state as a felony.

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))); (6) who has been discharged from the Armed Forces under dishonorable conditions; (7) who, having been a citizen of the United States, has renounced his citizenship; (8) who is subject to a court order that— (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

Family Violence | AFV

(9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

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X. Evidence Based Prosecution Once upon a time family violence cases were frequently dismissed at the request of the Complainant. Since that time legislatures have created a separate family violence classification of offenses with enhanced penalties. Prosecutor’s offices created specialized Family Violence Divisions staffed by grant funded positions providing even modest sized offices with attorneys, investigators, counselors, and support staff. Evidence based prosecution is based on the realization that the Texas Code of Criminal Procedure provides the sole avenue to dismiss a criminal case and the discretion to do so rests solely at the discretion of the Prosecutor. A family violence case will be pursued, perhaps without the cooperation of the Complainant, if the remaining admissible evidence provides a reasonable chance for conviction. Prosecutors cite the Complainant’s potential reliance on the accused and their belief that the nature of relationships provided abusers significant control over their mates. Prosecutors will accept affidavits of non-prosecution and put them in their file, but they are dispositive of nothing. Bright Idea

The existence of grant-based funding provides the possibility for litigation/mischief. The existence of grants is irrelevant to the State’s decision to prosecute; subpoena or admission efforts are probably pointless. However, if the Prosecutor provides 702 TRE notice of their intent to call a grant funded witness, whether a counselor, nurse, or program director, any renumeration received is admissible to show bias. Russell v. Young, 452 S.W.2d 434, (Sup. Ct. Tx., 1970) Study Their Playbook Evidence based prosecution requires evidence. Understand how the prosecution will attempt to build their case without the participation of the Complainant. First, most family violence prosecutions are the result of a 911 call. If made by the complainant, the 911 call is typically admitted, Davis v. Washington, 547 U.S. 813 (2006). as an excited utterance or present sense impression and is typically non-testimonial for Strickland v. Washington 466 U.S. 668 (1984) purposes.

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Family Violence | AFV

Applications for the renewal of family violence grants typically require the applicant to submit statistics from the prior grant year. Required data typically includes: the number of family violence arrests, cases filed, cases rejected, cases dismissed, percentage of cases resulting in a conviction, and the number of cases tried.

Statements are nontestimonial for purposes of the Confrontation Clause when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. The prosecution will attempt to mine this call for evidence beyond just the information provided to the dispatcher. They will attempt to thin-slice the caller’s demeanor, “was she having trouble breathing, scared, crying, coughing, or complaining of pain?”2 From the prosecutor’s perspective, “it will be a rare occasion that the testimony of a victim from the witness stand, cooperative or not, will capture the genuine emotion captured on that (911) call”. Medical Records: If medical assistance was provided the Prosecutor will obtain the records. Statements made to treating health care professionals are typically admissible as a statement made of the purpose of medical diagnosis TRE 804(4) The context of all statements provided to healthcare workers should be contextually examined for potential Strickland attack. If police officer is present at the treatment scene and participates in the interview the statement could potentially be rendered inadmissible.

Family Violence | AFV

Photographs: Police Academy curriculum typically include at least a day of Family Violence specific training. From the cadet level police have taught the necessity of photographing family violence scenes. The photographs will be admissible and irrelevant to the cooperation of the Complainant. Police are taught how to photograph injuries and to look for relevant evidence at the scene. Police look for displaced furniture or dishes, holes in the wall, photographing anything suggesting violence. The Complainant may be instructed to return to the police station for subsequent photographing to document bruising. It is incumbent on Counsel to do the same. Photograph your client to document the presence or lack of injuries. Your client’s injuries may be a double-edged sword. For example, wounds to the hands, wrists or fingers suggest they were used to strike someone. Injuries to the forearms, shoulders, and head are potential defense injuries suggestive of thwarting off attack. Otherwise, injuries may just be suggestive of a struggle- preferable to the narrative of an unprovoked attack for which the victim offered no resistance. Jail Calls: Prosecutors pull the jail calls with the expectation your client is going to contact the Complainant in an effort to maintain control. They will periodically pull jail calls seeking 67 | P a g e

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potential violations of Court orders. A jail call from your client to the Complainant can result in the filing of additional charges and potentially raised bonds. Your client ignoring your advice to talk on jail calls is as inevitable as hearing him tell his mother what a dumbass you are when you get around to reviewing discovery. Do your best to keep your client from making it worse. Social Media: Immediately after drafting the subpoena for the jail calls the Prosecutor will start looking for your client’s social media posts. Advise your client to set their social media account so only friends and acquaintances can view their posts. Advise your client not to post stupid stuff on the internet. Grand Jury Practice Before allowing your client to testify before the grand jury consider talking to at least two trusted colleagues because it is probably a bad idea. Explain to your client the grand jury process and the circumstances under which they would appear. Due diligence may require exploring the possibility of testifying but the chances of disaster greatly outweigh the chances for success. A better idea is to find out if the Prosecutor will permit the submission of a grand jury packet. Some jurisdictions permit submission of practice as a matter of office policy. If the prosecutor refuses, consider submitting a written request to the District Court responsible for the grand jury and its foreperson. Bypassing the prosecutor may have collateral consequences so carefully consider the chances the submitted packet will be successful.

You may also submit a statement from your client but doing so may cause the prosecutor to withdraw their agreement to submit it. Many will take the position that if your client wishes to put information before the grand jury they should testify. Prosecutors typically agree to including witness statements in grand jury packets as they acknowledge defense counsel does not have subpoena power. They will be more than happy to make an appointment for your client to appear before the grand jury. It is a good idea to follow up your letter with a phone call to the prosecutor. Some prosecutors will agree to wait until a specific date before presenting the matter. If a cooperative 68 | P a g e

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Family Violence | AFV

Relevant material for a grand jury packet is evidence you wish considered such as medical records or photographs; the grand jury packet may be the only effective use of a affidavit of non-prosecution. Try to submit witness statements in affidavit form, they will have more gravitas with the jurors. If the witness permits include a statement in their affidavit expressing their willingness to appear before the grand jury. The grand jury is permitted to require prosecutors to compel the attendance of desired witnesses.

prosecutor is still receiving information from the investing agencies, they may agree to give you two weeks’ notice as they may not know at the time when they can present it. Provide a copy of the packet to the Prosecutor and the Court a week before the grand jury date. I submit a packet to the Court in the event the Prosecutor attempts to back out of the agreement or edit the packet. The Judge may order submission of the packet- it is their grand jury. On the grand jury date bring copies for all grand jurors. alternates, a copy for the record, and an additional copy for the Prosecutor. Prepare and submit a grand jury packet if after realistic evaluation, the case appears to be factually or legally weak. Obtain sworn witness statements, photographs, cell phone video of the incident or its aftermath, the Complainant’s Judgement and Sentences, even case law. Remember, Prosecutors also use grand juries to get rid of bad cases, keeping their fingerprints off the cases demise. A well-done grand jury packet may be this Prosecutor’s best friend. Draft a cover letter detailing why the case is bad but do not overreach. The perfect letter contains facts that the Prosecutor will have to stipulate are true. If you are submitting caselaw highlight relevant sections and explain it in your cover letter. Witness statements reflect the witnesses’ perception of what they observed, use these facts in your letter as you would tie them together in final argument as if you were trying the case.

Family Violence | AFV

Divide and Conquer There is no legal prohibition against defense counsel speaking to the Complainant, to the contrary the requirement of performing a thorough investigation necessitates at least an attempt. That said, be careful, and plan before making the attempt. Defense counsel often has the opportunity to contact the complainant well before the Prosecutor, especially in larger jurisdictions. The Complainant may initially speak with a paralegal or D.A. Victim/Witness Coordinator. Practically, an Assistant District Attorney will not get the file until the matter is near grand jury presentation, which may be several weeks. Defense counsel often has the opportunity to build a productive working relationship with the Complainant before the Prosecutor has spoken to them. Before calling discuss the likely response with your client and assess the current status of the relationship. A simple phone call to introduce yourself express and concern for the Complainant’s wellbeing and is an obvious first step. Guage the reaction from your introduction and follow your instincts whether to pursue the conversation. Be mindful that you are speaking to them in the wake of the event and if you move the encounter from conversation into questioning too soon you will likely get shut down. This is a relationship that make take several conversations to become productive because the complainant must get past their instinct not to trust you. If the initial phone call does not go well consider retaining an investigator or have your paralegal try. During the course of the initial conversation consider explaining that attorneys are prohibited from trying to influence or prohibit the testimony of a witness and it is not your intent to do so. Always be patient and 69 | P a g e

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remember that the point is for you to hear what they have to say and not you are telling them what to do. Depending on the situation success may be a complainant who fully intends to cooperate with the prosecution but is willing to discuss their intended testimony with you. Success may be a be Complainant who contacts the Prosecutor insisting that your client be offered Pre-trial Diversion instead of the offered Deferred Adjudication. Anything that makes your client’s situation better makes the call attempt worth the effort. Family violence cases involving parents and children are different from relationship cases and must be treated so. Prosecutors will also treat these them differently. Parents are typically approachable, especially if your client is in jail. Typically, the parents are your clients’ only chance to obtain bond money. As the bond money is coming out of their pockets, parents typically will advocate for bond reductions. If your client is charged with assaulting a parent, a discussion about how even a deferred may limit their child’s future. Make the parents understand that Pre-trial Diversion provides an opportunity to get their child needed drug or psychological counseling and the probation department as any ally keeping the child accountable.

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Conclusion

Family Violence | AFV

An Assault Family Violence allegation can be one of the most difficult type cases to defend, because of the nature of the allegation itself. The accusation much like an allegation of sexual assault has a stigma which immediately arises upon arrest. It is like we are immediately engaged in an uphill battle seeking justice for our client. We must allow the dust to settle, take a step back and reel our client in. We close ranks, establishing a ring of trust if you will, of those family members and friends that our client can trust. You will need to investigate the backgrounds and motivations of each witness, including the complainant. You will need to investigate the specific circumstances of the alleged assault because details matter. I often approach these types of allegations in a similar manner that I would investigate and prepare a defensive strategy in an aggravated assault or sexual assault case. These cases, as we discussed previously, are not limited to adults, and although not as prevalent, can involve children and allegations of child abuse. You will need to become familiar with having to gather information regarding TDPRS investigations, and often times shut down attempts by the Child Protective Services caseworker from speaking with your client. Be vigilant in your interactions with law enforcement, child protective services, and other members within the victim services industry.

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DOCUMENTS APPENDIX 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

14. 15. 16. 17. 18. 19. 20.

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11. 12. 13.

Defendant’s Written Request for State to Designate Experts Motion for Voir Dire of Expert Witness Defendant’s Written Request for Notice of State’s Intention to Use Evidence of Extraneous Offense at Trial Request for Hearing Outside of Presence of Jury Motion for Discovery of the Arrest and Conviction Records of State’s Witnesses Application to Take Deposition of the Complaining Witness Application to Take Deposition of Jane Smith Motion to Require Disclosure of Confidential Information of the Complaining Witness Motion and Order for Discovery Motion for the State to Designate which Recorded Jail Phone Calls It Intends to Use at Trial Defendant’s Motion for Discovery Regarding All Material Matters Motion to Quash and Exception to Substance of Indictment Motion for the State to Designate which Pornographic Images It Intends to Use as a Violation of Defendant’s Deferred Adjudication Probation State’s Motion to Quash Subpoena Tex. Gov’t Code §420.071 Tex. Gov’t Code §420.072 Tex. Gov’t Code §420.073 Tex. Gov’t Code §420.074 Tex. Gov’t Code §420.075 Tex. Gov’t Code §420.0735

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Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Plea Negotiation Speaker:

Jeremy Rosenthal

Rosenthal, Kalabus & Therrian, PLLC 7300 State Highway 121, Ste. 400 Mc Kinney, TX 75070 972.369.0577 phone 972.369.0532 fax jeremy@texasdefensefirm.com email http://www.texasdefensefirm.com/ website

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

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Plea Bargaining with Power By Jeremy Rosenthal, Esq.

Plea Negotiation

Rosenthal, Kalabus & Therrian, PLLC. 7300 SH 121, Suite 400 McKinney, TX 75070 Jeremy@Texasdefenseﬁrm.com

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Table of Contents

Plea Negotiation

Why Plea Bargaining Skills are Important ................................................................................................... 3 “Pleading Guilty” are Dirty Words At Rusty Duncan! Why Not Set Everything for Trial? ......................... 3 Defense’s Role in the Criminal Jus�ce System............................................................................................. 4 Components of Effec�ve Plea Bargaining .................................................................................................... 5 Know where your Alamo sits ..................................................................................................................... 5 Knowing the State’s Botom Line (Don’t Take Their Word for It) ........................................................... 5 What is Valuable to a Prosecutor? ........................................................................................................ 5 Why TIME is the State’s Most Valued Asset .......................................................................................... 7 Different types of prosecutors and how that factors In To plea bargaining.......................................... 8 How prosecutors are trained................................................................................................................. 8 Know what mo�vates the other side .................................................................................................. 9 Appealing to the prosecutor’s self interest ......................................................................................... 11 What we DO Have to offer ...................................................................................................................... 12 Top Tips and Tricks...................................................................................................................................... 12 Divide and conquer ................................................................................................................................. 12 No such thing as a “final offer” ............................................................................................................... 13 Don’t take the process too seriously ....................................................................................................... 13 Use Magic phrases .................................................................................................................................. 14 Make the prosecutor’s argument for them ............................................................................................. 14 “I Need Your Help” .................................................................................................................................. 14 Make an offer without making an offer .................................................................................................. 15 Negotiate like a seven-year-old............................................................................................................... 15 Plant seeds (simplify, simplify, simplify) .................................................................................................. 16 Acknowledge If and When Your Client is in the Wrong ........................................................................... 16 Look for “Wedge” opportunities ............................................................................................................. 17 Get to the prosecutor first ....................................................................................................................... 17 Be open and honest about your Client’s Concerns .................................................................................. 17 Resetting the Negotiations After an Impasse.......................................................................................... 17 Know when it’s time to fight ................................................................................................................... 17 Top 10 Don’ts .............................................................................................................................................. 18 Don’t Push Your Client Into a Deal they Don’t Want ............................................................................... 18 Don’t Hear the word “no” ....................................................................................................................... 18 Don’t bargain against yourself................................................................................................................ 18 Don’t negotiate in a hostile docket room (docket Karma) ...................................................................... 18 Don’t fall for idle threats ......................................................................................................................... 19 Don’t let minutia kill your deal ................................................................................................................ 20 Try not to plea bargain over email .......................................................................................................... 20 Don’t Make the First Offer....................................................................................................................... 20 Don’t beg................................................................................................................................................. 20 Don’t threaten or try your case in the docket room ................................................................................ 21 Summa�on ................................................................................................................................................. 21

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Why Plea Bargaining Skills are Important What we do in plea nego�a�ons is harder than any other nego�a�on I’m aware of. Criminal defense lawyers are the best deal makers I know. It’s easy to convince a fortune-500 company to merge, a real estate group to sell a prized asset, or a corpora�on to setle a sexual harassment lawsuit where one group can either make – or avoid losing a fortune. Both sides have leverage in those situa�ons. In criminal defense our opponent works for the government which has all the leverage, has litle, if anything, to lose by taking a case to trial, and is as easy to convince as a cokemachine that stole your dollar. Here at TCDLA we teach a lot of trial advocacy. Trial is to a lawyer what warfare is to a general or surgery is to a doctor. Trial is the most cri�cal thing we do or learn and our ability to try a case dictates, in many ways, our strength as an advocate. Teaching, learning, and mastering trial is essen�al to our cra�. If you can’t eﬀec�vely try a case or are in�midated by trial then your ability to nego�ate favorable deals is feeble at best and is dependent solely on a prosecutor’s mercy. I don’t know about you – but I didn’t go to law school to be a func�onary. Somewhere between 90% and 98% of criminal cases in federal and state court result in guilty pleas depending on what study you read. 1 There is an underlying weakness implied by pleading a case or coming to an agreed resolu�on. But think of plea nego�a�ons this way – in a jury trial we get the chance to weed out folks who are impossible to convince. In plea nego�a�ons – we have to convince our o�en obs�nate opponents. Anyone can persuade a juror – but convincing a prosecutor to come out of their own comfort zone takes a good deal of mastery and skill.

Plea Negotiation

“Pleading Guilty” are Dirty Words At Rusty Duncan! Why Not Set Everything for Trial? First and foremost, it’s always our client’s decision to plead guilty or not-guilty. This was reaﬃrmed by the Supreme Court as recently as the last decade. 2 Obviously most clients will rely on counsel in making that decision – but you have to seek a plea deal if your client demands it.

ABA 2023 Plea Bargain Task Force Report: americanbar.org/content/dam/aba/publica�ons/criminaljus�ce/pleabargain-�-report.pdf. TDCAA: tdcaa.com/journal/a-plea-nego�a�on-primer/; NACDL 2018 Report: NACDL.org/document/trialpenaltySixthAmendmentRightoTrialNearEx�nct; University of Michigan School of Law: law.umich.edu/special/exonera�on/documents/NRE.Guilty.Plea.Ar�cle1.pdf 2 McCoy v. Louisiana, 584 U.S. ____ (2018). 1

Page |4 Another reason is because your client might be screwed. Some folks get caught red-handed. People confess. People are caught on security cameras stealing or holding knives up to a clerk’s neck. People write checks to themselves on the company account, run up massive company credit card bills for trips to Disneyland, or make their own phony gi� cards to sell to customers. Reasons not related to the facts could be your client might have too much to lose at trial. Trial takes a mental and emo�onal toll on people. Trial is fun for us but I haven’t had a client yet tell me they wished the could go through it all again. People want to get on with their lives and limit the damage already done. Unfortunately people give in to pressure from loved ones or family to forgo trials too.

Defense’s Role in the Criminal Jus�ce System There are three cogs to the criminal court system. There are the courts themselves, the prosecu�on and then there are us. I think all of us have been made to feel, at �mes, the defense is an a�er-thought. I know I’ve been made to feel the courts and prosecutors are the en�rety of the system and that it’s the defense’s job – or obliga�on – to help them move things along. Plea nego�a�ng from a posi�on of strength comes from knowing we have as much or more power than the other two cogs.

Consider – our clients are human beings protected by cons�tu�onal rights. Remember our client’s rights are cons�tu�onal safeguards – they prevent our clients from ge�ng steamrolled and in that sense they are a weapon.

Are we the smallest cog in the criminal justice gears? Who knows. Who cares. We can gum it up for everyone else regardless of which wheel we are.

Plea Negotiation

Some of our biggest rights are our right to subpoena, our right to a jury and most importantly our right to have a trial. Invoking and ac�vely exercising those rights frustrate the prosecu�on and the courts. This is power. Other weapons you have at your disposal are mo�ons to suppress, mo�ons to quash, or seeking favorable jury instruc�ons. Virtually any contested mo�on you can think of gives you power. The ability to �e up a courtroom for an en�re week gives everyone incen�ve to give you what you want.

Page |5 To ignore the power we yield in the courtroom or to cede it so that prosecutors and Judges won’t get angry with us makes us the func�onaries many of them assume that we are.

Components of Effec�ve Plea Bargaining Know where your Alamo sits What is your worst case scenario at trial? What is an outcome your client wants or can live with? This is your “Best Alterna�ve to a Nego�ated Agreement” (BATNA). 3 Regardless of how factually bad your case might be – where is your Alamo? In other words, at what point are you going to cease to yield any addi�onal ground. Sex offender registra�on? An affirma�ve finding of family violence? TDC �me? A removable offense? At some point in any case you need to decide that if the State wants a certain outcome – they’re simply going have to take it from you in a contested proceeding. Even if your client is charged with the� and caught red-handed on camera – if the offer is the max then I can’t think of a good reason not to have a trial. That’s your BANTA or as it’s simpler to think of – your Alamo. Also knowing your botom line is knowing whether you can actually win a case. If you know the State’s case is legally and/or factually insufficient, why would you ever plead? In those instances your botom line should be dismissal or close to it. But again – the beter and more aggressive a trial lawyer as you are – the beter your BATNA will always be.

Knowing the State’s Botom Line (Don’t Take Their Word for It)

Plea Negotiation

What is Valuable to a Prosecutor? We have the ability to recognize currency where there seems like there is none. Once you understand your botom line – you have to evaluate what is the State’s botom line. What a prosecutor thinks is their most valuable currency and what is actually their most valuable currency are two completely diﬀerent things. Very few of them understand this.

The term was coined by Roger Fisher and William Ury in their 1981 book, Getting to Yes: Negotiating to Agreement Without Giving In.

Page |6 A prosecutor’s most precious and guarded asset is their TIME and not all of them understand this. This is the single most important concept in this paper. All prosecutors would likely tell you their ﬁrst priority is to see ‘justice is done.’ That’s all nice and well – but if a prosecutor thinks everyone is guilty and in the back of their mind they are “the great decider” of their courtroom – seeing that ‘justice is done’ is ﬁc�on. Other assets of importance to a prosecutor includes their own self image, their reputa�on amongst their peers, their superiors, and to the local judges. Some prosecutors value scoring brownie points with their higher-ups. Also valuable to a prosecutor is their rela�onship with a complaining witness and their rela�onships with law enforcement – which can some�mes be a strained one.

A self portrait of your prosecutor

Again – many prosecutors believe their high-horse opinions of the case are what ought to dictate plea nego�a�ons. And the prosecutors are typically correct – that is, unless you do something about it. If you don’t use the tools at your disposal then you can expect prosecutors to dictate the terms to you and your client in every case. This is no diﬀerent than a quarterback picking apart a defense in a football game.

Plea Negotiation

Page |7

Patrick Mahomes will cut your defense apart if you let him sit in the pocket and don’t make him work at all. Your prosecutor is no diﬀerent.

Why TIME is the State’s Most Valued Asset Time is the one thing prosecutors have an equal supply of as you. Only they usually have two, three, five or one-hundred �mes as many cases as defense lawyers have. Many folks took jobs at the DA’s office because they want weekends and holidays off. The unfortunate reality in the criminal jus�ce system is that many of our colleagues, prosecutors and even Judges treat opening a case file or LexisNexis like opening a lead vault full of kryptonite.

Plea Negotiation

Have you ever no�ced many of your prosecutors get agitated when you make them work? How do they react when you start asking ques�ons about why certain materials aren’t in discovery? How does their body language change when you ask them to go back to the complainant and ask about other aspects of the case? Are they happy when you tell them you’re going to file mo�ons to quash? This is because you’re causing them to expend their resources and many of them find that frustra�ng or annoying. It grates on them not only because you’re causing them to expend their �me – but many of them expect you to simply fall-in-line like everyone else does. A smart prosecutor understands �me is their most precious commodity and by engaging you in these batles it will cause them to lose even more of it. In other words, they know they have the choice to make their own pain stop by giving you what you want. None of this is rocket-science. It’s common li�ga�on. Li�ga�on prac�ce is the ‘art’ of finding the other side’s pressure-point and ethically, politely, and professionally pressing it as hard as the law will allow. In a divorce case the ‘pressure point’ might be ge�ng to your ex’s text messages. In a tradesecret case, it might be learning the iden��es of the companies’ top engineers. In a car accident case, the Plain�ff might be afraid of a video of them doing backflips on a trampoline the week before trial. Everybody has a pressure point.

Page |8

�me.

Our pressure point with the prosecutors more o�en than not – is ﬁnding ways to occupy their

Mahomes is much less eﬀective when he doesn’t have time. Just like your prosecutor.

Different types of prosecutors and how that factors In To plea bargaining Prosecutors are lawyers just like we are. Some of the best lawyers I know are prosecutors. We certainly drink our Kool-Aid as do they. We all know many, many fine and decent lawyers who prosecute for a living. They are our colleagues, neighbors, and are stakeholders in jus�ce as are we. That said, as a whole, they are people too. There are effec�ve ones, smart ones, kind ones, clever ones, workaholics, zealots, compe��ve ones, lazy ones, �mid ones, pety ones, ambivalent ones, incompetent ones and of course there is always the occasional cheat. Knowing what kind of prosecutor you are working with is always cri�cal. Compe��ve prosecutors or pety ones might dig-in when you challenge them in a case. Incompetent prosecutors or prosecutors afraid of their superiors might be oblivious to the pressure you exert. Can bringing pressure backfire in a case? I’ll answer this with another ques�on. If you’re ge�ng a raw deal to begin with – does it mater? Just know that laughing at the prosecutor’s jokes and going along to get along is rarely an effec�ve strategy.

How prosecutors are trained

This is important because some prosecutors believe that because everyone is guilty – any concession made to the defense is a favor from the goodness of their heart. Consider this quote from a TDCAA ar�cle published in February 2021 (I’ve decided to leave the author anonymous):

Plea Negotiation

Many prosecutors think anyone charged with a crime is guilty. And if they’re not guilty of this then they are s�ll guilty of something. This comes from working in the echo chamber which is the DA’s office. Talk to any former prosecutor and they can tell you about the water-cooler talk of bea�ng up on low hanging fruit, ge�ng high-fives from jurors, and ge�ng discounts from local coffee shops.

Page |9 When I was first licensed, I took a “cut to the chase” approach to plea negotiations. I reviewed the case, figured out what offer I thought was appropriate, and made that offer to defense counsel. Because I communicated my best offer from the very beginning, I was forced to decline repeated counteroffers from defense counsel, which resulted in cases dragging on for months only to settle on the eve of trial. People also grumbled that I was hard to work with because most every counteroffer was rejected. What I failed to realize then is that, while defense attorneys work hard to get the best possible outcome for their clients, they are also running a business. Part of running a business is producing demonstrable results for the clientele. Criminal defense practices are not immune to this reality. Every defense attorney wants to go back to a client and say something akin to, “The prosecutor was at X, but I negotiated him down to Y.” Don’t forget the business aspect of the defense attorney’s practice. When making an initial plea offer, consider building in some wiggle room. Start with an offer of X that you think could be an acceptable resolution, but with the understanding that you would still be satisfied with a result of Y. If you take this approach, you will leave yourself room to negotiate with the defense attorney and, consequently, move cases more efficiently and amenably. We do have to hand it to our friends at TDCAA – they are nothing if not open and honest about their world views. Let’s decode this. What I read in the quote above is, “everyone is guilty” and that “any and every concession I make to a defendant is a favor.” If you were to explain to this lawyer that your client is innocent – my guess is they’d look at you like you had a bleeding eyeball in the middle of your forehead.

Plea Negotiation

Prosecutors are also trained that if the defense rejects the first offer then the next offer only goes up. This approach is unsustainable for the reason that it violates the basic laws of supply and demand economics with the State’s most finite resource – their �me. They only punish themselves with this tac�c though some will follow through.

Know what mo�vates the other side Dealing with Prosecutors Seeking “The Best Interests of Justice” Most prosecutors take this direc�ve seriously. The problem is they have a diﬀerent world-view about what this means than we might have. You can appeal to prosecutors who hold this guideline to be important – and appealing to them to do “the right thing” is a very important and powerful part of our

P a g e | 10 job as storytellers. Many prosecutors can be persuaded if you’re eﬀec�ve enough at making the prosecutor understand your client is more than the ﬁle they hold in their hand.

Dealing with Prosecutors Wanting “Justice for The Victim” 4 This can be an “X” factor in many of our nego�a�ons. Remember, your prosecutor is a public servant. While many of us in private prac�ce have the ability to filter some of the folks who come in the door and whose phone calls to return or not return – your prosecutor doesn’t have that luxury. Like most of you, I’ve seen the prosecutor use the complaining witness as both a sword and a shield. That is, when the complainant wants a s�ff sentence, we get a bad offer – but if the complainant wants leniency – the prosecutor s�ll wants a s�ff sentence because they’re not bound by the complainant’s wishes. Keep this in mind – your prosecutor has to save face with the complainant. If they’re going to deviate from what the complainant wants – you’re going to have to provide them with some ammuni�on or arguments they can use with the complainant. It is important to note many complainants feel above the fray in this type of li�ga�on. Police, prosecutors and advocacy groups like the Children’s Advocacy Centers we deal with on a regular basis pamper and o�en enable accusers with respect to their unreasonable posi�ons in serious cases. But the complainant’s rights stop at our client’s nose. Remember, we have a tool-bag equipped with many rights and powers to make sure we’re ge�ng the truth from complainants which might put them in an uncomfortable spot. We have the right of compulsory process to subpoena evidence from a complainant. We have the right to confront our accusers in open court. We also have the right and the duty to conduct a thorough inves�ga�on which means interviewing not only the complainant but others around them who might either be material witnesses themselves or who might be able to point us to other witnesses or evidence. There is absolutely nothing wrong with exercising any of these rights – and the bi-product is the complainant learns they have ‘a skin in the game.’ Involving the complainant through your ability to inves�gate and defend the case can change the dynamic between them and the prosecutor. Consider where a complainant is caught in a lie. By forcing the issue your prosecutor finds his vic�m, who previously just wanted to protect the rest of the galaxy from your client, now won’t even return his phone call.

We refer to them as Complaining Witnesses, Complainant or CW. Just because prosecutors and Judges refer to them as “Vic�ms” doesn’t mean we have to.

Plea Negotiation

By exercising your ethical du�es of inves�ga�ng your case and zealously advoca�ng for your client by bringing the complainant into the fray – you can declaw a prosecutor seeking to “get jus�ce for the vic�m.”

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Dealing with “Anchoring Bias” I find many prosecutors’ reason with what might be characterized as “anchoring bias” or the “framing effect” so I think those are important to discuss. In plea nego�a�ons, it is when the prosecutor takes the posi�on that, “because the last 10 people charged with this came through – we screwed all of them. Therefore, it’s only fair you get screwed too.” This mentality is like the fallacy that mandatory minimums somehow make criminal jus�ce fairer – again – because why should you get off easy when someone else suffered an injus�ce? When dealing with a prosecutor who thinks in terms of anchoring bias – you have to go to addi�onal lengths to differen�ate why your client’s situa�on is dis�nc�ve from the last several this prosecutor dealt with. You can also try to show the prosecutor why the underlying ra�onale is flawed in the first place – but good luck with that.

Dealing with Passive Aggressiveness Prosecutors are people too – and like people anywhere – they can be passive aggressive in their nego�a�ons. Passive aggressiveness is a behavior where a person atempts to maintain control of an interac�on through indirect, misleading, and confusing behavior calculated towards manipula�ng their target. Passive aggressiveness has actually been characterized as a disorder. 5 Have you ever dealt with a prosecutor who says, “give me all your punishment evidence and I’ll consider deferred.” Fast forward three weeks – and for the 12th �me in a row – that prosecutor informs you “I just can’t oﬀer deferred.” That’s passive-aggressive behavior. They don’t mean to manipulate you. But that doesn’t change the fact that it’s not honest nego�a�on. The ﬁrst thing you need to do is spot the behavior. Talk with colleagues with similar experience with that prosecutor. With these prosecutors – be direct and concise. It might be uncomfortable, but don’t be afraid to call the behavior out. Humor works and is acceptable in these circumstances.

Plea Negotiation

Appealing to the prosecutor’s self interest You can have everything in life you want, if you just get other people what they want. 6 Robert Green, in his bestselling book, the 48 Laws of Power, includes as his rule No. 13, “When asking for help, appeal to people’s self-interest, never to their mercy or gra�tude.” 7 Mr. Green notes that we constantly ﬁnd ourselves in the posi�on of asking for help more powerful than we are. We tend to Hopwood C. J., Wright A. G. C. (2012). A comparison of passive–aggressive and nega�vis�c personality disorders. J. Pers. Assess. 94, 296–303. 6 Zig Ziglar. 7 The 48 Laws of Power by Robert Green. Copyright ©1998, by Penguin Books, Penguin Random House LLC, 2000. 5

P a g e | 12 be trapped in our own wants and desires, however, and we fail to recognize the other person o�en is similarly trapped. Fundamentally, “self-interest is the lever that will move people.” Resistance o�en dissipates when we can oﬀer something which can advance their needs or their cause. As criminal defense lawyers we o�en assume, to our detriment, that a prosecutor is mo�vated by the larger issues or a great cause such as mercy and jus�ce. Consider – this previous sen�ment is true if and when the prosecutor is the type who looks in the mirror on a daily basis and prides themselves on mercy and benevolence. Even here the prosecutor is ac�ng in their own self interest – to fulﬁl their self-iden�ty. In other words – prosecutors are people too and they will almost always act in their own selfinterest.

What we DO Have to offer One of the greatest challenges in plea bargaining from a criminal defendant’s standpoint is it feels like we o�en don’t have anything of real value to offer the other side. That’s not true. While we can’t offer money setlements like they do in personal injury cases, or we can’t offer releasing liability like they do in business li�ga�on cases – you can offer things in the prosecutor’s personal interest which they hold valuable. Does the prosecutor get brownie points for moving cases quickly? If it doesn’t hurt your client – you can give the prosecutor this. Does the prosecutor want to have a good rela�onship with the complainant? You can help with that so long as it doesn’t impact your client. Does the prosecutor value their own personal iden�ty as someone who is merciful or if they fancy themselves as a reformer? Again – that’s something we can o�en help with. Would the prosecutor rather try an easier case next week? Give us what we want in a plea and we can arrange that. The list of things we can lawfully and ethically provide for them is prac�cally endless.

Top Tips and Tricks

It’s diﬃcult to argue or debate with more than one person. Addi�onally, it makes sense that even if one prosecutor who is your audience might be inclined to agree with you – they might feel pressure from other prosecutors watching to behave a certain way. It’s always best to nego�ate one-onone.

Plea Negotiation

Divide and conquer

P a g e | 13 LBJ was one of the greatest nego�ators of all �me and he was a master of isola�ng his ‘targets’ in his nego�a�ons. Johnson would corner Senate colleagues when they were isolated and get concessions from them he’d never get in a more public se�ng. The “Johnson Treatment” was described by one historian as, “…an incredible, potent mixture of persuasion, badgering, ﬂatery, threats, reminders of past favors and future advantages.”

The “Johnson Treatment” was far more eﬀective than Oliver Twist’s groveling in a room full of peers.

No such thing as a “final offer” Don’t make ul�matums and also don’t be in�midated by them. “Final offers” are rarely final. When you nego�ate in this style you just create an addi�onal mental hurdle to overcome. Not only do you have to move the needle on the underlying case but now you also have to give addi�onal jus�fica�on to erase the line in the sand you just drew. A good tac�c in a situa�on where a prosecutor is making a final offer is to ask them to leave the offer open for a week or two. This way you get to reset the conversa�on later where it’s easier for them to back off a previous ul�matum.

Plea Negotiation

Don’t take the process too seriously Humor sells. A laughing prosecutor is also a prosecutor who might make you a good deal. Some of the things we deal with are funny. Docket-room talk is locker-room talk. If you’re “amongst friends” it’s okay to poke fun at the ac�ons of your client or the police oﬃcer – so long as you have an end-game of making a beter deal. Your client doesn’t have to know “how the sausage is made.” Not every plea nego�a�on has to be approached with the seriousness of a funeral.

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Use Magic phrases i. Is there any chance that…? ii. I know it’s complicated, but…? iii. I can see why you think that… These three phrases can be like can-openers for a tough conversa�on. The ﬁrst is, “I know it’s complicated but…” This phrase gives everyone in the debate space to acknowledge that whatever being discussed isn’t necessarily open and shut. Star�ng your discussion by acknowledging the complexity of the mater gets your opponent out of a “black and white” mindset. Another great phrase to begin a request with is, “Is there any chance that…” This gets your prosecutor to commit to cracking the door open slightly on your request. It helps you gauge if your request is even possible. The third phrase I like is “I can see why you think that…” It acknowledges the prosecutor’s ﬁrst impression and validates it. You start the nego�a�on process with a subtle agreement.

Make the prosecutor’s argument for them Many �mes you know how your prosecutor will reply to your pitch. Try jumping in front of their reply by telling them the dialogue between you and your client. “I told my client that you’re very cau�ous about giving a condi�onal dismissal on a case where there’s evidence of impaired driving -- so he knows you’re going to have to think about this and we may not get the answer we’d like.” “I’ve been trying to explain to my client’s mother that there’s a really angry complainant here – and that they might not be sa�sﬁed with proba�on… but that our prosecutor would weigh everything evenhandedly.” You controlling the narra�ve to this degree prevents the prosecutor, at least at the moment, from saying “no” to your request.

Is there anything wrong with telling the prosecutor something to the effect of – “I’m worried my client wants to try this case but he’s going to get slaughtered. Please make us a beter offer so I can have some ammuni�on with them?” How about, “This client really needs to go to rehab. Don’t offer him x – offer him y instead?” Or, “My client’s parents are pushing him to fight. I need your help to be able to persuade them…”

Plea Negotiation

“I Need Your Help”

P a g e | 15 By asking for the prosecutor’s help you completely shi� their mind-set. You’ll be surprised with how many of them get on-board to collaborate for your client’s beneﬁt.

Make an offer without making an offer In more complicated nego�a�ons, try making an offer without making an offer. “If my client were to ask for deferred, what would you say?” Or, “I don’t know if I can get my client to a 2 year TDC sentence – any chance you’d offer it if he’d take it?” This gives you wiggle room and prevents batle lines being drawn.

Negotiate like a seven-year-old Seven-year-olds are the most eﬀec�ve nego�ators on the planet. Here’s how they nego�ate:

Child: I want ice cream. You:

No.

Child: I want ice cream. You:

No.

Child: I WANT ICE CREAM. You:

No!

Child: I WANT ICE CREAM. Child: I WANT ICE CREAM.

Plea Negotiation

Child: I WANT ICE CREAM!!

We all know how this nego�a�on ends.

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Future Criminal Lawyers Showing oﬀ their Negotiation Skills

Plant seeds (simplify, simplify, simplify) Not every interac�on with the prosecutor has to be a big nego�a�on session. Prosecutors have a heavy caseload. Plant seeds, though. Part of the art of storytelling is simplifying complicated topics. You don’t have to lay out your case every �me – but come up with a catchy hook each �me you deal with your prosecutor. “Remember, this is the case where your complainant is a sweat-shop tycoon who pays everyone under the table?” “Remember, this is the case Frisco PD was up in the air about for so long?”

Acknowledge If and When Your Client is in the Wrong

Plea Negotiation

Eﬀec�ve nego�a�on requires being honest. There’s nothing wrong with communica�ng to the prosecutor your botom line isn’t based on fairness or en�tlement. “Let’s just be done with this” is an okay way to bargain if it yields you the best deal.” When you’re defending someone clearly caught redhanded you do nothing but gain credibility with the prosecutor for calling it like you see it.

P a g e | 17

Look for “Wedge” opportunities Your prosecutor has some important rela�onships to be concerned with. They are cognizant of their rela�onship with law enforcement and the complainant. Be aware of opportuni�es to exploit internal strife. New legisla�on requires law enforcement to comply with the Botham Jean Act and the Richard Miles Act. 8 Don’t be afraid of turning your prosecutor back around to the agency when you think you’re missing evidence. Complainants can also can have antagonis�c rela�onships with the prosecutor. Keep your antae up to detect any issues.

Get to the prosecutor first Always take advantage of the opportunity to “poison the well” with a prosecutor. This is one of the areas where their heavy case load gives you an advantage. If they haven’t opened their file yet – and the first they learn of the case is from you – it’s a golden opportunity to tell the story from your angle. With any luck, the prosecutor will hate the case from the get-go.

Be open and honest about your Client’s Concerns There is nothing wrong with telling the prosecutor you and your client’s concerns about a par�cular deal. This brings the prosecutor into the fold to try and help solve your problems o�en �mes. “My client is really concerned that if he signs this, he won’t be able to see his kids.” What can we do to ﬁx that?

Resetting the Negotiations After an Impasse

Plea Negotiation

Don’t be afraid to walk away for a period during the pendency of the case. If you can’t make a deal during docket – you know plea nego�a�ons aren’t dead. Take a two, three or four month break from nego�a�ons in the case. Maybe you get a new prosecutor or your prosecutor forgets the previous back and forth. Work the case and the dynamics will probably change in your favor.

Know when it’s time to ﬁght Some�mes ge�ng bogged down in plea nego�a�ons can hurt your ability to prepare. If you’ve got a week before trial, then you can either spend it ge�ng ready for jury selec�on, opening statement 8

See TEX. CODE. CRIM. PROC. ART. 2.1397 and TEX. OCC. CODE. §1701.65.

P a g e | 18 and cross examina�ons – or you can spend it re-explaining parole to your client and his mother for the 14th �me. If you’re not close to a deal then dig in and fight. You can find yourself in the trap where you now want the plea offer and to push the inconvenience of a trial off too – and you find yourself considering deals you wouldn’t have entertained at the beginning of nego�a�ons. If you know that your Alamo and the State’s best offer are not and will never be in line then congratula�ons! You get to have a trial.

Top 10 Don’ts Don’t Push Your Client Into a Deal they Don’t Want Don’t push your client into a deal he or she doesn’t want. You can tell. Remember, the sun will rise tomorrow and your headstrong client who batled you for months over not wan�ng a deal – but who capitulated long enough to sign plea paperwork – will wake up and blame you for everything. If someone wants a trial badly enough just give it to them even if you’ve told them repeatedly it was a terrible idea. It is their right.

Don’t Hear the word “no” Run through this stop sign every �me. Even if the prosecutor says, “no,” feel free to go back and ask again a week or a month later. Even in the same conversa�on, pretend like they didn’t say no and tell them you’ll circle back later to see what they think. Probably the answer will s�ll be “no,” but 1 out of 10 �mes it won’t be.

Don’t bargain against yourself

Don’t negotiate in a hostile docket room (docket Karma)

Plea Negotiation

Even though you don’t hear the word, “no,” don’t bargain against yourself. Never make two bids in a row. If the prosecutor invites you to bid against yourself – point it out – and tell them you need some movement on their behalf to move forward without losing face.

P a g e | 19 Most of us go to docket and our plea nego�a�ons are done with an audience. Docket rooms can be jovial if the Cowboys or Texans won the day before – or they can be funeral parlors. If the vibe is bad – get out and come back in 20 minutes. Some�mes the joking in a light hearted docket room can be prosecutors joking about “how dumb criminals are.” Don’t feed the sen�ment. Also, be cognizant of Docket Karma. Help your fellow defense lawyers out if you’re asked to chime in. Don’t crap on a defendant or a defense lawyer with a prosecutor. Docket Karma is a real thing.

…Karma is the thunder Rattling your ground Karma’s on your scent like a bounty hunter Karma’s going to track you down Step by step from town to town

Plea Negotiation

--Taylor Swift

Don’t fall for idle threats Prosecutors are trained to threaten that if you don’t plead a case – they will enhance, pull an offer, or take some other measure of retalia�on against your client. Remember – this goes against their self interest. Any act of retalia�on they take expends more �me and effort which is a finite resource for them. Unless you’ve got the rare prosecutor who follows up on these threats – ignore them.

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Don’t let minutia kill your deal Don’t blow a good deal on something trivial. The conﬂict here might o�en be more with your client than it is with the prosecutor. You have to convince poten�ally both your client and the prosecutor that you can’t allow “perfect” to be the enemy of “great”. A good line with your client in these instances is to remind them that a good deal is something “everyone hates.” Explain to your client how upset the prosecu�on is with having to oﬀer them such a great deal – and o�en this is enough to cinch it.

Try not to plea bargain over email Try to plea nego�ate in person if at all possible. You don’t want your prosecutor delibera�ng or going down the hall to talk with heaven-knows-who about the case. You also want the ability to ac�vely persuade and do your best to manage and control the nego�a�on. Nego�a�ng in wri�ng punts all of your control. Also – the writen word frequently fails to capture the nuance you might need to convey. If you must plea bargain over email – keep it short and sweet.

Don’t Make the First Offer Making the first offer “anchors” the nego�a�on and then the remainder of the talks are based on what you originally asked for. If you’re nowhere near what the prosecutor wants then you risk the nego�a�on being over before it starts. Another danger to making the first offer is that the prosecutor may know something about their case which you don’t know – like an unavailable witness. An unavailable witness isn’t Brady but the prosecutor might be ready to completely dump the case – that is, un�l you offered to plead guilty.

Nego�a�ng like a seven-year-old and begging aren’t the same thing. It’s the diﬀerence between persistence and groveling. Telling the story your client is en�tled to mercy isn’t the same thing as begging for it.

Plea Negotiation

Don’t beg

P a g e | 21

Don’t threaten or try your case in the docket room No one likes threats or ul�matums. Remember, most prosecutors on some level feel more powerful than you. Threatening them usually results in them ge�ng defensive, withdrawing, and digging in. If you’re going to kick your prosecutors rear in trial – no need to give them a sneak preview in the docket room. All you normally accomplish is giving away your strategy, causing the prosecutor to dig in and get defensive, and have the prosecutor pay special aten�on to your case.

Summa�on I can’t imagine anything more difficult in our cra� than trying to create value and leverage for people accused of terrible misdeeds in a system of jus�ce which affords them litle or no foothold to do so. Yet we do it every day. Find power, find leverage and find what it is you can offer the other side to get what your client wants and needs.

Plea Negotiation

Nego�ate with power!

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

DNA Defense Beyond Contamination and Transfer Speaker:

Nicolas Hughes

Nicolas Hughes Law Firm 3515 Fannin Street Houston, TX 77004 713.526.6300 phone nicolas.hughes.law@gmail.com email https://nicolashugheslawfirm.com/ website

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

DNA Defense Beyond Contamination & Transfer

Texas Criminal Defense Lawyers Association

DNA Defense Beyond Contamination & Transfer

DNA DEFENSE BEYOND CONTAMINATION AND TRANSFER 1,2 The methods, interpretation guidelines, and procedures used by laboratories are different. Sometimes, that really matters Historically, wide variety between how different forensic laboratories interpret and report when given the same data were demonstrated in the NIST Mix08 and Mix13 interlaboratory studies. 3 Outside of the small community of defense lawyers who dedicate their practice to confronting DNA evidence, the interlaboratory studies and their significance were not widely spread among the defense bar. As DNA technology was making the transition from manual mixture interpretation by DNA analysts (typically, CPI) and moving to the computational interpretation (typically, probabilistic genotyping) by software, the President’s Council of Advisors on Science and Technologies noted the problems with manual interpretation and signaled that additional research was needed to validate computational methods: These probabilistic genotyping software programs clearly represent a major improvement over purely subjective interpretation. However, they still require careful scrutiny to determine (1) whether the methods are scientifically valid, including defining the limitations on their reliability (that is, the circumstances in which they may yield unreliable results) and (2) whether the software correctly implements the methods. This is particularly important because the programs employ different mathematical algorithms and can yield different results for the same mixture profile. […] Appropriate evaluation of the proposed methods should consist of studies by multiple groups, not associated with the software developers, that investigate the performance and define the limitations of programs by testing them on a wide range of mixtures with different properties. In particular, it is important to address the following issues: […]

Written by Nicolas Hughes, Nicolas Hughes Law Firm (2024). Special thanks to Joey Cavise, Cook County Public Defender’s Office and Karinna Velasco. Joey Cavise provided the review, valuable insights, and helpful suggestions that help finalize this article. Karrina Velasco provided proofreading and editorial suggestions. 3 John Butler et al., NIST interlaboratory studies involving DNA mixtures (MIX05 and MIX13): Variation observed and lessons learned, 37 FORENSIC SCIENCE INTERNATIONAL: GENETICS Pages 81-94 (2018). 1 2

We are about to have our answer. As previewed during the 2024 American Academy of Forensic Sciences’s Annual Conference reporting the results of the DNAmix 2021 interlaboratory study, enormous disparities still exist in how different laboratories interpret and report the same data. In some cases, it is possible for one laboratory to report inclusionary statistics when another will report exclusionary statistics. 5 This should be a terrifying prospect to a criminal defense lawyer – how can the same evidence tested by different laboratories result in diametrically opposed conclusions? These contradictions also give the knowledgeable defense lawyer basis to attack the reliability of a laboratory’s analysis, particularly in cases involving mixtures. Why do laboratories arrive at different answers when looking at the same evidence? DNA laboratories likely have to follow general standards including the FBI’s Quality Assurance Standards (required to participate in CODIS), 6 accreditation standards (required to meet the Texas Forensic Science Commission’s accreditation requirements, 7 and maybe even non-mandatory guidelines such as the standards promulgated by the Human Forensic Biology Subcommittee of the Organization of Scientific Area Committees for Forensic Science. 8 These standards might set guidelines for various aspects of laboratory operation. However, these standards do not entirely dictate the equipment, methods used, minimum and maximum parameters of analysis, or what information must be reported by the laboratory. What the DNAMix 2021 tells us, along with the Mix13 and Mix08 Studies, is that these choices can, and often do, make significant differences in a laboratory’s results. Executive Office of the President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods 78-79 (2016) 5 R. Austin Hicklin et al., Dnamix 2021: Inter-Laboratory Variation in the Interpretation of DNA Mixtures, 76th Annual Conference, American Academy of Forensic Sciences (2024). 6 Federal Bureau of Investigation, Quality Assurance Standards for Forensic DNA Testing Laboratories (2011). 7 37 TEX. ADMIN CODE §651.5 8 Human Forensic Biology Subcommittee, National Institute of Standards and Technology (visited March 3, 2024) available at https://www.nist.gov/organization-scientific-areacommittees-forensic-science/human-forensic-biology-subcommittee 4

DNA Defense Beyond Contamination & Transfer

Under what circumstances—and why—does the method produce results (random inclusion probabilities) that differ substantially from those produced by other methods? 4

DNA Defense Beyond Contamination & Transfer

Just to underline how much discretion the loose regulatory framework affords laboratories, look no further than the Austin Police Department DNA Laboratory. 9 Among other problems, the APD Laboratory used interpretation methodologies unsupported by any scientific research and failed to validate those unsupported methodologies. Despite these issues that persisted for years, the APD DNA Laboratory managed to continuously maintain accreditation for a decade until the Texas Forensic Science Commission conducted a state-wide audit of laboratories’ mixture interpretation standards. While failures of the catastrophic magnitude demonstrated by the Austin Police Department DNA Laboratory and the Houston Police Department DNA Laboratory10 may not occur frequently, they are illustrative of the latitude of laboratories to adopt incompatible (and unjustifiable) methodologies. Factors which increase the probability that laboratories may report conflicting answers Low-level (low-template) samples Mixtures with high numbers of contributors Extreme mixture ratios Samples with little interpretable data

What are some of the differences between laboratories? Laboratories have different standards regarding which samples will proceed to analysis and what data the laboratory will mark as insufficient for interpretation. There are many reasons this can occur: 1) Laboratories and DNA collectors may use different reagents (“kits”), equipment, and methods. Different configurations perform differently and may lead to differences in analysis and interpretation.

Quattrone Center for the Fair Administration of Justice, The Austin Police Department DNA Laboratory, 2010 – 2015: Looking Back To Move Foward [sic] (2020). 10 Michael Bromwich, Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room, THE BROMWICH GROUP (2007). 9

William C. Thompson, Uncertainty in probabilistic genotyping of low template DNA: A case study comparing STRMix™ and TrueAllele™, 68 J. FORENSIC SCI. 1049-1063 (2023). 11

DNA Defense Beyond Contamination & Transfer

2) The laboratories may set different limits of detection. Say we have a signal at 65 RFUs (the measurement used by DNA analyst to measure a DNA signal). if one laboratory sets their limit of detection at 70s RFU, they will not use this data. If a second laboratory sets their limit of detection at 60s RFU, they will use this data. There is not one universal rule that laboratories use to set their limit of detection and can lead to inconsistent results. 3) The laboratories may conduct different types of validation studies. Even when laboratories use the same exact equipment and methods, one laboratory may conduct fewer or less robust validation testing. As a laboratory should only conduct analysis and interpretation within its limits of validation, this means the laboratory with less robust testing may refuse to test samples deemed interpretable by a second laboratory. Alternatively, a laboratory may fail to perform sufficient rigorous testing and may interpret samples that are too complex for interpretation. 4) Laboratories may make different decisions about how much data must be present in order to proceed to interpretation. Some laboratories may determine that all data is interpretable data – if there is information at a single locus (genetic location measured during forensic DNA analysis), the laboratory may use that data in comparisons. Other laboratories may require a certain amount of data before performing interpretation. 5) We’ve already mentioned that laboratories may have differences in their instrumentations and methods, but software deserves a special mention. Though the transition to probabilistic genotyping is in full force, there are multiple players in the field, and the way they operate can lead to radically different results. 11 One of the most interesting differences between the two major players in the United States forensic market, STRMix and TrueAllele, is that TrueAllele traditionally has considered information that would have been considered below the limit of detection. And while STRMix (the leader in Texas) has released new versions with different capabilities, most laboratories are slow to upgrade software, due to the cost and time-consuming nature of the processing involved in validating the updated software. 6) Low-level DNA samples (and low-level contributors in extreme mixtures) are more susceptible to random effects (for example, unbalanced or missing peaks) than are high level samples. One method laboratories can use to combat random effects is to conduct replicate testing – by using multiple tests, a laboratory can get better

DNA Defense Beyond Contamination & Transfer

information about a low-level sample. Replicate testing is more tedious and expensive than conducting a single test, and if a laboratory fails to conduct replicate testing on low-level samples, it could be said the laboratory is swapping accuracy for lower costs, as is common in the criminal legal system. Conversely, laboratories that perform replicate testing might not be able to detect extremely low-level samples (the sample is split into two test). In this circumstance, it may be exculpatory information that is missing. 7) It is not only decisions of strictly scientific consequence that a laboratory makes. Decisions regarding reporting can make differences in how information is received by the audience. Are the products of differential extraction called “sperm fraction and epithelial fraction” or “fraction one and fraction two”? When a unique DNA profile not belonging to any of the reference samples is identified, is it attributed to each item it is seen on? Does a laboratory indicate that a CODIS entry, not attributable to your client, was made? Are results reported as indecipherable walls of verbiage? What sort of adverse events make it to a DNA report? What conventions do laboratories follow that can impact results? Laboratories can’t always identify tough or compromised samples Several factors make the analysis of DNA more difficult. These include scenarios where one person contributes far less DNA than other contributors (extreme mixture ratios), high numbers of contributors, low amounts of DNA (low template), processes that prevent DNA analysis (inhibition), processes that degrade DNA quality (degradation), mixtures and interpretation where family members are involved, and contamination. While an analyst may indicate that a low likelihood ratio is the indication of a challenging sample, that is not entirely true. Laboratories choose the hypotheticals DNA analysts use a default set of propositions – the “prosecutor’s hypothesis” is that the evidence is better explained if the DNA came from the person of interest while the “defense hypothesis” is that the evidence is better explained if the DNA came from your client than if it came from a random, unknown person. But this isn’t always the relevant hypothetical. Is the hypothetical that the complaining witness consented? Is it that the crime was committed by a family member? In these scenarios, the DNA analysis may have no value (unable to answer the question of consent) or the strength of the results may be vastly inflated (family members are more likely to share DNA). Laboratories do not receive (much) contextual information

Laboratories generally resolve doubts against calling questionable data – this prevents false inclusions, but may ignore exculpatory data Laboratories make “conservative” decisions – they may ignore data that is under the limit of detection, avoid analyzing overly complicated samples, and adhere strictly to their protocols. Conservative protocols are meant to minimize the chance of a false positive – rather than call questionable data, laboratories mark a sample as uninterpretable. While this helps ensure a person is not convicted based on questionable data, it also means that potentially valid data is ignored. While a multi-person mixture may be too complex for probabilistic genotyping, it may also exclude your client. For instance, your client’s genetic information (alleles) could be missing at several locations (loci). If the analyst performs no comparison, simply determining the sample “too complex to interpret,” this data will be missed and marked as uninterpretable. As a matter of science, the safer default rule is that an analyst should not rely on data that is unreliable. However, when the potentially valid data could be exculpatory (i.e., another person’s DNA is present or your client’s DNA is present in a way that is consistent with your client’s statement), this can be a problem. Where there is uncertainty, the criminal legal system requires that it is always resolved in favor of the accused. Laboratories are tending to report results that would have previously been deemed inconclusive as results with low likelihood ratios While the strength of DNA analysis can paint a very strong association between the evidence and a reference DNA profile, there are often weak associations where there is little or low-quality DNA. What is a DNA analyst to do with a sample that might be

DNA Defense Beyond Contamination & Transfer

The likelihood ratio does not take into account information that is not provided to the analyst. For instance, the likelihood ratio does not reflect whether multiple family members had access to an item of interest, whether an officer mishandled an item, or whether data observed could be an artifact of low DNA analysis (drop-in). Contamination can be identified and mitigated by maintaining elimination databases – but when first responders, crime scene investigators, and other people in proximity of the scene are not included in the database, these measures provide little help. It can be useful to show videos, images, and other documentation which reflects how evidence was mishandled. It can also be useful to think through whether it is worthwhile to send additional propositions to the DNA analyst to consider (i.e., whether it was more likely a profile belonged to a family member).

DNA Defense Beyond Contamination & Transfer

consistent with your client, or pretty much any other living human being? The answer currently seems to be “report it.” When DNA laboratories conduct validation studies that involve chance (“adventitious”) inclusions (false positives) or exclusions (false negatives), these results are expected and observed to happen in the range of values where the likelihood ratios are low. It is always conducting a pretrial interview with the DNA analyst how much weight they would give a result with a low likelihood ratio – most will express caution about the result, as there’s an increased risk of a match by chance. Laboratories don’t compare DNA profiles unless they have a reference sample If you have ever handled a CODIS case, you have probably seen this occur in laboratory casework. The laboratory processes samples for DNA, isolates a forensic profile or a forensic mixture, then uploads the forensic profile / mixture to CODIS. Once there is a CODIS hit, the laboratory waits for a reference DNA sample to proceed with DNA comparison. Only when the reference sample comes back are any comparisons made and statistics reported in terms of the strength of association. While there are some very good scientific justifications (seeing the actual reference profile, not just the summarized representation of that profile) and legal reasons (avoiding a huge confrontation problem) that the laboratories function this way, there is one area where this practice may hurt the person accused of some offense. While there may be one or more isolated DNA profiles that cannot belong to the accused, even profiles that have been uploaded into CODIS, there will not be any comparisons performed using these profiles. In practice, this means there could be a person whose profile is more strongly associated with the evidence profiles, and the strength of the association will never be reported. In a case where transfer is alleged, individual responsibility, or even matching the evidence to the accused’s version of events is an important issue, this can be a huge and detrimental effect. DNA analysis is performed on a per item basis – this may mean the DNA analyst misses the forest for the trees DNA analysts interpret each piece of evidence independently, making their interpretations based only on the genetic information (alleles) found on that item. DNA analysts do not consider items in the aggregate. Once again, this is the right decision from a scientific decision – there is no approved methodology that allows an analyst to interpret pieces of evidence at the same time (this would likely be considered biasing information).

DNA analysts do not necessarily reinterpret data if there are changes in interpretation guidelines or methodology Laboratories may not automatically reinterpret data simply because new interpretation guidelines are updated, or simply because the laboratory is using a new analysis methodology. Where the DNA results are complex and not particularly helpful to the accused, it can be worthwhile to request reanalysis/reinterpretation under the updated methodology/guidelines. What questions can DNA answer? Most DNA analysts are trained to restrict their interpretation to the strength of association between a reference DNA sample (from a suspect or a witness) to evidentiary samples. In DNA analyst lingo, modern DNA analysis occurs at the • • •

source level (What bodily fluid is this?), the sub-source level (What is the strength of association between the evidentiary profile and the reference DNA profile), and the sub-sub-source level (What is the strength of association between the evidence profile and a particular component in an evidentiary DNA mixture?).

DNA laboratories are accredited based on their validation studies and standard operating procedures. Analysts are generally trained and instructed to not exceed the boundaries of the laboratory’s studies and procedures when testifying. DNA analysts cannot answer questions of how the DNA got there, when the DNA got there, or even who put the DNA there. In DNA analyst lingo, analysts should not be testifying at the: • •

activity level (Did the DNA get on the bat when the assailant gripped it to swing it? Is it transfer?) offense level (Does the DNA result indicate the suspect is guilty?)

Another note, DNA analysts generally do not have validated methodologies to combine information at the source and sub- / sub-sub source levels (i.e. the DNA came from sperm). What are the differences between analysts? While analysts are generally expected to follow their laboratories’ standard operating procedures and validated methodologies, they are human and differences

DNA Defense Beyond Contamination & Transfer

But what happens when the same genetic information (alleles) keeps showing up again and again? It could be background DNA, evidence of contamination, an alternate suspect, or even evidence of the accused innocence.

DNA Defense Beyond Contamination & Transfer

between analysts can result in differences in their results. 12 These differences have not ended simply by the advent of probabilistic genotyping. Some important differences occur in how analysts may determine the number of contributors (NOC), which can make a drastic impact if your client is a low-level contributor to a mixture. Analysts also determine what genetic information is data and not an artifact of the analysis process (i.e., dye blob, spike, pull-up, incomplete adenylation, etc.). Analysts’ knowledge of ongoing research in the field, work ethics, attitude toward the defense, and ability to explain complex topics and findings in plain language vary greatly as well. What are the differences between prosecutors? Prosecutors can be an important part of the equation. Newer prosecutors may be unfamiliar with DNA and may not know how to glean usable information from a laboratory report. Similarly, newer prosecutors may make unwarranted assumptions about the meaning of DNA evidence and the terminology in a report. More seasoned prosecutors may know the limitations of DNA and stay on the right side of the line. However, other seasoned prosecutors may advocate for junk science in their zeal for conviction. It is always helpful to anticipate your adversary’s proclivities and position in order to determine how to best counterattack. Don’t forget to be a lawyer Watch for analysts who are exceeding the scope of their expertise There are two main places where analysts may routinely exceed the scope of their expertise. DNA has traditionally been constrained to questions relating to identity (whose DNA is this) and has not been able to answer questions of the how or when DNA got there (Is it indirect transfer? Contamination? From a bodily fluid? Left yesterday?). The legal system has always wanted analysts to be able to answer questions of activity. There are a growing number of advocates for the premise that DNA analysts can and should answer these questions. This problematic for several reasons – these sorts of opinions are not generally part of a laboratory’s validated methodologies, there major limitations and gaps in the research, and US standards for this sort of practice do not exist. This sort of “activity level” testimony has actually been permitted to occur in Texas

John Butler et al., NIST interlaboratory studies involving DNA mixtures (MIX05 and MIX13): Variation observed and lessons learned, 37 FORENSIC SCIENCE INTERNATIONAL: GENETICS Pages 81-94 (2018). 12

Look for objectionable materials in a DNA report Does a laboratory report mention CODIS (Tex. Rule of Evidence 404)? Does it use terminology like sperm fraction or epithelial fraction, especially when there is no serology that might support that finding (Tex. Rule of Evidence 403)? Is an inconclusive result meaningless or likely to cause confusion (Tex. Rule of Evidence 401, 403)? Tex. Rule of Evidence 702 does not invalidate the other rules of evidence, and parts of a laboratory report can be attacked to limit the possible damage the report causes.

Kaitlin Armstrong requests new trial, says there is 'newly available evidence', CBA Austin (Dec. 30, 2023 https://cbsaustin.com/news/local/kaitlin-armstrong-requests-new-trial-says-there-is-newly-availableevidence 13

DNA Defense Beyond Contamination & Transfer

courts. 13 Work with your experts to understand the limits of the research and laboratory’s testing, and prepare a legal strategy (motions in limine,702 hearings, other objections) to prevent the misuse of scientific evidence. Consider using Article 38.35 of Code of Criminal Procedure to try to exclude evidence outside of a laboratory’s scope of accreditation. In addition, it is important to understand the types of samples tested during a laboratory’s validation studies. In cases involving complex mixtures, make sure the laboratory has demonstrated, through validation studies, that it can reliably interpret similar samples. Analysts should not be allowed to present interpretations of samples outside of their range of validation, and defense lawyers should be prepared to identify what samples fall outside of the parameters of validation and explain why those results are not reliable and are outside the scope of accreditation.

DNA Defense Beyond Contamination & Transfer

ESSENTIAL READING Challenging forensic evidence Any person who encounters forensic evidence should read the 2009 NAS report and the 2016 PCAST report. In order to raise a legal challenge to forensic evidence, it is important to understand the types of scientific concerns that exist with forensic disciplines (including DNA in the PCAST report) and how scientists attack those concerns. In particular, each discipline-specific chapter of the PCAST report reads like a roadmap on how to challenge a forensic discipline. A word of caution though – given the advances in the field of forensic biology, the specific issues explored in the NAS report may no longer be of concers or may look very different with modern equipment and probabilistic genotyping software. Use these reports as a springboard, not a verbatim script for your case. • •

Strengthening Forensic Science in the United States: A Path Forward, NATIONAL ACADEMIES PRESS (2009). https://www.ojp.gov/pdffiles1/nij/grants/228091.pdf Forensic Science in Criminal Courts: Ensuring Scientific Validity of FeatureComparison Methods, PRESIDENT’S COUNCIL OF ADVISORS ON SCIENCE AND TECHNOLOGY (2016). https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/ pcast_forensic_science_report_final.pdf

The trace properties of DNA evidence As much as this article intended to avoid “transfer” and “contamination,” understanding the nuances of DNA transfer and persistence can the cornerstone of a legal victory. Dr. Roland van Oorschot is a researcher with prolific and wide-ranging output on the trace properties of DNA (transfer, recovery, persistence, and prevalence). Dr. van Oorschot’s research includes transfer, how well DNA can be analyzed after the passage of time or in different conditions, how much “background DNA” might be expected in certain environments, and how much DNA can be recovered using different methods or from different scenarios. •

Dr. Roland van Oorschot, Latrobe University (last visited April 9, 2024) available at https://scholars.latrobe.edu.au/roorschot/publications

Implementing the strategies in this article In order to shape many of the ideas highlighted in this article into a workable cross, it can be important to visit the source material which highlights the sheer amount of

•

John Butler et al., NIST interlaboratory studies involving DNA mixtures (MIX05 and MIX13): Variation observed and lessons learned, 37 FORENSIC SCIENCE INTERNATIONAL: GENETICS Pages 81-94 (2018). available at https://www.fsigenetics.com/article/S1872-4973(18)30248-5/fulltext

The texts used in most college courses on forensic DNA John Butler’s books are a great starting point to understand what is happening, between swab to DNA report, and are often used in forensic science classes as essential textbooks. • • •

John Butler, Fundamentals of Forensic DNA Typing, Academic Press (2009) (Introductory book) John Butler, Advanced Topics in Forensic DNA Typing: Methodology, Academic Press (2011) (more advanced topics) Advanced Topics in Forensic DNA Typing: Interpretation, Academic Press (2012) (most advanced topics)

Your laboratory’s documents When the rubber hits the road, it is important to understand the decision points your laboratory has made. These decision points include: 1) standard operating procedures to understand your laboratory’s “recipe” for analysis, 2) validation studies which are useful for determine which results fall within their scope of testing and which results are outside the parameters of their testing, 3) how the laboratory manages quality incidents, 4) information about the laboratory’s training programs. Other useful documents exist, including the casefile, to quality incident reports, to maintenance logs. Many laboratories host some or all of their laboratory documents online. For example, the DPS maintains many helpful documents online: •

Publications, TEXAS DEPARTMENT OF PUBLIC SAFETY (last visited April 9, 2024) available at https://www.dps.texas.gov/section/crime-laboratory/publications

DNA Defense Beyond Contamination & Transfer

variation between laboratories and analysts, it is important to read the NIST mixture studies. While the ’05 and ’13 studies may have used antiquated methods, kits, and interpretation protocols, they provide an excellent guide to how the human element impacts DNA.

DNA Defense Beyond Contamination & Transfer

•

Crime Laboratory Quality Incidents, TEXAS DEPARTMENT OF PUBLIC SAFETY (last visited April 9, 2024) available at https://www.dps.texas.gov/section/crimelaboratory/crime-laboratory-quality-incidents EXPANDED READING LIST

The anatomy of DNA laboratory failure To understand how and why things go wrong at forensic science laboratories, it is important to understand past mistakes. Houston and Austin both provide prime examples of what can go wrong and how it can impact evidence. As recommended in the section advocating for reading the 2009 NAS and 2016 PCAST report, do not assume these issues are widespread or prevalent, but understand what thought errors and failing oversights lead to catastrophe. •

•

The Austin Police Department DNA Laboratory, 2010 – 2015: Looking Back to Move Forward [sic], QUATTRONE CENTER FOR THE FAIR ADMINISTRATION OF JUSTICE (2020). https://services.austintexas.gov/edims/pio/document.cfm?id=347884 Michael Bromwich, Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP (2007) Michael Bromwich, Looking Back to Move Forward: The Houston Police Department Crime Laboratory’s Implementation of the Independent Investigator’s 2007 Recommendations, THE BROMWICH GROUP (2014).

The standards that govern forensic DNA practice All DNA laboratories that upload to CODIS must abide by the FBI’s Quality Assurance standards. In addition to these minimum standards, there are voluntary standard-making organizations that promulgate many standards that a particular laboratory may imperfectly or fail to implement. While traditionally, leaders in the forensic DNA field collaborated in technical working groups, which later became rebranded scientific working groups, there has been a push towards creating more multidisciplinary oversight groups. Call out laboratories that fail to adhere to these standards. • •

SWGDAM Documents, SCIENTIFIC WORKING GROUP ON DNA ANALYSIS METHODS, (last visited April 9, 2024) available at https://www.swgdam.org/publications Biological Data Interpretation & Reporting Subcommittee, National Institute of Standards and Technology (last visited April 9, 2024) available at https://www.nist.gov/organization-scientific-area-committees-forensicscience/biological-data-interpretation-reporting

•

Biological Methods Subcommittee, National Institute of Standards and Technology (last visited April 9, 2024) available at https://www.nist.gov/organization-scientificarea-committees-forensic-science/biological-methods-subcommittee Quality Assurance Standards for Forensic DNA Testing Laboratories, Federal Bureau of Investigation (Sept. 1, 2011) available at https://ucr.fbi.gov/lab/biometricanalysis/codis/quality-assurance-standards-for-forensic-dna-testing-laboratories

DNA Defense Beyond Contamination & Transfer

•

Texas Criminal Defense Lawyers Association

June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Mental Health Speaker:

Joe Stephens

Chief Public Defender Concho Valley Public Defender's Office 113 W. Beauregard St. San Angelo, TX 76903 325.229.4711 phone 555.555.555 fax jstephens@cvpdo.org email https://www.cvpdo.org/ website

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

Mental Health

37th Annual Rusty Duncan Advanced Criminal Law Course

Mental Health

Mental Health The overlap between the criminal justice system and those affected by mental health conditions is staggeringly frequent. And, the tragic paradox is that the criminal justice system – predicated on its sense of order and rule-adherence – falls woefully short of effectively dealing with individuals with mental disorders (who, very often, are without capacity to understand or abide by the “order” of that system). Integral to this process, then, are defense attorneys. Understanding the intricacies of competency and insanity laws, as well as familiarity with diversionary court programs, is crucial for providing effective representation to individuals with mental illness. In the world of criminal defense, representing clients dealing with mental illness is a challenge of the highest order. This paper digs into those difficulties, exploring the many hurdles that lawyers face when trying to help these individuals in legal trouble. It's not just about knowing the law; it's about understanding the unique struggles and needs of people with mental health issues as they navigate the justice system. This exploration starts by recognizing that representing clients with mental illness requires more than just legal expertise. Lawyers have to be part counselor, part advocate, and all-around empathetic as they guide clients through the legal maze. It's a tough balancing act, trying to fight for justice while also providing the support these clients desperately need. But the challenges don't stop in the courtroom. They spill over into broader social issues like poverty, homelessness, and substance abuse, making the job of defending these clients even more complex. Mental Illness A couple of definitions are worth beginning with: the Texas Mental Health Code defines “mental illness” more broadly than a mere listing of identifiable, neurobiological brain disorders: “Mental illness” means an illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual disability, that: substantially impairs a person’s thought, perception of reality, emotional process, or judgment; or grossly impairs behavior as determined by recent disturbed behavior. Tex. Health & Safety Code Ann. 571.003(14). (This does not include substance abuse.) The DSM-5, however, treats “substance use disorder” as a mental illness: “[a] mental disorder is a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above.” It is important to note that mental illnesses are the result of neurobiological disease, not – as some may think – weaknesses in character. Furthermore, mental illness is treatable – not curable – and very often makes the representation of someone in the throes of their illness that much harder to represent. Insanity

Insanity is an affirmative defense to prosecution as found in section 8.01 of the Texas Penal Code: (a) It is an affirmative defense to prosecution that at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong. (b) The term “mental disease or defect” does not include an abnormality manifested by repeated criminal or otherwise antisocial conduct.

Article 46C.153 instructs that the judge or jury shall determine that a defendant is not guilty by reason of insanity if: (1) the prosecution has established beyond a reasonable doubt that the alleged conduct constituting the offense was committed; and (2) the defense has established by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct. Subsection (b) provides that the parties may, with consent of the judge, agree to both: (1) dismissal of the indictment or information on the ground that the defendant was insane; and (2) entry of a judgment of dismissal due to the defendant’s insanity. Since insanity is an affirmative defense it must be alleged and proved by a preponderance of the evidence at trial. Tex. Pen. Code 2.04. There is an exception to this rule, though. If a defendant has previously been adjudicated insane and such adjudication has not been vacated, then there is a presumption that the insanity continues and the burden is on the state to prove, beyond a reasonable doubt, that the defendant was sane at the time of the alleged offense. Riley v. State, 830 S.W.2d 584 (Tex. Crim. App. 1992). Properly admitted opinion testimony of lay witnesses is sufficient to support a finding of insanity. Pacheco v. State, 757 S.W.2d 729 (Tex. Crim. App. 1988). And an expert witness cannot give an ultimate opinion on (in)sanity because the insanity issue is not strictly legal. Were it otherwise, the issue would be tried in hospitals rather than the courts. Graham v. State, 566 S.W.2d 941, 949 (Tex. Crim. App. 1978); see also Schuessler v. State, 719 S.W.2d 320, 329 (Tex. Crim. App. 1986), overruled on other grounds, Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990) (“if a defendant’s evidence is undisputed as to the presence of a mental disease or defect, even if it established medical insanity, it would not necessarily establish legal insanity”). Chapter 46C addresses the procedures that are to be used in cases where insanity is an issue. 46C.051 requires the defense to file a formal notice of intent to raise the insanity defense. This notice must be served on the State and must be filed at least 20 days prior to trial, or if before the 20-day period the court sets a pretrial hearing, the defendant shall give notice at the hearing. If the notice is not timely filed, then evidence on insanity is not admissible unless the court finds good cause for the failure to give notice. Tex. Code Crim. Proc. Art. 46C.052. Defense counsel is urged to file such a notice if it is reasonably believed that the defense of insanity will be used. However, be aware that if notice of intention to raise the insanity defense is filed under Article 46C.051, the court may, on its own motion or motion by the defendant, the defendant’s counsel, or the attorney representing the state, appoint one or more disinterested experts to: (1) examine the

Mental Health

“Wrong” in the context of 8.01 means “illegal.” Thus, the question for deciding insanity is this: “Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?” Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008).

Mental Health

defendant with regard to the insanity defense; and (2) testify as to the issue of insanity at any trial or hearing involving that issue. Tex. Code Crim. Proc. Art. 46C.101. Further, the court can compel a defendant to submit to such an examination and can even order the defendant confined for a reasonable period not to exceed 21 days to submit to the examination. Tex. Code Crim. Proc. Art. 46C.104. According to Article 46C.154, the jury cannot be informed by the state, defense, or the court of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. This is unfair, plain and simple. “The absurdity and injustice of this provision is that the jurors will probably not know about the extensive statutory provisions regarding the mandatory procedures to be followed by the court upon the acquittal of a defendant by reason of insanity, including provisions to protect adequately the safety of the community, and may believe quite wrongly that a defendant acquitted by reason of insanity is free to walk out of the courthouse at the end of the trial.’ Shannon & Benson, Texas Criminal Procedure and the Offender with Mental Illness, p. 147. Order of Events: Competency Before Insanity A defendant must be evaluated for competency prior to being evaluated for insanity at the time of the offense. The focus of competency is present ability, whereas the focus of insanity is at the time of the offense. The same examiner appointed to evaluate a defendant’s competency to stand trial may also be appointed to examine the defendant with regard to sanity. However, separate written reports must be filed on the two matters. Tex. Code Crim. Proc. Art. 46C.103(a). An examiner must first evaluate a defendant for competency and may not evaluate a defendant for insanity if the examiner’s opinion is that the defendant is incompetent. Tex. Code Crim. Proc. Art. 46C.103(b). Not Guilty by Reason of Insanity In contrast to what a jury might assume, the outcome of a not guilty by reason of insanity verdict does not signify the conclusion of the legal process. Upon such a verdict the court shall immediately determine whether the offense of which the person was acquitted involved conduct that: (1) caused serious bodily injury to another person; (2) placed another person in imminent danger of serious bodily injury; or (3) consisted of a threat of serious bodily injury to another person through the use of a deadly weapon. Tex. Code Crim. Proc. Art. 46C.157. If the court makes a finding under Article 46C.157, then the court retains jurisdiction over the person until either the court discharges the person and terminates its jurisdiction or the cumulative total period of institutionalization and outpatient or community-based treatment and supervision under the court’s jurisdiction equals the maximum term provided by law for the offense of which the person was acquitted by reason of insanity and the court’s jurisdiction is automatically terminated. Tex. Code Crim. Proc. Art. 46C.158. If the court does not so find, then the court shall proceed under subchapter E (civil commitment). Tex. Code Crim. Proc. Art. 46C.159. Pending further proceedings after a finding of not guilty by reason of insanity, the court can order the defendant detained in jail or any other suitable place for a period not to exceed 14 days. Tex. Code Crim. Proc. Art. 46C.160. Additionally, if a person is found not guilty by reason of insanity, the verdict is an acquittal; however, the person cannot have the record expunged under Chapter 55. Tex. Code Crim. Proc. Art. 46C.155. What About Diminished Capacity?

There are mentally ill defendants who are competent to proceed and not insane at the time of the commission of the offense. These defendants fall in a gray area as they cannot be labeled as incompetent or insane, but still have a mental illness that affects perception and/or functioning. The question is what can be done to defend these cases where incompetency and insanity cannot be raised.

Competency It is well-established that an incompetent criminal defendant cannot be put to trial without violating due process. Medina v. California, 505 U.S. 437, 453 (1992). The requirement of competency also applies at a proceeding to adjudicate guilt, Marbut v. State, 76 S.W.3d 742, 746 (Tex. App.Waco 2002, pet. ref’d), and to pleas of guilty or nolo contendere, Tex. Code Crim. Proc. Art. 26.13(b). On suggestion that the defendant may be incompetent, from what-ever source, the trial judge is required to make “informal inquiry” whether there is evidence that would support a finding that the defendant may be incompetent to stand trial. Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001) (“competency inquiry”). The trial court has broad discretion concerning the nature and intensity of this inquiry. It would be considerably unwise for a trial court to dismiss any suggestion of incompetency. Article 46B is somewhat unclear as to the basis on which a competency situation progresses from an informal inquiry into a formal determination of competency. Dix & Schmolesky, 43 Texas Practice: Criminal Practice and Procedure 31:36 (2011). However, the best practice is to order a competency examination and trial if an agreement on (in)competency cannot be reached. The standard from Sisco v. State is controlling for purposes of determining whether evidence exists to support a finding of incompetency: The judge is to ignore any evidence indicating competency and consider only that indicating incompetency. 599 S.W.2d 607 (Tex. Crim. App. 1980) (panel op.). Unlike insanity, competency to stand trial concerns the accused’s mental condition at the time of trial. The constitutional standard for competency to stand trial asks whether the defendant has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402 (1960). Due process also mandates state procedures that are adequate to assure that incompetent defendants are not put to trial. Pate v. Robinson, 383 U.S. 375 (1966). To that end, the Texas Legislature has codified the constitutional standard for competency to stand trial and has elaborately described the circumstances that require, and procedures for making, a determination of whether a defendant is competent to stand trial. Tex. Code Crim. Proc. Art. 46B, et. seq. The legislative criteria for competency contemplates a defendant who is at least minimally able to interact with trial counsel in a reasonable and rational way in formulating decisions on how to best pursue the defense. During a competency evaluation an expert shall consider, among other enumerated factors, the defendant’s capacity to: rationally understand the charges against the defendant and the

Mental Health

There is no statutorily prescribed diminished-capacity defense due to mental illness in Texas. However, it is possible to introduce evidence to negate the mens rea element of the charged crime. This obviously includes the ability to introduce evidence of mental illness and how said mental illness affects or impacts on the formation of intent. The standard for admission of such evidence is relevance and the accused’s constitutional due process right to present a defense. Be aware that no jury instruction will be provided, however, given that inability to formulate the necessary mens rea is not a statutory defense.

Mental Health

potential consequences of the pending criminal proceedings; disclose to counsel pertinent facts, events, and states of mind; engage in a reasoned choice of legal strategies and options; understand the adversarial nature of criminal proceedings; exhibit appropriate courtroom behavior; and testify. Tex. Code Crim. Proc. Art. 46B.024. Unless there is good cause shown, an expert who is ordered to conduct a competency examination shall provide the report to all parties no later than 30 days after the date on which the expert was ordered to examine the defendant and prepare the report. Tex. Code Crim. Proc. Art. 46B.026. A defendant is entitled to representation by counsel, and appointed counsel if necessary, before any court-ordered competency evaluation. A defendant is afforded the same right to counsel during any proceeding at which it is suggested that the defendant may be incompetent to stand trial. Tex. Code Crim. Proc. 46B.007. The trial court must provide an expert of the defendant’s choice a reasonable opportunity to examine the defendant, if this is sought by timely request. Tex. Code Crim. Proc. Art. 46B.021(f). Federal constitutional law does not require that competency issues be answered by a jury. Townsend v. State, 427 S.W.2d 55, 58 (Tex. Crim. App. 1968). However, where there is a jury trial on competency, the decision of the jury is final and controlling. Ex Parte Morgan, 403 S.W.2d 803, 804 (Tex. Crim. App. 1966). Neither the State nor the defendant is entitled to make an interlocutory appeal relating to a determination of incompetency under Article 46B.005. Tex. Code Crim. Proc. Art. 46B.011. Subchapter C of Chapter 46B addresses the incompetency trial process. A jury trial is required on the issue of competency upon the request of either party or on the motion of the court. Tex. Code Crim. Proc. 46B.051. For the most part, the rules governing a competency trial are the same for a jury trial on the merits. The Texas Rules of Evidence apply. Tex. Code Crim. Proc. Art. 46B.008. A defendant is entitled to counsel, and if indigent, to appointed counsel. Tex. Code Crim. Proc. Art. 46B.006. The Court of Criminal Appeals has also assumed that provisions for change of venue as articulated in the Code of Criminal Procedure apply to competency trials. Penry v. State, 903 S.W.2d 715, 727 (Tex. Crim. App. 1995) (per curium). A unanimous verdict is required. Defense counsel is permitted to question jurors on whether they have any views of the defendant’s guilt. Brandon v. State, 599 S.W.2d 567, 572 (Tex. Crim. App. 1979), vacated and remanded on other grounds, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981). However, the number of preemptory challenges follows the civil rule. There is a presumption of competency, and the burden of proof is a preponderance of the evidence rather than beyond a reasonable doubt. Tex. Code Crim. Proc. Art. 46B.003. Of interesting note, under Manning v. State, 773 S.W.2d 568 (Tex. Crim. App. 1989) (per curium), adopting Manning v. State, 766 S.W.2d 551 (Tex. App.Dallas 1989), defense counsel can be called by the State in support of its claim that the defendant is competent over a claim by the defendant of attorneyclient privilege as long as: (1) the attorney does not reveal the contents of any confidential communications to the attorney by the defendant; and (2) the attorney must testify only to facts and conclusions based on observations and conversations with the defendant that other persons not representing the defendant could have made or had. If, after a jury trial on the issue of competency, a defendant is determined to be competent a separate jury is required for the trial on the merits of the criminal case. Tex. Code Crim. Proc. Art. 46B.053.

If, however, a defendant is determined to be incompetent then the court has basically two options: (1) release the defendant on bail, or (2) commit the defendant to a mental health facility or residential care facility. There is an option to commit the defendant to a jail-based competency restoration program (JBCR). This sounds like an excellent option to avoid the languishing waits in county jails for a bed at the state hospital.

In order to have any realistic chance at release on bail after a determination of incompetency, a tremendous amount of work needs to be conducted before the competency trial. Finding a treatment facility and obtaining a comprehensive treatment plan before the competency trial is a must. Defense counsel must be prepared to offer to the trial court – as soon as the finding of incompetency has been made – evidence in accordance with article 46B.072(a)(1) for any realistic chance for the defendant to be released on bail. This is akin to preparing for the punishment phase in the trial on the merits. The preparation must occur before the trial; it is too late to start preparing when the jury is deliberating, and success is not achieved on an impromptu basis. Where there has been a finding of incompetency, the trial court shall commit a defendant to a mental health facility, residential care facility, or JBCR program for a period of not more than 60 days if the offense is a misdemeanor and not more than 120 days if the offense if a felony. Tex. Code Crim. Proc. Art. 46B.073. If the defendant is charged with an offense under article 17.032(a) of the Code of Criminal Procedure, then the Court shall enter an order committing the defendant to a maximum-security unit for competency restoration. Id. The Court may grant one 60-day extension under article 46B.080 upon request of the head of a facility or program provider for a defendant who has not regained competency during the initial restoration period. After an initial restoration period and an extension have been ordered, any subsequent orders for treatment must be issued under Subchapter E or F (both dealing with civil commitment). The court is required to notify the state and defense counsel of the defendant’s return not later than the next business day following the defendant’s return from the state hospital. Within three days of the date of said notice, defense counsel shall meet and confer with the defendant to evaluate whether there is any suggestion that the defendant has not yet regained competency. Tex. Code Crim. Proc. Art. 46B.084.When the defendant returns to the court after hospitalization, the court must make a determination with regard to the defendant’s competency to stand trial. The determination may be made on the most recent report filed under Article 46B.079(c) and other medical and personal history information of the defendant. Importantly, Article 46B.084(a-1) identifies the procedure for objecting to a report filed under Article 46B.079(c). If a party objects under Subsection (a-1), the issue shall be set for a hearing. Tex. Code Crim. Proc. Art. 46B.084(b). The hearing is before the court – except that on motion by the defendant, the

Mental Health

Release on bail, after a determination of incompetency, is permissible if the defendant is ordered to participate in an outpatient program for not more than 120 days. A felony defendant may be released on bail and required to participate in an outpatient treatment program if: the court determines the defendant is not a danger to others and may be safely treated on an outpatient basis; the court determines an appropriate outpatient treatment program is available for the defendant; the court receives and approves a comprehensive plan for the outpatient treatment; and the court finds that the treatment proposed by the plan will be available to and will be provided to the defendant. Tex. Code Crim. Proc. Art. 46B.072(a)(1).

defense counsel, the prosecuting attorney, or the court, the hearing shall be held before a jury. Id. If there is a finding that the defendant is unlikely to be restored to competency in the foreseeable future the Court shall either release the defendant on bail (a highly unlikely scenario) or proceed under Subchapter E or F, both dealing with civil commitment. See Tex. Code Crim. Proc. Art. 46B.071.

Mental Health

If a defendant is ultimately convicted of a criminal offense, the court must credit the defendant’s sentence for any time that he has been confined in a mental health facility, residential care facility, or jail pending trial. Tex. Code Crim. Proc. Art. 46B.009. Mental Health Court Jail and/or prison are particularly bad places to be for the mentally ill. Solitary confinement is a reality for many inmates with mental illness. In September 2017, Texas quietly eliminated the use of solitary confinement for punitive reasons; solitary confinement still remains an option in Texas prisons for “administrative segregation” (gang affiliation, etc.). This is part of a larger, national shift towards reform or elimination (in some states) of the use of solitary confinement in prisons. The conditions of incarceration, and certainly solitary confinement, only serve to exacerbate the symptoms of a mentally ill inmate or provoke recurrence. To be clear, the corrections system is not designed nor is it equipped to provide mental health treatment and/or services. There can be no doubt that some solution other than warehousing mentally ill people is necessary – and certainly more humane and civil. In that vein, some counties have created mental health court programs for adult and/or juvenile offenders. Mental health courts are specialty diversionary courts directed at adults and juveniles with severe mental illness. The court is created under the authority of Section 76.011 of the Government Code. It is important to be familiar with the parameters and admissions criteria for the mental health court as it provides a long overdue positive alternative to incarceration. Mitigation Mitigating evidence is not evidence that excuses certain conduct but rather evidence that would help lessen any potential punishment received based on the conduct. Defense lawyers have a constitutional duty to clients to fully investigate and present mitigating evidence during the punishment phase of a criminal proceeding. Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v. Smith, 539 U.S. 510 (2003). In January Furthermore, in the “Performance Guidelines for Non-Capital Criminal Defense Representation” adopted by the Texas State Bar Board of Directors were written 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). 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. Conclusion

The complexities of representing mentally ill clients demand a heightened level of patience, empathy, and understanding from lawyers. Each interaction requires a delicate balance of legal expertise and compassionate support. Moreover, these clients frequently face a multitude of additional challenges in their lives, such as poverty, unemployment, crime, victimization, family strife, homelessness, substance abuse, and physical health issues. Furthermore, involvement with the criminal justice system can further compound these challenges. For many individuals with mental illnesses, contact with the legal system exacerbates existing social marginalization, disrupts access to treatment and support services, or serves as their initial entry point into mental health care. As such, legal representation for mentally ill clients is not merely about navigating legal proceedings but also addressing the broader societal factors that contribute to their marginalization and vulnerability.

Mental Health

Representing clients with mental illness poses significant challenges for legal professionals. These individuals often require a substantial investment of time and effort due to their unique needs and behaviors. Interacting with mentally ill clients can be emotionally draining and demanding, especially when they exhibit repetitive questioning, emotional shutdowns, or agitation over minor issues.

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Demystifying Experts Speaker:

Huma Yasin

Demystifying Experts

Spangler Law, PLLC 400 N. Saint Paul St, Suite 750 Dallas, TX 75201 214.295.2379 phone 555.555.555 fax hyasin@spanglerlaw.com email

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

DEMYSTIFYING EXPERTS Huma T. Yasin Spangler Law, PLLC 400 N. Saint Paul St., Suite 750 Dallas, Texas 214-295-2379 hyasin@spanglerlaw.com Introduction: The objective of this paper is to provide practical steps (and the reasons for the steps) for handling experts from the time you file your letter of representation all the way through trial, preserving issues for appeal. At the end, I’ve provided sample motions we use at Spangler Law, drafted and amended over time by Jim Spangler. I’ve also included Michael Gross’ paper (with permission) from a couple of years ago – because it is brilliant, teeming with case law, and is absolutely worth the time to go through. Before jumping in, try thinking of each of the State’s experts as your own witnesses that will help build your theory of the case for the jury. Even though it sounds counterintuitive, it is incredibly effective.

Demystifying Experts

PRETRIAL You Just Filed your LOR, Now What? Right after filing your letter of representation, you should formally file your TRCP 39.14 request, asking for the full scope of everything the Michael Morton Act allows. 39.14(b) specifically states: On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. So long as you file your request 30 days before trial, the State is required to disclose the aforementioned information before the 20th day of trial. (TCRP 39.14). But don’t wait – the earlier you file your discovery request, the more onerous it becomes on the State to make the case that last minute disclosures should be admitted. Oh Great, They’ve Got Experts! Once you receive information that the State plans on using experts – there are a few things you should do: 1. Check out their social media. See what their online presence is like. a. You can use this in a myriad of ways – they may have posted things that illustrate a deep bias which you can cross them on. Alternatively, they may have

2. 3.

hobbies you can connect with them on which may be helpful in building rapport and trust before you have a conversation about the case with them. Do a Lexis/WestLaw search on them. Has any other court previously rendered an opinion rejecting their qualifications as an expert? See how many other trials they have testified in and reach out to the defense attorneys in the event that they may have transcripts; it’ll give you a good heads up about how they testify and can contain a goldmine of information you may be able to use in cross, especially if their scientific theories are wildly distinct from trial to trial. Get their CV: a. Find out where they went to school and subpoena their college transcripts. Cs and Ds may be good enough to be the government’s expert, but it shouldn’t be good enough to rely on their testimony to convict your client. b. Have they published in peer reviewed journals? Is there a schism in the scientific community concerning their theory, making the basis for their testimony not widely acceptable? i. If so, look at the publications from the other perspective and send it to the expert beforehand so you can potentially discuss it on cross. If possible, go to their office! Check out what is on their walls and… have a subpoena in your hand that requires them to turn over the documents you want. This will give you a much more comprehensive disclosure than if you go through the prosecutor to get the same information.

Sorry, but that Joker Ain’t No Expert:

First, try challenging the expert qualification all together so the witness isn’t able to testify under TRE 702. If they are qualified as an expert, jump to TRE 703 and argue that the facts/data relied upon aren’t generally accepted by experts in that field. Also, demand the underlying facts/data relied upon in that particular case, argue that the same does not provide a sufficient basis for the opinion. You have a right to a voir dire hearing under 705(b) and you should use it! Get them on the record, under oath, and committed. It’s critical not only for your client in that particular case, but for the expert to be qualified in other cases in the future too. If they’re not challenged and allowed to continually testify, courts can take judicial notice of their reliability within that particular methodology. show:

In determining whether a trial court should qualify a witness as an expert, the State must 1. The field of expertise is legitimate; 2. The subject matter of the expert fits within the scope of that particular field; AND

Demystifying Experts

Time and time again, the State notices witnesses as experts that don’t seem to have any real expertise, expertise that is relevant, or expertise that will help the jury in understanding the evidence or determining a fact at issue. This is the time to use Texas Rules of Evidence 702, 703, and 705 hearings (the rules are included below)! And remember – it is the proponent’s burden (in this case the State) to show by clear and convincing evidence that the witness is qualified as an expert, their testimony is relevant, reliable, and will assist the trier of fact.

3. The expert uses the principles employed in that field for their testimony The trial court must also determine the following prior to admitting expert testimony: 1. The testimony is reliable and relevant; a. The underlying scientific theory is valid (look at the 7 enumerated factors in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) b. The technique applying the theory is valid; and c. The technique was properly applied in the case at hand. 2. The testimony would assist the jury to understand the evidence or in determine a fact in issue; 3. The expert has made an effort to sufficiently tie the pertinent facts of the case to meet the requirement that it be helpful to the jury; 4. The probative value of the testimony is substantially outweighed by the prejudice under a TRE 403 analysis

Demystifying Experts

WHO IS AN EXPERT: TRE 702: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue. WHAT CAN THEY BASE THEIR OPINION ON: TRE 703: An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. YOUR RIGHT TO FIND OUT WHAT THEY DID IN FACT BASE THEIR OPINION ON: TRE 705: (a) Stating an Opinion Without Disclosing the Underlying Facts or Data. Unless the court orders otherwise, an expert may state an opinion-and give the reasons for it- without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on crossexamination. (b) Voir Dire Examination of an Expert About the Underlying Facts or Data. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may-or in a criminal case must-be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.

(c) Admissibility of Opinion. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion. (d) When Otherwise Inadmissible Underlying Facts or Data May Be Disclosed; Instructing the Jury. If the underlying facts or data would otherwise be inadmissible, the proponent of the opinion may not disclose them to the jury if their probative value in helping the jury evaluate the opinion is outweighed by their prejudicial effect. If the court allows the proponent to disclose those facts or data the court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly. When you are contesting the expertise – look at the “science” they are “science-ing” and see if it comports with accepted practices in the field of study. Basically, if it’s not nuclear DNA, there’s likely some widely-known, reputable, peer-reviewed study saying that field of science is not reliable forensically. Look at the 2009 NAS report Strengthening Forensic Science in the United States, National Commission on Forensic Science findings, the 2016 PCAST Report (Report to the President – Forensic Science in Criminal Courts Ensuring Validity of FutureComparison Methods) to poke holes at the reliability of the methods/practice. Also, check out the latest publications from the Texas Forensic Science Commission. These are treasure troves of information/language to cast doubt on the credibility of the scientific methods the expert is testifying to.

Hey! I Want an Expert Too! Depending on the case, your client may also benefit from an expert. If the State requests disclosures regarding testifying experts in advance of trial, the Defense must also produce the disclosures. However, there is a difference between consulting and testifying experts. The Defense team isn’t required to produce the former, only the latter. If your practice is like mine, your clients may not be able to afford to pay an expert. This doesn’t mean you can’t get an expert! It just means that you have to take the additional step to approach the court using an ex parte motion, filed under seal requesting money for an expert – the Court should grant reasonable requests as part of your client’s constitutional right to a fair trial. The next step is to send the expert a letter stating that you are retaining the expert as a consulting expert and that they are not allowed to provide anyone information without the consent of your firm. The letter should specifically delineate the parameters of what you want the expert to evaluate. It limits what the expert will do, because there are circumstances in which you absolutely do not want them to evaluate certain things. So, be sure to limit the scope of what their testimony will cover.

Demystifying Experts

Often it feels like trial courts are far too permissive in qualifying experts and allowing expert testimony that doesn’t pass real scientific muster. When this happens, during trial, at the conclusion of testimony, ask for a motion to strike the expert testimony. Even if it’s denied, it’s preserved for appeal.

The letter should also include your understanding of their hourly rate, how much the expert has quoted as a time estimate for the evaluation, and attach the court order authorizing that expenditure from the court. State clearly within this letter, that if they approach this cap or are in danger of going over it, they should contact you immediately. Experts can be fantastic pre-trial, during trial, and during mitigation. Once you develop the theme of your case, it’ll become apparent where the gaps are and who can best fill them and how. TRIAL Developing Your Theme: You’ve gone through all the discovery, you’ve reviewed all of the expert analyses, and had all of your hearings, and you’ve come up with the theory of your case that you will need to bring out with every single witness. Now it’s time to synthesize that theory into a theme that the jury can understand – the shorter, the more succinct, the better. Think of distilling the entire case theory to a movie headline or a mantra that can be repeated.

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Recently, I co-counseled a capital murder case and our theme was – sloppy police work, circumstantial evidence, and tunnel vision. I started my opening statement with those three words and repeated it three times. With every single one of the State’s witnesses, our cross was focused on those three things – there was stupidity, laziness, no direct evidence, and a rush to judgment. And then in close, lead counsel Erin Kelley came back and repeated the same three words and went through how each witness, including the experts, fit within this narrative. Make sure your cross is walking the State’s expert down your theory and theme. You don’t have to focus on every single possible issue – just order the cross by chapter, focus on one thing at a time and make them your best witness. Casting the Right Character: The theme of the case and the type of expert testimony you expect will help you determine what character you need the State’s expert to play – Poor Schmuck? Dummy? Puppet? Devil? Dr. Frankenstein? Once you determine what character your expert plays with your theme, craft all of your questions around that narrative. Remember – word choice is everything! The way that a jury is impacted by terms like instrument v. machine or collision v. crash is distinct. Pick the word that most readily develops your theme. For example, let’s say that the expert in your case is going to testify to BAC in a DWI case but no testimony was given as to time of last drink or quantity. Your client looks great on camera, the BAC isn’t terribly high, and it’s very possible that he was rising at the time of the draw. This is one where inadvertent puppet is a good character to assign.

In fact, in that scenario, you may even want to bolster the expert because ultimately, they can’t testify they know definitively that your client was above .08 at the time of driving. You’ve already pinned them down on their testimony since you’ve done your pretrial hearings and know exactly what the expert will say – there should be no surprises unless they change their testimony. You may even want to use terms like instrument, rather than machine. This machine is so great! You’re so smart! And even if you did everything right, everything was properly measured and calibrated – and I’m sure you did because you’re Dr. Smarty McSmarterson – you still wouldn’t be able to testify with any degree of certainty that at the time of driving, my client’s BAC was above a .08? But you had to come here because the State asked you to, right? And you work for the government? Your paycheck comes from the County? And you’ve never testified as an expert for anyone but the State since you’ve had this job, have you? Be creative! Think of the different ways where the State’s expert is actually your best expert and lean in! Battle of the Experts: There are times when it is appropriate to have a defense expert in the same field of study to essentially rebut the State’s expert. Make sure you have your expert present during the State’s expert’s testimony – they aren’t subject to the Rule like other witnesses.

Closing: You opened with a theme. Each witness fit within your theme. The experts were cast in accordance with your theme. When you close, make sure you explicitly liken the expert to whatever character you’ve cast them as, integrating the evidence/testimony. You may not want to use the word “puppet” when referring to the State’s analyst in the example above – but you can mime a sock going over your hand and gesture your hand such that it’s an obvious talking puppet just as you’re narrating their testimony. Once again, be creative and good luck!

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If you’re putting on an expert that may not have a lot of experience testifying – prepare, prepare, prepare. The smarter your expert is and the more complex the subject matter, the more challenging they will be to follow when on the stand. Make sure that you break everything down to a 3rd grade nuts and bolts level by crafting short concise questions which don’t allow for long narratives, so the jury can track. The more complex the matter, the more helpful demonstrative exhibits become – visuals really help aid the jury connect the dots. During their testimony, try to get your expert to talk about how the basis for the State’s expert’s opinion is based on faulty science (if possible).

TEMPLATES

MMA REQUEST: CAUSE NO. STATE OF TEXAS VS. CLIENT

§ § § § §

IN THE CRIMINAL DISTRICT COURT X COUNTY, TEXAS

DATE To: X COUNTY DISTRICT ATTORNEY’S OFFICE

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Subject:

REPRESENTATION NOTICE, ARTICLE 39.14 TIMELY REQUEST FOR DISCOVERY, REQUEST FOR PRETRIAL NOTICE AND DISCLOSURES FROM THE STATE, AND REQUEST FOR DISCOVERY AND INSPECTION OF EVIDENCE Defendant: Cause Number(s):

******* *******

I. REPRESENTATION NOTICE AND TIMELY REQUEST FOR DISCOVERY UNDER ARTICLE 39.14 1. I am the attorney of record for the subject defendant in a criminal matter or matters being handled by your office. My letter of representation or appointment is on file with the court and has been entered into the county mainframe under the subject cause number(s). 2. Pursuant to Article 39.14 of the Texas Code of Criminal Procedure, please consider this my client’s timely request for discovery. I certify that my contact information is correct in the Techshare Program utilized by your office for provision of discovery.

3. I understand that I will receive a notice indicating that the discovery has been made available to me via the Techshare Program. I hereby request notice regarding the times and manner available for viewing discovery not available via Techshare. II. REQUEST FOR PRETRIAL NOTICE AND DISCLOSURES FROM THE STATE Defendant, prior to trial in this case, hereby requests the State provide notice of the following matters (a negative response, if appropriate, is also requested): 1. EVIDENCE FAVORABLE TO DEFENDANT: Defendant requests, in accordance with the United States Supreme Court’s decisions in Brady v. Maryland 1, Giglio v. United States 2, United States v Agurs 3, United States v. Bagley 4, Kyles v. Whitley 5, and other cases, that the State disclose, in writing, all evidence favorable to Defendant, including information that may reasonably tend to impeach the credibility of government witnesses, specifically including law enforcement officers or other government employees. This request is not intended to substitute for the affirmative duty of a prosecutor to seek out, obtain, and disclose such material even in the absence of a request. This request is made, in part, to memorialize such duty for the record.

(a) (b) (c)

Name of each expert witness; Contact information for each expert witness; and The current resume or CV of each expert witness.

3. EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS: Defendant requests, in accordance with Rule 404(b), TEX. R. EVID. and McDonald v. State, 179 373 U.S. 83 (1963). 405 U.S. 150 (1972). 3 427 U.S. 97 (1976). 4 473 U.S. 667 (1985). 5 514 U.S. 419 (1995). 1 2

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2. EXPERT TESTIMONY: Defendant requests, in accordance with TEX. CODE CRIM. PRO. Art. 39.14(b), that the State disclose, in writing, the name and address of each person the State may use at trial to present evidence under Rules 702, 703, and 705, TEX. R. EVID. Defendant requests that such disclosure be made not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. Defendant specifically requests notice of the following:

S.W.3d 571 (Tex.Crim.App.2005), that the State provide written notice of its intent to introduce, in its case-in-chief, any evidence of other crimes, wrongs, or acts not arising in the same transaction as the offense or offenses charged in this case, or arising in the same transaction but not necessary to the jury’s understanding of the charged offense or offenses. Defendant specifically requests notice of the following with respect to each and every alleged crime, wrong, and act the State intends to introduce under this Rule: (a) Name of the alleged victim; (b) Date of the alleged crime, wrong, or act; (c) County of the alleged crime, wrong, or act; (d) Description of the alleged crime, wrong, or act; and (e) Names and contact information for all witnesses to the alleged crime, wrong, or act.

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4. PRIOR CONVICTIONS OF WITNESSES: Defendant requests, in accordance with Rule 609(f), TEX. R. EVID., and Article 39.14(a) of the Texas Code of Criminal Procedure, that the State provide written notice of its intent to introduce evidence of any prior criminal conviction or convictions against the Defendant, and/or against any witness known to the State, or who appears on either the State’s or Defendant’s witness list, to be provided at a later time. Defendant specifically requests notice as to the following: (a) (b) (c) (d) (e)

Type of offense of each alleged prior conviction; Date of each alleged prior conviction; County of each alleged prior conviction; A copy of the public record sought to be introduced as to each alleged prior conviction; and Whether each alleged prior conviction is a felony or a misdemeanor.

5. PUNISHMENT EVIDENCE: Defendant requests, in accordance with Article 39.14(a) of the Texas Code of Criminal Procedure and Article 37.07, Section 3, of the Texas Code of Criminal Procedure, that the State provide written notice of its intent to introduce evidence of other crimes, wrongs, or acts, whether adjudicated or unadjudicated, during the sentencing phase in this case, if any. Defendant specifically requests notice of the following with respect to each and every alleged crime, wrong, and act the State intends to introduce under this Article: (a) (b)

Name of the alleged victim; Date of the alleged crime, wrong, or act;

(c) County of the alleged crime, wrong, or act; (d) Description of the alleged crime, wrong, or act; and (e) Names and contact information for all witnesses to the alleged crime, wrong, or act. 6. LIST OF STATE’S WITNESSES FOR TRIAL: Defendant requests that the State provide a list of all witnesses it intends to call at trial. III. INITIAL REQUEST FOR DISCOVERY AND INSPECTION OF EVIDENCE Defendant, prior to trial in this case, hereby requests the State produce and permit defense inspection, copying, and photographing of the following designated items: 1. Any offense report generated in connection to this case; including all written notes, corrections, and instructions on the wording and/or mistakes by officers in drafting probable cause affidavits and case narratives of said offense report. 2. Any documents or papers relevant to this case, specifically any laboratory testing results (forensics, ballistics, serology, DNA, trace evidence analysis, etc.).

4. All confessions, admissions and statements, in any format, allegedly made by Defendant in connection with this case, as well as all waivers of right to counsel, all search authorizations, and all other documents signed by or provided to Defendant concerning Defendant’s legal rights. 5. Any books, accounts, letters, photographs, objects, or other tangible things, not otherwise privileged, that constitute or contain evidence material to any matter involved in the action. 6. Call logs related to this offense. 7. In-car audio/video and body microphone audio/video of all officers present at the scene, whether arresting or assisting.

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3. All statements, in any format, made by any person in connection with this case, including the witness statements of law enforcement officers.

8. Full criminal history of the complaining witness, including but not limited to: cases in which a complaint was made against the complainant but no charges were filed or arrest made, etc. 9. All video and audio recordings of Defendant or any other person, made in connection with this case by any law enforcement or other government agency, to include the District Attorney’s Office. This request includes any audio or video recordings from a vehicle dash camera, an officer’s body-mounted camera, or similar recording device. 10. All objects alleged by the State to have been taken by Defendant during the commission of the offense charged in this case. 11. Any drugs, controlled substances or drug paraphernalia seized in connection with this case, in order to permit Defendant or a defense expert to examine, test and inspect them.

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12. All weapons alleged by the State to have been used by Defendant, or by any other person, during the commission of the offense charged in this case. 13. All photographs, drawings and charts of the crime scene or the scene of Defendant’s arrest, made in connection with this case by any law enforcement or other government agency, to include the District Attorney’s Office. 14. All reports of psychological tests, experiments, evaluations, and/or treatment of the complainant in this case, as well as all data produced thereby, and the name, address and telephone number of each person who made such reports and conducted such tests, experiments, evaluations, and/or treatment of the complainant in this case. 15. All medical reports which show or tend to show the physical condition of the complainant at or about the time of the commission of the alleged offense, and/or as an alleged result of the alleged offense. 16. All reports of scientific tests, experiments and comparisons performed in connection with this case, as well as all underlying data and reference material produced or relied upon thereby, and the name, address, and telephone number of each person who made such report or performed such test, experiment or comparison. This request includes, but is not limited to, responsive material pertaining to controlled substance analysis, computer forensic analysis,

fingerprints, shoeprints, DNA analysis, biological samples, accident reconstruction, firearms, blood spatter, and tool marks. 17. The results of any blood or breath test taken by Defendant in this case. 18. All articles of clothing seized in connection with this case that are alleged to belong to Defendant or to the complainant. 19. All police reports, CPS/DFPS reports, or other reports prepared by government officers or employees, either pertaining to Defendant, the complainant, or any member of their immediate family, whether or not directly related to this case. 20. All written notes or “field notes” created or taken by law enforcement officers, crime scene investigators, medical examiners, CPS/DFPS employees, or any other person who participated in any manner in this case or in a CPS/DFPS case related to this case, whether or not such notes were relied upon in the preparation of reports related to this case. 21. All search warrants, arrest warrants and affidavits in support thereof, used or relied upon by law enforcement authorities in connection with this case. 22. The names, descriptions, mug shots, and full contact information for all persons who were interrogated and/or arrested in connection with this case.

24. All photographic negative prints, whether heretofore developed or not, that were made by law enforcement or any other government employee in connection with this case. 25. All photographs made of any line-ups conducted in connection with this case. 26. All forms or documents used by law enforcement authorities to identify all participants in any line-up wherein Defendant was a participant, which includes information as to each participant in the line-up and as to each witness who was present at the line-up. 27. All photographs of Defendant that were used in connection with this case, including any photograph which may have been shown by any law enforcement officer to any potential witness in this case.

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23. All photographs of suspects which were shown to all witnesses in connection with this case, concerning the identity of the perpetrator.

28. All medical and psychiatric reports submitted by any person at the request of the State or the Court concerning any examination or evaluation of Defendant. 29. All evidence, relevant to Defendant’s competency to stand trial, that is in the possession of or within the knowledge of the District Attorney's office or any of its agents. 30. All evidence, relevant to Defendant’s sanity or insanity either at the time of the alleged offense or afterward, that is in the possession of or within the knowledge of the District Attorney's office, any of its agents, or law enforcement.

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31. All evidence that any State’s witness has committed perjury or made any statement or given any testimony that conflicts with or contradicts the testimony given by said witness during the trial of this case. 32. The prior criminal record of each State's witness, both in the State of Texas and in the United States, to include all arrests and convictions, whether as a juvenile or as an adult, including but not limited to: (a) all final convictions for all felonies and all misdemeanors involving moral turpitude that have occurred in the last ten years measured from the date of conviction or the date of release from incarceration, whichever is latest; (b) all felony convictions and misdemeanor convictions involving moral turpitude that have resulted in a suspended sentence that has not been set aside; (c) all felony convictions and misdemeanor convictions involving moral turpitude that have resulted in the person being placed on probation, wherein the period of probation has not expired; and (d) all pending felony and misdemeanor offenses. 33. The prior criminal record of Defendant, both in the State of Texas and in the United States, including all arrests and convictions, whether as a juvenile or as an adult, including but not limited to: (a) all final convictions for all felonies and all misdemeanors involving moral turpitude that have occurred in the last ten years measured from the date of conviction or the date of release from incarceration, whichever is latest;

(b) all felony convictions and misdemeanor convictions involving moral turpitude that have resulted in a suspended sentence that has not been set aside; (c) all felony convictions and misdemeanor convictions involving moral turpitude that have resulted in the person being placed on probation, wherein the period of probation has not expired; and (d) all pending felony and misdemeanor offenses. 34. Any materials that may be produced, offered, or used, in any phase of the trial, to form the basis of an opinion or to prove that: (a) Defendant has been charged, pleaded to, or convicted of another crime; or (b) Defendant has committed a crime, wrong, or otherwise bad act that could negatively impact Defendant in either phase of trial. This request includes court records, statements, jail or prison records, police records, or any other documents, recordings, photographs, etc. 35. Copies of any pen packets, certified government documents, prior conviction records and any other document related to Defendant’s prior criminal record.

a. the prospective witness’s complete criminal history, including any charges that were dismissed or reduced as part of a plea bargain; b. any grant, promise, or offer of immunity from prosecution, reduction of sentence, or other leniency or special treatment, given by the state in exchange for the person’s testimony; and c. information concerning other criminal cases in which the person has testified, or offered to testify, against a defendant with whom the person was imprisoned or confined, including any grant, promise, or offer as described by paragraph (b) given by the state in exchange for the testimony. 37. The prior criminal record of any co-defendant, and/or co-conspirator, both in the State of Texas and in the United States, including all arrests and convictions, whether as a juvenile or as an adult, including but not limited to: (a) all final convictions for all felonies and all misdemeanors involving moral turpitude that have occurred in the last ten years measured from

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36. Defendant requests disclosure of any information relevant to credibility of any witness to whom the defendant allegedly made a statement while imprisoned or confined in the same correctional facility. Under Tex. Code Crim. Proc. Art. 39.14 (h-1), such disclosure must include any information in the possession, custody, or control of the state of Texas, and shall include:

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the date of conviction or the date of release from incarceration, whichever is latest; (b) all felony convictions and misdemeanor convictions involving moral turpitude that have resulted in a suspended sentence that has not been set aside; (c) all felony convictions and misdemeanor convictions involving moral turpitude that have resulted in the person being placed on probation, wherein the period of probation has not expired; and (d) all pending felony and misdemeanor offenses. 38. The prior criminal record of any informant or other person who has aided in the investigation or prosecution of this case, including all arrests and convictions, whether as a juvenile or as an adult, including but not limited to: (a) all final convictions for all felonies and all misdemeanors involving moral turpitude that have occurred in the last ten years measured from the date of conviction or the date of release from incarceration, whichever is latest; (b) all felony convictions and misdemeanor convictions involving moral turpitude that have resulted in a suspended sentence that has not been set aside; (c) all felony convictions and misdemeanor convictions involving moral turpitude that have resulted in the person being placed on probation, wherein the period of probation has not expired; and (d) all pending felony and misdemeanor offenses. 39. All recordings, in any format, including pen registers, and transcriptions thereof, of all information and evidence obtained by means of electronic eavesdropping and/or surveillance by law enforcement, and all test results run on said recordings, in order to permit Defendant to adequately and properly test the validity and authenticity of each of said recordings prior to trial by an expert of Defendant's choosing. 40. All physical objects in the State’s possession that belong to Defendant, including but not limited to documents, papers, books, accounts, letters, objects and tangible things. 41. All physical objects in the State’s possession that belong to any person, including but not limited to documents, papers, books, accounts, letters, objects and tangible things, that are material evidence in this case as to Defendant's guilt or innocence, or as to the punishment, if any.

IV. Defendant requests the production by the State of the requested materials be completed as soon as practicable.

Respectfully submitted,

/s/ Huma T. Yasin Huma T. Yasin Spangler Law PLLC SBN: 24115971 400 N. Saint Paul St., Suite 750 Dallas, TX 75201 Phone: 214-932-3030 Fax: 972-275-9967 Email: hyasin@spanglerlaw.com

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MIL – 702, 703, 705 Hearing Requests CAUSE NO. STATE OF TEXAS VS. CLIENT

§ § § § §

IN THE CRIMINAL DISTRICT COURT X X COUNTY, TEXAS

MOTION IN LIMINE, FOR HEARING TO DETERMINE RELEVANCYAND RELIABILITY OF EXPERT TESTIMONY AND FOR DISCLOSURE OF FACTS AND DATA UNDERLYING EXPERT OPINION TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES CLIENT’S NAME, the Accused, by and through undersigned counsel, and pursuant to Texas Rules of Evidence 104, 702, 703, and 705, and files his/her motion in limine, his motion requesting a pretrial determination of the relevancy

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and reliability of expert testimony and for disclosure of any facts or data underlying any expert opinion offered by the State and for cause would show the Court as follows: I. The Accused is charged with the offense of THE CHARGE. The defense anticipates that the State will offer expert and/or scientific testimony from a witness the Accused had WHATEVER IS RELEVANT HERE. II. The Accused requests a pretrial hearing to determine whether or not the witness/officer is qualified to testify to scientific, technical or other specialized knowledge that will assist the jury; whether the testimony of the witness/officer is

relevant to the issue before the Court and reliable; whether the witness/officer employed proper methodology in performing his/her tests and reaching his/her conclusions; and whether the scientific basis for any opinion testimony is relevant and reliable. Tex. R. Evid. 702 III. Accused requests a pretrial hearing to determine facts or data which underlie any expert opinion offered by the State and whether such facts or data provide a sufficient basis for the expert’s opinion. Tex. R. Evid. 705(b) IV. The Accused moves the Court to instruct the prosecution not to mention, allude to, or refer to, directly or indirectly, during any stage of this trial, including but not

examination of any witnesses, that the Accused had INCORPORATE SPECIFICS OF CASE, or the opinion of any expert until such time as the requested hearings have been conducted outside of the hearing of the jury to determine the admissibility of any such testimony. WHEREFORE, PREMISES CONSIDERED, the Accused respectfully prays that the Court conduct the pretrial hearings requested herein and prohibit the prosecution from mentioning, alluding or in any way mentioning or eliciting any expert opinion or

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limited to, voir dire examination, opening statements, and the direct and cross-

scientific evidence until the Court has determined the admissibility of such testimony outside the presence of the jury. Respectfully submitted,

/s/ Huma T. Yasin Huma T. Yasin Spangler Law PLLC SBN: 24115971 400 N. Saint Paul St., Suite 750 Dallas, TX 75201 Phone: 214-932-3030 Fax: 972-275-9967 Email: hyasin@spanglerlaw.com

CERTIFICATE OF SERVICE

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I hereby certify that a copy of the above and foregoing motion was delivered to the District Attorney’s Office by hand, first-class mail postage pre-paid, or e-filing, on the date of this filing.

/s/ Huma T. Yasin Huma T. Yasin

Request for Court Approved Expert Funding for Indigent Defendants This one I filed is for an investigator, but I’ve used the same form and modified it for blood analysts, cell phone, psychologists, etc. CAUSE NO. STATE OF TEXAS VS. CLIENT’S NAME

§ § § § §

IN THE CRIMINAL DISTRICT COURT NUMBER DALLAS COUNTY, TEXAS

This motion is to be considered EX PARTE and is filed for purposes of the record. This motion is required to be SEALED, by law, and disclosure shall be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT.

EX PARTE MOTION FOR FUNDS TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES CLIENT’S NAME, the Accused, by and through undersigned

pursuant to the Texas Code of Criminal Procedure, article 26.05. In support of this motion, the Accused shows the Court as follows: I. The Defendant is charged with the offense of Aggravated Kidnapping. II. The Defendant is personally indigent. He was originally appointed counsel due to his indigency for this offense on ******. Defendant has been incarcerated at Lew

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counsel, and respectfully moves the Court to provide funds for investigation expenses

Sterritt since the date of his arrest and has had no opportunity to change his financial abilities. Another individual gratuitously financed retained counsel for this case. III. The Defendant is indigent and without funds to hire an investigator to produce discoverable documents and investigate the case. IV. Due to the serious nature of the offense, and in order to prepare this case properly to insure that the Defendant’s rights under the 6th Amendment of the United States Constitution and Article I §10 of the Texas Constitution are protected, it will be necessary to hire an investigator, and the Defendant requests that under the authority of

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Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995) the Defendant be granted an ex parte hearing in order to support this motion. In order to properly prepare this case, defense counsel will be required to hire an investigator develop the underlying facts in this case, to produce discoverable documents and witnesses, and to identify witnesses who can develop evidence and testimony related to the underlying facts of this case and potential motives on the part of the complaining witness.

V. In the event funds are not authorized as requested the Defendant will suffer egregious harm and will not be given a fair trial, to wit: he will be unable develop evidence contesting the State’s case in chief. These matters go to the heart of the Defendant’s guilt or innocence.

WHEREFORE, premises considered, Defendant prays that this Court authorize reasonable funds to permit the Defendant to hire an expert witness as requested and the Court approve for payment by the County Auditor of Dallas County any reasonable bills presented.

/s/ Huma T. Yasin Huma T. Yasin Spangler Law PLLC SBN: 24115971 400 N. Saint Paul St., Suite 750 Dallas, TX 75201 Phone: 214-932-3030 Fax: 972-275-9967 Email: hyasin@spanglerlaw.com

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Respectfully submitted,

CAUSE NO. § § § § §

STATE OF TEXAS VS. CLIENT

IN THE CRIMINAL DISTRICT COURT NUMBER ** X COUNTY, TEXAS

This ORDER is to be considered EX PARTE and is filed for purposes of the record. This ORDER is required to be SEALED, by law, and disclosure shall be made ONLY to the TRIAL COURT and COUNSEL FOR DEFENDANT. ORDER ON DEFENDANT’S EX PARTE MOTION FOR FUNDS The foregoing motion having been properly presented to the Court and the Court being of the opinion that said motion should be:

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__________ GRANTED, and it therefore ordered that a reasonable sum not to exceed $________ without further authorization from this court be authorized to be expended as requested.

_________ DENIED, to which Defendant timely excepts.

Signed this ________ day of ____________, 20___.

_____________________________________ Judge Presiding

CROSS-EXAMINING THE EXPERT WITNESS

Michael C. Gross Gross & Esparza, P.L.L.C. 1524 North Alamo Street San Antonio, Texas 78215 (210) 354-1919 (210) 354-1920 Fax lawofcmg@gmail.com

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Fiesta 2023 Advanced Criminal Defense San Antonio Criminal Defense Lawyers Association San Antonio, Texas – April 21-22, 2023

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PROFESSIONAL ACTIVITIES AND RECOGNITIONS Judge Advocate, U.S. Marine Corps, 1988-1992 Associate, Zimmermann & Lavine, P.C., Houston, Texas, 1992 - 1996 Law Office of Michael C. Gross, P.C., San Antonio, Texas, 1996 - 2012 Gross & Esparza, P.L.L.C., San Antonio, Texas, 2012 - Present Board Certified, Criminal Trial Advocacy, National Board of Trial Advocacy, 1997 Board Certified, Criminal Law, Texas Board of Legal Specialization, 1995 Board Certified, Criminal Appellate Law, Texas Board of Legal Specialization, 2011 President, Texas Criminal Defense Lawyers Association, 2021-2022 President, San Antonio Criminal Defense Lawyers Association, 2011-2012 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2008 Defender of the Year, San Antonio Criminal Defense Lawyers Association, 2009 Named in Best Lawyers in America, 2005 - 2022 Named in Best Lawyers as San Antonio Non-White-Collar Lawyer of the Year - 2015, 2017 Named in Texas Super Lawyers in Texas Monthly Magazine, 2004 - 2022 Named Top 50 Texas Super Lawyers in Central and West Texas Region, 2010 - 2012, 2014 Named in Best Lawyers in San Antonio by Scene in San Antonio Magazine, 2004 - 2022 Named Top 10 Criminal Defense Attorneys in San Antonio by Scene Magazine - 2013 AV rated by Martindale Hubble COURT ADMISSIONS Supreme Court of the United States, 1991 Supreme Court of the State of Texas, 1987 United States Court of Appeals for the Armed Forces, 1990 United States Court of Appeals for the Fifth Circuit, 1990 United States Court of Appeals for the Tenth Circuit, 1998 United States District Court for the Northern District of Texas, 1990 United States District Court for the Southern District of Texas, 1991 United States District Court for the Eastern District of Texas, 1991 United States District Court for the Western District of Texas, 1992

TABLE OF CONTENTS I.

II.

iii

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Getting defense experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Consulting experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Testifying experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 C. Have your own forensic expert appointed or retained . . . . . . . . . . . . . . . . . . . . . . 1 1. Right to expert assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Right to independent expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 D. Send an engagement letter to your expert along with all documents . . . . . . . . . . . 2 E. Limit what your expert sees and does . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 F. May the State contact your expert pretrial? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 G. Lagrone issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Handling State experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Types of experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. Psychiatrists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. Psychologists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. Rape crisis counselors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 4. Pediatricians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5. Psychotherapists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6. Social workers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 7. CPS workers and reason to believe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. What will the State’s expert be used for . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. CSAAS - Child sexual abuse accommodation syndrome. . . . . . . . . . . . . . 4 2. The complainant was abused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Battered child syndrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4. Why the outcry was delayed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 5. Grooming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. Obtain records and research the State’s expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. Immediately request notice of the State’s experts. . . . . . . . . . . . . . . . . . . . 7 2. Review the State’s file . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. Obtain a court order for the State expert’s entire file . . . . . . . . . . . . . . . . . 8 4. Obtain a subpoena for the State expert’s entire file . . . . . . . . . . . . . . . . . . 9 5. Interview the State expert and obtain the expert’s entire file . . . . . . . . . . . 9 6. Do a background check on the State’s expert . . . . . . . . . . . . . . . . . . . . . . . 9 D. May you contact the State’s expert pretrial?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 E. Get the State’s expert to testify pretrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 1. A hearing using TRE 705(b) coupled with expert’s qualifications . . . . . 10 2. Determine the admissibility of the expert testimony . . . . . . . . . . . . . . . . 12 a. TRE 702 inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 i. Qualification inquiry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ii. Reliability inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 b. TRE 705(b) checklist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 F. Is the expert really an expert . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 1. When a CPS social worker is unqualified. . . . . . . . . . . . . . . . . . . . . . . . . 15 2. When a SANE is unqualified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 G. Motions in limine are vital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Demystifying Experts

subject matter on which he will testify. Also subject to discovery in civil cases are ‘the facts known by the expert that relate to or form the basis of the expert’s mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired;’ as well as ‘the expert’s mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them[.]’ Thus, in civil cases, there is no work-product protection for that potential testifying expert’s data, tests, reports, or opinions.” Pope v. State, supra.

Getting defense experts Consulting experts

“Under Texas civil law, the world of experts is divided into two parts: consulting experts and testifying experts. ‘The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable.’ The Texas Supreme Court has stated that ‘[t]he policy behind the consulting expert privilege is to encourage parties to seek expert advice in evaluating their case and to prevent a party from receiving undue benefit from an adversary’s efforts and diligence.’ But that protection ‘is intended to be only “a shield to prevent a litigant from taking undue advantage of his adversary’s industry and effort, not a sword to be used to thwart justice or to defeat the salutary object” of discovery.’” Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). A consulting expert is not designated as a defense expert witness under Article 39.14 of the Texas Code of Criminal Procedure. Id. Information regarding a consulting expert is subject to the attorney-client privilege and work product privilege. Id. If you designate a consulting expert as an expert under Article 39.14, the expert’s identify and qualifications are not protected by the work product privilege and the State may comment on your failure to call this witness to testify at trial. Id. B.

Have your own forensic expert appointed or retained

Indigent defendants in criminal cases have a due process right to state-provided expert assistance when an ex parte showing is made to the trial judge. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). If the state has an expert witness, you need your own defense expert witness to at least consult with you, if not testify for the defense, about the forensic evidence the state seeks to use at trial. The motion should be filed ex parte and sealed. The state has no business hearing about the motion, being present for the motion, or knowing who are your experts at this point. Make sure your are seeking your own defense expert. Do not ask the trial judge, for instance, to have a court expert conduct a competency evaluation of your client. Such evaluations are not privileged since it is not your expert who is conducting the evaluation.

Testifying experts

“If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing to divulge his name, address, telephone number, resume, and the

Right to expert assistance

The Supreme Court has held that, “without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help determine 1

whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high.” Ake v. Oklahoma, supra. Due process requires that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id.

2005). If your client cannot afford experts, you have three options: (1) subpoena to testify at trial the experts who treated your client, introduce at trial the records through these experts, and have these experts provide their expert opinions; (2) withdraw from the case after proving to the judge your client’s indigence, and request appointment of new counsel; or (3) remain on the case and take a reduced fee but request an investigator and experts from the trial judge for a now-indigent client pursuant to Ake. Id. at 468.

If insanity will be an issue at trial, due process requires that the accused be given the means to advance that claim at trial. De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993). “[T]he trial court abuses its discretion in failing to appoint, or to give ‘prior . . . approval’ to ‘reasonable expenses incurred’ by counsel for the accused to obtain, a competent psychiatrist to assist in the evaluation, preparation[,] and presentation of his insanity defense.” Id. In DeFreece, the Court of Criminal Appeals relied on Ake, supra.

An appointed defense expert must be independent from the state. The defense expert must “play a partisan role in the defense, providing defense counsel with the ‘tools’ to challenge the State’s case.” Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996), citing De Freece v. State, 848 S.W.2d 150 (1993). “In this context, due process, at a minimum, requires expert aid in an evaluation of a defendant’s case in an effort to present it in the best possible light to the jury.”

According to the Court of Criminal Appeals, Ake also applies to non-psychiatric experts. Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995). If an indigent defendant establishes a substantial need for an expert, without which the fundamental fairness of the trial will be called into question, Ake requires the appointment of an expert, regardless of the field of expertise. Id.

Send an engagement letter to your expert along with all documents

You should always send an engagement letter to your expert so your expert understands what is it you want the expert to do for you. You do not, for example, want your expert to conduct tests that could be adverse to your defense. In a case where psychological testimony about your client is anticipated, you do not want an MMPI conducted by your expert because this could result in a finding that your client is antisocial which the prosecution will then use against your client at trial if your expert testifies. You should also use the

As retained counsel, you may not put off investigating medical issues or put off consulting with necessary experts until your client pays you money for experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2

Demystifying Experts

Right to independent expert

representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” (Emphasis added).

engagement letter to remind the expert that all information the expert receives in your case is privileged and confidential. In keeping with Pope v. State, supra, once you have an appointed or retained expert, send the expert an engagement letter which describes the expert as a consulting expert or testifying expert and describes what exactly you want the expert to do for you.

Demystifying Experts

Limit what your expert sees and does

Be careful what information you send to your client. TRE 705 allows the opponent to inquire into the facts or data upon which your expert relies in forming an opinion. You also do not want your expert to be caught unawares at trial by being confronted with information the expert was never provided by you and which affects the expert’s opinion. You also want to be careful about what testing is performed by your expert such as an MMPI or PCL. The individual answers given by your client to some tests may be used against your expert and client. Check with your expert to see what is best for your client’s defense and case. F.

Lagrone issues

“[W]hen the defendant initiates a psychiatric examination and based thereon presents psychiatric testimony on the issue of future dangerousness, the trial court may compel an examination of appellant by an expert of the State’s or court’s choosing and the State may present rebuttal testimony of that expert based upon his examination of the defendant; provided, however, that the rebuttal testimony is limited to the issues raised by the defense expert.” Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997), citing Soria v. State, 933 S.W.2d 46 (Tex. Crim. App. 1996). A trial judge may order criminal defendants to submit to a state-sponsored psychiatric exam on future dangerousness when the defense introduces, or plans to introduce, its own future dangerousness expert testimony.” Id.

May the State contact your expert pretrial?

If you run into a Lagrone situation, it is best to ask the judge to strictly limit the State’s expert to the exact same testing performed on the defendant by the defense expert. It is also best to ask the judge to allow the defense expert to attend the testing so the defense expert may see first-hand how the testing was performed.

II.

Handling State experts A.

Types of experts

Psychiatrists

Psychotherapists have been recognized as expert witnesses in sexual abuse cases. Kipp v. State, 876 S.W.2d 330 (Tex. Crim. App. 1994).

Psychiatrists have been recognized as expert witnesses in sexual abuse cases. Farris v. State, 643 S.W.2d 694 (Tex. Crim. App. 1982); Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993) (psychiatrist testified as to the demeanor and emotion children typically have following an instance of sexual abuse). 2.

Psychologists

CPS workers and reason to believe

Rape crisis counselors

What will the State’s expert be used for

CSAAS - Child sexual abuse accommodation syndrome

In Duckett v. State, 797 S.W.2d 906 (Tex. Crim. App. 1990), overruled on other grounds, Cohn v. State, 849 S.W.2d 817 (Tex. Crim. App. 1993), the court recognized that commentators have stated that, “The accommodation syndrome has a place in the courtroom. The syndrome helps explain why many sexually abused children recant allegations of abuse and deny that anything

Pediatricians

Pediatricians have been recognized as expert witnesses in sexual abuse cases provided they do not testify that such children are truthful. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).

Demystifying Experts

CPS workers have been recognized as expert witnesses in sexual abuse cases. Johnson v. State, 970 S.W.2d 716 (Tex. App. Beaumont 1998) (caseworker’s testimony was in reference to the investigation that resulted in the reasonable belief that a sexual assault had occurred and, therefore, the testimony did not constitute an improper conclusion as to the guilt of defendant but merely assisted the jury in their deliberations).

Rape crisis counselors have been recognized as expert witnesses in sexual abuse cases provided they do not testify that the child is telling the truth. Black v. State, 634 S.W.2d 356 (Tex. App. - Dallas 1982, no pet.); Miller v. State, 757 S.W.2d 880 (Tex. App. - Dallas 1988, pet. ref’d). 4.

Social workers

Social workers have been recognized as expert witnesses in sexual abuse cases. Harnett v. State, 38 S.W.3d 650 (Tex. App. - Austin 2000, pet. ref’d).

Psychologists have been recognized as expert witnesses in sexual abuse cases. Gonzales v. State, 831 S.W.2d 347 (Tex. App. San Antonio 1992, pet. ref’d) (court did not err in admitting the testimony of a child psychologist); Nolte v. State, 854 S.W.2d 304 (Tex. App. - Austin 1993, pet. ref’d). 3.

Psychotherapists

Demystifying Experts

occurred. If use of the syndrome is confined to these rehabilitative functions, the confusion clears, and the accommodation syndrome serves a useful forensic function.” In Duckett, an expert in the field of child sexual abuse was allowed to testify that, because of CSAAS, the child-complainant understandably appeared confused and changed her testimony. Such testimony is admissible as long as the doctor does not testify that the child was telling the truth or could be believed.

sound trial strategy, and it was an unreasonable application of Strickland for the County Court to hold otherwise.” Id. at 611. 2.

The complainant was abused

The court in United States v. Charley, 189 F.3d 1251 (10th Cir. 1999), gave an excellent breakdown of how courts have handled the issue of whether or not a doctor may testify that, in the doctor’s opinion, the child complainant was abused. In Charley, the doctor testified that, based solely upon the statements of the children to the doctor and to other people, the doctor concluded that the children had been abused. There was no physical evidence of sexual abuse found by the doctor. The court held that this testimony was inadmissible.

It has been suggested, however, that CSAAS has no scientific validity. Gersten v. Senkowski, 426 F.3d 588 (2nd Cir. 2005) (conviction reversed and writ granted based on counsel’s failure to investigate and consult with expert psychologist witnesses). In Gersten, Dr. Yuille, an expert forensic psychologist, confirmed for the court post-conviction that what is known as CSAAS is no longer accepted in the child sexual abuse research community. Id. at 600-601, 611. Dr. Yuille explained that the inventor of the theory has retreated from his position of classifying it as a syndrome, and CSAAS “and its alleged five components has no validity and is not regularly accepted in the scientific community.” Id. The writ was granted and this decision was upheld on appeal: “. . . even a minimal amount of investigation [by trial counsel] into the purported [CSAAS] would have revealed that it lacked any scientific validity for the purposes for which the prosecution utilized it: as a generalized explanation of children’s reactions to sexual abuse, including delayed disclosure and blurred memory, and that had counsel investigated the possibility of challenging the prosecution’s psychological expert he would have discovered that exceptionally qualified experts could be found . . . Defense counsel’s lack of preparation and failure to challenge the credibility of the key prosecution witness could not be based on

“The opinion offered by Dr. Ornelas falls under Fed. R. Evid. 702. Among other things, that Rule imposes a special gatekeeping obligation on the trial judge to ensure that an opinion offered by an expert is reliable. See Kumho Tire, 119 S. Ct. at 1176. Indeed, ‘where [expert] testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question . . . the trial judge must determine whether the testimony has ‘a reliable basis in the knowledge and experience of [the relevant] discipline.’ Id. at 1175 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993)). The trial judge has broad discretion, reviewable for its abuse, ‘to determine reliability in light of the particular facts and circumstances of the particular case.’ Kumho Tire, 119 S. Ct. at 1179. The trial judge is granted great latitude in deciding which factors to use in evaluating the reliability of expert testimony, and in deciding whether to hold a formal hearing. Id. at 1176.” 5

encroaches upon the jury’s vital and exclusive function to make credibility determinations, and therefore does not “assist the trier of fact” as required by Rule 702. See United States v. Azure, 801 F.2d 336, 339-40 (8th Cir. 1986); see also United States v. Shay, 57 F.3d 126, 131 (1st Cir. 1995); Whitted, 11 F.3d at 785-86; Weinstein’s Federal Evidence § 702.03[5] (1998). Indeed, the government concedes that, in this case, testimony to the effect that D.J. and J.J. were ‘telling the truth . . . would be impermissible.’ Appellee’s Br. at 26. Most courts that have considered the issue have concluded that expert testimony, based on the statements of the alleged victim, that sexual abuse in fact occurred is inadmissible under Fed. R. Evid. 702 (or similar military or state evidentiary rules) because, in such cases, the expert offering the opinion is merely vouching for the credibility of the alleged victim. Thus, if Dr. Ornelas largely based her opinion on the statements of the girls, then under the foundation (or lack thereof) presented in this case, we consider it inadmissible. Therefore, regardless of whether Dr. Ornelas’s conclusion was based on the girls’ medical history or on their allegations of abuse, its admission was erroneous.” In Salinas v. State, 166 S.W.3d 368 (Tex. App. - Fort Worth 2005, pet. ref’d), a pediatrician testified she diagnosed sexual abuse based solely upon the history provided by the child-complainant. The appellant claimed that such evidence was improperly admitted expert testimony that directly commented on the credibility of the complainant. The appellate court held that because there was no physical evidence of digital penetration, the doctor’s “testimony could only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s truthfulness.” “The trial court

“On the other hand, if Dr. Ornelas’ opinion was largely based on crediting the girls’ account, whether disclosed to her or others, she was essentially vouching for their truthfulness. In general, expert testimony which does nothing but vouch for the credibility of another witness 6

Demystifying Experts

“Here, no reliability determination was made at all with respect to Dr. Ornelas’ unconditional opinion that D.J. and J.J. were sexually abused. As a practical matter, that issue might have been disposed of simply by sustaining the objection, on foundation grounds, to the question seeking to elicit Dr. Ornelas’s opinion. At that point, government counsel might have approached the subject in a more acceptable way, and if not, a bench conference could have ended the line of questioning. Or, the subject could have been explored and passed on prior to trial, in the sound discretion of the trial judge. See Kumho Tire, 119 S. Ct. at 1176. But, as it happened, nothing was adduced here which demonstrates that the testimony had an adequate foundation. The record does not disclose, for example, what data would support ruling out all causes except sexual abuse for the girls’ physical complaints, or to what degree Dr. Ornelas relied on her purely subjective views. Cf. id. at 1177. Indeed, Dr. Ornelas herself, as indicated above, ordered a work-up to determine if an anatomical problem (rather than sexual abuse, presumably) was causing the girls to wet the bed. III R. at 324-25. Thus, if Dr. Ornelas’s unqualified opinion was based on the girls’ medical history, there is insufficient support in this record for the district court’s decision to admit it. See Gier v. Educational Serv. Unit No. 16, 845 F. Supp. 1342 (D. Neb. 1994) (conducting a reliability inquiry and determining that expert opinion testimony that sexual abuse in fact occurred was, in that particular case, not reliable), aff’d, 66 F.3d 940 (8th Cir. 1995).”

abused its discretion in admitting the pediatrician’s testimony that she had diagnosed sexual abuse based on the child’s medical history.” 3.

enforcement, as in the current case. Virtually all of the testimony at issue found support in the cases: that grooming was an attempt by the offender to create a compliant victim, involved an escalation of conduct over time, could involve spending intimate time alone with the child, was like dating, was designed to desensitize the child, often began with innocuous touches, and could involve supplying the child with alcohol or pornography, giving gifts, giving back rubs or massages, engaging in games or horseplay, or talking about the adult’s own prior sexual experiences.” Morris v. State, 361 S.W.3d 649 (Tex. Crim. App. 2011).

Battered child syndrome

It has been held to not be an abuse of discretion to allow an expert to testify as to the behavioral characteristics of sexually abused children. Perez v. State, 113 S.W.3d 819 (Tex. App. - Austin 2003, pet. ref’d), overruled on other grounds, Taylor v. State, 268 S.W.3d 571 (Tex. Crim. App. 2008).

Demystifying Experts

Why the outcry was delayed

In a child abuse case “where the child waited some five years to report the alleged assault, the credibility of the child is a fact directly at issue. Therefore, [expert’s] testimony regarding symptoms of child abuse victims in general, including the frequent existence of the delayed outcry, tends to make the existence of a fact of consequence to the determination of the action more probable: that is, that the victim is telling the truth.” Vasquez v. State, 819 S.W.2d 932 (Tex. App. - Corpus Christi 1991, pet. ref’d). 5.

Obtain records and research the State’s expert

Immediately request notice of the State’s experts

Article 39.14(b) of the Texas Code of Criminal Procedure states, “On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.”

Grooming

“Grooming” of children for “sexual molestation was a legitimate subject of expert testimony under Tex. R. Evid. 702 and was useful to the jury. The subject matter was within the scope of the field of studying the behavior of people who sexually victimized children. Cases referring to the subject were legion, and recognition of the concept extended far beyond Texas. Grooming evidence had been received by courts from numerous types of expert, including people who working in law 7

You should immediately request, pursuant to Art. 39.14 the State’s list of experts with a letter to the State filed with the court clerk. The longer your request is pending and the closer to trial the State provides you with its witness list, the better chance you have of keeping its witnesses off the stand. By analogy, cases addressing the notice provision of TRE 404 (b) are informative. If the request for 404(b) notice was made months before trial, notice is insufficient if given Friday before trial starting on Monday even if the defense received the notice that Friday afternoon. Hernandez v. State, 914 S.W.2d 226, 234 (Tex. App. - Waco 1996, no pet.); Neuman v. State, 951 S.W.2d 538, 540 (Tex. App. - Austin 1997, no pet.). Such notices are not, however, per se unreasonable. Sebalt v. State, 28 S.W.3d 819 (Tex. App. - Corpus Christi 2000, no pet.). Courts look to the totality of the circumstances such as the length of time the defense request had been pending, but the primary consideration is whether notice was given in sufficient time to prevent unfair surprise. Id. Notice provided on Thursday regarding a pivotal witness for trial to begin on Monday allowed only one business day to prepare, so such notice was insufficient given the importance of the extraneous act to the case. Webb v. State, 36 S.W.3d 164, 177178 (Tex. App. - Houston [14th Dist.] 2000, pet. ref’d). The longer before trial notice was requested, the more likely notice given a few days before trial is likely to be found unreasonable. Id. Naming on a subpoena witness list the name of the complainant in an extraneous offense is insufficient notice since it fails to give the defense notice of the State’s intention to introduce evidence of a particular extraneous offense. Id. at 178-179.

Once you are appointed or retained to represent your client, you should immediately review the prosecution file. In the file, you will find the specific case numbers for the medical examiner, crime lab, or any other entity used by the state such as CIL # 05-00249 or BCME # 04-2081. These specific case numbers will be used by you to obtain further information from the State expert. Request from the prosecutor a copy of the crime lab reports, medical examiner’s reports, and any other expert reports. Sometimes prosecutors will provide you with these copies if you just ask for them. Take accurate notes of any diagrams made by the police. The distances indicated in the diagrams may be useful in your crossexamination, for instance, of the bloodstain pattern analysis expert. Your expert will need this information to better provide you with an opinion regarding your case or with crossexamination points for the state expert. 3.

Obtain a court order for the State expert’s entire file

Article 39.14 of the Texas Code of Criminal Procedure allows, in pertinent part, defense counsel to file a discovery motion for the state to produce and permit the inspection and copying by the defense of any designated documents which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the state or any of its agencies. You should file a discovery motion to obtain the entire file of the state expert. Once the judge has signed the order, take a file stamped copy to the state expert to obtain a copy of the expert’s

Review the State’s file

All of us at one time or another have 8

Demystifying Experts

encountered a case where we confronted a State’s expert witness. This paper is designed to assist you in preparing for that confrontation.

entire file. You go get the file - do not rely upon the prosecutor to provide you with a copy. 4.

Obtain the subpoena from the district clerk and take the discovery motion, the court order, and the subpoena to the state expert. There can now be no objection from the state expert in providing you with everything the expert has in the expert’s file.

Obtain a subpoena for the State expert’s entire file

Demystifying Experts

Obtain a subpoena application from the office of the district clerk. Determine the name of the custodian of records for the state expert’s office and their fax number and complete the duces tecum portion of the subpoena application (to include all tests, notes, test results, raw data, and any other information regarding the scientific testing) for instanter compliance with the subpoena and file it with the district clerk.

Interview the State expert and obtain the expert’s entire file

Do not rely solely upon the prosecution file. Almost always, the state expert will have more information in the state expert’s file than the prosecution will have in its file. Go to the state expert’s office and physically look at the originals to ensure you have everything the expert has in the expert’s file. Have the state expert explain the entire file to you. State experts have informed me that very few defense counsel ever interview the state experts or obtain copies of their files.

The fax number for the records custodian should appear on the subpoena so you may fax the subpoena to the state expert as proper service of the subpoena if the state expert or custodian requires service rather than personal delivery. Article 24.01(b) of the Texas Code of Criminal Procedure states that service may not be by a participant in the proceeding for which the appearance is sought. To get around this limitation, Article 24.04(a)(3) of the Texas Code of Criminal Procedure states that a subpoena may be properly served by electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness. Article 24.04(c)states that a subpoena served in this manner must be accompanied by notice that an acknowledgment of receipt of the subpoena must be made in a manner enabling verification of the person acknowledging receipt. All you need do to satisfy this requirement is type this notice and acknowledgment on the fax cover letter and fax the subpoena along with the cover letter to the state expert.

Do a background check on the state’s expert

Use the internet to see what information is available regarding the state expert. When you meet with the state expert, ensure you obtain a copy of the expert’s curriculum vitae which should have a list of articles the expert has written. Look at these articles to see if any of them apply to the subject matter of your case. Another valuable tool is Lexis or Westlaw. Enter the name of the expert and conduct a case search for that expert. Once you determine in which cases the expert has testified, see which cases involved the same subject matter as your case. You can then go to the office of the district clerk, appellate section, and order the transcript of the trial testimony for your review. You can then read the testimony of the expert and, if helpful to your case, obtain 9

a copy of the testimony along with the cover page and court reporter’s certificate page to impeach the expert at trial. D.

outside the jury’s hearing.” You should always request this hearing to test the admissibility of the expert’s opinion, to obtain discovery, to ensure you have copies of everything the state expert has used to form an opinion, and to get a record of what the expert has to say.

May you contact the State’s expert?

Get the State’s expert to testify pretrial

A hearing using TRE 705(b) coupled w i th ex p ert’s qualifications

Be careful to state on the record exactly what is your intent with the hearing – i.e., use this hearing to obtain/explore all documents and other information/facts/data on which the expert is basing the expert’s opinion, and also use this hearing to challenge the expert’s qualifications and the relevance/reliability of the expert’s proposed testimony as discussed in the next section of this paper. Expert testimony must be based upon specialized knowledge/skill/ education that is not in possession of the jurors – e.g., that red liquid coming from a body is blood is knowledge commonly held by most people and such opinion is lay and subject to TRE 701, Opinion Testimony by Lay Witnesses. The following case law should be considered in preparing for and litigating this hearing. Remember that the analysis in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993) (drugs caused birth defects) deals with scientific evidence whereas the analysis in Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167 (1999) (tire inflation expert testimony not allowed) deals with non-scientific expert testimony. The gatekeeper function in Daubert considers a 5-factor flexible test under FRE 702 for “validity” of scientific evid: (1) if technique or theory can be or has been tested; (2) if theory/technique has been subject to peer review/publication; (3) known or potential rate of error; (4) existence/maintenance of

TRE 705(b) states, “Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may – or in a criminal case must – be permitted to examine the expert about the underlying facts or data. This examination must take place 10

Demystifying Experts

Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large.” (Emphasis added).

by the ipse dixit (a dogmatic and unproven statement) of the expert. Id. The expert must show the expert used the same intellectual rigor in reaching his conclusion as would be expected of him in his professional life outside the courtroom. For example, a judge should not exclude an expert on auto repair merely because the expert is not published in a peer-review journal or sociologist who cannot be definitive about a possible rate of error in his findings. Tyus v. Urban Search Mgt., 102 F.3d 256 (7th Cir. 1996). It is Improper to exclude expert testimony because the testimony was too general to be helpful because the expert “would have given the jury a view of the evidence well beyond their everyday experience.” Id.

Demystifying Experts

standards/controls; and (5) degree to which theory/technique is accepted in scientific community. This test requires counsel to determine if there is an insufficient connection between the expert’s opinion and the facts of case – i.e., the expert must connect the proper methodology with the facts of the case. In applying the 5-step test, a judge should not be a “super-expert” or scrutinize an expert in such a way as to exclude all but the perfect expert testimony. A judge should not apply too stringent a reliability test. United States v. 14.38 Acres, 80 F.3d 1074 (5th Cir. 1996) (court’s gatekeeper role not intended to replace adversary system). The task of the judge/ gatekeeper after Daubert is to ensure an expert reached an opinion by the same avenues the expert uses in the expert’s day-to-day work.

“. . . [D]oubts about whether an expert’s testimony will be useful should generally be resolved in favor of admissibility.” Fox v. Dannenberg, 906 F.2d 1253 (8th Cir. 1990). If a juror, without assistance, is as capable as an expert of answering a question, the expert’s opinion on that issue is not helpful and should be excluded as expert testimony. See Scott v. Sears, Roebuck & Co., 789 F.2d 1052 (4th 1986) (women in high heels tend to avoid sidewalk grates – witness is merely repeating what’s common knowledge/common sense). Prejudice occurs if an expert merely bolsters the credibility of a fact witness by restating that testimony in expert garb. United States v. Cruz, 981 F.2d 659 (2d Cir. 1992) (government agent defined “broker” in drug transaction which merely corroborated government’s main fact witness who said accused was intermediary; prejudice because strongly suggested to jy that govt agent believed govt fact witness was credible and D guilty). An expert is not required to have encyclopedic knowledge about the field in question or to be published. Ellis v. K-Lan Co., 695 F.2d 157 (5th Cir. 1983) (expert’s lack of familiarity with statutory standard affects the weight and not admissibility of his testimony);

Under the test in Kuhmo, a judge ensures the reliability and relevancy of expert testimony by making certain that the expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Id. The Daubert 5-factor test is meant to be helpful with non-scientific evidence, but not definitive. Id. A judge should consider the specific Daubert factors where they are reasonable measures of the reliability of expert testimony. A challenge to an expert is not routine but is for the unusual case where it is apparent an expert has underresearched issues, seriously misapplied a methodology, or acted clearly inconsistently with professional standards. Not every accountant/electrician/plumber should be the subject of a Daubert hearing. In Kumho, the expert’s opinion was subjective and unsupported by any other tire failure expert, and more important, the expert discounted evidence that under his own test indicated the tire had been improperly inflated. Daubert and the FRE do not require a judge to admit opinion evidence that is connected to existing data only 11

United States v. Dysart, 705 F.2d 1247 (10th Cir. 1983) (osteopathy doctor qualified testify about competency stand trial where he received 1 year training in psychiatry even though he’d never published on such matters). 2.

education may testify thereto in the form of an opinion or otherwise.’ Id. at 702. Finally, Rules 401 and 402 render testimony admissible only if it ‘tend[s] to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Id. at 401, 402. ‘These rules require a trial judge to make three separate inquiries, all of which must be satisfied before admitting expert testimony: “(1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.” Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). ‘These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.’ Vela, 209 S.W.3d at 131.” Escamilla v. State, 334 S.W.3d 263 (Tex. App. - San Antonio 2010, pet. ref’d) (emphasis added).

Determine the admissibility of the expert testimony

TRE 705(c) states, “An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion.” TRE 702 states, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

TRE 702 inquiry

Under TRE 702, the trial court must be satisfied that three conditions are met before expert testimony is admitted: (1) the witness qualifies as an expert by reason of his or her knowledge, skill, education, training, or experience; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the jury in deciding the case. Malone v. State, 163 S.W.3d 785 (Tex. App. - Texarkana 2005, pet. ref’d).

“‘The Texas Rules of Evidence set out three separate conditions regarding admissibility of expert testimony.’ Vela v. State, 209 S.W.3d 128, 130 (Tex. Crim. App. 2006). Rule 104 requires that ‘[p]reliminary questions concerning the qualification of a person to be a witness . . . be determined by the court . . . .’ TEX. R. EVID. 104(a). Under Rule 702, ‘[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or

TRE 702 contains two initial hurdles that must be overcome before expert testimony will be admissible. Roise v. State, 7 S.W.3d 225 (Tex. App. - Austin 1999, pet. ref’d). The proponent of the testimony must establish: (1) 12

Demystifying Experts

TRE 703 states, “An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.”

that the scientific technical, or other specialized knowledge will aid the trier of fact; and (2) that the expert is qualified to testify on the subject. Id., citing Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995).

must be into the actual qualification. That is, there must be a “fit” between the subject matter at issue and the expert’s familiarity therewith.” Broders, 924 S.W.2d at 153. The proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the trial court which would qualify the expert to give an opinion on that particular subject. Id.

Unlike the common-law requirement, a trial court under Rule 702 may admit an expert’s testimony on a matter within most jurors’ understanding if the testimony concerns some type of technical or specialized knowledge and would assist the jurors in their fact-finding function. Glasscock v. Income Prop. Serv., Inc., 888 S.W.2d 176, 179-81 (Tex. App. - Houston [1st Dist.] 1994, writ dism’d).

Demystifying Experts

The proponent of the expert has the burden to first establish that the expert is qualified to testify about scientific, technical, or other specialized matters. Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995). Pursuant to TRE 104(a), the trial judge makes a preliminary determination about whether the witness is sufficiently knowledgeable to be considered an expert. Id.

Qualification inquiry

The inquiry regarding whether or not an expert is qualified is “a flexible one.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 594, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993). No rigid formula exists for determining whether a witness is qualified to testify as an expert. 2 Steven Goode, Olin Guy Wellborn, III, & M. Michael Sharlot, Guide To The Texas Rules of Evidence: Civil and Criminal § 702.3, at 54 (Texas Practice Supp. 2000). The expertise must be measured against the particular opinion the expert is offering. Roise v. State, 7 S.W.3d 225 (Tex. App. - Austin 1999, pet. ref’d). While the proponent of the testimony has the burden of establishing the expert’s qualifications, the trial court has the responsibility to ensure that the experts truly have expertise concerning the actual subject about which they are offering an opinion. Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996).

The qualifications of a witness to testify as an expert is within the discretion of the trial judge. See TRE 104(a); Ventroy v. State, 917 S.W.2d 419 (Tex. App. - San Antonio 1996, pet. ref’d). A judge’s decision to permit a witness to testify as an expert will not be disturbed on appeal absent a showing of an abuse of discretion. Id. “‘It is almost impossible to lay down any definite guidelines for determining knowledge, skill or experience required in a particular case or of a particular witness.’ Rogers v. Gonzales, 654 S.W.2d 509, 513 (Tex. App. - Corpus Christi 1983, writ ref’d n.r.e.). ‘Special knowledge’ may be acquired by virtue of the witness’s experience. Reece v. State, 878 S.W.2d 320, 325 (Tex. App. - Houston [1st Dist.] 1994, no pet.). Moreover, contrary to appellant’s trial objection, licensure, or certification in the particular discipline is not a per se requirement. Southland Lloyd’s Ins. Co. v. Tomberlain, 919 S.W.2d 822, 827 (Tex. App. - Texarkana 1996, writ denied); Guentzel v.

A degree alone is not enough to qualify a purported expert to give an opinion, as the case may be, on every conceivable medical question, legal question, or psychological question. Roise, 7 S.W.3d at 234. “The inquiry 13

Toyota Motor Corp., 768 S.W.2d 890, 897-99 (Tex. App. - San Antonio 1989, writ denied). ii.

S.W.2d at 573.” Gregory v. State, 56 S.W.3d 164 (Tex. App. - Houston [14th Dist.] 2001, pet. granted).

Reliability inquiry

A trial judge’s gate keeping obligation under Rule 702 – to insure that the expert witness’s testimony rests upon a reliable foundation and is relevant to the task at hand applies to all expert testimony not just scientific expert testimony. Roise, 7 S.W.3d at 235-36 (citing Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 143 L.Ed.2d 238, 119 S.Ct. 1167 (1999)); see also Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000).” Harnett v. State, 38 S.W.3d 650 (Tex. App. - Austin 2000, pet. ref’d).

The proponent of scientific evidence must show, by clear and convincing proof, that the evidence is sufficiently reliable and relevant to assist the jury in understanding other evidence or in determining a fact issue. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Salazar v. State, 127 S.W.3d 355, 359 (Tex. App. - Houston [14th Dist.] 2004, pet. ref’d).

Before an expert may give an opinion in a case, three criteria must be met: (1) the witness must be competent and qualified to testify; (2) the subject must be one upon which the aid of an expert’s opinion will be of assistance to the jury; and (3) his testimony may not state a legal conclusion. Sattiewhite v. State, 786 S.W.2d 271 (Tex. Crim. App. 1989). To be admissible, expert testimony must assist the jury on a matter in which the jury is not qualified to intelligently determine the matter without the help of the expert. Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). The expert testimony, however, must aid – not supplant – the jury’s decision. Id.

“To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 125 L.Ed.2d 469, 113 S.Ct. 2786 (1993). Under Texas Rule of Evidence 104(a) and (c) and Rule 702, the proponent must establish all three criteria outside the presence of the jury, before the trial court may admit the evidence. Kelly, 824

An expert’s testimony regarding scientific evidence is admissible if three criterion are met: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique was properly applied. Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). With nonscientific expert testimony involving technical or other specialized knowledge, experience, or training, the expert may testify if three criterion are met: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the 14

Demystifying Experts

In Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), the court stated “an appropriately tailored translation of the Kelly test” for expert testimony outside the hard sciences. When the expert is from a discipline which involves technical or other specialized knowledge, experience, and training as opposed to the scientific method, the test for reliability is: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert's testimony is within the scope of that field, and (3) whether the expert's testimony properly relies on and/or utilizes the principles involved in the field. Weatherred, 15 S.W.3d at 542; Nenno, 970 S.W.2d at 561.

expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies on or utilizes the principles involved in the field. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled in part on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). b.

Behavioral Health at the Spring Branch Medical Center. However, Wright testified that she worked on only 15 to 25 cases of child abuse while at Child Protective Services in 1990-1991, and that she had worked on only 20 to 30 child-abuse cases during her private practice for the last five years. Wright’s private practice does not concentrate solely on children, and at the time of trial, she did not have any child- abuse victims as clients. Wright testified that she had never conducted independent scientific studies on sexually abused children or on the proper techniques used to interview abused children. Moreover, Wright had not published any articles on sexually abused children or the protocols for interviewing abused children. See, e.g., Perez v. State, 25 S.W.3d 830, 837 (Tex. App. - Houston [1st Dist.] 2000, no pet.) (expert had never written an article regarding her area of testimony as a factor in finding expert unqualified).” The trial judge refused to allow the expert to testify and the appellate court affirmed. “Appellant did not satisfy his burden of establishing that Wright was qualified to testify as an expert in the areas stated above. We find that, because Wright had so little experience in dealing specifically with abused children and little experience in the techniques typically used to interview abused children, the trial court did not abuse its discretion in finding her not qualified to testify as an expert witness.”

TRE 705(b) checklist

Given the above, you should cover the following areas in your 705(b) hearing: 1. 2. 3. 4. 5. 6.

Demystifying Experts

the expert’s qualifications; the validity of the underlying scientific theory used by the expert; the technique used by the expert to apply the theory; how the expert applied the technique; the legitimacy of the field of expertise; whether the subject matter of the expert’s testimony is within the scope of that field; and whether the expert’s testimony properly utilizes the principles involved in the field. F.

Is the expert really an expert

When a CPS social worker is unqualified

In Fox v. State, 115 S.W.3d 550 (Tex. App. - Houston [14th Dist.] 2002, no pet.), a CPS social worker who worked with abused children had a master’s degree in social work and a degree in psychology. The defense called the expert to testify regarding: (1) the proper protocols for interviewing a child who has been abused; (2) developmental stages of a child; and (3) behavioral patterns of an abused child. The expert “had been a social worker in the public sector for ten years and in private practice for five years; and [] had been the Director of

When a SANE is unqualified

In Escamilla v. State, 334 S.W.3d 263 (Tex. App. - San Antonio 2010, pet. ref’d), the State called a SANE as an expert witness. The SANE testified that her examination of the child “revealed two symptoms consistent with sexual abuse: a tear close to D.A.E.'s anus and the wide dilation of D.A.E.'s anus within seven seconds after retraction of the child's buttocks.” The appellant claimed the trial judge “erred in allowing Garza to testify regarding the dilation 15

of D.A.E.'s anus because her opinion was not based on a valid scientific theory, the technique applying the theory was not valid, and the technique was not correctly applied.” Id.

technique or methodology was generally accepted in the medical community, she stated, ‘Our trainings through the Office of the Attorney General.’” Id.

“Garza stated that in 2009, the year of the underlying trial, she had conducted close to 100 sexual assault examinations. Following her examination of D.A.E., Garza said she found a tear close to D.A.E.'s anus that was consistent with sexual abuse, either by manipulation or forcible penetration. She also stated that the wide dilation of D.A.E.'s anus within seven seconds after retraction of the child’s buttocks was consistent with sexual abuse. According to Garza, it takes at least one minute for a normal anus to start to dilate, but it took only seven seconds for D.A.E.'s anus to dilate.” Id.

“We conclude the State established Garza’s qualifications and Garza was able to explain her methodology with sufficient clarity. However, Garza could not elaborate on the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community; she could make only vague references to literature supporting her underlying scientific theory and technique; and she did not appear to understand the concept of ‘the potential rate of error of the technique.’ Therefore, we must conclude the State did not carry its burden to ‘establish some foundation for the reliability of [Garza’s] opinion.’ Vela, 209 S.W.3d at 134. Thus, the trial court erred by allowing into evidence her opinion that the quick dilation of D.A.E.'s anus was consistent with sexual abuse.” Id. G.

Motions in limine are vital

Motions in limine do not preserve error. Webb v. State, 760 S.W.2d 263 (Tex. Crim. App. 1988); Maynard v. State, 685 S.W.2d 60 (Tex. Crim. App. 1985). This is true whether the motion is granted or denied. Willis v. State, 785 S.W.2d 378 (Tex. Crim. App. 1989); Webb. The remedy for a violation of a ruling on a motion in limine rests with the trial court. Brazzell v. State, 481 S.W.2d 130 (Tex. Crim. App. 1972). The trial court may hold the litigant or attorney in contempt or use other remedies or sanctions. Id. To preserve error for appeal regarding a motion in limine issue, you must object to the admission or exclusion of evidence or other action. Id. Use motions in limine to incorporate all caselaw, statutes, and reasoning for your appellate issue. Number the motion in limine 16

Demystifying Experts

“When asked to explain the reasoning or methodology she used in reaching her opinion about dilation, Garza could not be any more specific than to state ‘based on my training,’ ‘my readings and stuff,’ the conferences she attends, and ‘research and the peer reviews.’ Garza explained that by ‘peer review’ she meant ‘where . . . SANE nurses . . . are able to share information, learn from each other. We’re able to review cases . . . see slides, pictures.’ When asked if she knew the known or potential rate of error for the application of the theory on anus dilation, Garza could only state ‘we base ourselves on what the patient tells us, the history and our findings.’ Although Garza said she based her opinion on literature by Dr. Nancy Kellogg, Garza could not name a specific article written by or a study conducted by Dr. Kellogg. Garza also said she based her opinion on literature by Dr. John McCann, but she could only reference a magazine article possibly written in 2008. When asked whether the technique or methodology she used in formulating her opinion was generally accepted in the medical community, Garza responded, ‘It is accepted.’ However, when asked why her

Demystifying Experts

and refer to the number when that issue arises during trial and have the judge overrule the grounds stated in that motion in limine. This helps you to code your objections before the jury and not sound obstructionist.

GROSS & ESPARZA, P.L.L.C. 1524 NORTH ALAMO STREET SAN ANTONIO, TEXAS 78215 WWW .TXMILITARYLAW .COM (210) 354-1919 Fax: (210) 354-1920

MICHAEL C. GROSS

JOSEPH A. ESPARZA BOARD CERTIFIED - CRIMINAL LAW

BOARD CERTIFIED - CRIMINAL LAW

BOARD CERTIFIED - CRIMINAL APPELLATE LAW

TEXAS BOARD OF LEGAL SPECIALIZATION

BOARD CERTIFIED - CRIMINAL TRIAL ADVOCACY

NATIONAL BOARD OF TRIAL ADVOCACY

BOARD CERTIFIED - CRIMINAL TRIAL ADVOCACY

TEXAS BOARD OF LEGAL SPECIALIZATION NATIONAL BOARD OF TRIAL ADVOCACY

Date ____________, District Attorney [email here] RE:

Cause No. ____________, State v.

, In the ____ District Court, _____ County, Texas

Dear Mr. ____________: Pursuant to Rules 404(b) and 609(f) of the Texas Rules of Evidence and Article 37.07 (and 38.37 if sex or assault case and 37.071 if capital) of the Texas Code of Criminal procedure, I hereby request that you provide me in writing before trial of your intent to introduce: (1) evidence of other crimes, wrongs or acts allegedly committed by the Defendant; and (2) evidence of conviction of a crime to impeach the Defendant.

Sincerely, /s/ Michael C. Gross Michael C. Gross SBN 08534480 MCG

Demystifying Experts

Pursuant to Article 39.14 of the Texas Code of Criminal Procedure, I also request your office produce any privilege logs or law enforcement logs and produce and permit the inspection and/or electronic duplication, copying, and photographing by and on behalf of the Defendant: (1) any offense reports regarding this cause; (2) any documents, papers, written/recorded statements of the Defendant or a potential witness; (3) any photos, audio/video recordings of the Defendant, witnesses, complainants, or alleged crime scenes; (4) books, accounts, ledgers/letters, photos, or other objects involved in the investigation and/or prosecution of this case; (5) property seized regarding this case; (6) exculpatory, impeachment, or mitigating evidence in the State’s possession; (7) names, addresses, telephone numbers of witnesses which may be called by the State pursuant to Texas Rules of Evidence 702, 703, and 705; and (8) the criminal history of witnesses the State may call as witnesses in this case. My client also requests a speedy trial.

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Speaker:

Angelica Cogliano

Junk Science Overview

Cogliano Law Firm 505 W 12th St. Ste. 206 Austin, TX 78701 512.478.0758 phone angelica@coglianolaw.com email

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

Junk Science Overview

Junk Science Overview Angelica Cogliano Peter Huber, a prominent critic of the federal rules of evidence, coined the phrase “junk science” to describe judicial acceptance of unreliable expert testimony. Despite the highly visible efforts to reform the rules governing experts in the civil arena, the “junk science” debate has all but ignored criminal courts, especially criminal defendants. Two landmark studies by the federal government have validated deeply troubling issues with the use of forensic science in American courts. In 2009, the National Academy of Sciences (NAS) concluded that “[w]ith the exception of nuclear DNA analysis, ... no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” The report pulled no punches. According to the report, “The law's greatest dilemma in its heavy reliance on forensic evidence ... concerns the question of whether-and to what extent-there is science in any given 'forensic science' discipline.” In 2016, the President's Council of Advisors on Science and Technology (PCAST) issued a similarly damning report on forensic “featurecomparison” methods. In its 150-page report, PCAST detailed how bite mark comparison evidence, shoeprint evidence, and firearms evidence are not foundationally valid. PCAST determined that there are two important gaps in the state of forensic science: “(l) the need for clarity about the scientific standards for the validity and reliability of forensic methods[;] and (2) the need to evaluate specific forensic methods to determine whether they have been scientifically established as valid and reliable.” In these two reports, the federal government acknowledged the crisis exposed by the “large numbers of cases later shown by post-conviction DNA tests to have been wrongful convictions of innocent defendants” based on faulty science. Yet despite the government's study and the growing number of exonerated innocent defendants, “junk science” nevertheless continues to be freely admitted into courtrooms by judges, including some methods of identification so unreliable that they are not foundationally valid. Courts compound and continue the problem by relying on past cases without questioning even the most archaic justifications. Excluding currently identified “junk sciences” and recognizing those which should be deemed so, needs to be a top priority in our practices. I.

Debunked Sciences – Lessons to Learn From A. Microscopic Hair Analysis

Of the forensic science errors associated with wrongful convictions, microscopic hair comparison is near the top of the list. The basis for hair analyses as forensic evidence stems from the fact that human and animal hairs routinely are shed and thus are capable of being transferred from an individual to the crime scene, and from the crime scene to an individual.

NAT'L RESEARCH COUNCIL OF THE NAT'L ACADEMIES, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 96 (2009) (“NAS”) 2 Forensic Hair Analysis Peer-review Journal, OMICS INT'L, https://www.omicsonline.org/forensicresearch/forensic-hair-analysis-peer-review-journal.php [https://perma.cc/R2S3-LQJK] (last visited Nov. 12, 2019). 3 Samuel D. Hodge, Jr. & Amelia Holjencin, A Post-Mortem Review of Forensic Hair Analysis - A Technique Whose Current Use in Criminal Investigations Is Hanging on by A Hair, 64 St. Louis U.L.J. 219 (2020) 4 See Press Release, Fed. Bureau of Investigation, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review (Apr. 20, 2015), https://www.fbi.gov/news/pressrel/pressreleases/fbi-testimony-on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoingreview 5 FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review, FED. BUREAU OF INVESTIGATION (Apr. 20, 2015), https://www.fbi.gov/news/pressrel/press-releases/fbitestimony-on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review [https://perma.cc/JJ33-G7TG]. 6 NAS, 182. 1

Junk Science Overview

Forensic hair examiners generally recognize that various physical characteristics of hairs can be identified and are sufficiently different among individuals that they can be useful in including, or excluding, certain persons from the pool of possible sources of the hair. 1 However, current research demonstrates no proper degree of certainty just how frequently any particular hair characteristic is found in the human population, 2 and no uniform standard has been established for what constitutes a match. 3 In 2015, the FBI and DOJ announced that in cases where hair analysis testimony had been offered, at least 90 percent of trial transcripts contained “erroneous statements” concerning the forensic evidence. 4 According to the report, 26 of 28 FBI analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements. In the first stage of the analysis, the government had already determined that defendants in at least 35 of those cases received the death penalty, and that errors were present in nearly all of them. The results of the review were released along with an FBI confirmation that its “analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecution's case.” 5 Interestingly, despite the embarrassing and erroneous testimony by its agents, the FBI opined: “It's important to note that microscopic hair comparison analysis is a valid scientific technique still conducted by the FBI Laboratory” and that the “science of microscopic hair comparisons is not the subject of the review.” Rather, the focus of the evaluation was specifically whether the testimony and reporting of FBI laboratory examiners has met accepted scientific standards. The availability of DNA analysis has lessened the reliance on hair examination. In a very high proportion of cases involving hair evidence, DNA can be extracted, even years after the crime has been committed. Although the DNA extraction may consist of only mitochondrial DNA (mtDNA), such analyses are likely to be much more specific than those conducted on the physical features of hair. For this reason, cases that might have relied heavily on hair examinations have been subjected more recently to additional analyses using DNA. 6

Junk Science Overview

B. Odontology Forensic odontology, the application of the science of dentistry to the field of law, includes several distinct areas of focus: the identification of unknown remains, bite mark comparison, the interpretation of oral injury, and dental malpractice. Bite mark comparison is often used in criminal prosecutions and is the most controversial of the four areas just mentioned. Although the identification of human remains by their dental characteristics is well established in the forensic science disciplines, there is continuing dispute over the value and scientific validity of comparing and identifying bite marks. 7 The American Board of Forensic Odontology has approved guidelines for the collection of evidence from bite mark victims and suspected biters. The techniques for obtaining bite mark evidence from human skin—for example, various forms of photography, dental casts, clear overlays, computer enhancement, electron microscopy, and swabbing for serology or DNA—generally are well established and relatively noncontroversial. However, bite marks on the skin will change over time and can be distorted by the elasticity of the skin, the unevenness of the surface bite, and swelling and healing. These features may severely limit the validity of forensic odontology. Also, some practical difficulties, such as distortions in photographs and changes over time in the dentition of suspects, may limit the accuracy of the results. The guidelines of the ABFO for the analysis of bite marks list a large number of methods for analysis, including transillumination of tissue, computer enhancement and/or digitalization of the bite mark or teeth, ste-reomicroscopy, scanning electron microscopy, video superimposition, and histology. 8 The guidelines, however, do not indicate the criteria necessary for using each method to determine whether the bite mark can be related to a person’s dentition and with what degree of probability. There is no science on the reproducibility of the different methods of analysis that lead to conclusions about the probability of a match. This includes reproducibility between experts and with the same expert over time. Even when using the guidelines, different experts provide widely differing results and a high percentage of false positive matches of bite marks using controlled comparison studies. 9 II.

Ongoing Controversies – Warning! A. Bloodstain Pattern Analysis

NAS, 195 American Board of Forensic Odontology at www.abfo.org. 9 C.M. Bowers. 2006. Problem-based analysis of bite mark misidentifications: The role of DNA. Forensic Science International 159 Supplement 1:s104-s109 7 8

NAS, 199 Scientiﬁc and Legal Applications of Bloodstain Pattern Interpretation. Boca Raton, FL: CRC Press; P. Pizzola, S. Roth, and P. DeForest. 1986. Blood drop dynamics–II. Journal of Forensic Sciences 31(1): 36-49. 12 NAS, 200 10 11

Junk Science Overview

Understanding how a particular bloodstain pattern occurred can be critical physical evidence, because it may help investigators understand the events of the crime. Bloodstain patterns occur in a multitude of crime types—homicide, sexual battery, burglary, hit-and-run accidents—and are commonly present. Bloodstain pattern analysis is often employed in crime reconstruction or event reconstruction when a part of the crime scene requires interpretation of these patterns. However, many sources of variability arise with the production of bloodstain patterns, and their interpretation is not nearly as straightforward as the process implies. Interpreting and integrating bloodstain pat-terns into a reconstruction requires, at a minimum: • appropriate scientific education; • knowledge of the terminology employed (e.g., angle of impact, arterial spurting, back spatter, castoff pattern); • understanding of the limitations of the measurement tools used to make bloodstain pattern measurements (e.g., calculators, soft-ware, lasers, protractors); • understanding of applied mathematics and the use of significant figures; • understanding of the physics of fluid transfer; • understanding of pathology of wounds; and • understanding of the general patterns blood makes after leaving the body. 10 Scientific studies support some aspects of bloodstain pattern analysis. One can tell, for example, if the blood spattered quickly or slowly, but many experts extrapolate far beyond what can be supported. Although the trajectories of bullets are linear, the damage that they cause in soft tissue and the complex patterns that fluids make when exiting wounds are highly variable. 11 For such situations, many experiments must be conducted to determine what characteristics of a bloodstain pattern are caused by particular actions during a crime and to inform the interpretation of those causal links and their variabilities. Although there is a professional society of bloodstain pattern ana-lysts, the two organizations that have or recommend qualifications are the IAI and the Scientific Working Group on Bloodstain Pattern Analysis (SWGSTAIN). SWGSTAIN’s suggested requirements for practicing blood-stain pattern analysis are outwardly impressive, as are IAI’s 240 hours of course instruction. But the IAI has no educational requirements for certification in bloodstain pattern analysis. This emphasis on experience over scientific foundations seems misguided, given the importance of rigorous and objective hypothesis testing and the complex nature of fluid dynamics. 12 In general, the opinions of bloodstain pattern analysts are more subjective than scientific. In addition, many bloodstain pattern analysis cases are prosecution driven or defense driven, with targeted requests that can lead to context bias.

Junk Science Overview

B. Friction Ridge Fingerprints, palm prints, and sole prints have been used to identify people for more than a century in the United States. Collectively, the analy-sis of these prints is known as “friction ridge analysis,” which consists of experience-based comparisons of the impressions left by the ridge structures of volar (hands and feet) surfaces. Friction ridge analysis is an example of what the forensic science community uses as a method for assessing “individualization”—the conclusion that a piece of evidence (here, a pattern left by friction ridges) comes from a single unambiguous source. Friction ridge analysis shares similarities with other experience-based methods of pattern recognition, such as those for footwear and tire impressions, toolmarks, and handwriting analysis. 13 The technique used to examine prints made by friction ridge skin is described by the acronym ACE-V: “Analysis, Comparison, Evaluation, and Verification.” 14 It has been described in forensic literature as a means of comparative analysis of evidence since 1959.20 The process begins with the analysis of the unknown friction ridge print (now often a digital image of a latent print). The examiner also must perform an analysis of the known prints (taken from a suspect or retrieved from a database of fingerprints), If the examiner deems that there is sufficient detail in the latent print (and the known prints), the comparison of the latent print to the known prints begins. Visual comparison consists of discerning, visually “measuring,” and comparing— within the comparable areas of the latent print and the known prints—the details that correspond. At the completion of the comparison, the examiner performs an evalua-tion of the agreement of the friction ridge formations in the two prints and evaluates the sufficiency of the detail present to establish an identification (source determination). Source determination is made when the examiner concludes, based on his or her experience, that sufficient quantity and qual-ity of friction ridge detail is in agreement between the latent print and the known print. Source exclusion is made when the process indicates sufficient disagreement between the latent print and known print. If neither an identification nor an exclusion can be reached, the result of the comparison is inconclusive. 15 The determination of an exclusion can be straightforward if the examiner finds detail in the latent print that does not match the corresponding part of the known print, although distortions or poor image quality can complicate this determination. But the criteria for identification are much harder to define, because they depend on an examiner’s ability to discern patterns (possibly complex) among myriad features and on the examiner’s experience judging the discriminatory value in those patterns. The clarity of the prints being compared

NAS, 158 Ashbaugh, op. cit.; Triplette and Cooney, op. cit.; J. Vanderkolk. 2004. ACE-V: A model. Journal of Forensic Identiﬁcation 54(1):45-52; SWGFAST. 2002. Friction Ridge Examination Methodology for Latent Print Examiners. Available at www.SWGFAST.org. 15 NAS, 160 13 14

is also major underlying factor. 16 ACE-V provides a broadly stated framework for conducting friction ridge analyses. However, this framework is not specific enough to qualify as a validated method for this type of analysis. ACE-V does not guard against bias; is too broad to ensure repeatability and transparency; and does not guarantee that two analysts following it will obtain the same results. For these reasons, merely following the steps of ACE-V does not imply that one is proceeding in a scientific manner or producing reliable results.

Junk Science Overview

“Measurement of Fingerprint Individuality.” In: H.C. Lee and R.E. Gaensslen (eds.). Advances in Fingerprint Technology. 2nd ed. Boca Raton, FL: CRC Press; pp. 327-387.

Junk Science Overview

Texas Criminal Defense Lawyers Association

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Hemp & Marijuana: What you Need to Know Speaker:

Amanda Hernandez Flanary Law Firm, PLLC 100 NE Loop 410, Ste 650 San Antonio, TX 78216 210.738.8383 phone 210.738.3438 fax amanda@flanarylawfirm.com email http://www.flanarylawfirm.com/ website

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

Hemp & Marijuana: What you Need to Know

TCDLA’s 37th Annual Rusty Duncan Advanced Criminal Law Course June 13 – 15, 2024, San Antonio, Texas

Written & Presented by Amanda I. Hernandez amanda@flanarylawfirm.com 210-262-7565 (cell)

Introduction.

Cannabis (often referred to as “marijuana” or various other street names) has been around for what seems like since the beginning of time, as the medicinal properties of the cannabis plant have been known and documented for millennia. As far back as 2800 BC, cannabis was used to treat a vast array of health problems and was listed in the Emperor Shen Nung’s (regarded as the father of Chinese medicine) pharmacopoeia1. Here in the United States, cannabis usage has increased drastically in recent years and the laws surrounding cannabis have drastically changed. In the context of criminal cases, the landscape of marijuana cases changed forever after the passing of the federal 2018 “Farm Bill” and the Texas 2019 “Hemp Bill.” These bills created a legal hemp market and defined “hemp” as the cannabis plant, or any part thereof, including its extracts and cannabinoids, having a THC concentration of not more than 0.3% on a dry weight basis. This paper will provide some basic scientific information about cannabis plants; discuss the difference between legal hemp and illegal marijuana; discuss how that distinction impacts probable cause determinations and review some recent Texas case law surrounding the issue; and provide information about what delta-8 THC is as well as its legality in the U.S. and in Texas.

II. Understanding the basics: Cannabis, CBD, THC, Hemp & Marijuana.

Hemp & Marijuana

What is a cannabis plant?

To understand the difference between marijuana and hemp, you have to first understand the basics about what they are: cannabis plants. “Cannabis” is a type of flowering plant in the Cannabaceae family. It is defined as a “genus of medicinal, recreational, and fibre plants belonging to the family Cannabaceae.” By some classifications, Cannabis comprises a single species, hemp (Cannabis sativa), which is a stout, aromatic, erect annual herb that originated in Central Asia and is now cultivated worldwide.2 Medical experts have described cannabis as “a pharmacologically See “History of cannabis,” The University of Sydney Lambert Initiative for Cannabinoid Therapeutics, https://www.sydney.edu.au/lambert/medicinal-cannabis/history-ofcannabis.html#:~:text=The%20use%20of%20cannabis%20originated,father%20of%20Chinese%20medicine)%20p harmacopoeia. 2 See “Cannabis,” Encyclopedia Britannica (Apr. 13 2024), https://www.britannica.com/plant/cannabis-plant. 1

complex plant, with constituents that have the potential for producing both medical benefit and abuse” and as “an old drug with new science.”3 B.

What are CBD and THC?

Cannabis plants naturally produce more than 100 compounds called “cannabinoids”. The most well-known are cannabidiol (CBD) and tetrahydrocannabinol (THC), the primary and bestknown psychoactive component. The potency of cannabis is determined by its percentage of THC.4 Both CBD and THC share a similar chemical structure, containing 21 carbon atoms, 30 hydrogen atoms, and 2 oxygen atoms, but are formed in different arrangements.5 The main difference between the two is that THC binds with the cannabinoid 1 (CB1) receptors in the brain, producing the “high” or intoxicating effects associated with marijuana use, while CBD does not. Concerning potency, it is also important to note that in recent years, the potential potency of cannabis has essentially skyrocketed. One report noted, “In the 1970s, when daily cannabis use was at its peak among high school students, the average potency of the flower was 1% to 4% THC. In 2014 it was 12% to 19%. Today you can buy concentrates that are 80% to 90%.”6 THC and CBD can be consumed in various ways, including in edible products, such as brownies or gummies; in liquid extracts called “tinctures,” which you can put in food or drinks or place under your tongue; by smoking plant material; by ingesting capsules you take by mouth; on the skin through creams, lotions, or patches; or, frequently, inhaled as vaped concentrates like oil or wax. C.

What is the difference between hemp and marijuana?

So, what is “hemp” and what is “marijuana”? The terms “hemp” and “marijuana” are colloquial ones, not scientific names. Both hemp and marijuana plants are cannabis: the difference comes down to their concentration of THC. Marijuana is typically high in THC and cultivated mainly for its psychoactive properties, while hemp has historically been cultivated for industrial purposes, and more recently, for therapeutic CBD-based products.7

See “The science of cannabis, a work in progress,” Columbia University Irving Medical Center (Apr. 20, 2022), https://www.cuimc.columbia.edu/news/science-cannabis-work-progress. 4 See id. 5 See Jenna Fletcher, “A comparison of CBD and THC,” Medical News Today (Oct. 19, 2023), https://www.medicalnewstoday.com/articles/325871. 6 See fn 3. 7 See “Cannabis and the Brain”, Harvard Medical School (Spring 2020), https://hms.harvard.edu/newsevents/publications-archive/brain/cannabis-brain. 3

Hemp & Marijuana

The legal federal definition of “hemp” is “[t]he plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers,

acids, salts, and salts of isomers, whether growing or not, with a total delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” See 7 U.S. Code § 1639o (emphasis added). Texas’s definition mirrors the federal. See Tex. Agric. Code § 121.001. Marijuana is therefore a cannabis plant with more than 0.3% THC by dry weight, while hemp contains 0.3% or less THC. Accordingly, legal hemp products are less likely to cause an intoxicating effect. Marijuana is federally illegal under the Controlled Substances Act (“CSA”), which categorizes substances into five schedules, depending on their therapeutic benefit and their potential to result in abuse, diversion, dependency, and addiction. See 21 U.S.C. § 801. Schedule I is the most restrictive and the substances listed are defined as “drugs with no currently accepted medical use and a high potential for abuse.” See id. Schedule II substances similarly have a high potential for abuse, but they do have a currently accepted medical use. Schedules III–V substances have an accepted medical use and less (relative to each preceding schedule) abuse potential. See 21 U.S.C. 812(b). Marijuana is listed as a Schedule I substance, along with heroin, lysergic acid diethylamide (LSD), ecstasy, methaqualone, and peyote.

Hemp & Marijuana

III. The Federal 2018 Farm Bill & Texas 2019 Hemp Bill. The federal 2018 Farm Bill and the Texas 2019 Hemp bill redefined hemp and created a legal hemp market. In December of 2018, the federal landscape for marijuana changed with the passing of the Agriculture Improvement Act of 2018, known commonly as the “2018 Farm Bill.”8 The Farm Bill was designed to create a legal hemp market and as noted above, defined “hemp” as the cannabis plant, or any part thereof, including its extracts and cannabinoids, having a THC concentration of not more than 0.3% on a dry weight basis. See 7 U.S.C. § 1639o. Because of this definition, “hemp” is removed from the legal definition of marijuana and can no longer be considered a controlled substance under the CSA. Hemp and hemp-based CBD, like marijuana, were generally considered illegal substances under the federal Controlled Substance Act until passage of the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”). Molitor v. City of Scranton, CV 3:20-1266, 2021 WL 3884463, at *5 (M.D. Pa. Aug. 31, 2021). Through the 2018 Farm Bill, the federal government ended many restrictions on import or interstate movement of hemp seed, plants, or products. Id. (citing the Agriculture Improvement Act of 2018, Pub. L. No. 115-334, § 12619(a)(B), 132 Stat. 4490, 5018 (2018) (confirming that “the term ‘marihuana’ does not include ... hemp, as defined in section 297A of the Agricultural Marketing Act of 1946”)). Texas subsequently passed House Bill 1325, known as the “Hemp Bill,” to bring the state in line with the federal 2018 Farm Bill. The Hemp Bill was signed into law in June of 2019 and See H.R.2 - 115th Congress (2017-2018): Agriculture Improvement Act of 2018, H.R.2, 115th Cong. (2018), https://www.congress.gov/bill/115th-congress/house-bill/2/text. 8

authorizes the production, manufacture, retail sale, and inspection of industrial hemp crops and products. It legalized the cultivation of hemp in Texas under a state-regulated program and allows for the retail sale of hemp-derived products, including cannabidiol (CBD) oil, as long as they are properly labeled and contain less than 0.3% THC.9 The U.S. Farm Bill and the Texas Hemp Bill therefore both legalize industrial hemp that has a THC concentration of no more than 0.3% on a dry weight basis and remove hemp from the list of Schedule I controlled substances.

IV. Probable cause after hemp’s legalization. A.

Law enforcement cannot distinguish hemp from marijuana without a lab test.

Law enforcement, nor any person, can distinguish marijuana from hemp without proper scientific testing. As noted above, the cannabis plant species includes both hemp and marijuana. As such, both contain some amounts of both THC and CBD. As discussed above, the difference between hemp, which can be legally possessed and purchased, and marijuana, which remains a controlled substance under federal law and prohibited under Texas law, is the differing amounts of THC. Because “marijuana” and “hemp” plants are from the same cannabis family, it logically follows that they look and smell the same10. Courts have also noted that the differentiation between marijuana and hemp, as well as the different forms of CBD, though potentially similar in either appearance or smell based on their state, is most often dependent on the level of THC within the substances. See e.g., Molitor v. City of Scranton, CV 3:20-1266, 2021 WL 3884463, at *1 (M.D. Pa. Aug. 31, 2021). Furthermore, all cannabis, regardless of whether it is hemp or marijuana, contains a mixture of chemicals called terpenes. Approximately 150 terpenes have been scientifically identified11. It is these compounds that give cannabis its smell12. Simply put, cannabis (including both hemp and marijuana) produces a smell which is caused by the presence of the same See H.B. 1325, 86th Leg., (Tex. 2019), https://capitol.texas.gov/tlodocs/86R/billtext/pdf/HB01325F.pdf#navpanes=0. 10 See e.g., United States v. Bignon, 18-CR-783 (JMF), 2019 WL 643177, at *2 (S.D.N.Y. Feb. 15, 2019), aff’d, 813 Fed. Appx. 34 (2d Cir. 2020) “Thus, it is fair to infer, and on that basis the Court finds, that the odor of burning marijuana and the odor of burning hemp are similar — or, more to the point, that one could reasonably mistake one odor for the other” (footnote omitted). 11 Booth, J. K., & Bohlmann, J. (2019). Terpenes in Cannabis sativa - From plant genome to humans. Plant science: an international journal of experimental plant biology, 284, 67–72. https://doi.org/10.1016/j.plantsci.2019.03.022. 12 Breitmaicr, Eberhard. Terpenes: Flavors, Fragrances, Pharmaca, Pheromones. Weinheim: WILEY-VCH; 2008; pp. 176-177 (“A compound smells if it is sufficiently volatile. This applies predominantly to monoterpenes, but also to various sesqui- and diterpenes, as fragrances reach the appropriate receptors of the epithelium of the olfactory organ in the upper part of the nose. A molecule induces a specific sense of smell in the nose provided that its shape exactly matches a complementary cavity of the receptor, much as a key fits into a lock.”). 9

Hemp & Marijuana

molecules, terpenes. Therefore, the only way to determine if a substance is “hemp” or “marijuana” is by testing the chemical composition of the plant to measure the THC level. Importantly, it does not appear that law enforcement currently possess any field tests that can differentiate between hemp and marijuana. 1.

Dogs can’t tell the difference either.

Even police canines trained in drug detection cannot distinguish between hemp and marijuana. Canines are trained to detect the presence of marijuana by smelling terpenes in the substance, but both hemp and marijuana contain the same terpenes and a drug detection canine unit will alert to either substance, incapable of distinguishing between the two13. In canines, the ability to smell is controlled by the primary olfaction system in the brain.14 Canines have a highly developed olfactory system and a larger olfactory epithelium than humans. This larger epithelium results in more neurons contributing to better odor perception.15 Police drug dogs are not trained to distinguish between Hemp and Marijuana. Because of this, an “alert” from a police K-9 can now be a false positive. For example, in Colorado, where small amounts of marijuana were legalized in 2012, drug dog searches became problematic because the animals would alert officers to a legal amount of marijuana. The Colorado Supreme Court ultimately held that police had to establish probable cause before using a drug-sniffing dog, a move that led authorities to roll back the role of dogs in drug cases. See People v. McKnight, 2019 CO 36, 446 P.3d 397, reh’g denied (July 1, 2019). Likewise, the North Carolina Bureau of Investigation recently recognized that no law enforcement officer can visually tell the difference between the illegal hemp and illegal marijuana, nor can its officers or its K-9s detect the difference in odor16. Moreover, the U.S. Drug Enforcement Administration put out a request for information on private companies that might have the technology for field tests sensitive enough to distinguish between hemp and marijuana17. B.

Law enforcement across the country recognize the issue.

Law enforcement agencies across the country have now recognized that officers (and even canines) cannot distinguish between legal hemp and illegal marijuana based on sight or smell. For See “Legal hemp, pot’s look-alike, creates confusion for police,” CNBC (Mar. 28, 2019), https://www.cnbc.com/2019/03/28/legal-hemp-pots-look-alike-creates-confusion-for-police.html; see also McGivern, Kylie. “K9 retirement, backlog in test kits under Florida'’ new hemp law.” ABC Action News WFTS Tampa Bay. Available at: https://www.abcactionnews.com/news/local-news/i-team-investigates/k9-retirement-backlog-intest-kits-under-floridas-new-hemp-law (“Hemp has a lower THC concentration than marijuana. But to drug sniffing dogs, it smells the same.”). 14 Quignon, Pascale et al. “Genetics of canine olfaction and receptor diversity.” Mammalian genome: official journal of the International Mammalian Genome Society vol. 23,1-2 (2012): 132-43. doi:10.1007/s00335-011-9371-1. 15 Id. 16 See “Industrial Hemp/CBD Issues,” North Carolina State Bureau of Investigation, https://www.sog.unc.edu/sites/www.sog.unc.edu/files/doc_warehouse/NC%20SBI%20%20Issues%20with%20Hemp%20and%20CBD%20Full.pdf. 17 See fn. 13.

Hemp & Marijuana

example, in the State of Florida, the State’s Attorney for the Eleventh Judicial Circuit sent a memo to Law Enforcement Agencies within the Eleventh Judicial Circuit of Florida indicating: “Because hemp and cannabis both come from the same plant, they look, smell, and feel the same… Since there is no visual or olfactory way to distinguish hemp from cannabis, the mere visual observation of suspected cannabis – or its odor alone – will no longer be sufficient to establish probable cause to believe that the substance is cannabis18.” Similarly, the North Carolina Bureau of Investigation recognized that no law enforcement officer can visually tell the difference between the illegal hemp and illegal marijuana, nor can its officers or its canines detect the difference in odor19. C.

TDCAA recognizes the issue.

More importantly, here in Texas, shortly after hemp was legalized, the Texas District & County Attorneys Association (TDCAA) published an interim update on hemp and conceded the following: “The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency—a category which apparently excludes most, if not all, of the crime labs in Texas right now. Various law enforcement agencies—including DPS—and other local or private crime labs will have to purchase new instrumentation and change certain testing procedures to be able to supply that new information to the courts before criminal cases involving marijuana go to trial. Until then, there will be no easy way to determine whether the weed your officers seized is illegal marijuana.”20 D.

What does that mean for probable cause?

See “Interoffice Memo ‘Re: Marijuana Cases in the Wake of the ‘HEMP’ Bill (Senate Bill 1020)’”, Office of the State Attorney for the Eleventh Judicial Circuit (Aug. 5, 2019), https://media.local10.com/document_dev/2019/08/09/Hemp%20Memo%20to%20Law%20Enforcement_156538310 3541_22165328_ver1.0.docx (emphasis added). 19 See “Industrial Hemp/CBD Issues”, North Carolina State Bureau of Investigation, https://www.sog.unc.edu/sites/default/files/doc_warehouse/NC%20SBI%20%20Issues%20with%20Hemp%20and%20CBD%20Full.pdf. 20 See “Interim Update: Hemp”, Texas District & County Attorneys Association (June 24, 2019), https://www.tdcaa.com/legislative/interm-update-hemp/ (emphasis added). 18

Hemp & Marijuana

Before hemp’s legalization, Texas law has long considered the odor of marijuana alone sufficient to constitute probable cause to search a defendant’s person, vehicle, or belongings inside the vehicle without a warrant. See e.g., Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978); Harris v. State, 468 S.W.3d 248 (Tex. App.–Texarkana 2015); Rocha v. State, 464 S.W.3d 410 (Tex. App.–Houston [1st Dist. 2015]), pet. ref ’d. (Aug. 26, 2015); Jordan v. State, 394 S.W.3d

58 (Tex. App.–Houston [1st Dist. 2012]), pet. ref ’d. (Nov. 14, 2012). Likewise, Texas courts have historically held that once a drug-detection dog alerts on a car, officers have probable cause to search the car without a warrant. See e.g., Branch v. State, 335 S.W.3d 893 (Tex. App.–Austin 2011), pet. ref ’d. (Sept. 14, 2011). These opinions, however, were drafted during a time in which the odor or plain sight of alleged marijuana were indicative of criminal activity (because nothing legal looked or smelled the same as marijuana) and before the legalization of hemp. It can be argued, though, that this should no longer be the case after the legalization of hemp changed the entire landscape. In Moulden v. State, 576 S.W.2d 817 (Tex. Crim. App. 1978), the Texas Court of Criminal Appeals discussed probable cause and noted that “[i]f the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant.” Moulden, 576 S.W.2d at 819 (emphasis added). Since the legalization of hemp, the odor (or sight) of marijuana is no longer sufficiently distinctive to identify a forbidden substance (marijuana) from a legal substance (hemp), since distinguishing between the two requires scientific testing. The Texas Court of Criminal Appeals has not addressed the issue since hemp’s legalization. For these reasons, defense lawyers should always look to the facts of their case to determine whether a motion to suppress may be appropriate. A motion to suppress should be filed when the basis for probable cause to search is based heavily on the alleged odor of marijuana or when law enforcement allege they saw marijuana in plain sight. As discussed above, hemp and marijuana are both the same type of plant and can look and smell the same. The only way to distinguish hemp from marijuana is by measuring the THC content, and law enforcement don’t appear to have the testing technology to do so on the spot21. Moreover, as mentioned above, law enforcement often recognize that they cannot distinguish between the two. Because they cannot distinguish between the two, the sight or smell of alleged marijuana, standing alone, is no longer necessarily indicative of criminal activity and should no longer provide probable cause to search an accused’s person, vehicle, or belongings.

Hemp & Marijuana

Don’t forget: Odors coming from the home have always required more.

It’s important to note that alleged odors coming from a home have always required more, even before hemp’s legalization. Well before the hemp bills, Texas courts have held that odors coming from a home, standing alone, do not authorize a warrantless search on the home. In 2002, the Texas Court of Criminal Appeals was presented with a case in which police officers had entered the defendant’s home and arrested everyone in the room after smelling the odor of marijuana after the defendant opened the door. See State v. Steelman, 93 S.W.3d 102 (Tex. Crim. App. 2002). See, for example, “Legal hemp, pot’s look-alike, creates confusion for police”, CNBC (March 28, 2019), https://www.cnbc.com/2019/03/28/legal-hemp-pots-look-alike-creates-confusion-for-police.html.

There, the Court concluded that the odor of marijuana emanating from a home cannot, by itself, justify a reasonable belief that any particular individual present had committed or was committing any particular offense. Id. at 108–10. The Court further noted that “‘odors alone do not authorize a search without a warrant.’” Id. at 108 (quoting Moulden v. State, 576 S.W.2d 817, 819 (Tex. Crim. App. 1978). The following year, in 2006, the Texas Court of Criminal Appeals also noted that “[t]he odor of contraband is certainly an important fact which may (or may not) be dispositive, given a specific context, in assessing whether probable cause exists.” Parker v. State, 206 S.W.3d 593, 599 (Tex. Crim. App. 2006). F.

What has happened in the lower courts recently?

The Texas Court of Criminal Appeals has not yet addressed the issue of probable cause post-hemp legalization as of the date of this writing. Appellate courts do not seem to have meaningfully addressed the landscape of marijuana cases post hemp legalization either, though some confusing opinions have been issued and are discussed briefly below. 1.

Stringer v. State, 605 S.W.3d 693 (Tex. App.—Houston [1st Dist.] 2020, no pet.).

A string of bad lower court cases started appearing in 2020 after the decision in Stringer v. State, 605 S.W.3d 693 (Tex. App.—Houston [1st Dist.] 2020, no pet.). In Stringer, the Court of Appeals in Houston noted that “a strong odor of marijuana from a small enclosed area, like a car, gives a peace officer probable cause to make a warrantless search of both the car and its occupants.” Id. at 697. The problem is, however, the opinion cites to cases that were decided prior to hemp’s legalization as authority and does not cite any authoritative cases decided post hemp legalization. Moreover, the defendant in Stringer did not challenge probable cause based on the legality of hemp. For these reasons, the Houston Court of Appeals has no legal authority post hemp legalization to support its conclusion that the odor of cannabis emanating from a vehicle gives law enforcement probable cause to search a vehicle and/or its occupants. 2.

Since the decision in Stringer, other lower courts have cited it as authority, despite the fact that Stringer did not cite any binding authority post hemp legalization. For example, in Cortez v. State, No. 05-21-00664-CR, 2022 WL 17817963 (Tex. App.—Dallas Dec. 20, 2022, pet. filed) (mem. op., not designated for publication22), one of the issues the defendant raised on appeal was 22 Under Texas Rule of Appellate Procedure 47.7(a), in criminal cases, “opinions and memorandum opinions not designated for publication by the court of appeals under these or prior rules have no precedential value but may be cited with the notation, ‘(not designated for publication)’.”

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Cortez v. State, No. 05-21-00664-CR, 2022 WL 17817963 (Tex. App.— Dallas Dec. 20, 2022, pet. filed) (mem. op., not designated for publication).

that the district court erred when it concluded there was probable cause to support the officer’s warrantless search of his vehicle because it was based the officer’s belief that he smelled “illegal marijuana,” which has the same odor as “legal hemp.” Id. at *1. The court noted that the State responded that courts have long held that the smell of marijuana alone is sufficient to constitute probable cause to search a defendant’s person, vehicle, and the objects within the vehicle, and that in Texas, marijuana remains illegal. Id. at *6. In addressing Cortez’s argument that the officer could not distinguish between illegal marijuana and legal hemp, the Cortez court noted that “…the possession of marijuana is still a criminal offense under Texas law and a reasonable, even if ultimately erroneous conclusion by an officer on the scene as to the identity of the substance, would be permitted under the Fourth Amendment.” Id. at *7. The court goes on to say “Therefore, we conclude the odor of Cannabis sativa L. emanating from Cortez’s vehicle gave the officer probable cause to search the vehicle as well as its occupants” and cites Stringer v. State, 605 S.W.3d 693, 697 (Tex. App.—Houston [1st Dist.] 2020, no pet.). Again, the problem is that Stringer only cites pre-hemp legalization cases as its authority and is therefore misleading authority and the defendant in Stringer did not challenge probable cause based on the legality of hemp. For these reasons, the Dallas Court of Appeals has no legal authority post hemp legalization to support its conclusion that the odor of Cannabis sativa L. emanating from Cortez’s vehicle gave the officer probable cause to search the vehicle as well as its occupants. Petition for discretionary review was filed in Cortez on February 22, 2023.

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State v. Gonzales, 676 S.W.3d 261 (Tex. App.—Dallas 2023, no pet.).

In State v. Gonzales, 676 S.W.3d 261 (Tex. App.—Dallas 2023, no pet.), the Court of Appeals in Dallas held that law enforcement’s detection of the odor of marijuana emanating from a motor vehicle provided probable cause to conduct a warrantless search of the vehicle, even though officers were unable to discern the difference between the odor of marijuana and the odor of hemp without a lab test. There, the court found that the officers’ training and experience led them to come into contact with marijuana on regular basis and to conclude that hemp was not regularly smoked in public. Id. at 267. In support of its conclusion, the Gonzales court cited to both its earlier opinion in Cortez and to Stringer. The Stringer, Cortez, and Gonzales Court of Appeals opinions stand for the proposition that smell of cannabis sativa L is still probable cause without any other evidence, but again, only cite to pre-hemp legalization authority to support their conclusion and could be problematic decisions. 4.

Isaac v. State, 675 S.W.3d 116 (Tex. App.—San Antonio 2023, no pet.).

In Isaac v. State, 675 S.W.3d 116 (Tex. App.—San Antonio 2023, no pet.), the appeal concerned the similarity in appearance and smell of hemp, a legal substance, and marijuana, an illegal substance after the denial of a motion to suppress. There, the Appellant specifically

challenged a search of his car that was based on the sight and smell of alleged marijuana, which led an officer to find methamphetamines. Id. at 117–18. The Fourth Court of Appeals discussed and relied on the Cortez opinion but added more to the analysis. The Isaac opinion concluded: Here, the totality of the circumstances provides more evidence than the odor and appearance of marijuana alone that Isaac probably possessed illegal contraband. See Hatcher, 342 So. 3d at 808–09; Parker, 860 S.E.2d at 29. First, he was reported to police for behaving suspiciously after he remained parked at a gas pump for an hour and wandered around the store in a way that made the store’s manager believe he was under the influence of something. Next, he left two joints in his *120 center console, which he placed out of view when Patrolman Ramirez asked him to produce identification. Patrolman Ramirez saw them and recognized them as marijuana joints based on his training and experience.5 When Isaac exited his car, he showed symptoms of intoxication, including sluggish movements and glassy eyes. These facts and observations together with the odor of marijuana emanating from Isaac’s car established probable cause for Patrolman Ramirez to detain or arrest Isaac and to search his car. See Ackenback, 794 S.W.2d at 572. Based on this record, we conclude that the trial court did not abuse its discretion when it denied Isaac’s motion to suppress. Id. at 119–20. The Fourth Court of Appeals therefore indicated that a totality of the circumstances is the appropriate analysis when discussing probable cause post hemp legalization and that it requires odor of marijuana plus other corroborating evidence. 5.

Moffitt v. State, No. 12-23-00109-CR, 2023 WL 6631852 (Tex. App.— Tyler [Oct. 11, 2023], no pet.) (mem. op., not designated for publication).

McAfee-Jackson v. State, No. 09-19-00430-CR, 2021 WL 3888245 (Tex. App.—Beaumont [Sept. 1, 2021], no pet.) (mem. op., not designated for publication).

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In Moffitt v. State, No. 12-23-00109-CR, 2023 WL 6631852 (Tex. App.—Tyler Oct. 11, 2023, no pet.) (mem. op., not designated for publication), the Court of Appeals at Tyler concluded that the odor of marijuana emanating from the vehicle and the driver’s admission about smoking marijuana gave law enforcement probable cause to search the vehicle and its occupants, but again only cites to pre-hemp legalization authority. Moffitt, 2023 WL 6631852 at *5 (citing Stringer, 605 S.W.3d at 697; Rocha, 464 S.W.3d at 418; Jordan, 394 S.W.3d at 64-65; Isaac, 2023 WL 5249619, at *2; Cortez, 2022 WL 17817963, at *7-8).

In McAfee-Jackson v. State, No. 09-19-00430-CR, 2021 WL 3888245 (Tex. App.— Beaumont [Sept. 1, 2021], no pet.) (mem. op., not designated for publication), one of Appellant’s arguments was that the trial court abused its discretion by denying her motion to suppress evidence seized during law enforcement’s search of her vehicle. The Appellant argued that the officer involved testified that he had probable cause to search Appellant’s vehicle during the traffic stop based on the fact that he smelled marijuana, and that the officer conceded that, when presented with Defense Exhibits 1 and 3, which were “zero THC hemp flower bought at a corner store” – he could not tell the difference in either look or smell between that substance and the actual marijuana in State’s Exhibit 2. See id. at *2. Appellant moved to suppress evidence obtained from the search “based on Fletcher's concession that he could not differentiate between the smell of contraband and an entirely legal substance – a hemp plant with no THC.” Appellant moved to suppress the evidence “based on [the officer]’s concession that he could not differentiate between the smell of contraband and an entirely legal substance – a hemp plant with no THC.” Id. When it came to the issue of timing, the Appellant argued that her objection was timely because unlike in other typical contraband suppression cases, “the suppression issue in this case did not become apparent until [the officer] testified that he could not differentiate between the contraband and the two containers of legal hemp product.” Id. at *3. The court disagreed and noted the suppression issue was apparent from the beginning of the trial, and Appellant should have objected at the earliest testimony regarding the drugs.” Id. The McAfee-Jackson court ultimately held that the Appellant’s complaint regarding the denial of the motion to suppress and the introduction of the evidence obtained from the search was not preserved for review and affirmed the trial court’s judgment. Id. at *4. Practice Tip: This case shows defense lawyers that we should file the motion to suppress early on and object at the earliest law enforcement testimony regarding the sight or odor of marijuana.

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Trevino v. State, No. 04-21-00185-CR, 2022 WL 16542596 (Tex. App.— San Antonio Oct. 31, 2022, pet. ref’d) (mem. op., not designated for publication).

In Trevino v. State, No. 04-21-00185-CR, 2022 WL 16542596 (Tex. App.—San Antonio Oct. 31, 2022, pet. ref’d) (mem. op., not designated for publication), the Appellant argued that the State failed to prove she possessed marijuana as that term is now defined by statute, i.e., as having a THC (tetrahydrocannabinol) concentration of more than 0.3%. Id. at *5. There, the Trevino court noted that they agreed with their sister courts that “the changes enacted by the [l]egislature in H.B. 1325 apply prospectively to offenses committed after the date it took effect, June 10, 2019 ....” id. (external citations omitted). Because Trevino had been arrested in 2017, the Court held that the issue was without merit and overruled.

Arellano v. State, No. 08-19-00240-CR, 2021 WL 2678482 (Tex. App.—El Paso June 30, 2021, no pet.) (not designated for publication).

In Arellano v. State, No. 08-19-00240-CR, 2021 WL 2678482 (Tex. App.—El Paso June 30, 2021, no pet.) (not designated for publication), Appellant contended that House Bill 1325 altered the definition of marijuana to require a finding that the substance found in his possession had a THC concentration level of over 0.3 percent, and that the trial court erred in failing to so instruct the jury. Id. at *1. There, the Court concluded that “…because House Bill 1325 contains no specific savings clause, the amendments contained therein apply prospectively in accordance with the general savings clause. So even if Appellant is correct in his argument that the bill altered the definition of marijuana, any such change in the law would not apply to his case, as his offense was committed well before the bill’s effective date. Id. at *5. See also Smith v. State, 620 S.W.3d at 453 (concluding that “the changes enacted by the Legislature in H.B. 1325 apply prospectively to offenses committed after the date it took effect, June 10, 2019”); Childress v. State, No. 06-1900125-CR, 2020 WL 697903, 2020 Tex. App. LEXIS 1170 (Tex. App.—Texarkana Feb. 12, 2020, no pet.) (mem. op.) (refusing to apply the amended definition of marihuana to an offense occurring prior to the effective date of H.B. 1325); Gaffney v. State, No. 06-19-00189-CR, 2020 WL 465280, 2020 Tex. App. LEXIS 763 (Tex. App.—Texarkana, Jan. 28, 2020, no pet.) (mem. op.) (stating that “at the time of this offense, the Texas Health and Safety Code did not exclude ‘hemp’ from the definition of marihuana”). Practice Tip: These cases show us that defense lawyers should ask for the jury instruction regarding THC concentration if the defendant’s offense was committed after House Bill 1325’s enactment. 9.

What do these cases teach us?

These cases teach us that lower courts are divided on the issue of probable cause post hemp legalization. Defense lawyers should look carefully at the fact of every alleged marijuana case to determine whether to: file a motion to suppress, object to the admission of testimony, preserve the issue for appeal, and/or ask for the jury instruction concerning THC concentration. Always remember: hemp and marijuana are the same plant!

What is Delta-8?

In the beginning of this paper, it was noted that THC is the main psychoactive component of a cannabis plant. Delta-8-tetrahydrocannabinol, commonly known as “delta 8” or “delta-8 THC”, and delta-9-tetrahydrocannabinol, commonly known and “delta 9” or “delta-9 THC”, are two of the many cannabinoids found in a cannabis plant. Both have similar psychoactive

Hemp & Marijuana

V. What about Delta-8?

properties. A cannabis plant, however, contains significant amounts of delta-9 THC and very little delta-8 THC.23 Texas law recognizes that THC exists in the form of isomers, including delta-9 THC and delta-8 THC, and that delta-9 THC is the “primary psychoactive component of cannabis.” See 25 Tex. Admin. Code § 300.101(10) (2020) (Dept. of St. Health. Servs., Definitions). Delta-8 THC is typically less potent than delta-9 THC and, like Delta-9 THC, can be consumed through various methods including smoking, vaping, indigestion of edibles, infused in drinks, etc. Though delta-8 THC is naturally occurring in cannabis, as noted above, cannabis plants only produce delta-8 THC in very small amounts. Because of this, most delta-8 THC used in products is actually man-made and is produced by applying chemicals to hemp CBD. The applied chemicals change the structure of CBD into delta-8 THC.24 According to Dr. Ethan Russo, M.D., a board-certified neurologist and founder and CEO of CReDO Science, delta-8 THC can also be converted in a lab from delta-9 THC.25 Depending on quality, quantity, and other factors, both delta-8 THC and delta-9 THC can produce intoxicatingly psychoactive effects, or a “high”, though delta-8 doesn’t seem to be quite as potent when it comes to the “high” you feel when you take it.26 Because of this, it is sometimes referred to as “diet weed” or “weed light”. The process of producing delta-8 THC, however, is unregulated in the United States. Because of this, some experts warn that chemicals used to turn CBD into delta-8 THC may remain in the final product and that other contaminants, such as pesticides, heavy metals, and mold, could also be present. Alarmingly, one 2021 study of delta-8 vape pens revealed that of the 27 products studied, none were labeled accurately and 11 had unlabeled contaminants. 27 B.

The FDA Warnings about Delta-8.

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The U.S. Food & Drug Administration (FDA) warns against the use of Delta-8. In a recent publication, they announced that the “5 things to know” about Delta-8 are: 1. Delta-8 THC products have not been evaluated or approved by the FDA for safe use and may be marketed in ways that put the public health at risk. 2. The FDA has received adverse event reports involving delta-8 THC-containing products. See Hipp, Deb “Delta-8 THC vs. Delta-9 THC: What’s The Difference?” Forbes (Oct. 3, 2023) https://www.forbes.com/health/cbd/delta-8-vs-delta-9/. 24 See Woodcock, Stacia “Cannabis Questions Answered: Will Delta-8 THC Show on a Drug Test?” GoodRx Health (Feb. 8, 2023), https://www.goodrx.com/health-topic/cannabis/delta-8-legality-drug-tests. 25 See Lange, Tony “Delta-8 THC Remains Legal in Texas Following Appellate Ruling,” Cannabis Business Times (Oct. 2, 2023), https://www.cannabisbusinesstimes.com/news/texas-delta8-thc-court-ruling-injunction-ban/. 26 See fn. 6. 27 See fn 7. 23

3. Delta-8 THC has psychoactive and intoxicating effects. 4. Delta-8 THC products often involve use of potentially harmful chemicals to create the concentrations of delta-8 THC claimed in the marketplace. 5. Delta-8 THC products should be kept out of the reach of children and pets.28 C.

The legality of Delta-8 in the U.S.

The legality of delta-8 THC has been controversial across the United States. The 2018 Farm Bill does not specifically address delta-8 THC, but it has widely been considered legal on the federal level, as it is typically derived from hemp. In 2022, the Ninth Circuit even plainly stated that delta-8 THC products are legal. See AK Futures LLC v. Boyd St. Distro, LLC, 35 F.4th 682, 690 (9th Cir. 2022) (holding that the plain and unambiguous text of the Farm Act compels the conclusion that the delta-8 THC products before us are lawful). “Regardless of the wisdom of legalizing delta-8 THC products, this court will not substitute its own policy judgment for that of Congress,” Judge D. Michael Fisher wrote in the court’s unanimous decision. See Id. At 693. In punting the decision to Congress, the court left room for states to step in and create their own legislation. The Seattle Met reported that as of December of 2023, delta-8 THC is legal in 22 states and 1 district, but that the legality varies by state. According to the report, delta-8 is legal in at least ten states: Alaska (retail sale of Delta-8 THC is legal), Arizona (delta-8 THC is legal and not categorized as a controlled substance), Colorado (legal to buy and use delta-8 THC products), Illinois (delta-8 THC is legally available for purchase), Michigan (legal to possess and use Delta8 THC products), New York (legal for retail sale and consumption), Oregon (delta-8 THC is not restricted under state law), Vermont (sale of Delta-8 THC products is lawful), Washington (legal for purchase and use), and Wisconsin (products containing Delta-8 THC are legal to use within the state).29

See “5 Things to Know about Delta-8 Tetrahydrocannabinol – Delta-8 THC.” U.S. Food & Drug Administration (May 4, 2022), https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8tetrahydrocannabinol-delta-8-thc. 29 See “Why is Delta 8 Legal: A Comprehensive State-by-State Guide,” Seattle Met (Dec. 28, 2023), https://www.seattlemet.com/discover/thc-delta/why-is-delta-8legal/#:~:text=Delta%2D8%20THC%20is%20legal,drug%20that%20isn't%20allowed. 28

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The report also indicated that delta-8 THC was banned in six states: Louisiana (explicitly prohibits the sale of products containing Delta-8 THC, classifying it as a Schedule I controlled substance), Utah (delta-8 THC is not permitted for sale or consumption within the state, aligning with its laws on tetrahydrocannabinols), Rhode Island (banned the use and distribution of Delta-8 THC, placing it under controlled substances legislation), Kentucky (delta-8 THC is included in the state’s definition of marijuana derivatives and is therefore prohibited), Montana (delta-8 THC

falls under the list of controlled substances in the state, making its sale and consumption illegal), and Delaware (has taken steps to ban Delta-8 THC products, incorporating them into its controlled substances regulations).30 D.

The legality of Delta-8 THC in Texas. 1.

“Consumable Hemp Products” & Delta 8.

Like the 2018 Farm Bill, Texas’s Hemp Bill also does not specifically address delta-8 THC but legalizes hemp. After the Bill’s passing, in 2019, the Legislature enacted chapter 443 of the Texas Health and Safety Code and other related statutory provisions regulating certain hemp products. See generally Tex. Health & Safety Code §§ 443.001–.207 (“Manufacture, Distribution, and Sale of Consumable Hemp Products”); see also Tex. Agric. Code § 122.301(b) (“A state agency may not authorize a person to manufacture a product containing hemp for smoking, as defined by Section 443.001, Health and Safety Code.”). A “consumable hemp product” is statutorily defined a “food, a drug, a device, or a cosmetic, as those terms are defined by [Texas Health and Safety Code Section] 431.002, that contains hemp or one or more hemp-derived cannabinoids, including cannabidiol.” Tex. Health & Safety Code § 443.001. Consumable hemp products with less than 0.3% Delta-9 tetrahydrocannabinol THC are permitted under Chapter 443. Section 443.201 reads as follows: (a) A person may possess, transport, sell, or purchase a consumable hemp product processed or manufactured in compliance with this chapter. (b) The executive commissioner by rule must provide to a retailer of consumable hemp products fair notice of a potential violation concerning consumable hemp products sold by the retailer and an opportunity to cure a violation made unintentionally or negligently.

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Tex. Health & Safety Code Ann. § 443.201 (emphasis added). After hemp became legalized, delta-8 THC was largely considered legal in Texas, as it is typically derived from hemp. Many retailers and manufacturers assumed the substance was legal and began selling delta-8 products.

See id. 15

In 2021, the Texas Supreme Court upheld the prohibition of the manufacturing and processing of consumable hemp products for smoking within Texas (including white labeling31) but clarified that retail sale and wholesale distribution of [consumable hemp] products manufactured outside Texas is allowed. See Tex. Dep’t of State Health Services v. Crown Distrib. LLC, No. 03-20-00463-CV, 2021 WL 3411551, at *8 (Tex. App.—Austin Aug. 5, 2021, no pet.) (emphasis added). 2.

Texas Dept. State Health Services’ view of Delta-8.

That same year, however, the Texas Department of State Health Services (DSHS) categorized Delta-8, and other products containing similar chemistry, as a Schedule I controlled substance (putting it alongside heroin, cocaine, LSD, and PCP). DSHS issued the following statement through a notice in the rule change publication, the Texas Register: Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC). All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.32 To retailers, the easy-to-miss news was surprising and unfair. Delta-8 THC had already become the top product for many dispensaries in Texas, as users say it produced the “high” effect of marijuana33. 3.

The lawsuit.

Shortly after DSHS’s statement, Sky Marketing Corporation, which does business as Hometown Hero, filed a lawsuit in the Travis County district court requesting a temporary restraining order to block the state’s ban on delta-8 THC. Hometown Hero is a Texas corporation According to DSHS, “White labeling” occurs when the name and address of a Texas firm (the white labeler) is on the label of the product instead of the name and address of the firm that actually manufactured the product. In this situation, the contact information of the white labeler is usually preceded by the words “manufactured for” or “distributed by.” In Texas statute, a white labeler is considered a manufacturer who takes responsibility “for the purity and proper labeling” of the product by placing its name and address on the label. Because white labeling is manufacturing and, in the context of Consumable Hemp Products, requires a Consumable Hemp License (manufacturing), the white labeling of hemp products for smoking by Texas firms is not allowed. Texas statutes and regulations prohibit manufacturing or processing of consumable hemp products for smoking in Texas. See “Consumable Hemp Products - Frequently Asked Questions,” Texas Dept. of Health and Human Services, https://www.dshs.texas.gov/consumable-hemp-program/consumable-hemp-products-frequently-asked-questions. 32 See “Cannabidiol (CBD) & Industrial Hemp,” Texas State Law Library (Mar 29, 2024 10:23 AM), https://guides.sll.texas.gov/cannabis (emphasis added). 33 See Reynolds, Keven “Texas says popular cannabis extract, delta-8, is illegal, sending retailers scrambling,” (Oct. 21, 2021), https://www.texastribune.org/2021/10/21/texas-delta-8-hemp/. 31

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established in 2015 in Austin, Texas, for the purpose of selling and distributing vape products and which expanded into the newly legalized hemp market in 2019. It was established with the idea of helping veterans at the forefront of its mission. The lawsuit challenges the modified definitions of “Tetrahydrocannabinols” and “Marihuana extract” included in the 2021 Schedules of Controlled Substances. Essentially, Hometown Hero argued that DSHS failed to follow the Texas Administrative Procedures Act’s (APA) rulemaking requirements in classifying delta-8 THC as a Schedule I controlled substance. They also claimed their businesses have lost “revenue, good will, and reputation, and have had to reduce their workforce” and they claimed there were injuries to individuals because of the “loss of effective treatment” for certain health conditions as a result of the DSHS’s modification to Texas’ controlled substances schedule. The DSHS alleged failures include 1) including its use of improper grounds to initiate such changes in the first place, 2) its failure to adhere to its own published objection and decision order rejecting modifications, 3) its failure to properly notify the public of the secret modifications it actually made, and 4) its failure to follow the law with respect to the procedure required for modifying the Schedules in the manner in which it did, including failure to hold a proper public hearing. The lawsuit noted:

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Under the Texas Controlled Substances Act, there are only two methods for modifying the Schedule: (1) under Tex. Health & Safety Code § 481.034(a) & (g), if federal law adds, deletes, or reschedules a substance, the commissioner must either do the same or promptly object; or (2) if additions, deletions, rescheduling or other modifications to the Schedule are desired by the commissioner, certain procedures must be followed, including the consideration of multiple factors and certain notice and public hearing requirements. DSHS’s actions ignored all procedural and notice requirements as outlined in Section 481.034(b) of the Texas Health & Safety Code, and modified the definitions of “tetrahydrocannabinols” and “marihuana extract” in a manner that reschedules certain consumable hemp products as Schedule I controlled substances, despite state (and federal) law to the contrary.34 The District Court sided with the Plaintiffs and ordered that DSHS “[S]hall remove from its currently published Schedule of Controlled Substances the most recent modifications of the

See Sky Mktg. Grp. v. Texas Dep't of State Health Svcs., No. D-1-GN-21-0061724, Plaintiff’s Original Petition, available at: https://www.courthousenews.com/wp-content/uploads/2021/10/tx-delta-8.pdf. 34

definitions to the following terms: ‘*(31) Tetrahydrocannabinols’ and ‘*(58) Marihuana 3 extract,’ and any subsequent publications of the same (if any) until further order of this Court.”35 After the ruling, Texas DSHS tried to have the case heard by the Texas Supreme Court, but the request was denied and sent down to the Third Court of Appeals of Texas. In September of 2023, Austin’s Third District Court of Appeal affirmed the Travis County district court’s injunction, finding the state acted beyond its authority when it objected to a U.S. Drug Enforcement Agency rules change that was implemented to comply with the 2018 Farm Bill passed by Congress. The Court stated that “there was no reversible error in the trial court’s interlocutory orders,” and that it “affirms the trial court’s interlocutory orders,” referencing the previously granted injunction. See Tex. Dep’t of State Health Services v. Sky Mktg. Corp., No. 03-21-00571-CV, 2023 WL 6299115, (Tex. App.—Austin Sept. 28, 2023, pet. filed)36. On January 3, 2024, the DSHS filed yet another petition for review with the Texas Supreme Court, challenging how hemp and CBD are defined, while also claiming hemp-derived products like delta-8 are “synthetic equivalents” of THC found in marijuana. DSHS reasons that such products therefore qualify as Schedule I controlled substances and should be removed from shelves. Unlike DSHS’ petitions before, the 2024 petition included Office of the Attorney General Principal Deputy Solicitor General Lanora C. Pettit. Texas DSHS’ January 2024 petition states: “Although federal legislation in 2018 (the Farm Bill) allows for certain THCs in hemp, it does not allow for synthetic THC — that is, THC derived from CBD through chemical processes. THC’s definition has always included THC naturally contained in the plant and synthetic equivalents with similar chemical structures and pharmacological activity. The Commissioner sought to maintain CBD-derived delta-8 THC as a Schedule I controlled substance.”37 The Petition has yet to be ruled on by the Texas Supreme Court as of the date of this writing.

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See Sky Mktg. Grp. v. Texas Dep't of State Health Svcs., No. D-1-GN-21-0061724 (Tex. 126th Judicial Dist., Nov. 9, 2021), Temporary Injunction, available at: https://1.next.westlaw.com/Link/Document/Blob/I969d6869423911ec9f24ec7b211d8087.pdf?targetType=PLCmultimedia&originationContext=document&transitionType=DocumentImage&uniqueId=5bca618c-19b6-4760bd1e-cb070ea9f80a&ppcid=6a7fd4493548433fa31e295c12012ad8&contextData=(sc.DocLink). 36 PDF available at: https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=28242f60-6d51-4899-9b96f6aeb007a4a6&coa=coa03&DT=Opinion&MediaID=f929929c-b231-4d75-b348-67234e67f30c. 37 See “Delta-8 battle heads to Texas Supreme Court as hemp stores face raids,” LoneStar Live (Jan. 23, 2024), https://www.lonestarlive.com/news/2024/01/delta-8-battle-heads-to-texas-supreme-court-as-hemp-stores-faceraids.html. 35

VI. Conclusion

Hemp & Marijuana

Cannabis products are becoming more and more popular in America and in the word as the years go on, especially since the passing of the hemp bills. Cannabis products now come in various different forms and their legality can vary greatly. Hemp and Marijuana are both cannabis plants, but their legal definitions are relatively new, and the landscape of marijuana cases will never be the same since the legalization of hemp. Hemp and Marijuana look and smell the same, and lower courts are divided on how this impacts probable cause determinations. Defense lawyers need to carefully analyze their cases to determine the basis of the search, whether a motion to suppress is appropriate, ask for a jury instruction on THC concentration, and stay informed about courts in Texas are handling the probable cause issue. It is also important to remember that currently, delta8 products are legal in Texas, but that could change at any moment! The Texas Supreme Court has the opportunity to rule in the ongoing lawsuit against DSHS and determine for good whether the agency can outlaw delta-8 or not. Until then, delta-8 users and retailers in Texas are safe (for now). In every alleged marijuana case, be careful to look out for all of these issues and when in doubt: ask a fellow TCDLA warrior or an expert!

37th Annual Rusty Duncan Advanced Criminal Law Course June 13-15, 2024 Hyatt Regency Riverwalk San Antonio, TX

Victory on Two Fronts: Combating Multiple Complainants & Theories of Defense in Sex Cases

Speaker:

Missy Owen

Tin Fulton Walker and Owen Charlotte, NC cmowen@tinfulton.com email https://www.tinfulton.com/ website

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

Victory on Two Fronts

Texas Criminal Defense Lawyers Association

Victory on Two Fronts

skip to the next section. But for decades, I did this and while aspects of these systems worked, it was not the most efficient approach. The goal is taking the benefit of those systems and eliminating the downside. There are amazing software programs out there (case map, trial director) but they come with a cost. I have also encountered challenges in some of those systems if you are working with co-counsel, that sharing can be a problem. I am going to share with you what is currently working for me and why. I have settled on Google Drive as my current platform of choice. Here are the pros: It is free. Come on, we are criminal defense lawyers. There are add on costs for every trial, spend your money or your clients money elsewhere. There is nothing worse than having to pay another $450 for a license for a summer intern to work on your shared database. Documents are easy to upload. In a world where paralegal assistance in our practice is decreasing, user efficiency is high on my list of importance. Sharing with other members of your defense team is incredibly easy. This benefit comes with a little bit of caution. Ease of sharing is just such a great function that speeds up your life: Being able to share materials with your expert; easily add and subtract members of your team; not having to waste upload time or download time for your team members is simply a huge timesaver. Here is the caution, this is your trial file. An error in sharing (the wrong email, sharing the wrong folder or making more documents available than you intended) could be disastrous for your client and an ethical violation for you. Share slowly. Double check your work before committing to a share. Think it through before hitting that share button. Multi-Document Functionality. Multiple document formats are all available in the program (an excel like function, a powerpoint like function, a word like function, and video and audio functions). The ability to host documents and discovery and maintain a real time multi user workspace is really helpful.

Victory on Two Fronts

tabbing binders with post-it notes and it is working for you, great, good for you, stick with it and

Victory on Two Fronts

Collaboration on Documents. Difficult trials cannot be won alone. It will take more than one of you. Whether your team is you and your paralegal, you, your paralegal, and your client, don’t go it alone. More on this in the Building your Team section. But since this will be a team effort, having the ability to have multiple individuals contribute, review, or simply read, Google Drive allows you this functionality and editing your team members ability to contribute is very easy. Efficiency. Collaborating as a team should be efficient. I don’t have patience for track changes. If you are working on a case with me and we both have editing capability, I trust you to make the edits. Please don’t make the edits and make me go back and edit the edits. A google Word doc allows you to set the edits as you are comfortable. Additionally, if problematic changes are made, you can see who has made them and address them as needed. Auto save. Perhaps my single most favorite feature: edits are tracked; NO SAVING REQUIRED (this may be the sole reason I use this, because my edits are saved in real time). We have all spent precious time writing or editing a document only to forget to save and lose your work. It is crushing. As long as you are online, every change is instantly updated on the doc. This is particularly useful in the real crunch time of trial prep when you are working well into the night and juggling several tasks at one time. Searchability. Keyword search ability works pretty well in pdfs. If you are saving several pdf reports under a witness file but can’t remember which document mentioned a specific address? Use the search function and you have your document.

Creating a Working Document A Working Document will help you identify the path to victory, identify the pitfalls, mark themes, track witnesses, organize brainstorming, keep you on track, and keep you efficient.

set a planning meeting. If more than one person is working on the case at this stage, do this step together. This way, you will track information in the same system, tracking in the same “language”. You will share a common understanding of the information of what you want to track and how you want to track it. I use google sheets as my Working Document. As members are added to your team, take time to walk them through the structure of your Working Document. The first page of my Working Document is always a timeline of events. The subsequent sheets vary by case. Below are some samples of different sheets I have included after the timeline.

Timelines. They Matter. If you do one thing, make a timeline. It will help you truly understand the facts of your case, it will help you see problems with the government’s case, and it will give you a way to

Victory on Two Fronts

Planning Meeting. As you set off to begin your work on the case, take 15 minutes to

Victory on Two Fronts

track information and it’s source. It is in this timeline you can find your path to victory and test it. “Two Front Cases” may have more complicated nuanced defenses than, “It wasn’t me”. Vetting possible defenses through a single timeline document that contains all facts will help you navigate if a theory of defense is viable. It will also help you flag risks along the path of that theory of defense. One of the decisions you will want to make in your planning meeting is what information to track in your timeline. My standard format is: Date of Event; Event; Source of Information; Notes.

If your client has been charged, start with the charging document. I will often copy the exact language of the charging document and list it as the source and citing the date or time frames listed in the charging document. As I review discovery, I will cite to the page or bate stamp in the discovery that may back up these documents, adding other facts and events as well in the timeline. Keeping track of these source documents will give you a firm handle on what will emerge as key government exhibits and make it easy to anticipate the government's witness list. This timeline should also be populated with your client’s version of facts. Initially, use your client’s initials as the source but it can give you a very clear plug and play list of what facts you want to establish and think through who or what, other than your client can establish those facts. This will help develop your defense exhibit list as well as your witness list. The notes section can include questions, follow up you want to do, and nuance that may be important to the case.

Assembling a Team

alone. You don’t possess all the strengths necessary, you don’t possess all the skill necessary; and you will need to share the work. That seems rather negative and self-critical. Let me say it in a different way. What are your strengths that will shine in this battle? What strengths that others have could help compliment you, relieve you, what tasks could you delegate that will enable you to have more time to polish where you shine. Understand the tasks. In an ideal world, you get to have more than one lawyer on this case. Some offices are set up to accommodate this. If this is a possibility, use it. You may not have this as an option. Your office isn’t built this way or the case budget doesn’t permit it. Let me make the case for low cost or free labor. Many of the tasks needed to be successful at trial do not require a law degree or even a college degree. I have used law school interns, college interns, and even high school interns in ways that were critical to my client’s victory. Below is a sample list of tasks that can be accomplished by individuals of varying ages and educations that will be useful to you at trial: -Make timelines -Organize discovery -Watch videos -Break down videos -Deliver subpoenas -Communicate with witnesses on travel and availability -Edit your work -Brainstorm. You are not the only one with a good idea. Oops, again, let me rephrase, take advantage of a different perspective.

Victory on Two Fronts

One of the natural perils of a two front war is attrition. Repeat after me, you can’t do it

Victory on Two Fronts

Investigation I had a professor in law school who used to tell me, the lawyer who works the hardest wins. Okay, that professor may also helped create some unhealthy issues in my work life balance, but the more you investigate, the closer you will get to justice. Defense investigation is necessary in every case. If we think the story comes fully from our client and the discovery, we are wrong. The more people we and our investigators talk to, the better. If you have an investigator or a budget for an investigator, excellent. However, before your investigator goes out for the interview, make a plan as to what they cover. Involve them in the working document. Make sure they understand the potential defenses you are exploring, encourage them to ask questions of their own, but also, make sure that they understand other themes that may be developing in the background that aren’t a defense but may help support a defense. From your investigation will come your witnesses. Some will be willing, some will be reluctant. Talk to your witnesses as often as they will let you. You will have specific important facts that you need to elicit from each witness but if you have a witness who will talk with you at length in advance of trial, ask as much as they will allow. Ask their perspective on other witnesses for the state and for the defense. Ask as many questions as they will endure so you can see the situation from their eyes.

Time to Brainstorm This is a fun day. Clear at least half a day. Invite your paralegal, interns, other lawyers who are willing to brainstorm with you. Order snacks. You want everyone to stay focused. I start very low tech. I prefer giant post it notes. If you have an intern with you, have them be tracking all of these notes into a typed document. It will last longer and you can add to

investigative reports. You can have your own list of things to brainstorm but here is what I like to start with: Good Facts Bad Facts What do I need to know Theory of Defense Themes

Plan of Action You have done this work for your plan of action in a rather easy low stress approach. Your good facts should line up to tell a story that creates a narrative for your defense. Your bad facts give you a list for Motions to Suppress or Motions in Limine. How do you keep those “bad facts” out? If you can’t keep the bad facts out, how do you neutralize the bad facts? Can your theory of defense withstand these bad facts? Can they be disproved? Can you acclimate the jury to these bad facts in voir dire. The point is, you must have a plan for these bad facts just like you have a plan for your good facts. The list of what you need to know can be delegated. Factual questions go to your investigator. Legal questions should be researched. Vet your theory of defense as a team. Poke holes in it. Can you clearly communicate the path of defense to the jury? Consider the impediments and make a plan to eliminate them. Themes are universal truths that act as a lens for the jury to see and embrace your theory of defense. Below is a list of brainstormed themes in draft on a rape case where consent is at issue:

Victory on Two Fronts

it. In advance of this day, your team should have reviewed all the discovery and any

Victory on Two Fronts

The following themes are from a case where a single father was accused of inappropriate sexual touch of several of his daughter’s friends:

Identifying these themes will help design your opening, cross, and direct. Getting the jury to embrace these themes will be something they need to hear repeatedly, in voir dire, opening, and through each witness to on direct or cross. This repetition will get them to consider how these universal truths apply to them, to everyone, and can view the facts of this case through the lens of the theme.

Execution

preparation will aid you as you design opening, cross, direct, and closing. As we all know, trials do not go as planned, but deep and organized preparation helps us to stay upright in the chaos. Our strong days can be stronger and we can take the sting out of the hard moments. I welcome your feedback and wish you luck as you confront your two front battles. On to victory!

Victory on Two Fronts

The strong system of preparation should make your execution solid and successful. The

About TCDLA TCDLA began more than 45 years ago as a small, nonprofit association and has grown into a state-of-the-art organization, providing assistance, support, and continuing education to its members. TCDLA provides a statewide forum for criminal defense lawyers and is one of the few voices in the legislature interested in basic fairness in the defense of criminal cases. We are proud that many of our 3,800 members are elite criminal defense professionals in Texas. TCDLA hosts more than 60 seminars each year, providing the highest-quality legal education available for new lawyers as well as seasoned veterans. Our seminars are attended regularly by our members, non-members, judges, and professionals in related fields. Our yearly seminars have increased to over 9,000 people continuing their educational opportunities each year. Join today and become part of a long history of providing services and assistance in the great state of Texas, while accessing valuable resources, services, support, and discounts on seminars, travel, and technology. How to Apply: Submit an application online at tcdla.com Email application to mduarte@tcdla.com Mail application to: Texas Criminal Defense Lawyers Association 6808 Hill Meadow Drive Austin, TX 78736 TCDLA Benefits See the full list at tcdla.com Resources: • Networking opportunities with the best criminal defense lawyers in Texas • Strike Force • TCDLA APP includes criminal codes, statutes, and case law • Online Resources, a library including motions, transcripts, briefs, seminars, & more • Voice for the Defense magazine, the only statewide magazine written specifically for criminal defense lawyers • Listserv connecting our community on important issues • Significant Decisions Report emailed weekly • Legislature lobbyists advocating on behalf of Members • Expert list for experts in a multitude of practice areas • Moot Court provided on request

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