Voice for the Defense | Vol. 52 No. 8 - October 2023 by TCDLA

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 52 NO. 8 • OCTOBER 2023

Originalism and the Need for Training pg 18 What Every Criminal Lawyer Should Know About Juvenile Law pg 22 Things That Didn’t Turn Out So Well pg 30

A Base Knowledge Every Attorney Should Understand Regarding Substance Use Disorders & Mental Health Disorders pg 35

19th Annual

Stuart Kinard AdvanceD DWI Seminar

Available In Person, Livestrem, & On-Demand At Your Own Pace For Up to a Year!

November 2-3, 2023 Menger Hotel • San Antonio, TX

Course Directors

rships a l o h c S TCDLEaI vailable .com! a l d c t at

Bobby Barrera, Adam Kobs, Ashley Morgan, & Gary Trichter Thursday, November 2 How to Use Experts Effectively .......................................................................................................Don Flanary Probation Conditions Misdemeanor and Felony ............................................................ Stephanie Stevens Voir Dire ..................................................................................................................................................David Burrows Finding Reasonable Doubt in the Blood Data Pre and Post-Analytical Errors ...... Dr. Kevin Schug Application of Blood Data and the Roadmap for Criminal Defense Cases ................Ashley Morgan Breath Testing Cases ...............................................................................................Jarrod Smith & Brad Vinson Closing Arguments .............................................................................................................................Michelle Behan Friday, November 3 Using the ALR Hearing to Prepare to Cross the Arresting Officer.........................................Adam Kobs Using the Defense Expert to Undo the SFSTs ................................................................................. Lisa Martin Successfully Attacking Blood Search Warrants ................................................................Gary Trichter DWI Motions ............................................................................................................................................ Amber Vazquez Ethics ...................................................................................................................................................Betty Blackwell Collateral Consequences ....................................................................................................... George Scharmen 2 VOICE FOR THE DEFENSE

October 2023

P: 512.478.2514 • F: 512.469.9107 • www.tcdla.com • 6808 Hill Meadow Dr, Austin TX 78736 advertisement

VOICE

FOR THE DEFENSE

Volume 52 No. 8 | October 2023

Originalism and the Need for Training in Construction Originalist Arguments Niles Illich

What Every Criminal Lawyer Should Know About Juvenile Law JoAnne Musick

Things That Didn’t Turn Out So Well Patrick McCann

A Base Knowledge Every Attorney Should Understand Regarding Substance Use Disorders & Mental Health Disorders Michelle Sandlin

TCDLA OFFICERS President | John Hunter Smith • Sherman President‑Elect | David Guinn Jr. • Lubbock First Vice President | Nicole DeBorde Hochglaube • Houston Second Vice President | Clay Steadman • Kerrville Treasurer | Sarah Roland • Denton Secretary | Lance Evans • Fort Worth CEO | Melissa J. Schank • 512-646-2724 • mschank@tcdla.com DIRECTORS Sam Adamo • Houston David Adler • Bellaire Matthew Allen • San Antonio Stephanie Alvarado • Dallas Gene Anthes • Austin Molly Bagshaw • Houston Robert J. Barrera • San Antonio Lara E. Bracamonte • Rockwall Jessica Canter • Seguin Omar Carmona • El Paso Jason D. Cassel • Longview Allison Clayton • Lubbock Angelica Cogliano • Austin Justin Crisler • Austin Cesar De Leon • Brownsville Aaron Diaz • San Antonio Clifford Duke • Dallas Brian Erskine • Austin Joseph A. Esparza • San Antonio Amber Farrelly • Austin Rick Flores • Austin Robert Gill • Fort Worth John S. Gilmore • San Antonio Lisa Greenberg • Corpus Christi Paul Harrell • Gatesville Sean Hightower • Nacogdoches Joseph Hoelscher • San Antonio

John T. Hunter • San Antonio Jonathan Hyatt • Longview Kameron Johnson • Austin Jolissa Jones • Houston Sean Keane-Dawes • Floresville Peter Lesser • Dallas Jani J. Maselli Wood • Houston Lauren McCollum • San Angelo Dean Miyazono • Fort Worth Mitchell Nolte • McKinney Mario A. Olivarez • Corpus Christi Stephanie Patten • Fort Worth Shane Phelps • Bryan Rick Russwurm • Dumas Lisa Strauss • Bellaire Matthew Smid • Fort Worth Suzanne Spencer • Austin Fred Stangl • Lubbock Joe Stephens • Boerne Scott Stillson • Wichita Falls Mark Thiessen • Houston Patty Tress • Denton Paul Tu • Sugar Land Ted Wenske • San Angelo Judson Woodley • Comanche Thomas Wynne • Dallas Jennifer Zarka • San Antonio

Features

Columns

President’s Message John Hunter Smith

Chief Executive Officer’s Perspective Melissa J. Schank

Editor’s Comment Jeep Darnell

Ethics Laura Popps

The Federal Corner Michael McCrum

Significant Decisions Report Kyle Therrian

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.

Available online at www.tcdla.com Volume 52 No. 8 | October 2023 October 2023

VOICE FOR THE DEFENSE

TCDLA CLE & Meetings: Schedule and dates subject to change. Visit our website at www.tcdla.com for the most up-to-date information. Register online at www.tcdla.com or call 512-478-2514 February Continued April Continued November ............................................................... ............................................................... ............................................................... November 2-3 TCDLA | 19th Annual Stuart Kinard Advanced DWI San Antonio, TX November 16 CDLP | Capital Litigation Dallas, TX November 17 CDLP | Financial Friday Zoom November 17 CDLP | Mental Health Dallas, TX November 20 CDLP | Mindful Monday Webinar November 30 - December 1 TCDLA | Defending Sex Crime Allegations: Adults and Children Round Rock, TX

December ...............................................................

December 1 TCDLA Executive & Legislative Committee Meetings Round Rock, TX December 2 TCDLA & TCDLEI Board & CDLP Committee Meetings Round Rock, TX December 15 CDLP | 16th Annual Hal Jackson Memorial Jolly Roger Criminal Law w/ DCCDLA Denton, TX December 18 CDLP | Mindful Monday Webinar

January ............................................................... January 3 CDLP | Prairie Pups w/ LCDLA Lubbock, TX January 4-5 TCDLA | 43rd Annual Prairie Dog Lubbock, TX January 19 CDLP | Riding for the Defense Waco, TX January 26 TCDLA | Defending Vehicular Crimes Austin, TX January 26 CDLP | Financial Friday Zoom

February ............................................................... February 1-2 TCDLA | Federal Law Gumbo New Orleans, LA February 9 CDLP | Financial Friday Zoom February 14-18 TCDLA | President’s Trip Charleston, SC

March ............................................................... March 7-8 TCDLA | From Start to End Galveston, TX March 8 TCDLA Executive & Legislative Committee Meetings Galveston, TX March 9 TCDLA Board & CDLP Committee Meetings Galveston, TX

March 17-22 CDLP | 47th Annual Tim Evans Texas Criminal Trial College Huntsville, TX March 21-22 TCDLA | 30th Annual Mastering Scientific Evidence DUI/DWI Cosponsored w/ NCDD New Orleans, LA March 29 CDLP | Financial Friday Zoom

April ............................................................... April 5 CDLP | Riding for the Defense Longview, TX April 11 CDLP | Juvenile Training Immersion Program Austin, TX April 11 CDLP | Addressing Race, Gender, & Equity in Criminal Justice Austin, TX April 12 CDLP | Juvenile Austin, TX

April 19 CDLP | Riding for the Defense College Station, TX April 25-27 TCDLA | FIDL 3.0 & 4.0 Returner w/ HCPDO & TIDC Austin, TX April 26 CDLP | Riding for the Defense San Angelo, TX

May ............................................................... May 3 TCDLA | 17th Annual DWI & Marijuana Defense Project Dallas, TX May 13 CDLP | Mindful Monday Zoom

June ............................................................... June 11 CDLP | Chief Public Defender Training San Antonio, TX June 12 CDLP |Capital Litigation San Antonio, TX June 12 CDLP | Indigent Defense Training San Antonio, TX June 12 Mental Health San Antonio, TX June 13-15 37th Annual Rusty Duncan Advanced Criminal Law San Antonio, TX June 15 TCDLA Board, TCDLEI Board & CDLP Committee Meetings San Antonio, TX

July ............................................................... July 10 CDLP | Trainer for Trainers South Padre Island, TX July 11-12 CDLP | Riding for the Defense South Padre Island, TX July 22 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 jsteen@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.”

President’s Message J O HN HU N T E R S MI T H

Be a Good Team Member Every month I schedule a half-day to reflect on my role as lawyer, as an employer, as a husband, as a father, and now, as President of TCDLA. My focus is not what I did well, but what I need to improve on and how do I get there. For me, it is very difficult to own that I did not do something well. I think most of us in this profession are Type A personalities. Most of us are extremely competitive. We hate to lose. We want to be the hero. In our profession, we want to be the lawyer with the “Not Guilties.” During my period of reflection, I always see something that makes me cringe, and I ask myself, “Did I do that or did I say that?” Recently, I was reflecting on how I can channel my inner Lone Wolf and be a better Team Member. I am always working with other lawyers on cases or with various committees within TCDLA and I recognized that I could do a better job as a team member. I did not want to be the person that did not fully participate in the preparation and only showed up for the game. In the military units, I served with we had a name for this person they were called a “spotlight ranger.” As a team member, I need to own my responsibilities, stay accountable, and do what I say I am going to do. The Greek philosopher Aristotle said it best. “He who cannot be a good follower cannot be a good leader.”

So, I took out my yellow notepad and made a list of items that I could improve on to be a team member: 1. Be a better communicator. I need to call, e-mail, and check in with my team members. 2. Know my task and my role. 3. Think outside of the box and be creative. 4. Complete my tasks on time. 5. Be reliable and trustworthy. 6. Show-up and be present for meetings. 7. Be supportive. 8. Don’t be afraid to ask for help and assistance. 9. Have a positive mindset. 10. Be a better listener. The great football coach Vince Lombardi said, “Individual commitment to a group effort – that is what makes a team work, a company work, a society work, a civilization work.” If you are a Criminal Defense Leader in the State of Texas, then come and volunteer to serve as a team member on the Board of Directors for Texas Criminal Defense Lawyers Association. The application can be found on the TCDLA website, and are due on November 2, 2023.

October 2023

VOICE FOR THE DEFENSE

CEO’s Perspective MELISSA J. SCHANK & M E RE D IT H PELT Navigating the Complex World of Cybersecurity: Insights for 2023 and Beyond It’s that time special time of year again! No, not pretending that the seasons are changing, but running cybersecurity scans to ensure PCI compliance at TCDLA. PCI compliance is crucial for processing online payments securely while safeguarding sensitive data. These are security standards we must follow to process payments online while maintaining a level of security that protects data. Luckily for everyone, we passed, but not without a considerable effort. These tests involve answering over 200 questions, conducting server tests, and coordinating with IT teams from our website and database providers. This is an annual endeavor, and absolutely necessary to maintain robust cybersecurity measures. As you may have noticed within the organization, and possibly your personal life, email scammers are getting good. According to Nexusguard Research, cyber-attacks increased by 341% during the pandemic! To combat these threats, it’s imperative to stay vigilant and informed. Email scammers have grown increasingly sophisticated. One way to thwart them is by scrutinizing email addresses, as they often consist of a jumble of letters and numbers that differ from legitimate addresses. Additionally, be cautious of the content of messages, especially those requesting sensitive information like credit card numbers or banking details. What I have learned—and witnessed—is that anyone can be a victim. I’ve seen deposit accounts altered, payment methods changed, ransomware paid, wire transfers intercepted by duplicate email accounts, and more—all when knowledgeable, professional people are the victims. As this practice becomes increasingly mundane, people are becoming more comfortable with sharing their experiences. I was recently at an association conference, and someone shared that they received an email from their executive director telling them to buy amazon gift cards for all the staff as a gift. If you have a generous boss, this is easy to fall for, but I would advise you to be suspicious. Data by RiskIQ suggests cyber-crime costs 6 VOICE FOR THE DEFENSE

October 2023

“Technology should improve your life… not become your life” -Billy Cox

organizations $2.9 million every minute, with major businesses losing $25 per minute as a result of data breaches. Ransomware attacks have gone mainstream with the proliferation of ransomware-as-a-service (RAS), where cyber-criminal groups create and market ransomware to “affiliates.” Businesses and organizations are not the only ones at risk. In early May, the city of Dallas was victim of a ransomware attack, forcing the city to take servers offline. The data breach included employee’s personal information, and court and police records. This happens because of weak security systems that are easy to hack. The city agreed on paying $8.6 million to access the data without any information being linked. Allocating time and money to strengthening the system is clearly important. Types of Phishing Attacks – Eight types of phishing attacks and how to identify them | CSO Online) • Whaling – Targeting high-profile individuals for their credentials. When assuming office, our incoming president each year receives emails from members telling them “you have been hacked.” No, they’re not being hacked, just targeted as high-profile titles. When you look at the sender’s email address, it may indicate, for instance, from Melissa Schank, mschank@tcdla. com <akfdjfalksdjfl;kaj@gmail.com>. If you look closely, you’ll see it’s not the actual email address it seems to be at first glance. • Phishing – Mass-market emailing looking for you to log in. If you enter your information, they have you. If this should happen, of course, you’re advised to change your password(s) immediately and contact the entity to make sure nothing is billed you. • Spear Phishing – Targeting large corporations or government agencies. Assembling critical data, these criminals work for long periods researching then strategically attacking these organizations. • Clone Phishing – Creating a near-perfect replica of previous messages. If you receive what seems to be an odd request or repeats a previous message, reach out to

the end-user directly to find out. • Vishing – Scammers impersonating financial firms via phone calls asking for personal information. Whenever I get one of these, I hang up and log into the secure site, determine if there is in fact a breach, make sure my password works—or even call the firm as needed. • Smishing – Pretending to send text messages from a company to get you to click on a link. Why these are successful: 98% of text messages are read, with 45% responded to, while emails run 20% and 6%, respectively. • Snowshoeing – A viral type of spam. We get a message, open it—and every one of our contacts gets a message we didn’t send.

Other cybersecurity threats • Man in the middle – someone pretending to be you and intercepting all your emails and transfers by having your information. • Email Forwarding Activity – attackers set up email rules to hide their malicious activities or have emails forwarded. • Ransom – send us bitcoins or we will hold your data hostage. • Fake Malware and Updates • Password attack (how to create a strong password graphic below). • SQL Injection – attacking your database.

October 2023

VOICE FOR THE DEFENSE

• Drive-by Attack – website loaded with viruses • DDOS attack – distributed denial of service attack, followed by a flood of messages that cause denial of services • Cross-site scripting – injecting a malicious script into a trusted source • URL poisoning – hackers can access information if servers don’t check if each user has correct authorization • DNS spoofing – can direct victims to a hacker by overwriting the IP address • Botnet – group of internet-connected computers that are infected and controlled by cyber criminals • Watering hole attack – happens when a real organization has an insecure website and is easy to manipulate and embed a viral code, making the device infected If you are interested in more information, visit cisa.gov. What are some additional preventive measures (from information and graphics accessed from TSAE CEO Forum)? • Assess what data your organization stores and its relative value. • Conduct an annual review of the organization’s cybersecurity stance, policies and procedures, the threat landscape, any training program, and insurance coverage. • Implement multi-factor authentication (MFA) for all staff. • Make sure that your website is secure with HTTPS. • Run simulated phishing “attacks” to raise awareness amongst staff and board members. • Deploy antivirus and malware detection on staff computers, and making sure they are monitored and maintained. • Promote strong password practices and use password vaults (password security graphic below) • Develop business continuity plans that include what may need to happen in case of a cyber or ransomware attack. Then, create and communicate an incident response plan. • Implement document retention and destruction plan. These attacks are exceptionally successful because the attackers are continually perfecting their craft. Unfortunately, cyber threats evolve daily, emphasizing the need for ongoing awareness and robust cybersecurity measures. Sometimes we are so busy that we do what is fastest. The lack of vigilance in the moment can often lead to avoidable consequences. I want to thank those who have shared their experiences, equipping us with the knowledge to stay one step ahead. 8 VOICE FOR THE DEFENSE

October 2023

Editor’s Comment J EE P DA R N E LL

Riding for the Defense

While being the Editor of The Voice for the Defense can often times be a job not many would yearn for, on occasion it is nice. For instance, when I want to promote something in TCDLA. It’s even better when I want to promote something of mine in TCDLA. In addition to my duties as Editor, I am serving this year as Chair of the Criminal Defense Lawyers Project (CDLP) Committee, the Committee that oversees the grant from the Texas Court of Criminal Appeals to provide high-quality trial advocacy CLE in rural and underserved areas of the State and topics of special attention. It is an honor to have been chosen by our President, John Hunter Smith, to serve in this role during his tenure. My theme for the 2023-2024 CLE events is Riding for the Defense, a take on Riding for the Brand. For any of those who have attended the CDLP Theme seminars in the past, the agenda will remain largely unchanged, except that now the presentation on voir dire will come before the presentation on opening and closing arguments, a rather novel approach I thought considering the timeline of a trial. For those who have never attended a CDLP Theme seminar, the agenda tracks the phases of a trial and includes topics on investigations, lawyer-client relationships, and mental health considerations for both the lawyer and the client. The series stars some of our up-and-coming star Organization speakers, along with seasoned vets who have been all over the State. As a past speaker, I can say that it is some of the most rewarding work to go into areas of the State that do not have regular, anchor seminars and provide fresh ideas on trial advocacy. For our new speakers this year, I hope they realize the benefit and make the most of the opportunity they have to meet new lawyers. I also hope all speakers

realize the importance and difference they make to ensure that criminal defense lawyers state-wide have access to the best trial advocacy education that is offered. For the attendees this coming fiscal year, I hope that each of you takes something new from each of the speakers throughout each of the one-day events and let the speakers know how much they are appreciated. In case you have not yet seen the locations for this year’s events, here you go: South Padre Island, Texas – October 27, 2023; Denton, Texas – December 15, 2023; Waco, Texas – January 19, 2024; Longview, Texas – April 5, 2024; College Station, Texas – April 19, 2024; San Angelo, Texas – April 26, 2024; South Padre Island, Texas – July 11-12, 2024. If there is an event in your area, please plan to attend and learn something new. I promise we will do our best not to disappoint. Be safe,

Jeep Darnell

October 2023

VOICE FOR THE DEFENSE

4 7 TH A N N U A L

Tim Evans Texas Criminal Trial College Registration • March 17-22, 2024 Completed Applications must be received by 5:00 pm on Dec 29th Limited Space

 Male

 Female Bar Number: __________________________________ Name: _____________________________

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:  $150 registration (refunds, less 10% processing fee, only for cancellations made before March 1, 2024). Registration price includes breakfast and lunch each day, dinner two nights, and hotel (double occupancy).  This application plus a letter of intent telling us your level of trial experience. Additionally, please tell us why you want to attend the Tim Evans Texas Criminal Trial College.  A letter of recommendation from a Texas judge (District, County, or Federal).  A letter of recommendation from a criminal defense attorney.  Single Room $575

 Requested Roommate: ___________________________________

You will be notified by January 22, 2024. Only complete applications will be considered.

NOTE: After March 1st, cancellations will be charged the actual cost of $750 per person if we can’t fill your spot.

*If you have special needs or are financially unable to pay, please contact TCDLA.

Credit card number: ________________________________________ Expiration date: ___________________________ Signature: _____________________________________________________________________________________________  I applied last year

 I attended Criminal Trial College in: _________

Trial Experience: * Please be candid about your trial experience, and do not exaggerate 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:  Yes  No If yes, how long, when did you leave, and what experience did you have?: __________________________________ ___________________________________________________________________________________________________________ Public defender:

 Yes

 No

If yes, what office?: _________________________________________________________________________________ Email: smartinez@tcdla.com | Fax: 512-469-0512 or mail to 6808 Hill Meadow Drive | Austin, TX 78736 10 VOICE FOR THE DEFENSE October 2023 The Tim Evans Texas Criminal Trial College is sponsored by CDLP, a project of TCDLA, funded by the Texas Court of Criminal Appeals.

Ethics and the Law L AUR A P O P P S

The Ethics of Seeking or Responding to Online Reviews There is no question that online reviews are a critical resource for consumers when purchasing goods and services, and that includes legal services. Research shows that the vast majority of consumers trust online reviews as much as a personal recommendation from a friend.1 Knowing this, it can be particularly upsetting when a former client trashes us in an online review. With our reputation on the line, our every instinct is to fire off a quick response and set the record straight. Unfortunately, unlike other vendors and service providers, lawyers are governed by a set of ethical rules that strictly limit what can be done in this situation. The issue is one of confidentiality. Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct (TDRPC) defines confidential information very broadly. In addition to privileged communications, it includes “all information relating to a client or furnished by a client” that is “acquired by the lawyer during the course of or by reason of the representation of the client.” Tex. Disciplinary R. Prof ’l Conduct 1.05 (a). A lawyer may not publicly reveal confidential information of a former client unless expressly permitted by an exception found in Rule 1.05. Although exceptions to Rule 1.05 permit a lawyer to reveal confidential information when necessary to defend against a claim of misconduct, or in order to establish a claim or defense in a controversy with a client, the Professional Ethics Committee has determined that such exceptions apply only in connection with formal proceedings. Tex. Comm. on Prof ’l Ethics, Op. 662 (2016). “The exceptions to Rule 1.05 cannot reasonably be interpreted to allow public disclosure of a former client’s confidences just because a former client has chosen to make negative comments about the lawyer on the internet.” Id. Lawyers frequently believe they can avoid running afoul of the confidentiality rule by not revealing privileged conversations or by not delving too deeply into the facts. But it is not that simple. Any information about the client or case that came to the attention of the lawyer by reason of the representation is off limits. “Even a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could 1

https://www.natlawreview.com/article/2021-guide-importance-

online-reviews-law-firms

disclose confidential client information.” ABA Comm. on Ethics & Prof ’l Responsibility, Formal Op. 496 (2021). As difficult as it may be, lawyers should seriously consider not responding at all to negative online reviews. As a practical matter, any response will likely engender additional responses from the former client, and the more activity a particular post receives, the higher the post may appear in online search results. Not responding at all could actually be beneficial in terms of not drawing attention to the post. If you feel you must respond in some way, consider simply requesting the poster to take the conversation offline and to call you to discuss their concerns. If they do call, however, be prepared to try to work things out lest you receive a second negative review from the same client! It is also permissible to say, “Professional obligations do not permit me to respond as I would wish.” Anything beyond this limited response, however, and you are wading into dangerous territory. In the end, it will serve you better to focus on generating more positive online reviews rather than fretting over one negative review. It is ethically permissible to ask clients and former clients to post favorable reviews, as long as the review is truthful, factually supported, and nothing of value is provided in exchange for the review. With enough positive online reviews, over time, one negative review will quickly lose credibility and may eventually vanish into the ether altogether… ______________________________________________ Laura Popps practices in Austin, Texas in the areas of attorney license defense, attorney ethics, and criminal appeals. She has been board certified in criminal law since 1999. Laura is Co-Chair of the TCDLA Ethics Committee. A former prosecutor with the Texas Attorney General’s Office, Laura traveled the state assisting local district attorneys with complex cases ranging from capital murder to white collar offenses. From 2009 to 2018, Laura headed up the Austin Region of the State Bar’s Office of Chief Disciplinary Counsel, where she directed litigation, investigations, and grievance administration for that region and served as lead counsel in some of the Bar’s more difficult and high-profile litigation. She can be reached at laura@poppslaw.com or (512) 865-5185. October 2023

VOICE FOR THE DEFENSE

The Federal Corner M IC H AE L M CCR U M

It’s 2023, and the American Revolution Continues

On July 4, 1776, the United States Congress approved the Declaration of Independence. “Philosophically, the Declaration stressed two themes: individual rights and the right of revolution.”1 The force and spirit of revolution, however, began years before the Founding Fathers penned their names to this hallowed document. In a letter from John Adams to Thomas Jefferson, Adams observed that “[t]he Revolution was in the minds of the people, and this was effected, from 1760 to 1775, in the course of fifteen years before a drop of blood was drawn at Lexington.”2 In the minds of the people of this burgeoning nation lived and breathed a desire to be free from government oppression upon the rights of humans. In 2023, this force and spirit within the minds and hearts of people lives on. The American Revolution against the oppression of human rights continues. In 2022, after decades of political pressure to create more and more laws that curbed the right of the people to bear arms to defend themselves and slowly strip away the people’s right under the Second Amendment in the Bill of Rights, the United States Supreme Court entertained the people’s challenge to a law that effectively prohibited them from bearing arms. This landmark case, New York State Rifle & Pistol Ass’n, Inc. v. Bruen,3 has since ignited a firestorm of gun litigation that persists today. Before Bruen, the gates had been opening wider and wider for government prosecutors to imprison folks for all kinds of alleged crimes involving the sale, purchase, and possession of arms and ammunition, including the litany of conduct addressed in 18 U.S.C. §§ 922, 923 & 924. Along came Bruen, however, a case which “clearly fundamentally change[d the] analysis of laws that implicate the Second Amendment . . .”4 “In 1

A Brief History of Human Rights, United for Human Rights (October

2023),

https://www.humanrights.com/what-are-human-rights/brief-history/

declaration-of-independence.html. 2

Letter, John Adams to Thomas Jefferson, August 24, 1815, Creating

the United States, Revolution of the Mind, Library of Congress (October 2023),

https://www.loc.gov/exhibits/creating-the-united-states/revolution-of-

the-mind.html. 3

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 213

I am privileged to be one of this group of 225 advocates when I fought for a young man who has lived here his entire life, attended our schools, worked for and supported businesses in our community, established life-long friends, and had never been arrested. In seeking a dismissal of a federal gun case brought about by his legitimate purchase of arms, an act taken like so many others in availing himself of the right to defend himself, I asserted he was part of “the people” that the Second Amendment to our Constitution was written to protect. Indeed, our law indisputably recognizes that he is part of “the people” who has the right to free speech and expression and the right to be free of unlawful search and seizure of his person. The government, however, took the position that he does not have the right to bear arms to defend himself. At least for now, and until the issue is resolved in the appellate court, my challenge unfortunately failed in a U.S. Magistrate Court, whose decision was adopted by the District Court without opinion. Yet, unlike before, where there was little hope for any of us in appeals to the Fifth Circuit Court of Appeals, recent appellate decisions in the Fifth and other Circuits and conflicting district court cases in the Fifth Circuit offer 143 S. Ct. 2688 (2023). 5

United States v. Lewis, No. 3:22-CR-00381, 2023 U.S. Dist. LEXIS

170257 *2 (M.D. Tenn. Sept. 25, 2023). Matt Valentine, Clarence Thomas Created a Confusing New Rule

That’s Gutting Gun Laws, POLITICO (July 28, 2023), citing Jacob Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73

United States v. Rahimi, 61 F.4th 443, 450 (5th Cir), cert. granted,

12 VOICE FOR THE DEFENSE

More than a dozen state and federal laws have been invalidated in whole or in part since the Bruen decision. Thirty percent of civil cases and nearly four percent of criminal cases that have cited Bruen have resulted in invalidation of gun control provisions, among 284 total decisions addressing Second Amendment claims.6

L. Ed. 2d 387 (2022). 4

the fifteen months since Bruen was decided, at least 225 [federal] district court opinions have been issued discussing the constitutionality of various subsections of Section 922(g) in light of that case.”5 And this number does not include federal appellate court and state courts around the country.

October 2023

Duke Law Journal 67 (2023).

me, my client and all of us a sweet breath of hope. In the March edition of The Voice, our colleagues Todd Greenwood and Pat McCann gave us an excellent introduction to Bruen, including suggestions as to how it may affect state and federal litigation in the months going forward.7 In this, my follow up to Brothers Greenwood and McCann’s article, I focus singularly on Bruen’s aftermath in district and federal cases in our Fifth Circuit, all of which evidences the existence of fertile ground we can sow in our continuing American Revolution that claims and seeks to preserve the basic rights of people. What’s at Issue in Federal Court. The primary gun statutes deployed in federal gun cases are the litany of proscriptions listed in 18 U.S.C. § 922 and the consecutive 5-year imprisonment mandated by 18 U.S.C. § 924(c)(1). Prior to Bruen, courts routinely rejected Second Amendment challenges to these statutes.8 Constitutional challenges could not overcome the “meansend” analysis applied prior to Bruen, as the government routinely justified restrictive laws by arguing the removal of rights to gun possession was a means necessary to address potentially dangerous situations. That is, the means justified the end. In Bruen, the analysis changed - no longer are courts allowed to engage in a “means-end” analysis. Rather, courts are to assess whether the law is “consistent with the Second Amendment’s text and historical understanding.”9 The American Revolution Continues. Over the past year’s cases have shown, the new Bruen standard of review has been parsed to two elements: (1) does the challenged regulation impact those whom the Second Amendment was written to protect (i.e., is the law “consistent with the Second Amendment’s text with regard to who ‘the people’ includes?”), and (2) does the challenged regulation address a “general societal problem” that has persisted through “history” (i.e., is the law “consistent with the Second Amendment’s . . . historical understanding?”). The vagueness of these elements has led to inconsistent applications this past year, providing fertile ground for continued challenges to restrictive laws. 1. Who are “the People”? The first element of Bruen’s test addresses the “text” of the Second Amendment, which provides that “the right of the people to keep and bear Arms, shall not be infringed.” Some courts have rejected constitutional challenges by interpreting dictum in case precedent in a way that excludes certain classes of people from being “part of the people” whom the Second Amendment protects. These courts typically exclude certain classes of folks from “the people” by justifying their decisions on a phrase used by the

Supreme Court in dictum that acknowledged the Second Amendment rights of “law-abiding responsible citizens.” By applying this analysis, these courts state that the Second Amendment’s “plain text” does not protect the accused’s firearm possession.10 Other courts have disagreed with this analysis.11 These courts point out that this phrase was dictum and “hopelessly vague,” and recognize the “absurd result” of the incongruence of allowing constitutional protection of certain classes of persons under the First, Fourth and Fourteenth Amendments but then denying protection to those same people under the Second Amendment.12 Inexplicably, the Supreme Court plainly held that First, Fourth and Second Amendments protect those “class of persons who are part of the national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”13 There is movement in the Fifth Circuit in the direction of recognizing this right to persons historically excluded on the basis of that infamous phrase. Recently, the Fifth Circuit appears to have rejected the notion that the Second Amendment only protects “law-abiding, responsible citizens,” holding that it apples to “all members of the political community.”14 10

See, e.g., United States v. Washington, No. 3:23-CR-00171, U.S. Dist.

LEXIS 165280 *7 (W.D. La. Sept. 25, 2023) (“convicted felons are not part of the people covered by the Second Amendment”); United States v. D’Luna-Mendez, No. SA-22-CR-00367 ** 5-8, 2023 U.S. Dist. LEXIS 120313 (W.D. Tex. July 13, 2023) (unlawful aliens not “law-abiding, responsible citizens” or “members of the political community” and therefore not part of “the people”); United States v. Sitladeen, 64 F.4th 978 (8th Cir. 2023) (aliens not part of “the people”). 11

See, e.g., United States v. Barber, 4:20-CR-384, 2023 U.S. Dist. LEXIS

14340 * (E.D. Tex. Jan. 27, 2023) (Second Amendment “not limited to virtuous citizens,” convicted felons are part of our national community and entitled as parts of “the people” to Second Amendment protection); United States v. PerezGallan, 640 F. Supp. 3d 697, 708 (W.D. Tex. Nov. 10, 2022) (court rejects govt. argument that persons subject to a domestic violence restraining order are not part of “the people”). 12

See Atkinson v. Garland, 70 F.4th 1018, 1022 (7th Cir. 2023)

(improper to reject constitutional challenges based upon “oft-quoted dicta describing felon-in-possession laws”); Range v. Att’y General, 69 F.4th 96, 102 (3d Cir. 2023) (en banc) (“law-abiding responsible citizen” is “hopelessly vague;” limiting to quote-unquote “real crimes” like felonies also misses the mark, because some modern felonies “seem minor” and “some misdemeanors seem serious”); United States v. Bullock, No. 3:18-CR-165, 2023 U.S. Dist. LEXIS 112397 ** 43-44 (S.D. Miss. June 28, 2023) (Heller language of “lawabiding citizens” is dictum) (citations omitted); United States v. PerezGallan, supra (“defining ‘the people’ as law-abiding responsible citizens would lead to absurd results” and inconsistent constitutional protection for certain classes of people); United States v. Perez-Gallan, supra at ** 13-16 (analyzing

See The New Wild West of Firearms Possession Regulation in the

Supreme Court’s Heller decision to find that the term “the people” in Second

Aftermath of New York State Rifle and Pistol Assoc. v. Bruen, Voice (March

Amendment is “coextensive” with the same term used in other Amendments).

7 2023). 8

13 United States v. Smith, 22-10795, 2023 U.S. App. LEXIS 23888 *6

(5th Cir. Sept. 8, 2023). 9

Bruen, supra, 142 S. Ct. at 2131.

United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)

(citations omitted). 14

United States v. Rahimi, 61 F.4th 443, 451 (5th Cir.), cert. granted,

No. 22-915, 143 S. Ct. 2688 (June 30, 2023). October 2023

VOICE FOR THE DEFENSE

Several other issues make the issue of textual interpretation even more complex. First, there is a question as to whether the analysis of whether the person being part of “the people” should not be a “plain-text” inquiry, but rather is better suited for the second part of Bruen’s standard of analysis - a “historical-basis” inquiry.15 Second, further complicating the “plain text” analysis is the difficulty inherent in deciphering the “plain text” of the Constitution. For example, does the textual interpretation take place apart from historical inquiry, or should it include an analysis “as informed by history?”16 Third, history has dealt not only with questions as to who are included as part of “the people” but also what are “arms?” So then, does a “plain text” review require not only deciphering whether the person is “part of the people” but also whether the challenged conduct and/or firearm are covered by the Second Amendment?17 Finally, it is not clear who bears the burden in establishing this first “plain-text” element. Bruen does not appear to answer that question, as it could be argued that the Court’s admonition that the government bears the burden as to the second element appears to have shifted the burden from the defendant’s initial burden to prove the first element.18 Advocates representing the accused must be prepared for the government’s effort to place the initial burden on defendants. An effective counter could be the overwhelming number of cases which state that the Second Amendment’s protection presumptively applies to all. 2. What is “Historical Understanding”? The second element of the Bruen test requires a determination of whether the restricted conduct governed by the challenged regulation has a historical basis contemplated by the Founders in their drafting of the Second Amendment. The Court acknowledged that the proscribed conduct could fall into one of two categories: (1) conduct which was “a general societal problem that has persisted since the 18th century,” or (2) conduct “implicating unprecedented societal concerns or dramatic technological changes.”19 As to the first, the inquiry is whether “the existence or absence of relevant historical regulations [are] probative of the constitutionality of a modern firearm restriction.”20 As to the second, however, where the modern-day regulation “is not a dead ringer for historical precursors,” the government is now charged under Bruen to demonstrate that the modern-day regulation is “analogous enough” to a historical prohibition “to pass constitutional muster.”21 Stated differently, the government must establish 15

United States v. Quiroz, 629 F. Supp. 3d 511, 516 (W.D. Tex. 2022);

Id. at 2133.

Id. at 2138 (Court acknowledges “scholarly debate” about this issue

but declined to offer guidance). 24

The Dead Hand of a Silent Past, supra at 103.

United States v. Quiroz, 629 F.Supp.3d 511, 525-26 (W.D. Tex. 2022)

(discussing the “skepticism” one should have in blindly relying on historical precedent where there exists a myriad of historical unlawful prohibitions on classes of people). 26

See William N. Eskridge, Jr., Sodomy and Guns: Tradition as

Democratic Deliberation and Constitutional Interpretation, 32 Harv. J.L. & Pub.

Duke p. 97. 16

that “relevantly similar” historical regulations that imposed “a comparable burden” on the right of armed self-defense that were also “comparably justified.”22 This is where it gets interesting, as the Supreme Court left little guidance as to how exactly to do this, resulting in lower courts being inconsistent in their approach. Open questions include: • What are the outer limits of the time-block of history to be considered?23 • What does it mean to discover the “existence” of a historical tradition? Is an “analogue” different than a “practice” or “tradition?”24 How many old laws do you need to prove there exists “historical” precedent? Is one State’s historic law sufficient? Two? • How much weight should be placed on whether that tradition has endured through the centuries? How much weight should be given to the fact that historical proscriptions on specific classes of people on their right to bear arms were overturned as unreasonable restraints?25 • What must the government establish about the enforcement of the historical tradition? How does a court deal with the evolution of the tradition? As stated by one commentator, “[t]radition is rarely simple and univocal; it is multifarious, evolving, and complicated.”26 • Should a court give differing degrees of weight depending on how “short-lived” is the historical precedent? If so, what standard is to be used? • Should a court consider the existence or absence of restriction that existed in England prior to the founding of our country to consider the historical perspective of our Founders? Should a court lean on its own subjective knowledge, research and/or interpretation of historical precedent?27 Should the court rely on written material submitted by the parties?28 If so, what type of material? Is a law review

Jacob Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights,

and the Shackles of History, 73 Duke Law Journal 67, 96 (2023); Bruen, supra at 2127.

Pol’y 193, 194 (2009), quoted in The Dead Hand of a Silent Past, supra at 101. 27

United States v. Bullock, No. 3:18-CR-165, 2023 U.S. Dist. LEXIS

112397 * 9 (S.D. Miss. June 28, 2023). “Judges are not historians. We were

The Dead Hand of a Silent Past, supra at 96.

not trained as historians. We practiced law, not history. And we do not have

Bruen, supra at 2126, 2129-30; The Dead Hand of a Silent Past,

historians on staff. Yet the standard articulated in Bruen expects us ‘to play

supra at 98.

historian in the name of constitutional adjudication.’” Id.

Bruen, supra at 2131-32.

Id. at 2131.

Id. at 2132.

14 VOICE FOR THE DEFENSE

Supreme Court Justice Antonin Scalia expressed disapproval of

the Court “picking and choosing those [studies] that support its position” while “never explain[ing] why those particular studies are methodologically October 2023

sufficient to demonstrate historical precedent? • Should the court insist on receiving evidence from an expert historian chosen by a party pursuant to Rule of Evidence 702 and/or appointed by the court in accordance with Rule of Evidence 706? Indeed, the Supreme Court knew this form of historical analysis was not going to be easy. Writing for the majority, Justice Thomas recognized the difficulty in parsing through different levels of historical precedent: On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (3d Cir. 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.29 But if all of these questions did not cloud the analysis enough, Justice Thomas and the Court injected an additional two-part metric test that appears to require the same type of “means-end” inquiry that the Bruen case was supposedly ditching: in conducting an analogical inquiry as to whether the current regulation is “relevantly similar” to historical precedent, the court must analyze the “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”30 That is, courts effectively are tasked to delve into the “means-end” of the regulation (i.e., the “how” and “why”) to decipher whether the regulations are “relevantly similar.”31 As with the first “plain-text” inquiry, the second element’s multi-layered, vague, and admittedly “nuanced”32 inquiry has left it wide open for litigation. Post-Bruen Revolution Title 18, United States Code, Section 922 restricts a variety of persons’ ability to possess arms and ammunition: convicted felons, persons under indictment, fugitives, unlawful users or addicts of drugs, “mental defectives,” “illegal or unlawful” aliens, dishonorably discharged sound.” Roper v. Simmons, 543 U.S. 551, 617, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (Scalia, J., dissenting). “Justice Scalia knew firsthand the risk of cherrypicking briefs to support one’s ideological priors. See id. Briefs submitted by the parties’ lawyers have been referred to as “law office history”—that is, history selected to “fit the needs of people looking for ammunition in their causes”—in Constitutional interpretation.” United States v. Bullock, supra at ** 3-4, citing Gordon S. Wood, The Supreme Court and the Uses of History, 39 Ohio N.U. L. Rev. 435, 446 (2013).

veterans, those who renounced citizenship, certain harassers and stalkers, and domestic violence misdemeanants. In the aftermath of Bruen, this broad swath of laws which are all listed within Section 922 has spawned an abundance of Second Amendment constitutional challenges across the country. Warrior advocates in our Fifth Circuit have been no exception. The underlying principle, of course, is the undeniable right to bear arms. Two of the cases fought in the Fifth Circuit have made national news and have dispelled at least to some extent the oft-said expression of many that “no one can win against the government” in the Fifth Circuit. In one case, the Fifth Circuit held unconstitutional the federal law which prohibited possession of a firearm by a person subject to a domestic violence restraining order.33 The government appealed, the Supreme Court granted certiorari and the appeal is pending. In another case, the Fifth Circuit held unconstitutional the federal law which prohibited the possession of a firearm by a person who was a nonviolent marijuana user.34 The following sampling of cases demonstrates not only the fertile and current dynamic state of law in this area, but also the frequent inconsistency of case law. As an example, on the same exact issue relative to the exact same statutory provision, two district courts within the Western District of Texas have interpreted the law directly opposite to two other Western District courts.35 This clearly demonstrates the volatile nature of this type of litigation. 18 U.S.C. § 922(g)(1): Possession of Firearm by Convicted Felon: • Range v. Att’y General, 69 F.4th 96 (3d Cir. 2023) (en banc) (Section 922(g)(1) is unconstitutional); • Atkinson v. Garland, 70 F.4th 1018 (7th Cir. 2023) (case remanded; district court to address questions such as (1) does Congress have power to make categorical restrictions, and if so, what sorting principles should be used to separate permissible from impermissible; and (2) what does history tell us about disarming those convicted of crimes generally and of felonies in particular?); • United States v. Bullock, No. 3:18-CR-165, 2023 U.S. Dist. LEXIS 112397 ** 43-44 (S.D. Miss. June 28, 2023) (motion to dismiss granted; Section 922(g)(1) held unconstitutional); • United States v. Harper, No. 1:21-CR-0236, 2023 U.S. Dist. LEXIS 155822 (M.D. Penn.) (motion to dismiss granted; government “has not established that Section 922(g)(1) is consistent with the Nation’s “historical tradition of firearm regulation.”), appeal filed, No. 232604 (3d Cir. Sept. 6, 2023); • United States v. Edwards, No. 3:23-CR-00199, 2023 U.S. Dist. LEXIS 170264 (W.D. La. Sept. 25, 2023) (motion to dismiss denied; Section 922(g)(1) is

Bruen, supra at 2133.

Id.

Id. at 2130 (“To be sure, “[h]istorical analysis can be difficult; it

United States v. Daniels, 77 F.4th 337 (5th Cir. 2023).

sometimes requires resolving threshold questions and making nuanced

See discussion below on 18 U.S.C. § 922(n), possession of a firearm

judgments about which evidence to consult and how to interpret it.”).

United States v. Rahimi, 61 F.4th 443 (5th Cir.), cert. granted, No.

22-915, 143 S. Ct. 2688 (June 30, 2023).

by person under indictment. October 2023

VOICE FOR THE DEFENSE

constitutional). 18 U.S.C. § 922(n): Possession of firearm by Person under Indictment: • Conflict within Western District of Texas District Courts: ◉ Compare United States v. Quiroz, 629 F.Supp.3d 511 (W.D. Tex. 2022) (Counts, D., Judge Presiding) (govt did to meet burden in proving 18 U.S.C. § 922(n) has historical basis; case dismissed) & United States v. Hicks, No. W:21-CR-00060, 2023 U.S. Dist. LEXIS 35485 (W.D. Tex. Jan. 9, 2023) (Albright, A., Judge Presiding) (case dismissed; Section 922(n) is unconstitutional), with, ◉ United States v. Simien, No. SA-22-CCR-00379JKP, 2023 U.S. Dist. LEXIS 23629 (W.D. Tex. Feb. 10, 2023) (Pulliam, J., Judge Presiding) (denies motion to dismiss; Section 922(n) is constitutional) & United States v. Posada, No. EP-22-CR-1944, 2023 U.S. Dist. LEXIS 70981 (W.D. Tex. Apr. 20, 2023) (Cardone, K., Judge Presiding) (motion to dismiss denied; Section 922(n) is constitutional). • United States v. Avila, No. 22-50088, 2022 U.S. App. LEXIS 35321 (5th Cir. Dec. 21, 2022) (review limited to plain error; because no binding precedent otherwise, cannot review historical precedent and therefore dismissal of motion upheld); • United States v. Perez-Garcia, 2022 U.S. Dist. LEXIS 172157 (S.D. Cal. Sept. 18, 2022) (historical tradition supports targeted regulations like Section 922(n); statute is constitutional); • United States v. Kay, 2022 U.S. Dist. LEXIS 154929 (W.D. Okla. Aug. 29, 2022) (proper historical analogues for Section 922(n); statute is constitutional). 18 U.S.C. § 922(g)(3): Possession of Firearm by User or Addict of Controlled Substance: • United States v. Daniels, 77 F.4th 337 (5th Cir. 2023) (unlawful use of marijuana did not strip defendant of presumptive 2d Amendment right to possess firearms; government did not establish historical analogy); • United States v. Connelly, No. EP-22-CR-229(2)-KC, 16 VOICE FOR THE DEFENSE

October 2023

2023 U.S. Dist. LEXIS 62495 (W.D. Tex. Apr. 6, 2023), appeal filed, No. 23-50312 (5th Cir. May 4, 2023) (motion to dismiss granted; government filed appeal). 18 U.S.C. § 922(g)(5): Possession of Firearm by “Illegal or Unlawful Alien”: • United States v. D’Luna-Mendez, No. SA-22-CR-00367 (W.D. Tex. July 13, 2023). I am the advocate who argued this case before the U.S. Magistrate Court. A copy of my motion follows this article. The court denied my motion to dismiss based on a 2011 Fifth Circuit case, United States v. Portillo-Munoz, 643 F.3d 437,440 (5th Cir. 2011), that held illegal aliens are not part of “the people” protected by the Second Amendment. Because the Fifth Circuit case did not engage in a “means-end” analysis, the Magistrate Court found that Portillo remains binding precedent. Note, however, that Portillo relied heavily on the “lawabiding, responsible citizen” dictum and sought to distinguish prior cases which have held illegal aliens are part of “the people” referenced in the 1st and 4th Amendments, both of which positions have been criticized by other courts. Indeed, except for Second Amendment protection, illegal aliens have been given constitutional protection under several constitutional amendments, as reflected in my motion attached below. And even with respect to Second Amendment protection, my motion lists the multiple statutes which allow certain aliens the right to bear arms in our country, seemingly contradictory to the notion that aliens are categorically not “part of the people” the Second Amendment was drafted to protect. It certainly appears that there is a significant degree of inconsistent application of this constitutional right vis-à-vis aliens. • Contrary to the Fifth Circuit, several Circuit Courts of Appeal have held or at least assumed that illegal aliens are part of the “the people” protected by the 2d Amendment: ◉ United States v. Perez, 6 F.4th 448, 453 (2d Cir. 2021); ◉ United States v. Meza-Rodriguez, 798 F.3d 664, 672-73 (7th Cir. 2015); ◉ United States v. Torres, 911 F.3d 1253, 1257 (9th Cir. 2019); ◉ United States v. Huitron-Guizar, 678 F.3d 1164, 1169 (10th Cir. 2012); ◉ United States v. Jimenez-Shilon, 34 F.4th 1042, 1046-48 (11th Cir. 2022) • The Eighth Circuit held that illegal aliens are not part of “the people”: United States v. Sitladeen, 64 F.4th 978 (8th Cir. 2023) 18 U.S.C. § 922(g)(8): Possession of Firearm by Person Subject to Domestic Violence Order: • United States v. Rahimi, 61 F.4th 443 (5th Cir.), cert. granted, No. 22-915, 143 S. Ct. 2688 (June 30, 2023) (no historical precedent justifying statute; held unconstitutional); 18 U.S.C. § 922(j): Possession of Stolen Firearm: • United States v. Greer, No. 4:17-CR-94, 2023 U.S. Dist. LEXIS 127650 (E.D. Tex. July 24, 2023) (denies

motion to dismiss; statute is constitutional) 18 U.S.C. § 922(q)(2)(A): Possession of Firearm in School Zone: • United States v. Allam, No. 1:23-CR-10, 2023 U.S. Dist. LEXIS 160748 (E.D. Tex. June 14, 2023) (school zone is a “sensitive place” where “long standing prohibitions on possession” are upheld, citing Bruen; statute constitutional) 18 U.S.C. §§ 923 & 924: False Statement in Firearms Records: • United States v. Deare, No. 6:21-CR-00212, 2023 U.S. Dist. LEXIS 127638 (W.D. La. July 24, 2023) (motion to dismiss denied; statute is constitutional) 18 U.S.C. § 922(k): Removed, Obliterated or Altered Serial Number: • United States v. Dangleben, No. 3:23-MJ-0044, 2023 U.S. Dist. LEXIS 177534 (D. V.I. Oct. 3, 2023) (motion to dismiss denied; statute is constitutional) 18 U.S.C. § 922(t)(1)(C) & 34 U.S.C. § 40901(a)(1)): Required Background Checks for Purchase of Firearms: • McRorey v. Garland, No. 7:23-CV-00047, 2023 U.S. Dist. LEXIS 141268 (N.D. Tex. Aug. 14, 2023) (statute not unconstitutional based on necessity to check for convicted felons and mentally defective persons) 18 U.S.C. § 922(a)(5): Transfer of Firearm to Unlicensed Dealer: • United States v. James, No. 19-79, 2023 U.S. Dist. LEXIS 103340 (D. V.I. June 14, 2023) (motion to dismiss denied; statute is constitutional)

With so many questions left open by Bruen, courts have grappled as to how to analyze challenges to firearm statutes. Impossible to tell how much the Supreme Court’s analysis of Rahimi will provide guidance, but one thing appears certain: “conservative” judges who have long appeared to be unkind to criminal defense issues may now be the tip of the spear in pushing back against the government’s continuing effort to curb a person’s constitutional right to bear arms. Regardless, we as warriors must continue our fight in the ongoing American Revolution to claim and preserve our rights as humans. ______________________________________________ Michael McCrum has over 38 years experience as an attorney. He served as the Chief of the Major Crimes Section and General Drug Section of the U.S. Attorney Office in San Antonio, and after leaving the Department of Justice in 2000 he has operated his solo practice in San Antonio. McCrum concentrates his practice almost exclusively on the defense of persons accused with an emphasis of work in federal district and appellate courts. He previously served on the TCDLA Board of Directors, as President of the San Antonio Criminal Defense Lawyers Association, and as a long-standing appointee to the WDTX San Antonio Division’s Criminal Justice Act Panel Classification Committee. He can be reached at michael@mccrumlegal. com or 210.225.2285.

October 2023

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Originalism and the Need for Training in Construction Originalist Arguments NIL E S IL L IC H Generally, § 922(g)(8) prohibits any person who is subject to a restraining order from “harassing, stalking, or threatening an intimate partner . . . or child of such intimate partner . . . or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child” from possessing, transporting, or shipping a firearm.1 On February 2, 2023, a unanimous panel of the Fifth Circuit Court of Appeals found 18 U.S.C. § 922(g)(8) unconstitutional.2 The panel looked for historical analogs to § 922(g)(8) to determine whether the statute violated the Second Amendment.3 Ultimately, the panel rejected all historical analogs and held “§ 922(g)(8)’s ban on possession of firearms is an ‘outlier[] that our ancestors never would have accepted.’ Therefore the statute is unconstitutional, and [the conviction] under that statute must be vacated.”4 The panel’s reasoning rests on the theory of “Originalism.”5 Whatever may be said about the eloquence of the Constitution, many of its articles and clauses are general and subject to interpretation.6 Historians, judges, and lawyers have debated the “proper” way to analyze the Constitution almost since its inception.7 Currently,

the Supreme Court favors “Originalism.”8 The core of an “Originalist” analysis is an evaluation of the historical environment in which the author(s) wrote the disputed constitutional provision or statute.9 Although the Supreme Court, lower judges and justices, and lawyers have embraced “Originalism,” almost no advocate, judge, or justice is prepared to conduct the primary-source (or even secondary source)10 research required for a proper constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term which might prevent its receiving a

18 U.S.C. § 922(g)(8).

fair and just interpretation. In considering this question, then, we must never

United States v. Rahimi, No. 21-11001, 2023 WL 1459240, at *1 (5th

forget that it is a constitution we are expounding.”).

Cir. Feb. 2, 2023).

D.C. v. Heller, 554 U.S. 570, 579, 128 S. Ct. 2783, 2790, 171 L. Ed. 2d

Id. at *6-*10.

Id. at *10.

Id. at *5.

L. Rev. 1921, 1921 (2017) (“Originalism maintains both that constitutional

637 (2008). Some scholars refer to this as “New Originalism.” 9

Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame

Boyd v. United States, 116 U.S. 616, 624–25, 6 S. Ct. 524, 529, 29 L.

text means what it did at the time it was ratified and that this original public

Ed. 746 (1886) (“In order to ascertain the nature of the proceedings intended

meaning is authoritative. This theory stands in contrast to those that treat

by the fourth amendment to the constitution under the terms ‘unreasonable

the Constitution’s meaning as susceptible to evolution over time. For an

searches and seizures,’ it is only necessary to recall the contemporary or then

Originalist, the meaning of the text is fixed so long as it is discoverable.”).

recent history of the controversies on the subject, both in this country and in 7

McCulloch v. Maryland, 17 U.S. 316, 407, 4 L. Ed. 579 (1819) (“A

18 VOICE FOR THE DEFENSE

See Agnieszka Aya Marczyk, Entering the Historiography Problem

Space: Scaffolding Student Analysis and Evaluation of Historical Interpretations

England.”). October 2023

in Secondary Source Material, 40 Cognition and Instruction 517, 517-540

historical analysis. A presumably frustrated district court judge explained the practical problem the lack of historical training presents and wrote: What is left, then, is the necessity of deciding serious criminal cases—involving pressing questions of individual liberty and public safety— based on the arguments of non-historian lawyers, citing cases by non-historian judges, who relied on arguments by other non-historian lawyers, and so on in a sort of spiral of “law office history.” This is a difficult position to be in. On one hand, it is undeniable that federal courts typically “lack both the methodological and substantive knowledge that historians possess.” On the other hand, though, these cases exist. There are scores of them, and scores more are undoubtedly coming. And while the Supreme Court’s jurisdiction is mostly discretionary, the district courts’ is not. Pending

gun cases must be decided, which means, now, that they must be decided through the methodology set forth in Bruen, whether the courts are actually well-suited to that inquiry or not.11 (internal citations removed). In the context of the Second Amendment, the Supreme Court requires the party defending the law, regulation, or other rule to “…sift the historical materials for evidence to sustain” the challenged provision.12 Yet it is apparent that attorneys and judges are ill equipped to “sift the historical materials.”13

(2021) (discussing difference between primary and secondary resources).

the movant. See Griswold v. State, __ S.W.3d__, No. PD-0154-22, 2022 WL

United States v. Kelly, No. 3:22-CR-00037, 2022 WL 17336578, at *3

(M.D. Tenn. Nov. 16, 2022). 12

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 213 L. Ed. 2d 387,

142 S. Ct. 2111, 2150 (2022). 13

Rahimi, 2023 WL 1459240, at *6-*10. While a Second Amendment

analysis puts the onus on the government, most challenges put the onus on October 2023

VOICE FOR THE DEFENSE

In Rahimi, the case that found § 922(g)(8) unconstitutional in all respects, the government relied on a ramshackle set of historical evidence.14 The historical argument purports to rely on primary sources that illustrate English legal traditions, but predominately the argument rested on law review articles and contemporary court decisions.15 Importantly, law review articles are not subjected to peer review, and are instead selected, edited, and published by bright second- and third-year law students who have little or no training in historical research methods.16 The only (arguable) primary sources cited in Rahimi are: • The Militia Act of 1662 (England) • State or Colonial statutes enacted to prohibit the use of firearms in a manner that spreads “fear” or “terror” from New Hampshire, Virginia, Massachusetts, and Tennessee; • Bernard Schwartz’s book, The Bill of Rights a Documentary History; • William Blackstone’s Commentaries on the Laws of England; • William Rawle’s book, A View of the Constitution of the United States (1829). And, • two surety cases from 1799.17 The opinion does not explain why the panel selected these primary sources or excluded others.18 But the review of the primary sources shows no archival or even substantive historical research.19 Instead the historical evidence relied on is material available through a simple search of the internet or through LEXIS/NEXIS or Westlaw.20 Unquestionably LEXIS/NEXIS and Westlaw provide sophisticated tools for legal arguments, but they do not provide access to an appropriate or even adequate pool 16626079, at *1 (Tex. Crim. App. Nov. 2, 2022); Ex parte Barton, No. PD-112319, 2022 WL 1021061, at *2 (Tex. Crim. App. Apr. 6, 2022), reh’g denied, (June 8, 2022); United States v. Toure, 965 F.3d 393, 399 (5th Cir. 2020). 14

Rahimi, 2023 WL 1459240, at *10.

Id. at *6-*10.

See Steven Lubet, Law Review vs. Peer Review: A Qualified Defense

of Student Editors, 2017 U. Ill. L. Rev. Online 1 (2017); Adam Liptak, The Lackluster Reviews That Lawyers Love to Hate, N.Y. Times: Sidebar (Oct. 21, 2013), http://www.nytimes.com/2013/10/22/us/law-scholarships-lackluster-

of primary resources. As an example, neither the opinion nor the briefing in Rahimi mentioned the first law against family violence in the colonies.21 The first American law against family violence passed in the New Haven colony in 1639 and was against incest; the punishment was death.22 In 1641, the Massachusetts Bay Colony passed a law prohibiting wife abuse (two years later husband abuse).23 A husband convicted of abusing his wife faced a fine of five pounds or a whipping.24 If the briefing had discussed whipping as a punishment for domestic abuse as far back as 1641 (or death for incest in 1639), can it be said “§ 922(g)(8)’s ban on possession of firearms [for those found in court to have committed or are likely to commit spousal abuse] is an ‘outlier[] that our ancestors never would have accepted?’”25 Whether the Fifth Circuit would have accepted this argument is unresolvable, but the argument should have been made.26 Simply considering the history of law on domestic violence is not enough. To complete the argument, the

reviews.html; Alfred L. Brophy, The Signaling Value of Law Reviews: An

Appellant’s Supplemental Brief and Appellee’s Supplemental Brief.

Exploration of Citations and Prestige, 36 Fla. St. U. L. Rev. 229, 231 (2009) (“It

Elizabeth Pleck, Criminal Approaches to Family Violence, 1640-

really is extraordinary that students pick articles in areas in which they have

1980, 11 Crime and Justice 19, 19-57 (1989).

little expertise.”); Erik M. Jensen, The Law Review Manuscript Glut: The Need

Id. at 22.

for Guidelines, 39 J. Legal Educ. 383, 384–85 (noting “haphazard review” of

Id.

submissions by student editors and their preference for “sexy topics”); Richard

Rahimi, 2023 WL 1459240, at *10.

A. Posner, Law Reviews, 46 Washburn L.J. 156, 157–58 (2006) (“On the side

The outcome of Rahimi was a remarkable defense victory and

of substance, [editors of law reviews have an] especial preoccupation . . . with

nothing in this article is intended to disparage that accomplishment. Rather,

trying to maximize the number of footnotes, citations, and cross-references.”).

the purpose of the article is to call attention to the need for better historical

Rahimi, 2023 WL 1459240, at *7-*10.

research methods to secure similar defense verdicts. The article is not intended

Appellant’s Supplemental Brief and Appellee’s Supplemental Brief.

to disparage the Panel’s analysis. Under the burden for Second Amendment

Rahimi, 2023 WL 1459240, at *7-*10.

cases the Government had the burden to find the historical analogs and the

Id.

Panel simply had to weigh the analogs.

20 VOICE FOR THE DEFENSE

October 2023

Fifth Circuit had to have evidence of the prevalence of gun ownership today versus ownership around 1789.27 But the Fifth Circuit needed more than statistics. To decide that “our ancestors never would have accepted” the limitation on possessing a firearm in § 922(g)(8), the justices had to have robust historical evidence of the role of guns today versus the role of guns in 1789. Assume gun ownership was high in 1789, guns were used overwhelmingly to hunt, and hunting was a main source of food for an overwhelming percentage of the American population. Under this set of facts a compelling argument would exist that “our ancestors never would have accepted” the limitation on possessing a firearm included in § 922(g)(8). But, as the premises in the assumption drop out, the ability of our ancestors to accept limitations on gun possession increases. Yet the panel of the Fifth Circuit—without this fundamental evidence— had to decide whether the original meaning of the Second Amendment permits the federal government (and presumably state governments) to prohibit gun possession when a court enters a restraining order because the person committed an act of domestic violence. The question of whether our founders (assuming, as Originalism often does, the “founders” spoke with a unified voice) would have tolerated the seizure of guns from people under a restraining order for domestic abuse is a difficult historical question and one that may have legitimate disagreement. Certainly the argument could fade into areas such as the relationship of ecclesiastical courts and governmental courts and whether the founders would have approved of removing firearms from a person who was convicted of domestic abuse in one but not the other. Perhaps answers to such questions are not strictly necessary, but the answer to the question the Fifth Circuit faced should not be the product of shoddy historical research and should, instead, be grounded in the most thorough historical research possible. The primacy of historical research is not limited to the Second Amendment and to the colonial period. Consider the question of whether people who are born in American Samoa are American-citizens by birth.28 In deciding this question, the Tenth Circuit relied on a historical analysis reaching from 1608 to the mid-twentieth century.29 The historical analysis is exhaustive, but contains very few primary sources.30 Even the petition for writ of certiorari contains very few primary sources and relies instead on law review articles. More disappointingly, the amicus curiae brief filed on behalf of “Scholars for Constitutional Law and Legal History” contains almost no primary resources 27

This alone is a complicated historical argument on which many

and again relies predominantly on law review articles for its historical framework. Stronger historical research (primary or secondary) would have created a more persuasive argument for the constitutionality (or unconstitutionality) of § 922(g)(8).31 The advocates could have relied on peer reviewed journals, dissertations, primary resources, etc. and yet they did not. The failure of the historical research is a collective failure of law schools to recognize the necessity that graduates be prepared to make Originalist arguments. The Rahimi opinion illustrates the necessity of being able to do the necessary historical research to make an Originalist argument. It is true that Rahimi is provocative, but it is only one of hundreds or potentially thousands of cases that will be resolved in 2023 based on non-historian lawyers making historical arguments to non-historian judges based on clumsy (and sometimes inept) historical research methods. It is time for lawyers to demand training in the historical research methods that Originalism insists upon. • The training in historical methods that lawyers require to make a convincing Originalist argument would include: • The distinction between primary and secondary sources; • The tools to identify secondary sources; and, • The tools to identify archival material for primary sources. Lawyers are well prepared to assemble the historical research into an Originalist argument. The deficiency in law school education and CLE training is in how to assemble the required historical documents required to make a persuasive Originalist argument. It is tempting to argue the fault lies with Originalism. But that argument fails. For the immediate future, the Supreme Court favors Originalism and that favoritism establishes that Originalism will remain the prevailing theory of constitutional and statutory interpretation. While Originalism is associated strongly with conservative outcomes, the connection exists only because the historical research to support the arguments is so frail. A more robust historical analysis might produce more defense victories. Nationwide federal and state courts—from the lowest level to the highest—have decided to embrace Originalism, but the judges, justices, and attorneys overwhelmingly lack the tools to conduct the required historical research—this should change. 31

Pleck, Elizabeth. “Criminal Approaches to Family Violence,

disagree. The debate over Professor Michael Bellesiles’ award-winning book,

1640-1980.” Crime and Justice 11 (1989): 19–57. http://www.jstor.org/

Arming America: The Origins of A National Gun Culture, is a strong beginning

stable/1147525.

to the fractured historical conclusions on this complicated question. 28

Fitisemanu v. United States, 426 F. Supp. 3d 1155, 1156 (D. Utah

2019), rev’d, 1 F.4th 862 (10th Cir. 2021). This case ended at the Circuit court because the Supreme Court denied the petition for writ of certiorari. 29

Id.

Id. There are more primary sources when the opinion approaches

and discusses the Twentieth Century.

Niles Illich holds a Ph.D. in History and has extensive training and experience in historical research (primary and secondary). Mr. Illich is also a board-certified criminal appellate attorney in Dallas. He can be located through his website at www.appealstx.com. October 2023

VOICE FOR THE DEFENSE

What Every Criminal Lawyer Should Know About Juvenile Law J OA N N E M U SIC K Juveniles in Juvenile Court The following information is relevant to juvenile jurisdiction in a juvenile court rather than a “child” appearing in justice or municipal court. By way of housekeeping, Juvenile courts are governed by the Texas Family Code, Title 3, Juvenile Justice Code. Juvenile proceedings, though, are quasi-criminal and many of the criminal statutes apply to juveniles. Finally, statute references throughout this article are to the Family Code unless otherwise noted. Much like criminal courts, the juvenile justice code mandates a bifurcated system, where the first phase is adjudication and the second phase, when necessary, is disposition. Adjudication is akin to guilt/innocence and disposition is akin to punishment with a major difference: an adjudication does not have to result in a disposition if the court so finds. Deferred Prosecution For many juvenile offenses, deferred prosecution may precede adjudication. Deferred prosecution is similar to a pretrial intervention, and often thought of as a disposition to a juvenile case. However, by its very nature deferred prosecution is not a disposition because a disposition can only follow adjudication. When the prosecution of the child is deferred, there is no adjudication. Deferred prosecution is an alternative to seeking a formal adjudication. It is essentially a period of supervision without adjudication. It is a contract between the juvenile and the court, and 22 VOICE FOR THE DEFENSE

October 2023

sometimes the prosecutor. Upon successful completion of the terms of the contract, the court will dismiss the prosecution. Section 53.03(e) provides the authority for the prosecutor or the probation department to place a child on deferred prosecution. Further, §53.03(i) provides authority for the court to defer prosecution. Offenses under Texas Penal Code Sections 49.04, 49.05, 49.06, 49.07 and 49.08 (intoxication offenses) as well as third or subsequent offenses under Alcoholic Beverage Code Section 106.04 or 106.041 (consumption of alcohol by minor and driving under the influence of alcohol by a minor) are not subject to deferred prosecution. Deferred prosecution periods are usually six months or less, and the court may add to the period of deferred prosecution following a previous order of deferred prosecution, but the combined period may not exceed one year.1 Adjudication §54.03 The adjudication phase of a juvenile proceeding is a hearing or trial on the merits of the charge petitioned by the government. At the conclusion of the adjudication phase, if a juvenile has been found to have engaged in delinquent conduct or conduct indicating a need for supervision (the equivalent of guilt), the court or jury must next decide whether disposition (the equivalent of punishment) should be made. If so, the appropriate disposition is determined 1

Tex. Fam. Code §53.03(j).

in a disposition hearing.

offense, that violates:

When can a Child be Adjudicated? The juvenile court has exclusive jurisdiction over children between the ages of 10 and 17 for delinquent conduct and conduct indicating a need for supervision. Delinquent Conduct is defined in §51.03(a) as:

A. the penal laws of this state of the grade of misdemeanor that are punishable by fine only; or

1. conduct, other than a traffic offense, that violates a penal law of this state or of the United States punishable by imprisonment or by confinement in jail; 2. conduct that violates a lawful order of a court under circumstances that would constitute contempt of that court in: A. a justice or municipal court; or B. a county court for conduct punishable only by a fine; 3. conduct that violates Section 49.04, 49.05, 49.06, 49.07, or 49.08, Penal Code; or 4. conduct that violates Section 106.041, Alcoholic Beverage Code, relating to driving under the influence of alcohol by a minor (third or subsequent offense). Conduct Indicating a Need for Supervision (CINS) is defined in §51.03(b) as: 1. subject to Subsection (f), conduct, other than a traffic

B. the penal ordinances of any political subdivision of this state; 2. the voluntary absence of a child from the child’s home without the consent of the child’s parent or guardian for a substantial length of time or without intent to return; 3. conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of paint and other protective coatings or glue and other adhesives and the volatile chemicals itemized in Section 485.001, Health and Safety Code; 4. an act that violates a school district’s previously communicated written standards of student conduct for which the child has been expelled under Section 37.007(c), Education Code; or 5. notwithstanding Subsection (a)(1), conduct described by Section 43.02 or 43.021, Penal Code; 6. notwithstanding Subsection (a)(1), conduct that violates Section 43.261, Penal Code; or 7. notwithstanding Subsection (a)(1), conduct that

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VOICE FOR THE DEFENSE

violates Section 42.0601, Penal Code, if the child has not previously been adjudicated as having engaged in conduct violating that section. State’s Determination Regarding Determinate Sentencing or Certification Before proceeding to an adjudication hearing, the prosecuting attorney must first determine whether to proceed with the case as an ordinary delinquency or seek a determinate sentence. Determinate Sentencing must be approved by a grand jury and then is presented in the juvenile court. Certification is not a question for adjudication but rather a request by the prosecutor to transfer the case to adult court for further proceedings. For a certification to occur, there can be no adjudication. The Adjudication Hearing When the State files a petition seeking adjudication, an adjudication hearing must be held to determine whether a child has engaged in delinquent conduct or conduct indicating a need for supervision.2 The timeframe for setting the hearing depends upon whether the child is in custody. There is no requirement that the adjudication hearing 2

Tex. Fam. Code §54.03(a).

24 VOICE FOR THE DEFENSE

October 2023

be completed within a specific timeframe, thus the court may postpone the hearing beyond the initial hearing date. The attorney for the child is entitled to at least 10 days notice of the adjudication hearing to prepare.3 The attorney for the child may elect to waive this ten-day notice. The adjudication hearing may proceed as (1) a plea of true pursuant to a plea bargain, (2) a plea of true with open sentencing, or (3) a plea of not true followed by a court or jury trial. Parent or Guardian A parent or guardian must attend all hearings that affect the child unless the court has exempted the parent.4 This statute applies equally to both parents. Should the child appear without a parent, the court must appoint a guardian ad litem to protect the interests of the child.5 Purpose of Adjudication During the adjudication phase of a trial, the only question before the court or jury is whether the child engaged in delinquent conduct or is otherwise in need of supervision. In In the Matter of C.L., the Houston Court of Appeals held that it was reversible error for the juvenile court to permit the prosecutor to argue to the jury during adjudication that it should adjudicate the respondent for her own good.6 If the court or jury finds that the child did not engage in delinquent conduct or conduct indicating a need for supervision beyond a reasonable doubt, the court must dismiss the case with prejudice.7 If the trier of fact finds that the child did engage in delinquent conduct or conduct to necessitate supervision, the court or jury shall state which of the allegations in the petition were founded by the evidence. The court shall also set a date and time for the disposition hearing.8 Disposition Hearing §54.04 The disposition hearing, the second phase in the bifurcated trial, shall be separate, distinct, and held after the adjudication hearing. §54.04(a). The only question at adjudication is whether the respondent engaged in the conduct as alleged in the petition. The two questions at disposition are: (1) is disposition necessary; and (2) what to do with a respondent who has been adjudicated. Because of the importance of this separation, the Houston Court of Appeals held it was reversible error for the juvenile court to permit the prosecutor to argue to the jury during 3

Id. §51.10(h).

Id. §51.115.

Id. §51.11.

In the Matter of C.L., 930 S.W.2d 935 (Tex.App. – Houston [14th

Dist.] 1996). 7

Tex. Fam. Code §54.03(g).

Id. §54.03(h).

adjudication that it should adjudicate the respondent for her own good.9 Required Finding for Disposition No disposition may be made unless the court finds that either the child needs rehabilitation, or that the protection of the public or the child requires that a disposition be made. If the court does not so find, the court must dismiss the child and enter a final judgment without any final or formal disposition.10 In essence this means that not all juveniles require disposition (punishment and rehabilitation). Unlike adults in criminal court, punishment is not always necessary. The proper phase of the trial for a probation officer to testify that a juvenile needs rehabilitation is in the disposition phase, not adjudication.11 As such, it is improper for a prosecutor to argue a need for rehabilitation or teaching a lesson during the adjudication hearing. Generally, No Right to Jury at Disposition In ordinary delinquency cases and CINS cases, there is no right to a jury at the disposition hearing. The right to a jury determination for disposition exists only where the child is in jeopardy of a determinate sentence.12 Jury Disposition in Determinate Sentencing Where a juvenile faces a determinate sentence, the juvenile may elect to have the jury consider disposition. This election must be made in writing and prior to voir dire.13 Evidence at the Disposition Hearing At the disposition hearing, the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses.14 These reports might also contain a thorough social history, school records, psychological or psychiatric evaluations, and other prior juvenile records. Although reports from probation and other employees or consultants are hearsay, they are expressly admissible by statute, and generally, these reports are ordered by the court as a matter of course. The attorney for the child is entitled to review all written material to be considered in disposition. Specifically, by statute, the court shall provide access to this material prior to the hearing. The trial court may properly 9

In the Matter of C.L., 930 S.W.2d 935 (Tex.App. – Houston [14th

consider such reports, even if defense counsel failed to read them, so long as the child and his attorney were provided access to them.15 Although counsel is permitted to inspect the materials, the court may order counsel not to reveal items to the child or the child’s parent or guardian if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.16 Parental Right to Address Court After all the disposition evidence is complete but before the arguments of counsel, parents have a right to address the court and give an oral statement concerning the needs or strengths of the child or the family or any other information relevant to a disposition. There is no requirement for the oral statement to be given under oath and the statement is not subject to cross examination except that the judge may ask clarification questions.17 Unadjudicated Conduct During a disposition hearing a child may: (1) admit having engaged in delinquent conduct or conduct indicating a need for supervision for which the child has not been adjudicated, and (2) request the court to take the admitted conduct into account in the disposition of the child. §54.045(a).18 If the prosecuting attorney agrees in writing, the court may take the admitted conduct into account.19 This would bar further prosecution of the unadjudicated conduct. But, be careful with unadjudicated conduct in another county over which exclusive venue lies in the other county. If dealing with another county, the court must obtain written permission from the prosecuting attorney for that county.20 Chapter 37 of the Texas Code of Criminal Procedure is applicable to juvenile proceedings.21 With this legislative change a few years ago, extraneous bad acts and offenses, character evidence, prior juvenile history, and basically any matter the court deems relevant to sentencing is admissible. This is an important change to understand as it significantly broadened the scope of disposition hearings. Counsel – No “Pro Se” Juveniles (in most instances) Under §51.10(b) a child must be represented by an 15

In the Matter of L.T.F., 656 S.W.2d 179 (Tex.App. 1983).

Tex. Fam. Code §54.04(b).

Dist.] 1996).

Id. §61.105.

Tex. Fam. Code §54.04(c).

Id. §54.045(a).

In the Matter of J.K.R., 986 S.W.2d 278 (Tex.App. – Eastland 1998).

Id. §54.045(b).

Id. §54.04(a).

Id. §54.045(c).

Id. §54.04(a).

Id. §51.17(c); overruling In re C.J.M., 167 S.W.3d 892 (Tex.App. –

Id. §54.04(b).

Fort Worth 2005). October 2023

VOICE FOR THE DEFENSE

attorney and that right may not be waived in: (1) a hearing to consider transfer to criminal court as required by Section 54.02 of this code; (2) an adjudication hearing as required by Section 54.03 of this code; (3) a disposition hearing as required by Section 54.04 of this code; (4) a hearing prior to commitment to the Texas Juvenile Justice Department [formerly Texas Youth Commission] as a modified disposition in accordance with Section 54.05(f) of this code; or (5) hearings required by Chapter 55 of this code. The child is entitled to be adequately represented by counsel, and therefore, must receive effective assistance of counsel.22 What is a Jury Trial in Juvenile Court? A jury trial in juvenile court is essentially an Adjudication Hearing with evidence being presented to a jury. The adjudication hearing is the equivalent of a guilt/ innocence trial in adult court. While a juvenile has a right to a jury for adjudication, they do not normally have a right to a jury for disposition. A right to a jury at disposition is only applicable to determinate sentence cases. Right to Jury Trial Although the United States Constitution does not guarantee a right to jury trial in juvenile proceedings, the Texas Constitution requires a jury in the district courts (Tex. Const., Art. V, §10) and the legislature has mandated 22

In re E.Q., 839 S.W.2d 144 (Tex.App. 1992), no writ.

26 VOICE FOR THE DEFENSE

October 2023

that the adjudication hearing must be by jury unless the right to a jury trial is properly waived.23 Waiver of a jury trial must conform to §51.09. The waiver must be in writing or on the record and both the juvenile and they attorney must waive the jury before the trial may be conducted by the judge. An incomplete waiver is error.24 In a marked difference from adult criminal proceedings, the court and prosecutor need not concur in the jury waiver. Under the Code of Criminal Procedure, the jury is required unless waived by the defendant with the consent of both the court and the prosecutor.25 But, in sections 51.09 and 54.03(c) there is no such restriction. Thus, the state cannot force a child to a trial by jury. This right to a jury belongs exclusively to the juvenile.26 Jeopardy Much like in criminal court, jeopardy attaches when the jury is sworn in a juvenile trial.27 In contrast, jeopardy attaches in a non-jury adjudication hearing when the juvenile court, as the trier of fact, begins to hear evidence.28 23

Tex. Fam. Code §54.03(c).

In re C.D.F., 852 S.W.2d 281 (Tex. App. 1993), no writ, see also In

the Matter of S.G., UNPUBLISHED, No. 10-09-0035-CV, 2009 Tex. App. Lexis 8003 (Tex. App. – Waco 2009) no pet. 25

Tex. Code Crim. P. Art 1.13(a).

Op. Atty. Gen. JC-0242, 2000.

In re C.T.C., 2 S.W.3d 407 (Tex. App. – San Antonio 1999).

Breed v. Jones, 421 U.S. 519 (1975); Garza v. State, 803 S.W.2d 873

Juvenile cases are treated like criminal cases in that the United States Supreme Court has held that the U.S. Constitution requires proof of delinquency beyond a reasonable doubt.29 Similarly, the legislature requires proof beyond a reasonable doubt in both delinquency and child in need of supervision cases.30 The state maintains the burden of proof in juvenile proceedings, just as they do in criminal cases. Likewise, the juvenile is presumed innocent unless and until all the essential elements of the State’s allegations have been proven beyond a reasonable doubt.31

Consistent with rules for adults charged with criminal conduct, Rule 609(d) of the Texas Rules of Evidence allows a juvenile to be impeached with his prior juvenile adjudications if that child is testifying in his own juvenile trial. Notice the distinction: generally, a prior juvenile record cannot be used for general character impeachment of a witness. The rule only allows impeachment of the juvenile on trial with his prior adjudications. However, if a juvenile witness is currently on juvenile probation that record can be used to impeach that witness under a theory of possible bias or prejudice (a juvenile on probation might have been offered a favor for his testimony or may believe he will receive a favor for his testimony).35

Age

Law of Parties

In order for the juvenile court to acquire jurisdiction, the State must prove the juvenile’s age. However, age may be proven by statements as admissions by the juvenile to a third party, even though the statement is based on hearsay.32 A juvenile who fails to object to jurisdiction because of age waives the right to appeal on the issue of age.33

One is responsible under the law of parties for an offense committed by another if he intentionally solicits, encourages, directs aids, or attempts to aid the other to commit the offense. The law of parties applies to juvenile trials. This is true for all offenses, including possession of a deadly weapon; however, the juvenile must have actual possession to support a finding of “use of a deadly weapon” in a disposition.36 A judge or jury is permitted to find a juvenile delinquent based upon the law of parties even though that theory is not pled in the petition. Doing so is not a variance in the proof from the charge because the law of parties need not be plead.37 For an example of factually insufficient evidence to support judgment of delinquency based upon the law of parties, see In the Matter of L.A.S.38

Proof Beyond a Reasonable Doubt

Rules of Evidence Generally, the rules of evidence applicable to criminal cases control in the adjudication proceeding. Section 54.03(d) provides: Except as provided by Section 54.031, only material, relevant, and competent evidence in accordance with the Texas Rules of Evidence applicable to criminal cases and Chapter 38, Code of Criminal Procedure, may be considered in the adjudication hearing. Except in a detention or discretionary transfer hearing, a social history report or social service file shall not be viewed by the court before the adjudication decision and shall not be viewed by the jury at any time. Further, Section 51.17(c) provides that except as otherwise provided by this title, the Texas Rules of Evidence apply to criminal cases and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under this title. The evidence must be competent, and the law of evidence with regard to the hearsay rule applies and is not relaxed.34 Rule 609(d) and Impeachment (Tex. App. 1991, pet. ref.). 29

In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970).

Tex. Fam. Code §54.03(f).

In re Winship.

In Re S.E.C., 605 S.W.2d 955 (Tex. App. 1980).

Tex. Fam. Code §51.042.

In Re A.A.A., 528 S.W.2d 337 (Tex. App. 1975).

Deadly Weapon Finding With adults, a finding of a deadly weapon affects sentencing options and incarceration. Respondents (juveniles) also face incarceration issues when faced with a deadly weapon finding. However, as previously stated it is important to note that the juvenile must have actual possession of the weapon to support such a finding. While CCP Art. 42.12 Sec. 3(g) applies to adults, §54.04(g) requires a finding of personal use by the respondent. Confessions While statements and confessions lend themselves to a lengthy topic, you should be aware of §51.095 which governs the admissibility of juvenile statements. One major difference between adults and juveniles is that before a 35

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105 (1974); see also Foster

v. State, 25 S.W.3d 792 (Tex. App. – Waco 2000). 36

In Re S.R.C., 59 S.W.3d 766 (Tex. App. 2001).

In the Matter of A.C., 949 S.W.2d 388 (Tex. App. – San Antonio

1997, no writ). 38

135 S.W.3d 909 (Tex. App. – Fort Worth 2004, no pet.). October 2023

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custodial written statement or oral recorded statement can be made or completed, the juvenile must be taken before a magistrate. Much like CCP Art. 38.22, §51.095 generally applies to custodial interrogations rather than consensual encounters or other types of interviews. Additionally, you must pay attention to the definition of “child” as provided in §51.02: a person ten years of age or older and under 17 years of age; or a person seventeen years of age or older and under 18 years of age who is alleged to have committed the acts alleged before becoming 17 years of age. If a person is 18 years of age or older, CCP Art.38.22 applies, even if the offense was committed before the person became 17 because §51.02(2) excludes a person who is 18 years old or older under all circumstances. Also, be aware of §54.03(e) which provides that extrajudicial statements obtained in violation of this title or of the constitution may not be used in an adjudication hearing. Determinate Sentences Transferred to Adult Court/ Probation A child may be placed on probation for a determinate sentence probation, and the length of the probation may extend up to 10 years. Much like an adult, an assessment of 10 years or less can be probated or suspended. The minimum term of supervision that must be served for determinate offenses is 2 years.39 A child placed on probation, even for a determinate sentence, can be supervised by juvenile probation only until the child’s 19th birthday. At the point, for probation to continue, supervision must be transferred to criminal court. Where the term of probation is scheduled to extend beyond the probationer’s 19th birthday, the juvenile court must discharge the child on his or her 19th birthday unless the court has previously acted to transfer supervision to the appropriate criminal court. Under §54.051, on motion of the state, the juvenile court shall hold a hearing to determine whether to transfer the child to an appropriate district court or discharge the child from probation. Without a timely motion of the state to transfer supervision, the probationer is automatically discharged from supervision on his or her 19th birthday. The district court exercising jurisdiction over a child transferred under §54.051(d) shall place the child on community supervision under CCP Art. 42.12 for the remainder of the child’s probationary period and under conditions consistent with those ordered by the juvenile court.40 Neither the restrictions of CCP Art. 42.12 Sec.

3(g) nor the minimum periods of supervision of CCP Art. 42.12 Sec. 3(b) apply to a case transferred from juvenile court. On a revocation after transfer to district court, the criminal court shall dispose of the violation in the same manner as if the court had originally exercised jurisdiction over the case, except the judge may reduce the prison sentence to any length without regard to the minimum terms imposed by CCP Art. 42.12 Sec. 23(a). Expunction Juvenile records are not subject to expunction like adult records (except for certain juvenile records from justice or municipal court). However, juvenile records are subject to the sealing provisions of §58.003. The effect of sealing records is similar to that of expunctions except they remain and are subject to a motion to unseal. Juvenile Sex Offenders Like adults, juveniles adjudicated of sexual offenses are subject to registration.41 However, the means and circumstances can be different, excused, or deferred. Essentially, juvenile registration requirements expire 10 years after the child completes the terms of the disposition or exits the system (adjudication, confinement, or probation). Some adults are required to register for life, but Texas Code of Criminal Procedure Art. 62.101 makes clear that this provision does not apply to an adjudication of delinquent conduct. Unregistration and Deregistration The Texas Code of Criminal Procedure Chapter 62 was revised beginning in 2005 to provide a change in the registration requirements for juveniles. Unregistration is essentially the ability of the court to excuse registration on motion of the respondent. The burden is on the respondent to convince the court by a preponderance of the evidence that protection of the public would not be increased by registration or that any potential increase in protection of the public is clearly outweighed by the anticipated harm to the respondent which would result from registration.42 Where a judge does not excuse registration, the juvenile judge may order public registration or nonpublic registration.43 Additionally, the court may defer its registration decision to await the outcome of treatment efforts.44 During a deferral period, registration is prohibited. Where a decision is made to defer registration and a determinate probation is transferred to adult district court, the decision on the deferral passes to the adult court 41

Tex. Code Crim. P. Chapter 62.

Tex. Code Crim. P. Art. 62.351.

Tex. Fam. Code §54.04(q).

Id. Art. 62.352.

Tex. Fam. Code §54.051(e)

Id. Art. 62.352(b)(1).

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as well. Thus, the criminal court could order registration. Deregistration is essentially the ability to petition the court to excuse or remove a prior requirement to register or petition the court to order the registration become nonpublic.45

is only treated as a conviction for purposes of certain subsections of section12.42, not for all purposes. So, while punishment may be enhanced by a prior juvenile adjudication, that adjudication does not bar consideration for probation under CCP Art. 42.12.

Adults in Criminal Court with Juvenile Priors

Conclusion

Adult Rules of Evidence Generally, the rules of evidence applicable to criminal cases refer to “convictions” rather than adjudications. Since a juvenile is adjudicated rather than convicted, many juvenile priors will have no effect on proceedings in criminal court. Adult Rule 609(d) and Impeachment While Rule 609(d) of the Texas Rules of Evidence does allow a juvenile to be impeached with his prior juvenile adjudications if that child is testifying in his own juvenile trial, it generally does not extend to nonjuvenile proceedings. In other words, the prior juvenile adjudication cannot be used to impeach an adult in a criminal proceeding. Specifically, Rule 609(d) states evidence of juvenile adjudications is not admissible, except for proceedings conducted pursuant to Family Code Title III, in which the witness is a party. Notice the distinction: a prior juvenile record typically cannot be used for general character impeachment of a witness. However, if a witness is currently on juvenile probation then that record can be used to impeach that witness under a theory of possible bias or prejudice (a juvenile on probation might have been offered a favor for his testimony or may believe he will receive a favor for his testimony).46

While juvenile cases share similarities to adult criminal cases, there are marked differences. Whether you are handling your first juvenile case, or 50th, make sure that you pay attention to the nuances of juvenile law outlined within the Texas Family Code. ______________________________________________ JoAnne Musick, at Musick Law Office PLLC, practices criminal, juvenile, family, and probate law and is a former Harris County prosecutor. She is board certified in both criminal law and juvenile law (Texas Board Legal Specialization). JoAnne twice served as President of the Harris County Criminal Lawyers Association and had served in TCDLA as well. She’s a frequent lecturer and writer. She can be reached at JoAnne@MusickLawOffice. com or 832-448-1148

Adult Punishment Enhancements Under Texas Penal Code §12.42, felony offenses can result in enhanced punishments for those previously convicted of felony offenses. When looking at a prior juvenile adjudication, certain adjudications are counted as “convictions” for purposes of §12.42. For purposes of Subsections (a), (b), (c)(1), and (e), an adjudication by a juvenile court under Family Code Section 54.03, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Youth Commission under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, is a final felony conviction. The important distinction is that the adjudication Id. Art. 62.353. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105 (1974); see also Foster v. State, 25 S.W.3d 792 (Tex. App. – Waco 2000). 45 46

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Things That Didn’t Turn Out So Well PAT RIC K M CC AN N As a young lawyer, and still as an old one, I make all kinds of mistakes. Some of these are things we can all relate to, such as screwing up small things such as filing something under the wrong cause number, or not capturing all the billable hours on an appointed case. Those are things I call “attention to detail mistakes.” Regrettably, I still make mistakes all the time. The only thing I can tell you is what my trainers in the service used to tell me: “Slow it down. Become smooth. Smooth is fast.” Other mistakes fall into the category of what I like to call, “In retrospect, that did not work out quite as I planned.” These are mistakes of overconfidence and headwork, i.e. I was shortsighted. They are the mistakes one can learn from, and NOT repeat, or at least not as frequently. I will attempt to allow you to learn from my mistakes. Maybe you can avoid some of the foolish things I have done over the years, because we can all hopefully learn from failures. If you have ever felt alone and that you are the only person to have made a mistake, let me tell you are not. Remember that and call me so we can have a laugh together. Here goes. Mistake #1. Taking on the wrong client. My very first hired appeal made me so happy I thought I was going to bust. I immediately filed several motions and was able to (1) get my client’s 4-year sentence converted to “shock” probation; (2) get his appeal bond cut in half; and (3) get a misdemeanor charge he had picked up in jail dismissed. Then his case was reversed and the COA panel rendered a judgment of acquittal, which almost never happens. You would think both the client and I would have been dancing in the streets together with joy, right? 30 VOICE FOR THE DEFENSE

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Wrong. The client sued me for malpractice because I did not get him out of jail sooner. Never mind the fact I was not hired until after he managed to get himself thrown in jail and commit a new offense inside. Never mind the good results. Adding insult to injury, I was also grieved. I can clearly recall driving back from Austin after arguing my first death penalty case to my very first grievance hearing. This was when all grievances got hearings. When I got there the panel simply shook their heads and said, “We have no questions for you, kid.” They dismissed the grievance and later the lawsuit was dismissed. Turns out my client defended himself at trial pro se, and I later learned [too late] from his sister that hired me that her brother suffered from a mental health disorder. So, please carefully vet your client, at least more carefully than I did. Look for warning signs, fire them swiftly if you are so inclined, file motions to withdraw if one is appointed. That way you can at least bring it to the judge’s attention that the 25-page manifesto in cursive they had a friend file about you may be coming from a very special place. Sometimes you will simply have to soldier on but at least you can establish that your client is, perhaps, not objective about their situation. In this line of work, we cannot completely avoid the difficult unbalanced client. Yet, we can avoid some. If we know about it, we can at least prepare. Prepare for the discontent and realize that their reaction is not about you, but their sadness/anger at their lot in life. Try to avoid taking on the wrong client early or learn how to mitigate the situation if possible.

Mistake # 2. Thinking things are fine. Back a decade or so ago I was working in an unnamed county defending an unnamed client. Let us call him Fred. Fred was a decent human being but he had some problems from an old head injury that caused him both seizures and fits of rage, as well as delusions. He committed violent offenses against some folks related to him. No one was hurt, but it could have gone the other way. These people knew Fred’s story and were some of the most understanding and sympathetic complainants one was ever going to find. They wanted Fred to get help, not be put in prison. Fred was eventually given a bond and the judge imposed counseling and medication as conditions. Now, one of Fred’s more interesting delusions was that he actually ran a multi million-dollar conglomerate across the world, and that the trial judge worked for him. Fred appreciated the trial judge’s work so much he sent him a handwritten check on a non-existent account and reported the enormous and completely ridiculous check to the IRS on a properly filled and mailed in 1099 form. The judge transfers the case and is rather annoyed. The first lawyer withdraws and the new judge appoints me because apparently I am “sensitive to mental health issues.” I meet with Fred and get along reasonably well with his family and decide that a guardianship and a finding of Not Guilty by Reason of Insanity might work best for everyone. I convince a very thoughtful and hardworking prosecutor to go along with me on this and I file the guardianship application, asking for a volunteer from the family. One steps forward and it appears we may get through this in a cooperative way. I was slightly off on this point. Fred liked my work so much he decided to pay me a quarter of million dollars in imaginary money he did not have. So, imagine my surprise when my CPA and I both received notice letters of due tax payments on the $250,000.00 he had filed a 1099 with the IRS about listing my non-existent payment! [Fred was a very conscientious taxpayer.] Since neither my CPA nor I had ever had anything like this happen, we called the IRS and luckily got someone who, after spitting up coffee laughing, told us over the phone to write a certified letter to his boss explaining the situation with any supporting documentation. We did so, and a few months later it was all cleared up. The ADA on the case chortled with laughter [are you seeing a trend here?] at my situation, but we determined that passing this on to someone else just shared the misery, so we plowed through it all, got my client a guardian, and the charges were disposed by an agreed NGRI order that acknowledged that the least restrictive environment for

our client was at home. He got a lot of support through an outreach program at the old state MHMRA agency, and last I heard was doing fine. The lessons from this little parable are several. First, do not expect things to ever go smoothly. Ever. Second, think creatively to solve problems in sentencing, disposition, and otherwise. Last, try to work as well as possible with all the officials you encounter because helping someone who is damaged is NOT ABOUT YOU. One more thing – try to keep good documentation in case the IRS comes calling. It helps. Mistake #3. Forgetting to check with co-counsel. In one of my first trials I worked with an experienced trial attorney who liked my appellate work and traded me doing the motions for me sitting with him at the trial of an habitual felon. The client was charged with possession with intent. The drugs were found in his pick-up truck, a working vehicle he used on job sites. I managed, after great effort, to exclude a piece of document evidence after attacking the prosecutor’s foundation. I was absurdly proud of myself. Turning to my more experienced friend I was crestfallen when he said “Well, Pat, that was really well done. Problem is we needed that evidence in to establish a question on ownership. Now go put that same thing into evidence.” This naturally caused confusion on the part of our friend the prosecutor, who is a good soul and still ribs me about this. Fortunately, the jury acquitted, and I learned to better coordinate with my co-counsel. Check with co-counsel before you do something. Mistake #4. Making bad caselaw. I was appointed to a burglary appeal. I was very excited because I had found what I was sure was a winning issue. The State never offered evidence of entry to show the home was burgled. Certain of success, I filed for a Petition for Discretionary review with the Court of Criminal Appeals. I was confident the CCA would immediately recognize my genius, grant the PDR, and decide my way. Oh, they granted PDR all right. The CCA immediately changed the case law and made circumstantial evidence of possession of goods from inside the house in close time proximity to the event proof of entry. How else could the person have gotten hold of the stuff? So, since my client had pawned the item almost immediately upon it coming into his hands, the conviction was affirmed. The case is called Poncio v. State. This taught me a valuable lesson that my Gunnery Sergeant tried hard to drill into my rather thick skull, “Sir, please do not say things cannot get worse. That is just begging for karmic justice, Sir.” So, consider whether you might make bad law before filing for review. October 2023

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Mistake #5. Not asking the right question. Even as a seasoned, experienced attorney, I still make mistakes. Back in 2014 I had a non-death capital where I had done a good job of investigating and negotiating for my client. However, he turned down the plea offer and we were immediately set for trial. As voir dire was about to begin, my co-counsel and I spoke to our client about his role during this process. He seemed to understand, and I proceeded to speak with the prosecutor regarding an evidentiary issue. From the corner of my eye, I could see our client express his confusion and bewilderment to my co-counsel. My co-counsel and I soon realized that our client did not have the intellectual capacity necessary to move forward. We asked to speak with our client’s family in the hallway outside the courtroom. It was then when our client’s sister told us that her brother was slow because he had been hit by a car when he was a child. I turned to our client’s mom and asked, “Ma’am, do you remember when I first met you and asked if your son had any history of mental problems?” She promptly replied, “Well, you asked me if he was crazy, not if he was stupid.” Unfortunately, we were denied a continuance to have our client examined for ID/MR. However, some great appellate lawyers on this issue and my client was later found incompetent to stand trial and the court of appeals

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reversed. Ask the right question. I hope these stories help you realize that we all make mistakes. We can all learn from them. We need to embrace our stumbles along the pathway to become better at this work. If you ever want to hear some more “Things that did not turn out so well”, please feel free to give me a call at 713-444-2826. It might be worth a laugh at least. Good luck in your practice. PF McCann _____________________________________________ Patrick McCann has been in solo practice in Houston since 1994. He is a former President of the Harris County Criminal Lawyers Association, a former President of the Fort Bend County Criminal Defense Attorneys; Association, a former legislative liaison for both organizations, former Chair of the Fort Bend Mental Health Defenders Advisory Boar, and a member of the Governor’s Specialty Courts Advisory Council. He was a founding team member of both the Harris County and Fort Bend County Veterans Courts. He is certified to handle death penalty cases at trial, on appeal, and in state and federal habeas cases. He is a retired Navy officer with service in Europe, at Central Command, in Bosnia, and GTMO, Cuba. He can be reached at 713444-2826 any time.

Congrats to Paul C. Looney, Wade B. Smith, & Clay S. Conrad on winning their Motion to Suppress. Their client was a passenger in the backseat of a friend’s car when they were pulled over for what officers claimed was an illegal tint on the windows and a non-matching paper license plate. Body camera video showed the officers went beyond what the law allows for a pat-down and was inconsistent with what the officers wrote in their reports. During cross-examination, each officer contradicted the others’ testimony multiple times. Armed with the transcript of the hearing, Clay drafted a memorandum briefing all the issues for the judge, and Wade gave closing arguments. The judge gave her ruling, agreeing that it was an illegal search, and granted the motion to suppress. This resulted in the State dismissing the case against their client. Way to go! Shout out to Sheldon Weisfeld and Cesar de Leon. They got all charges dropped against their client, who was accused of failing to report large cash transactions during a series of real estate deals in Hidalgo County. Fantastic work! Kudos to Gina Morgan and Spencer Robuck! Their client was charged with DWI 3rd or more. The two priors were pled a few years before just a couple of weeks apart in two separate counties. They focused on the lack of investigation regarding operating. Client was intoxicated, and admitted evidence showed the client was a .26 BAC at the time of the blood draw. Client was in the driver’s seat of the running vehicle, headlights were on, her seatbelt was fastened, and she told police that she was coming home from the bar. However, her car was parked and there was zero testimony or evidence as to how long it had been parked. They were able to exploit the lack of investigation to prove not operating while intoxicated and the jury agreed. Awesome! Way to go John Cedillo! This case began as a dispute between two neighbors in an apartment complex regarding a parking spot. After one verbal spat, the neighbor called police and claimed the client pulled his shorts down and exposed his penis to her. There were no witnesses to this conduct, and she alleged the client was standing on his second-story balcony, around 4 p.m., and the exposure lasted “around two minutes.” Officers arrived, took statements (client of course adamantly denied this ridiculous conduct), and decided not to arrest the client, and sent all parties back to their respective apartments. Later on, the State picked up the charges and arrested the client up on a warrant (he was clueless a charge was even pending). Fast forward to the trial, and the complainant tells the jury her story with some inaccuracies. She loses credibility with the jury when she stated (as she claimed to police on the scene) that she had neither argued or had any contact of any sort with my client before the alleged exposure. Mr. Cedillo put on other witnesses who stated they heard the complainant screaming at my client previously over this parking spot issue. The jury disbelieved the complainant’s story, and returned a not guilty verdict after an hour or so. Congrats! Great work by Steve Keathley and Gary Bower! They had a good win in July in Navarro County on a very complicated 1st degree felony – Injury to a Child. It involved allegations of non-accidental trauma to an infant, formerly known as shaken baby syndrome. It was a complex case that involved CPS officials, local law enforcement, and multiple Dallas/Corsicana doctors. Verdict of Not Guilty in less than an hour. Wow! High praise to Kelli Childress! Her client was charged in February 2017 with Capital Murder for the death of his 8-week-old daughter, after she was found dead in her swing. Her skull had been severely fractured and she had a massive hematoma on her brain. He had been the only person with the infant since the night before her death, and had found her lifeless that morning. The defense was able to show that the injury had happened several days prior to the baby’s death, that he was not responsible, nor even knew that she had suffered an injury. After six days of trial, the jury took only one hour to acquit the client. Amazing! Fabulous job by Greg A. Waldron and Jason L. Parrish! They obtained a Not Guilty verdict in the State of Texas v. Richard Grant Hightower in Angelina County. Mr. Hightower was falsely accused of Continuous Sexual Abuse of a Child and the Not Guilty verdict was rendered in less than 15 minutes. The defense was a true team effort as Dr. Aaron Pierce and Shellie Stephens provided excellent expert consulting services for the defense in defending Mr. Hightower. Incredible! Shout out to Patty Tress and Heather Fisher for getting criminal negligence on a 1st degree injury death case. This was originally an arrest for murder. Their client was indicted for injury to a child by omission. Prior to trial, the state tried to use Rule 1009 to submit certified transcripts of interviews with the client. However, that rule requires those transcripts be filed 45 days prior to trial and then allows 15 days for any objection. The rule allows the court to alter the time requirements with good cause shown. The State filed a motion requesting the dates be altered 3 days prior to trial. Ms. Tress filed a response stating they did not have good cause. The Judge denied the State’s motion. The EMTs stated they gave the client an IV as a courtesy. One EMT testified differently than he did at the CPS hearing and their Captain stated he falsified a document. Great job team! October 2023

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Rock on to Mark Daniel and Matt Smid for getting a Not Guilty on a capital murder case. During a robbery in December 2017, a sex customer shot two people, according to the Tarrant County Criminal District Attorney’s Office. One died at the scene, while the other became quadriplegic from bullet damage to the spine, dying four and a half years later in July 2022.The two were shot when they placed the accused in abject fear, attempted to extort money from him, and used their large bodies to assert control. Defense attorneys Mark Daniel and Matthew Smid argued the shooting was justiﬁed by self-defense, and an advisory on the law of that defense was included in instructions to the jury. At the end of six and a half hours of deliberation, a jury in the 371st District Court in Tarrant County found the accused not guilty of capital murder. Amazing win! Kudos x3 for Mark Hochglaube! Not guilty in a capital murder! Mark tried this case along with Gerald Graber. Their client was accused of being the shooter in a drug deal robbery. Two co-conspirators testified against the defendant and said he was the shooter. His cell phone and cell tower records put him in the area of the shooting and in communication with the co-conspirators. They obtained a specific jury instruction that 1) co-conspirator testimony alone was insufficient; 2) mere presence was insufficient; and 3) both co-conspirator testimonies and mere presence together were still insufficient. Jury acquitted and they got the case expunged.    Appellate victory in State v Kevin Caballero: Mark’s client is seen on video shooting at the complainants. The shooting appears to continue after the client is off screen. The State argued client was also responsible for the off-screen gunshots, but evidence adduced thru a Motion for New Trial that Mark prepared and pursued indicated there was a second shooter that the trial attorney had failed to investigate. The Court of Appeals reversed for ineffective assistance of counsel by the trial lawyer. Appellate victory in State v William Solomon: Mark’s client, while talking on a recorded jail call, made explicit threats to kill his mother who was the listed complainant in a misdemeanor harassment case. State filed a retaliation charge, but erroneously alleged his mother was a “witness” (who had already testified) when, in fact, she was a “prospective witness” (who had yet to testify). The Court of Appeals reversed and rendered an acquittal for insufficient evidence. Fantastic job, Mark! Congrats to our 2023 TCDLA Legislative Award Winners: Representative Salman Bhojani, Senator Juan Hinojosa, and Representative Joe Moody. Senator Hinojosa received the Legislator of the Year award (Senate) for his outstanding work on a forensic evidence portal bill and a bill eliminating testimony from hypnosis sessions as trial evidence. Representative Moody received the Legislator of the Year award (House) for having an even hand in chairing the House Committee on Criminal Jurisprudence and always looking for fairness and logic in bills affecting the penal code and code of criminal procedure. Representative Bhojani received the Legislator of the Year award (House - Freshman) for his attentive nature in serving on the House Criminal Jurisprudence Committee and his work on a retail theft bill and an Allen charge bill. Congratulations!

Representative Salman Bhojani (L) with Allen Place, Jr. (R)

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Allen Place, Jr. (R) with Senator Juan Hinojosa

Representative Joe Moody (L) with Shea Place (R)

A Base Knowledge Every Attorney Should Understand Regarding Substance Use Disorders & Mental Health Disorders MI C H E L L E SAN D L IN

It is no secret that life becomes overwhelming for individuals that find themselves involved in the legal system. Thank goodness for attorneys willing to represent and advocate for their clients! As we know, navigating legal concerns comes with a complexity that necessitates the services of trained legal professionals. As difficult and overwhelming as this can be for the average citizen, the needs and concerns are compounded for individuals experiencing mental health disorders and/or substance use disorders. These disorders are medical conditions that can impair an individual’s decision-making abilities and behavior. For many, the underlying issues and struggles of mental health and substance use are the driving forces behind the behaviors that initiate involvement in the legal system. Research has long indicated that continued involvement within the system and increased recidivism rates can often be linked to unaddressed mental health and substance use. According to the Substance Abuse and Mental Health Services Administration and Pew, more than 1 in 9 adults that report substance use disorder (SUD) and co-occurring mental illness (MI) are arrested annually while only 1 in 10 adults with co-occurring disorders received treatment for both conditions. As we see more individuals dealing with multiple issues concurrently, what are beneficial actions an attorney can take for a client that may be experiencing mental health or substance use issues while navigating and addressing legal concerns?

mental health disorders. Legal issues, mental health, and substance use struggles are by nature complicated and elaborate. Because substance use disorders and mental health disorders impact the mind, body, and spirit, it’s critical to have members on this team that can address the whole person. There are numerous addiction and mental health professionals that specialize in working with attorneys to navigate and advocate for the appropriate course of action and services that each individual client requires. We see better outcomes for clients that have the benefit of working with a multidisciplinary team. These teams, comprised of professionals working in several health areas, are the most effective means to execute a comprehensive treatment plan. Team size varies in relation to specific needs of the client. Depending on these needs, as determined by screenings in conjunction with an assessment, multidisciplinary teams often include, but are not limited to: primary physicians, therapists, psychiatrists, interventionists, case managers, treatment professionals, recovery coaches, mitigation specialists, and, of course, the attorney. Families are also important players in the overall equation (sometimes). Attorneys and families often employ the services of a Case Manager who specializes in working with a vast number of service providers. Case Managers regularly operate as point of contact between the team members and simplify the communications between legal and behavioral health professionals.

Power in numbers! Teamwork! Devise an appropriate multidisciplinary team as early as possible in the attorneyclient relationship. This team can be indispensable due to the complexities of substance use disorder with co-occurring

Back to basics! Just as attorneys and legal experts gather data, study evidence, and develop strategies, a similar course is necessary when assessing mental health and substance abuse issues. Circumstances and experiences

Create a Multidisciplinary Team for Your Client.

Initiate a Comprehensive Treatment Path for Your Client.

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are equally individualistic, thus there is no “one size fits all” when assessing and treating mental health and substance use disorders. Treatment plans are developed through screenings and/or assessments. Action plans can vary depending on the acuteness of the individual’s issues. A client’s appropriate course of action may be as informal as support from a Twelve Step community all the way up to hospitalization and stabilization. Continued assessment along the continuum of care is imperative. We know that individuals who deal with mental health disorders and/ or substance use disorders can suffer greatly when not receiving the most suitable treatment. Accelerated challenges can exist when individuals are receiving inappropriate services or have been referred to programs not equipped for the client’s specific issues. Here again, we can see the importance of behavioral health professionals that specialize in gathering data and making the appropriate referrals. There are several different levels of care that co-occurring treatment facilities may offer. It is essential to know what level of care is most advantageous for an individual to begin their recovery process. The fact gathering to make this decision begins at the initial screening and/or assessment by an addiction professional. We often see clients needing medical or psychiatric stabilization at an ER or psychiatric hospital to properly communicate with their attorney to address legal matters or be admitted into a co-occurring treatment facility. Thanks to the 2021 National Survey on Drug Use and Health executed by the Substance Abuse and Mental Health Services Administration (SAMSHA), we know that: • In 2021, 94% of people aged 12 or older with a substance use disorder did not receive any treatment. • Nearly 1 in 3 adults had either a substance use disorder or any mental illness in the past year, and 46 percent of young adults 18-25 had either a substance use disorder or any mental illness. • 12.3 million adults aged 18 or older had serious thoughts of suicide in the past year, 3.5 million made suicide plans, and 1.7 million attempted suicide.

calls from family members, hearings, court orders, and probation requirements to ensure compliance and positive outcomes. We similarly tend to see better outcomes and improvements with mental health and substance use clients when client’s have a comprehensive strategy developed to provide accountability in regard to the treatment plan and compliance. An important aspect of this accountability takes place when the client is an active team member and feels a sense of autonomy in decisions regarding their treatment and direction. Research shows that the number one predictor of positive outcomes is determined by the relationship between the service providers and clients. When the multidisciplinary team operates with congruence, nonjudgment, and accurate empathic understanding, clients have better treatment outcomes and are more successful in their journey compared to those individuals that face stigma and discrimination. An integral piece of accountability also pertains to the team itself. Regular treatment plan updates should be performed to determine the plan’s efficacy and any needs for adjustments. Accountability measures should be consistent, proactive, and flexible as the individual experiences transformation.

Conclusion

To summarize, many say “it takes a village to raise a child.” This sentiment rings true when working with a client that must navigate legal issues while struggling with an untreated mental health disorder and/or substance use disorder. Once these issues are properly addressed, clients often have a better chance to successfully resolve their legal circumstances and move forward with no further interactions with the court system. Advocacy for clients and appropriate services come in many forms and levels of intensity. A team of professionals working together can make a large impact on a client’s overall wellbeing. Freedom comes in many forms. For some, freedom is physical and not being incarcerated. For others, freedom can be internal such as freedom from anxiety, depression, Ensure Compliance / Accountability in trauma, and addiction. It’s a beautiful thing when an Following the Treatment Plan. Accountability! Accountability! Accountability! As individual that has struggled both external and internal an attorney devises a defense for the client’s best possible limitations is able to receive appropriate representation and outcome, mental health and substance use professionals treatment. For an in-depth conversation on any of these topics, also develop a path in the form of the treatment plan. Attorneys often spend a great deal of time and energy please reach out to Michelle McCall Sandlin, TCDLA holding a client accountable to the game plan, managing member and author. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Michelle M Sandlin, Therapeutic Consultant & Addiction Mitigation Expert, is the Founder & CEO of Holistic Path Management LLC. Working in the addiction treatment industry for over 14 years, she acquired extensive knowledge regarding substance use disorders, alcohol use disorders and mental health disorders. Michelle routinely provides advice for attorneys, judges, specialty courts, addiction professionals and treatment facilities. She specializes in collaborating in a team approach with criminal defense and family law attorneys to provide the best results for their clients by providing services such as: treatment placement, medical & location monitoring, case management, family education, detailed mitigation reports and expert witness. 36 VOICE FOR THE DEFENSE

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Welcome New TCDLA Members! August 16, 2023 - September 15, 2023

Regular Members

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October 2023

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Significant Decisions Report KYL E T H E RR IA N

What’s worse: the fact that soccer games can end in United States Supreme Court a tie or the fact that appellate courts publish opinions The United States Supreme Court did not hand ultimately resolved by concluding that a defendant waived down any significant or published opinions since the last or failed to preserve error? I think a published waiver case. Significant Decisions Report. At least I can get some nachos at the soccer game. But if you tell me I can blow a vuvuzela from the gallery during Fifth Circuit oral arguments, we might have to revisit this. Until then, The United States Court of Appeals for the Fifth I am probably going to start pulling waiver cases from the Circuit did not hand down any significant or published Report. opinions since the last Significant Decisions Report. TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the Texas Court of Criminal Appeals majority of the costs of our Significant Decisions Report. The Texas Court of Criminal Appeals did not hand We appreciate the Court’s continued support of our down any significant or published opinions since the last efforts to keep lawyers informed of significant appellate Significant Decisions Report. court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of 1st District Houston the United States. However, the decision as to which cases Monjaras v. State, No. 01-19-00608 (Tex. App.— are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a Houston [1st Dist], Aug. 17, 2023) reflection of the editor’s view of the case, and his alone. Attorneys. Jani Maselli Wood (appellate), Timothy Please do not rely solely on the summaries set forth Donahue (trial). below. The reader is advised to read the full text of each Issue & Answer. The defendant behaved nervously, opinion in addition to the brief synopses provided. averted eye contact, and did all of these things while in a This publication is intended as a resource for the high-crime area. Do these factors amount to reasonable membership, and I welcome feedback, comments, or suspicion? No. suggestions: kyle@texasdefensefirm.com (972) 369-0577. Facts. This is a Fourth Amendment search and seizure case. It is back before the First Court of Appeals Sincerely, after reversal from the CCA. The issue and answer before the CCA from the December 2022 Significant Decisions Report was: When officers give orders to keep hands where they can be seen, closely flank a suspect, and ultimately place their hands on a person, have they converted their consensual encounter into an investigatory detention requiring proof of reasonable suspicion? Yes, at least here they did. The First Court, having previously found no detention existed, now considers whether reasonable suspicion existed. Analysis. The State unpersuasively makes several arguments in support of reasonable suspicion. The State points out the ammunition discovered by officers post-detention, the “high crime” designation of the 38 VOICE FOR THE DEFENSE

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neighborhood, the defendant’s nervousness, and the fact that he fled. Post-arrest discoveries cannot inform predetention decision-making. Presence in a high crime area does not alone justify detention, nor does nervous behavior. And the record fails to reflect that the defendant fled when officers encountered him. Thus, officers detained the defendant without reasonable suspicion. Concurring (Goodman, J.). The result is correct, but the majority erroneously relied on evidence not considered by the trial court and then isolated facts for analysis rather than considering the totality of circumstances. Veal v. State, No. 01-22-00285-CR (Tex. App.— Houston [1st Dist.] Aug. 31, 2023) Attorneys. Alan Bennett (appellate), Stephen Blythe (trial), Shannon Riley (trial). Issue & Answer. Does the nature of electronic data stored on a cell phone (such as text messages, emails, and pictures) make the information immune from the staleness doctrine applicable to the issuance of a search warrant? Pretty much. Issue & Answer 2. When the State waits 192 days to obtain a search warrant for a defendant’s cell phone and does so only after the defendant’s attorney requested an order to obtain the phone from the defendant’s jail property, is the State’s search and seizure unreasonable under the Fourth Amendment? No. Facts. This is a burglary of a habitation case. The defendant was the girlfriend of the complainant. She broke into his house, hid in his closet, and then shot him in the chest when he later came home. When law enforcement arrested the defendant, they allowed her to bring her cell phone to the jail. The defendant’s phone sat in her jail property for months until defense counsel asked to download data in preparation for trial. The jail played the “give us an order” game and when defense counsel attempted to obtain one the State suddenly showed interest in obtaining search warrants to extract and review text messages. In support of the warrant, the arresting officer cited a conversation he had with the defendant in which she admitted she had a text conversation with a friend about holding or obtaining a Glock. The defendant objected to the issuance and complained that the facts cited in support of issuing the warrant had become stale. The defendant also complained that the delay in seeking and executing a warrant was unreasonable. Analysis. The information sought was information that would persistently remain on the phone and thus not subject to a staleness complaint. It would not be inappropriate for a trial court to assume that storing a phone on the day of arrest would have the effect of freezing in time the phone’s contents. As it pertains to the defendant’s unreasonable delay argument, the defendant did not properly complain about the delay in the trial court below for appellate review.

Dissenting (Goodman, J.). The defendant did complain about the delay. The delay was unreasonable. The case should be reversed. Comment. Defense counsel is now forced to alert the world that there is a defense interest in the phone (thanks to in In re City of Lubbock, No. WR-93,197-01 (Tex. Crim. App. Feb. 8, 2023)). This case is a data point in support of the concerns raised in Lubbock. Defense counsel should not have to shout from the rooftop “hey don’t forget there’s this phone over here chock full of evidence that might be good or bad.” Defense attorneys should be able to conduct a confidential investigation. 4th District San Antonio Pittman v. State, No. 04-21-00376-CR (Tex. App.—San Antonio, Aug. 9, 2023) Attorneys. Dean A Diachin (appellate), Paul J. Smith (trial). Issue & Answer. Can a trial court conduct a sentencing hearing on Zoom without the defendant’s explicit waiver of physical presence? No. Facts. This is a case involving the physical presence of the defendant during sentencing. After an in-person jury trial the trial court conducted the sentencing hearing via Zoom. The defendant did not explicitly waive his right to be present in-person. Analysis. The Court of Criminal Appeals has consistently interpreted presence as actual physical presence. In Lira v. State, 666 S.W.3d 498 (Tex. Crim. App. 2023), the Court of Criminal Appeals explained that the right to enter a plea in person in open court was a substantive right. The Lira Court’s recognition of the right as substantive had two important implications: (1) an in-person plea is not subject to SCOTX COVID-19 orders, and (2) an in-person plea is a right that can be dispensed with only when the defendant affirmatively waives it. In this case, “the governing statutory scheme for felony sentencing establishes a defendant’s absence for sentencing is only permitted by compliance with 42.14 of the Code of Criminal Procedure.” The circumstances by which the trial court can proceed by video are also welldefined. This case is like Lira in that the right to physical presence must be affirmatively waived before the trial court can proceed by video. Dissenting (Valenzuela). Sentencing is not important enough to impose an affirmative waiver requirement before dispensing with the defendant’s right to be physically present. Plus, none of the statutes that say the defendant must be present say that he must be present “in the courtroom.” In re Belmontes, No. 04-23-00293-CR (Tex. App.—San Antonio, Aug. 16, 2023) Attorneys. Joanne M. Sanderson (writ). Issue & Answer. An application for writ of habeas October 2023

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corpus requests three things: (1) that the applicant be produced in court by the government (known as the order issuing the writ), (2) that the court conduct a hearing on the lawfulness of the government’s restraint, and (3) that the trial court relieve the applicant from unlawful restraint. When a trial court reviews the pleadings and finds against the applicant on the issue of unlawful restraint, does it render the trial court’s wrongful refusal to issue the writ and conduct a hearing moot (and no longer subject to mandamus)? No. Facts. This is another Operation Lone Star case (an operation to arrest male immigrants and hold them without trial for indefinite periods and deny them access to the courts until they can get deported). The State arrested the defendant presumably for trespassing. The defendant eventually posted bond and the government deported him despite the pending charges. The defendant filed an application for a writ of habeas corpus challenging Operation Lone Star as a violation of equal protection— specifically the pattern of enforcement against only male immigrants. The trial court refused to issue the writ of habeas corpus (produce the defendant in court) or to conduct a hearing on the application or merits. Instead, the trial court denied the matter based on the pleadings only. The defendant filed the instant writ of mandamus asking the court of appeals to order the trial court to perform its ministerial duty—to order the State to produce the defendant in court and conduct a hearing. Analysis. Mandamus is the proper remedy when the trial court refuses to issue a writ of habeas corpus and conduct a hearing on the lawfulness of government restraint. A trial court’s decision to jump to the end of the equation by denying the ultimate relief sought by the defendant (discharge from restraint) does not render the court’s refusals moot. Because the Fourth Court of Appeals only recently held that Operation Lone Star is subject to Equal Protection challenges through a writ of habeas corpus, the mandamus should be denied with the hope that the trial court does the right thing upon reconsideration. Comment. “We think the trial court should have an opportunity to reconsider its decision.” Why? Is it offensive to order the trial court to follow the law? If it is, is it more offensive or less offensive than the government rounding up Hispanic men and holding them in violation of their constitutional and statutory rights? I think the most important takeaway from this case (and so many like it) is that fairness to the trial court is often paramount to the actual fairness that our constitutional and statutory rights seek to preserve. Collegiality over justice. Borton v. State, 04-22-00255-CR (Tex. App.—San Antonio, Aug. 30, 2023) Attorneys. Michael Gross (appellate), Paul Smith (trial). 40 VOICE FOR THE DEFENSE

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Issue & Answer. When it is clear from context what evidence the defendant sought to elicit before a sustained objection based on a well-known rule of evidence, must the defendant grovel for a different ruling in order to argue about the trial court’s error on appeal? Yes. Facts. This is an aggravated assault with deadly weapon case—an incident involving a firearm at an HEB gas station. Video surveillance shows a man arrive in a silver truck (identified at trial as the defendant) and the complainant arrive in a white car. The complainant tried to walk to the cashier kiosk on the side of the pump where the defendant was positioned. The defendant appeared to block the path of the complainant and the two men stood closely to one another until the complainant stiff-armed the defendant and pushed him into the side of his vehicle. The video next shows the defendant “taking an object from his side and raising his hand and arm up, pointing in the direction of the complainant at the cashier’s window.” An off-duty police officer witnessed the interaction and heard the defendant say, “I’m going to shoot you, motherf—er.” The defendant testified at trial that the combination of the complainant’s physical assault and his own physical disability put him in justifiable fear creating the need to display his firearm. The complainant testified that he saw the defendant pull out a chrome revolver from the corner of his eye. The defendant denied the complainant’s version of events. The jury heard the testimony of the HEB cashier. She was familiar with the defendant as a customer. She testified that she never saw the defendant draw his gun (testimony that was contrary to her initial statement to police). The defendant also sought to elicit reputation testimony from the HEB cashier. The trial court permitted the cashier to testify that the defendant was a respectful customer, but when asked about his reputation for peacefulness, the trial court refused to permit the cashier testify to “what other people told her” about the defendant. Analysis. The Texas Rules of Evidence permits a party to “claim error in a ruling to . . . exclude evidence . . . if the error affects a substantial right and, . . . a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.” Tex. R. Evid. 103(a)(2). The Texas Rules of Appellate Procedure requires a specific request, objection or motion to preserve error for appeal. Tex. R. App. P. 33.1. Here, it was clear from the record that Borton wanted to ask the HEB gas station cashier about his reputation in the community, first as to truthfulness and then as to peacefulness. *** When an appellant wishes to appeal the trial court’s decision to exclude evidence, he must have “put the trial court on notice as to what he

wants, why he thinks he is entitled to it, in a clear enough manner for the court to understand him at a time when the court is in the proper position to grant relief.” Here, once the trial court sustained the State’s erroneous objection to the witness testifying about reputation (what she knows from what other people say) defense counsel simply moved on. “There was no theory argued to the trial court as to why it should not sustain the State’s objection.” Comment. Remember the finger gun scene from Gran Torino? I know at least one SigHead somewhere thought this before reading this comment. We are a hive mind. State v. Flores, No. 04-22-00513-CR (Tex. App.—San Antonio, Aug. 30, 2023) Attorneys. Abner Burnett (appellate), David Siberthau (appellate), Amy Warr (appellate). Issue & Answer 1. An as-applied challenge to the constitutionality of a statute requires a court to look at how a particular statute is applied to the facts and circumstances of a particular case. It is a challenge raised after the parties have litigated the case sufficiently for the trial court to make such a determination. When a defendant makes an as-applied constitutional argument (federal preemption doctrine) through a motion to quash and the trial court conducts a hearing through which the defendant offers some evidence and the State offers none, has there been sufficient litigation to decide the constitutional issue of preemption—as applied? No. Issue & Answer 2. Texas Penal Code Section 20.05(a) (1)(A) makes it an offense to conceal an individual from a peace officer using a motor vehicle. Can a defendant derive a constitutional right to engage in this conduct and challenge the statute facially on the basis of his own Fourth Amendment right to essentially “avoid the police if you want?” No. Issue & Answer 3. Does Penal Code Section 20.05(a) (1)(A)(smuggling to avoid detection) violate equal protection because it is selectively enforced based on the race, ethnicity, and national origin of the transported individuals? No, not here. Facts. The State indicted multiple defendants for third-degree smuggling of persons. The defendants challenged their indictments on constitutional grounds and the trial court granted their motions to quash. Analysis 1. SCOTUS has adopted three rules to determine whether an act of Congress preempts state legislation in the immigration context: (1) if it regulates immigration—i.e., if it is “essentially a determination of who should or should not be admitted into the country”; (2) if the clear and manifest purpose of Congress was to completely oust state power in the area

of regulation; or (3) it is an obstacle to the accomplishment of the purposes of Congress. The defendant’s challenge is as-applied, meaning he is not asking the court to make the instant determination on the face of the statutes themselves. In the hearing on the motion to quash, the defendant presented some evidence but the State refused to present any evidence. The issue has not been sufficiently litigated for an appellate court to address and will likely require a trial to resolve the legal issue. Analysis 2. Unless a challenge is raised pursuant to the First Amendment, a facial challenge to the constitutionality of a statute must show “no set of circumstances under which the challenged statute would be valid.” The defendants fail to show why this rule should be different under the circumstances of this case. While there may be some illegitimate applications of the statute, the defendants have failed to show that all applications are unconstitutional. Analysis 3. “Prosecutors retain broad discretion in enforcing both the nation’s and state’s criminal laws . . . there is a presumption that a prosecutor acted within his or her duties and in good faith.” In a similar challenge before the Western District of Texas, the court applied a rational basis test to an equal protection challenge to a predecessor statute. The Western District found the statute to survive a rational basis test—“rationally related to the legislature’s stated purpose of strengthening the State’s border security measures and helping stem the rising tide of human smuggling and trafficking in Texas.” “We agree with the Western District of Texas.” 5th District Dallas Bordelon v. State, No. 05-22-00108-CR (Tex. App.— Dallas, Aug. 16, 2023) Attorneys. Bo Kalabus (appellate)(trial). Issue & Answer 1. In a bench trial, when a trial court admits an affidavit that should be excluded under the Confrontation Clause but promises only to consider the document for a narrow and seemingly unimportant purpose, does the trial court commit error in admitting the affidavit? No. Issue & Answer 2, 3 & 4. Is a search warrant targeted at computers in a person’s home invalid because it is supported by conclusory statements about how a single image of child pornography was linked to a defendant’s house, that pedophiles keep multiple images of child pornography, and basic statements regarding the affiant’s training and experience? No. Was a 5-month-old cybertip regarding a single image of child pornography stale at the time of the warrant application or execution? No. Did the affiant’s failure to indicate who owned the relevant IP address at the time of the image upload render the cybertip stale or irrelevant? No. October 2023

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Facts. This is a child pornography case. Microsoft alerted the National Center for Missing and Exploited Children (NCMEC) that one of its users had uploaded a single image of child pornography in an attempt to find similar images on the internet. NCMEC forwarded the investigation to local authorities who turned their attention to the defendant. Officers executed a search warrant and discovered 20 images of child pornography. At a bench trial the State and the defendant offered competing experts. The State presented testimony simply stating what officers found on the computer and the defendant presented testimony showing how the images and where they were stored on the computer could be indicative of passive downloads conducted unknowingly by a computer while its user browsed internet websites. The State also offered an affidavit from the vice president of NCMEC made in anticipation of a criminal trial. Analysis 1. The NCMEC affidavit had some features of a business record affidavit, but the defendant was correct to note that it went too far in its attempt to provide testimonial accounts of the crimes purportedly committed by the defendant. Testimonial out-of-court statements offered against the accused are inadmissible unless the prosecution can show that the declarant is presently unavailable to testify and the accused had a prior opportunity to cross-examine him. Here the State showed neither, but the trial court sort of sustained the defendant’s objection. The trial court admitted the affidavit 42 VOICE FOR THE DEFENSE

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but promised that it would only consider the document for the limited purpose of showing how the police began their investigation. On appeal the court will presume that a trial judge kept its promise and disregarded parts of a document it orally excised. Analysis 2, 3 & 4. The defendant complains that the affiant failed to connect the defendant to the pedophilic traits superficially discussed in support of obtaining the search warrant (specifically how possession of one image months ago would lead to the discovery of many images on a later date). The defendant also complains about the lack of explanation of how the IP address “came back to” the defendant’s address. [editorial note: the Fifth Court’s rationale is difficult to follow, the court does not explain why these arguments lack merit but does point out that the affiant gave a very thorough backstory leading up to what the defendant described as a mere conclusory allegation]. As it relates to the affiant’s failure to link the defendant, the IP address, and the home address together at the time of the purported probable cause (a single upload to the internet), the court will simply assume that the affiant did link these things together despite not articulating that she did in the warrant application. There is an unpublished case in Connecticut that says it’s okay to do this. Comment. About a half year ago we heard that someone uploaded an image of child pornography using a specific IP address, we linked the IP address back to the defendant (don’t ask how) by linking the old IP to an old

address where the defendant is presently living. Obviously, this man a sicko and will have so many images on his computer it will blow your mind. Can we have a search warrant? Pleeeease!?! I think this summarizes the warrant affidavit and the Fifth Court essentially disposed of the defendant’s complaints with the doctrine of “nuh uh, shut up.” I wish I could say the irony is in the fact that the court’s analysis is conclusory, but the court did cite a 2007 unpublished case from the Judicial District of Waterbury Connecticut and then discussed it for four pages. 7th District Amarillo Boes v. State, No. 07-22-00204-CR (Tex. App.— Amarillo, Aug. 15, 2023) Attorneys. Kristen Jernigan (appellate), William Hines (appellate), Angelica Cogliano (Appellate). Issue & Answer 1. Does tagging a person in a Facebook post violate a no-communication provision in a protective order in a manner sufficient to sustain a conviction for violation of a protective order? Yes. Issue & Answer 2. A juror rendered her verdict on a belief that the defendant’s failure to testify made him guilty. This was an understanding of law she got from watching Law & Order. When it is shown that the juror concealed her belief during voir dire and received specific instructions from the judge to not consider the defendant’s failure to testify, must a trial court disregard what happened in the name of preserving the sanctity of jury deliberations? Yes. Facts. After the defendant allegedly assaulted his thenwife a jail magistrate issued a protective order prohibiting him from communicating with her. On three occasions the defendant posted on Facebook and tagged his wife. After a jury found the defendant guilty, it was revealed that a juror based her verdict on a belief that a defendant’s

failure to testify made the defendant guilty. Despite having been instructed otherwise, this juror subscribed to the superior authority of the television show called Law & Order. The trial court denied the defendant’s request for new trial by finding the juror’s testimony inadmissible under Texas Rule of Evidence 606(b) (no impeachment of jury verdict except when outside influence brought to bear on deliberative process). Analysis 1. The defendant’s ex-wife testified that she believed the Facebook tags were intended as communication. The detective testified that he believed the posts were intended as communication. The posts constitute communication because they convey information. Analysis 2. Rule 606(b) prohibits inquiry into the jury’s deliberative process. The only exceptions are if an outside influence was improperly brought to bear on any juror or to rebut a claim a juror was not qualified to serve. An outside influence inquiry is limited to what occurs outside of the jury room and outside of the juror’s personal knowledge and experience. Here, there was no evidence that this juror shared her erroneous belief with other jurors. Other than the fact that this juror explicitly said she based her belief of the defendant’s guilt on the television show Law & Order, there was no evidence that the juror based her belief of the defendant’s guilt on the television show Law & Order [editorial comment: I know this doesn’t make any sense]. Because the defendant did not show an outside influence bearing on the jury’s deliberation, the trial court properly refused to consider the juror affidavit and properly denied the defendant’s motion for new trial.

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

Texas Criminal Defense Lawyers Educational Institute October 2023

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conflicting.” The defendant said the laptop was off-limits, but his girlfriend said they shared everything. In Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013), the CCA explained: that when the issue of apparent consent turns on a matter the computer’s owner didn’t “explicitly verbalize” under the Computer Security statute, the party asserting a statutory violation occurred must prove that the computer’s owner conveyed a “clear and manifest understanding” to the person who accessed the computer that the person who accessed the computer did not have the right to access the owner’s computer. The issue of breach of computer security was a swearing match. There was no evidence the defendant explicitly forbade access and the trial court was within its discretion to believe the defendant’s girlfriend. 10th District Waco

Comment. Here I go gaslighting myself again. Am I the stupid one? The affidavit said the juror relied on the TV show Law & Order . . . it was “the key piece of evidence or deciding factor.” How does the court conclude “[t]here is nothing in the record to show whether her guilty vote was based on her perception of a television show or on the evidence presented.” 9th District Beaumont Runyon v. State, No. 09-22-00043-CR (Tex. App.— Beaumont, Aug. 16, 2023) Attorneys. Corey Young (appellate), Tracy Pullan (trial). Issue & Answer. Law enforcement obtained a search warrant based on images of child pornography found by the defendant’s girlfriend when searching his computer. When the record reveals conflicting evidence regarding whether the girlfriend committed the offense of breach of computer security, does the trial court err to deny a motion to suppress the warrant? No. Facts. This is a possession of child pornography case. The defendant’s girlfriend had a strange feeling about him and decided to dig through his laptop files. She discovered folder labeled “girls” and discovered surreptitious video recordings of them having sex, of houseguests undressing, and child pornography. Law enforcement executed a search warrant based on this information. The defendant claimed his girlfriend violated the law (breach of computer security) and her illegal conduct tainted the search warrant. Analysis. “After careful review of the evidence, we conclude the evidence addressing the issue of whether Sally had Runyon’s effective consent to access the laptop is 44 VOICE FOR THE DEFENSE

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Bradshaw v. State, No. 10-22-00355-CR (Tex. App.— Waco, Aug. 2, 2023) Attorneys. Jessica S. Freud (appellate). Issue & Answer 1. Article 38.072 allows the State to sponsor hearsay testimony of a witness who receives the first outcry of sexual abuse from a child victim. When the victim insinuates sexual assault to Person One and later describes it in detail to Person Two, can the State sponsor the child’s hearsay testimony through Person Two? Yes. Issue & Answer 2. In 2020 the Legislature passed the Cost Act and raised court costs on a felony conviction from $133 to $185. The Cost Act explicitly states that the law in effect at the time of offense is what shall dictate court costs. When the parties agree that the trial court erroneously imposed newly increased court costs on the defendant, should the court of appeals dig up another reason to make the defendant pay $52? Yes. Facts. This is a sexual assault of a child case. The victim’s mother discovered the victim naked in her 18-year-old brother’s room (the defendant) and quickly took her elsewhere to ask questions. When the mother asked whether the defendant touched her, the victim said nothing and merely pointed to her mouth. The victim gave a more detailed account of sexual assault to a child advocacy forensic interviewer. The trial court permitted the State to sponsor the forensic interviewer as the outcry witness under Article 38.072 (permitting a hearsay testimony from the first person to whom a child describes sexual assault). The defendant argued that the proper Article 38.072 witness was the child’s mother. Analysis 1. Article 38.072 permits the State to sponsor hearsay testimony of the first adult receiving a child’s outcry of sexual abuse. Vague or general insinuations of sexual assault do not qualify as an outcry for purposes of the statute. When a child gives a general insinuation of

sexual assault to Person One, then later a more detailed description of sexual assault to Person Two, Person Two may share the hearsay account under Article 38.072. That is what occurred here. Analysis 2. When the Legislature passed the Cost Act raising court costs from $133 to $155, the Legislature explicitly stated that people who committed an offense prior to the effective date of the Cost Act shall only pay $133. But there’s another provision in a different code— Tex. Govt. Code § 51.608 that says that doesn’t count. So, the defendant must pay up. Dissenting (Gray, C. J.). Court costs are messy, and the Court shouldn’t try to resolve a case based on legal arguments of the Court’s own making. Comment. I follow a TikTok account that parodies the #AverageRedditor. The character wears a Scally cap with a khaki vest and a t-shirt with kittens on it. In his most popular video, the Average Redditor has an exchange with TSA at the airport: TSA:

Sir, do you have any metals on you?

AR: Um . . . yes . . . I do have metals on me. Let’s see copper, magnesium, iron, potassium . . . . do I need to provide you a list? TSA:

I’m sorry sir . . . what?

AR: You know I assumed that an agent for the Transportation “Security” (air quotes) Administration would be uneducated, however I did not expect that one would not even have a fifth grade level of education and not know the common elements in the human body. TSA: Sir, I’m just trying to know if you have anything on you that could alert the machine, a belt, a watch anything like that? AR: Well, those questions are fruitless, instead you should be asking me whether I have ammonium nitrate, since even a smooth brain could make a makeshift explosive device with a chemical compound. TSA: Whoa whoa who said anything about explosives? Hey, Terry, . . . pull this guy out of line he’s making me nervous. Is this a non sequitur? You decide. 14th District Houston Lewis v. State, No. 14-21-00691-CR (Tex.

App.—Houston [14th Dist.] Aug. 1, 2023) Attorneys. Brittany Lacayo (appellate), Marie Munier (trial), Nathaniel Munier (trial). Issue & Answer. A continuous sexual abuse conviction requires a jury to find two instances of sexual abuse separated by at least 30 days. When the trial court merely tracks the language of the statute and informs the jury it must finds the acts occurred “during a period that is 30 or more days in duration” without regard to whether the two instances were separated by 30 days. Does such a jury charge erroneously allow a jury to convict on two instances of abuse not separated by 30 days? No. Issue & Answer 2. Are six outcry witnesses too many outcry witnesses? No. Facts. This is a continuous sexual abuse case. At trial the state presented the complainant’s testimony and the testimony of the complainant’s mother as the outcry witness. The State then presented six additional outcry witnesses. Analysis 1. This court has previously sanctioned jury charges that track the 30-day language of the continuous sexual abuse statute. The court did not read such charge language to permit conviction on a lesser period then and it will not do so here. Analysis 2. The defendant only objected to a few of the six outcry witnesses and only raised a hearsay objection. The testimony offered by the four witnesses who recounted the allegations of abuse over the defendant’s hearsay objection was not as detailed as the complainant’s and her mother’s testimony. Concurring (Spain, J.). The majority favors an unpublished 14th Court Opinion where the CCA declined discretionary review over a published and more recent opinion. Comment. In any he-said-she-said case the complainant’s veracity or the accuracy of the complainant’s memory is at issue. The fact that witnesses are permitted to share hearsay accounts of the allegation is not excusable simply because they did not go into a lot of detail. “Hey, she told six people the exact same thing” is pretty powerful, even if you want to call it “harmless.” Garrett v. State, No. 14-22-00328-CR (Tex. App. [14th Dist.] Aug. 10, 2023) Attorneys. Mandy Miller (appellate), Zach Coufal (trial) Issue & Answer. A jury found the following summarized testimony sufficient to establish a second qualifying act of sexual abuse in a continuous sexual abuse prosecution: we were driving in his truck, my memory is blurry because he got me drunk like the times before, I remember him climbing off from me and telling me to put my clothes back on. Where the circumstances described are similar to those of the prior assaults, is this evidence sufficient to establish a second qualifying act of sexual October 2023

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abuse? Yes. Facts. This is a continuous sexual abuse case. The complainant testified that three incidents of abuse occurred: one in early November, one a week before Thanksgiving, and one at the beginning of December. The complainant testified that her memory regarding the third incident was “very blurry” and could only remember the defendant “climbing off ” her and telling her to get dressed. Analysis. The jury was permitted to consider the evidence and circumstances surrounding the occurrence of the first two acts in determining whether the third incident, vaguely described by the complainant, was the necessary second act of abuse separated by 30 days. What the complainant could remember was that the defendant got her drunk and the two were driving around in the defendant’s truck. Because this is how the other assaults occurred the jury’s assumption that the third incident was a qualifying act of sexual abuse was not irrational. Dissenting (Spain, J.). Disagrees that the complainant sufficiently testified to a second qualifying act of sexual abuse. Trotti v. State, No. 14-21-00536-CR (Tex. App.— Houston [14th Dist.] Aug. 15, 2023) Attorneys. Nicole DeBorde (appellate), Ted Doebbler (trial). Issue & Answer. When a defendant has an outburst before the jury then persists in arguing with the judge outside the presence of the jury, does his conduct justify exclusion from the courtroom while the trial proceeds? Yes. When evidence suggests that the defendant probably attempted suicide, does his conduct justify exclusion from the courtroom while his trial proceeds during his hospitalization? Yes. Facts. This is a continuous sexual abuse case. The state presented evidence that the defendant repeatedly raped and assaulted his wife’s daughter beginning when she was nine years old. On the first day of the trial the defendant had a verbal outburst as soon as his lawyer announced ready. When the jury entered the courtroom the defendant addressed the jury directly, begged them not to convict, and insisted that he did not commit the offense. The trial court excused the jury and attempted to admonish the defendant, but he continued to debate his innocence and the proceedings. The trial court removed the defendant from the courtroom to watch the proceedings remotely by computer. On the second day of trial the defendant was discovered in his cell after an apparent suicide attempt— he attempted to cut his throat with a razor. The trial court recessed the trial for eight days while the defendant was hospitalized. On the third day of trial, the defendant was not present, and his attorney moved for a continuance. The State presented evidence showing that the defendant was 46 VOICE FOR THE DEFENSE

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intending to obstruct the proceedings (a competency evaluation, jail calls where he strategized delay, selfinflicted wounds requiring hospitalization). The trial court found that the defendant voluntarily absented himself and resumed the trial. Days later the hospital discharged the defendant and he returned to jail but refused to be transported from the jail to the courtroom. Analysis. The defendant consented to his exclusion from the courtroom on the first day of trial. Despite his arguments that his conduct was not sufficiently egregious to deprive him of the constitutional right to be present, his conduct was persistent. The judge attempted to calm him by asking him to take a deep breath. When the trial court asked “do you want to be here for your trial” the defendant said he did not care and that he was ready to go back. The defendant’s attempt to kill himself was further evidence supporting the conclusion that he voluntarily absented himself from the trial. Even though sheriff reports indicated that the defendant’s injuries were merely “possible suicide,” the underlying investigation did not suggest that the wounds were inflicted by other inmates. Dissenting (Spain, J.). There is an issue of competency that requires remand to conduct a retrospective competency hearing. Comment. There was only one outburst in front of the jury. Everything else was an argument with the judge. In a world where the defendant lives and dies by what his attorney does and is often blamed for not articulating his complaints (about the State’s evidence, about stipulations made on his behalf, about raising self-defense, about elections for judge or jury punishment) we also blame the defendant for being obstreperous during trial. 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 • 3rd District Austin • 6th District Texarkana • 8th District El Paso • 11th District Eastland • 12th District Tyler • 13th District Corpus Christi/Edinburg1

Key:

Article: Code of Criminal Procedure Article . . . SCOTUS: Supreme Court of the United States; SCOTX: Supreme Court of Texas; CCA: Court of Criminal Appeals; COA: Court of Appeals; AFV: Assault Family Violence; IAC: ineffective assistance of counsel; Defendant: Appellant; CCP: Texas Code of Criminal Procedure.

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

Understanding the Role of Childhood Memory Cross of Child Sexual Assault Exams & Understanding Injuries Preservation of Error & Jury Charges Ethical Issues: Defense of Sex Crimes Forensic Interviews & False Accusation Cases Computer Crimes: Child Porn & Solicitation Jury Selection Punishment Phase: Pre-Trial & Trial Strategies Plea Bargain Agreements & Consequences Pre-Trial Investigation & Motions Experts Witness & Challenging Expert Testimony Grand Jury Packets

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Course Directors: Betty Blackwell, David Guinn, Brent Mayr, & Mark Thiessen TCDLEI Scholarships available at tcdla.com! Accident Investigation ........................................................................... Catherine Evans Blood & Alcohol: Hospital, Residual, & Forensic ........................ Amanda Culbertson Accident Reconstruction .............................................................................John Eftekhar Drugs & Medication..........................................................................................Don Egdorff Nuts, Bolts, & Emerging Issues ..................................................................... David Guinn Voir Dire – Intoxicated Manslaughter .....................................................Bobby Barrera Jury Charges ........................................................................................................Brent Mayr Closing ............................................................................................................Mark Thiessen Preparing & Presenting Mitigation & Punishment .................................Doug Murphy Coordinating with Civil Defense Counsel ............................................Daniel Harper P: 512.478.2514 • F: 512.469.9107 • www.tcdla.com • 6808 Hill Meadow Dr, Austin TX 78736