Voice for the Defense | Vol 54 No. 10 - December 2025

VOICE

T E X A S C R I M I N A L D E F E N S E L AW Y E R S A S S O C I AT I O N

FOR THE DEFENSE VOLUME 54 NO. 10 • DECEMBER 2025

Overdose Is Not Murder pg 17 When Doing the Right Thing Still Gets You Arrested pg 22 Protocols for Blood Alcohol Analysis pg 25

Standing on the Shoulders of Giants pg 28 The Transition to Defense pg 32

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EDITOR Jeep Darnell | El Paso, Texas 915-532-2442 jedarnell@jdarnell.com ASSISTANT EDITORS Anne Burnham | Houston, Texas John Gilmore, III | San Antonio, Texas Amanda Hernandez | San Antonio, Texas Sarah Roland | Denton, Texas Jeremy Rosenthal | McKinney, Texas Mehr Singh | Lubbock, Texas DESIGN, LAYOUT, EDITING Alicia Thomas & Meredith Pelt 512-646-2736 | athomas@tcdla.com SIGNIFICANT DECISIONS REPORT EDITOR Kyle Therrian | McKinney, Texas TCDLA OFFICERS President | Nicole DeBorde Hochglaube • Houston President‑Elect | Clay Steadman • Kerrville First Vice President | Sarah Roland • Denton Second Vice President | Lance Evans • Fort Worth Treasurer | Adam Kobs • San Antonio Secretary | Jani Maselli Wood • Houston CEO | Melissa J. Schank • 512-646-2724 mschank@tcdla.com DIRECTORS Sam Adamo • Houston Mitchell Nolte • McKinney Robert Barrera • San Antonio Mario Olivarez • Corpus Christi Lara Bracamonte Davila • Rockwall Jose Ozuna • Edinburg Anne Burnham • Houston Jason Parrish • Longview Garrett Cleveland • Kerrville Stephanie Patten • Fort Worth Angelica Cogliano • Austin Rebekah Perlstein • Addison Justin Crisler • Austin Shawn Sareen • San Antonio Cesar De Leon • Brownsville Annie Scott • Houston Aaron Diaz • San Antonio Lisa Shapiro Strauss • Bellaire Clifford Duke • Dallas Matthew Smid • Fort Worth Joseph Esparza • San Antonio Sara Smitherman • Houston Don Flanary • San Antonio Monique Sparks • Houston Robert Gill • Fort Worth Suzanne Spencer • Austin John Gilmore • San Antonio Kayla Staley • Lubbock Paul Harrell • Gatesville Fred Stangl • Lubbock Sean Hightower • Nacogdoches Scott Stillson • Wichita Falls Kameron Johnson • Austin Rebecca Tavitas • El Paso Jolissa Jones • Houston Kyle Therrian • McKinney Deniz Kadirhan • Austin Mark Thiessen • Houston Sean Keane-Dawes • Converse Keltin VonGonten • Lubbock Ryan Kreck • McKinney Amanda Webb • Conroe Peter Lesser • Dallas Theodore Wenske • Abilene Chelsi Martin • Houston Ronnie Wilkins • San Antonio Lauren McCollum • San Angelo Benjamin Wolff • Austin Addy Miró • Austin Judson Woodley • Comanche Blakely Mohr • Southlake Ronald Yeates • The Woodlands Oliver Neel • Fredericksburg Voice for the Defense (ISSN 0364‑2232) is published monthly, except for January/February and July/ August, which are bi-monthly, by the Texas Criminal Defense Lawyers Association Inc., 6808 Hill Meadow Drive, Austin, Texas 78736. Printed in the USA. Basic subscription rate is $40 per year when received as a TCDLA member benefit. Non‑member subscription is $75 per year. Periodicals postage paid in Austin, Texas. Dues to TCDLA are not deductible as a charitable contribution. As an ordinary business expense the non-deductible portion of membership dues is 25% in accordance with IRC sec. 6033.

POSTMASTER: Send address changes to Voice for the Defense, 6808 Hill Meadow Drive, Austin, Texas 78736. Voice for the Defense is published to educate, train, and support attorneys in the practice of criminal defense law.

VOICE FOR THE DEFENSE

Volume 54 No. 10 | December 2025

Features

Is Not Murder: 17 Overdose Defending Fentanyl Death Cases in the Age of Panic Angelica Cogliano

Doing the Right Thing Still Gets 22 When You Arrested: A DWI and the Motion

to Suppress Hearing that Won the Day Tifanee Baker

Proper Preanalytical 25 Following Protocols for Blood Alcohol Analysis:

Is it over before it even begins?

Zacariah L. Hildenbrand, Ph.D., Melissa Giguere, DFS, and Kevin A. Schug, Ph.D.

Standing on the 28 Mentorship: Shoulders of Giants Lauren McCollum

Transition to Criminal Defense 32 The Jason Parrish

Columns Message 05 President’s Nicole DeBorde Hochglaube Executive Officer’s Perspective 06 Chief Melissa J. Schank Comment 08 Editor’s Jeep Darnell Federal Corner 10 The Joel Page the City Limits 13 Beyond Shane Phelps and the Law 14 Ethics Chris Fredericks Decisions Report 37 Significant Kyle Therrian Available online at www.tcdla.com Volume 54 No. 10 | December 2025 December 2025

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TCDLA CLE & Meetings: Schedule and dates subject to change. Visit our website at www.tcdla.com for the most up-todate information. Register online at www.tcdla.com or call 512-478-2514

2026 January ............................................................................

February Continued ...............................................................

February 4-8 TCDLA | President’s Trip January 7 Big Sky, MT CDLP | Prairie Pup w/ LCDLA February 10 Lubbock, TX TCDLA | Public Defender Roundtable – January 7 TCDLA | Public Defender Roundtable – Public Brown Bag Support Session Webinar Defender Hand Down Meeting February 10 Webinar TCDLA | Rural Roundtable – Dynamic January 8-9 Perspective on Prosecutors TCDLA | 45th Annual Prairie Dog Webinar Lubbock, TX February 12 January 13 TCDLA | Public Defender Roundtable – Lunch CDLP | Setting Up the Appeal Houston, TX Break to Breakthrough February 13 Webinar CDLP | Capital January 14 Houston, TX TCDLA | New Lawyer – HR Basics February 18 Webinar TCDLA | New Lawyers – State to Federal January 16 Webinar TCDLA | Attorney Outreach & Engagement February 19 Roundtable - Attorney/Client Negotiations CDLP | Veterans Webinar Dallas, TX January 16 February 19-20 TCDLA | Financial Friday – Retirement TCDLA | Gumbo: Federal & Criminal Law Planning by a Solo Practitioner New Orleans, LA Webinar February 19-20 January 20 CDLP | MAC Training TCDLA | Technology Roundtable – Case Austin, TX Management Software February 20 Webinar CDLP | Indigent Defense January 21 CDLP | Innocence Law School: Houston Law Dallas, TX February 25 Center TCDLA | Attorney Outreach Roundtable Houston, TX Blind Spots - Seeing the Bias that Hurts our January 23 Clients CDLP | Guardians of Sacred Justice Webinar Waco, TX February 26 January 27 TCDLA | Crimmigration Roundtable – Trends TCDLA | Defending State & Federal Drug Charges Webinar Webinar January 27 February 26 TCDLA | Technology Roundtable – Unify Your TCDLEI Board Meeting Discovery: Citation-Driven AI, Purpose Built AI Zoom for Defense February 27 Webinar CDLP | Career Pathways January 28-31 Webinar TCDLA | DWI/SFST/DRE/ARIDE Defense March Super Course ............................................................................

Dallas, TX March 4 January 29 TCDLA | Public Defender Roundtable – Public TCDLA | Family Violence Defender Hand Down Meeting Webinar Webinar January 29-30 March 5-6 CDLP | The Art of Mitigation: Crafting TCDLA | Mastering Evidence at Trial: Persuasive Narratives Mastering th Rules, Records, & Roadblocks Dallas, TX Dallas, TX February ............................................................................ March 6 TCDLA Executive & Legislative Committee February 4 Meetings TCDLA | Roundtable – Cross of a Dallas, TX Child (Sexual Assault/Family Violence Committee) March 7 Webinar TCDLA Board & CDLP Committee Meetings Dallas, TX February 4 TCDLA | Roundtable – Public Defender March 16 Hand Down Meeting (Public Defender CDLP | Holistic Training: Understanding Committee) Holistic Defense Webinar Webinar

March Continued ...............................................................

March 20 TCDLA | Financial Friday - TBD Webinar March 22-27 CDLP | 49th Annual Tim Evans Texas Criminal Trial College Huntsville, TX March 26-27 TCDLA | 32nd Annual Mastering Scientific Evidence DUI/DWI w/ NCDD New Orleans, LA

April ............................................................................

April 1 TCDLA | Public Defender Roundtable – Hand Down Meeting Webinar April 1 TCDLA | Sexual Assault & Family Violence Roundtable Webinar April 9 TCDLA | Crimmigration Roundtable Webinar April 9 TCDLA | White Collar Webinar April 13 CDLP | Holistic Training: Practicing Holistic Defense on Any Budget & Maximizing the Benefits Webinar April 15 TCDLA | New Lawyer – Staffing, Hire/Fire, Setting Pay Webinar April 15 TCDLA | Rural Roundtable - Specialty & Mental Health Courts in Your Areas Webinar April 16 CDLP | Juvenile Webinar

May ............................................................................

May 1 TCDLA | 20th Annual DWI Defense: DWI, Manslaughter & Assault Dallas, TX May 6 TCDLA | Public Defender Roundtable – Hand Down Meeting Webinar May 7 TCDLA | Rural Roundtable Webinar May 11 CDLP | Mindful Monday Webinar

Scholarship Information: Texas Criminal Defense Lawyers Educational Institute (TCDLEI) offers scholarships to seminars for those with financial needs. Visit TCDLA.com or contact scholarship@tcdla.com for more information.

Seminars sponsored by CDLP are funded by the Court of Criminal Appeals of Texas. Seminars are open to criminal defense attorneys; other professionals who support the defense of criminal cases may attend at cost. Law enforcement personnel and prosecutors are not eligible to attend. TCDLA seminars are open only to criminal defense attorneys, mitigation specialists, defense investigators, or other professionals who support the defense of criminal cases. Law enforcement personnel and prosecutors are not eligible to attend unless noted “*open to all.”

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December 2025

PRESIDENT’S MESSAGE

Reflecting on Progress, Renewing Our Purpose: A look back at 2025 and a look ahead to 2026 NICOLE DEBORDE HOCHGLAUBE As we close the chapter on another remarkable year, I am filled with gratitude for the unwavering dedication, resilience, and excellence demonstrated by our TCDLA community. The Texas Criminal Defense Lawyers Association has always stood as a beacon of justice, advocating fiercely for the rights of the accused and upholding the constitutional principles that form the bedrock of our legal system. This past year, our collective efforts have not only advanced the cause of justice but also strengthened the bonds of our professional community. As I prepare to sit around my holiday table with those I love, I cannot help but be enormously grateful for you, my fellow colleagues, and for your willingness to be a part of TCDLA’s mission. For many of us, our holidays at home are in such stark contrast to the holiday experience for those we serve as they move through their various brushes with our criminal justice system. You are guiding people through some of the most difficult times in their lives, and as my Presidency winds to its halfway point, I am struck by what an amazing vantage point I have had to see what it means for my TCDLA family to extend the hope of the rule of law and the valor of a good fight to those facing, in many circumstances, some of the most unimaginable difficulties. Lives and futures of entire families are held in the balance as you do your work to help, but you do not blink or shirk or turn away. You lean in.

From high-profile cases to quiet victories in local courts, our members have shown what it means to be defenders of liberty.

We’ve seen attorneys challenge unconstitutional practices, secure exonerations for the wrongfully convicted, and provide compassionate representation to those society often overlooks.

Our organization proudly enjoys a diverse membership in terms of a varied assortment of law practices large and small and of public defenders from big cities and rural communities. Our members consistently demonstrate a willingness to share their time and knowledge in the interest of justice. These acts of service remind us that our work is not just about legal strategy, it’s about humanity.

In 2025, we also made strides in education and mentorship.

Rusty Duncan drew record attendance, featuring excellent speakers from across the state and nation. We continue to offer the best Continuing Legal Education available. Our programs have provided CLE for over 10,000 lawyers with over 435.25 CLE hours, including 52.75 ethics at over 186 seminars. From shorter online courses and round tables to multi day, long form in person seminars, our community of brilliant minds continues

to offer their time and talent for the betterment of us all. Our committees, staff and volunteers have created new pathways for attorneys to gain mentorship, training, and support. Our Amicus Committee has authored brief after brief to have our voice heard on matters of importance in our fight for justice and what is right.

Our Strike Force remains at the ready to assist our members in every corner of Texas as they fight the good fight. Our members have gone directly to law makers to testify about the importance of the rules that protect true justice. Our investments in the next generation and continued involvement of the longtime members of our bar are vital to sustaining our mission and evolving with the challenges ahead.

Looking forward, our goals, including the protection of existing rules of discovery and the fight for compliance, are ambitious but necessary. We will continue to fight for transparency in prosecution practices and for the protection of due process rights in increasingly complex times and in the digital age.

Community remains at the heart of our mission in this fight together. In the coming year, we will continue to work on efforts that continue to serve our bar and will strive to add new ways to grow so that we can assist even more of our brothers and sisters in this fight. And we will continue to celebrate the achievements of our members—because what you do matters. You are out there changing lives one case and one person at a time, and TCDLA is honored to be at your side. Thank you for your tireless work, your courage, and your commitment to justice even when – or especially when - that justice is for the sometimes forgotten and the sometimes loathed. Thank you for standing with us in the year ahead fight for fairness, dignity, and rule of law. A system that fails for one fails for all. You are the guardians of justice, and I thank you for the opportunity to serve alongside you in this fight as 2025 comes to a close and 2026 unfolds ahead of us. Together, we will continue to make a difference—one case, one courtroom, one life at a time.

December 2025

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CEO’S PERSPECTIVE

Reflecting on 2025: Strength, Service, and Community MELISSA J. SCHANK “The magic of the season lies not in the gifts, but in the moments, we share and the gratitude we give.”

— Unknown

As the holiday season approaches, it’s the perfect time to pause, reflect, and celebrate the incredible year we’ve shared together. This season reminds us how fortunate we are to be part of a community that not only defends justice but uplifts one another with compassion, strength, and unity. From long hours in the courtroom to the laughter shared at our seminars and gatherings, the Texas Criminal Defense Lawyers Association continues to shine because of YOU, our dedicated members who make a difference every single day. Together, we grew stronger, more connected, and more determined to serve.

By the Numbers • 3,800+ active members across Texas • 72 CLE programs reaching over 10,000 participants • $45,000 in scholarships awarded through TCDLEI • Legislative efforts fighting for criminal defense attorneys and their clients • mentor-mentee matches through the growing program • 31 publications • 186 in-person CLEs and Webinars • 435.25 CLE hours, including 52.75 ethics • 42 member attorney outreach events

Member Outreach, Networking & Social Highlights This year, TCDLA members connected and celebrated in true Texas style building community through learning, wellness, and fun.

• 25 Member Socials, Wellness Walks/Runs, Bike Rides, Yoga, Members Trip, Declaration Reading, Juneteenth Booth, New Lawyers, Pachanga, sports games, social hour, membership party to name a few.

• 28 Roundtables - Each event strengthened our network and reminded us why TCDLA thrives because of our dedicated and engaged members.

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December 2025

Strategic Plan – Year Three • Digital Ribbons – Ribbon Up with TCDLA Campaign • Mission Statement Awareness – Start of year 1 – 0%, at year 3 – 92% awareness • New Member Benefits with AI Platforms: REV AI and Justice Text • Recorded Member Testimonials • Reorganized Member Resources to reflect an index • Created and Rolled out the TCDLA Mentor-Mentee Program

Top Accomplishments & Highlights • We highlighted over 70 major accomplishments printed in our Voice magazine kudos section and countless others on social media!

• Advocacy in Action: TCDLA’s legislative team worked tirelessly to stop bad bills benefiting the defense community and indigent clients.

• Educational Excellence: From Rusty Duncan to Beating the Rap, Federal Law & Practice, Tim Evan’s Texas Criminal Trial College, and Future Indigent Defense Leaders, our seminarsbrought cutting-edge training to every corner of the state.

• Membership Engagement: New outreach and regional networking events helped welcome over 200 new members.

• Community Connection: The Women’s Closet at Rusty,

- Randy Bowers

Recognizing Our Champions We are proud to honor this year’s award recipients, leaders, and volunteers who gave their time, talent, and heart to TCDLA. Every contribution, big or small, helps our mission thrive.

Veterans Defense initiatives, and Member Outreach Committee continued to strengthen our culture of giving and inclusion and ongoing public relations awareness through the Know Your Right Pamphlet.

Testimonials from our members: Check out the videos on our social media.

"Rusty Duncan...is a reminder of why we do what we do."

- Frank Sandoval "Every lawyer is doing themselves a disservice if they don't go to Rusty." - Jeep Darnell "Rusty is always evolving, they're always adding new programming, and they have a dedication of trying to be inclusive." - Porscha Brown “Rusty gives me the tools I need to feel confident, that I'm up on the law, that when I walk into a courtroom, I know what I'm doing." - Beverly Deadrick "TCDLA has provided me and my law partner the opportunity to learn and to get materials and motions, and also to have access to the listserv that has questions and answers that can be valuable in the things we're doing." Carla Post

Hall of Fame Inductees Mike DeGeurin*, Mike Ware, Randy Wilson*, Jack Zimmermann Percy Foreman Lawyer of the Year John Hunter Smith, Gary A. Udashen Rising Star Awards Veronica Veyhl, Theodore Wenske, Rebecca Yung, Makenzie Zarate

Looking Ahead 2026 promises inclusion, innovation and connection. We’ll continue expanding training opportunities, offering scholarships, and amplifying the voices of criminal defense lawyers statewide.

Together, we’ll build a stronger, more inclusive defense community, one client, one member at a time.

A Holiday Note from the Heart The holidays for me are a time of cheer and an opportunity to rest and reenergize. I look forward to seeing family and friends I only get to hug once a year at gatherings, holiday parties, or family trips. I wish you an abundance of happiness, good health, and most importantly, love. From our TCDLA family to yours, may your season be bright and your new year full of promise.

“If you're a defense attorney, then you need to be in a group like this." - Felix Sabaria "TCDLA has helped me think outside of the box about a lot of issues, everyone's got something that I haven't thought of before and that's allowed me to take on new types of cases that I may not have been able to do before."

- Richard Gentry "TCDLA is a necessity, the defense attorney that mentored me said the first thing you have to do is join TCDLA." December 2025

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EDITOR’S COMMENT

Slow Down JEEP DARNELL

As you read this article, we are all moving into one of the most wonderful times of the year. Not just Christmas, but the break from hearings, trials, and constant work, and the chance to take a break and spend some time with the people we love. The winter break is absolutely one of my favorite times of the year because it gives me an opportunity to spend uninterrupted time with my wife and kids. But, each year, I find myself wishing for each day to go a little faster because of my desire to get to something special by the end of the day. Whether it’s Christmas Eve, New Year’s Eve, or any other day during the break, I always catch myself excited to get to the end of the day for the festivities. However, each year I get mad at myself for rushing the inevitable because the moments between the minute I wake up and the minute I go to sleep are the most important, not the moment to come.

If you’ve ever read any of my articles, you know that I have two young sons: a 7-year-old and a 10-year-old. Those two boys, along with my wife, and law partner, my dad, are the most important people in my life. I only have so many Christmas mornings with my boys. I only have so many days in my marriage where I can wake up next to my wife with nowhere to be early in the morning, only so many days left to practice law with my dad. I’m not saying that some impending end is right around the corner, but our days are limited, that’s the reality of life. For instance, I look back at my ten-year-old’s life, and it seems like just yesterday that he was a little boy, not the emotional disaster that he is today, which drives

me up a wall. Of the 18 Christmas mornings I hope to have with him in my life, we are past the halfway point. Why rush them?

Why rush anything when I have a finite time with him, or my seven-year-old, but nonetheless I find myself each day during the Christmas break excited for the end of the day.

I apologize for my whining. The reality is that I am obviously asking each of you to slow down time. Don’t rush the time we have when there are fewer obligations, responsibilities, or hearings.

Each of us, from private practitioner, to public defender, to judge, to legal assistant, only has so much time left on this earth with the people we love. Savor every second, especially with those we love.

I don’t want to remind any of you years down the road about the time you wasted, especially when the courts are closed.

I, for one, will try to practice what I am preaching and spend the December break enjoying the love I have from the people I love the most. I ask only that each of you do the same.

Be safe,

Jeep Darnell

31st Annual Judge David C. Guaderrama El Paso Criminal Law Ruidoso, NM

Photos Courtesy of Judge Richardson

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December 2025

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Make sure your rental car has 4wheel or all-wheel drive with snow tires.

THE FEDERAL CORNER

New Fifth Circuit Precedent May Help Fight Unreliable Extrapolation at Sentencing J OEL PAGE

Member of the Federal Assistance Committee If there is one thing federal criminal practitioners can agree on, it’s that federal practice has entirely too much math.

Drug conversion ratios, USSG §2D1.1(c), loss tables, USSG §2B1.1(a), offense levels and criminal history points, USSG Ch. 5A, etc. I thought we were just here to sit in judgment of people: why are we doing all of this adding and subtracting? And not just adding and subtracting either! In fraud cases, we have to value and subtract collateral [USSG §2D1.1, comment. (n. (3) (D))], which means sometimes we’re amortizing things. And then in drug cases, we are extrapolating and applying principles of introductory statistics. I 100% (which I am told is one of the largest percents) did not sign up for this.

Well, if you are good at that kind of thing, first of all, nerd!

But also congratulations, because the Fifth Circuit has given you a little more to work with. In United States v. McGuire, 151 F.4th 307 (5th Cir. August 29, 2025), the defendants capitalized on an obvious source of arbitrage in the country’s contemporary stateby-state approach to marijuana legislation – defendants would travel to states that have legalized marijuana and drive it over to states that hadn’t done so, where it could be sold for higher prices. Id. at 317. One substantive trafficking count required the government to prove that each defendant trafficked more than 1,000 kilos of marijuana. Id. at 320. A conspiracy count did not require proof of this threshold at trial but did require quantity calculations to determine the Guidelines. Id. at 332-334.

To prove the quantities attributable to two particular drivers, 1 the government introduced a spreadsheet drafted by its lead investigator. Id. at 321. This investigator used Signal messages and debriefs to calculate an average marijuana load for all drivers in the conspiracy, then multiplied it by the number of trips made by each individual driver to get their individualized drug quantity. Id. at 321, 324. The Fifth Circuit reversed the substantive trafficking convictions of both drivers due to the exhibit. Id. at 328. Indeed, the Fifth Circuit applied plain error review (finding that the defendants objected inadequately to the exhibit in trial court), but reversed anyway. Id. at 321-322.

The opinion depicts the spreadsheet as more or less a crime against math. Among the errors detailed by the Fifth Circuit: 1. The agent didn’t get the right number for a basic division problem. Id. at 323-324. He multiplied an average marijuana 1

The exhibit was introduced against other defendants too, but only these two

drivers argued that its admission merited reversing their convictions.

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load for all drivers by the total number of trips undertaken by each driver to get a total quantity attributable to each driver. Id. For some of the trips, the agent had a known quantity; for others, he knew only that the trip occurred.

Id. So, to calculate the average load, he divided the total known quantity by the number of trips for which a quantity was known. Id. But when the Fifth Circuit did the same division problem, they got a larger average number than the agent did. Id. Even though a smaller number might help the defendants, the court thought this obvious mathematical error discredited the exhibit. Id. at 325-36.

2. The agent divided the total known quantity by 22 trips, but the court could not find any testimony or evidence showing where the number 22 came from. Id. at 325.2 3. When calculating the total known quantity, the agent inexplicably excluded a quantity seized during a particular traffic stop and may have excluded the trip itself from the divisor. Because the quantity seized in the trip that fell below the average, this artificially inflated the average for both drivers. Id. at 323.

4. When calculating the total known quantity, the agent appeared to double count certain quantities, counting them once as a delivery and again as a quantity received. Id. at 325.

5. The agent used the mean, rather than the median, to determine the average per load even though the “median … is traditionally the more stable value in statistical analyses because it is less affected by outliers.” Id. at 324-325.

6. The agent multiplied the number of trips for one driver by the average (the mean) load for all drivers to get his total quantity, even though the standard deviation of quantities was large. Id. at 325. It observed that “[s]uch a high standard deviation shows that extrapolation of that average value is dangerous speculation, especially when it is not paired with reliable explanatory testimony.” Id. 7. The agent multiplied the average (mean) weight of each load by the total number of trips undertaken by each driver, rather than by the total number of trips for which he did not have a known drug quantity. Id. at 323. That is, he knew that 2

Likewise, contemporary parents and teachers cannot find any good explanation as to where the numbers “six, seven” came from.

a driver took 247 pounds on a particular trip but used the per trip average of 506 pounds for that trip. This substituted a hypothetical quantity for a known one.

8. The agent used, in his own words, “a guesstimate.” Id. at 324.

The court thought these “mathematical errors”3 rendered the exhibit inadmissible at trial. Id. Of course, the average (mean) drug case is resolved by plea rather than trial. So, of greater significance for most of us will be the court’s further holding: the Fifth Circuit also thought the agents’ errors rendered the calculations insufficiently reliable for sentencing. Id. at 333334. It thus vacated one driver’s drug conspiracy sentence, even though it did not require the government to prove the 1,000-kilogram threshold at trial. Id. It is probably rare that you will encounter drug calculations that are as pervasively wrong as the Fifth Circuit found4 the 3

Appellate practitioners may want to flag that characterization for use in cases with an appeal waiver. At least in the Northern District of Texas, standard plea

agent’s work in McGuire. So, the government will likely try to distinguish it in cases where the government’s methodology, or Probation’s, is more defensible. We can push back on that – the court didn’t say that some mathematical errors are ok, as long as there aren’t too many. But at the very minimum, we can use McGuire to establish a set of best practices in cases involving drug quantity extrapolation (or extrapolation of anything else, for that matter). Of particular use are likely to be the words of caution regarding the use of the mean rather than the median when individual quantities are highly variable. See McGuire, 151 F.4th at 324-325. Also significant may be the court’s caution about using any kind of average when the standard deviation is large. Id. at 325. Perhaps usefully, McGuire stands for the proposition that a “guesstimate” cannot substitute for analytical and mathematical rigor where years of prison turn on the answer.

agreements exempt “arithmetic error at sentencing” from the scope of a waiver. The court’s choice to characterize these issues as “mathematical” may help in trying to fit extrapolation errors into the exception to the arithmetic error exception waiver.

4

Because my instinct is to defend people, I want to stress that the problem here may well have been one of communication – that the agent’s work was more defensible than the opinion portrays, and that the analytical steps simply weren’t explained on the record. The court thought this lack of explanation to be problematic in its own right. They were right about that, but I don’t want to say on the basis of the court’s summary that his work was actually incompetent. Probably not, and we don’t know.

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__________________________________________________ Joel Page is the Appellate Supervisor for the Federal Public Defender of the Northern District of Texas, where he has worked for 20 years. He secured a favorable opinion form the Supreme Court in Davis v. United States, 140 S. Ct. 1060 (2020), and quite a lot more unfavorable opinions from the Fifth Circuit over the years.

December 2025

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December 2025

BEYOND THE CITY LIMITS

Voir Dire in Rural Texas S H AN E P HE LP S

Jury selection in rural Texas is a different experience than what most lawyers encounter in larger jurisdictions. In metropolitan cities, you can usually walk into voir dire with a stack of information about your panel, questionnaires, online searches, prior jury service, and data that helps you understand who you’re talking to before you ever stand up. In rural counties, that information simply doesn’t exist. You often receive nothing more than a name, an occupation, and maybe a spouse’s name.

That is all you have to work with. And you usually get this information just before voir dire starts.

The absence of information changes your approach. You have to learn about your panel by watching the room, listening carefully to how people answer, and paying attention to how the prospective jurors react to each other. Rural communities are closely connected. People know one another. They know each other’s families. They know each other’s histories. These relationships matter, and in voir dire, you ignore them at your client’s peril.

I once tried a felony case in a county so small that a married couple ended up on the jury. That is the kind of thing that happens in rural practice. Twenty years after that trial, one of those jurors called me to ask whether I could hire their daughter, now a student at Texas A&M, as an intern. I hired her (and she was great). Encounters like that are a reminder that in the rural counties, your jury is not just a group of people selected for a single case. They are part of a community that remembers.

Because of those connections, it is common for many members of the panel to know the prosecutor. Some will have gone to school with them. Some will have served with them on local boards. Some may have grown up with them. You need to ask about those relationships directly. Jurors may believe they can be fair, but the influence of a long-standing personal connection cannot be ignored without exploring it.

The same is true for your client. In the smaller counties, there is a much greater likelihood that someone on the panel knows your client or knows the client’s family. Sometimes that familiarity will help your client. Sometimes it will not. You have to ask questions that draw out not only the existence of those relationships, but the nature of them. When a juror says they “know of ” your client, you need to find out what that means.

And, it is just as important to ask whether prospective jurors know about the facts of your case, have formed an opinion already, or know the State’s witnesses.

This is where rural voir dire differs most from voir dire in urban courts. You must ask questions in rural counties that you might never think to ask in a city. You have to ask about family connections, about disputes, about church relationships, about long-standing friendships, about feuds, and about any personal knowledge of the case. In rural practice, these are not intrusive questions. They are necessary questions.

The risk of being “hometowned” is very real for lawyers who do not regularly practice in a particular rural county. Local relationships are strong, and if you are not aware of them, you can make mistakes that harm your client’s chance of a fair trial.

One of the best decisions you can make is to retain a local lawyer who practices regularly in that jurisdiction. A local attorney can tell you which jurors carry long-standing biases, who has connections to law enforcement, who has strong feelings about the defendant or the alleged facts, and who is likely to give your client a fair chance. That local insight is invaluable.

None of this is meant to suggest that rural juries are inherently unfair. My experience has been that jurors in smaller counties often take their responsibility extremely seriously.

But rural voir dire requires attention to different factors. The relationships are closer. The information gaps are larger. And the margin for error can be greater if you fail to ask the right questions.

Voir dire is not just the first stage of trial. In rural practice, it is often the most important one. Understanding the community, recognizing the influence of personal relationships, and taking the time to ask the questions that uncover those dynamics can make the difference between a fair trial and a problematic one.

Practicing beyond the city limits forces you to see jury selection for what it really is: a conversation with a community.

When you respect that, and when you prepare for it, your client is far more likely to receive the fair hearing they deserve. __________________________________________________ Shane Phelps is the founder and lead attorney at Shane Phelps Law in Bryan, Texas. Shane is a former United States Marine, a graduate of Rice University and the University of Texas School of Law, and is board certified in criminal law. He is in his second term as a member of the Board of Directors of TCDLA. Licensed in 1987, Shane is a former prosecutor and has been practicing criminal defense since 2011. He lives in College Station, Texas with his wife, Jean.

December 2025

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ETHICS & THE LAW

Navigating Artificial Intelligence and Professional Responsibility C H RIS FRED ER IC K S

Member of the Ethics Committee Generative Artificial Intelligence (“AI”) tools exploded onto the scene following ChatGPT’s public release in late 2022. The proliferation of ChatGPT and other artificial intelligence tools raise serious ethical concerns for attorneys using the technology in their law practices. Although AI is a relatively new technology, the current Texas Disciplinary Rules of Professional Conduct’s (“Disciplinary Rules”) existing framework addresses the ethical considerations raised by implementing AI in your legal practice.

Recently The Professional Ethics Committee for the State Bar of Texas (“Ethics Committee”) issued an opinion outlining practical considerations for the use of AI tools in compliance with the Disciplinary Rules. See Tex. Comm. on Professional Ethics, Op. 705 (2025). The Ethics Committee issued Opinion 705 to provide Texas lawyers with professional insight into using these AI tools responsibly. We all realize AI technology uses in our law practices are evolving rapidly and the opinion of the Ethics Committee does not exhaustively cover every possible issue. I want to outline a lawyer’s responsibility prior to using AI software, appropriate supervision of employees under the lawyer’s direction, and the confidentiality concerns associated with open-source AI as detailed in Ethics Opinion 705.

First, a lawyer has to understand how AI tools work before implementing the technology in their law practice. Lawyers must have competence and a working knowledge of any technology if they intend to use it for their law practice. See, Rule 1.01 Texas Disciplinary Rules of Professional Conduct. Lawyers must understand the capabilities and limits of generative AI and remain competent when using it for legal work.1 Most importantly, reliance on AI does not relieve a lawyer’s obligation to provide competent representation under the Rules. Lawyers must understand how to use the technology, verify its work, and ensure clients’ confidentiality is maintained. Just like a lawyer’s duty to only accept work that the lawyer is competent to handle, a lawyer should not use AI tools without having competent understanding of the risks to the client. See Texas Disciplinary Rules of Professional Conduct § 1.01(a).

One of the most efficient uses of AI is for drafting motions and briefs. Attorneys are responsible for verification and accuracy of any 1

information produced using AI. The national news story detailing the Texas lawyer’s use of AI to draft a brief containing made-up case citations alerted most attorneys to the limitations of AI tools.

Generative AI models can “hallucinate” or invent authorities.

Lawyers must verify factual and legal statements produced by AI before presenting them to courts, clients, or opposing counsel.

See Rule 3.03(a) and comment 2. I personally ran into this issue while using Microsoft’s Copilot to locate supporting case law for a paper I was writing. In three separate instances, co-pilot produced proper legal citations that existed, but the propositions of law and/or fact were completely inaccurate. Counsel is also responsible for checking local rules for limitations or required disclosures when using AI for drafting motions or pleadings.

Both the Federal District Court for the Northern District of Texas and the Collin County judges have issued standing local rules requiring disclosure of the use of AI in drafting of pleadings or other work with the Court.

Coupled with competence in the understanding of AI platforms is the concern for appropriate supervision over nonlawyer assistants. This is especially important when using younger interns who are much more comfortable and confident using AI and technology tools. When lawyers delegate tasks that involve AI research or platforms to nonlawyers or support staff, they must supervise appropriately and ensure delegated work meets ethical standards including verification of the accuracy of the material. See Rule 5.03, comment 1. Lawyers submitting AI generated material to courts or other parties without verification may violate duties

The Ethics Committee previously outlined minimum standards for using technology in a law practice, suggesting lawyers should acquire a general understanding of how the technology works; review the “terms of service” prior to using an AI tool; and learn about the AI tools data security and confidentiality protections.

See, Tex. Comm. On Professional Ethics, Op. 680 (2018) 14 VOICE FOR THE DEFENSE December 2025

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of candor under Rule 3.03. Lawyers should implement written policies regarding the use of AI in the workplace to ensure nonlawyers are in compliance with the ethical rules, especially those involving confidentiality of client information. See Id., comment 2.

The Ethics Committee’s opinion also addressed concerns with client confidentiality and data security. Specifically, Rule 1.05(b) (1)(ii) generally prohibits disclosure of confidential information to anyone outside the lawyer’s office. The general prohibition on disclosure of client confidential information includes AI tools.

Instead, a lawyer must take steps under Rule 1.05 to ensure that there are adequate protections against disclosure of confidential information. Comment 1 states that “The ethical obligation of the lawyer to protect the confidential information of the client not only facilitates the proper representation of the client but also encourages potential clients to seek early legal assistance.” Texas Disciplinary Rules of Professional Conduct. § 1.05. Lawyers must evaluate the confidentiality risks of a given tool: 1.) how data may be stored, 2.) how is it used to further train AI models, and 3.) how might it otherwise be disclosed through the AI tool. ChatGPT’s open AI privacy policy details how the company maintains and uses information obtained by users of the open-source AI tool.

See https://openai.com/policies/row-privacy-policy/. (updated June 27, 2025). Spoiler alert – the company maintains and uses the provided information for all sorts of things that would violate client confidentiality rules. The two biggest ways ChatGPT’s privacy policy disclosure exceptions raise confidentiality concerns are: “To provide, analyze, and maintain our Services, for example to respond to your questions… and [t]o improve and develop our Services and conduct research...” See Id. Lawyers must take reasonable measures to protect client information from these known risks of disclosure. Lawyers use AI tools for creating written transcripts of video discovery or to transcribe a meeting with a witness or client. The information in the transcripts is confidential information under Rule 1.05 and must be protected from disclosure. There are certainly AI platforms that can perform this work and maintain client confidentiality. But, most of the free open-source AI programs will not protect the inputted information from disclosure.

Prior to using an AI tool for your legal practice, it is important to review the privacy policies for the AI software and how your information will be stored, used, and provided to 3rd

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parties – including law enforcement. It is recommended to draft and maintain AI specific confidentiality clauses in non-disclosure agreements and contracts. The contracts should prohibit AI tools from storing or retaining confidential data, ban the use of data for training purposes, and require breach notifications and audit rights for the lawyer. ChatGPT’s higher end paid platforms include confidentiality agreements for the users.

Additionally, lawyers should communicate with clients about material uses of AI when such use impacts the client’s interests, including any limits on confidentiality, and obtain informed consent when appropriate. See, Rule 1.05(c)(2). In order to limit disclosure of confidential information, attorneys should limit or redact client identifying information before using external AI services. An even better practice is to favor vendors that offer contractual confidentiality protections and data handling transparency. As part of a retention agreement, lawyers should obtain written client consent regarding the use of AI in the representation as well as the nature of AI assistance when the AI’s role is material to strategy, cost, or confidentiality.

The Ethics Committee’s Opinion 705 is certainly a great starting point for lawyers learning about the world of AI. Lawyers need to be informed on how AI works before using a platform, properly supervise non-lawyers or new attorneys in their practice, and research the privacy policies of the AI programs prior to use.

AI can be a great tool when attorneys ensure proper supervision and confidentiality for their clients’ benefit. The Ethics Committee also pointed out how AI programs could alter billing and fee arrangements as lawyers are required to invest less time in certain areas of the practice with the help of AI. As Opinion 705 points out, AI is a constantly evolving technology that lawyers will need to constantly stay informed on in order to be compliant with the Texas Disciplinary Rules of Professional Conduct. ___________________________________________________ Chris Fredericks is a board certified criminal attorney and the owner of the Law Offices of Chris Fredericks, PLLC. He is a member of the TCDLA Ethics Committee. He was a former prosecutor with the Collin County District Attorney’s Office from 2005 to 2015. He currently represents individuals charged with felony and misdemeanor crimes in Collin, Dallas, Tarrant, and Denton counties. He can be reached at chris@frederickslaw.net or 469-712-5741.

December 2025

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December 2025

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Overdose Is Not Murder: Defending Fentanyl Death Cases in the Age of Panic ANGELICA COGLIANO

CMK Defense, PLLC | Member of the TCDLA Board

Defending clients charged in fentanyl-related overdose cases is less about pharmacology and more about panic. Fentanyl has become the emblem of America’s overdose crisis, and prosecutors have responded by stretching criminal statutes to their harshest limits: charging murder where there is tragedy, treating shared use as intentional delivery, and stacking sentencing enhancements never designed for these cases. The defense task is twofold: (1) dismantling the myths that fuel fear-driven prosecutions, and (2) forcing courts to hold the government to its burden on science, causation, and intent. This article discusses the first goal -countering the narrative of fear that prosecutors rely upon before a single piece of evidence is introduced.

What Is Fentanyl?

Fentanyl is a synthetic opioid, developed in 1959 and approved for medical use in the 1960s. In hospitals, it remains routine: administered in surgery, used in pain management, and prescribed for end-of-life care. By weight, it is about 100 times more potent than morphine and 50 times stronger than heroin.1 That strength stems from its chemical properties: fentanyl crosses the blood-brain barrier rapidly and binds tightly to opioid receptors, producing predictable results in small, carefully measured doses.2 Fentanyl is potent, but not inherently lethal. Its presence in toxicology is not dispositive of murder. Jurors must be shown that the science is more complicated than the headlines, and that panic cannot substitute for proof.

Fentanyl Panic: Myths and Misinformation To effectively defend a fentanyl-involved overdose case, you must address not just the facts and the law, but also the narrative. And the dominant narrative around fentanyl is steeped in fear, misinformation, and moral panic. The prosecution’s case will often start with a headline, not a toxicology report. Jurors have likely already heard that “two grains of fentanyl can kill,” that police officers are collapsing from mere exposure, and that fentanyl dealers are akin to weapons traffickers. These stories are not grounded in pharmacology or fact. They’re built for public consumption, and they carry serious prejudicial weight in the courtroom if left unchecked.

Myth #1: Touching Fentanyl is Lethal One of the most persistent myths is that fentanyl exposure through skin or air can cause overdose. This is scientifically false.

The American College of Medical Toxicology and the American Academy of Clinical Toxicology have made it clear that brief dermal contact is not a viable route of overdose, and incidental airborne exposure in open-air settings cannot reach toxic concentrations.3 Despite this, law enforcement agencies continue to publish warnings and circulate bodycam footage of officers 1

DEA. What Is Fentanyl? DEA, Apr. 2020.

2

Comer, Sandra D., and Catherine M. Cahill. “Fentanyl: Receptor Pharmacology, Abuse Potential, and Implications for Treatment.” Neuroscience & Biobehavioral Reviews, vol. 106, Dec. 2018, pp. 49–57.

3

Moss, Michael J et al. “ACMT and AACT Position Statement: Preventing Occupational Fentanyl and Fentanyl Analog Exposure to Emergency Responders.” Journal of Medical Toxicology : Official Journal of the American College of Medical Toxicology vol. 13,4 (2017): 347-351.

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collapsing after handling suspected fentanyl. Toxicologists reviewing these cases have confirmed that such episodes are almost always panic attacks or unrelated medical events.4 The exaggerations do not end there. Media outlets and officials frequently amplify panic with soundbites like “enough fentanyl to kill a small city” or labeling it a “weapon of mass destruction.”

These phrases oversimplify, sensationalize, and distort the reality: potency ≠ lethality.

during overdoses, or by pushing users further from treatment and into more dangerous drug markets. Addiction does not yield to fear of punishment; it is a chronic medical condition that requires treatment and support.

Myth #2: Harsher Sentences will Save Lives Politicians often promise that longer sentences will stop overdoses, scare off would-be users, and dismantle the drug trade.

The appeal of this myth is understandable: it promises a simple fix to a complex problem. But history tells a different story. Half a century of the “War on Drugs” produced mass incarceration not safer communities. Mandatory minimums, “three-strikes” laws, and drug-induced homicide statutes have swelled prison populations without reducing availability or demand for these substances. Despite billions poured into enforcement, drug use has not declined, and overdose deaths have climbed to record highs. Studies consistently show that punitive sentencing has no measurable “general deterrent” effect. In fact, harsh penalties often worsen outcomes by discouraging people from calling 911

Myth #3: Most Fentanyl Use Is Unknowing The common narrative is that almost nobody wants fentanyl, and that nearly every user ingests it unknowingly when it is cut into heroin, cocaine, or counterfeit pills. This storyline is powerful because it casts every overdose as a crime of poisoning and every defendant as a predator. But the reality is far more complicated.

Yes, illicitly manufactured fentanyl may be mixed into other drugs without the consumer’s knowledge, and counterfeit pills exist. But surveys and market analyses show most fentanyl use is deliberate because it is potent, cheaper, and more readily available than heroin.5 In many regions, fentanyl has become the primary opioid of choice. Treating every instance of fentanyl use as accidental erases this truth and oversimplifies the dynamics of drug markets.

That image is emotionally powerful, but misleading. Every death resulting from fentanyl use is a tragedy. But tragedy does not transform every defendant into a malicious poisoner secretly duping an unwilling victim.

4

5

del Pozo, Brandon, et al. “Can Touch This: Training to Correct Police Officer

Foglia, R., Cooperman, N., Mattern, D., Borys, S., & Kline, A. (2021). Predictors

Beliefs about Overdose from Incidental Contact with Fentanyl.” Health & Justice,

of intentional fentanyl use: Market availability vs consumer demand. International

vol. 9, no. 1, 24 Nov. 2021, https://doi.org/10.1186/s40352-021-00163-5.

Journal of Drug Policy, 95, 103403.

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Combatting the Panic: Trial Strategies Themes and Theories - Prosecutors lean heavily on emotion in fentanyl-related trials. We must rehumanize our client and direct jurors toward facts, causation, and intent at every stage of the trial.

1. Not a Murderer, a Fellow Victim Humanize the defendant as someone caught in the same crisis, not a predator. If your client was a user-seller, emphasize context. Frame the exchange as sharing or providing, not trafficking, and acknowledge the decedent’s autonomy without resorting to blame.

2. Science over Soundbites Frame the case as a test of evidence versus headlines. Keep the science at the center, and scientific uncertainty the centerpiece. The prosecution may lean on fear mongering, but verdicts must rest on toxicology, pharmacology, and proof.

3. Intent to Sell ≠ Intent to Kill Supplying drugs is not the same as intending someone’s death, just as selling a gun does not make the seller a murderer if it is later misused. Providing fentanyl does not prove an intent to kill. Once a substance changes hands, countless factors shape the outcome: tolerance, co-use of alcohol or benzodiazepines, health conditions, and addiction itself.

Motions In Limine - Perhaps the most crucial pretrial motions in an overdose trial, motions in limine should address prejudicial attempts to incite the jury.

1. Inflammatory Language: Prevent loaded terms like “poison,” “killer,” or calling the decedent a “murder victim.” Neutral language prevents moral judgments from substituting for proof.

2. Graphic Evidence: Limit autopsy photos and “victim impact” theatrics unless directly relevant. Overly emotional evidence risks overwhelming reason.

3. Prior Bad Acts: Exclude evidence of other overdoses or alleged dealing under Rule 404(b). Keep the focus on the charged incident, not character attacks.

4. Expert Overreach: Challenge medical examiners or analysts who claim certainty on causation without solid toxicology.

Daubert motions can curb speculation disguised as science.

Jury Selection - Choosing the right jury is pivotal. Create a safe space for individuals who cannot be neutral to expose themselves while beginning to debunk myths.

1. Spot Bias: Ask jurors about their experiences with addiction or overdose. Ask what they have seen in the media, and how it has impacted them. Honor their trauma and perspective while swiftly marking them down for cause or a peremptory strike.

2. Test Myths: Probe beliefs about touching fentanyl or collapsing from incidental exposure. Identify jurors who mistrust science or doubt defense experts.

3. Intent and Delivery: Prompt a discussion amongst the jurors about what evidence of intent looks like to them. What kind of behavior do they expect the distribution statutes to target?

Is the door-dasher dropping food at your door the same as your girlfriend bringing pizza over and sharing it for dinner?

Strike those jurors who think it is.

Expert Witnesses - Bring your own defense experts to bring clarity and perspective to the State’s evidence and confront the common myths.

1. Toxicologist & Forensic Pathologist: They can review the concentrations of fentanyl and other substances in blood/ tissues and opine on whether you can determine which substance actually caused death and explain phenomena like synergistic effects. They might highlight that the fentanyl level found was low, suggesting the decedent’s level of tolerance or other issues. If the prosecution’s toxicology is weak, a defense tox expert might even testify that in their opinion, cause of death is undetermined or multi-factorial.

2. Digital Forensics Expert: Often, text messages or social media are key evidence to link the defendant to supplying the drug (e.g., “Can u get me one?” text from the decedent).

A digital expert can provide context: what may the message actually be referring to? Are there missing messages to other December 2025

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potential distributors? They can also rebut over-broad cell tower or location evidence the prosecution might use to pin defendant at a scene.

3. Addiction Expert: They can educate jurors on cycles of use, tolerance, and why overdose rarely reflects intent to harm.

Use their testimony to reframe the defendant as part of the crisis rather than a predator. This can subtly frontload mitigation evidence and advance a narrative that heavyhanded punishment doesn’t solve the underlying problem, though care must be taken to keep it relevant to facts of the case to survive objection.

Conclusion Every fentanyl-related death is devastating. But grief cannot be converted into automatic guilt. Prosecutors increasingly lean on fear and myths to shortcut the hard questions of science and causation. The defense role is to stop that slide. We do that by rehumanizing our clients, challenging inflammatory evidence, and insisting that verdicts be grounded in proof, not panic.

Supplying drugs is not the same as intending to kill. Addiction is not malice. Presence is not causation. The law demands more than outrage, it demands evidence. If we hold the State to its burden, jurors will see what the science and history already show: fear cannot replace proof, and tragedy alone cannot sustain a conviction for murder. ___________________________________________________ Angelica Cogliano is a partner at CMK Defense in Austin, with a practice focused on serious felony cases and forensic science litigation. She’s built her reputation in the courtroom—trying cases to verdict in seven states and counting, and arguing before the Court of Criminal Appeals and the Fifth Circuit. Angelica consults nationally on jury selection and trial strategy, running virtual mock jury focus groups across the country. Her toughest panel remains her dog, Ginsburg, and two cats—Stardust and Schrödinger—who provide companionship, critique, and quantum uncertainty.

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When Doing the Right Thing Still Gets You Arrested: A DWI and the Motion to Suppress Hearing that Won the Day TIFANEE BAKER She did everything we ask people to do when they’ve had too much to drink and realize they’re not okay to drive. She got arrested anyway.

This sentiment echoed in my mind throughout my client’s DWI case. The case became a sharp reminder of how easily our system can punish people for making responsible decisions.

However, while the motion to suppress was granted and the case ultimately dismissed, the road to that result was far more difficult than it should have been.

The Night of the Arrest Just before 3 a.m., my client pulled onto the shoulder of a road, parked, activated her hazard lights, and called her daughter.

She had been out that evening, and although she initially believed she was okay to drive, she quickly decided otherwise. So, she did the right thing—she pulled over and called for help.

An officer driving in the opposite direction noticed her vehicle and made a U-turn when he saw skid marks on the road.

They weren’t directly behind the stopped vehicle, but he stopped anyway. Testimony at the hearing put the officer’s primary reason for making a U-turn under the community caretaking doctrine.

Approaching the vehicle on the passenger side, the officer found my client awake, alert, and on the phone. She rolled down the window, and when asked if everything was okay, she told the officer it was. He asked who she was on the phone with. She responded and told him it was her daughter. The officer asked where she was coming from and going, and then walked back to his patrol unit.

Moments later, the officer returned—this time to the driver’s side. He knocked on the window again, and according to his report, it was “during this time” that he smelled a strong odor of alcoholic beverage.

However, at the suppression hearing, under direct examination, the officer contradicted himself. He testified that he smelled alcohol during the initial approach—from the passenger side—and that the odor was strong because it was blowing out of the car’s heater. So why did the report say “during this time” when referencing the second approach?

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The Motion to Suppress: Community Caretaking and Its Limits We anchored our motion to suppress in Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999), which outlines the four factors for evaluating whether an officer’s conduct under the community caretaking doctrine is reasonable: 1. The nature and level of the distress exhibited by the individual; 2. The location of the individual; 3. Whether the individual was alone or had access to other assistance; and 4. The extent to which the individual presented a danger to herself or others.

I participated in this motion to suppress with the help of my colleague, Mark Lassiter, who handled the hearing. We drilled down the facts against the factors. In our case, there was no visible distress. My client was on the phone with her daughter.

She had pulled over near a neighborhood entrance. She could have knocked on someone’s door or called 911 if she needed emergency assistance. By all objective measures, she didn’t require help—and she told the officer everything was fine.

We conceded that the officer had a valid community caretaking rationale for the initial approach. But once my client confirmed she was fine, the purpose of the stop ended. From that point forward, the officer needed reasonable suspicion of criminal activity to lawfully prolong the detention.

This is where the language in his report mattered. He didn’t write “I already smelled alcohol” or “there was an ongoing odor.”

He wrote “during this time”—a phrase the judge keyed in on.

That phrase, she noted, is temporal and deliberate. It signaled something occurring at that moment, not earlier. Had the odor been as strong and obvious during the first approach, it would’ve been noted then—or at least reported as such.

The judge found that while the initial encounter was lawful under a community caretaking rationale, the justification ended once my client declined assistance. There was no reasonable suspicion to prolong the stop because, by his own words, he didn’t even smell anything until he came back to the car the second time. She granted the motion.

What Could Have Happened If We Hadn’t Prevailed What I learned that morning just before the abovementioned hearing still troubles me. The prosecutor, to his credit, informed me that after speaking with the officer, he learned the officer had not verbally sworn to the blood warrant before a magistrate.

This is not a mere technicality. Under Texas law, an officer must do more than just sign a warrant request; they must raise their hand and verbally swear or affirm the facts presented to justify the search. Without that oath, the warrant—and any resulting blood evidence—is invalid.

So even if our suppression motion had failed, the BAC would have likely been inadmissible at trial. Without that, the State’s case would’ve hinged on severely limited evidence. No walk-and-turn test had been performed. The officer attempted to administer it, but we were prepared to challenge its validity since it wasn’t conducted on a flat surface, and my client declined the test after hearing the instructions. Only the HGN had been conducted—an imperfect indicator on its own.

Justice, Eventually—but Why So Late?

Despite all of this, the State initially refused to dismiss. On the very first setting, I asked for a review and outright dismissal— with no conditions. Why? Because my client had done everything we ask people to do when they may not be okay to drive. She pulled over. She didn’t keep driving. She called her daughter. She waited. And yet she was arrested anyway.

What message are we sending the community when we punish that kind of behavior? If someone gets arrested even after pulling over and calling for help, what incentive do they have to stop next time? As my client said to me: “If I’m going to get arrested for DWI, I might as well actually drive.” That’s the kind of chilling effect that endangers everyone.

And let’s not forget: the State declined to extend an obstruction of a highway offer. They wanted the DWI conviction. So we teed

it up for a motion to suppress, litigated it, and won.

Conclusion: The Win and the Warning This case ended the right way—but only because we fought.

And only because a judge listened carefully to the language in a report that didn’t match the testimony in court. Too many clients won’t have the resources or representation to make that argument stick. Too many judges won’t scrutinize “during this time.”

Defense lawyers need to keep challenging detentions that masquerade as welfare checks. Prosecutors need to rethink their charging decisions when the facts scream for discretion. And all of us—judges included—must ask whether the system encourages or discourages people from doing the right thing when they’ve had too much to drink.

Because if we don’t stop and really ask ourselves, is this really justice, what are we incentivizing? ___________________________________________________ Tifanee Baker is the managing attorney of T. Baker Law Office, P.C. She began her legal career as a prosecutor before moving to Dallas and hanging a shingle as a defense attorney.

She is a former associate municipal court judge for the City of Dallas and currently a candidate for judge of County Criminal Court 1 in Dallas County. She represents both retained and court-appointed individuals charged with misdemeanors and felony offenses. She can be reached at tbaker.esq@gmail.com or 214-281-8304.

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VISIT: VerdictHub.ai CONTACT: Mike Epstein mike@verdicthub.ai December 2025

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24 VOICE FOR THE DEFENSE

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Following Proper Preanalytical Protocols for Blood Alcohol Analysis: Is it over before it even begins?

ZACARIAH L. HILDENBRAND, PH.D., MELISSA GIGUERE, DFS, AND KEVIN A. SCHUG, PH.D. Medusa Analytical

Forensic toxicology is built on a foundation of analytical chemistry. For forensic toxicology to be used as reliable evidence, analytical accuracy and precision are paramount to ensure that the detection and quantitation of a given toxicant is accurately representative of the situation in question. In the case of blood alcohol concentration (BAC) analysis, a blood sample is collected, stored, processed, and then analyzed to determine whether the concentration of ethanol is above a lawful limit; for example, a limit of 0.08 grams of ethanol per 100 mL blood when operating a motor vehicle.

As one can imagine, this requires sophisticated analytical instrumentation. The instrument compares the relative concentration of ethanol in one’s blood to a series of established certified reference standards of known concentration, as well as to positive and negative control samples to verify that proper instrumental calibration is reflective exclusively of the analyte of interest (ethanol) and not other constituents present in the blood or instrument (so-called matrix effects). Running these analyses requires technical proficiency, troubleshooting skills, interpretative abilities, and most importantly, proper quality assurance and quality control (QA/QC) procedures.

Even with the most proven and accepted science in the analytical phase, all of this could be for naught if proper care was not taken in the preanalytical phase, when the blood sample is drawn. In every case, it is crucial to scrutinize site preparation, specimen collection techniques, and sample storage.

The analogous scenario is this: Picking fruit from a poisonous tree. If a sample that is collected for analysis is not representative of the subject’s blood alcohol concentration at the time of the blood draw, then all subsequent analytical efforts must be considered as compromised, with accuracy lost. The law requires a representative sample, and it is easy to lose this representativeness given the inherent susceptibility of a blood sample to contamination when proper procedures are not followed.

Proper protocols by the American Academy of Forensic Sciences (AAFS) and their AAFS Standards Board (ASB) clearly delineate the need for care to be taken during all steps in the preanalytical phase. For example, the extraction (blood draw)

site in one’s forearm is to be treated with an antiseptic solution like betadine (iodine) for at least two minutes (three minutes is better) to limit the chances for microbial contamination. Blood is an incredibly complex matrix of cells, carbohydrates, proteins, lipids, and electrolytes. Improper blood draw techniques can lead to contamination by bacteria, which would alter the sample such that it is no longer representative of the subject’s blood at the time of collection.

Additionally, contamination of the sample by yeast, which is ubiquitous, can transform the sugars present in blood into ethanol. This will then lead to erroneously high blood alcohol concentrations during BAC analysis. Fermented blood looks and smells like normal blood, and the analytical instrumentation used in BAC analysis cannot differentiate between ethanol in someone’s blood due to alcohol consumption, and the ethanol produced by the fermentation of blood after the sample was collected.

It is fundamentally important that decontamination of the blood draw site and care to avert its subsequent contamination is maintained. The individual collecting the blood sample must wash their hands, don sterile gloves, and even then, avoid touching the draw site after it has been sterilized to help avoid contamination of the extraction site. While this seems like common sense, these simple steps are regularly overlooked. Each minor misstep risks compromising sample integrity.

In a blood alcohol analysis, specific grey-top tubes must be used for the blood draw. These vacutainer tubes have potassium oxalate (an anticoagulant) and sodium fluoride (a preservative) in specific ratios which, if properly stored at the correct temperature, will maintain the integrity of a blood alcohol sample for several weeks. According to the manufacturer Becton Dickinson, these tubes, which operate under vacuum pressure, must be completely filled and properly mixed (8-10 complete inversions). Failure to do so introduces the concern for potential contamination and incomplete preservation.

Underfilled tubes can lead to inaccuracies and the loss of representativeness in subsequent analyses. From our experience, this aspect of blood alcohol analysis is one of the first overlooked steps in the entire process. Sample tubes are generally filled below December 2025

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the fill line or the manufacturer’s recommendation, and they are representative of the person at the time the sample was collected. rarely mixed in the manner set forth by BD, as required.

The key takeaway is that challenges to the accuracy and As previously mentioned, blood contains all the right representativeness of blood alcohol concentration (BAC) macronutrients to serve as a petri dish for bacteria and yeast to measurements cannot be confined solely to the laboratory proliferate and compromise the integrity of a given sample for environment. While criminal defense attorneys frequently focus BAC analysis. Upon collection and prior to analysis, blood samples on potential analytical errors that may occur within the laboratory, are required to be immediately stored at ≤8 °C (46°F) to retard this perspective overlooks critical stages of the evidentiary enzyme activity and the proliferation of any microorganisms. chain. Numerous opportunities for error or contamination exist Temperature control can be accomplished very simply by using well before a sample reaches the laboratory, including during a cooler filled with ice. collection, handling, storage, and transport. Moreover, laboratory Medusa Analytical has seen cases where a blood draw analysts typically disclaim responsibility for, or knowledge of, the was performed with someone not wearing gloves, where the conditions under which samples were obtained and preserved extraction site was not aseptically treated, and where the sample prior to their receipt. Regardless of the scientific rigor given by was stored in the trunk of a car without ice or in an evidence room the crime laboratory, the unfortunate disconnect in terms of unrefrigerated. These are all unacceptable and bad preanalytical good analytical science remains, because any preanalytical errors techniques. Sample integrity cannot be guaranteed once these invalidate the reliability of the analytical result. errors are made, and the blood can no longer be considered _________________________________________________________________________________________________________ Zacariah L. Hildenbrand, Ph.D., is a partner of Medusa Analytical. Dr. Hildenbrand’s research has produced more than 70 peer-reviewed scientific journal articles and textbook chapters. Dr. Hildenbrand has dedicated his career to unconventional fields of research in environmental forensics, criminal forensics, and drug analysis.

Melissa Giguere, DFS., is a Medusa Analytical consultant with over ten years of experience in benchtop analytical chemistry in a forensic toxicology laboratory. She currently works with Medusa Analytical, LLC., as an expert consultant, providing case review, consulting, and expert testimony. Dr. Giguere has previously qualified as an expert in Texas and Wisconsin and has reviewed over 100 cases from 17 different states and more than 30 distinct laboratories.

She combined her past law enforcement and laboratory experience into a passion for teaching and guiding others to strive for better science.

Kevin A. Schug, Ph.D., is the Shimadzu Distinguished Professor of Analytical Chemistry at the University of Texas at Arlington in Arlington, Texas. He is also a partner in Medusa Analytical, LLC, a scientific consulting firm.

Professor Schug is a leading international authority on analytical measurement science, especially in the development and use of sample preparation, chromatography, and mass spectrometry techniques for measurements from complex mixtures. He regularly teaches, researches, and consults in the area of forensic science analysis.

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Mentorship: Standing on the Shoulders of Giants LAUREN MCCOLLUM

Member of the TCDLA Board | Member of the Mentee Committee

I have written and re-written this article several times, and I share that so that you know that trying to find the right words to discuss the broad topic of mentorship is not an easy task. I hope you gain a few things from this article. I hope you inspire someone through even the smallest act of practice, or that you reflect on the circle of mentors you inevitably have learned from. If you are truly inspired by this written masterpiece, you could also get involved with the numerous TCDLA committees and events designed to foster mentorship!

The phrase “standing on the shoulders of giants” was made famous by Sir Isaac Newton, who wrote in a letter in 1675: “If I have seen further, it is by standing on the shoulders of giants.”

In saying this, Newton acknowledged his work was built on a foundation of others’ guidance, their teachings, and work.

As lawyers, we witness giants in the courtrooms, our offices, in appellate opinions, and records all the time. We experience this firsthand, and through speaking to other attorneys, learning of their tales of victories, hard-fought challenges, lessons learned, and information pertinent to all. Sometimes we dream of getting to watch these people in action, or even better, getting to be at the table with them in a courtroom. This is mentorship in action.

The Importance of Getting a Higher View I think most people would (hopefully) agree that mentorship relationships formed as a law student or new lawyer helped them in formative times. There are many times when new lawyers feel like they do not know enough about practice, or perhaps even what the job of a court clerk is (which seemingly can vary county to county).

Having someone—or several people—that you can rely on as a new attorney when you have a question brings a sense of comfort to you in a time when the only comfort you have is that you passed the bar. Even just watching attorneys in court and seeing what processes are expected in an unfamiliar court can be considered a form of mentorship. You are relying on someone else’s teachings and then building upon that (whether deciding to adopt what you see or not.)

I think one of my biggest misconceptions about law school was that there would be some awesome Harry Potter-esque sorting hat ceremony that would pair you with a mentor. Much to my disappointment, that never happened. So, like others who came before me, I attended networking events through my law school and any other events meant to foster connections between students and practicing attorneys. What I learned from all this was that mentorship is a two-way road, and the best mentors generally are other criminal defense attorneys.

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One of the best things about criminal defense attorneys is the community we have established. It seems somewhat universal amongst this community, and TCDLA in general, that no matter the years of experience someone has, there is a willingness to offer advice or a helping hand.

Another beneficial part of being in this profession and an organization like TCDLA is the ability to connect with people willing to mentor you in different aspects of the practice of law and everything you could imagine needing help on. When members invest in and foster these relationships, we in return gain more mentors who are now ready to mentor others and the cycle continues. Mentorship goes beyond personal gains in knowledge, as the lessons learned and advice received can go on to enrich the lives of our clients in perpetuity.

I doubt anyone reading this would not know the benefits of having a mentor. But just in case, I want to give a few examples of the value of mentorship.

Silent Giants Some mentors do not know they are giants. Some prefer to be silent, and they seemingly would rather sneak quietly through courtrooms, gladly delivering those they carry on their backs (or sometimes hanging onto the aglet of their shoestring) to courtrooms with knowledge of the law and tools to implement their knowledge.

Mentors in this category are mighty, they are humble, they do not seek glory, and they do not believe awards and accolades are the purpose of this work. Instead, they generally believe clients are the purpose of this work. If you can hold on to even the shoestring of a giant like these, you are luckier than most.

What you can learn from these mentors is the art of clientcenteredness: how to be prepared, how to read the law, and how to know more about your client and the case than the prosecutor does.

Now a few warnings about this type of mentor, if you are lucky enough to come across one: they might still use WordPerfect (do not, I repeat, DO NOT try to convert anything in Microsoft Word), they might slap down sticky notes during court next to you with hurriedly scribbled advice (read those—they are instructive and helpful in the moment, not so much after what you are doing in court is over), and finally, know that these mentors will shape your practice in ways that you will rely on for many years.

To Those Giants Whom I Look Up To To be clear, I am short; I have to look up to most people. But figuratively speaking, there are some very important people whose

guidance I would be remiss if I did not acknowledge.

I have spent time thinking about what makes a mentor great.

I have concluded that, for me, it is not someone boastful of an incredible trial record (although they have one) or a career made on impressive accolades (they have these too). I have been fortunate to gain a mentor and friend in several people around this state. And I can say that all of them seem to share some qualities. For the sake of not embarrassing these mentors or having them publicly deny that they know me, I will leave their names out of this, but I hope they know who they are.

My first legal mentors came in the form of professors. Two professors in particular taught me how to practice and what it meant to do things ethically and professionally. As much as I did not know when I was a newly licensed attorney, I knew I had an arsenal of knowledge thanks to two people who had prepared me through classes and actual court cases to represent people. In my first year of practice, I often found myself with weird issues in cases or with ethical questions that seemed like maybe I was being pranked. These two did not flinch when I told them of the ridiculous shenanigans that somehow were going on, and they gave me advice and answered countless questions. The first time I really angered a judge and their coordinator, thanks to my zealous representation, these mentors assured me that it was all okay. I am lucky that I have learned and still get to learn from these two incredible educators and attorneys.

I don’t know if any obtuse description or figurative language can accurately describe this first person as well as an example of their kindness. I first realized that this mentor was a mentor when I was tasked with handling a contested hearing by myself in a very unfriendly county. I understand that some people may think the sink-or-swim method is best for teaching. I can tell you that as a new attorney in this situation, I knew only how to doggy paddle at best. This mentor showed up for me. They did not let me go

alone. They sat for hours as we waited for this hearing to occur as the judge pushed us further down the docket and as I grew more nervous. They taught me what “icing the kicker” meant that day.

They stood by me as I lost, as I watched someone go to jail, and as I fled the courthouse completely discouraged. This mentor was there.

This mentor’s presence, their advice, their willingness to sit with me and experience a loss with me continues to this day. It’s worth pointing out that we also sit in some occasional victories, although they may seem small. To this day, and probably to their occasional annoyance, this person still shows up for me. They have become a friend who has imparted their wisdom (read this as teachings on self-serving testimony rules, jury charging, jurisdictional enhancements and so much more), thoughts, and kindness on me time and time again.

To have a mentor become a friend like this is the highest honor.

And I can firmly say that without this person, I would not be a practicing public defender (gee, thanks) …

I am lucky to say that my practice has been shaped by my mentors (giants), and I have had the chance to learn from so many.

When I was first licensed, I would call my mentors in a rotation schedule so that I did not exhaust any one of them too much with my eager and ambitious questions as a new lawyer. I am grateful to everyone who answered the phone and who still does. The idea that someone with more experience and more knowledge is willing to have my back and answer questions or be a sounding board for ideas helps immensely with this work.

Having someone at your first contested hearing sit with you and be there for support can make a difference in the outcomes and the experience of a young lawyer and the client they represent. Being supported can make the difference between someone having the confidence to stand up in court and filing a motion or challenging something versus succumbing to the pressure of a system meant to

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keep a wheel turning and our clients disadvantaged.

Some quick insight into some who may seem like giants: there are some who will loudly announce that they are giants and seek to mentor you. Not all of these are the same but be aware of the ones who enthusiastically teach that their methods and ideas are the best and only ways to do anything. Learning from these types of mentors can be challenging if the mentor themselves does not seem open to learning.

Reluctant Giants Few things are scarier than getting called a mentor. It’s highly flattering but it increases blood pressure if you have any sense of ethical responsibility and realize you do not know it all. Being called a mentor is one thing, but establishing a relationship and helping someone navigate challenges or giving them perspective based on your experience is another. It takes time and a willingness to face the fact that you have more to learn than you know. So, when someone calls you a mentor, be flattered, do not panic. Take it seriously and do your best to foster that person’s growth and help them with their goals. Challenge them and remember the ways you were helped along the way. And to the reluctant mentors: rely on your mentors for guidance and take all opportunities to teach as an opportunity to learn. ____________________________________________________ Lauren McCollum works at the Concho Valley Public Defender’s Office in San Angelo, Texas, as an assistant public defender and director of the youth defense team. She graduated from St. Mary’s Law and is also an alumna of the Future Indigent Defense Leaders Class 3.0. Lauren serves on the board of directors for TCDLA and is a member of the juvenile and mentor/mentee committees. Outside of work, Lauren enjoys traveling and the occasional home improvement project with her spouse (which are all of varying degrees of success).

Mentor-Mentee Committee:

Co-Chairs: Jani Maselli Wood & Jason Parrish Committee Members: Amanda Hernandez, Ryan Michael Kreck, Lauren McCollum, James Gerard McDermott, Alicia Lynn Mpande

Mentors

Mentees

Ryan Kreck

Adriana Fierro Rascon

John Gilmore

Kathleen Neilson

Thomas Martin

David Maly

Sarah Roland

Jessica Lieck

Sarah Rose Kannel

Lauren McCollum

Oliver Neel

Daniel Henry

Anne Burnham

Pamela Gandy

Monique Sparks

Aimara Flores

Betsy Stukes

Cat Clopton

Jani Maselli Wood

Sonya Butts

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The Transition to Criminal Defense JASON PARRISH

Member of the TCDLA Board

I became an official member of TCDLA in May of 2013. Prior to that I was a lead felony prosecutor in Smith County for nearly ten years. I’ll never forget my first jury trial as an Assistant District Attorney. The District Attorney was going through a contentious election and it was well known that the judge I appeared before was a staunch supporter of the District Attorney’s opponent. I might have been licensed for two days when the not so pleasant misdemeanor chief tossed a felony file on my desk on Friday and told me to be ready for trial on Monday. It was an insurance fraud case that I had to try against Bobby Mims, who is a wellseasoned defense attorney. During the trial, Mr. Mims beat me up all over the courtroom. He took witnesses on voir dire left and right. I learned a lot watching Mr. Mims. After six hours of deliberation, the jury returned a verdict of guilty and sentenced the Defendant to probation. For nearly ten years I tried every type of non-capital felony you could imagine. During this time, I had fifty to eighty cases on my weekly trial docket that I worked and tried with my various co-chairs. In 2013 I decided to make a change; I was ready to go into defense work!

In April of 2013, I joined the law firm of Holmes & Moore. As a prosecutor, I handled and tried cases against them, so I always respected their firm. When I received an offer to practice law with Scrappy Holmes, David Moore and Greg Waldron, I jumped at the opportunity. On my last day at the District Attorney’s office, Greg asked me to handle a matter in federal court at 1:30. So my final day as a prosecutor consisted of a goodbye lunch at 11 and then running over to federal court for an initial appearance at 1:30.

Of course, I was a little concerned handling an initial appearance, since I had never seen a federal courtroom as a practicing lawyer.

Sure, I had a ton of experience at the state level, but I had no idea of what to do in federal court. Luckily, Greg is a well-established federal practitioner and walked me through the process.

One thing that is certain about the field of criminal defense, we never stop learning! I learned that I didn’t know much when I began defense work ten years ago. Sure, I could try a case, but there were so many nuances that I never handled as a prosecutor.

I had to learn how to handle ALR hearings, how to deal with different judges, how to handle different dockets, how to deal with prosecutors, and most importantly, how to deal with clients!

Luckily, I had the benefit of working with great lawyers who had practiced for decades. And luckily, there were lawyers who were willing to teach me things about defense work that I hadn’t 32 VOICE FOR THE DEFENSE

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learned during my time as a prosecutor.

In my opinion, defending cases is much more difficult than prosecuting cases. Cross examining witnesses is much more difficult than conducting a direct examination. Trial preparation, identifying pre-trial issues, and managing client expectations are more difficult as a defense attorney. You must be willing to reach out to others for help and you have to be willing to realize that you don’t know much. The key to my transition was making sure that I was willing to ask questions and learn from others. TCDLA certainly helped me with those things.

Like my first trial as a prosecutor, I will never forget my first trial as a criminal defense lawyer. I tried a multi-count aggravated sexual assault of a child case. Our client had no criminal history and was facing life if convicted. I remember getting ready for trial when my client and his wife asked me, “How many of these types of cases have you tried?” I responded, “Many.” His wife followed up with, “How many of these cases have you tried as a defense attorney?” I responded, “Zero, but don’t worry we will be just fine.” I am certain they were nervous, but we moved forward. Scrappy Holmes and I showed up to the courthouse for jury selection. Scrappy conducted voir dire while I handled the remainder of the trial. The jury deliberated for about three hours and returned a verdict of Not Guilty on every count. I remember Scrappy looking at me and telling me, “You did a good job son and most importantly you did a good thing!” That meant a lot to me as I will always remember Scrappy’s words as I move forward with my career as a criminal defense attorney. ___________________________________________________ Jason Parrish, born in Houston, TX, received his B.S. from Texas A&M University in 1999, and his J.D. at Texas Tech University School of Law in 2003. He was a former Lead Felony Prosecutor in Smith County, TX, from 20032013, and has been a partner Holmes, Moore, Waldron & Parrish, PLLC since 2013. He is a member of the State Bar of Texas, Texas Criminal Defense Lawyers Association, Texas Bar Foundation, Smith County Bar Association, Smith County Criminal Defense Lawyers Association, and Gregg County Defense Lawyers Association. He has had over 150 combined jury trials to verdict, and is also admitted to practice before the U.S. District Court of Eastern & Northern District of Texas.

49 T H A N N UA L

Tim Evans Texas Criminal Trial College Registration • March 22-27, 2026 Completed Applications must be received by 5:00 pm on Monday, December 29, 2025 q Male

q Female Name: __________________________________ Bar Number: _____________________________

Address: ____________________________________________________ City: ____________________________________ State: ______________________ Zip: ___________ Phone: ________________________ Fax: ___________________ Cell phone: __________________________________ Email: ______________________________________________

Must be a licensed Texas attorney - Complete the entire application I would like to attend this training and have enclosed: q $150 registration. Registration price includes breakfast and lunch each day, dinner two nights, and hotel double occupancy. (refunds, less 10% processing fee, only for cancellations made before February 27, 2026). q Requested Roommate:________________________

This course is designed for all ranges of criminal defense trial experience— q This application plus a letter of intent telling us your level of trial experience. from new to veterans to former Additionally, tell us why you want to attend. prosecutors and to the attorney q A letter of recommendation from a Texas Judge (District, County, or Federal). who wants to continue improving trial skills. The College is committed q A letter of recommendation from a criminal defense attorney. to responsible racial and gender q A professional headshot for directory. (If not uploaded to TCDLA profile already) balance. You must be prepared to devote your entire week to this q Single Room Option — TCDLA will provide info for off-site partner hotel course.

(I will book my own room at my own expense) You will be notified by January 23, 2026. Only complete applications will be considered. No onsite registration. *If you have special needs or are financially unable to pay, please contact TCDLA.* (Required)

Credit card number: _________________________________________ Expiration date: __________________________ Signature: _____________________________________________________ CVC: _____________________________________ q I applied last year

q I attended Criminal Trial College in: _________

I accept court appointments:

q Yes

q No

Trial Experience: Please be candid about your trial experience, and do not exaggerate

NOTE: After February 27th, cancellations will be charged the actual cost of $750 per person if we can’t fill

Number of Trials (as first chair only): #______Felony Jury

#______Felony Bench

#______Misdemeanor Jury

#______Misdemeanor Bench #______Civil Jury

Number of Trials (as second chair): **On a separate sheet explain your involvement #______2nd Chair Felony Jury**

#______2nd Chair Misdemeanor Jury**

Type of practice and years in practice (general description): ___________________________________________________ Other Training or Experience: Law school: ________________________________________________ Date graduated: ___________________________ Other trial training courses taken: ____________________________________________________________________ Former Prosecutor: q Yes q No If yes, how long, when did you leave, and what experience did you have?: __________________________________ ___________________________________________________________________________________________________________ Public Defender:

q Yes

q No

If yes, what office?: _________________________________________________________________________________ Special Needs?: ____________________________________________________________________________________ q Vegetarian Lunch Email: smartinez@tcdla.com | Fax: 512-469-0512 | Mail to 6808 Hill Meadow Drive, Austin, TX 78736 The Tim Evans Texas Criminal Trial College is sponsored by CDLP, a project of TCDLA, funded by the Texas Court of Criminal Appeals.

Welcome New TCDLA Members!

September 16, 2025 - November 15, 2025 Regular Members

Silas Montgomery - Angleton

Olivia Garcia - Houston

Joseph Anderson - San Antonio

Endorsed by Kathleen Neilson

Endorsed by Monica Gonzales

Prince Myles - Houston

Scott Green - Burnet

Endorsed by John Gilmore

Ruben Baeza - Austin Endorsed by Sam Bassett

Alivia Carlton - Houston Endorsed by Will Vaughn

Joel Daniels - Conroe Endorsed by E. Tay Bond aka Eric Bond

Enrique De La Cruz - Edinburg Endorsed by Jose Ozuna

Leobardo Elizondo - Houston Endorsed by David Smith

Natalie Evans - Frisco Endorsed by Carrie Thomas

Emily Follansbee - Austin Endorsed by Ben Wolff

Steven Franz - Mcallen Endorsed by Demetrio Duarte

Alma Garza - Edinburg Endorsed by

McCall Jenna Hoops - Fort Worth Endorsed by Frank Sellers

Staci Johnson - Woodway Endorsed by Phil Martinez

William Love - Houston Endorsed by Dejean Clegget

Brenda Lyon - El Paso Endorsed by Joshua Spencer

Victoria Maldonado - Edinburg Endorsed by Jose Ozuna

Calla Mears - Venus Endorsed by G. Alan Steele

La'Tekqua Memmezzwattay Katy

Endorsed by Abreantei Jones

Macy Pargmann - Houston Endorsed by Jacklyn Varela

Tiara Perkins - Houston Endorsed by John Cedillo

Pat Phelan - Plainview Endorsed by David Guinn

Sylvia Rodriguez - Pearsall Endorsed by Cynthia Hampton

Julia Rubio - Laredo Endorsed by joe rubio

Luis Saenz - San Antonio Endorsed by Cynthia Orr

Aubrian Sanders - Fort Worth Endorsed by Paul Michael Schneider

Kacey Simmons - Frisco Endorsed by Carrie Thomas

Jazzmond Turner - The Colony Endorsed by Jeremy Hobbs

Andrew Vandekop - Fort Worth Endorsed by Joshua Graham

Aaron Veuleman - Dallas

Endorsed by Paula Michelle Moore

Erik Kluckowski - Corpus Christi Endorsed by Damice Obregon

Carl McPhail - Missouri City Endorsed by Jake Wade

Diana Mercado - San Antonio Endorsed by Henry Wasonga

Randi Williford - Corpus Christi Endorsed by Danice Obregon

Paralegal Members Christina Hoffman - Canyon Endorsed by Benjamin Gifford

Victoria Johnston - Canyon Endorsed by Benjamin Gifford

Expert Members Marguerite DeWitt Endorsed by Sara Stapleton

Kristopher Robinson - Spring Endorsed by Kimberly McTorry

Michael Sanchez - Los Fresnos Endorsed by Sara Stapleton

Student Members

Endorsed by Audrey Moorehead

Erica Copeland - San Antonio

Daryl Ward - Houston

Endorsed by Brent Cahill

Endorsed by Mark Thering

Public Defender Members Kate Allred - Wichita Falls Endorsed by David Bost

Yusuf Bavi - Houston Endorsed by Wade Bainum

Roberto Ceballos - Laredo

Shirley Copeland - San Antonio Endorsed by Brent Cahill

Princess Egbuchunam - College Station Endorsed by Ashley DeLaGarza

Ambra Kohlheim - Missouri City Endorsed by Lydia D. Johnson

Jane Mayo - Humble

Endorsed by Carolyn Okorafor

Endorsed by Carlos Villarreal

Shiva Moghadasian - Houston

Helen Gaebler - Austin

Uriel Rosa - Fort Worth

Endorsed by Jani Maselli Wood

Endorsed by Sean Levinson

Endorsed by

34 VOICE FOR THE DEFENSE

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Endorsed by Cathy Burnett

Congrats to the defense team of Angelica Cogliano, Addy Miro, and Deniz Kahirhan! They won a Motion to Exclude DNA based on discovery and Brady violations. The case was a 1997 Sexual Assault case and the only evidence was a CODIS hit from 2020. Great work!

Cheers to Wade B. Smith and Matthew J. Hefti on a hard-earned dismissal in a felony case! On the eve of trial, the prosecution dropped the charges after Wade and Matthew uncovered key evidence that contradicted the allegations. Their thorough investigation—along with help from their client—revealed inconsistencies in witness accounts and exposed motives for false accusations. Ready to take the case to a jury, they stood firm until the dismissal came through the afternoon before trial. Way to go!

Hats off to Josh Graham! He got a Not Guilty the week after Round Top on a continuous sexual assault case that he worked on at Round Top! Keep it up!

Shout Out to Public Defenders Office for Hays County! A 2004 aggravated sexual assault case where genealogical DNA tracing led investigators to the defendant. They even did a “covert DNA seizure,” grabbing a snack wrapper he tossed while on jury duty in Florida. A jail call was spun as a “confession,” and detectives claimed he didn’t act “emotionally appropriate.”

A 20-year Army veteran with a long marriage and four daughters, he lost his job and his home—but thanks to outstanding lawyering, he’s a free man. What a wild ride!

Kudos to Dustin Nimz and Bethany Hale! In Wichita County, the team received a jury verdict of not guilty in a 4 count indictment, 1 count of aggravated sexual assault and three counts of indecency. Incredible!

Congratulations Brent Ratekin and Shayna Oaks! The team got a not guilty verdict in the 340th Judicial District Court on a failure to register as sex offender case. Bravo!

Let's give it up for Rebecca Yung, Lauren McCollum, and Caitlin Mendoza! The team achieved a lesser-included win in the 391st District Court: what began as a murder charge was reduced to aggravated assault with a deadly weapon, and ultimately to a Class A misdemeanor assault. The result? A 180-day sentence with time served. Top notch!

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Texas Criminal Defense Lawyers Association

New App Update with Session: Digital Publications & Faster Updates!

In addition to criminal codes, statutes, and case law, you can access any TCDLA publications you’ve PURCHASED—right inside the app.

When updates are released, your publications UPDATE automatically.

Access to Exclusive Member Content Available Now in the App: • Penal Code • Code of Criminal Procedure • Health & Safety Code - Controlled Substances Act • Alcoholic Beverage Code • Family Code • Government Code • Juvenile Justice Code • Transportation Code 2025 New Editions • Texas Code of Criminal Procedure • Cheat Sheets #1–15 • ALR DWI • Appellate • Chapter 42A • DWI Evidence Evaluation • Search & Seizure • Texas Traffic Laws • Trial Notebook

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Not a Member Yet? Call (512) 478-2514 to join and unlock full access—including the TCDLA App. Need Help? Email Miriam Duarte at mduarte@tcdla.com for support.

36 VOICE FOR THE DEFENSE

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Significant Decisions Report KYL E T H ER R IA N

Prosecutors and defense attorneys are both lawyers. The same way that Benjamin Moore and Shepard Fairey both work with paint. It’s both a testament to a flawed system and to the unfortunate number of lawyers who justify stereotypes that the phrase “John Doe for the government” is a form of persuasion.

There are ways to combat this. My personal method is to write with pizzazz. I think it signals an argument more interesting than the usual broken record. Setting down the roller of Perfect Greige and painting like a street artist is a bold move. But if you can analyze the law in an attention-grabbing way, some could call that lawyering. This is my long setup to talk about the funny clip that my friend and Voice Associate Editor Amanda Hernandez sent me this month. It was about a motion to order a fist fight between defense lawyers and prosecutors. It’s probably beyond what I’d feel comfortable filing, but I got the point: the arguments against self-defense were silly (a weaker opponent can reasonably use a weapon in a fist fight). A bold motion bordering on flagrant? Yes. But it caught the attention of two lawyers 20 years after the fact, and that’s saying something!

TCDLA thanks the Court of Criminal Appeals for graciously administering a grant that underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions. The selection of summarized cases and all editorial comments reflect the editor’s decisions and viewpoints alone.

Please do not rely solely on the summaries set forth below.

The reader is advised to read the full text of each opinion in addition to the brief synopses provided. This publication is intended as a resource for members. I welcome feedback, comments, or suggestions: kyle@texasdefensefirm.com (972) 369-0577.

United States Supreme Court The United States Supreme Court did not hand down any significant or published opinions since the last Significant Decisions report.

Fifth Circuit The Fifth Circuit did not hand down any significant or published opinions since the last Significant Decisions report.

Texas Court of Criminal Appeals

Ex parte Roberson, No. WR-63,081-03 (Tex. Crim. App. Oct. 9, 2025) Attorneys. Gretchen S. Sween (writ), Callie Heller (writ) Issue and Answer. Article 11.073 (the “junk science writ”) provides a basis for overcoming a subsequent writ bar by showing the existence of new evidence that would have been admissible, was previously unavailable, and would have been material at trial. In a recent CCA opinion, the Court called into question the legitimacy of Shaken Baby Syndrome testimony.

Is a jury’s [possible?] reliance on Shaken Baby Syndrome testimony sufficient ground under Article 11.073 to overcome the subsequent writ bar? Yes. Background (Judge Richardson’s concurring opinion quoted). One year ago, Applicant’s execution was scheduled for October 17, 2024. On October 9, 2024, this Court issued our opinion in Ex parte Roark, 707 S.W.3d 157 (Tex. Crim. App. 2024), which [recognized significant problems with Shaken Baby Syndrome testimony]. The issuance of our opinion in Roark just a week before Applicant’s scheduled execution—in addition to the involvement of the Legislature’s Texas Committee on Criminal Jurisprudence—resulted in [unprecedented litigation].

As a result, all three branches of the State government and both high courts became involved in this case.

Sincerely, Based on our decision in Roark, the Applicant filed one of several writs and motions in an attempt to stay the execution and enforce a subpoena issued by the Texas Committee on Criminal Jurisprudence [ed: intended to prevent his execution]. [The Legislative subpoena allowed Roberson to obtain a stay that was lifted by this Court hours before his scheduled execution.]

[Roberson then sought and obtained unprecedented Kyle Therrian relief from the Texas Supreme Court when that court issued a temporary injunction to answer the important separation Editor, SDR of powers question presented by two branches of government December 2025

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issuing conflicting orders][ed: one being “come here and testify” and the other being “come here so we can kill you.”]

[The Texas Supreme Court ultimately decided this issue against Roberson but did not consider the application of Roark or the ultimate merits of his habeas claims.]

Facts (Innocence Project of Texas Amicus Brief quoted).

Robert Roberson was convicted of capital murder and assessed a sentence of death by lethal injection. The same new scientific evidence that led to Andrew Roark’s conviction being vacated applies to the Roberson case.

In addition to the new scientific evidence refuting Shaken Baby Syndrome, additional evidence identifying the actual cause of death of the child in the Roberson case is before the court. In fact, the child in the Roberson case died of advanced, undiagnosed pneumonia and the improper prescribing of respiratory stopping medication.

Facts (Texas House of Representatives Letter Brief quoted). We believe that Article 11.073 has not been the

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pathway to relief—or even a new trial—that the legislature intended in cases like Mr. Roberson’s. Here, significant scientific and medical evidence that no jury has had the chance to hear now shows that natural and accidental causes can explain the death of his chronically ill daughter, Nikki, not just the abusive shaking that the State argued at trial had to have caused her death. It is beyond dispute that medical evidence presented at Mr. Roberson’s trial in 2003 is inconsistent with modern scientific principles. Article 11.073 was meant exactly for cases like this one. * * * Despite the original promise of the “junk science writ” in protecting due process and other constitutional rights of criminal defendants when there is a change in scientific knowledge, the writ has been applied in a manner that raises serious constitutional and equitable concerns. That is especially true in capital cases like Mr. Roberson’s, where this Court has

never granted relief under Article 11.073. * * * SBS is now only considered once other potential causes have been excluded, which did not happen with the 2003 trial. At the time Mr. Roberson’s daughter died, the medical community believed that only inflicted trauma like shaking could cause the combination of conditions observed in Nikki. Yet significant medical evidence now strongly suggests they can be and were caused by other factors that do not involve abuse. Advances in science have proven that natural diseases, such as Nikki’s profound pneumonia that caused oxygen deprivation to her brain and profuse bleeding, can result in those same conditions.

Mr. Roberson, like Mr. Roark, was convicted based on the same discredited causation theory and presumption that the child’s internal head condition could not have resulted from a short fall or illness . . .

Concurring & Dissenting (Finley, J.)(quoted). My disagreement with the Court is rather limited: Unlike the Court, I would also remand Applicant’s actual innocence claims . . . I see little distinction between the bases for Applicant’s Article 11.073 claims and Applicant’s actual innocence claims. Consequently, I join the Court’s remand order but dissent insofar as the Court declines to remand Applicant’s actual innocence claims.

Concurring (Richardson, J.). In addition to providing the history of this litigation (above), Judge Richardson writes to be clear that Roark provides a new legal basis to overcome the subsequent writ bar. Thus, his application is sufficient to remand the case to the trial court with an order to develop his claims in an evidentiary hearing.

Concurring & Dissenting (Schenck, P.J.)(quoted). I concur in this decision to the extent it prevents what I see as Roberson’s potentially unconstitutional execution in view of evidence undermining his conviction and sentence, infra at 11–12. I dissent to the remand, as this will likely only serve to delay the ultimate merits resolution to which both the State and Roberson are entitled.

[Because Roberson raises actual innocence, Presiding Judge Schenck reiterates the Court’s confusing reluctance to declare a right to new trial on claims of bare innocence.]

Stated another way, how is it possible that our own Constitution does not touch on the question when it, unlike its federal counterpart, contains: (1) two due course of law clauses, one of which commands that courts be open to provide remedies to “any person” for “injury done”; (2) demands an effective and speedy writ of habeas corpus free from legislative or executive suspension; and (3) provides a protection from prohibition on cruel or (not “and”) unusual punishment?

Concurring & Dissenting (Parker, J.)(quoted). To the extent Applicant relies upon our recent decision in Roark, that case is readily distinguishable. [The child in Roark suffered injuries that could formerly be explained by Shaken Baby Syndrome, the child in this case had a blunt force trauma injury]. * * * I concur in the Court’s order dismissing Applicant’s sixth December 2025

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and seventh applications, but I dissent to the Court’s decision to remand on his fifth application.

Dissenting (Keel, J.)(quoted). The remand is unmerited because Applicant has not met Article 11.073’s unavailability or materiality requirements or overcome Article 11.071’s subsequent writ bar. And it is pointless to order factual development of a legal question, namely, the meaning of Ex parte Roark. Instead of rewarding Applicant’s abuse of the writ, the Court should—and in fact must—uphold—again—the trial court’s judgment and sentence of death.

Dissenting (Yeary, J)(quoted). Like Judge Parker, I concur in the Court’s order insofar as it appropriately dismisses Applicant’s last two subsequent writ applications and refuses to entertain suggestions to reconsider two of his previous subsequent writ applications. I dissent, however, to the Court’s order to the extent that it reopens Applicant’s subsequent writ application in Cause Number WR-63,081-05 and grants his motion for stay of execution. To reopen a subsequent writ application that has already been disposed of—if it is ever appropriate—may be justified only under the most extraordinary of circumstances.

That a reasonable, good faith argument can be made that our prior decision to dismiss the -05 subsequent writ application was, in hindsight, “incorrect” does not count as an appropriate basis to entertain a suggest for reconsideration. In any event, the Court offers no such argument today. Once again, the Court is essentially ruling by fiat.

[Additionally, the Court is wrong to consider Shaken Baby Syndrome “junk science.”]

Comment. When the legislature writes a brief that effectively states, “hey, this is what we wrote 11.073 for,” it’s hard to read a dissenting opinion stating, “this is not what 11.073 is for.”

Ex parte Williams, No. WR-96,658-01 (Tex. Crim. App. Oct. 23, 2025) Attorneys. Mark Bennett (writ) Facts. Williams was convicted of online solicitation of a minor in 2013. After his conviction and after he exhausted direct appellate remedies, the CCA issued its opinion in Ex 40 VOICE FOR THE DEFENSE

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parte Lo and held a former version of the Online Solicitation of a Minor statute unconstitutional. This was the version of the statute the State used to convict Williams. Accordingly, he filed this application for writ of habeas corpus. The CCA granted Williams relief, but not without the following side opinions.

Concurring (Newell, J.)(quoted). An opinion granting relief in this case should have been handed down months ago.

In this case, Applicant Eric Todd Williams pleaded no contest to online solicitation of a minor under TPC § 33.021(b) and received a three-year sentence on March 6, 2013. On October 30, 2013, this Court, in Ex parte Lo, held unconstitutional the online solicitation of a minor statute for which Applicant was convicted. He has now filed a writ of habeas corpus based on the Lo decision, alleging that his conviction is void in light of this Court’s decision. Both the State and the defense agree relief is warranted. So does the habeas court. So do I. But the continued refusal to follow this Court’s precedent by some members of this Court has led to the unnecessary delay in resolving what should have been an easy case. * * * . . . The law has not changed on this issue; the Court does the right thing by following binding precedent. Anything else would be an invitation to turn criminal law into a game of Calvinball.

Concurring and Dissenting (Parker, J.). Wants to reconsider Lo, but the Court will not set this case for purposes of reconsidering that decision.

Dissenting (Schenck, P.J.). Lo was wrongly decided, and now the Court can’t hold people like Williams accountable for sending a picture of his penis to a child. Lo was decided on the basis of overbreadth which required a showing that “a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” The hypothetical scenarios are unrealistic and insubstantial. Facial challenges should not be available to litigants with no viable First Amendment claim. Recent Supreme Court precedent permits this Court to apply a narrowing construction giving

“any plausible reading of the statute to avoid overbreadth.”

Dissenting (Yeary, J.). The Court should reconsider Lo. First Amendment litigants in post-conviction habeas should be limited to as-applied challenges.

1st District Houston Haley v. State, No. 01-24-00835-CR (Tex. App.—Houston [1st Dist.], Oct. 9, 2025) Attorneys. Bryant Francis Cabrera (appellate), Michael G. Maloney (trial) Issue & Answer. Is a motor vehicle a motor vehicle? Yes. Facts. An officer stopped Haley for a defective headlight.

During the traffic stop [The officer] noticed that the truck was in poor condition.

It was missing the ignition, ignition switch, and panels. It had a damaged fuse box, wires hanging from the dashboard, torn upholstery, and broken windows. And Haley had no keys to the truck. Deputy Spann determined the truck was stolen. He arrested Haley, who was charged with Unauthorized Use of a Vehicle. At trial, Deputy Spann testified that due to the lack of keys and condition of the truck, he surmised that Haley operated the truck by hot-wiring . . . Multiple witnesses—including Deputy Spann and the owner of the truck, Kyle Wilson— testified to the truck being driven on a public roadway. Wilson also testified that he was able to drive his truck home from the tow yard after he recovered it.

Quoted. Thus, a motor-propelled vehicle is a vehicle that is propelled by (i.e., moves forward by) a motor (i.e., engine or

other power unit). * * * On this record, the jury could have reasonably found that Haley was operating a motor-propelled vehicle at the time he was pulled over. The evidence supports a reasonable inference that the truck at issue was a “motor-propelled vehicle.”

Comment. I’m not sure why this case was published, but here’s a fun story. I once convinced a judge to find that an F-350 King Ranch was not a “Truck.” It all started with a pissing match over a client driving a dually without mudflaps in a marijuana prosecution. Mudflaps are required on a “truck” with four or more wheels on rearmost axle. It is only because of my commitment to being a pain in the butt that I can report that a “truck” in Texas is a motor vehicle “designed, used, or maintained primarily to transport property.” Tex. Transp. Code § 541.201(21). I pulled the window sticker and set a motion to suppress to discuss with the officer all the luxury features for up to five passengers. When the officer volunteered his use of an F-350 as a daily commuter, I had effectively won the suppression.

This was about the same time a colleague sitting behind me in the gallery tapped my shoulder to share some damning intel on the officer. I told her I’d rather win in a way that drives everyone nuts.

Sotelo v. State, No. 01-24-00562-CR (Tex. App.—Houston [1st Dist.], Oct. 17, 2025) Attorneys. Fernanda Benavides (appellate), Jani Maselli

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Wood (appellate), Arthur C. Washington (trial) Issue & Answer. When a justice of an intermediate court recuses himself after an opinion is issued, is the issue of recusalv-disqualification appropriate for consideration on rehearing?

No. Facts. Justice Clint Morgan was an appellate prosecutor in the Harris County District Attorney’s Office. In addition to handling appeals he provided occasional legal analysis to other prosecutors in their cases. There are now several pending appeals in which Houston defense lawyers seek to disqualify Justice Morgan.

Analysis. An order of recusal is not reviewable. Thus, it is not appropriate for rehearing.

Comment. Sotelo argues in briefing that a disqualification would render Justice Morgan’s opinion moot (and his recusal does not).

3rd District Austin In re Roberson, No. 03-24-00325-CR (Tex. App.—Austin, Oct. 2, 2025) Attorneys. Anthony Roberson (pro se) Issue & Answer 1. Article 64 provides procedures for an

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individual to obtain DNA testing after their conviction. When an inmate obtains DNA testing pursuant to Article 64 and the results somewhat undermine the reliability of the DNA testing used at his trial is he necessarily entitled to relief? No. Issue & Answer 2. Article 64 provides a limited right to counsel for DNA retesting motions. When appointed counsel withdraws after the trial court issues unfavorable findings and informs the trial court there is no basis to appeal, is the trial court required to appoint the inmate new counsel? Not here.

Issue & Answer 3. Does Article 64 require a trial court to provide an inmate a free transcript? No. Facts. The State convicted Roberson in 1998 using DNA evidence. This case is his appeal of a Chapter 64 DNA retest conducted at his request. The State did not oppose his retest request on the condition that the Court order testing of the DNA in three other sexual assaults committed by Roberson.

The Court ordered all samples retested and concluded that the results were such that it remained “Reasonably probable Roberson would have been convicted.”

Quoted 1. There is no doubt that the correctly calculated DNA statistic undermines the reliability of the most damning DNA evidence presented at the guilt-innocence phase of trial, but the discrete question . . . is whether the weakened

inculpatory inference from the DNA evidence created a reasonable likelihood of a different outcome. It does not; the revised estimate still inculpates Roberson, and the four results in the related cases were unaffected.

Analysis 2. Roberson had appointed counsel through the Article 64 litigation. When that counsel withdrew, Roberson began representation pro se and did not request new counsel.

Under these circumstances, the trial court did not violate Roberson’s right to appointed counsel.

Quoted 3. . . Although indigent defendants have the right to a free trial record on direct appeal, they do not have that right for collateral attacks on their convictions. It follows that, without a statutory right to such a record, a convicting court would not abuse its discretion in denying a free trial record in a proceeding subsidiary to a collateral attack, which, as discussed below, a Chapter 64 proceeding is.

Comment. Denying an indigent person a copy of an already-prepared transcript is small of our government.

Ballester v. State, No. 03-23-00456-CR (Tex. App.—Austin, Oct. 2, 2025) Attorneys. Emily W. Taylor (appellate), Kurt W. Glass (trial) Issue & Answer. What are the procedures for obtaining a bond pending the State’s appeal of an intermediate court reversal? These ones.

Quoted. [Following Ballester’s filing of a motion to set bond] We abate these causes and remand them to the trial court for a hearing on Ballester’s motion. The trial court shall make

fact findings on (1) Ballester’s ability to make bail; (2) Ballester’s criminal history record information, including information obtained through the [TCIC], including any acts of family violence, other pending criminal charges, and any instances in which he failed to appear in court following release on bail; (3) the amount of reasonable bail; and (4) a recommendation on the amount of bail. A supplemental reporter’s record of the bail hearing and a supplemental clerk’s record with the trial court’s findings and recommendation on the bail amount shall be filed . . . After the supplemental records are filed, this Court shall determine the amount of bail and will order that the trial court order Ballester released from confinement assessed in these causes upon the posting of bail.

State v. Chavez, No. 03-25-00124-CR (Tex. App.—Austin, Oct. 17, 2025) Attorneys. Steve Turro (appellate)(trial) Issue & Answer. Must an officer literally swear an oath in support of the officer’s application for a search warrant? Yes. Facts. The arresting officer obtained a search warrant to obtain a blood draw in a DWI case. The officer did not swear an oath as part of preparing his “affidavit” in support of probable cause.

Analysis. An officer’s failure to swear to the facts in support of probable cause renders a search warrant invalid. An application for search warrant requires more than a signature.

The State asserts that the affidavit was sworn because: (1) Officer Lima prepared the affidavit, which contained “oath-affirming

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language”; (2) she asserted to both the magistrate judge and Officer Roy that the affidavit’s contents were true; (3) Officer Lima signed the affidavit before Officer Roy; and (4) Officer Lima understood that she was under oath. The State’s arguments are unpersuasive. A signature is not the same thing as an oath.

The oath impresses “the solemnity and critical nature of being truthful.”

Comment. This is an area where, presently, there is an abundance of cases ripe for litigation. Law enforcement will catch on soon, change procedures, and the issue will die.

State v. Navarro, No. 03-23-00637-CR (Tex. App.—Austin, Oct. 17, 2025) Attorneys. David Frank (appellate)(trial) Issue & Answer. Can a trial court grant a new trial on grounds not raised in the defendant’s motion for new trial? No. Facts. The trial court revoked Navarro’s deferred adjudication and sentenced him to ten years confinement.

Navarro filed a motion for new trial raising mostly generic legal claims. During this period, the trial court indicated that it had intended to give Navarro shock probation and discovered that shock probation was not legally permissible in Navarro’s case.

The trial court granted the motion for new trial on this basis. It was not raised in Navarro’s motion.

Analysis. The trial court does not have the discretion to address new issues at a motion for new trial hearing over the State’s objection. Here Navarro did not raise the trial court’s grant or non-grant of shock probation and the State objected to the trial court granting on grounds not specifically alleged.

Quoted. Nor was it within the trial court’s discretion to grant Navarro’s motion for new trial “in the interest of justice” alone.

A trial court has discretion to grant a motion for new trial “in the interest of justice,” but “justice” means in accordance with the law. For a trial court to grant a motion for new trial, “the movant must have articulated a valid legal claim” in the motion, Thomas; “‘[i]n the interest of justice’ is not an independent

basis for granting a new trial,” “There must be some legal basis underpinning the grant of a new trial, even if it is granted in the interest of justice.” Without a showing that the defendant’s substantial rights were affected, “the phrase ‘interest of justice’ would have no substantive legal content, but constitute a mere platitude covering a multitude of unreviewable rulings.”

Herndon, 215 S.W.3d at 908.

Comment. The court does have authority to correct its illegal sentence, but there was no illegal sentence here.

10th District Waco Moten v. State, No. 10-24-00183-CR (Tex. App.—Waco, Oct. 9, 2025) Attorneys. Cody Beauchamp (appellate) Issue & Answer. Does Article 39.14 require the disclosure of jail phone call recordings that are held by a third-party providing jail phone services to the Sheriff? Yes, but harmless error.

Facts. Moten requested discovery pursuant to Article 39.14 approximately two months after his arrest. After jury selection the prosecutor alerted everyone to the “discovery” of two jail phone calls. When Moten tried to exclude the recordings, the State argued that the recordings were not in the possession of the state, but rather a third-party vendor that provides the phone systems in the jail. The trial court overruled the objection and allowed the State to play the recordings for the jury.

Analysis. Article 39.14 requires the State to disclose evidence in the possession of the State or any entity under contract with the State. This includes law enforcement and its agents. “Accordingly, the recordings of . . . jail phone calls, although on a server belonging to a company contracting with the Sheriff ’s office, were continually in the State’s possession.”

The prosecution is not absolved of this duty by asserting a lack of awareness. Because the nature of statements in the recordings had no bearing on facts of consequence in the case and the

TCDLEI Memorializes, Fallen But Not Forgotten . . .

Charles Baldwin Quinn Brackett Peter Bright Jack H. Bryant Phil Burleson Charlie Butts Ward Casey Byron Chappell Emmett Colvin Rusty Duncan C. David Evans Elaine Ferguson C. Anthony Friloux Jr.

Jim Greenfield Richard W. Harris Richard ‘Race Horse’ Haynes David Hazlewood Odis Ray Hill Weldon Holcomb Floyd Holder Clifton “Scrappy” Holmes W. B. “Bennie” House David Isern Hal Jackson Knox Jones

Joe Kegans George F. Luquette Carlton McLarty Ken Mclean Kathy McDonald George R. Milner Daniel Mims Roy Minton Ebb Mobley Brian E. Murray Harry Nass Anthony Nicholas David A. Nix

Texas Criminal Defense Lawyers Educational Institute 44 VOICE FOR THE DEFENSE

December 2025

Rusty O’Shea Mike Ramsey Charles Rittenberry George Roland Travis Shelton Randy Wilson Robert William Tarrant Charles Tessmer Doug Tinker Don R. Wilson Jr. Philip Wischkaemper To memorialize a loved one, email athomas@tcdla.com

weight of inculpatory evidence was strong, the trial court’s error in overruling Moten’s objection was harmless.

Comment. Here’s how to fix this. The Legislature should amend Article 39.14 to state “the prosecuting attorney shall specifically inquire about the existence of evidence with the following entities, this is not a limitation on the duty of the prosecutor under this Chapter, but failure to inquire with any of these listed entities shall be sufficient basis for the trial court to exclude evidence.”

14th District Houston Garza v. State, No. 14-24-00099-CR (Tex. App.—Houston [14th Dist.], Oct. 2, 2025)

Attorneys. Robert Finlay (appellate) Issue & Answer 1. Must an appellate court always construe “no objection” as a waiver of a previous objection. No. Issue & Answer 2. Can a detective offer an opinion on a child witness’s honesty if the detective has lots of training and experience? No. But nobody cares in this case.

Facts. The State convicted Garza of continuous sexual abuse of a child. “At his trial, the State presented its evidence against appellant through the testimony of family members, law enforcement officers, and social workers and health care professionals.” The victim did not testify, but to fix this the State sponsored a detective as an expert in truthful statements of victims.

Analysis 1. When an attorney has previously lodged an objection and later states “no objection,” the court of appeals will look to the record as a whole to assess the defendant’s intent. If abandonment is clear or ambiguous the court will construe the statement as a waiver.

Quoted 2. . . .([A]n expert is not permitted to give a direct opinion on the truthfulness of a witness.). Such testimony is inadmissible “because it does more than ‘assist the trier of fact to understand the evidence or to determine a fact in issue;’ it decides an issue for the jury.” Similarly, a witness’s expert opinion on the truthfulness of a criminal defendant during an

investigation is also inadmissible. * * * The error is harmless here only because of the strength of the admissible proof. In a closer case this same conduct will warrant reversal.

Comment. The court carefully avoids saying “the victim did not testify.” To get how a trial court’s error in this case is not harmful, you have to understand that appellate review is sometimes a joke.

Ex parte George, No. 14-24-00882-CR (Tex. App.—Houston [14th Dist.], Oct. 14, 2025)

Attorneys. Daniel Lazarine (appellate), Chad Dick (trial) Issue & Answer. Certain Election Code violations provide for both administrative and criminal penalties. Must the State exhaust administrative remedies before a trial court acquires jurisdiction? No. Facts. A candidate for Fort Bend County Commissioner purportedly violated the True Source of Election Communication Statute by posing as “Antonio Scalywag” and posted on Facebook. Under the relevant statute a person commits an offense “if, with intent to injure a candidate or influence the result of an election, the person misrepresents the person’s identity or, if acting or purporting to act as an agent, misrepresents the identity of the agent’s principal, in political advertising or a campaign communication.” The Texas Elections Code provides an administrative process for adjudicating this offense which the State had not followed at the time of George’s writ application.

Analysis. This case is resolved by Ex parte Charette, No. PD0522-21 (Tex. Crim. App. Aug. 20, 2025). In that case the CCA held that neither the law nor Due Process require an exhaustion of administrative remedies before a district attorney may prosecute conduct made a criminal offense by the Legislature.

Comment. But the statute remains unconstitutional. Ex parte Stafford, No. PD-0310-23 (Tex. Crim. App. Sep. 4, 2024).

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The following District Court of Appeals did not hand down any significant or published opinions since the last Significant Decisions Report.

• 2nd District Fort Worth • 4th District San Antonio • 5th District Dallas • 6th District Texarkana • 7th District Amarillo • 8th District El Paso • 9th District Beaumont • 11th District Eastland • 12th District Tyler • 13th District Corpus Christi/Edinburg

Abbreviations AFV: assault family violence AFV-S: assault family violence strangulation CCA: Court of Criminal Appeals CCP: Texas Code of Criminal Procedure COA: court of appeals IAC: ineffective assistance of counsel MTA: motion to adjudicate guilt MTR: motion to revoke probation SCOTX: Supreme Court of Texas SCOTUS: Supreme Court of the United States TBC: trial before the court UPF: unlawful possession of firearm by a felon

Concepts Open plea: guilty plea and trial on punishment to a judge Slow plea: guilty plea and trial on punishment to a jury

Factor Tests Almanza v. State (unobjected-to jury charge factors) (1) the entire jury charge, (2) the state of the evidence, (3) the final arguments, (4) other relevant information Barker v. Wingo (Speedy Trial Factors) (1) length of delay, (2) reason for delay, (3) assertion of right, (4) prejudice Gigliobianco v. State (403 Factors) (1) probative force, (2) proponent’s need, (3) decision on an improper basis, (4) confusion or distraction, (5) undue weight, (6) consumption of time

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