Voice for the Defense | Vol. 52 No. 10 - December 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. 10 • DECEMBER 2023

Start Your Recovery pg 17 Pardon Me - Let’s Talk Clemency pg 19 How Meru Can Help You pg 22 Motion to Set Aside Information for Unlawful Carrying of Weapon Charge pg 25 Proposed New Disciplinary Rules for Texas Prosecutors pg 30

January 26, 2024 Austin Southpark Hotel • Austin, Texas 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 .....................................................................Dr. 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 2 VOICE FOR THE DEFENSE December 2023 P: 512.478.2514 • F: 512.469.9107 • www.tcdla.com • 6808 Hill Meadow Dr, Austin TX 78736

VOICE

EDITOR Jeep Darnell | El Paso, Texas • 915-532-2442 jedarnell@jdarnell.com ASSISTANT EDITORS Anne Burnham | Houston, Texas John Gilmore, III | San Antonio, Texas Amanda Hernandez | San Antonio, Texas Sarah Roland | Denton, Texas Jeremy Rosenthal | McKinney, Texas Mehr Singh | Lubbock, Texas Clay Steadman | Kerrville, Texas DESIGN, LAYOUT, EDITING Alicia Thomas | 512-646-2736 • athomas@tcdla.com SIGNIFICANT DECISIONS REPORT EDITOR Kyle Therrian | McKinney, Texas 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

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.

FOR THE DEFENSE

Volume 52 No. 10 | December 2023

Features

17 19 22 25

Start Your Recovery Anchal Arora

Proposed New Disciplinary Rules for Texas Prosecutors Mike Ware

Pardon Me-Let’s Talk Clemency Sean Levinson How Meru Can Help You Mitch Adams Motion to Set Aside Information for an Unlawful Carrying of a Weapon Charge Stephanie Stevens

Columns

President’s Message John Hunter Smith

Chief Executive Officer’s Perspective Melissa J. Schank

Editor’s Comment Jeep Darnell

The Federal Corner Sarah Duncan Jacobs

Beyond the City Limits Shane Phelps

Ethics Laura Popps

Significant Decisions Report Kyle Therrian

Available online at www.tcdla.com Volume 52 No. 10 | December 2023 December 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 May Continued February Continued December ............................................................... ............................................................... ............................................................... December 15 CDLP | 16th Annual Hal Jackson Memorial Jolly Roger Criminal Law w/ DCCDLA Denton, TX December 18 CDLP | Mindful Monday: Optimizing Defense Through the Use of Subjective, Objective, and Medical Assessments Webinar

2024 January ............................................................... January 3 CDLP | Prairie Pups w/ LCDLA Lubbock, TX January 4-5 TCDLA | 43rd Annual Prairie Dog Lubbock, TX January 12 TCDLA | A Guide to DWI Cases Webinar January 19 CDLP | Riding for the Defense Waco, TX January 26 TCDLA | Defending Vehicular Crimes Austin, TX January 26 TCDLA | Financial Friday - Marketing Your Practice Webinar

February ...............................................................

February 1-2 TCDLA | Federal Law Gumbo New Orleans, LA February 7-10 TCDLA | DWI Defense Super Course SFST/DRE/ARIDE Austin, TX February 9 TCDLA | Financial Friday - - HR Basics: Sleeping with the Fishes Office Webinar February 14-18 TCDLA | President’s Trip Charleston, SC February 16 CDLP | Indigent Defense Dallas, TX February 22 CDLP | Mental Health Houston, TX February 22 CDLP | Setting Up the Appeal Houston, TX February 23 CDLP | Veterans Austin, TX February 23 CDLP | Capital Houston, TX

February 24 CDLP | Career Pathways Webinar February 27 TCDLEI Board Meeting Zoom February 29 - March 1 TCDLA | From Start to End Sugar Land, TX

March ............................................................... March 1 TCDLA Executive & Legislative Committee Meetings Sugar Land, TX March 2 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 TCDLA | Financial Friday - Paperless Office Webinar

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

April 5 CDLP | Riding for the Defense Longview, TX April 11 CDLP | Juvenile Training Immersion Program Austin, TX April 11 CDLP | Navigating a Changing World in Law and Inclusivity 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 Defense: Defending Freedom with Cases Involving DWI, DUI, & Marijuana Dallas, TX

May 13 CDLP | Mindful Monday: Mitigation Solutions for Dual Diagnosis Addiction & Mental Health Webinar

June ............................................................... June 11 CDLP | Chief Public Defender & MAC Training San Antonio, TX June 12 CDLP | Capital Litigation San Antonio, TX June 12 CDLP | Indigent Defense San Antonio, TX June 12 CDLP | Mental Health San Antonio, TX June 13 CDLP | Women Defenders San Antonio, TX June 13-15 TCDLA | 37th Annual Rusty Duncan Advanced Criminal Law San Antonio, TX June 14 TCDLEI Board, TCDLA Executive, & CDLP Committee Meetings San Antonio, TX June 15 TCDLA Annual Members’ Board Meeting San Antonio, TX

July ............................................................... July 3 TCDLA | Declaration Reading July 10-14 TCDLA | Member’s Trip South Padre Island, TX July 10 CDLP | Trainer for Trainers South Padre Island, TX July 11-12 CDLP | Riding for the Defense South Padre Island, TX July 13 CDLP | Orientation 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

Let’s Go Rangers... Houston We Have a Problem This past October and November was an exciting time if you are RANGERS fan. Finally, for the first time in the team’s 63 years of existence they won the World Series. In October, the Rangers drove through a thunderstorm and emerged dry. They went 11-0 on the road during the playoffs, a record unlikely to be matched. The success of 2023 was not an accident, it was based on a master plan that was executed to perfection. They played clean baseball. They hit for average and power. They had solid pitching. They won because they played better than everyone else for a month. The master plan consisted of drafting, international free agents, and developing players. Also, they accelerated the process by player selection in free agency. The final piece of the puzzle was having a winner as a coach and a leader in Bruce Bochy. So, the question becomes: How does the 2023 Rangers season correlate to a criminal defense practice? First, we are never out of the fight, just like the 2023 Rangers.. In the movie Bull Durham, Ebby Calvin “Nuke” LaLoosh (played by Tim Robbins) said, “I want to announce my presence with authority.” Sometimes that works. I hope every prosecutor knows and feels we are never out of the fight. Over the years, I have used baseball as an example during presentations in describing MVP trial lawyers. When I think of an MVP, my first choice is Cal Ripken, Jr., a/k/a “the iron man”. Ripken played Major League Baseball for 21 years as shortstop and third basemen. What made him great was tat he did the basics to perfection. He was consistent, he was steady, he was reliable. One of my mentors is my law partner Mike Wynne. He is like Ripken, he does the basics to perfection. It does not matter if it is a

criminal, civil, or personal injury case, he does the basics and leaves no stone unturned. Over the course of a career as a criminal defense lawyer we may get lucky enough to win an unwinnable case. However, I am convinced if we do the basics of our practice to perfection, we become consistent, steady, and reliable and win more cases. The Bull Durham character Crash Davis (played by Kevin Costner) said, “you be cocky and arrogant even when you are getting beat. Thats the secret. You got to play this game with fear and arrogance.” Now, I don’t believe a trial lawyer should be arrogant. I have a fear and apprehension in all my trials. I do believe we must have an internal arrogance that gives us strength in front of juries to negate the smell of fear. I will leave you with this parting quote from Bull Durham, “This is a very simple game. You throw the ball, you catch the ball, you hit ball. Sometimes you win, sometimes you lose, sometimes it rains. Think about that for awhile.” You know sometimes we get the Not Guilty’s, sometimes we get the Guilty’s, and sometimes we get the mistrials. I would love the NG’s, but I would take a rainout mistrial any day of the week. At least I know, I am still not out of the fight.

December 2023

VOICE FOR THE DEFENSE

CEO’s Perspective MELISSA J. SCHANK “Blessed is the season which engages the whole world in a conspiracy of love.”

Holiday Cheers and Strategic Gears: TCDLA’s First Quarter Successes and Plans While we extend our warmest holiday wishes to each of you, I hope your holidays are spent in a way that recharges your spirit. I’m eagerly anticipating a week off, spending time with my mother, who’s coming to town, spending time with family and friends, and having “me” time. And the best part is cooking and eating a feast and baking for Santa! When taking a break from my festivities, I have an ambitious to-do list I’ve promised to tackle during my time off. We’ll see just how many items I can check off! ‘Tis the season of holiday cheer, and at TCDLA we are excited to present you with our special gift: our strategic plan. As we wrap up the first quarter with a bundle of impressive accomplishments, we’re thrilled to unwrap the highlights and present them to you in this article. So, in the spirit of the season, I’d like to extend my heartfelt wishes for a holiday filled with joy and warmth.

TCDLA Strategic Plan Initiatives 1st Quarter Goals and Accomplishments July – September 2023 REVITALIZING THE ORGANIZATION Committee Members: Molly Bagshaw, Amanda Hernandez, Kameron Johnson, Rocky Ramirez, Sarah Roland, and Ted Wenske Staff: Mari Flores (Lead), Cristina Abascal, and Jayla Davis • Internal audit needs of staff - Mari Flores, Cristina Abascal, and Jayla Davis conducted staff interviews, posing 21 questions related to TCDLA benefits, training, job comfort, deadline management, value, success, coworker relationships, flexibility, and overall satisfaction. Overall employee morale is very high, with contentment regarding benefits, value, success, resources, job comfort, and performance. • Nexus Chair Committee Member on Budget 6 VOICE FOR THE DEFENSE

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-Hamilton Wright Mabie

Committee - Paul Tu, Nexus Committee chair, serves on the budget committee, bridging the gap between the two committees and ensuring the alignment of topics with the annual budget. • Board Report Card - The items on the board report card outline the annual duties of board members to be reviewed quarterly and regularly updated during board meetings. These cards are vital resources for the nominations committee in evaluating board renewals. • Baseline of Data (Dashboard) - A dashboard has been created to capture beginning data such as current membership number, member satisfaction, awareness of the mission statement, and board report card status. These will be updated quarterly as appropriate to see progress through the year. Placed on the website – Board dashboard.

ENHANCING COMMUNICATION & REORGANIZING RESOURCES Committee Members: Nicole DeBorde Hochglaube, Aaron Diaz, John Gilmore, Dustin Nimz, and Paul Tu Staff: Sonny Martinez and Alicia Thomas (Leads), Lucas Seiferman, Jessica Steen, and Ashley Ybarra • Create accessibility and navigation study survey – Staff created and compiled questions to ask members to get an idea of how comfortable they are with accessing and navigating the TCDLA website. Results showed that a majority of members were able to navigate relatively well but may struggle to find certain resources. Developed detailed instructions, including a video to access seminar materials. Looking at reorganizing the website, redoing the index, and having input for the member resources/benefits booklet. • Survey on technology needs/experience – Staff needed to gather data to understand how they can assist members with technology, see how comfortable members are with using their devices, and find out

how staff can improve on their ability to help members with using technology. The majority of members feel TCDLA meets their technological needs. Ensure all staff and new to turnover are knowledgeable and able to assist members with all technical aspects of livestream and webinar training, from registering to accessing Zoom, breakout rooms, and chats. Work on communication strategies to make members aware of resources they want that they didn’t know we had and how to access them.

UNDERSTANDING MEMBER RESOURCES TO INCREASE EDUCATION ACCESS Committee Members: Paul Harrell, Mario Olivarez, Rick Russwurm, Monique Sparks, Clay Steadman, and Judson Woodley Staff: Grace Works (Lead), Meredith Pelt, Kierra Preston, Miriam Duarte, Alicia Thomas, Cristina Abascal, and Lucas Seiferman • Remote participant option – We assessed the remote participant option for potential expansion. Surveys and reviews highlighted the importance of remote options for flexibility and cost savings. To improve communication, we’ll enhance marketing efforts and direct attendees to the webinar page for on-demand access and livestream registration. • Create virtual speaker training – We established a virtual speaker training for those who cannot attend in person, verifying on-demand attendance and having a test when completed. The site includes presentations from several Trainer for Trainers programs, resources like sample video guides, and cheat sheets for onboarding and best practices. • Committee to review survey data and identify action items - The committee will review access to CLE/ video bank, online/recorded seminars, mentorship/ referral for second chairs, roundtables, and member discount programs. Survey results indicate that 94% found our seminar schedule and marketing useful, with most signing up online or via email. However, 51% don’t believe advertising in the Voice led to their registration. The favorite seminars were Rusty, Sex Crimes, Capital, and DWI’s, with 72% preferring inperson, 16% livestream, and 11% on-demand options.

Our committee conducted a survey to assess member and volunteer satisfaction with our association’s benefits, as well as gather input for other initiatives. After drafting and finalizing the questions, we encouraged multiple email submissions to gather enough feedback. Data was used by focus groups to develop resources that align with member needs and desires. • Develop a survey to monitor member and volunteer satisfaction - Overall out of 119 people, 98% said we provide a good value for membership. Drawing from the responses to a recent survey, we have determined that most of the benefits offered by TCDLA are already accessible to our members. We’re actively working on a plan to better promote these member benefits to ensure our members have a clear understanding of what’s available to them. We will create an email, then a flyer, and update the website benefit page. • Intentional Volunteer Recruitment - We’ve simplified volunteer recruitment with a Volunteer Resource Guide. We started by asking in our survey, why some don’t volunteer, identified various roles, got input from the committee, and, lastly, we made a helpful volunteer guide to make this process smoother. Over all responses, out of 115 members 42% have volunteered, and 58% said they have not volunteered. Not knowing what opportunities are available to volunteer for and time prevents members from volunteering.

EMPOWERING & SUPPORTING MEMBERS & VOLUNTEERS Committee Members: Jeep Darnell, Lance Evans, Lisa Greenberg, Thuy Le, and Jenny Zarka Staff: Miriam Duarte (Lead), Keri Steen, Rick Wardroup, and Dajon White • Create membership survey and focus groups to identify desired benefits December 2023

VOICE FOR THE DEFENSE

Editor’s Comment JE E P DARNEL L

A Butt Whooping

If you are a criminal defense attorney long enough, you’ll get your butt whooped. I just did. I thought I had a good case, but two guilty verdicts and a 30 year prison sentence are tough to swallow. So, what do I do with that information? I could blame someone else. I could blame myself. I could blame the facts. I could blame the law. What is the most productive? I’ve given myself a week to get over the burn of this loss, and I think I can say that blame should be placed on all of the available options. I can say that the jury did not evaluate the evidence properly. I can say that jury selection did not go as I wished it had. I can say that there were certainly facts that did not help us. I can say that presumptions that exist in the law did not help us. However, the healthiest thing that I can take from the loss is the fact that I can objectively see each of those facts. Sometimes, I wish criminal trials were like game film from football games; I’d love to see what happened rather than just relying on the record; I’d love to see if my perceptions of the jurors were correct; I’d love to see if my cross-examination was as good as I thought it was; I’d love to see if the jury was paying attention during critical moments during the trial. The short and simple answer is that for me, or any of y’all, to get better, we have to take responsibility for what we could have done better and, maybe even more importantly, we have to accept what others did that we could not change. The facts and the law can be fickle creatures not in our corner, but we are stuck with what we are stuck with. Sometimes our clients can be problematic

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and we must work with who is sitting next to us during trial. Sometimes, an entire jury panel can be full of people who cannot be fair and impartial. We all hope we could run off such potential jurors, but we’re human and none of us bat .1000 in jury selection. Similarly, those jurors may not always get the nuances that we have developed during trial. What may seem like a critical fact established during the trial may not amount to much in the eyes of the jurors. We try to teach and explain throughout the course of the trial, but we cannot fix every juror and we cannot make them smarter; we are stuck with who they are. So, for the next one of you who comes in second place at trial, don’t be too hard on yourself. Be hard and be critical, but cut yourself a little slack. Accept the learning that should come from each trial, but do not let yourself take on the burden of blame for everything that went wrong. Know where the failures were on everyone involved and maintain a healthy understanding of objectivity. Keep your head high, chin square, and shoulders back, and move on to the next fight. Be safe,

Jeep Darnell

TCDLA AWARDS NOMINATIONS Do you know someone worthy of a TCDLA award? Nominate them now! Submit by February 23rd, 5 pm

• • • •

TCDLA HALL OF FAME

Minimum of thirty (30) years have elapsed since engaging in active practice of law or the candidate is deceased; Substantial commitment to defense of persons accused of crimes on appeal or at trial (not to be based solely on won-lost record or publicity, but in court excellence); and Significant contributions to the profession. Nominations for the award must be on the included form and submitted to TCDLA by the deadline.

TCDLA CHARLES D. BUTTS PRO BONO LAWYER OF THE YEAR • • • •

• • •

Recipient must be a member in good standing of TCDLA and the State Bar of Texas; and Paid court appointments do not qualify except in extremely exceptional cases where the work done far exceeded the pay. Nominations for the award must be on the included form and submitted to TCDLA by the deadline. This award is not required to be awarded annually.

TCDLA RODNEY ELLIS AWARD

Recipient must be a non-lawyer; and Exceptional commitment to advocacy; demonstration of specific endeavors related to criminal defense; spreading awareness of TCDLA initiatives and endeavors; having a positive impact on criminal defense attorneys. Nominations for the award must be on the included form and submitted to TCDLA by the deadline.

TCDLA PERCY FOREMAN LAWYER OF THE YEAR

NEW!

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Recipient must be a member in good standing of TCDLA and the State Bar of Texas. Nominations for the award must be on the included form and submitted to TCDLA by the deadline.

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Recognition of a lawyer licensed less than 10 years who has shown outstanding leadership in the past year – either in the representation of citizens accused and/or in his/her contribution to the efforts of TCDLA. Recipient must be a member in good standing of TCDLA and the State Bar of Texas. Nominations for the award must be on the included form and submitted to TCDLA by the deadline. This award is not required to be awarded annually.

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TCDLA RISING STAR AWARD

Go to TCDLA.com to see full list of criteria. Nominees must meet all of criteria for consideration.

December 2023

VOICE FOR THE DEFENSE

The Federal Corner S A R AH D U N C A N J ACO BS

Bruen Decision Article

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. Aren’t laws prohibiting possession of firearms by certain people and/or in certain places “infringing”? Who are “the people”? Prior to 2008, there were three basic interpretations of the Second Amendment in appellate decisions. United States v. Emerson, 270 F.3d 203, 218 (5th Cir. 2001) (abrogated by United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023) which is currently on review at the United States Supreme Court). First, the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia. The second simply recognizes the right of individuals to keep and bear arms. While the third theory tries to combine the other two, holding an individual right can only be exercised by members of a functioning, organized state militia who keep arms for and bear them as a part of actively participating in the organized militia’s activities. Emerson, 270 F. 3d. 227 & 230. The Fifth Circuit led in determining that the Amendment protects the individual right from Government limiting efforts. Emerson, 270 F. 3d 269. A statute or regulation is subject to a text and historical tradition analysis to see if it impermissibly infringes on the right. Emerson, 270 F. 3d 227 & 230. The Supreme Court comes to the same conclusion over a series of three decisions. First, they unequivocally declare that the Second Amendment is an individual right. District of Columbia v. Heller, 544 U.S. 570 (2008). Next, that individual right is made applicable to the States via the 14th Amendment. McDonald v City of Chicago, 561 US 742 (2010). Finally, the proper analysis for reviewing regulations attempting to limit this right is outlined in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 10 VOICE FOR THE DEFENSE

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--, 142 S. Ct. 2111, 2126 (2022). The Court specifically states that interpreting Heller and McDonald to require a two-step analysis, combining historical analysis with a means end scrutiny balancing test, is wrong. Bruen, 142 S.Ct at 2127. Bruen holds this is one step too many. Id. Heller and McDonald said nothing about means end scrutiny. Id. 142 S.Ct. at 1118. The proper analysis is asking whether the text covers the individual conduct in question, because if so, the Constitution presumptively protects that conduct. Bruen, 142 S.Ct. at 2127. Then, to rebut this presumption, the burden is on the Government to show that the regulation or law is consistent with the nation’s historical tradition of firearm regulation. Bruen, 142 S.Ct. at 2127. Sounds easy, right? As the late Justice Antonin Scalia said: history is hard and messy, and lawyers aren’t great at it. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 85657, 861 (1989) (heavily paraphrasing). These decisions focused more on where someone can have a gun, rather than who that someone is, leaving many questions open. How does someone choose which history is in the tradition and which is not? Who has the time to research all that? Do we need to get historians as experts? Bruen has opened a floodgate of litigation on the federal and state level. Two general theories based on history have emerged to support disarmament statues. Kanter, 919 F. 3d at 453 (Barret, J., dissenting). The “virtuous citizen” theory, which excluded some groups from the meaning of “the people and therefore, the scope of the Amendment.” United States v Binderup, 836 F.3d 348 (plurality op.); United States v Yancy, 621 F. 3d 681, 684-85 (7th Cir. 2010) (per curiam), United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010). The other is that everyone is part of “the people” and history supports the Government’s ability to strip the right from some. Kanter, 919 F. 3d at 453 (Barret, J., dissenting). Heller and Bruen dispense with the “virtuous citizen”

concept. Bruen, 128 S.Ct. at 2783. “The people” definition here should comport with the definition in decisions about other Amendments, and “refer to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. Bruen, 128 S.Ct. at 2783 (citing United States v. Verdugo–Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)). As such, the Court clarifies that “the people” in the Second Amendment is interpreted throughout the Constitution to “unambiguously refer to all members of the political community, not an unspecified subset.” Bruen, 128 S.Ct. at 2783. This brings us to whether the Government can strip that right away, as determined by similar history and tradition. Bruen explains that a regulation is consistent with American tradition only if similar regulations were widespread and commonly accepted when the Second Amendment was adopted. Bruen, 128 S.Ct. at 2783. Later and earlier laws can give some context, but the key period is around 1791. Bruen, 128 S.Ct. at 2783. The Court explains two methods of analogy. Bruen, 128 S.Ct. at 2783. If the regulation tackles a problem that existed both then and now, it is relatively straightforward. Did they have a distinctly similar regulation then? If not, the regulation is not consistent with American tradition and unconstitutional. Bruen, 128 S.Ct. at 2783. If the regulation deals with things that were unimaginable in the late eighteenth century, the Bruen Court says that “analogical reasoning” must be used to see if the questioned regulation shares a common “why” and “how” with a past one. Bruen, 142 S. Ct at 2132 (quoting McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at 599)). If yes, it is constitutional. This analysis has raised more questions

than it answered. Many Courts have found that history supports the intuitive proposition that the government can disarm dangerous people because that is necessary to protect public safety. Kanter, 919 F.3d at 451 (J. Barrett dissent); United States v. Daniels, 77 F.4th 337, 340 (5th Circuit 2023). This would seem to be the Courts intent given the statement in Heller that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626–27. However, this was not the question in Heller, so it is argued that is just dicta and not binding. Kanter, 919 F.3d at 453 (J. Barrett dissent); United States v Bullock, No. 3:18-CR-165, at 41 (S.D. Miss. June 28, 2023)(dismissing 18 U.S.C. § 922(g) (1) prosecution). Many of the past laws and cases cited to uphold disarmament statutes are based on reprehensible principles; such as disarming political dissidents, religious minorities, and “not white” people, all deemed to be “dangerous” at one point or another. Dred Scott v Sandford, 60 U.S. 393, 417 (1857); United States v Cruikshank, 92 U.S. 542, 547 (1875); McDonald, 561 U.S. at 767 (long discussion of race-based disarmament). These laws are some of the clearest analogues to the modern statutes, but is it possible to extract good rules from bad cases? See Rahimi, 61 F.4th at footnote 33; United States v. Daniels, 77 F.4th 337, 351 (5th Cir. 2023); Bullock, No. 3:18-CR-165; United States v Hicks, 649 F.Supp.3d 357, No. W:21-CR0006-ADA, 2023 WL 164170, at 4 (W.D. Tex. Jan. 9, 2023) (dismissing 18 U.S.C. § 922(n) case).

December 2023

VOICE FOR THE DEFENSE

Justice Scalia proved prophetic, and lawyers have made a mess of history. The decisions from Federal District Courts and State courts, both criminal and civil, are too numerous and distinct to list. Appellate decisions shift from circuit to circuit and statute to statute. The Supreme Court granted certiorari on Rahimi on the narrow grounds, but hopefully the decision will shed light on the questions left open by Bruen. United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023); U.S.S.C. Cause No 22-915. So where does that leave us? If your client is game, there are now many colorable motions to dismiss state and federal gun charges that are cognizable. Happy hunting. Circuit Cases about Federal Criminal statutes thus far: • 18 U.S.C. § 922(g)(1) (felon in possession) has been held unconstitutional as applied by the Third Circuit and upheld by the Eighth and Tenth Circuits. The Ninth Circuit has a case pending. Range v. Att’y Gen. Of United States, 69 F.4th 96 (3rd Cir. 2023); United States v. Jackson, 64 F.4th 95 (8th Cir. 2023); United States v. Cunningham, 70 F. 4th 502 (8th Cir. 2023); Vincent v. Garland, 80 F.4th 1197 (10th Cir. 2023). • 18 U.S.C. § 922(g)(3) (unlawful user drugs) held unconstitutional by the Fifth Circuit. United States v. Daniels, 77 F.4th 227 (5th Cir.2023). The issue is pending in the Second and Eighth circuits. • 18 U.S.C. § 922(g)(5) (alien) Has been held constitutional in the Eighth Circuit, United States v. Sitladeen, 64 F. 978 (8th Cir. 2023) and unconstitutional in the Eleventh, United States v Jimenez-Shilon, 34 F.3rd1042 (11th Cir. 2022). • 18 U.S.C. § 922(g)(8) (under protective order) unconstitutional in the Fifth, United States v Rahimi, 61 F.4th 443 (5th Cir. 2023), being heard by US Supreme Court in November 2023. • 18 U.S.C. § 922(g)(9) (misdemeanor family violence conviction) pending in the Second. • 18 U.S.C. § 922(k) (obliterated/ no serial numbers) pending in the Fourth. • 18 U.S.C. § 922(n) (under indictment) pending in the 5th, Appellate Cause No. 22-50834 from United States v. Quiroz, 629 F. Supp. 3d 511 (W.D. Tex. 2022), and 7th. _____________________________________________ Sarah Duncan Jacobs is an Assistant Federal Public Defender for the Eastern District of Texas. Prior to this she practiced state, federal, and juvenile criminal defense in the Dallas area for over a decade. She taught Texas Criminal Procedure at UNT College of Law for two semesters. She graduated from Thurgood Marshall School of Law and received her Bachelor of Fine Arts in Theatre from Webster University. 12 VOICE FOR THE DEFENSE

December 2023

Beyond the City Limits S HA N E P H E LP S

Fear and Loathing in Rural Texas

Navigating the Challenges of Small Jurisdiction Prosecutors

Texas is huge and a large percentage is rural. There are thousands of criminal defense attorneys across Texas practicing in small jurisdictions. While many metropolitan areas have well-established legal systems with seasoned prosecutors, the story can be radically different in rural jurisdictions. As a criminal defense attorney practicing in various counties ranging from large to small, I have often encountered the unique challenges of dealing with prosecutors who may not have the experience, expertise, or judgement necessary to uphold the prosecutor’s sworn duty to seek justice, not just convictions. This can be frustrating and stressful. Recently, I attempted to negotiate a resolution of a State Jail Felony possession of marijuana charge with a prosecutor in a local (to me), very small county. At every turn, the answer was “no.” No to a pretrial diversion; no to a reduction to a class A deferred adjudication; no to pretty much every suggestion I made to resolve the case so that my client would not be hampered by a criminal record for his foreseeable future. The prosecutor’s reason? It was just “too much marijuana,” despite the fact that it was only a little more than the minimum amount of marijuana to make it a state jail felony (5.3 ounces). The only option left was to either accept the offer of felony deferred adjudication, which would mean no application for non-disclosure for at least five years after completion of probation, or bow up to the State and take it to trial. The problem with trial is that is carries the very real risk of a felony conviction, a risk that I considered too great. What is left is a feeling of helplessness and, frankly, anger. In this small jurisdiction, there was nowhere to turn. In a larger jurisdiction, I could go over the head of the unreasonable prosecutor to a supervisor. When you are in a small jurisdiction, you are often dealing with the

elected prosecutor and, as we all know, there is almost no accountability for an elected prosecutor. So, why do rural practitioners face such frustrating circumstances and how do they deal with it? The “why” probably arises from the lack of a large, strong pool of attorneys from whom a qualified and competent prosecutor can be elected in one of these small jurisdictions. In my experience, lawyers living in these jurisdictions, some with no criminal law experience either as a defense attorney or prosecutor, who are struggling to maintain a law practice, see a steady paycheck and the health benefits and just put their name up for election. A second possible consideration is that really good lawyers living in small jurisdictions who have thriving and successful practices just aren’t willing to take the cut in pay that comes with being an elected prosecutor. Having said that, I don’t want to leave the impression that all small town prosecutors are unreasonable, inexperienced, or incompetent. I work in several jurisdictions in which the elected prosecutor is amiable, reasonable, and experienced, as are his or her assistants. The approach to handling these situations, I think, varies from defense attorney to defense attorney. Some lawyers are just better at, as St. Paul put it, “suffering fools gladly.” I admire that ability, but just can’t get the hang of it. My response when I have exhausted all of my efforts to work with a prosecutor in one of these jurisdictions is simply not to take cases in that jurisdiction. To date, I have eliminated at least three jurisdictions from my practice. I will leave those jurisdictions to defense attorneys who are more patient, less easily stressed, and more clever than me in working around such prosecutors. I am a member of the Rural Practice Committee for December 2023

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TCDLA, currently serving as co-chair with Paul Harrell. About once a month or so, we convene an online (Zoom) “roundtable” for members of TCDLA to discuss the issues rural defense attorneys deal with every day (and, of course, many of these issues translate to larger jurisdictions also). The situation I outlined earlier in this column had reached a critical point for me and I was able to vent during one of these roundtable sessions recently. Just being able to vent to colleagues who are uniquely positioned to appreciate my predicament and, more importantly, provide concrete strategies for practicing in jurisdictions with, to be tactful, difficult prosecutors, was enormously helpful to me. The Rural Practice Committee is packed with defense heavyweights such as Hall-of-Famer Tip Hargrove, Paul Harrell, Dean Watts, and Amber Webb, to name just a few. We are also usually joined by our president, currently the estimable John Hunter Smith, and our executive director, Melissa Schank. These roundtable sessions are open to all TCDLA members. Just look out for emails and other notices from our committee or members of the TCDLA staff. Here are just a few pointers I gleaned from my colleagues during the roundtable session: • Keep your cool. Once you have snapped and told a prosecutor how you really feel, you have likely ruined your ability to effectively represent clients in that jurisdiction. I learned this lesson the hard way. At a minimum, that particular prosecutor may never cooperate with you again. • Talk to other defense lawyers who regularly practice in that jurisdiction. Explore how they navigate the difficult prosecutor. Watch how they interact with the prosecutor and see what approaches get the best results. • Meet with the prosecutor about how he or she runs the office and what resonates with them. In short, suck up a little and make them feel that you think they are important. • Try not to condescend or patronize. Be patient and always professional. • Follow through with any requests from the prosecutor to provide case law or mitigation material. • Be tactful, but don’t miss an opportunity to educate a prosecutor on the law. • Cultivate friendly relationships with court personnel and the judge. Often, the judge can be a valuable ally. That has saved me on more than one occasion. • Be creative in offering alternatives to what a prosecutor may want in a given case. • Finally, one approach that has worked for me is to 14 VOICE FOR THE DEFENSE

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simply set your case for trial. Force the prosecutor to meaningfully evaluate his or her case under the pressure of having to try the case the following Monday. I have used this approach several times and have never failed to get the phone call the week before trial from the prosecutor with a more reasonable offer than was offered before. It can be a risky strategy, depending on your case, and it is important to have some sense of how the prosecutor will react under pressure. After this most recent roundtable session and the opportunity to bounce my frustrations off my colleagues and benefit from their suggestions and experience, I may reconsider a couple of the jurisdictions I previously banished from my practice. ____________________________________________ Shane Phelps is the founder and lead attorney at Shane Phelps Law in Bryan, Texas. Shane is a former United States Marine, a graduate of Rice University and the University of Texas School of Law, and is board certified in criminal law. He is in his second term as a member of the Board of Directors of TCDLA. Licensed in 1987, Shane is a former prosecutor and has been practicing criminal defense since 2011. He lives in College Station Texas with his wife, Jean.

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

New Disciplinary Rules That Actually Favor Texas Attorneys Facing a Grievance In September, 2023, two new disciplinary rules went into effect that represent a sea change in how grievances are processed in Texas.

Complainants Must Have Standing to File a Grievance First, Complainants must now have standing to successfully bring a grievance. It is no longer acceptable for just anyone, regardless of their lack of personal knowledge or connection to the events involving an alleged ethical violation, to serve as a complainant in a grievance matter. Instead, they must meet one of the following criteria: 1. A family member of a ward in a guardianship proceeding that is the subject of the grievance; 2. A family member of a decedent in a probate matter that is the subject of the grievance; 3. A trustee of a trust or an executor of an estate if the matter that is the subject of the grievance relates to the trust or estate; 4. The judge, prosecuting attorney, defense attorney, court staff member, or juror in the legal matter that is the subject of the grievance; 5. A trustee in a bankruptcy that is the subject of the grievance; or

6. Any other person who has a cognizable individual interest in or connection to the legal matter or facts alleged in the Grievance. Tex. R. Disciplinary P. 1.06(G)(2). It appears the last criterion is the one that will pertain to the large majority of grievances filed. Unfortunately, there is no guidance or definition provided as to the meaning of “cognizable individual interest” or “connection to the legal matter or facts alleged.” Unless additional rules are promulgated to address these issues, it is likely that these terms will be hashed out over the coming years through a process of trial and error. The Office of Chief Disciplinary Counsel (“CDC”) will make these “standing” determinations on a case by case basis, and respondent attorneys will appeal these determinations to the Board of Disciplinary Appeals (“BODA”), who will make the ultimate call. Eventually, the meaning of these terms will take shape into what is hopefully a cohesive application of the new rule. Regardless, this rule is a big step forward from prior rules which allowed anyone to file a grievance against a Texas attorney, even if they had no ties to the situation whatsoever.

Respondent Attorneys May Appeal

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Classification Decisions The second new rule allows respondent attorneys to appeal a classification decision that upgrades their grievance to complaint status, meaning they can ask BODA to reverse CDC’s decision to investigate the grievance and instead dismiss the matter. Tex. R. Disciplinary P. 2.10 (B). Prior to this rule, only complainants had the right to appeal at this stage, meaning they could ask BODA to reverse CDC’s dismissal of their grievance and send it back for further investigation. During the 2022-2023 Bar year, BODA reversed in almost 6% of these cases, sending 70 cases back for investigation that otherwise would have been dismissed.1 Now the playing field has been leveled a bit, and respondent attorneys may likewise challenge a questionable classification decision. Respondents most likely will not 1

State Bar of Texas, Commission for Lawyer Discipline Annual Report

win a large percentage of these appeals. But for those who do, it will save them the time, stress, and money of hiring grievance counsel, filing a written response to the allegations, attending a possible investigatory hearing, and defending a grievance at least through the investigation stage, if not further. This is a major coup for respondent attorneys facing the grievance process. In my role as grievance counsel, I have seen a fair number of grievances that should not have been upgraded to complaint status, but were. Prior to this new rule, there was no way to deal with that but to respond to the grievance, go through the investigation process, and hope that the case was ultimately dismissed. This new rule gives respondents a right to challenge faulty classification decisions in a simple and efficient manner, while at the same time providing an impetus for CDC attorneys to more carefully consider their classification decisions.

12 (2023). https://www.texasbar.com/AM/Template.cfm?Section=Annual_ Reports&ContentID=61567&Template=/CM/ContentDisplay.cfm

_____________________________________________

Laura Popps practices in Austin, Texas in the areas of attorney license defense, attorney ethics consulting, and criminal appeals. She has been board certified in criminal law since 1999. Laura is Co-Chair of the TCDLA Ethics Committee. She served for 10 years as Regional Counsel at the Office of Chief Disciplinary Counsel, where she directed litigation, investigations, and grievance administration for the Austin region and served as lead counsel in some of the Bar’s more complex litigation. She can be reached at laura@poppslaw.com or (512) 865-5185.

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December 2023

Finding Help: Substance Use Disorder Resource to Support Your Recovery A NC H AL AR O R A It is a common misconception that substance misuse stems from a lack of willpower — that someone with a drug or alcohol problem could easily quit if they really tried. However, substance use disorders are far more complex and less forgiving than many people realize.

How to Tell if Substances are Being Misused Drugs and alcohol are used for many different reasons including experimentation, relaxation, fun, or as a coping mechanism. When drug or alcohol use turns from an occasional recreational activity into a habit that causes problems in a person’s daily life, this progression may form into a substance use disorder. Drugs or alcohol can negatively affect every facet of our lives. At home, in school, at work, or in relationships, misuse may lead to: • Conflicts or stress in personal relationships • Declining mental health, physical health, or wellness • Difficulty meeting work and family responsibilities • Legal troubles • Uncontrolled debt

Signs of Substance Misuse There are various settings in which drinking and drug use is common. For many people, their substance use may be casual, and they are aware of their limits. But when drugs or alcohol become ingrained into or interferes with daily life, it may be time to reassess your dependency. Whether you or someone you care about has transitioned from an occasional or social drinker to a regular binge drinker, increased dosage of prescribed opioid medication, or progressed to harder drugs like heroin and methamphetamine, it’s important to seek help and take control of substance use. When drug use interferes with your daily life, there

may be a problem. If you notice that your use, or a loved one’s use, gets in the way of sleep, relationships, work, or fulfilling responsibilities — or if it’s significantly affecting your mood — then it may be time to reach out for support. If you’re ready, taking that first step can get you on a path to recovery. To explore the signs that you or someone you care about may have a substance use disorder, go to ncaad.org for a completely anonymous and confidential assessment. This assessment isn’t meant to diagnose or label drug or alcohol use, but it can indicate whether professional treatment should be sought. Whether you’re worried about a friend or family member or concerned about yourself, recognizing the signs of a drug or alcohol problem is an important first step toward recovery.

Recognizing the Root of Misuse We know that trying drugs or drinking alcohol won’t necessarily lead to misuse, but when it does, there are usually reasons that range from seeking pleasure or coping with pain, to genetics and social surroundings. While pleasure is a fairly easy concept to understand, pain is more complex. It comes in many forms and affects everyone differently. Whether someone is suffering from a physical injury, dealing with a mental health issue, recovering from a traumatic experience, or just trying to cope with the stresses of daily life, drugs and alcohol can seem like the easiest way to drown out the pain. But relying on substances to get through tough times offers only temporary relief and often causes additional pain for both users and their loved ones. Some individuals have a higher risk due to their family background or their surroundings. Recognizing these vulnerabilities is not an easy task, and removing December 2023

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yourself from certain situations isn’t always possible, but there are resources available to help. Whether misuse of drugs or alcohol is caused by seeking pleasure, masking pain, or your surroundings and living situation, it is important to understand that there are many ways to help overcome drug misuse, including therapy, medication, mindfulness, exercise, and other forms of treatment. StartYourRecovery.org provides helpful information for people who are dealing with substance use issues — and their family members, friends, and co-workers, too. We know that there is no one-size-fits-all solution to the challenges faced by those who misuse alcohol, prescription or illegal drugs, or other substances, and we aim to break through the clutter to help people at any stage of recovery. StartYourRecovery.org offers: • A single source of reputable, objective information about signs, symptoms, conditions, treatment options, 18 VOICE FOR THE DEFENSE

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and resources. • User-friendly and easy-to-understand information about treating and recovering from substance and alcohol use disorder. • Video stories of people who are successful in recovery. • A dedicated directory of treatment and support resources, in Texas and nationwide. Users can search by city, state, and ZIP code and refine results by age bracket, treatment type, and payment option. Help is available, visit StartYourRecovery.org to find treatment today. _____________________________________________ Anchal Arora is an outreach specialist with StartYourRecovery.org, helping individuals affected by substance use find the information they need to be at their healthiest, at every stage of life.

Pardon Me - Let’s Talk Clemency S E AN L E V IN SO N Many times prospective clients ask me about what forms of relief are available to someone who has served their sentence and is now on parole or have finished their sentence. Many of these people, interestingly enough, were convicted of a single offense years ago. Most of the time they got into trouble when they were young, were sent to prison, and then got out and led responsible lives. Many of them later finished their college degree, got married, and raised a family. However, their felony conviction from years ago is still on their record. Every time they apply for a job, they are reminded of that fact and have to explain to human resources the circumstances of the case. They understand that they committed a crime but are unhappy that this case continues to follow them years later. In short, they are seeking some type of clemency. In this article, I will discuss some of the relief options available to them and the process to apply.1

1. CLEMENCY When we talk about clemency, we are generally talking about commutation of sentence (“commutation”) and full pardon (“pardon”). The Parole Board publishes the clemency applications on their website with detailed directions. The application is detailed and requires things like previous addresses, employment history, justification for clemency consideration, criminal history, and police reports. Applicants are not limited by the application in their request for relief, they can supplement the application with additional items. These may include additional support 1

There are additional clemency options available, however I am only

discussing the two that I am most frequently asked about.

letters, employment offers, and other documentation including diplomas, certificates, psychological evaluations, treatment verification, etc. The Governor of Texas is granted the power to approve or deny clemency requests. However, before an application comes before his desk, the Texas Board of Pardons and Paroles must first review the case. Once an application is submitted to the Parole Board, a majority of the seven (7) Board Members must vote to recommend granting relief. If they have a favorable recommendation, the application then goes to the Governor. The Parole Boardis under no requirement to recommend every case and the Governor is not required to grant every case sent to him. A. Commutation of Sentence A commutation is commonly referred to as a “Time Cut.” In essence, an applicant for a commutation is asking the Board (and later the Governor) to change or end the parolee’s sentence. A commutation does not erase, seal, or expunge the parolee’s sentence; it merely terminates any further supervision. The conviction is still on their record but it essentially terminates the sentence to “time served.” A commutation may also be sought by someone serving a sentence with a death penalty sentence. Those applicants may apply for a commutation as well, generally to change their sentence to life imprisonment. Chapter 143. 51 et seq. of the Texas Board of Pardons and Paroles Rules lay out the requirements for a commutation. In sum, in addition to application, an applicant must have a recommendation of at least 2 of the 3 trial officials from the county of conviction. The trial officials are: the district attorney, the trial court judge, and the county sheriff. These trial officials must in their December 2023

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recommendation state:

B. Pardon

1. a statement that the penalty now appears to be excessive;

The other available remedy is a pardon. The act of the governor granting a pardon is an “unconditional act of executive clemency by the Governor which serves to release a person from the conditions of his or her sentence any from any disabilities imposed by law thereby”. 37 Tex. Admin. Code §141.111. A pardon does not in and of itself erase a person’s conviction. However, a pardon is then grounds for a later expunction order. 37 Tex. Admin. Code §143.1 et seq. lays out the types of cases eligible for a pardon. An offender who has completed their sentence, is in prison, or even on parole may apply for a pardon. “An offender may request a full pardon for one or more misdemeanor or felony convictions. The offender must complete or discharge his sentence(s) in order for the Board to consider a recommendation to the Governor to grant a full pardon. However, the Board may consider a full pardon application from an offender who is currently in prison if the offender indicates exceptional circumstances, or from an offender who has been under supervision for at least

2. a recommendation of a definite term now considered by the officials as just and proper; and 3. a statement of the reasons for the recommendation based upon facts directly related to the facts of the cases and in existence, but not available to, the court or jury at the time of the trial, or a statutory change in penalty for the crime which would appear to make the original penalty excessive. What is interesting to note is that the trial officials whose recommendation is needed are those who currently hold that position, which may or may not be the ones who held office at the time of the offense. As you can imagine, it potentially could be a challenge to get a recommendation for an officeholder who may not even have been born at the time of the offense and is now requested to submit a recommendation. That certainly is a hurdle in completing the application.

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two years with no violations in the year preceding the application date.”2 As with a commutation, the application for a pardon is contained on the Board’s website. For the most part the two applications are substantially similar. However, there is one striking difference between the two. Unlike with a commutation, a pardon application does not require the recommendation of a majority of the trial officials. The overall statistics regarding clemency grants are not on the side of most applicants. Although some requests are eventually granted, the overall odds for both types of clemency are low and this deters many prospective applicants. This brings me to my next question, what other options are there? What if the client doesn’t think they have a good chance at either clemency option?

2.PAROLE SUPERVISION MODIFICATION

A releasee is eligible for early release if: 1. The release has been under supervision for at least one-half of the time that remained on the releasee’s sentence when the release was released from imprisonment; 2. during the preceding two-year period, the releasee has not committed any violation of the rules or conditions of release; 3. during the period of supervision the releasee’s parole or release to mandatory supervision has not been revoked; and 4. the division determines: a.

that the releaseee has made a good faith effort to comply with any restitution order imposed on the release by a court; and

Many parolees, especially those who have been on parole for a long time, are ok with the fact they are on parole (and have a conviction), but simply are burdened with the day-to-day burdens of parole conditions. Many of these people have been on parole supervision for years, or even decades, and have been compliant and eased back into society without any issue. They have remained “case free” and have dutifully reported for years without any complications. The monthly (or even quarterly) reporting, paying monthly dues, and home visits are something they would like to be free of. There is an option for certain eligible parolees: Early Release From Supervision.

b. that allowing the release to serve the remainder of the releasee’s sentence without supervision and reporting is in the best interest of society. This is a great option for parolees who have been denied clemency, don’t think it will be granted, or simply just want to unburden themselves from active reporting. They can move forward without the worry of missing a required meeting or home visit or remembering to send in their monthly reporting fees. A parolee who wishes to be considered for Early Release simply need to be eligible and ask their parole officer to staff the case. _____________________________________________

A. Early Release From Supervision.

Sean David Levinson is the founder of the Levinson Law Firm. Sean’s office is a boutique law firm focusing on parole matters throughout the state of Texas. In addition to representing clients before the Parole Board, he also handles parole revocation hearings, Medically Recommended Intensive Supervision (MRIS) cases, Blue Warrant issues, pre-incarceration client consultations, and planning/ strategy sessions with defense counsel. He frequently speaks on corrections and parole law topics for bar associations across the state of Texas. As a native Spanish speaker, he consults with clients in both languages. Sean graduated from Arizona State University with a double major in Business Management (B.S.) and Broadcasting (B.A.). He received his J.D. from Northern Illinois University. Sean holds an LL.M. from the Benjamin N. Cardozo School of Law/Yeshiva University. He is licensed to practice law in Texas, New York, and Illinois. He lives in Austin, Texas with his Yorkie, Indiana Jones. He is a certified scuba diver and his favorite band is Counting Crows. He can be reached at (512) 467-1000 or BetterCallSean.com.

To be free of the regular responsibilities of parole supervision, a parolee can ask to be placed on what is called non-reporting parole supervision. These parolees are still technically on parole until their sentence expires but they do not have any parole reporting responsibilities, including monthly supervision fees. Technically, they are still subject to parole conditions. However, they do not have any scheduled meetings with their parole officer and do not have to “check-in.” They will be on parole until their maximum sentence date but are essentially “off the clock.” They are free to more or less live their lives without any parole appointments. Even though they are not actively supervised, any violations could theoretically cause them to “come back” to reporting responsibilities and/or administrative parole revocation hearings. Texas Government Code § 508.1555 lays out the requirements to be considered for early release.3 2 3

BPP-DIR. 143.330 I.A. Parole Division PD/POP 3.20.30 also largely mirrors 508.1555 for qualification for early release from supervision.

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Burglary and Criminal Trespass; How Meru Can Help You M ITC H ADAM S A client of mine (let’s call him Clyde) was going through it one night, as they say. He was having a selfinduced, chemically fueled mental episode, and found himself walking along a residential alley of a local community in the wee hours. Passing by the backyard of a particular house, he thought that the back porch light was blinking and calling to him to go inside. So, he hopped the hurricane fence, crossed the yard, stepped up onto the back porch, and by sheer luck found a key to the back door hidden underneath a flowerpot. As he believed that he had been called to the residence by the blinking porch light, he unlocked the door and let himself inside. The owner of the house woke to the sound of my client talking to himself in a guest bedroom. The owner grabbed his rifle from under his bed, found and confronted Clyde, called the police, and held him at gunpoint until officers arrived. When the responding police officer asked Clyde what he was doing in the house, he said only that God had led him to the house and that he was supposed to be there. Running his criminal history led the officer to learn that Clyde had a prior conviction for burglary of a habitation. Assuming that that’s what he was up to again, the officer arrested Clyde for burglary of a habituation, and he was subsequently indicted for burglary of a habitation. The indictment stated that Clyde “intentionally and knowingly enter[ed] a habitation, without the effective consent of [the owner], the owner thereof, and attempted to commit 22 VOICE FOR THE DEFENSE

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or committed theft of property.” But there was no evidence that Clyde committed theft or assault or some other felony, that he attempted to commit theft, assault or some other felony, or that he remained concealed in the house with the intent to commit a theft, assault or some other felony. As such, there was no evidence to support the second prong of the burglary statute, only the entering part. Therefore, this was not a burglary of a habitation. And without any evidence of a theft or attempted theft, theft as a lesser-included offense would arguably not be an option at trial. Assume with me that the district attorney’s office isn’t interested in an outright dismissal; Clyde’s case happens to be pending in a county where dismissals don’t exactly grow on trees. So, if you’re Clyde’s lawyer and you’re forced to go to trial, you will want the jury to have the option to find him guilty of a lesser-included offense. Chapter 37 of the Code of Criminal Procedure tells us that a lesser-included offense is one that can be shown by proof of the same or fewer facts required for the indicted offense. Tex. Code Crim. Proc. Art. 37.09. When determining whether an uncharged offense qualifies as a lesser-included offense in a jury charge, Texas courts use a two-step test that begins with the cognate-pleadings test. Ex Parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) (op. on reh’g). Using the cognate-pleadings test in the first step of its

evaluation, a court must consider not only the elements alleged in the charging instrument, but the facts alleged as well. If the elements and descriptive averments (nonstatutory manner and means allegations, for example) check each of the boxes of the contemplated lesserincluded offense, then the court can move on the second and final step of its evaluation: whether a normal, rational jury, based on the evidence, find that the defendant is guilty of only the lesser-included offense. Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993).

So, getting back to Clyde’s case, what, if anything, would this two-step evaluation lead to vis a vis a jury instruction for a lesser-included offense? We’ve already ruled out theft, as Clyde had not picked up anything while inside the house, nor was there any indication he intended to take anything. The same can be said of assault and whatever third degree or state jail felony one might reasonably expect to be alleged as an element of burglary of a habitation. Applying the cognate-pleadings test might lead one to think that burglary of a habitation and criminal trespass have enough in common to clear the first step of the analysis. Both are found in Chapter 30 of the Penal Code; sections 30.02 (burglary) and 30.05 (criminal trespass). Perhaps criminal trespass is the lesser-included offense available at trial. The burglary statute first requires that the defendant “[enter] a habitation, or a building (or any portion of a building) not then open to the public . . ..” Tex. Pen. Code §30.02(a). Furthermore, “‘enter’ means to intrude (1) any part of the body; or (2) any physical object connected with the body.” Tex. Pen. Code §30.02(b). As we all know, fullbody entry is not required; only a portion of the body, or an object a person is holding, such as a crowbar, will suffice. Compare that with §30.05. “A person commits an offense if the person enters or remains on or in property of another . . . without effective consent and the person: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so.” Tex. Pen. Code §30.05(a). So far, so good. Here, however, “’[e]ntry means the intrusion of the entire body.” Tex. Pen. Code §30.05(b) (1). There is a glaring and obvious difference between the way the two statutes define entry. For burglary, entry need only be a part of the actor’s body, or an object attached to him, whereas criminal trespass requires full-body entry. And Clyde’s indictment alleges that he “intentionally and knowingly enter[ed] a habitation, without the effective consent of [the owner], the owner thereof, and attempted to commit or committed theft of property.” It doesn’t specify partial or full-body entry. Does this lack of distinction matter? The Court of Criminal Appeals previously held that criminal trespass is a lesser-included offense of burglary. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Day v. State, 532 S.W.2d 302, 304-06 (Tex. Crim. App. 1975). However, the Court reversed itself only two years after the Goad decision, holding that, because a burglary is complete “upon only a partial intrusion onto the property,” and a criminal trespass requires evidence of entry of a defendant’s entire body, criminal trespass is not December 2023

VOICE FOR THE DEFENSE

a lesser-included offense of burglary, given the statutes’ differing definitions of “entry”. State v. Meru, 414 S.W.3d 159, 163-64 (Tex. Crim. App. 2013). Fortunately for Clyde, all is not lost. According to the reasoning and dicta in Meru, if a burglary indictment alleges that a defendant committed a burglary by “intruding his entire body into the habitation,” criminal trespass could then be considered as a lesser-included offense because such language would conform to the definition of “entry” in Tex. Pen. Code §30.05(b)(1). Id. at 164. So how does Clyde get his indictment amended? With the willing and cheerful cooperation of the prosecutor, of course. Short of that, the Meru Court stated that upon the filing of a motion to quash indictment because the allegation of entry does not meet the definition of “entry” in the criminal trespass statute, the State would have to dismiss and re-file to allege that entry was made by the defendant’s entire body. In a burglary indictment in which the State does not allege whether the defendant’s entry was full or partial, an instruction on criminal trespass as a lesser-included offense would be prohibited. However, a defendant who committed a full-body entry and [who] wants the opportunity for an instruction on criminal trespass can file a motion to quash the indictment for lack of particularity. This would force the State to re-file the indictment,

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specifying the type of entry it alleges the defendant committed and allow either party to later request an instruction on criminal trespass. Id. at 164, fn. 3 (emphasis added). So, the Court of Criminal Appeals giveth, and the Court of Criminal Appeals taketh away. The bottom line, though, is that if your evidence shows that your client made entry into the habitation or building in question with his entire body, in totem corpus as it were, file a motion to quash for lack of particularity, and the State will have no option but to re-file with language that conforms to the definition of “entry” in the criminal trespass statute. There’s hope for Clyde yet. _____________________________________________ Mitch Adams is a criminal defense lawyer in Tyler, Texas, and the current president of the Smith County Criminal Defense Lawyers Association. He graduated from the University of Texas in 1994 with a B.A. in English, and from the Texas Tech School of Law in 1998. While in Lubbock, he clerked for Chappell, Lanehart & Stangl, P.C., where he caught the bug to practice criminal defense law. He is the lucky husband of Kerry, and the proud father of Sarah and Charlie.

Motion to Set Aside Information for an Unlawful Carrying of a Weapon Charge S T E P H AN IE ST E V E N S When I first began practicing law in the early 1990s, the general premise of the UCW penal code provisions was that carrying a gun was prohibited, but a handful of exceptions existed. This has been the status of gun control law for quite some time. Some of the tough gun control laws began after the Civil War; commentators recognized a “most happy effect” throughout the state because “the firearm bill has robbed rowdies of their six-shooters, their bowie knives and their sword canes.”1 Since then, our legislature has truly constructed a paradigm shift for Texas citizens. Now, we assume you are legally carrying a weapon, with some exceptions that make doing so illegal. One of those exceptions is having a gun in a motor vehicle or watercraft while engaging in criminal activity, other than a Class C misdemeanor. Tex. Penal Code §46.02(a-1)(2)(A).2 Prosecutors in some jurisdictions seem to be filing charging instruments in these matters without any specificity of the “criminal activity” the defendant is allegedly engaged in. Although I found no cases directly on point for this issue yet, I found several analogous cases requiring “criminal activity” to be spelled out. I have attached a motion I prepared for this type of charge and I hope it may be of some assistance to others. Furthermore, I hope that by the defense bar challenging this issue, the appellate courts will require more specific language in future charging instruments. _________________________________________________________________________________________________ 1

https://www.washingtonpost.com/outlook/2019/09/12/when-texas-was-national-leader-g

un-control/ (Noting that strict Texas gun laws were not “some relic of a distant past.” Rather, it was not until the mid-1990s that the Republican Party dominance in Texas politics began “a loosening of firearms regulations in the name of personal self-defense.”). 2

A recent case may affect the age restrictions of 46.02. Firearms Policy Coalition, Inc. V. McCraw) 2022WL3656996 (N.D. Tex. Aug. 25, 2022)(holding

that 18 to 20 year olds should also be allowed to carry weapons outside of the home for purposes of self-defense). December 2023

VOICE FOR THE DEFENSE

NO. 111111

STATE OF TEXAS

IN THE COUNTY COURT

VS.

AT LAW NO. 9

JOE ACCUSED

BEXAR COUNTY, TEXAS

DEFENDANT’S MOTION TO SET ASIDE THE INFORMATION TO THE HONORABLE JUDGE OF SAID COURT: Joe Accused moves that the information filed in this case be set aside by virtue of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I §§ 10 and 19 of the Texas Constitution, and Articles 1.05, 21.01, 21.02, 21.03, 21.04, and 21.11 of the Texas Code of Criminal Procedure for the following reasons: I. The Information alleges, in pertinent part, that Mr. Accused: did intentionally, knowingly, and recklessly carry on or about his person a handgun in a motor vehicle that was owned by the defendant or under his control, and the defendant was engaged in criminal activity, other than a Class C misdemeanor that was a violation of a law or ordinance regulating traffic; II. The information is defective because it fails to state the type of criminal activity that defendant was allegedly engaging in. An information must provide more specific allegations “if the prohibited conduct is statutorily defined to include more than one manner or means of commission.” Saathoff v. State, 891 S.W.2d 264, 266 (Tex. Crim. App. 1994). The Amarillo Court Appeals has held that the term “criminal activity” must be plead more specifically in money laundering charges, noting that “criminal activity” is defined as any felony and that this could “comprise any one of hundreds of felony offenses, state or federal.” Deschenes v. State, 253 S.W.3d 374, 377-78 (Tex. App.– Amarillo 2008, pet. ref ’d). The court found that the broad statutory definition meant there were a “myriad of manner and means of commission.” Id. “Therefore, an indictment alleging the offense of money laundering should specify the offense which the State contends to be the relevant “criminal activity” and failure to do so renders the indictment defective.” Id. The San Antonio Court of Appeals agrees. Powell v. State, 2012 WL 3597199, *2 (Tex. App. – San Antonio 2012, no pet.) (not designated for publication)(finding sufficient a money laundering indictment that charged the criminal activity of delivery of a controlled substance, a felony.); accord, Armstrong v. State, 2013 WL 979197, *2 (Tex. App. – San Antonio 2013, no pet.)(not designated for publication). The issue of a ‘myriad of manner and means of commission’ is even more problematic in this case. The allegation of “criminal activity” here may include any crime above a Class C misdemeanor: felonies and misdemeanors, state and federal. Thus, even more possibilities exist for the defendant to have to guess from. “The accused is not required to anticipate any and all variant facts the State might hypothetically seek to establish.” Sanchez v. State, 182 S.W.3d 34, 45 (Tex. App. – San Antonio 2005), aff ’d, 209 S.W.3d 117 (Tex. Crim. App. 2006). See also McCormick & Blackwell, Texas Criminal Forms §25.1, Texas Practice Series 2021 Supplement, pp. 173-174. As the State has failed to allege the specific criminal activity at issue, the charging instrument should be set aside. III. The information is defective because it charges the culpable mental state of reckless, but does not state the acts or acts relied upon to constitute recklessness as required by TEX. CODE CRIM. PROC. art. 21.15. State v. Rodriguez, 339 S.W.3d 680, 683- 684 (Tex. Crim. App. 2011). IV. Because of these defects: 26 VOICE FOR THE DEFENSE

December 2023

1. The Information does not accuse defendant of an “act or omission which, by law, is declared to be an offense,” in violation of TEX. CODE CRIM. PROC. ANN. Art. 21.01. 2. The offense is not “set forth in plain and intelligible words,” in violation of TEX. CODE CRIM. PROC. ANN. Art. 21.02(7). 3. The Information does not state “[e]verything . . . which is necessary to be proved,” in violation of TEX. CODE CRIM. PROC. ANN. Art. 21.03. 4. The Information does not possess “[t]he certainty . . . such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense,” in violation of TEX. CODE CRIM. PROC. ANN. art. 21.04 and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I §§ 10 and 19 of the Texas Constitution. 5. The Information does not “charge[] the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant and with what degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment . . .” in violation of TEX. CODE CRIM. PROC. ANN. art. 21.11 and the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and article I, §§ 10 and 19 of the Texas Constitution. WHEREFORE, premises considered, the Defendant prays that the Court set aside the Information in the above-numbered and entitled cause. Respectfully submitted: /s/ Stephanie Stevens STEPHANIE STEVENS 2507 N.W. 36th Street San Antonio, TX 78228-3918 (210) 219-6410 sstevens@stmarytx.edu State Bar No. 01720800 Attorney for Defendant CERTIFICATE OF SERVICE I certify that a copy of Defendant’s Motion to Set Aside the Information has been electronically delivered to the District Attorney’s Office, Bexar County Justice Center, 300 Dolorosa, San Antonio, Texas, on February 15, 2022. /s/ Stephanie L. Stevens STEPHANIE L. STEVENS

December 2023

VOICE FOR THE DEFENSE

NO. 111111

STATE OF TEXAS

IN THE COUNTY COURT

VS.

AT LAW NO. 9

JOE ACCUSED

BEXAR COUNTY, TEXAS

ORDER On this the day of , 20 , came on to be considered Defendant’s Motion to Set Aside the Information, and said Motion is hereby (GRANTED) (DENIED)

___________________________________________ PRESIDING JUDGE

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December 2023

Welcome New TCDLA Members! Regular Members October 16, 2023 - November 15, 2023

Regular Members

Alec Shepherd - Houston

Endorsed by Marcus Dewayne Esther

David Wilken – Addison

Diona Johnson - Fort Worth

Je’Freshia Bell - Houston

Endorsed by Stephanie Pimental

Tayrin Cardenas-Wittenstein Austin

Endorsed by Rebekah Perlstein

Endorsed by Ariel Payan

Investigvator Members

Cheryl Chapell - Houston

Chantal Aguilar - Austin Endorsed by Katherine Mayer

Endorsed by Kimberly Simmons

Lorena Aziz - Austin

Marie Phelps - San Antonio

Endorsed by Lauren Stanbery

Juan Flores - Brownsville Endorsed by Cesar De Leon

Casey Gonzalez - Houston Endorsed by Murray Newman

Daniel Henry - Friendswood Endorsed by Natalie Ware

William Hon - Livingston Endorsed by Stephen D. Jackson

Haleigh Ickes - Plano Endorsed by Steven Wright

Mayla Juarez - San Antonio Endorsed by Michal J. Sawyer

Jenna Magaña - Denton Endorsed by Lindsay Pruitt

Monica Mendoza - Canyon Lake Endorsed by Brian Erskine

Raegan Minaldi - Beaumont

Endorsed by Katherine Mayer

Anna Goldberg - Austin Endorsed by Katherine Mayer

Inna Martinez Aguilar - Round

Rock

Endorsed by Randall Scott Magee

Krista Meyers - Austin

Endorsed by Jason Howell

Jesus Ochoa - El Paso Endorsed by Kimberly Simmons

Julius Ott - San Antonio

Endorsed by Kimberly Simmons

Katherine Russell - San Antonio Endorsed by Kimberly Simmons

Jordan Shannon - Dallas Endorsed by Stacie Lieberman

Endorsed by Katherine Mayer

Mi’esha Smith - Houston

Kathy Rider - Kerrville

Endorsed by Kimberly Simmons

Endorsed by Carol Twiss

Cortney Schwartz - Austin Endorsed by Katherine Mayer

Susan C. Urano - Austin Endorsed by Katherine Mayer

Eli Wilkerson - Lubbock

Endorsed by Santiago Balderrama

Rodrigo Vallejo - Houston Endorsed by Jose Ozuna

Lindsay West - Houston Adam Whiteside - Dallas Endorsed by Stephanie Gonzales

Endorsed by Ryan Gertz

Public Defender Members

Affiliate Members

Kaylie Morgan - San Antonio

Kimberly Andrade - El Paso

Douglas Young - Broomfield

Anthony Osso - Houston

Paulette Burgess - Austin Endorsed by Kimberly Simmons

Student Members

Rosalind Perez - Victoria

Madison Hagopian - Beeville

Caitlyn Collins - San Antonio

Lindsay Richards - Austin

Julia Hernandez - Weslaco

Patricia Limón De Rodríguez Houston

Endorsed by Aaron Diaz

Endorsed by Stan Schneider

Endorsed by Donnie Yandell Endorsed by Sandra Ritz

Endorsed by Kimberly Simmons

Endorsed by Kimberly Simmons Endorsed by Kimberly Simmons

Endorsed by Jay Freeman

December 2023

VOICE FOR THE DEFENSE

Proposed New Disciplinary Rules for Texas Prosecutors

(State and Federal) In Post-Conviction Actual Innocence Cases M IK E WARE The importance of voting cannot be overstated. Even if the current version falls short of our ideal, abstaining from voting April 1-30, 2024 could lead to its failure, which would be far worse than having no version in place at all. Read below for more details. Next April, members of the Texas bar will have the opportunity to vote for or against proposed new ethical rules for prosecutors. The importance of voting cannot be overstated. Even if the current version falls short of our ideal, abstaining from voting April 1-30, 2024, could lead to its failure, which would be far worse than having no version in place at all. Read below for more details. On September 29th, 2023, the Texas State Bar Board of Directors met in Fort Worth, Texas, and voted to petition the Supreme Court of Texas to order a vote of bar members on proposed amendments to Texas Disciplinary Rules of Professional Conduct. The proposed amendments include the following under Rule 3.09 (Special Responsibilities of [State and federal] Prosecutors). The proposed New Rule 3.09 (f), (g) & (h) reads as follows: (f) When a prosecutor knows of new and credible information creating a reasonable likelihood that a convicted defendant did not commit an offense for which the defendant was convicted, the prosecutor shall, unless a court authorizes delay, (1) if the conviction was obtained in the prosecutor’s jurisdiction: (i) promptly disclose that information to: (A) the defendant; 30 VOICE FOR THE DEFENSE

December 2023

(B) the defendant’s counsel, or if there is none, the indigent defense appointing authority in the jurisdiction, if one exists; (C) the tribunal in which the defendant’s conviction was obtained; and (D) a statewide entity that examines and litigates claims of actual innocence. Misc. Dkt. No. 23-9080 Page 25 (ii) if the defendant is not represented by counsel, or if unable to determine whether the defendant is represented by counsel, move the court in which the defendant was convicted to determine whether the defendant is indigent and thus entitled to the appointment of counsel. (iii) cooperate with the defendant’s counsel by providing all new information known to the prosecutor as required by the relevant law governing criminal discovery. (2) if the conviction was obtained in another jurisdiction, promptly disclose that information to the appropriate prosecutor in the jurisdiction where the conviction was obtained. (g) A prosecutor who concludes in good faith that information is not subject to disclosure under

paragraph (f) does not violate this rule even if the prosecutor’s conclusion is subsequently determined to be erroneous. (h) In paragraph (f), unless the context indicates otherwise, “jurisdiction” means the legal authority to represent the government in criminal matters before the tribunal in which the defendant was convicted. On October 6th, 2023, the Texas Supreme Court ordered a vote. Voting on this proposed amendment to 3.09 (and 11 other rule proposals) will take place by paper and online ballot April 1-30, 2024. I strongly urge everyone to vote in favor of the proposed amendment to Rule 3.09. What follows is a written statement I filed with the State Bar Board of Directors prior to their September 29th, 2023, meeting concerning the Innocence Project of Texas’ position on proposed amended Rule 3.09. I think it fairly and accurately sums everything up, including the organized, and at times shady and disingenuous, efforts of TCDAA and its individual members to completely kill the proposed amendment. And, honestly, to a large degree, they succeeded. But what was left standing is definitely worth a favorable vote and I urge everyone to please do so. For and in-depth analysis of this proposed new rule as well as an insightful rebuttal of the many spurious arguments Texas prosecutors have made in opposition, see Fordham Law Professor Bruce Green’s “Should Prosecutors Be expected to Rectify Wrongful Convictions?”10 Texas A&M L. Rev.167 (2023). (Last revised: 15 June 2023). See, also, Stanford Law Professor Nora Freeman Engstrom’s analysis of Professor Green’s law review article and his rebuttal of the arguments proffered by the Texas District and County Attorney’s Association “Innocence, Integrity, And Rule Reform”. https//legalpro.jotwell.com. For more information on the rules vote itself, including a copy of all of the proposed rule changes, go to texasbar.com/rulesvote. _________________________________________ Mike Ware is the Executive Director of the Innocence Project of Texas, a non-profit he cofounded in 2006. He has been a member of TCDLA since 1984 and board certified in criminal law since 1990. He is an adjunct law professor at the Texas A&M University School of Law. From 2007 to 2011 he took a four-year hiatus from private practice to serve as the first chief of the Dallas County District Attorney’s Office Conviction Integrity Unit under Dallas County District Attorney Craig Watkins. The Dallas County Conviction Integrity Unit was the first CIU in any District Attorney’s Office in the Country.

Mike Ware is the Executive Director and Co-Founder of the Innocence Project of Texas. He also served as the first chief of the Dallas County District Attorney’s Office Conviction Integrity Unit under Dallas County District Attorney Craig Watkins. The Dallas County Conviction Integrity Unit was the first CIU in any District Attorney’s Office in the Country.

December 2023

VOICE FOR THE DEFENSE

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December 2023

34 VOICE FOR THE DEFENSE

December 2023

Shout out to Rolando Arguelles & Veronica Legarreta! Rolando & Veronica received a Not Guilty for a client charged with murder in Bexar County. The client had confessed to killing his mother’s boyfriend, who was alleged to have molested the client’s 8 year old sister. Way to go! Kudos to Chuck Lanehart for his book: Fatal Exam: Solving Lubbock’s Greatest Murder Mystery The book involves many titans of the Lubbock criminal defense bar, prosecutors, police detectives and others from the 1960s and 1970s. Old timers will remember Alton Griffin, Shorty Salyars, Bill Gillespie, Butch Hargrave, Blair Cherry, Howard Davison, Bill Dean, Wayne LeCroy, John Montford and many others mentioned in the book. Wow! Congratulations to Clay S. Conrad and Wade B. Smith for securing a trial day dismissal on behalf of their client, who faced charges of indecency with a child amid a legal dispute with his ex-girlfriend. Throughout a yearlong legal battle, the attorneys diligently investigated the case, uncovering substantial inconsistencies in the allegations and identifying witnesses who contradicted key aspects of the charges. Despite the client maintaining his innocence, they prepared for trial and were poised to present their case before a jury. Just a week before the trial, the complaining witness recanted significant portions of her allegations. In a last-minute development, the State decided not to proceed with the case, and a dismissal was filed on the morning the trial was scheduled to commence. Exceptional work!

December 2023

VOICE FOR THE DEFENSE

Significant Decisions Report KYL E T H E RR IA N

Someone told me they find my comments more useful than the cases. I get it. I’ve always thought my opinions should be the law. And while they very much are not the law, I would be remiss if I did not share the appropriate way to cite them to courts in your briefing in an attempt to make them the law. Kyle Therrian, Significant Decisions Report, [vol#] Voice for the Defense [issue#] ([year]). I’m going to give it a year and then Westlaw my name to see how this works out. TCDLA thanks the Court of Criminal Appeals for graciously administering a grant which underwrites the majority of the costs of our Significant Decisions Report. We appreciate the Court’s continued support of our efforts to keep lawyers informed of significant appellate court decisions from Texas, the United States Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States. However, the decision as to which cases are reported lies exclusively with our Significant Decisions editor. Likewise, any and all editorial comments are a reflection of the editor’s view of the case, and his alone. Please do not rely solely on the summaries set forth below. The reader is advised to read the full text of each opinion in addition to the brief synopses provided. This publication is intended as a resource for the membership, and I welcome feedback, comments, or suggestions: kyle@texasdefensefirm.com (972) 369-0577.

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

Fifth Circuit

Perry v. Mendoza, 83 F.4th 313 (5th Cir. 2023) Issue & Answer. The Texas offense of telephonic harassment requires an intent to annoy, alarm, abuse, torment, or embarrass together with causing the telephone of another to repeatedly ring. Under this statute, must the repeated telephone calls be directed at the victim of the offense? Probably . . . Issue & Answer 2. Is an officer entitled to qualified immunity for arresting a person for telephonic harassment when the underlying telephone calls were repeated phone calls to the police to falsely report a crime? Yes. Facts. Perry called the police three times to report her neighbor playing loud music. Mendoza, the responding officer, did not hear loud music and believed these reports to be false. After consultation with a prosecutor, Mendoza arrested Perry for telephonic harassment. The State dismissed the arrest/charge for lack of probable cause after Perry spent 12 hours in jail. Perry filed a civil rights lawsuit and Mendoza claimed qualified immunity. Analysis 1. The court will assume that Mendoza lacked probable cause. “Indeed, there is some support in Texas law, as Perry argues, for the proposition that Sincerely, the harassing phone calls must be made to the intended victim.” See Scott v. State, 322 S.W.3d 662, 669 (Tex. Crim. App. 2010). Analysis 2. To overcome qualified immunity, a plaintiff must show that the officer (1) violated a constitutional right that was (2) clearly established at the time. An officer may maintain qualified immunity if mistaken about the law, so long as the mistake is a reasonable one. Here, Mendoza consulted with the district attorney regarding the legality of her arrest. Mendoza had reason to believe that Perry was making false reports using the telephone. Even if she was wrong about a technical aspect of the telephonic harassment statute “we cannot fairly require

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police officers in the field to be as conversant in the law as lawyers and judges who have the benefit of not only formal legal training, but also the advantage of deliberate study.” Comment. I share this case because, regrettably, one of us will eventually have to defend a person from telephonic harassment after they call the police on a neighbor. Probably in Midland (read on . . .). United States v. Williams, 83 F.4th 994 (5th Cir. 2023) Issue & Answer. Cellebrite is a cell phone data extraction software used by law enforcement when they seize and search a suspect’s cell phone. An officer plugs the phone into a computer and Cellebrite spits out a report. Must an officer be qualified to explain how Cellebrite works before the officer can testify to the contents of a Cellebrite report? No. Facts. The Government used a Cellebrite report to convict a sex trafficker. The Defendant objected to the Government’s introduction of this evidence after the police investigator “disavowed any particular knowledge of Cellebrite’s technology or of any malware that may have affected the data extraction.” The trial court permitted the investigating officer to testify based on his certifications as a Cellebrite Operator and a Cellebrite Physical Analyzer. Analysis. Federal Rule of Evidence 602 permits a witness to testify to a fact within his or her personal knowledge. Such a witness can testify “so long as the witness does not base his or her opinion on scientific, technical or other specialized knowledge within the scope of Rule 702.” A witness can testify to the results of a software program in prevalent use. “Williams claims that Cellebrite is complex technology, ergo, the operation of Cellebrite requires specialized knowledge . . . . But this ignores basic realities of life. All the officer did was run a computer program.”

assault of a child, but the abstract and application portions charged the defendant with non-consensual sexual assault. The State did not prove non-consensual sexual assault, but it did prove the complainant was under the age of 17. Is evidence sufficient to sustain the defendant’s three convictions for sexual assault of a child? No. Facts. The defendant was a teacher who had a relationship with a ninth grader. According to the complainant, the two had sexual intercourse regularly while she was a child. According to the defendant, he loved the complainant but his romantic relationship with her was nonsexual. The “indictment and jury charges were a mishmash of non-consensual sexual assault and sexual assault of a child under Texas Penal Code § 22.01.” According to the complainant’s testimony, she stayed the night at the defendant’s house nearly every weekend until others started to comment on her unusual closeness with the defendant. This is when she reported the abuse. But the only evidence touching on the issue of consent was a written statement the complainant gave to the school resource officer stating: “I am aware that I am a minor and unable to give consent.” • The body of the State’s indictment charged the defendant with 3 counts of sexual assault. It accused the defendant of genital-to-genital non-consensual contact. The abstract portion of the jury charge

Texas Court of Criminal Appeals Delarosa v. State, No. PD-0197-22 (Tex. Crim. App. Oct. 24, 2023) Attorneys. Matthew Gott (Appellate), Chad Etheridge (trial), Terry Bacon (trial) Issue & Answer. The State and trial court mishmashed the definitions of sexual assault of a minor and nonconsensual sexual assault. The indictment and jury charge had references to sexual December 2023

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defined sexual assault of a child in terms of nonconsensual sexual contact. The caption of the indictment described all three counts as “sexual assault of a child.” The case was tried as though the State meant to prosecute sexual assault of a child. • The opening paragraph of the jury charge informed the jury that the State indicted the defendant for sexual assault of a child. The trial court defined sexual assault of a child as non-consensual genital-togenital contact with language from the Penal Code. The application paragraphs of the jury charge were consistent with a sexual assault of a child prosecution and authorized conviction on a finding of genital-togenital contact with a child younger than 17 years of age. Analysis. Texas Penal Code § 22.011 defines sexual assault in two ways; “one definition depends on lack of consent, and the other depends on the age of the complainant. The statute dispenses with consent in the second scenario; it does not say that a child cannot consent; it does not mention consent at all.” The statute provides two relationship-based affirmative defenses to age-based sexual assault (marriage and a Romeo-andJuliet relationship). “These relationship-based affirmative defenses show that a child is capable of consent but that consent is irrelevant to the offense outside of these circumstances.” The indictment charged the defendant 38 VOICE FOR THE DEFENSE

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with three counts of nonconsensual sexual assault and the State was accordingly bound to prove the absence of consent. The State failed to do this and failed to prove its case. [T]he court of appeals erred when it asserted its certainty that under a proper jury charge the jury would still have convicted [the defendant] given his [failure to contest the issues and instead claiming the absence of a sexual relationship]. Appellant’s denial of any sexual contact does not support an inference of non-consensual contact. It would be anomalous to find evidence of a crime in a defendant’s testimony that he committed no crime. Dissenting (Keller, P.J.). The indictment was defective, but it at least charged the defendant with sexual assault of a child in a defective-but-sufficient-toconvict manner. Dissenting (Yeary, J.). The offense submitted to the jury was sexual assault of a child and the evidence supports that conviction. Comment. I recently gave a lecture to an undergrad class and a student asked me “what thing was the biggest surprise to learn about the criminal justice system that you didn’t know until you became a lawyer.” I went with my second biggest surprise because “the convoluted way we measure the sufficiency of the evidence” seemed way too intense for 19-year-old poli sci majors. I like this case because it is a shift in the right direction—to a system where prosecutors and not the courts are responsible for convicting the bad guy. Rogers v. State, No. PD-0242-19 (Tex. Crim. App. Oct. 18, 2023)(not designated for publication) Attorneys. Gene Garcia (Trial), Allen Lee (trial), Luis Martinez (appellate) Facts. [Editorial] This case is the end of a saga in which the State and trial court worked in concert to prevent the defendant from presenting his defense at trial. Because neither believed the defendant’s story of selfdefense they prohibited him from explaining his side of the story to the jury. Somehow the 13th Court of Appeals sanctioned this (first by finding no harm and ignoring the issue presented). The defendant presented his arguments to the CCA, and the CCA issued a fairly direct opinion criticizing the conduct of the prosecutor and trial court. The CCA remanded the case back to the 13th Court of

Appeals with instructions to conduct error analysis. The CCA’s remand opinion pretty much indicated that the CCA believed there was both error and harm, but the 13th Court of Appeals saw it differently and yet again sanctioned the conduct of the trial court. Not surprisingly, when the CCA got this case for a second time they settled it in favor of the defendant. But there was yet another twist: prior to the CCA’s final opinion, the Defendant passed away in TDCJ custody (without anyone telling the court). Whereas most prosecutors would dismiss their case and move on to the next one, these prosecutors filed a motion in the CCA to erase the cases from existence. That motion—the State’s “Motion to Withdraw Appellate Opinions and Permanently Abate the Appeal”—is the reason for this opinion. Analysis. “We grant the State’s motion, dismiss Appellant’s petition for discretionary review, withdraw our 2018 and 2022 opinions, and order the court of appeals to withdraw its 2017 and 2019 opinions and permanently abate the appeal.” When a criminal defendant dies during the pendency of an appeal the prosecution should abate in toto. Until the culmination of the appellate process, the defendant’s guilt is undetermined. Concurring (Richardson, J.)(Joined by Hervey, Walker, Slaughter, JJ.)(Published) This Court issued published opinions explaining how what the trial court and the prosecutor did was wrong. They are circulated to the public. They are on the internet. They have been discussed on two different YouTube channels and viewed nearly 1 million times. The 5,600 comments predominantly find the trial court’s action unjust. But now, Appellant has been permanently silenced by his death and in accordance with our rules, all appellate mentions of the wrongs he suffered and our rulings meant to cure them will be removed from our case law and mooted.

*** . . . [T]hough Appellant is deceased, he did not take the potential errors of our justice system into the grave with him. These errors that Appellant, himself, brought to the attention of this Court remain behind to perplex and confound the legal system. Consequently, to remove these opinions without any explanation would not serve the best interests of the jurisprudence of this State. It would be a disservice to the Bar, and disingenuous, to act like this case never happened. This is because at the end of the day, Al thought Appellant passed away while in TDCJ custody without this Court being notified, the Court in fact granted Appellant a new trial based on the erroneous motion in limine filed by the State. This Court finds that a new trial was warranted because the decisions of the trial court and the affirming court of appeals ultimately deprived Appellant of a constitutionally fair trial. Furthermore, though Appellant may be deceased, others in his predicament yet still alive may suffer the same deprivations of equal justice under the law that Appellant faced. Under numerous variations of this case, I think such harmful errors against the accused would “evade review”—which in this case, it essentially did. I see no reason to subject potentially numerous defendants in the future to such evasive constitutional harm before another case might arise where appellate review is even possible. Thus, under the facts of this case, though the Court formally withdraws all its opinions and orders the Thirteenth Court of Appeals to do the same, I leave our now-former

December 2023

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opinion from October 26, 2022, and Judge Slaughter’s concurring opinion of the same date attached to this opinion to guide against the reasonable likelihood of repetition by both the State and trial courts alike. Comment. In solidarity with Judges Richardson, Walker, Hervey, and Slaughter, the next case is the SDR summary of the Rogers opinion from 2022. Rogers v. State, No. PD-0242-19 (Tex. Crim. App. Oct. 18, 2023) Issue & Answer. Can a trial judge prohibit a defendant from giving testimony to establish his self-defense because the trial judge thinks it’s a lie? No. Facts. The defendant was having an affair with complainant’s wife. A jury convicted the defendant of Burglary (entering the complainant’s home and subsequently committing an aggravated assault). The defendant testified at trial: • He had permission from complainant’s wife to be in the home • Complainant’s wife asked him to feed the cats • Complainant’s wife gave him the key and alarm passcode • He tried to retreat when he saw complainant pull up to the house • He couldn’t get out through a window as complainant entered • He hid in the closet as complainant searched the house for him • Complainant finally came into the room in which he was hiding • Complainant became aggressive and shouted at him while holding a knife • He pulled a firearm from atop the safe in the closet and fired it at complainant only after complainant charged at him with a knife The trial court prevented the defendant from supplying further details because the trial court had sustained a motion in limine. The limine prohibited the defendant from raising any defensive issues whatsoever during voir dire, opening statements, cross-examination, and during the defendant’s testimony. Because of this limitation the trial court stopped the defendant mid-testimony, excused the jury, and admonished the defendant and his lawyer “you may not venture off into anything that alludes to or invades the province of self-defense.” The defendant offered a bill of exception showing: • His affair with complainant’s wife had been ongoing for about 2 years • They had exchanged over 70,000 text messages during their relationship • The day prior and day of the offense they exchanged 850 messages 40 VOICE FOR THE DEFENSE

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• Complainant discovered the affair two months before the offense Analysis. The State and the trial court worked to deny the defendant his Fifth, Sixth and Fourteenth Amendment rights to present a complete defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006), “To implement the presumption [of innocence], courts must be alert to factors that may undermine the fairness in the fact-finding process.” The trial court is not afforded deference in its determination regarding the submission of a defensive instruction if some evidence supported the submission, even feeble contradicted evidence the trial court disagrees with. The proffered evidence was sufficient for defensive instruction. The trial court was wrong to prevent the defendant from testifying. In re University of Texas Medical Branch-Galveston, No. WR-91-715-01 (Tex. Crim. App. Oct. 18, 2023) Attorneys. Benjamin Wolff (writ), Ashley Steele (writ), Sarah Cathryn Brandon (writ), T. Nathaniel Lombardo (writ) Issue & Answer. If necessary to enable defense counsel to fulfill the duty of investigating mitigation evidence, can a trial court issue an ex parte order directing a hospital to conduct a brain scan on a criminal defendant? No. Not ex parte. Facts. The State wants to kill the defendant. The Office of Capital and Forensic Writs (OCFW) wants to have his brain checked. OFCW obtained an order from the 259th District Court in Jones County compelling the University of Texas Medical Branch-Galveston (UTMB) to conduct brain imaging on the defendant. UTMB is attempting to invalidate that order through the instant mandamus proceeding. From the defendant’s brief: Counsel for Dillion Compton, a death-sentenced person, sought a brain scan from University of Texas Medical Branch (“UTMB”) to develop mitigating evidence regarding neurological deficits. UTMB offered this brain scan to Mr. Compton and was paid in advance. To facilitate the provision of this scan, Mr. Compton obtained a court order. The Office of the Attorney General (“OAG”) intervened to object to the court’s order. UTMB’s interest in objecting to a court order that formalized the brain scan it had already scheduled and accepted payment remains a mystery. Similarly confounding are UTMB’s radical challenges to the authority of a trial court to enter orders to effectuate habeas counsel’s duty to “investigate expeditiously, before and after the appellate record is filed in the court of criminal appeals, the factual and legal grounds for the

filing of an application for writ of habeas corpus.” TEX. CODE CRIM. PROC. art. 11.071, § 3(a). Analysis. The CCA recently held in In re City of Lubbock, 666 S.W.3d 546 (Tex. Crim. App. 2023) that “a trial court lacks authority to enter an ex parte order to a third party for the production of records pursuant to an ex parte discovery request.” Contrary to the arguments of the defendant, the instant trial court order does not fall within or sufficiently adjacent to the explicit authorizations for ex parte post-conviction discovery orders under Article 11.071. Accordingly, pursuant to In re City of Lubbock, the trial court was without authority to issue its order directing UTMB to conduct a brain scan. Concurring (Slaughter, J.) The trial court exceeded its authority by ordering UTMB to create evidence to assist the defendant with his “pre-application investigation.” A habeas judge does have implicit authority to order preapplication discovery, but it does not include authority to create evidence that does not yet exist. Comment. But UT lost to OU 11 days prior to the issuance of this opinion. This comment is approved by my editor Jeep Darnell. Ex parte Couch, No. PD-0422-22 (Tex. Crim. App. Oct. 18, 2023)

Ex parte Hammons, No. PD-0322-22 (Tex. Crim. App. Oct. 18, 2023) Attorneys. Stephanie K. Patten (appellate for Couch), Mark Bennett (appellate for Couch) Jessica Freud (appellate for Hammons – consolidated case) Issue & Answer. An issue is cognizable in pretrial habeas litigation only if successful litigation would result in the defendant’s “immediate release.” When the courts say “immediate release” are they referring to release from the entirety of a prosecution? No. Facts. Couch is charged in 4 indictments with money laundering. The indictments allege multiple methods of committing money laundering under the statute. One of the State’s statutory allegations criminalizes a mere intent to do something (without an actus reus): “finances or invests or intends to finance or invest funds that the person believes are intended to further the commission of criminal activity.” Couch challenges the money laundering statute to the extent that it criminalizes thoughts by its definition: Hammons is charged with 4 counts of injury to a child. Count 1 alleges only serious bodily injury and Counts 2-4 allege only serious mental deficiency or impairment. Hammons filed a pretrial writ of habeas December 2023

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corpus challenging the statute criminalizing counts 2-4 for vagueness—failing to define serious mental deficiency, impairment, or injury. Analysis. Typically, pretrial habeas cognizability turns on whether relief would result on the immediate release of the applicant. However, “[w]e have considered pretrial facial constitutional challenges to statutes defining offenses without conditioning their cognizability on ‘immediate release.’” A facial challenge raises the constitutionality of the statute as written without regard to the specific conduct of the defendant. Raising a facial challenge to a statute is not a guarantee of cognizability. If the relief sought does not prevent prosecution, pretrial habeas is unavailable. As it relates to Couch, the State alleged four manners and means: (1) intending to finance, (2) intending to invest, (3) financing, and (4) investing. If the CCA were to agree with Couch’s claim that criminalizing a person’s intent to finance and intent to invest creates an unconstitutional thought crime, those two manners and means would be stricken from the indictment. But this would still leave behind two additional prosecutable manners and means. If, as the court of appeals assumed, Couch is charged with one count of money laundering by four different manner and means, removing the “intends” allegations would not invalidate the whole charge against her, and she would not be released from that charge even if relief were granted, her claim is not cognizable on pretrial habeas. Hammons, on the other hand, specifically challenged 3 counts contained in her 4-count indictment. Each count constituted a separate offense (rather than interchangeable manners and means). Hammons is charged with injury to a child in Count 1 by committing serious bodily injury and in Counts 2-4 by causing serious mental deficiency or impairment. She claims the statute supporting prosecution on Counts 2, 3, and 4 is unconstitutional for not defining the vague concept of serious mental deficiency, impairment, or injury. Hammons’ issue is cognizable as it relates to the 3 charges she attacks. Even though the State could rightfully prosecute her on the remaining count, she would be entitled to “immediate release” from the individual charges if a court were to determine those charges relied upon an unconstitutional statute. Immediate release relates to individual offenses and not entire prosecutions. Comment. It is good to see the CCA provide more guidance on the concept of “immediate release.” Prosecutors like to use this rule to force the defendant into an unsolvable puzzle where some other flimsy, temporary, or out-of-county restraint exists on top of the unconstitutional one the defendant seeks to adjudicate. A real example of this in action: trial court revoked defendant’s bond without a motion, hearing, or evidence 42 VOICE FOR THE DEFENSE

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then ordered a commitment to restore competency. The premise of a habeas writ is an accusation of wrongdoing by the government. That the government (accused of wrongdoing) unilaterally did a second thing to restrain the defendant should not be the “I win” button.

1st District Houston The First District Court of Appeals in Houston did not hand down any significant or published opinions since the last Significant Decisions Report.

5th District Dallas State v. Gonzales, No. 05-22-01154-CR (Tex. App.— Dallas, Oct. 12, 2023) Attorneys. Gregg Gibbs Issue & Answer. You can now buy smokable marijuana legally in Texas. It has a low THC concentration (0.3 percent) but looks, tastes, feels, and smells like marijuana. Does the smell of marijuana continue to supply probable cause for a vehicle search, then? Yes. Facts. Two officers sitting in separate patrol vehicles smelled the odor of “marijuana” emanating from a passing vehicle. The officers detained the occupants of the vehicle when they caught up with them at a nearby gas station. Officers searched the defendant’s vehicle based on the purported probable cause supplied by the odor of “marijuana.” At a hearing on the defendant’s motion to suppress, the officers testified that they could not distinguish the smell of illegal marijuana from hemp (marijuana with a THC concentration of less than 0.3 percent that is available for sale in nearly every strip mall in Texas). The trial court granted the defendant’s motion to suppress and expressly found that Texas cases holding that the odor of marijuana provides probable cause have been “abrogated by Texas House Bill 1325, signed into law June 2019, which changed the definition of marijuana and excluded hemp.” The State appealed. Analysis. When the Legislature passed the Hemp Farming Act legalizing the possession of marijuana with low THC concentrations, the Legislature also “expressly prohibit[ed] the manufacturing of products containing hemp for smoking.” There are also administrative rules regulating what farmers can grow and those rules prohibit growing hemp for smoking. Clearly the legislature did not intend to limit a police officer’s ability to search cars and find illegal marijuana. Notwithstanding the fact that industrial hemp is now legal and may be indistinguishable from marijuana without a lab test, marijuana remains illegal, and the probable cause standard for police to detect it remains the same: Probable cause exists when reasonably trustworthy facts and circumstances within the knowledge of the

officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of a crime or evidence pertaining to a crime will be found. Comment. The Fifth Court of Appeals is simply wrong about this and Judge Thompson of the 416th District Court was correct to grant this suppression. Who cares what the Texas Legislature said about what farmers can grow in Texas. 99% of consumer goods a person can purchase in Texas are made outside of the State of Texas. I’m not a farmer and the odds are neither are you. I buy my tomatoes from Sprouts. And if organic tomatoes become illegal to grow in Texas, I wouldn’t expect officers to have probable cause to search my car because they think it smells like salsa. Same story with the weed I can buy from the weed shop next door to Sprouts. Rodriguez v. State, No. 05-22-00476-CR (Tex. App.— Dallas, Oct. 24, 2023) Attorneys. Donny J. Perales (appellate), John Schomburger (trial) Issue & Answer 1. In a case where the State offers significant documentary and photographic evidence substantiating that a complainant suffered injuries, is it okay for the State to make potentially improper prosecutorial arguments about how domestic abusers behave? Yes. Issue & Answer 2. Can the State prevent the defendant from presenting evidence that he is innocent? Yes. Facts. The defendant and the complainant were in a dating relationship. The complainant testified that the defendant became obsessed with a belief that she was cheating on him. His accusations would result in arguments culminating in assault. This pattern repeated until a brutal attack where the defendant stabbed the complainant, sexually assaulted her, struck her with

various objects (coffee mug, golf club, extension cord), kicked her in the face, choked her, and killed her pet turtle. When the complainant’s injuries became apparent to her friends and family the complainant helped the defendant evade detection from law enforcement. During opening statement the State made the following remarks: “Because what do we know about people who commit domestic violence?” and “As we mentioned during voir dire, we know that people who commit domestic violence try to maintain control over their victims.” The defendant attempted to present a defense of an alternate perpetrator. His theory was that the complainant’s brother, who had once sexually assaulted her, also caused the injuries she accused the defendant of causing. The State objected to the defendant: (1) questioning the complainant and establishing that her brother had sexually assaulted her, and (2) offering his own testimony establishing that the complainant’s brother might have been the true assailant. Analysis 1. Improper prosecutorial comments must be evaluated against the “record as a whole.” Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) sets forth 3 factors for consideration: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. Assuming without deciding the prosecutor’s comments were improper, any error on the trial court in denying the defendant’s objection to the comments were harmless under the Mosley standard. These were not particularly egregious statements, and the “state and strength of the record” were significantly probative of the defendant’s guilt (including vivid photographic and medical evidence substantiating the complainant’s testimony). Even though

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the trial court did nothing to limit any prejudicial effect the comments may have had on the jury’s deliberations, the State cured the prejudice by showing that the defendant did in fact act like a domestic abuser. Analysis 2. The defendant claims he had a Sixth Amendment right to present a complete defense. According to the defendant this included the right to blame an alternate perpetrator. Erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights to present a meaningful defense. Rulings excluding evidence might rise to the level of a constitutional violation under two scenarios: (1) a state evidentiary rule that categorically and arbitrarily prohibits the defendant from offering otherwise relevant, reliable evidence that is vital to his defense; and (2) a trial court’s clearly erroneous ruling excluding otherwise relevant, reliable evidence that “forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.” Here the defendant wanted to show the jury: (1) that the complainant’s brother sexually assaulted her when she was young, (2) that the complainant covered up her brother’s crimes, (3) that the complainant had an improper relationship with her brother up until the time she began dating the defendant, (4) that the complainant’s brother was controlling, jealous, and manipulative, (5) that the complainant’s brother had offered money to the complainant to drop charges in a separate case, and (6) that the complainant’s brother had insisted on the complainant ending her relationship with the defendant. 44 VOICE FOR THE DEFENSE

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Because none of this evidence was sufficiently probative of an alternate perpetrator, it was not error for the trial court to exclude the defense. Comment. The court acknowledges the defendant’s detailed reasons and theories supporting an alternate perpetrator and basically says “yeah that defense sucks.” What happened to juries making decisions?

9th District Beaumont Sartin v. State, No. 09-21-00312-CR (Tex. App.— Beaumont, Oct. 18, 2023) Attorneys. Douglas Barlow (appellate), Thomas Burbank (trial), Jason Nicks (trial) Issue & Answer. Does the direct appeal record in this case establish that trial counsel’s failure to lodge certain objections was a decision falling outside of a reasonable defense strategy (was counsel’s performance deficient and ineffective)? No. Facts. Police encountered the defendant when they were checking on the welfare of her 81-year-old father. When officers arrived at the father’s home, the defendant came outside and informed officers that her father had killed himself with a spatula and a rolling pin several days prior to their arrival. Officers discovered the father’s body inside the home lying on top of his bed. Officers took the defendant to the police station and interviewed her. Three hours into her interview she changed her story to one of self-defense. The jury did not believe the defendant, convicted her, and sentenced her to 81 years.

Analysis. The defendant complained on appeal about the trial court admitting evidence and about improper prosecutorial arguments, but these complaints were not preserved by objection in the trial court. The defendant also claims that trial counsel was ineffective for failing to object and preserve the issues he wishes to present on appeal. But “to establish a claim of ineffective assistance of counsel, the defendant must create a record that shows the claim is firmly founded in the record in the trial court.” The record must avail itself to no other explanation for trial counsel’s conduct than deficient performance. The defendant has not satisfied this burden with the direct appeal record. Comment. The court calls everyone (defendant, victim, etc.) by their first name. Maybe that’s why this case is published . . . ?

11th District Eastland Lee v. State, No. 11-21-00253-CR (Tex. App.—Eastland, Oct. 5, 2023) Attorneys. Timothy Hootman (appellate), Robert Hogan (trial) Issue & Answer. A person commits the offense of Abuse of Official Capacity when that person: (1) misuses government property . . . (2) with intent to obtain a benefit or intent to harm or defraud. When a police officer uses his department issued computer to run background checks on acquaintances for innocuous but non-lawenforcement reasons, has the officer committed Abuse of Official Capacity? No. Facts. The defendant is a police officer who used his police officer laptop to do background checks on people he knew (girlfriends and other people he knew from the department). Internal affairs caught wind of this and confronted the defendant. In a recorded interview the defendant explained that three individuals asked for him to pull information and that he believed he could conduct background checks with such permission. Several of these individuals testified at trial but only one indicated that the defendant searched her background with permission. This witness was the defendant’s wife who said she asked the defendant to look up whether her out-of-state ticket remained pending. Analysis. A “benefit” is defined as “Anything reasonably regarded as economic gain or advantage.” The State did not produce any evidence that the defendant acted with an intent to gain an economic benefit and the investigating officer did not believe the defendant acquired an economic benefit. The closest the State got to showing a benefit was the prosecutor’s imaginative theory that the defendant and his wife derived an economic benefit from looking up the status of her out-of-state December 2023

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ticket. According to the State outstanding tickets are “very expensive” and the defendant’s wife would have been “worried about how much it’s going to cost.” The State’s argument followed that the defendant’s wife saved time by having the defendant research her ticket status and that “time is money.” But even if such a motivation fit within the framework of prosecutable economic gains under the Abuse of Official Capacity statute, the State failed to show any such motivation existed. “Harm” is defined as “anything reasonably regarded as a loss, disadvantage, or injury.” Again, the investigating officer did not receive information indicating that the defendant was intending harm. None of the backgroundsearched individuals who testified at trial indicated that the defendant was acting with the intent to harm them. The state presented only innocuous motivations for the defendant having checked up on the individuals whose information he accessed. The State incorrectly contends that “the mere act” of accessing these individuals’ private information demonstrates an intent to harm because the information is intended to be confidential unless voluntarily disclosed. Comment. What a dumb dumb argument by this prosecutor. It should be Abuse of Official Capacity to prosecute (invent) such a meritless case (to cost a person their career, to make a person post bail, to make that person hire a lawyer to defend himself, to subject that person to the anxiety of a criminal trial, to make him spend time coming court, to invest even more money appealing the case, and all of it done with the intent to harm that individual with penal consequences). What the hell is going on in Midland County?

14th District Houston Johnson v. State, No. 14-22-00135-CR (Tex. App.— Houston [14th Dist.] Oct. 10, 2023) Attorneys. Mandy Miller (appellate), Lott Joseph Brooks (trial) Issue & Answer 1. When a person points and shoots a gun at another person must the State show a threat independent of the act of shooting to support a conviction for aggravated assault by threat? No. Issue & Answer 2. Is a club bouncer a “security officer” as defined by the Penal Code provision that provides for enhanced punishment in an assault case? Potentially, but not proven here. Issue & Answer 3. In a prosecution for aggravated assault on a security officer, does the trial court commit reversible error when the trial court instructs a jury (without objection) using the language of aggravated assault on a peace officer. Probably but not necessary to resolve here. 46 VOICE FOR THE DEFENSE

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Facts. The State charged the defendant with aggravated assault of a security officer for intentionally and knowingly threatening a club bouncer with imminent bodily injury while using or exhibiting a deadly weapon. The State showed that the defendant got in a fight with the bouncer and later returned with a rifle and opened fire. The defendant struck the bouncer and others at the scene. Analysis 1. The defendant claims no evidence supports the conclusion that he lodged a threat in advance of shooting the complainant. But this is not how the Penal Code defines “threaten.” The act of pointing a gun at someone, whether the trigger is pulled or not, constitutes a threat. Analysis 2. Penal Code Section 22.02 defines “security officer” as a commissioned security officer under Tex. Occup. Code § 1702.002 or a noncommissioned security officer registered under Tex. Occup. Code § 1702.221. The State failed to produce evidence that the complainant was either. Analysis 3. Here the trial judge erroneously instructed the jury that the complainant was a public servant. The complainant was a security officer not a public servant. There is an “egregious harm” rubric for analyzing unobjected-to jury charge error, but the resolution here is far simpler. Even if the trial court’s error constituted egregious harm, the remedy would be nothing more than reformation of the judgment. This is the same remedy the defendant is already entitled to for the State’s failure to prove that the complainant qualified as a “security officer” as defined by the Penal Code. 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 • 4th District San Antonio • 6th District Texarkana • 7th District Amarillo • 8th District El Paso • 10th District Waco • 12th District Tyler • 13th District Corpus Christi/Edinburg 1

Key: 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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