Voice for the Defense | Vol 52 No. 4 - May 2023

TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

TCDLA Member Cover Contest Winner: Patrick Gabaldon

EVIDENCE

IT’S ALL ELEMENTARY

Available In Person, Livestream, & On Demand At Your Own Pace!

COURSE DIRECTORS:

Sarah Roland • Reagan Wynn • Thomas Wynne

SEPTEMBER 7-8, 2023

Aloft Dallas Downtown • Dallas, TX

Thursday

Cell Phone & Tech Authentication by an Expert .................Sean Hightower & Dan Gugliotta

Interrelationship of State and Federal Practice ................................................Camille Night

Evidentiary Foundations: Getting it in and Keeping it out & Live Demos ............Jason Cassel

Guide to Evidence ......................................................................................Greg Westfall

A Criminal Defense Perspective: Common Trial Evidentiary Issues.......................Laurie Key

A Bench Perspective: Common Trial Evidentiary Issues .... Judge Audrey Moorehead/Ada Brown

Interactive Groups and Demo Presenting Evidence.......................................Thomas Wynne

Friday

The Mechanics of Litigating Pre-Trial Evidentiary Issues ......................................Chris Abel

Experts from an Evidentiary Standpoint ........................................................Molly Bagshaw

Lunch Presentation: Q&A .........................................................................................TBD

Extraneous Bad Acts and Bad Characters .........................................................Rusty Gunter

Evidentiary Toolbox ...................................................................................George Milner

Forensic, Experts, & Interviews in Sex Cases.................Heather Barbieri & Dr. Aaron Pierce

TCDLEI Scholarships available at tcdla.com!

EDITOR

Jeep Darnell | El Paso, Texas • 915-532-2442

jedarnell@jdarnell.com

ASSISTANT EDITORS

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 | Heather J. Barbieri • Plano

President‑Elect | John Hunter Smith • Sherman

First Vice President | David Guinn Jr. • Lubbock

Second Vice President | Nicole DeBorde Hochglaube • Houston

Treasurer | Clay Steadman • Kerrville

Secretary | Sarah Roland • Denton

CEO | Melissa J. Schank • 512-646-2724 • mschank@tcdla.com

DIRECTORS

David Adler • Bellaire

Matthew Allen • San Antonio

Stephanie Alvarado • Dallas

Gene Anthes • Austin

Molly Bagshaw • Houston

Phil Baker • La Grange

Robert Barrera • San Antonio

Clint Broden • Dallas

Jessica Canter • San Antonio

Omar Carmona • El Paso

Jason Cassel • Longview

Allison Clayton • Lubbock

Angelica Cogliano • Austin

Cesar De Leon • Brownsville

Aaron Diaz • San Antonio

Clifford Duke • Dallas

Joseph Esparza • San Antonio

Amber Farrelly • Austin

Ricardo Flores • Austin

Robert Gill • Fort Worth

John S. Gilmore, III • San Antonio

Lisa Greenberg • Corpus Christi

Mark Griffith • Waxahachie

Paul Harrell • Gatesville

Amanda Hernandez • San Antonio

Sean Hightower • Nacogdoches

Joseph Hoelscher • San Antonio

John Torrey Hunter • San Antonio

Jonathan Hyatt • Longview

Jolissa Jones • Houston

Sean Levinson • Austin

Allison Mathis • San Antonio

Dwight McDonald • Lubbock

Dean Miyazono • Fort Worth

Dustin Nimz • Wichita Falls

Mitchell Nolte • McKinney

Mario Olivarez • Corpus Christi

Damon Parrish • Houston

Scott Pawgan • Converse

Shane Phelps • Bryan

Brian Raymond • San Angelo

Carmen Roe • Houston

Rick Russwurm • Dumas

Suzanne Spencer • Austin

Joe Stephens • San Angelo

Stephanie Stevens • San Antonio

Mark Thiessen • Houston

Patty Tress • Denton

Paul Tu • Richmond

Amber Vazquez • Austin

Judson Woodley • Comanche

Thomas Wynne • Dallas

Jennifer Zarka • San Antonio

Volume 52 No. 4 | May 2023

Features

Train Hard, Race Easi(er): How Capital Defense Training Can Make You a Better Criminal Defense Lawyer

Gretchen Sween

After Petetan and Ex parte Segundo: Trial and Post-Conviction Use of the DSM-5-TR in Texas Death Penalty

Atkins Intellectual Disability Claims

Sarah Brandon & Lane Thibodeaux

Immigration Enforcement Priorities and Noncitizen Defendants

Julie Pasch

A DNA Profile: From Your Trash to Police Treasure

Steve Miears

Listen Up! Constitutional Issues Involving Deaf Defendants

Amber Farrelly

Columns

President’s Message

Heather J. Barbieri

Chief Executive Officer’s Perspective

Melissa J. Schank

Editor’s Comment

Jeep Darnell

Ethics

Jack Zimmermann

The Federal Corner

Joel Page

Rural

Todd Steele

Significant Decisions Report

Kyle Therrian

May

May 5

TCDLA | 16th Annual DWI Defense Project

Dallas, TX

May 15

CDLP | Mindful Monday Webinar

May 19

CDLP | Ethics w/ DCDLA

Dallas, TX

June

June13

CDLP | Chief PD Training

San Antonio, TX

June 14

CDLP | PD & Indigent DefenseTraining

San Antonio, TX

June 14

CDLP | Mental Health

San Antonio, TX

June 14

CDLP | Capital Litigation

San Antonio, TX

June 15-17

TCDLA | 36th Annual Rusty Duncan Advanced Criminal Law Course

San Antonio, TX

June 16

TCDLEI Board, TCDLA Executive, & CDLP Committee Meetings

San Antonio, TX

June 17

TCDLA | Annual Members’ Meeting

San Antonio, TX

July ...............................................................

July 12 - 16

TCDLA | Member’s Trip

South Padre Island, TX

July 12

CDLP | Trainer of Trainers

South Padre Island, TX

July 13-14

CDLP | Journey to Justice

South Padre Island, TX

July 15

TCDLA, TCDLEI, & CDLP | Orientation

South Padre Island, TX

July 17

CDLP | Mindful Monday Webinar

August

August 11

TCDLA | 21st Annual Top Gun DWI

Houston, TX

August 11

CDLP | Against All Odds w/ SACDLA

San Antonio, TX

August 17

CDLP | Building Blocks for a Next Level Criminal Defense Attorney

Austin, TX

August 17-18

CDLP | Innocence Work for Lawyers w/ IPOT

Austin, TX

August 21

CDLP | Mindful Monday Webinar

Scholarship Information:

August Continued

August 23-26

TCDLA | TCDLA DWI SFST/DRE/ARIDE

Super Course

Austin, TX

August 24-25

CDLP | Floyd Jennings Mental Health Symposium

Austin, TX

August 31

TCDLEI | Board Meeting

Zoom

September

September 7-8

TCDLA | Evidence: It’s All Elementary

Dallas, TX

September 8

TCDLA Executive & Legislative Committee Meetings

Dallas, TX

September 9

TCDLA Board & CDLP Committee Meetings

Dallas, TX

September 15

CDLP | Riding for the Defense McKinney, TX

September 18

CDLP | Mindful Monday

Zoom

October

October 4-7

TCDLA | Round Top XI Round Top, TX

October 5-6

CDLP | Corrections & Parole

Austin, TX

October 5-7

TCDLA | Future Indigent Defense Leaders 3.0

Austin, TX

October 11

CDLP | Innocence for Students w/ IPOT

Austin, TX

October 12-13

CDLP | 20th Annual Forensics

Austin, TX

October 27

CDLP | Riding for the Defense South Padre, TX

November ...............................................................

November 2-3

TCDLA | 19th Annual Stuart Kinard DWI

San Antonio, TX

November 3

CDLP | Nuts & Bolts w/ SACDLA

San Antonio, TX

November 16

CDLP | Mental Health Symposium w/ Collin County

Allen, TX

November 16

CDLP | Capital Litigation

Dallas, TX

November 17

CDLP | Mental Health

Dallas, TX

November Continued ...............................................................

November 20

CDLP | Mindful Monday Zoom

November 30 - December 1

TCDLA | Defending Those Accused of Sexual Offenses

Round Rock, TX

December

December 1

TCDLA Executive & Legislative Committee Meetings

Round Rock, TX

December 2

TCDLA & TCDLEI Board & CDLP Committee Meetings

Round Rock, TX

December 15

CDLP | 16th Annual Hal Jackson Memorial

Jolly Roger Denton, TX

December 18

CDLP | Mindful Monday Zoom

January ...............................................................

January 3

CDLP | Prairie Pups w/ LCDLA

Lubbock, TX

January 4-5

TCDLA | 43rd Annual Prairie Dog

Lubbock, TX

January 19

CDLP | Ride for the Defense

Waco, TX

January 26

TCDLA | Evidence

Austin, TX

February

February 8-9

TCDLA | Federal Law TBD

February 14-18

TCDLA | President’s Trip

Charleston, SC

February 16

CDLP | Indigent Defense

Dallas, TX

February 22

CDLP | Child Welfare Forensics w/ Thurgood Marshall School of Law

Houston, TX

February 22

CDLP | Mental Health

Houston, TX

February 22

CDLP | Setting Up the Appeal

Houston, TX

February 23

CDLP | Capital

Houston, TX

February 23

CDLP | Veterans Zoom

February 24

CDLP | Career Pathways Webinar

February 29

TCDLEI Board Meeting Zoom

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.”

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.

President’s Message

HEATHER J. BARBIERI

Role Models

The past year serving as TCDLA President has been an incredibly rewarding experience—one that I will never forget.  There is not a finer group of people than the members of this Organization, who commit every day to fiercely advocating for those in most need—the forgotten, the condemned, the “less than.”   I hold you in the greatest esteem and admiration.  It gives me tremendous pride to call each of you my brother and sister.

The last 12 months have been filled with victories and its fair share of challenges. TCDLA continues to provide the best programming and CLEs in the country. For example, the innovative program Journey to Justice Traveling CLE Series which taught numerous members to prepare for every stage of trial. With Monique Sparks as its chair, it’s been an incredible success. This last year also resulted in the tireless efforts of over 50 committees and the tenacity of our dedicated committee chairs and committee members. And the never ending work of our Voice for the Defense contributors, our Assistant Editors, and our amazing Editor in Chief, Jeep Darnell, continues to make a statewide impact.

In my year as President, I watched so many members pour their hearts and souls into defending the abusive practices of prosecutors in the Operation Lone Star cases. We also worked toward my cherished goal of uniting the efforts of the private bar with our beloved public defenders and managed assigned counsel offices. A goal that is still a work in progress but one that we made great strides this year.

During my presidency, we encountered challenges along the way. The first, just a few days into my term, was the reversal of Roe v. Wade through the Dobbs opinion. Thanks to the great work of my Committee Chair, Nicole DeBorde Hochglaube, the Executive Committee and Officers, we were quickly able to put together the Post Dobbs Committee and devise a game plan. Our strategy was simple yet critical: an ounce of prevention! If our great state of Texas was going to criminally charge attorneys, we needed to be prepared. And we were (and are) ready for battle just in case we are ever in the position of defending the accused, faced with the newest, first degree felony that has become a political byproduct of the Supreme Court

verdict. This proved a valuable lesson in two ways: first, we put TCDLA, and thus all our members, in a strong position in the event our State decides to pursue criminal charges; and second, we were able to address the very difficult and delicate issue of abortion while still respecting the wide range of beliefs of our members.

I thank the Organization for their patience with me, and the members’ trust that we would handle a topic as controversial and sensitive as abortion with respect for all beliefs while maintaining the values of our mission statement.  I was grateful to receive so much feedback from so many of you on all sides of this topic – thank you for speaking up. The issue is ever changing, we grew a lot as a leadership team and an organization through this experience, we are better and stronger for it, and I hope to always be able to assist as needed.

Another challenge this year has been the resistance of prosecutors to the implementation of a new and improved Rule 3.09 of the Texas Disciplinary Rules. The potential amendments to this rule will be pivotal in preventing innocent people from unnecessary and prolonged incarcerations by requiring prosecutors to take action when they become aware of their potential innocence. It has been disappointing to see how some in the State could oppose these improvements and place so little value on the dignity and rights of fellow citizens. For our part, we rallied and made sure that we had a seat at the table thanks to the efforts of Mike Ware, Executive Director of the Innocence Project of Texas, and that our position and voice was heard loud and clear. Thanks to Mike and the tenacious Brent Mayr, Vice Chair of the TCDLA Ethics Committee, we have made progress and actual change is happening. Moving forward, I hope our voices will be even more influential as there is still much work to be done.

There were also many other unique challenges and opportunities along the way, and I am hoping that I served this Organization, that I love so much, with honor and integrity. I hope I spoke for each and every one of our members and made good on my promise to bring a greater degree of diversity of all types to our Organization, inclusion to ensure all members have a seat at the table, and to honor and leverage the great institutional knowledge of

our members throughout this State, and that I served you the way you expected me to.

As usual, I had some trial wins, and some trial losses, while I served as TCDLA President. And I will say that it is always rewarding to know that I have the backing of this Organization every time I went into battle. I hope we all feel that way.

I also thank the incredible staff of TCDLA, who never stop working to make TCDLA the best in class in the nation. In this role I have a brand new perspective – and with that a deeper appreciation and gratitude – of what it takes to run an organization the size and complexity of TCDLA, and I marvel at how well they perform their very difficult work every day. Melissa, thank you for being by my side, and guiding me the whole way through. And the entire staff is second to none and deserves the kudos of us all.

Thank you to my incredible Executive Committee, John Hunter Smith, David Guinn, Nicole DeBorde Hochglaube, Clay Steadman, Sarah Roland, Bobby Mims, David Moore, Kerri Anderson Donica, David Botsford, Anne Burnham, Monique Sparks, and Jeep Darnell. It has been an incredible journey and thank you for being my invaluable wingmen and wing women. John Hunter Smith, I hope you have a remarkable journey as well beginning in June at Rusty Duncan, I know you will experience the same great support and talent with this amazing leadership team.

Thank you to the committee chairs and for your tireless efforts at making sure each of our committees are thriving and making a beautiful change for the better.  You are our future and I salute you.

And my biggest gratitude goes to the 3,800 plus

members of TCDLA.  Without the members of the best and biggest criminal lawyers’ association in the nation, there would be nothing and nobody to fight for.  No matter what CLE I attended, or who I ran into at courthouses throughout Texas, I always felt appreciated, welcomed, and respected. For that, I want you to know how much I appreciate and respect you back. We are the best today and always.

Lastly, thank you to my family for allowing me the time to serve TCDLA over the years, and especially this past year. Thank you to my loving husband Alex, who always has my back, my three beautiful children, Gracie, Brogan, and Lilly.  My world begins and ends with you.

As I reflect on my journey as President: a journey that began in 1999 when I filled out a paper application to become a member; a journey that has taken me to nearly every nook and cranny of this state for conferences, CLEs, and eventually as a board member and finally an Executive Committee member; this past year serving you as President has been a true blessing, a tremendous honor, and a capstone of my career. I will cherish this gift always. Thank you for allowing me to serve you. See you soon!

CEO’s Perspective

MELISSA J. SCHANK

My Best Version

“

In the sweetness of friendship let there be laughter, for in the dew of little things the heart finds its morning and is refreshed

- Khalil Gibran

As I look back, the past month was madness. We had so many seminars, meetings, new bills filed at the legislature, and hearings on those bills that affect TCDLA. During the many events I attended, there were several members that really didn’t have the time to get away or were upset that they could not do everything online. Then, we had others with their schedule open up at the last minute who could attend. In one such case, the day following the event, I asked one of the attendees who needed the information we were training on and really didn’t want to come in person – “how did your evening go?” He said it was actually wonderful; he had the opportunity to hang out with some of the speakers, a judge, and two other attendees. He said he was reenergized from the connections he made. He had been frustrated with the numerous last minute court settings, and with family at home, it was hard to get away with the kids’ activities. After breathing and taking a moment, this was the best thing for him.

Often, we know deep down inside we need to do something, yet we fight it by justifying it with, “we are too busy,” or “this needs to be done,” and more excuses. However, once we force ourselves to engage with others or invest in ourselves, we realize how good it feels to be amongst friends and laugh.

Anyone who writes multiple articles in the Voice at one point or the other wonders – does anyone really read this? I had an attendee that brought it up when we first met sitting at a bar ordering dinner many years ago. We had the chance to get to know each other. I saw him again recently, and he said some very encouraging and thoughtful words about my articles. It was very much appreciated and gave me the extra energy to write this article. I appreciate him taking a moment to go out of his way and refresh me!

I extended my last seminar trip to add some personal time while I was continuously worried about my teenagers and how they would survive, or if they would burn down the house, starve the dogs, or just do the right thing. I

decided, after much contemplation, to move forward with my original plans when everything was changed, and it seemed like it would not work out. Even with all the chaos and worries – I had truly let myself enjoy the people I was with since pre covid. So many things have changed during covid that still affect me and many I know. We are relearning our new norm and how to avoid reverting to self seclusion, which was so easy to do. I realized when I heard, “there’s the old Melissa – we missed her.”

I sit on a board, and my term will end in June. Like many, I especially look forward to all of the board meetings, committee work, and being with my peers to exchange ideas, brainstorm, and solve all the world’s problems. My position on the booster club will also come to an end this year. Besides my professional development, I have started thinking about what I can volunteer for, that I can contribute to, and also be part of a group, developing new contacts, and rekindling past peers and friends. I, like each of you, must remember that I cannot just go to work and go home, the world needs our talents, personality, helping others, and I need the world, which includes YOU, to make me the best version of myself!

JEEP DARNELL

Never Fear, Technology is Here

In a sort of spring cleaning type of process, our firm has recently undergone the process of looking into various aspects of our current infrastructure; things like our old copper line based phone system, our billing software, and our cloud storage system. We know we can save money and operate more efficiently if we make some changes. Still, there are so many issues to take into account: the lawyers in our office, our staff, the cost of purchasing new hardware components, a willingness to learn something new, the lawyers in our office . . . wait, did I mention that one?

Change can be a difficult proposition, no matter how old or young we (or you) are. Comfort, or the lack thereof with something new, has a cost we are willing to pay for. However, don’t forget that the world is changing daily, as are our practices. Not adapting to the changing world of technology can cost us money in the long run. But the hard part is knowing what change is beneficial and what is just a worthless expense. Sometimes I feel like I am a smart person with knowledge of current technological advances, but then we talk to our IT company, or a vendor approaches us, and I realize I’m not that smart. I have learned that I cannot make any decisions based on comfort or pride. I have to talk to people smarter than me (and younger than me), then take that information and do my own research. I can’t make rash decisions about what seems perfect or shiny and new.

It may seem like common sense, but if you are in the same boat as us, please take the time to talk to the vendors and ask for trial offers, presentations, and names of other

clients who have utilized the product so you can speak to them. If a vendor hides information from you, that’s probably a good sign that you don’t need what they offer. However, as I have recently realized, the ever expanding world of video conferencing makes for the perfect opportunity to have a vendor do a virtual pitch that allows them to show you all of the bells and whistles of products that may be of benefit. Again, don’t let your pride or ego get in your way; ask all of the dumb questions and make them show you just how dummy proof the product is so that everyone in your office will be able to use whatever product you may be purchasing. Trust me, we all look more competent in the end if we acknowledge that we are dumb now.

Be safe,

Jeep Darnell

Ethics and the Law

JACK ZIMMERMANN

Just Don’t Do It

Facts:

You represented Client 1 in the past. The results were favorable. He thinks you are a legal magician. Now he is accused of inappropriate contact with his teenage niece. He wants you to represent him again, and you take his case. Later you receive a phone call from Client 1’s brother –the complainant’s father – who says he has been notified his daughter is claiming he committed the same conduct with her. He wants you or your law partner to represent him (Client 2).

Ethical considerations:

A client is entitled to complete loyalty from his attorney. His attorney is not able to provide that type of representation if that means the attorney also owes loyalty to another client who may have a conflicting defense.

Client 1 denies abusing his niece in any way, but thinks if she was in fact abused, his brother did it. He wants you to investigate to prove his brother (Client 2) is the guilty party. If you can’t take Client 2’s case because of a conflict of interest, can your law partner represent Client 2 in the same case? Can you obtain a written waiver of a real or potential conflict of interest from both clients and represent Clients 1 and 2, or you represent Client 1 and your law partner represent Client 2 in the same case?

The lawyer’s responsibility is to do every ethical thing to represent his client, and the lawyer cannot take a course of action that harms the client.

Representing both clients is filled with pitfalls. If the investigation leads to a conclusion that abusive acts were committed against the complainant but that only one of the brothers is the culprit – then the lawyer is in an ethical predicament. How can the lawyer provide complete loyalty to both of the clients if the defense could be that only one of the clients abused the complainant? Isn’t it the lawyer’s duty to present a defense that the abuse occurred, but only by the other client? But that defense is unavailable because the lawyer cannot turn on the other client.

What about the first lawyer remaining as the lawyer of Client 1, and the law partner representing Client 2? The ethical duty of the law firm is to give undivided loyalty to one client only. If the two lawyers are law partners, they have a joint duty to take actions that would protect the rights of both clients. If Client 1’s lawyer has to point the finger at Client 2 in order to defend Client 1, and the law partner has to do the same finger pointing at Client 1, there is an inescapable conflict of interest. Which client should be favored?

Recommendation:

How do lawyers avoid this dilemma? First, before accepting any case, do a conflicts check. After taking a case, if later a relative or close acquaintance of the client

asks you or your law partner to represent that person in the same case, you should not accept the second client. This avoids any conflict of interest problem.

What if you do not anticipate a conflict of interest because you think one does not exist at the time you accept Client 1’s case, but after you take Client 2’s case, you discover a conflict? This happens frequently, based on the frequency of inquiries to the TCDLA ethics hotline. This is a tough spot to be in, especially if you have accepted a fee in either case. Bottom line – if you possess information that exculpates one client but inculpates a second client, you cannot possibly have complete loyalty to both. Thus, the correct ethical solution if that unfortunate situation exists, is for you to withdraw from both cases.

The only sure way to avoid this unpleasant situation is to never represent two clients in the same case. This applies to representation of a co defendant by a law partner.

Sometimes life surprises us, though, so there could possibly be an exception to the above advice. Assume there was a crime committed in a location where Client 1 was identified as the suspect. You sign a fee agreement with Client 1. Then the complainant claims another person participated, and names a relative or close friend of Client 1 as being a perpetrator in the same crime at the

same time. In this hypothetical, assume you have rock solid evidence – like a video tape – that both relatives were at the same wedding in another state at the time of the crime with which both potential clients are charged. In other words, the defenses would be identical – alibi –that is foolproof, so no conflict of interest could develop. I believe you could ethically defend both clients because your loyalty would not be diluted or divided.

Jack B. Zimmermann is the president of Zimmermann & Zimmermann, P.L.L.C. in Conroe. He is board certified in Criminal Law by the Texas Board of Legal Specialization, and as a Senior Criminal Trial Advocate by the National Board of Trial Advocacy. He practices primarily criminal defense and military law at the trial and appellate levels in state, federal, and military courts nationwide. He is a graduate of the United States Naval Academy, Purdue University, and the University of Texas School of Law. In the Marine Corps in Vietnam he was awarded two Bronze Stars for valor and the Purple Heart for wounds in action. Before Mr. Zimmermann retired from the Marines as a colonel, he served as a Chief Defense Counsel, as a Chief Prosecutor, and then as a Military Judge, for which he was awarded the Meritorious Service Medal. He is the Past President of the Harris County Criminal Lawyers Association and is a former member of the Texas Criminal Defense Lawyers Association Board of Directors. He can be reached at jack@ texasdefenselawyers.com and 713-552-0300.

Wooden v. United States opens up new angles to avoid the Armed Career Criminal Act

Anyone who practiced federal criminal law in the 90’s or early 2000’s can recite with me the following mantra, after making the appropriate votive offerings: Other than the fact of a prior conviction, any fact that increases the statutory maximum must be proven to a jury beyond a reasonable doubt. Many of us can provide the full cite to this proposition without looking, Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). And variants of that citation are likely used as passwords to our Gen X era Yahoo and Hotmail accounts. (Note to self, change password). The basic holding of Apprendi has been extended in two ways: it now applies to facts that establish a mandatory minimum (as well as those that increase the maximum), see Alleyne v. United States, 570 U.S. 99 (2013); and in federal cases it requires that the relevant facts be placed in the indictment (as well as proven to a jury beyond a reasonable doubt).

See United States v. Cotton, 535 U.S. 625 (2002).

Despite a quarter century of defense bar prying at the first clause in this maxim, “other than the fact of a prior conviction,” the Supreme Court has held firm: legislatures may increase the penalty range on the basis of a defendant’s criminal record. For evidence of lower court impatience with these continuing efforts to revisit this question, see United States v. Pineda-Arellano, 492 F.3d 624 (5th Cir. 2007).

The precise border of the prior conviction exception, however, has never been entirely clear. What, for example, of penalty enhancements that depend not merely on the nature of the defendant’s prior conviction, but on the timing of the prior offense? Or that require inquiry into facts underlying the prior conviction that have not been reduced to a prior judicial finding? From the very outset of the Apprendi line, the Supreme Court has warned, and warned repeatedly, that not every “fact about a prior conviction” is equivalent to “the fact of a prior conviction.”

See Shepard v. United States, 544 U.S. 13, 25 (2005)(Souter, J., controlling plurality op.)(“While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior

judicial record, and too much like the findings subject to Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.”); Apprendi, 530 U.S. at 490 (referring to the prior conviction exception as a “narrow exception.”); Nijhawan v. Holder, 557 U.S. 29, 40 (2009) (accepting government’s concession that a defendant subjected to a twenty year re entry sentence on the basis of a prior fraud offense would be entitled to a jury trial on the amount of loss in that case); Dretke v. Haley, 541 U.S. 386, 395 396 (2004)(applying the doctrine of constitutional avoidance to the scope of the prior conviction exception in a case where the sequence of a defendant’s prior convictions raised his statutory maximum); Mathis v. United States, 579 U.S. 500, 501 (2016)(“..a construction of ACCA allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns. ... [A] judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense.”). Indeed, the categorical approach to criminal history enhancements, with all of its contortions and counter intuitive outcomes, including the near miraculous “least culpable means” test, may be seen as an elaborate effort to police the border of the prior conviction exception by ensuring that nobody receives an enhancement statutory range except on the basis of those facts necessarily adjudicated by the prior conviction.

Recently, this issue has acquired particular salience in the context of the Armed Career Criminal Act (ACCA), a penalty enhancement for possessing a firearm after three prior convictions for violent felonies and/or serious drug offenses “committed on occasions different from each other.” 18 U.S.C. §924(e)(2)(B). Experienced federal practitioners are familiar with the means by which a sentencing court should decide whether a prior conviction is a “violent felony” or a “serious drug offense” – it compares the least culpable means of violating the prior statute of conviction to ACCA’s definitions of “violent felony” or ”serious drug offense” and tries to determine whether the statute can be violated in ways that fall outside

this definition. See Borden v. United States, __U.S.__, 141 S.Ct. 1817, 1822 (2022)(plurality op.). (This, if you’re just joining us, is the categorical approach). If the statute is in any significant respect broader than the definition of violent felony or serious drug offense, the statute does not work to trigger ACCA. But how, consistent with Apprendi, does the court decide whether the prior convictions were for offenses committed on different occasions?

Recently, the Supreme Court passed on the separate occasions requirement. In Wooden v. United States, __U.S.__, 142 S.Ct. 1063 (2022), the defendant received an ACCA sentence on the basis of ten prior burglaries committed on the same night. See Wooden, 142 S.Ct. at 1067. The defendant entered a commercial storage unit, burgled the first unit, then proceeded to smash through each of ten adjoining units, stealing the contents as he went, before finally returning back to the law school exam hypo from which he evidently originated. See id. Because he completed each burglary (just barely) before commencing his next, the court of appeals held that these offenses occurred “on occasions different from one another.” See id. at 1068. The Supreme Court unanimously reversed in a colorful opinion by Justice Kagan, a source of reliably colorful opinions. Justice Kagan instructed lower courts to read the word “occasion” in its natural sense, which often encompasses events that may be separated by reasonable intervals of time. See id. at 1069. The “separate occasion” inquiry is now guided by a variety of factors including timing, but also including the “proximity of location”, whether the conduct underlying the crimes is

“intertwined or similar”, and whether the crimes “share a common scheme or purpose.” Id. at 1070 1071.

Something about this opinion has caused DOJ to believe that ACCA’s separate occasions requirement will eventually be subject to Apprendi., That is, the government now takes the position that defendants cannot receive an enhanced sentence under ACCA unless the indictment alleges, and either the defendant admits in open court or a jury finds beyond a reasonable doubt, that the prior qualifying offenses occurred on separate occasions. Very possibly, it was influenced by a concurrence by Justice Gorsuch discussing the indeterminacy of many separate occasions cases, and ominously observing that “[a] constitutional question simmers beneath the surface of today’s case.” Id. at 1087, n.7 (Gorsuch, J., concurring).

As a consequence, DOJ has begun to obtain indictments alleging that the defendant’s prior convictions occurred on separate occasions. Further, it told the Supreme Court that “in light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 142 S. Ct. 1063 (2022), the government agrees that the different occasions inquiry requires a finding of fact by a jury or an admission by the defendant.” Brief in Opposition to Certiorari in Ross v. United States, 22 236, at 6 (Filed December 2022). One defendant even received a jury trial on the separate occasions question, and won See Verdict in United States v. Pennington, No. 1:19 CR 455 (N.D. GA Sept. 20, 2022)(ECF 173).

This may seem like a fairly simple fix to the constitutional issue, but it raises a host of questions, problems, and opportunities. First, what happens to pre Wooden law restricting the government’s proof of the separate occasions requirement? Before Wooden, most circuits recognized the potential Apprendi problem when a judge found that a defendant’s prior offenses occurred on different occasions and imposed an ACCA sentence as a result. But they dealt with this problem not by offering the defendant a jury trial on the separate occasions problem, but by restricting the kinds of proof the court could consider to decide the issue. See United States v. Hennessee, 932 F.3d 437, 442 (6th Cir. 2019)(collecting cases). Thus, the Fifth Circuit required the government to prove separate occasions using only the prior indictments, judgments, and judicial confessions, probably to confine the federal sentencing judge to those facts that had already been determined in the prior case, and hence to confine him or her to “the fact of a prior conviction.” See United States v. Fuller, 453 F.3d 274 (5th Cir. 2006). In cases where the indictments, judgments, and judicial confessions (“Shepard documents”) referred to offenses on the same day, especially offenses like robbery or drug dealing that can occur two at a time, this rule made it

difficult or impossible for the government to obtain ACCA sentences. See United States v. Owens, 753 Fed. Appx. 209 (5th Cir. October 12, 2018)(unpublished). So what if the defendant’s prior robberies did occur on the same day (or two days in sequence), and the prior Shepard documents say as much? Can the government offer the defendant a trial on the question of whether they occurred on separate occasions on the same day? Early signs from the Fifth Circuit suggest it has not yet recognized any change in the law, neither in the constitutional area, nor in the method of proof. See United States v. Williams, 2023 WL 2239020 (5th Cir. February 23, 2023)(unpublished); United States v. Wright, 2022 WL 3369131 (August 22, 2022)(unpublished).

Second, if the government’s new view of the statute prevails, what problems might a defendant encounter trying to contest the violent felony or serious drug offense designations? The government’s new view would seem to proceed on the assumption that ACCA sets forth not merely an enhanced sentence for people guilty of 18 U.S.C. §922(g), but an aggravated version of the offense, defined by a new element. But if that’s so, can a defendant admit that he possessed a firearm, admit that his or prior offenses occurred on separate occasions, yet contest whether they constitute a “violent felony” under the traditional standards of the categorical approach? Or might a court reject this partial plea on the ground that he or she is denying guilt of the charged offense? If the defendant files a motion to dismiss the ACCA enhancement on the ground that his prior conviction isn’t a violent felony, does he or she need a conditional plea to appeal the claim? See Fed. R. Crim. P. 11(a)(2).

Third, how far can defendants push the “occasions” envelope? The Wooden opinion expresses skepticism that

offenses committed on different days might comprise a single occasion, but it doesn’t rule it out, either. See Wooden, 142 S.Ct. at 1071. Are there cases where the offense dates were so far apart that a district court might try to declare them separate as a matter of law? Can they do so, consistent with United States v. Gaudin, 515 U.S. 506 (1996), which holds that the jury generally must decide mixed questions of fact and law? Would juries consider acquittal in cases where offenses occurred a few days apart, if they are linked by other facts? A few weeks? More? Could the government prove separate occasions to a jury solely by way of prior judgments, or do they need to find witnesses from cases that may have been long closed?

Finally, let’s suppose that the Sixth Amendment forbids an ACCA sentence unless the court holds a jury trial on the separate occasions question. Is it clear that the statute permits such a trial? After all, ACCA has been on the books since the 1980’s and no court before Wooden ever read it to require a jury trial on this question. Doesn’t that suggest that the statute is not reasonably susceptible to such a reading? If Apprendi forbids ACCA sentences without a jury trial on the issue and Congress didn’t authorize a jury trial, is it possible that, well, nobody should get ACCA? It doesn’t seem likely, but why not?

ACCA always promises complication, uncertainty, and opportunities for creative litigation. And it continues to keep this promise.

Joel Page is the Appellate Supervisor for the Federal Public Defender of the Northern District of Texas, where he has worked for 17 years. He secured a favorable opinion form the Supreme Court in Davis v. United States, 140 S. Ct. 1060 (2020), and quite a lot more unforable opinions from the Fifth Circuit over the years.

TCDLEI Memorializes, Fallen But Not Forgotten . . .

C. Anthony Friloux Jr.

Jim Greenfield

Richard W. Harris

Richard ‘Racehorse’ Haynes

Charlie Butts

Ward Casey

Byron Chappell

Emmett Colvin

Rusty Duncan

C. David Evans

Elaine Ferguson

David Hazlewood

Odis Ray Hill

Weldon Holcomb

Floyd Holder

W. B. “Bennie” House

David Isern

Hal Jackson

Knox Jones

Joe Kegans

George F. Luquette

Carlton McLarty

Ken Mclean

Kathy McDonald

George R. Milner

Daniel Mims

Roy Minton

Ebb Mobley

Brian E. Murray

Harry Nass

Texas Criminal Defense Lawyers Educational Institute

Anthony Nicholas

David A. Nix

Rusty O’Shea

Mike Ramsey

Charles Rittenberry

George Roland

Travis Shelton

Robert William Tarrant

Charles Tessmer

Doug Tinker

Don R. Wilson Jr.

To memorialize a loved one, email athomas@tcdla.com

From the Front Porch TODD STEELE

Primer on Self Defense

Introduction

Lately I have represented several individuals in cases that had, what I believed, were good self defense claims. One in particular was an Aggravated Assault Causing Serious Bodily Injury case that went to trial and ended in a hung jury. I am currently working on a murder case with what I believe is a good self defense claim. Consequently, I have done quite a bit of research on this issue in the last few months and thought it might be a good idea to write about the basics on this issue.

What is self-defense?

Generally, self defense gives a person justification to use force against another person when and to the degree that the person reasonably believes the force is immediately necessary for protection against that other person’s use or attempted use of unlawful force. Tex. Penal Code § 9.31(a). Actual danger is not required as long as the defendant’s belief is reasonable. Valentine v. State, 587 S.W.2d 399, 400–403 (Tex. Crim. App. 1979).

The justification for self defense focuses on (1) a necessity, (2) the circumstances under which the force was used, (3) the degree of force used, and (4) the type of conduct against which the force was used. Kelley v. State, 968 S.W.2d 395, 399 (Tex. App.—Tyler 1998, no pet.). The force used in self defense must be proportionate to the force encountered. Kelley, 968 S.W.2d at 399. The stronger the force encountered, the stronger the response force is justified. Searcy & Patterson, Practice Commentary, Tex. Penal Code §9.31 (Vernon 1974).

The Penal Code does not require a person to retreat before using non deadly force. Sidney v. State, 753 S.W.2d 410, 412 (Tex. App., Houston [14th Dist., pet.ref.); see Tex. Penal Code § 9.32(c). Additionally, a person has the right to strike first if necessary. Sheppard v. State, 545 S.W.2d 816, 819 (Tex. Crim. App. 1977); Warren v. State, 764 S.W.2d 906, 909 (Tex. App. Corpus Christi 1989, pet. ref.).

When is self-defense available?

Historically a defendant had to generally admit to committing an act against the victim and assert that the act was justified in order to claim self defense. Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App. 1986). Now, a defendant may deny the prosecution’s allegations concerning his conduct and still be entitled to a self defense charge. Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990).

Self defense is available in property crimes and other non assaultive crimes as long as the evidence shows assaultive conduct by the complainant. Self defense was removed from the sections of the Penal Code regarding assault and murder, and was placed in the section on justification. Thus, it is apparent that the legislature intended to not limit self defense to assaultive crimes only. Boget v. State, 74 S.W.3d 23, 27 (Tex. Crim. App. 2002).

Self defense is also available in non intentional or knowing crimes. Self defense applied to the lesser included offense of manslaughter even though the only mens rea of recklessness was required for the crime. Alonzo v. State, 353 S.W.3d 778, 783 (Tex. Crim. App. 2011).

A defendant who asserts that a killing was an accident is not prevented from claiming self defense if the circumstances support such a charge. Sanders v. State, 632 S.W.2d 346, 348 (Tex. Crim. App. 1982).

When is self-defense not available?

If other means of defense are available, the defendant’s use of force would not be immediately necessary and thus would not be justified. (Except retreating is not required)

Self defense is not admissible at the punishment phase of a trial. Nixon v. State, 572 S.W.2d 699, 701 (Tex. Crim. App. 1978). Self defense is also not available in response to verbal provocation alone. Tex. Penal Code § 9.31(b)(1). Moreover, self defense is not available to someone who resists an arrest or search that the actor knows is being made by a peace officer or the agent of a peace officer. This

is true even if the arrest or search is unlawful. Tex. Penal Code § 9.31. However, this limitation does not apply if the officer is using excessive force. Tex. Penal Code § 9.31(c) (1)(2). A Defendant who wants to claim self defense during an arrest must first produce some evidence that the officer making the arrest of the defendant used excessive force. Letson v. State, 805 S.W.2d 801, 804–805 (Tex. App., Houston [14th Dist.] 1990, no pet.).

Further, self defense is generally not available to a person who provoked the assailant into using or attempting to use unlawful force. However, if the defendant abandons the encounter, or clearly communicates to the assailant his or her intent to do so; and the assailant continues or attempts to use unlawful force against the defendant, then the defendant may use force in self defense.

How much force can be used in self-defense?

The amount of force used must be proportionate to the force that the person is defending against. For example, a person cannot use deadly force against an assailant who is not using or attempting to use deadly force, or who the defendant reasonably believes is using or attempting to use deadly force. Pierini v. State, 804 S.W.2d 258, 260 (Tex. App., Houston [1st Dist.] 1991, pet. ref.).

Conclusion

Again, this is only a primer. There is much more to the topic that could warrant a much lengthier discussion. There is an entire body of case law discussing what evidence may or may not be used to prove or defeat a self defense claim. A lengthy discussion could be had regarding the duty to retreat and the changes in the law that took effect September 1, 1995 and September 1, 2007. There could be another topic relating to the fact that the Defendant need only produce some evidence to justify submission of a self defense instruction, but the state must persuade the jury beyond a reasonable doubt that the defendant did not act in self defense in order to defeat the claim. I’ll save those for another day and another article. To be continued...........

Todd Steele is an attorney in private practice in Brownwood, Texas. He graduated from Tarleton State University in 1989, and from Texas Wesleyan University Scool of Law in 1994. His practice is primarily in the areas of Criminal Defense and Family Law. The things that he is most proud of is his marriage to his wife Vicki of 27 years, his four children, and 7 grandchildren. His personal email address is toddbsteele@gmail.com and his phone number is (325) 643-6587.

TRAIN HARD, RACE EASI(ER): HOW CAPITAL DEFENSE TRAINING CAN MAKE YOU A BETTER CRIMINAL DEFENSE LAWYER

GRETCHEN SWEEN, PH.D., J.D.

For athletes, a rigorous training program allows them to be more relaxed on game or race day. The idea is that if you train hard enough and smart enough, you are not just more fit, but better equipped to be “in the moment” when it counts. I suggest that this premise works equally well for a criminal defense practice. Train as hard as you can. More specifically, consider training the way those who agree to take on the exceedingly weighty obligation of representing someone whose life is on the line are expected to train—to help you be a better advocate for anyone accused of a crime.

A Heightened Standard

The standard for representation in a death-penalty case is a heightened one for obvious reasons—but also because the Supreme Court of the United States has repeatedly held that the Eighth Amendment requires heightened reliability in death-penalty cases.

In death penalty cases, all attorneys and their agents on a defense team are bound by the prevailing professional norms specific to death penalty representation. The sources of these norms include the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913 (2003) (“ABA Guidelines”), and the ABA Standards for Criminal Justice (3d ed. 1993) (“ABA Standards”). See also State Bar of Tex., Guidelines and Standards for Texas Capital Counsel, 69 Tex. B.J. 966 (2006) (“Texas Guidelines”);1 ABA Supplementary

1 The Texas Guidelines “are a Texas specific version of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases[.]” Texas Guidelines, Intro. The ABA

Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases, 36 Hofstra L. Rev. 677 (2008) (“ABA Supplemental Guidelines”); State Bar of Tex., Supplementary Guidelines and Standards for the Mitigation Function. These guidelines, however, constitute a floor, not a “gold standard” for capital defense.

The ABA Guidelines have been cited by the Supreme Court of the United States and the Texas Court of Criminal Appeals as evidence of the norms to be utilized to assess “effective” representation under the Sixth Amendment.2 All you have to do is glance at these guidelines to see that being effective in representing someone in a death penalty case is a non trivial matter.

The depth and breadth of work necessary is categorically different from any other kind of representation. Because the basic floor is so much more demanding, if a case is not resolved before trial, the odds increase exponentially that any given attorney will perform deficiently. This fact is, perhaps, why many and Texas Guidelines reflect the same statewide and national standards. Local practice is not the standard.

2 See, e.g., Strickland v. Washington, 466 U.S. 668 (1984); Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (noting that the ABA Guidelines “discuss the duty to investigate mitigating evidence in exhaustive detail, specifying what attorneys should look for, where to look, and when to begin.”); Ex parte Garza, 620 S.W.3d 801, 822 (Tex. Crim. App. 2021) (quoting favorably expert’s testimony in post conviction proceeding explaining that, had trial counsel “consulted the ABA Guidelines, ‘they could have readily located appropriate resources and assistance’ and would have learned ‘the importance of a mitigation investigation, including an in depth mental health evaluation[.]’”).

very talented criminal defense lawyers do not want to have anything to do with capital defense.

I get it: you may have absolutely no desire to get on the appointment lists, maintained by Texas’s administrative judicial regions, of counsel qualified to accept appointments in death penalty cases.3 Even so, your desire to be the best advocate possible can be served by strapping on your running shoes and taking capital defense training—offered, perhaps, by TCDLA or the Center for American and International Law aka CAIL—regardless of whether you ever intend to work on a death penalty case.

Luckily, death penalty trials have become far less common in Texas since the adoption of life without the possibility of parole as a sentencing option.4

This would, of course, be a very tedious article if all I did was recite some of the ABA Guidelines and suggest that they are worth reading. Instead, I try to identify below some core values of capital defense training, hoping you will see how those values can invigorate any criminal defense practice.

3 See Tex. Code Crim. Proc. art. 26.052.

4 See Texas Coalition to Abolish the Death Penalty, https://tcadp.org/ wp content/uploads/2022/07/Death Penalty Fact Sheet 07 01 22.pdf.

Some Core Values of Capital Defense Be Client Centered

The very fact of being accused of a capital crime and being told that the State is seeking permission to kill you tends to be traumatizing for any accused individual and his or her loved ones—a circumstance that, in turn, demands special sensitivity and engagement by counsel.

The trauma associated with being shackled, thrown in a cage, and treated as less than human upon being accused of having committed any deed that society deems criminal demands that counsel be as communicative and empathetic as possible. But for most lawyers, these skills do not come naturally and need to be developed through conscious practice.

Investigate Everything

Capital defense counsel must undertake a sweeping investigation of every aspect of the case, all potential extraneous bad acts that might be trotted out in the punishment phase, and at least three generations of the client’s family in search of mitigating evidence. This sweeping investigation must commence at the outset of the appointment—which requires dramatically limiting the rest of one’s professional docket and other activities.

No matter how collegial your relationship may be

(PROCESSED and PRINTED in as little as 5 MINUTES!!!)

www.conceptSR22.com

AN ABSOLUTELY FREE SERVICE FOR YOUR FIRM

A revolutionary new way to provide the Texas SR-22 that will save you and your staff valuable time while also saving your clients money. No more waiting for your client to get that SR-22 to your staff, it’s always readily available at your fingertips.

INSTANTLY! allows your Client to purchase and print the Texas SR-22 from ANY computer ANY time.

SAFELY! uses an Operator’s Policy to protect your Client’s relationship with their current insurance provider.

WITHIN 10 MINUTES! emails the original SR-22 to your Client, the Texas DPS AND your office.

IMMEDIATELY! allows you and your staff to access and print the Texas SR-22 from our website.

UNMATCHED! rates and plans will save your Clients money over traditional methods.

Please go online or call Jay Freeman today for more information:

www.conceptSR22.com

with those in the DA’s Office, trust no one—particularly the State or the records its agents plan to rely on to paint your client as a one dimensional monster.

Educate Yourself and the Court about Mental Health Issues

With death penalty cases, every member of the team should have some training in mental health issues, as mental health problems are inevitably part of the story underlying both the alleged crime and the client’s history. In furthering the noble goal of avoiding a death penalty trial, capital defense counsel need to continuously educate the court and the prosecution about the mental health history of the client.

Everyone working in criminal defense knows that our criminal justice system is being overtaxed to address the inadequate mental health treatment available in this country. One truly progressive feature

of the Texas Code of Criminal Procedure is Article 46B, enacted “to encourage early and prompt court review and evaluations of persons who might lack competency to stand trial.”5 Take advantage of the numerous mandatory provisions in this statute, including the court’s duty to act if any “evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court.”6

There is a further duty that “the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand

5 Shannon & Benson, Texas Criminal Procedure & the Offender with Mental Illness, National Alliance for the Mentally Ill Texas (6th ed. 2019) at 46 .

6 Tex. Code Crim. Proc. art. 46B.004(b).

trial.”7 The duty to conduct an informal inquiry can be triggered by a suggestion of incompetency from any credible source.8 Regardless of whether incompetency can be established, we can all garner ideas from this statute for developing a record of our clients’ serious mental health struggles.

Preserve Error and Otherwise Create a Record

With death penalty cases, appeals are mandatory and will be pursued at multiple levels. But any time you are being denied the resources you need to adequately represent your indigent client or your clients’ rights are being ignored, you need to preserve the errors on the record or they cannot be appealed. Error preservation is not intuitive; it often requires multiple steps—that have to be pursued in the face of a hostile bench wanting to “move things along.”

Be Creative

Aside from preserving violations of recognized interpretations of the U.S. Constitution, capital defense counsel have to look to the future. The very same Texas death penalty sentencing scheme that was approved, provisionally, by the Supreme Court in 19769 was eventually found partially unconstitutional in a way that applied to every single person who had been sentenced to death in Texas since 1974.10 Then it took several more decades to bring Texas law into compliance with the Supreme Court law showing that Texas’ sentencing scheme had never been constitutional.11 A moral of that story is: never stop fighting against arbitrariness and inconsistency in the law—but do not expect boilerplate motions to get you anywhere.

Learn and borrow from trailblazing legal strategies of others but develop case specific motions and

7 Id. art. 46B.004(c) (emphasis added).

8 Boyett v. State, 545 S.W.3d 556, 563 (Tex. Crim. App. 2018); see Tex. Code Crim. Proc. art. 46B.004(c 1).

9 See Jurek v. Texas, 428 U.S. 262 (1976).

10 See Penry v. Lynaugh, 492 U.S. 302 (1989) (explaining how Texas juries in death penalty cases had no means to make the required individualized assessment of whether death is warranted because they were not being allowed to consider and give effect to any and all potential mitigating evidence that the defense might be able to find).

11 See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007); see also Joseph Margulies, et al., Dead Right: A Cautionary Capital Punishment Tale, 53 Columbia Human Rights L. Rev. 60–129 (Fall 2021).

arguments that really show how error is being injected into your client’s case.

Engage in Zealous Advocacy

A comment in ABA Guideline 10.8 states: “Because of the possibility that the client will be sentenced to death, counsel must be significantly more vigilant about litigating all potential issues at all levels in a capital case than in any other case.” Defending people whose lives hang in the balance must be a passion, not just a job. This kind of lawyering is not pursued because the financial remuneration is promising or because one may have a chance to shine in the courtroom during a long, grueling trial.

Taking on a death penalty case means foregoing more profitable endeavors. Additionally, a primary goal of ethical capital defense is fighting relentlessly to avoid trial. This is because the odds are stacked heavily against the client from the outset and the consequences of failure are obviously severe.

The best criminal defense lawyers are driven by a sense of purpose, not just a paycheck. Recognizing and fighting against the ignorant assumptions out there that we and our clients are just “scum” seeking to exploit “technicalities” and “legal loopholes” takes a lot of strength. Strength for the continuously uphill battle comes from being mindful of what we don’t know and reaching out to others for ideas and support as we fight for specific people and for a higher cause. We also need to look for ways to pursue this fight in public, in the courtroom, early and often—with the client having a chance to observe and weigh in.

Conclusion

The duties and ethical obligations trial counsel shoulder upon agreeing to serve in a death penalty case are uniquely intense. Those duties also persist long after the appointment officially ends. But any defense lawyer can benefit from training to shoulder those duties. Carrying the weight of someaone’s life on your shoulders may not be on your professional bucket list. But in truth, any lawyer committed to the noble ideals animating criminal defense practice—reflected, at the very least, in the 4th, 5th, 6th, 8th, and 14th Amendments to the U.S. Constitution—must do some heavy lifting. So, sign up to do some capital defense training today!

Gretchen Sween has been involved in capital litigation since law school, when she participated in the Capital Punishment Clinic at the University of Texas School of Law and served as a research assistant for one of the leading scholars of the death penalty, Professor Jordan Steiker. She later worked with the same clinic while on the faculty of her alma mater. Since late 2015, her practice has been devoted almost entirely to defending people facing the threat of a death sentence in Texas. She always enjoys the chance to step back into the role of teacher, particularly for organizations like TCDLA and CAIL.

After Petetan and Ex parte Segundo: Trial and Post-Conviction Use of the DSM-5-TR in Texas Death Penalty Atkins Intellectual Disability Claims

SARAH BRANDON & LANE THIBODEAUX

1. Scope of article

U.S. Carnell Petetan v. State, 622 S.W.3d 321 (Tex. Crim. App. 2021), provided the Texas bench and bar substantive and procedural standards on Atkins claims of Intellectual Disability (“ID”) for the categorical exemption of individuals with ID from the death penalty. In Petetan, the Court of Criminal Appeals (“CCA”) held the American Psychiatric Association (“APA”) Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (“DSM 5”) was the standard to determine the existence of ID for Atkins claims. Petetan facially effectuated the Supreme Court of the United States (“SCOTUS”) directives in Moore v. Texas that prevailing clinical standards must be used in assessing ID.

Petetan continued Texas adherence to adaptive strength evidence in Atkins claims. The DSM 5 diagnostic feature commentary contained a sentence that appeared to require adaptive functioning deficits be related to intellectual impairments. The CCA seized on this sentence for a science based reason for continued use of non clinical adaptive strength evidence in Atkins litigation, despite the prevailing norms rejecting reliance on strengths. This evidence, according to the CCA, could include the facts of the underlying or extraneous crimes. However, the March 2022 publication of the

Diagnostic and Statistical Manual of Mental Disorders (Text Revisions to the 5th ed. 2022) (“DSM 5 TR”) undercut much, if not all, of a DSM 5 based justification for use of non clinical adaptive strength evidence. The CCA’s tacit acknowledgment of the evolvements and current standards of the medical community’s framework for assessing ID can be read in the recent decision in Ex parte Segundo, as well as some CCA judges’ frustration with the evolving standards and Moore generally. This article explores ways the DSM 5 TR can be used by trial and post conviction counsel in challenging use of adaptive strength evidence in Atkins trial and post conviction litigation.

2. Atkins claims in Texas before Petetan

Prior to 2017, the CCA approved use of non clinical ID adaptive strength factors known as the Briseno factors in Atkins claims. In Moore I, SCOTUS limited the use of the Briseno factors, recognizing that while States have some flexibility in Atkins claims, “the medical community’s current standards supply one constraint on the States’ leeway in [Atkins claims], but not ‘unfettered discretion.’”

On remand, the CCA “adopted the contemporary clinical standards set forth in the DSM 5 for assessing intellectual disability.” However, the CCA found Moore

was not a person with ID. SCOTUS granted certiorari a second time, and again reversed the CCA. As later phrased by Judge Newell in Petetan, discussed below, SCOTUS in Moore found the CCA “ran afoul of the medical community’s diagnostic framework.” This was, in part, because the CCA had relied too heavily on adaptative strengths – what an individual can do – rather than diagnostic evidence of adaptive deficits – what an individual struggles to do without ongoing support. SCOTUS found Moore met Atkins ID standards. On the second remand the CCA reformed Moore’s judgement to life in prison.

3. The CCA’s reluctant embrace of DSM criteria in Petetan

Two authoritative bodies deal with clinical standards for ID – the APA and the American Association of Intellectual and Developmental Disabilities (“AAIDD”). At the time the CCA decided Petetan, the AAIDD clinical standards were in their eleventh edition (“AAIDD 11”). The DSM 5 and the AAIDD 11 diagnostic criteria for ID were similar. The AAIDD manual is now its twelfth edition. (“AAIDD 12”). At one point, both the DSM 5 and prior iterations of the AAIDD contained language indicating a requirement that adaptive functioning deficits must be related to the intellectual deficits. Significantly, by the time the CCA decided Petetan – in which it granted rehearing on its own motion after SCOTUS decided Moore – the AAIDD 11 dropped the requirement, but the DSM 5 maintained it.

In Petetan, the CCA dedicated an entire subsection to the DSM 5’s relatedness requirement. Though the CCA downplayed it as a “small question” left open by SCOTUS, what followed was the CCA’s undeterred approval of adaptive strength evidence and non clinical factors, grounded in their acknowledgment of the standards articulated in the DSM 5. The CCA contrasted the differing goals and standards of the DSM 5 and the AAIDD 11 with criminal justice inquiries: “At its core, Atkins seems to rest its justification for a death penalty exemption on the assumption that [ID] is a character trait that lessens moral culpability and so the retributive value of the punishment.” But, as was significant to the CCA, the AAIDD 11 “[seems] to look forward to how the [ID] diagnosis can better assist the individual function in society without regard to any consideration of moral blameworthiness.”

The CCA concluded the DSM 5 better reflected the reduced culpability for the intellectual disability exemption from the death penalty: “To the extent that the clinical diagnosis of intellectual developmental disorder can be harmonized with a reviewing court’s legal inquiry under Atkins and its progeny, the approach taken by the

DSM 5 hews closer to the original justification set out by the Supreme Court than the AAIDD 11. And that is the approach we take.” The CCA added that their opinion should not be “construed as prohibiting consideration of or reliance upon the AAIDD 11” but emphasized there “must be a showing that adaptive deficits are related to subaverage intellectual functioning to satisfy the Atkins exception to the imposition of the death penalty.”

In Petetan the CCA initially seemed to recognize the potential conflict of non clinical adaptive strength evidence and sought to avoid their Moore like reliance on non clinical factors: “[s]o while the relational requirement found in the DSM 5 is currently a necessary legal requirement under Atkins, it is not a vehicle to undermine an otherwise clinical diagnosis through consideration of lay stereotypes, adaptive strengths, and alternative disorders.” However, the CCA contradicted this language on clinical diagnosis – and adaptive strengths – by later writing: “Nor do the [Atkins] cases (in spite of the Court’s rejection of the Briseno factors) say details of the offense can’t be considered at all; rather, the cases just state that the focus should be on adaptive deficits and that adaptive strengths should not be overemphasized.”

Though the CCA facially embraced DSM 5 diagnostic criteria, its emphasis of the relatedness requirement served to backdoor the use of non clinical evidence in determining ID and as a conduit for underlying crime and extraneous bad acts evidence. The CCA linked this relational utility by writing, “given the relational requirement under the DSM 5, consideration of the details of the offense (and extraneous offenses) may be necessary when evaluating the strength and reliability of an expert’s opinion regarding intellectual disability. This is true even if the details do not provide an independent basis for determining the existence of an intellectual disability.” That is, the CCA not only justified the use of non clinical factors to determine the core issue of ID, but also held that whether a person has ID is not an appropriate issue to be decided pretrial because, at least in part, of the DSM 5’s relatedness requirement that allowed the fact finder to consider facts of the underlying crime and extraneous offenses.

4. After Petetan: the DSM 5 TR and Ex parte Segundo

Ex parte Segundo involved an Atkins claim first raised in a 2008 initial post conviction application denied by the CCA two years later. In 2018, Segundo filed an Article 11.071, Section 5(a)(1) subsequent habeas application and raised again that he was intellectually disabled. The CCA authorized Segundo’s successor Atkins claim and remanded the subsequent application to the trial court to resolve whether Segundo was a person with intellectual

disability.

The same State forensic psychologist who decided Segundo did not have ID, in part, based on the Briseno factors, opined Segundo did meet ID diagnostic criteria post Moore using DSM 5 criteria. The CCA granted relief per curiam, with Judges Hervey and Keel joining in a concurring opinion written by Judge Newell. Presiding Judge Keller and Judge Yeary wrote separate dissents, and Judge Slaughter dissented without opinion.

Judge Newell – author of the Petetan majority opinion – was openly critical of Moore in his concurrence in Segundo “[SCOTUS] death penalty test for determining intellectual disability does not answer whether an intellectually disabled capital murderer fits into that

category of offenders whose moral blameworthiness is lessened by their intellectual disability.” The tone of the concurrence was emphatic: “This defendant, a serial killer who brutally raped and murdered eleven year old Vanessa Villa (as well as two other women while the Villa murder remained unsolved), could not provide a clearer example of [SCOTUS’s] intellectual failure.”

Nevertheless, Judge Newell recognized the CCA was bound by Moore, writing, “We’ve already seen what happens when we ignore the Supreme Court on this issue.” Judge Yeary’s dissent wrote of the danger of serial litigation of ID in habeas litigation, “Are we going to going to re evaluate and relitigate every capital case involving a claim of ID whenever – typically at ten or twelve year intervals – a revised edition of the DSM or AAIDD manual is published?”

The Court of Criminal Appeals decided Segundo based on the standards articulated in the DSM 5, including the relatedness requirement. In March 2022, the APA published a text revision of the DSM 5 that included revisions to intellectual disability. The DSM 5 TR eliminated the DSM 5 relatedness requirement, undercutting the medical and scientific basis of the CCA’s decision to allow the use of adaptive strength and non clinical evidence as articulated in Petetan. The APA’s reason for its elimination went to the heart of the Petetan reason for including it: “The [DSM 5 TR] changes focus on a phrase contained in DSM 5 that appears to inadvertently change the diagnostic criteria for Intellectual Disability to add a fourth criterion.”

Without a DSM relatedness requirement between deficits in intellectual and adaptive functioning, it is difficult to justify use of adaptive strength evidence in a clinical or forensic setting. This applies to both the evidence used in determining the core ID clinical diagnosis and to the CCA’s justification for the admissibility of details of underlying offense or extraneous offenses.

To this end, there are significant revisions between the AAIDD 11th edition and the 12th edition, and between the DSM 5 and the DSM 5 TR. For example, the AAIDD in its 12th edition has modified the third prong of an intellectual disability diagnosis, which is the requirement that the individual’s deficits occur during the developmental period. Prior to the 12th edition, the age of onset was 18 years old. Now, the manual reflects that age as 22. As noted above, the DSM 5 TR also has revisions regarding the interpretation of an individual’s obtained IQ scores and acknowledging the usefulness of neuropsychological testing in determining the presence of intellectual disability, in addition to standardized tests of intellectual and adaptive functioning.

Judge Newell’s concurrence and Judge Yeary’s dissent

in Segundo demonstrate the ongoing tension between the legal interest of finality and science’s embrace of evolving standards in the ID diagnosis. This tension will not soon be resolved and is the reason trial and habeas counsel need to be prepared to incorporate evolving scientific standards of ID in their advocacy.

5. Trial Counsel use of the DSM 5 TR

The DSM 5 TR clinical standards for a diagnosis of ID require: (a) deficits in intellectual function; (b) deficits in adaptive functioning, and (c) onset of intellectual and adaptive deficits during the developmental period. A detailed discussion of the three domains of adaptive functioning, conceptual, social, and practical, is beyond the scope of this article. Qualified trial counsel must know those domains and how they fit into the clinical diagnosis.

Trial counsel should pursue to ruling, using the DSM 5 TR as scientific support, that Atkins claims should be determined pre trial. Though Petetan seemingly resolved the legal issue in Texas, the relatedness requirement was the science behind the Petetan holding that Atkins is a sentencing issue. With no relatedness requirement in the DSM 5 TR, the scientific justification behind Petetan’s holding on this issue is undermined. Trial counsel should persist in challenging Texas procedure litigating Atkins claims at the punishment stage, affirmatively seek pre trial determination, and pursue to adverse ruling.

Texas death penalty scheme requiring litigation of Atkins claims at the punishment stage is an anomaly among death penalty jurisdictions. This outlier status is now even more insupportable under the DSM 5 TR diagnostic criteria. The APA included a cautionary statement on forensic use of the DSM 5 in the DSM 5 TR that included the statement “Use of the DSM 5 to assess the presence of a mental disorder by nonclinical, nonmedical, or otherwise insufficiently trained individuals is not advised.” In writing this the APA arguably takes direct aim at non clinical use of adaptive strength evidence in making the ID decision.

The DSM 5 TR should be used to educate trial judges and juries on diagnostic criteria and diagnostic features of ID as defined by it. The DSM focuses the clinical fact finder exclusively on adaptive deficits. The DSM 5 TR diagnostic features section also includes the following helpful language on intellectual function testing: “For example, a person with deficits in intellectual functioning whose IQ score is somewhat above 65 75 may nevertheless have such substantial adaptive behavior problems in social judgment or other areas of adaptive functioning that the person’s actual functioning in clinically comparable to that of individuals with a lower IQ score.”

At formal charge conference, trial counsel should submit a proposed Atkins special issue that tracks the

DSM 5 TR clinical standard. The Atkins special issue should be the first special issue submitted to the jury as it is dispositive. Proposed instructions supporting the Atkins special issue should focus only on the deficits that are the DSM 5 TR standard. Trial counsel should use the DSM 5 TR’s diagnostic feature commentary in drafting the instructions and should pursue to adverse ruling any State instruction that includes non clinical factors. This extends to any attempt by the State to link by relatedness intellectual function and adaptative deficits.

6. Post conviction use of the DSM 5 TR

For post conviction practice, there are several tips now that the DSM 5 TR and the 12th edition of the AAIDD manual have been released. For Atkins cases, the procedural posture in capital post conviction is either going to be raising the Atkins claim for the first time in an initial application – which is often filed at least two years, sometime longer, after the death sentence is handed down – or in a subsequent application.

For initial applications, it is best practice to raise a standalone Atkins claim arguing that your client’s death sentence violates the Eighth Amendment’s prohibition on executing a person with ID. If you have uncovered significant evidence of ID that was not uncovered prior to trial due to an inadequate investigation, you should also raise a separate claim of ineffective assistance of counsel (“IAC”) for failing to reasonably investigate ID, regardless of whether Atkins was raised at trial. Being aware of a possible IAC claim in this context is particularly important in today’s practice where cases are being tried post Moore, Petetan, and Segundo that indicate prevailing medical standards should apply in ID investigations and litigation.

Relatedly, some judges on the CCA have started signaling that freestanding Atkins claims raised at trial may preclude raising Atkins claims in post conviction – even if the claim is raised with a much broader and better supported evidentiary picture – and should be treated as a direct appeal issue. Therefore, habeas counsel should be particularly aware of possible IAC claims related to investigation and litigation of Atkins in case the freestanding post conviction claim one day becomes precluded from being raised because it was raised at trial.

When there are significant text revisions or changes to the prevailing medical standards or framework, habeas counsel needs to be aware of when those changes occurred – it could mean a slight difference in how the standalone Atkins claim is raised compared to the IAC claim. For example, if the DSM 5 was in place at the time of trial, that is the framework trial counsel had to investigate the claim. If there are changes to the standards since the client’s trial but before the filing of the initial application, habeas counsel should know which currently prevailing

norms apply to the standalone Atkins claim, which today is the DSM 5 TR. If there are revisions to the prevailing medical standard since the time of the client’s trial, habeas counsel must be aware of that in post conviction – it is the framework for the Atkins claim investigation, and it may not have been available at the time of trial but allows the claim to be raised now.

This latter point is relevant to subsequent habeas applications, as well. There have been several individuals who have successfully raised Atkins claims for the first time or were able to re raise the claims in a subsequent application, under the new prevailing medical standards. It is critical to look at the timeline of when a client’s trial and initial state habeas proceedings occurred. If habeas counsel suspects their client may be intellectually disabled, but the claim was not investigated in prior proceedings, consider the fact the claim may not have been legally or factually feasible under the now debunked Briseno factors.

Regarding subsequent applications that raise Atkins claims, habeas counsel should be aware of the different subsections of Article 11.071, Section 5 containing various hurdles for the subsequent application to be authorized by the CCA. Under Section 5(a), an individual’s subsequent writ application may only proceed if one of the following scenarios is satisfied by pleading sufficient specific facts:

(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071, 37.0711, or 37.072.

Relevant to Atkins claims are subsections (1) and (3). Habeas counsel should be aware of which subsection applies and whether it is possible to plead both. For example, if habeas counsel is raising an Atkins claim in a subsequent application because the client’s trial occurred during the Briseno era, habeas counsel should consider raising that both subsections (1) and (3) are satisfied.

The CCA has already held in a series of unpublished cases that Moore I represents a new legal basis under Texas Code of Criminal Procedure Article 11.071, Section 5(a), including Segundo. However, in other cases the CCA has remanded subsequent applications raising Atkins, finding

they satisfied Section 5(a)(3). It is therefore important to be aware that either one may satisfy the Section 5 subsequent writ hurdle.

Whether habeas counsel is in an initial or subsequent writ application posture, another thing to keep in mind is the fact standards may evolve even between the time an application is filed and when it is litigated in the convicting court. For example, a habeas application (initial or subsequent) may be filed that raises a standalone Atkins claim, and years may pass before it is resolved in the convicting court. During that time, there may be significant revisions that apply to the prevailing medical framework. Again, this is why it is critical to raise a standalone Atkins claim even if you also have a correlating IAC claim for failing to investigate Atkins.

If there are changes, it does not mean habeas counsel needs to file an amended application if the changes occur after the application has been filed. Habeas counsel should instead be aware of the current prevailing medical framework for any factual development that happens after the application is authorized, like at an evidentiary hearing. Habeas counsel may consider seeking language in an order designating issues that asks the convicting court to apply the prevailing medical standards as articulated in the applicable versions of the DSM and AAIDD. This will ensure the medical community’s most current understanding of ID applies – it may also temper some CCA concerns, touted in Judge Yeary’s dissent in Segundo, that with each new iteration of the DSM or AAIDD manual, Atkins cases will continuously be “re evalute[d] and relitigate[d]” in a form of “serial litigation” that violates Subsection 5.

To end on a slightly more uplifting note, it bears repeating that while language in the CCA concurrences and dissents is concerning and something we should be aware of, it is promising to see relief granted in cases that applied the then current application of the prevailing medical framework, including Segundo. This may be a sign that the most recent editions of the DSM 5 TR and AAIDD (12th ed.) will be applied going forward – this requires us to educate ourselves on what those standards are, ensure our investigations comport with standards, and advocate for courts to apply them.

7. Conclusion

The DSM TR 5 changed clinical diagnostic criteria for ID. No scientific authoritative basis exists for use of adaptive strength evidence in the determination of the categorical exemption of ID from the death penalty. The DSM TR 5 and the AAIDD (12th ed.) both reflect this scientific consensus. Trial and post conviction counsel must be prepared to use this consensus in their respective roles in the Texas death penalty scheme.

ENDNOTES

ii. 622 S.W.3d 321 (Tex. Crim. App. 2021).

iii. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d. 335 (2002).

iv. 581 U.S. 1, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017) (Moore I).

v. __ S.W.3d__, 2022 WL 1663956, (Tex. Crim. App. No. WR 70,963 02 delivered, May 25, 2022) (per curiam).

vi. Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004).

vii. Moore I, 137 S.Ct. at 1052 53.

viii. Petetan at 330 (citing Ex parte Moore, 548 S.W.3d 552, 560 (Tex. Crim. App. 2018)).

ix. Id.

x. Id.

xi. Id.

xii. Moore v. Texas, 587 U.S. __, 139 S.Ct. 666, 672, 203 L.Ed.2d 1 (2019) (Moore II).

xiii. Ex parte Moore, 587 S.W.3d 787, 788 89 (2019).

xiv. Petetan at 331 fn. 59.

xv. Petetan at 332.

xvi. Id.

xvii. Id.

xviii. Id.

xix. Petetan at 333.

xx. Petetan at 334 (citations omitted).

xxi. Id.

Sarah C. Brandon is a supervising post-conviction attorney at the Office of Capital and Forensic Writs in Austin, where she works on teams representing clients in capital postconviction proceedings and whose noncapital convictions rest upon unreliable forensic science. Sarah can be reached at by email at Sarah. Brandon@ocfw.texas.gov.

xxii. Id.

xxiii. Ex parte Segundo at *3.

xxiv. Ex parte Segundo at * 1 2 (Newell, J. concurring) (citing Petetan at 332).

xxv. Id.

xxvi. Ex parte Segundo at *4 (Newell, J. concurring) (citing Moore I and II).

xxvii. Ex parte Segundo at *13 (Yeary, J. dissenting).

xxviii. American Psychiatric Association Text Updates, Intellectual Developmental Disorder, (2021) https://psychiatry.org/File%20Library/ Psychiatrists/Practice/DSM/IDD Text Update.pdf

xxix. AAIDD 12 at 33.

xxx. DSM 5 TR at 38.

xxxi. DSM 5 TR at 29.

xxxii. DSM 5 TR at 42.

xxxiii. Ex parte Segundo at *3 (Keller, P.J. dissenting) (“Because intellectual disability was litigated at trial, we should treat the issue on habeas the same as we treat any other issue on habeas that has been litigated at trial. We should not be deciding the issue of intellectual disability as if it had first been litigated here. But deciding whether Applicant is intellectually disabled by a preponderance of the evidence does just that.”).

xxxiv. Tex. Code Crim. Proc. Art. 37.071 §5(a)(1) (3).

xxxv. See, e.g., Ex parte Davis, WR 40,339 09, 2020 WL 1557291 at *3 (Tex. Crim. App. Apr. 1, 2020) (not designated for publication).

xxxvi. Ex parte Segundo at *13 (Yeary, J. dissenting).

Lane Thibodeaux is Board

Certified by the Texas Board of Legal Specialization in Criminal Law and Criminal Appellate Law. He has tried death penalty and Atkins claims cases to verdict. Lane is also father to a child diagnosed with Intellectual Disability. His office is located in Bryan, Texas and can be reached by email at lanet1@msn.com.

Congratulations to Porscha Brown and co-council Michael Moore on a not guilty on a Aggravated Sexual Assault of a child under 14. The case involved multiple allegations of sexual intercourse. The client was 27 years old, and the Complainant made an identification of the client. However, they were able to suppress the DNA expert, demonstrate the failures of law enforcement, and highlight the multiple inconsistencies by the Complainant. The client spent more than 2 years in jail but will now be able to walk out a free man. Fantastic job!

Amazing work by Charlie Baird on two acquittals! In Bastrop County, a long-running disagreement over a boundary line for an easement. Client was charged with murder when he shot and killed an employee of the property owner. I argued client’s use of deadly force was in self-defense, defense of a third party (client’s father and brother), defense of property and prevent criminal mischief in the nighttime. Jury agreed and acquitted. In Travis County, Indecency with a child by contact. Client, wife, stepdaughter, and son were at a party celebrating son’s baptism. Complaining witness said client left the party and touched her vagina over her clothes. Defense witnesses said client never left the party. Complainant had motive to lie – obtaining a U Visa so mother could reenter the United States. Judge Selena Alvarenga, 460th District Court, acquitted. Way to go!

Kudos to Dean Watts for obtaining a a dismissal on an organized criminal activity case in Nacogdoches! The case had been pending for several years, but he hung tough and finally got a dismissal a few days before jury selection. Great work!

Stellar job by William Browning & Russ Hunt, Jr., who convinced a Travis county jury to return a manslaughter verdict in a murder case they tried in mid-March. This was quite a remarkable verdict as the shooting was captured on very clear surveillance video, which showed that their client shot the victim while he was running away from the client, with nothing in his hands, and with his back completely turned to the client. The key to achieving the favorable verdict was the evidence showing the long history of unprovoked assaultive acts and verbal threats from the decedent to the client, both of whom were un-housed individuals in the downtown Austin-6th street area. The client, who could have faced an enhanced or habitual sentencing range, was sentenced to 15 years in prison, far better than the pre-trial offer of 30 years. Amazing!

Welcome New TCDLA Members!

March 16, 2023 - April 15, 2023

Regular Members

David V. Azad - Richardson

Desmond L. Cooks - Dallas

Trevor Finster - Port Lavaca

Robin Forsythe - Allen

Dustin Fox - Round Rock

Forrest Robert Good - San Antonio

Michelle S. Grimes - Dallas

Bakhtawar Hafiz - Denton

Brevin Jackson - Lumberton

Alexandra Lawson - Dallas

Matthew Mateer - Houston

Rob McKinney - Nashville

Imelda Mendez-LlanasHouston

Bern A. Mortberg - Tyler

Luis F. Pumarejo - Waxahachie

Mark Richman - Fort Worth

Anthony Tornal SimmonsCypress

Stanley Sokolowski - Palestine

Sina Zadeh - Houston

Public Defender Members

Erica Galeon - San Antonio

Affiliate Members

Sandy Grigar - Orchard

Investigator Members

Paul Park - Boston, MA

Louis A. Parry - Miami, FL

Student Members

Alexis Nicole Archer - Fort Worth

Joanna Baker - Dallas

Nelly Sanchez Estrada -

Paralegal Members

Micah Darius Rudisill - Plano

IMMIGRATION ENFORCEMENT PRIORITIES AND NONCITIZEN DEFENDANTS JULIE PASCH

On November 29, 2022, the U.S. Supreme Court heard arguments in United States v. Texas, an action brought by the states of Texas and Louisiana that challenged an Immigration and Customs Enforcement (ICE) Enforcement Priorities Memorandum issued by the Secretary of Homeland Security in September of 2021. Immigration enforcement priorities, generally, and the outcome of this case in particular can help us predict whether our clients might encounter ICE at some point during their criminal cases.

Enforcement Priorities

Just as the State prioritizes its resources and determines what behavior to prosecute in the criminal legal system, immigration officials must decide how to focus their resources when apprehending and deporting noncitizens.

In September 2021, the Department of Homeland Security (DHS) issued new enforcement priorities. These guidelines covered who ICE should prioritize for enforcement, i.e., place into removal (deportation) proceedings. The policies were set to take effect on November 29, 2021.

However, ICE is still in the Enforcement Priorities Memo (also known as “the Mayorkas memo”, after its author, the Secretary of Homeland Security Alejandro N. Mayorkas; “the Guidance”; or “the Guidelines”), ICE officers were reminded of their broad discretion “to decide who should be subject to arrest, detainers, removal proceedings, and the execution of removal orders.” Mayorkas instructed ICE officers to “prioritize for apprehension and removal noncitizens who are a threat to our national security, public safety, and border security.” He defined a threat to national security as a person who is “engaged in or is suspected of terrorism or espionage, or terrorism related or espionage related activities, or who otherwise poses a danger to national security.” To determine whether an individual should be considered “a current threat to public safety,” Mayorkas stressed that there are no bright lines or categories, and that ICE officers should assess the individual and the “totality of the facts and circumstances.” He wrote that the “overriding question is whether the

noncitizen poses a current threat to public safety.” Finally, Mayorkas defined a “threat to border security” as someone who is “apprehended at the border or port of entry while attempting to unlawfully enter the United States” or who was “apprehended in the United States after unlawfully entering after November 1, 2020.”1

Practically, this meant that many of our noncitizen clients who were subject to removal (for example, because they were unlawfully present in the United States2 or because of a criminal conviction3) were not considered enforcement priorities for ICE and many were not issued an ICE detainer.4 Though the effects of this policy varied from jurisdiction to jurisdiction, many clients convicted of DWI or Assault on a Family Member were not taken into ICE custody after leaving criminal custody even though they were removable under immigration law.

Lawsuits Challenging the Enforcement Priorities

On February 3, 2021, and April 6, 2021, two separate suits seeking to challenge the memo were filed. The first was filed in the Southern District of Ohio by the states of Arizona, Montana, and Ohio.5 The Sixth Circuit ultimately

1 See Dept. of Homeland Security; “Guidelines for the Enforcement of Civil Immigration Law” Memorandum, (Sept. 20, 2021), available at: https://www.ice.gov/doclib/news/guidelines civilimmigrationlaw.pdf

2 See 8 U.S.C. §1182(a)(6)(A)(i)

3 See generally 8 U.S.C §1227(a)(2)

4 ICE issues detainers “on individuals who have been arrested on criminal charges and who ICE has probable cause to believe are removable non citizens. The detainer asks the other law enforcement agency to notify ICE before a removable individual is released from custody and to maintain custody of the non citizen for a brief period of time so that ICE can take custody of that person in a safe and secure setting upon release from that agency’s custody.” See https://www.ice.gov/features/detainers. These detainers are lodged pursuant to 8 C.F.R. §287.7.

5 See Arizona v. Biden, 593 F. Supp. 3d 676 (S.D. Ohio 2022), rev’d and remanded, 40 F.4th 375 (6th Cir. 2022). The lawsuits challenged

reversed a preliminary injunction of the Guidance. The second was filed in the Southern District of Texas by Texas and Louisiana6. On June 10, 2022, the Southern District of Texas vacated nationwide the Mayorkas memo.7 The United States asked for a stay from the Fifth Circuit, which was denied on July 6, 20228, and then from the Supreme Court, which was denied on July 21, 20229. In the stay application, the United States had requested that the Supreme Court view the application as a petition for certiorari, which the Supreme Court granted.10

The Supreme Court directed the parties to brief three issues: (1) Whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security’s Guidelines; (2) Whether the Guidelines are contrary to 8 U.S.C. §1226(c) (which governs the mandatory detention of noncitizens who have been convicted of certain crimes) or 8 U.S.C. §1231(a) (which governs the detention and removal of noncitizens who have been ordered removed), or otherwise violate the Administrative Procedure Act; and (3) Whether 8 U.S.C. §1252(f)(1) prevents the entry of an order to “hold unlawful and set aside” the Guidelines under 5 U.S.C. §706(2). See U.S. v. Texas, 143 S. Ct. 51 (2022).

During oral arguments on November 29, the justices debated all three questions presented.11

Practical Effects

What is the practical effect of the memo and subsequent litigation on our noncitizen clients? First and most importantly, the Mayorkas memo is no longer in effect. ICE cannot rely on it when determining when to exercise prosecutorial discretion (i.e., when deciding who to place in removal proceedings).

ICE is, however, still able to exercise discretion on a case by case basis. Though officers cannot rely on the Guidance to exercise discretion regarding groups of noncitizens, ICE can initial guidance issued by DHS on January 20 and February 18, 2021. This guidance was very similar to, but superseded by, the Mayorkas Memo issued in September 2021.

6 See Texas v. United States, 606 F. Supp. 3d 437 (S.D. Tex. 2022), cert. granted before judgment, 213 L. Ed. 2d 1138, 143 S. Ct. 51 (2022).

7 See id.

8 Texas v. United States, 40 F.4th 205 (5th Cir. 2022)

9 United States v. Texas, 143 S.Ct. 51 (2022)

10 See Id.

11 See Howe, Amy, “Justices delve into a trio of thorny issues in states’ challenge to federal immigration policy”, SCOTUSblog (Nov. 29, 2022, 4:55 PM), available at: https://www.scotusblog.com/2022/11/justices delve into a trio of thorny issues in states challenge to federal immigration policy/

lawfully do so based on individual circumstances. It seems probable that ICE is more likely to exercise discretion for individuals whose situations closely match those outlined in the Guidance simply because it does not seem logical to use scarce resources to prioritize defendants with low level criminal convictions or particularly sympathetic situations.

Immigration attorneys throughout Texas have reported a gradual shift. Prior to June 25, 2022, when the vacatur became effective, ICE was generally not issuing detainers for defendants who met the guidelines for prosecutorial discretion. Clients with misdemeanor convictions and some less serious felony convictions were generally not receiving detainers, with an exception for those defendants who had already received a final order of removal from an immigration court. S ince the end of June 2022, ICE has been issuing detainers in more cases, and often for defendants who previously would not have been considered a priority for enforcement. This has led to a higher number of detainers overall. In Harris County alone, about 6.67% of the jail population was subject to an ICE detainer prior to June 2022; as of December 2022, that percentage had risen to about 10%.12

Advising Clients

Though it is impossible to promise clients that they will not be picked up by ICE, if the Mayorkas memo stands after the Supreme Court decision (or further District Court/ Circuit Court proceedings), it may be possible to attempt to resolve clients’ cases in a way that minimizes the likelihood of contact with ICE. In addition, in some cases, it is helpful to avoid additional jail time (excepting time served) for clients to minimize the chance that ICE will issue a detainer. ICE is more likely to use its limited resources to issue a detainer rather than going into the community to arrest someone, and additional jail time means a second opportunity for them to review the case.

Immigration attorneys in your jurisdiction should have the most recent information on how ICE is prioritizing cases. TCDLA also has information on resources for Padilla advisals for many jurisdictions on its website.13

Overall, the Supreme Court’s decision will likely have significant consequences for our noncitizen clients. A decision on United States v. Texas is expected by the end of the Court’s term in June or July of 2023.

12 See Harris County, Texas, “Jail Population Hisotry”; available at: https://charts.hctx.net/jailpop/App/JailPopHistory; ICE detainer information on file with the author

13 See Resources at tcdla.com

Julie Pasch is the immigration attorney at the Harris County Office of Managed Assigned Counsel and a member of TCDLA’s Crimmigration committee.  She advises appointed criminal defense attorneys in Harris County and their clients on the immigration consequences of criminal convictions, in compliance with Padilla v. Kentucky.  Previously, she spent ten years representing noncitizens in removal proceedings who were detained by ICE in Chicago, Houston, and the Rio Grande Valley.  She can be reached at Julie.pasch@mac.hctx.net or (832) 927-4025.

A DNA Profile:  From Your Trash to Police Treasure STEVE MIEARS

In 1988, it was decided that the Fourth Amendment did not prohibit the warrantless search and seizure of garbage voluntarily left for collection outside the curtilage of a home. California v. Greenwood, 486 U.S. 35, 37, 108 S. Ct. 1625 (1988). The Court said: “The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.” Greenwood, 486 U.S. at 39. Since then a police officer’s “trash run” or “trash pull” of a person’s garbage without a warrant based upon probable cause has been a valid investigative tool used by police to look for evidence of a crime. What was once a man’s trash, however, is now a trove of genetic treasure used by investigators to obtain a person’s unique DNA profile. A discarded cup, straw or tissue is likely to yield a DNA profile. The police can identify or eliminate a suspect by swabbing items of collected trash and sending it to a laboratory for DNA testing. Constitutional challenges in courts to these warrantless searches of trash to obtain DNA are still in the evolving stage.

Recently, in McCurley v. State, 653 S.W.3d 477 (Tex. App.—Fort Worth 2022, no pet. h.),1 the Second Court of Appeals of Texas addressed a Fourth Amendment challenge to this procedure. In that case, a single source DNA profile was developed in 2019 from the victim’s

1 As of this writing, a petition for discretionary review to the Texas Court of Criminal Appeals challenging the decision has not been acted upon by the Court. See McCurley v. State of Texas, PD 0566 22 filed November 21, 2022.

clothing recovered in a 1974 unsolved capital murder case. DNA STR technology was employed to develop this profile. “STR” stands for “Short Tandem Repeat Polymorphism.” Most of our DNA is identical to DNA of other persons. However, there are inherited regions of our DNA that can vary from person to person. Variations in DNA sequences between individuals are termed “polymorphisms.” This profile was sent to the FBI’s national DNA database known as CODIS. Databases such as CODIS look only at about 20 locations of repeating segments of DNA, known as loci. Scientists consider these loci to be “junk” DNA that is useful only for identification purposes. Most DNA labs currently only look at about the same limited number of loci. CODIS did not produce a DNA profile which matched the one from the crime scene developed through DNA STR testing .

However, detectives involved in that case heard about a new type of DNA technology, known as DNA SNP, being used by a few labs. The differences between DNA STR analysis and DNA SNP analysis are huge. DNA SNP technology results in a cornucopia of genetic information. Single nucleotide polymorphisms, or SNPs (pronounced “snips”), are the most common type of genetic variation among people. Each SNP represents a difference in a single DNA building block, called a nucleotide. DNA SNP allows for the analysis of hundreds of thousands of loci scattered across the genome—not just the usual 13 20 loci. Future studies will work to identify SNPs associated with complex diseases such as heart disease, diabetes, and cancer. Some researchers postulate that analysis of the whole DNA sequence of an organism can determine race, sexual orientation, intelligence, and even political

predispositions.

Using DNA SNP technology by investigators to solve crime is known as forensic grade genomic sequencing (FGGS). Currently, there are only a few DNA laboratories capable of taking a sample of DNA and doing a DNA SNP analysis. One is the Othram Laboratory in Houston, Texas. Othram’s DNA SNP results are then used by another company known as GEDmatch. GEDmatch collects DNA profiles accumulated by other companies such as 23 and Me and Ancestry.com. GEDmatch maintains a database of these DNA profiles, ostensibly for genealogy research. A person’s ancestors can be identified from this database and a family tree can be constructed.

In McCurley, Othram developed a family tree from the results of the DNA SNP analysis and using the GEDmatch database. This provided detectives with the surname of the person who had left his DNA on clothing where the victim’s body was found. That family name was McCurley. Cold case detectives recognized the name as one of many suspects who had been questioned by detectives in 1974. After he passed a polygraph in 1974, however, detectives lost interest in him as a suspect. In 2020, the detectives found Mr. McCurely. He was alive, much older, but still living near the Fort Worth bowling alley where the

abduction of the victim had occurred.

Without a warrant, officers surreptitiously gathered McCurley’s garbage in a trash run. A swab from a sample of the trash was sent to a DNA lab for STR testing. A DNA profile was obtained which corresponded perfectly with the single source DNA profile found at the crime scene in 1974.

McCurley argued in a pre trial motion to suppress that a warrantless search of his abandoned property to acquire his DNA profile violated his Fourth Amendment right to privacy. Predictably, the trial court and Court of Appeals disagreed. The Court of Appeals said McCurley had no standing to contest a search of his voluntarily abandoned trash. The Court said that no exception to the “well established abandonment of property doctrine” for a DNA profile “exists in Texas or, from what we can tell, any other jurisdiction in the nation.” McCurley, 653 S.W.3d, at 23.

However, applying a new technology to property or information over which a person has surrendered control has been the subject of recent Fourth Amendment cases. They call into question the continued validity of the abandonment of property doctrine as applied to searches of trash for DNA. In Riley v. California, 134 S. Ct. 2473 (2014), the Court found that, though the police had an individual’s cellphone legally under the search incident to arrest doctrine, a forensic search of the contents of that cellphone constituted an additional search which required either a warrant supported by probable cause or by a warrant exception to justify it constitutionally. In United States v. Jones, 132 S. Ct. 945 (2012), it was held that a person cannot abandon a privacy interest in some types of information that has been made public. In Jones, the Court concluded that the attachment of a Global Positioning System (GPS) tracking device to a vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, was a search and seizure within the meaning of the Fourth Amendment.

The Supreme Court next held that digital information voluntarily released to a third party could still retain a privacy interest under the Fourth Amendment in Carpenter v. United States, 138 S. Ct. 2206, 2208 (2018). It held that the government’s acquisition from wireless carriers of a defendant’s historical cell site location information (CSLI) was a search under the Fourth Amendment. When the government accesses CSLI without probable cause, it invades a reasonable expectation of privacy. That the government obtained the information from a private third party did not overcome the defendant’s claim to Fourth Amendment protection. Riley recognized that in order to

function in society people had to use cell phones which have to use cell towers. “In the first place, cell phones and the services they provide are ‘such a pervasive and insistent part of daily life that carrying one is indispensable to participation in modern society.” Carpenter v. United States, 138 S. Ct. 2206, 2220 (2018). A person’s decision to give the cell provider their location information was hardly to be considered voluntary. Instead, it was correctly viewed as necessary to function in society.

Analogizing these cases (Riley, Jones, and Carpenter) to searches of trash to harvest DNA is worthwhile. A strong case can and should be made by the defense bar for the requirement of a warrant to forensically analyze trash for DNA.

The Fourth Amendment starts out by affirming that “The right of the people to be secure in their persons *** against unreasonable searches and seizures, shall not be violated.” USCS Const. Amend. 4. It is doubtful that few things could be more part of a person than their unique DNA profile. But humans constantly shed countless skin cells. A human sheds as much as 100 pounds of DNA containing material in a lifetime and about 30,000 skin cells an hour. Krimsky, S., & Simoncelli, T. (2012).  DNA Data Banks, Criminal Investigations, and Civil Liberties. Columbia University Press. We unknowingly leave samples of our DNA behind everywhere we go. Any effort to avoid leaving DNA on anything you have touched, sneezed, or sweated upon would be futile. It would require relinquishing the liberty to participate in life itself.

In a 4 3 decision, Maryland’s top court ruled in 2014 that police collection of “inadvertently shed” DNA without a warrant or consent did not violate the Fourth Amendment.   Raynor v. State, 440 Md. 71, 99 A.3d 753, 2014 Md. LEXIS 538 (2014). The Maryland court said that leaving one’s genetic material behind is akin to a fingerprint—so no privacy invasion occurred, the majority reasoned. “In the end, we hold that DNA testing of the 13 identifying junk loci within genetic material, not obtained by means of a physical intrusion into the person’s body, is no more a search for purposes of the Fourth Amendment, than is the testing of fingerprints, or the observation of any other identifying feature revealed to the public— visage, apparent age, body type, skin color.” (Emphasis added.) The U.S. Supreme Court declined to review the case in 2015. Raynor v. Maryland, 574 U.S. 1192, 135 S. Ct. 1509 (2015). So, for now, police rummaging through trash for biological material and using only DNA STR analysis to obtain 13 loci of “junk” DNA passes a Fourth Amendment smell test. But DNA SNP analysis on the same garbage should arguably cause a different result.

Even as applied to DNA STR analysis, however, the supporters of the abandonment of property doctrine as applied to shed DNA must be made to grapple in motions to suppress with the doctrine’s requirement that the trash was abandoned intentionally and voluntarily. In Comer v. State, 754 S.W.2d 656, 659 (Tex. Crim. App. 1988), the

Court held that abandonment consists of two components:

1) a defendant must intend to abandon property, and 2) a defendant must freely decide to abandon the property.

Which brings us back to California v. Greenwood. In Greenwood, the defendant argued he demonstrated an expectation of privacy in his trash because he put it in opaque bags on the street for collection at a fixed time. But the Court said it was still available for public inspection and expressly to have strangers take it. The court concluded that the police could not reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. This begs the question: Must a person “manifest” a subjective expectation of privacy in their DNA profile when it is constantly unintentionally and unknowingly abandoned? A visual inspection of the trash never reveals whether it will yield a DNA profile. Police must theorize what items of the trash are most likely to contain DNA. Any evidentiary value of the trash for DNA is not apparent to police eyes unless it is forensically analyzed.

The McCurley case presages that Texas Courts will be disinclined to impose a warrant requirement as a precondition to police swabbing trash. However, like all emergent technologies, DNA SNP will eventually become less expensive and more accessible by DNA labs.2 DNA SNP will eventually replace the use of DNA STR.

Quoting Katz, 389 U. S., at 351 352, 88 S. Ct. 507, 19 L. Ed. 2d 576, the Court in Carpenter said: “A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, ‘what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.’”  Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). The challenge ahead to the defense bar will be to persuade courts that society recognizes that a person still maintains an expectation of privacy in shed DNA.

2 The Texas legislature invested the Texas Forensic Science Commission with rulemaking authority. Tex. Code Crim. Proc. 38.01, sec. 3 a. These rules are found in Chapter 37 of the Texas Administrative Code. The Rules specifically require any DNA lab doing DNA SNP analysis to be accredited by the Commission before the test results are admissible. Othram was not accredited by the Commission at the time of the McCurley case. Nevertheless, the Court of Appeals held that this error was harmless. McCurley, id., at 29.

Steve Miears When he’s not fly fishing or playing golf, Steve Miears can be found practicing criminal defense law in Grapevine, Texas.  He is Board Certified in Criminal Law and Criminal Appellate Law.

Listen Up! Constitutional Issues Involving Deaf Defendants

AMBER FARRELLY

Occasionally we have the opportunity or find ourselves in a situation where the issues surrounding our client and case are more than challenging. Be it the legal issues, the court (and staff), language, disability, or just mere unfamiliarity with such an unique set of circumstances in the case that we are left with a sense of shock and even helplessness on how to defend our client. I’m going to tell you about a case where I had all of the above.

I frequently represent deaf clients. (Yes, it’s deaf, not “hearing impaired”). This was not a plan or business choice, but rather by a happenstance and then later drive by a sense of responsibility having seen the openly blatant marginalization and discrimination against Deaf people. I learned American Sign Language (ASL) as a child and grew up learning sign in the Deaf community. I am fluent and later became a court certified interpreter.

With this, I am often requested or more often “ordered” to interpret for my client by the court myself (including once an entire jury trial) and have even had a show cause hearing on the matter. Of course, I must refuse. Each time this occurs I am frustrated; repeating the statute and Constitutional rights of my deaf clients to no measure of improvement or progress.

Most of the time I am able to explain communication issues and concerns to the State and Court to get deaf cases back on track. However, I sometimes find myself struggling not only with the client, but with the system itself.

In this particular case, my client was Deaf and had been on felony probation for over two years. He was attending weekly court ordered sex offender group counseling. During these weekly meetings, the issue arose that he was not “participating” in treatment and was

subsequently kicked out of the group. That issue led to a motion to revoke his probation with the recommendation of significant TDC time. Once I got on the case, I was informed that he never had a qualified interpreter for his group counseling, nor for his separate weekly meetings with his probation officer. However, the probation office was quite proud of having another probation officer, not his and if available, who had learned the alphabet “interpreting” these meetings for him. I further learned that he was required to stay overnight several times a year for holidays that “included children.” The “A,B,C,” wielding probation officer of course refused to stay overnight with these men who were again required to read certain books and participate in sharing their story.

My client was also prevented from attending the only Deaf church in the county, going through the McDonald’s drive through, and then even coming to my office since it was within 1,000 feet of a preschool. Several months into his probation, I learned that he never had a qualified, court certified interpreter on his very serious case and, like most Deaf people, had a third grade reading level and did not know what a “prosecutor” was. It was evident to me what was happening (as it happens more often than not). After much jumping up and down, two hearings, and countless headaches, the court agreed that yes, my Deaf client should have an interpreter. (It’s the law).

Deaf people constantly encounter resistance, marginalization, and blatantly open discrimination in the hearing world every day. Imagine having to grow up without background context and everything having to be taught to you one on one. Imagine not being able to understand the doctor when taking your child to the emergency room; not being able to do anything

spontaneously because getting an interpreter, if they even provide one, takes a week to coordinate; having to have a third person constantly in every aspect of your life for every situation including the birth of a child, a surgery, a court case, counseling, and every time you wanted to do anything. It is frustrating and exhausting.

I often must explain to judges, court coordinators, prosecutors, pretrial services, probation, counseling education instructors, and anyone else even remotely involved, the need for an interpreter at hearings and trial for my deaf clients.

A common thread in my explanation is that it’s not like Spanish or other spoken languages. ASL is not “English on the hands.” Those who learned the alphabet on “Sesame Street,” learned a song in church, or watched a few videos online because sign language is “neat” are not sufficient. They are not legal nor court interpreters. Their attempt at “helping” in a situation with a deaf person often does more harm than good. Likewise, I am against any law enforcement personnel even learning basic signs because it suggests the idea that they can interpret or gesture their way through an interrogation, leaving the deaf person confused while violating their rights.

Every time I notify the Court that an interpreter is required, I always get the retort about the hassle, misunderstanding, and most importantly the cost. I remind everyone that the law provides and requires a court certified interpreter, and that they are not writing a personal check to pay for the interpreter(s).

With all of this said, I’m sharing with you the very basics when representing a deaf client.

Visual Language

First, ASL is a visual language which presents a difference from spoken languages. That means it is also a physical language. The hands can only move so fast. Because of the physical nature of sign language interpreting, there is a high risk of repetitive motion injury, carpal tunnel syndrome, etc. This is one major reason an ASL interpreter partners with a team and is relieved frequently.

Secondly, there is a concern for accuracy. Because ASL is a distinct language with its own grammar and syntax, it cannot be interpreted verbatim, or word for word. The interpreter’s oath is to “adequately interpret from one language to another” and to maintain the message from one language to another. It is not English. Studies show that the accuracy rate of an interpreter decreases by as much as 80% after twenty minutes of interpreting. Interpreting ASL is not only a physically taxing profession but a mental one as well.

American Sign Language is derived from French sign language. Therefore, ASL is only used in the US and Canada. While I can understand about half of French sign language, I cannot understand any British sign. So again,

it is not English.

Disability

Deafness is a physical disability according to both the Americans with Disability Act (ADA) and Texas statutes. Deafness can be thought of as a spectrum—no two deaf people are alike. There are many factors that come into play, such as how they were raised, if born to hearing or Deaf parents, level of schooling, auditory decibel loss, and culture.

Yes, Title II of the ADA comes into play. Deafness is a physical disability and affects people’s lives to a significant degree to require legal protection. However, Constitutional and Texas statutes are even more powerful when representing a deaf client.

The key issue of deafness and communication is effectiveness. The concern: “is communication taking place effectively?” This is a question that only the people involved can answer. The deaf person, depending upon their communication preference, can inform you and the court of their preferred communication oral, a signed language, (there are more than one type of sign language), or a combination.

It Matters that your Client is Deaf

ASL is not English and trying to communicate by writing back and forth is not only insufficient but ineffective. As a defense attorney, you have the absolute right and responsibility to communicate with your client effectively. You are entitled to a court certified interpreter provided by the court for all situations, including all court appearances, pretrial settings, and attorney client meetings in your office. Effective communication is a due process right under the Constitution.

You can have a real, detailed conversation in half the time with an interpreter, rather than a convoluted question answer session over pen and paper. Let’s face it, time is money. And having an interpreter will not only help to clearly facilitate communication, but will earn your client’s trust and respect for communicating with them in their language.

The second reason to provide for an ASL interpreter is to assist with your case. A skilled court certified interpreter is not only your communication specialist, but can be your expert as well. They can provide you with information to better assist you with your client. They sit in the same capacity as would your DNA expert, which let’s be frank, is pretty much a foreign language to most of us. An effective interpreter will help identify issues related to deafness or Deaf culture. And more likely than not, there is an issue there whether it be your main issue or a secondary one. So, it matters that your client is deaf.

I no longer file a Motion for Interpreter; I file an Invocation of Right to Interpreter. I file this every time, regardless of how the court appears at the beginning of the

case because that may change, especially when the cost of interpreters and the number begin to catch their attention. I file this because unlike spoken language interpreters where the court “may” provide an interpreter, with deaf defendants, it is a separate statute and is a right—a “shall” instead.

Article 38.31

Article 38.31 of the Code of Criminal Procedure addresses this issue. This statute is often overlooked because of its placement in the CCP. Art. 38.30 is for spoken language clients, while deaf individuals are separated in and an article of their own. There is good reason for this. Deafness is a disability under Title II of the ADA. The Texas legislature understood this and sought to provide extra protection for deaf persons as a protected class. It is evident in its constant mention/reference throughout numerous Texas Codes.

Article 38.31 states:

a. If the court is notified by a party that the defendant is deaf and will be present at an arraignment, hearing, examining trial, or trial, or that a witness is deaf and will be called at a hearing, examining trial, or trial, the court shall appoint a qualified interpreter to interpret the proceedings in any language that the deaf person can understand, including but not limited to sign language.

b. Following the filing of an indictment, information, or complaint against a deaf defendant, the court on the motion of the defendant shall appoint a qualified interpreter to interpret in a language that the defendant can understand, including but not limited to sign language, communications concerning the case between the defendant and defense counsel. [emphasis added].

The Code of Criminal Procedure defines “Deaf person” as:

a. “a person who has a hearing impairment, regardless of whether the person also has a

speech impairment, that inhibits the person’s comprehension of the proceedings or communication with others.”1

And a “Qualified interpreter” as

a. an interpreter for the deaf who holds a current legal certificate issued by the National Registry of Interpreters for the Deaf or a current court interpreter certificate issued by the Board for Evaluation of Interpreters at the Department of Assistive and Rehabilitative Services.

Constitution

Acquiring and demanding the right to a qualified, court certified interpreter is paramount. The CCP is unequivocally clear. However, the right to access to real, effective communication with your client is rooted in the Constitution. Language access is Sixth Amendment access to your client. Courts have upheld the few instances this issue has been raised, noting the right to be notified of the accusations, to confront the accused, to obtain witnesses, and to retain counsel.

Likewise, the Fifth and Fourteenth Amendments’ due process clauses justify the right to interpreters within the criminal justice system. Not having the right interpreter or communicating in the right mode of language, is ripe for an appeal. An interpreter is required for a non English speaker to access the justice system. This includes any type of court setting, probation meeting, and court ordered counseling. For Deaf individuals, this requirement is not only mandated as a person who does not speak the English language, but as a person with a disability.

Additional Texas Statutes

The Texas Human Resource Code states that a “Qualified interpreter” means a person employed as an interpreter who holds a current certification issued by the Board for Evaluation of Interpreters, or another current certificate that the Texas Commission for the Deaf and Hard of Hearing determines is comparable or appropriate and approves.2

Texas Administrative Code, Title 40, Part 2, Rule Sec. 109.303 provides that:

b. A person interpreting court proceedings in Texas courts must hold a current court interpreter certificate issued by the BEI or a current legal certificate issued by the RID.

Texas Administrative Code, Title 40, Part 2, Rule Sec. 109.323

a. In each civil case, deposition, or criminal action in Texas courts for which an individual will

1 Article 38.31(g)(1).

2 Human Resource Code, Title 4, Sec. 82.001(1)

interpret testimony, the individual must be qualified as court interpreter for that particular case before commencing to interpret testimony.

b. An individual shall not interpret a court proceeding or deposition unless properly qualified under this subsection as court interpreter for that particular case.

Texas Government Code, Title 2, Subtitle D. Judicial Personnel and Officials, Chapter 57, governs Court Interpreters.

1. “Certified court interpreter” means an individual who is a qualified interpreter as defined in Article 38.31, Code of Criminal Procedure, or Section 21.003, Civil Practice and Remedies Code, or certified under Subchapter B by the Department of Assistive and Rehabilitative Services to interpret court proceedings for a hearing impaired individual.

7. “Court proceeding” includes an arraignment, deposition, mediation, court ordered arbitration, or other form of alternative dispute resolution.

Qualified interpreters

If you are bilingual or speak a second language, you know that interpreting is very different than conversing in another language, let alone using legalese itself another language. For a deaf person who is forced to rely on a person who thinks people on stage signing songs is neat or beautiful with only basic knowledge of sign language, finger spelling “indictment” with a deaf client who has never heard that word before is meaningless.

Despite what anyone tells you, no parent, sibling, boyfriend, or friend can interpret anything in our realm for your deaf client, nor should they. Do not use family, friends, or anyone else who says they know “some sign language.” It is not English. Court interpreting is a skilled profession which requires certification after many examinations and performance tests. Interpreting is taking the initial message and altering it to be understood in the target language. The message will not be adequately interpreted, is ineffective as an attorney, and a Class A misdemeanor for those attempting it in court proceedings.3

Back to the case at hand. Although the probation office thought they were accommodating my client, they

3 Texas Administrative Code, Title 40, Part 2, Rule Sec. 109.303(b)

obviously were not. My client had pled to a serious offense and became a registered sex offender for life. He had an interpreter for the plea, so in the Court’s and everyone else’s minds, that was good enough. He never had an interpreter explain the probation rules, sex offender registration rules, any overnight mandatory shut ins, and had, at best, an eager employee in the probation office who learned her alphabet from YouTube videos and “Sesame Street.”

Although the State adamantly believed this was adequate and that regardless, he didn’t deserve any accommodations, the State did not comply with the law. The interpreter did not hold court certification as required by the Code of Criminal Procedure, Article 38.31, Texas Administrative Code, Title 40, Part 2, Rule Sec. 109.303 and 109.323, and Texas Administrative Code, Title 40, Part 2, Rule Sec. 109.361 and committed a Class A misdemeanor punishable by up to a year in jail and up to a $4,000.00 fine.4

The stringent requirements of court certification for a sign language interpreter are justified. I’ve seen it myself. I continually see court interpreters use wrong signs for “prosecutor,” “plea,” and “charge.” It is because of this continued lack of understanding legalese and refusal to admit when they are not providing accurate interpretation that I teach legal interpreters across the U.S. It is directly tied into the notion of due process and participation in one’s defense. To this day, I question the original court proceedings and everything that led up to his plea.

This is only one experience of too many, and I am still dealing with the same basic issues every time. If you have a deaf client, it matters. Take the time to do it right. The law is in your favor.

4 (a) A person may not interpret for a hearing-impaired individual at a court proceeding or advertise or represent that the person is a certified court interpreter unless the person holds a current court interpreter certificate issued by the BEI or a current legal certificate issued by the RID.

(b) Violation of the prohibition in this section is a Class A misdemeanor offense under Government Code, §57.027(a), and may, in addition subject the violator to an administrative penalty assessed by the department under Government Code, §57.027(b) and §109.339 of this title (relating to Administrative Sanctions Enforceable by the Department).

Amber Farrelly is a criminal defense attorney in Austin, Texas.  She received her undergraduate degree from the University of Oklahoma and her Juris Doctorate degree from Arizona State University with the highest distinction for her pro bono work.  She specializes in Deaf clientele and is a BEI court-certified interpreter in American Sign Language (ASL).  She routinely presents and provides legal interpreting training for ASL interpreters throughout the country.  Amber has worked with the Innocence Project and the Texas Civil Rights Project.  She has testified as an expert in numerous cases, including the Stephen Brodie exoneration case.  She is dedicated to and an advocate for the Deaf.

46th Annual Tim Evans Texas Criminal Trial College

March 26-31, 2023

• Huntsville, Texas

Deans:

Lance Evans & Kerri Anderson Donica

Deans Emeritus:

Lydia Clay-Jackson and Tim Evans

Faculty:

Richard Anderson - Dallas

Phil Baker - La Grange

Eric Davis - Houston

Nicole DeBorde HochglaubeHouston

F.R. Buck Files - Tyler

Lisa Greenberg - Corpus Christi

Michael Gross - San Antonio

Tip Hargrove - San Angelo

Kameron Johnson - Austin

Jeff Kearney - Fort Worth

Laurie Key - Lubbock

Adam Kobs - San Antonio

Jim Lavine - Houston

Bobby Mims - Tyler

Tyrone Moncriffe - Houston

David Moore - Longview

Michelle Ochoa - Beeville

Tom Pappas - Dallas

Stephanie Patten - Fort Worth

Scott Pawgan - Converse

Carmen Roe - Houston

David Ryan - Houston

Grant Scheiner - Houston

John Hunter Smith - Sherman

Mark Snodgrass - Lubbock

Monique Sparks - Houston

Clay Steadman - Kerrville

Stephanie Stevens - San Antonio

Patty Tress - Denton

Paul Tu - Richmond

Ezekiel Tyson - Dallas

Rick Wardroup - Lubbock

Greg Westfall - Fort Worth

Randy Wilson - Abilene

Jedrick Burgos, Houston

Kimberley Campbell, Fort Worth

Kristin Dow, San Antonio

Fred Howey, Fort Worth

Bret Mansur, Odessa

Nicholas Morrell, Kilgore

David Olivas, Dallas

Diana Perez, Corpus Christi

Annie Scott,Houston

Hugh Brasher, Houston

David Cantu, Edinburg

Ruben Cartwright, Houston

Erica Galeon, San Antonio

Kistian McCray, Dallas

Troy Nicholson, Lubbock

Paula Robnett, Houston

John Shipley, Fort Worth

Taylor Thames, Sugar Land

Bianca Almaguer, Houston

Brandon Bibby, Houston

Myrecia Donaldson, Houston

Leah Jackson, Plano

Jamie John, Wichita Falls

Ben Koshy, Dallas

Melanie Lister, Austin

Rene Munoz, San Antonio

Elizabeth Russell, San Antonio

Al Valdez, Houston

Messeret Fessehai, Dallas

Brittany Gomez, Dallas

Beatrice Gonzales, Katy

Manuel Guerra, Spring

Matthew Hefti, Houston

JaNeen Hopkins, For Worth

Zacery Munoz, San Antonio

Rocky Ramirez, San Antonio

Mark Streiff, Fort Worth

Greg Wilson, San Antonio

Faculty: Buck Files & Tyrone Moncriffe

Faculty: Eric Davis, Adam Kobs & Scott Pawgan

Faculty: John Hunter Smith & Clay Steadman

Faculty: Phil Baker, Jim Lavine, & Greg Westfall

Daniel Albert, Houston

Thomas Beach, Fort Worth

Drew Darnell, Sugar Land

Jay’Neisha Davis, Floresville

Xalli Gonzales, San Antonio

Caytlin Pichla, Spearman

Nell Smith, San Antonio

Karen Sova, San Antonio

Claire Wieczorek, San Antonio

Macie Alcoser, Houston

Christy Cauthen, Odessa

Joshua Davidson, Richmond

Timothy Godwin, Haslet

Bradley Haggard, Katy

Stephanie Pimentel, Spring

Audris Ponce, Houston

Catherine Stanley, Fort Worth

Samuel Terry, Houston

Warren Blair, Spring

Sarah Carmichael, Greenville

Hailey Dunn, Rockwall

Jesse Garza, San Marcos

Matthew Johnson, Lubbock

Eben Knight, Austin

Alberto Long, Laredo

Taylor Matthews, Arlington

Spencer Smith, Waco

Luis Arango Petrocchi, Dallas

Emily Bloom, Burnet

Steven Boman, Humble

Patrick Bordallo, Conroe

Nicholas Guillory, Austin

Veronica Lockett, Austin

Imelda Mendez-Llanas, Houston

Tony Lopez, Humble

Caitlin Meriwether, Lubbock

Rebecca Sanders, Lubbock

Erica Wheeler, Denton

Faculty: Kameron Johnson & Richard Anderson

Faculty: Michael Gross & Randy Wilson

Faculty: Lydia Clay-Jackson, Tip Hargrove, & Rick Wardroup

Faculty: Bobby Mims & Stephanie Stevens

Significant Decisions Report

Slow month in the opinion business. Let’s do pop culture cases, I guess. Did you know right after Gwyneth Paltrow won her $1 verdict in her countersuit against the optometrist who ran her over on the ski slope, she walked over to his table on the way out of the courtroom and whispered to him “I wish you well?” How gangster is that?

I think the coolest thing I’ve ever said after winning is “from a person who loses most of the time, you suck at it.” I should have gone with “I wish you well.” #Gwynnocent #SignificanthPaltrow.

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.

Sincerely,

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

United States v. Hamilton, 46 F.4th 389 (5th Cir. 2023)

Attorneys. Paul Clement (appellant)

Issue & Answer. 18 USC § 666 criminalizes bribery concerning a local government. The statute creates an offense to corruptly give anything of value to any person with the intent to influence or reward a local government official. Can a person commit an offense under this section when that person gives donations to a city council member akin to a gratuity and receives no quid pro quo? No.

Facts. “Ruel Hamilton gave money to members of the Dallas City Council. He received nothing tangible in return.” The Government indicted him for bribery “concerning a local government.” Hamilton is a real estate developer who is involved in local politics. Hamilton had a close relationship with Councilwoman Carolyn Davis. Davis served as chair of the Dallas Housing Committee at various times relevant to the prosecution. Hamilton donated to Davis’s campaign and to Davis’s preferred candidates. The Government theorized that Hamilton worked to obtain two benefits from his relationship: During this period of donations, the city recommended one of Hamilton’s projects to the State for State funding. But the funding was rejected by the State and Hamilton received nothing.

1. Hamilton strategized to put a paid sick leave measure on the ballot to increase voter turnout and increase the likelihood of his preferred candidates’ election. When he failed to obtain the necessary ballot signatures, he lobbied the city council to adopt the ballot measure. Hamilton met with Dwaine Caraway, a city council member, and pitched the ballot proposition. At the end of the conversation, he praised the city council member and discussed the future potential for

partnering on projects in the member’s district.

“Hamilton left the door open for the ask” and the council member implied he needed cash for personal/ health reasons. Hamilton wrote a check to cover a specific bill. It was later disclosed that Caraway was working at the direction of the FBI for a benefit in his own federal prosecution.

At trial Hamilton claimed his political donations were above board and his gift to Dwaine Caraway was money he gave to help a friend. The trial court instructed the jury that the bribery statute required neither a quid pro quo nor an official act by the council.

Analysis. Essentially, the district court believed that Section 666 (bribery of a local government) statute criminalized mere gratuities without a quid pro quo. The statute authorizes a felony conviction for:

(a) Whoever . . .

(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a [local government], or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government or agency involving anything of value of $5,000 or more . . .

This provision grew out of a circuit split over a broader statute criminalizing bribery of public officials and the question of whether bribery of public officials extended to local officials. The predecessor statute criminalized bribery (corruptly giving or offering with the intent to influence an official act) and gratuity (giving “for or because” of an act performed or to be performed by a public official). In interpreting the distinctions under the predecessor statute, the Supreme Court explained “the difference between the two was intent: bribery requires an intent to influence; illegal gratuity requires only that the gratuity be given or accepted for or because of an official act. In other words, bribery requires a quid pro quo—“a specific intent to give or receive something of value in exchange for an official act”—illegal gratuity does not.”

The Supreme Court further clarified that a gratuity is not illegal if it is given merely because of the public official’s office. When Congress codified the instant statute (Section 666) it included provisions for both bribery and gratuity. Congress eventually abandoned the gratuity language through recodification. Thus, the instant statute (Section 666) intends to criminalize bribery only—an act requiring a quid pro quo. In so holding the Court need not address the First Amendment issue “lurking just beneath the surface.”

Texas Court of Criminal Appeals

Sledge v. State, No. PD-0065-22 (Tex. Crim. App., Mar. 8, 2023)

Attorneys. Ronald Goranson (appellate), Lisa Fox (Trial)

Issue & Answer. “When the trial court grants a motion for a new trial based only on the bare recitation that the verdict is contrary to the law and evidence, without more, may the accused be tried again for the same offense without violating principles of double jeopardy? No.

Facts. The defendant shot a gun at some people over a dice game. When police caught him, he had heroin, cocaine, and a gun in his possession. A jury convicted the defendant of possession with intent to deliver heroin and cocaine and of felon in possession of a firearm. After sentencing, the trial court granted a boilerplate motion for new trial that alleged: “the verdict is contrary to the law and evidence.” The prosecution was re instituted, and the defendant represented himself pro se. Three months later the defendant filed an untimely appeal that the Fifth Court of Appeals dismissed citing the restoration of the case to its pre trial status.

The defendant eventually sought appointed counsel and proceeded to a second trial. Before the second trial, defense counsel argued that double jeopardy had been triggered by the fact that TDCJ accidentally took custody of the defendant during the previous new trial period (seemingly arguing that he had already been punished). The trial court denied the motion. A second jury convicted the defendant and found the habitual offender enhancement allegations true, despite the fact that the first jury rejected the same enhancement. The defendant appealed and the court of appeals granted a new trial on punishment only.

Analysis. The prohibition against double jeopardy includes protection against a second prosecution for the same offense after acquittal, protection against a second prosecution for the same offense after conviction, and protection against multiple punishments for the same offense. “Our review in this case concerns the first category, namely whether Appellant’s first prosecution and conviction—which culminated in the trial court’s decision to grant a boilerplate motion for new trial—constituted an acquittal such that Appellant’s second prosecution for the same offenses violated the Fifth Amendment.”

Here the trial court granted a motion for new trial alleging the first verdict was “contrary to the law and evidence.” The Court of Criminal Appeals has explicitly treated this recitation as the same as a declaration of insufficient evidence. A judicial finding of insufficient evidence results in acquittal and a defendant cannot be retried. The State suggests that the court should carve out an exception to this rule, one where the court considers the conduct of the parties following the granting of a boilerplate motion. But, courts should not twist the meaning of words to comport with intentions that could

have been challenged had the State been paying closer attention when the purported issue arose.

Dissent (Yeary, J.). “It is almost inconceivable to me that the trial judge in this case granted Appellant’s motions for new trial under the belief that he was thereby declaring the evidence to be legally insufficient to support the three offenses for which the jury had convicted him.” The issue is not properly before the court. The record requires more development.

Comment. I kind of sympathize with the State here. I mean it’s a boilerplate motion that gets filed all the time. I gripe a lot about appellate courts holding lawyers who get into the trenches and try cases day in and day out to the standard of a lawyer who nerds out with both a Westlaw and a Lexis subscription. Our justice system is (unfortunately) designed for most criminal trial lawyers to handle 150 300+ cases. This is true for both sides of the bar. The resolution of this case existed in a nook or a cranny of the law that most lawyers don’t have the luxury of time to explore.

Igjobi v. State, No. PD-0936-20 (Tex. Crim. App.—Mar. 8, 2023)

Attorneys. Brian Middleton (trial)(appellate)

Issue & Answer. Can the existence of an automatic delete feature on a social media app pose an exigent circumstance that, when combined with probable cause,

justifies a warrantless seizure of a cell phone for a period long enough to obtain a search warrant? Possibly.

Facts. The defendant was an employee of KFC and a suspect in a robbery that occurred at his restaurant. Co workers learned that the defendant recorded the robbery on Snapchat. A detective met with the defendant to discuss his recording. The defendant told the detective that Snapchat automatically deletes videos after 24 hours. The detective asked for consent to search the phone and the defendant refused. The detective told the defendant he had two options: (1) give consent to search the phone, in which case the defendant would have the phone back quickly, or (2) the detective would have to seize the phone and obtain a search warrant, which would take much longer. The defendant continued to refuse consent and the detective seized the phone and sought a warrant. In his warrant application the detective explained that he “refused to believe” that Snapchat deleted videos and that cell phones nonetheless retain videos that are seemingly deleted. The detective obtained the warrant but did not execute it until two days later. In a suppression hearing the detective testified that there was no urgency justifying his immediate seizure of the defendant’s phone and had no explanation for why he did not obtain a copy of the video from the employees who reported that they had seen it on their own Snapchat feed. The trial court denied the defendant’s motion to suppress. The court of appeals

reversed by concluding that the detective did not have exigent circumstances to seize (and hold) the phone while obtaining a warrant. The court of appeals acknowledged the potential of video deletion as a feature of Snapchat, but found the record lacked “any evidence showing or permitting an inference that Appellant was taking affirmative steps to destroy evidence on his phone.”

Analysis. One exception to the requirement of a warrant is the simultaneous existence of probable cause and exigent circumstances. Preventing the destruction of evidence or contraband is an exigency. Fourth Amendment protection extends to warrantless seizures the same as it does warrantless searches. It applies even when officers want to seize property and hold it while they work to obtain a warrant. Under this standard, the possibility of evidence destruction will sometimes justify the seizure of the phone long enough to obtain a search warrant. The court of appeals erred in its consideration of this issue by focusing on the lack of affirmative conduct on the part of the suspect. Affirmative conduct on the part of the suspect may give rise to an exigency, but it is not the only way the record may affirmatively show that evidence was in danger of being imminently destroyed. Moreover, the court of appeals did not analyze whether the seizure was reasonable as a brief detention of personal property subject to less rigorous scrutiny under the Fourth Amendment.

Comment. The court of appeals is just going to reverse this with a more finely tuned analysis. Even if an automatic delete feature of a social media app can create an exigent circumstance such an exigency disappears after any automatic deletion would operate to delete the relevant footage. Think about it: “I must exigently get a copy of the video that I know won’t be there (or have no

basis to conclude that it will still be there).”

Ruffins v. State, No. PD-0862-20 (Tex. Crim. App. Mar. 29, 2023)

Attorneys. Anthony Cantrell (trial), Karen Oprea (appellate)

Issue & Answer. The trial court crafted a jury instruction that erroneously required jurors to apply the accomplice witness rule (accomplices must be corroborated) only if it found the relevant witness to be an accomplice beyond a reasonable doubt. Trial counsel objected, but his proposed instruction also set out the burden erroneously. In this scenario was the error invited such that the defendant is estopped from raising it on appeal?

Yes.

Facts. The defendant committed a robbery with accomplices. Law enforcement discovered his identity through an acquaintance. The acquaintance was present during the planning stages of the robbery, but there was disagreement at trial about whether he participated in the planning or was merely present. At the request of the defendant, the trial court instructed the jury on the necessary corroboration for an accomplice witness. The instruction required the jury to find beyond a reasonable doubt that the acquaintance was an accomplice beyond a reasonable doubt before applying the rule of corroboration. Defense counsel expressed some concerns about the charge during the charge conference, the court reworded the charge but persisted in placing the reasonable doubt burden on the defendant. As it related to the newly worded instruction, trial counsel confirmed “I’m good.” The State argued on appeal that the defendant should be estopped from demanding relief because he invited the error. The court of appeals rejected the State’s argument and reversed the defendant’s conviction. The court of appeals concluded that the defense counsel’s initial expression of his concern to the trial court essentially set out the correct standard and the defendant could not have invited error because the error already existed in the court’s initial charge.

Analysis. The court of appeals erred in interpreting what defense counsel stated in critiquing the trial court’s initial charge. Defense counsel’s objection claimed the reasonable doubt standard was missing from the accomplice witness instruction: “But I don’t think there’s been an instruction that they need to believe—when they consider accomplice, they have to agree beyond a reasonable doubt that he is an accomplice. I don’t think that’s in here.” The court read the erroneously worded charge to defense counsel and defense counsel stated, “I’m good.” The court of appeals further erred in finding that the defendant should be estopped only when he explicitly invites the error. Estoppel is appropriate when the present

claim is inconsistent with prior conduct. The defendant had some responsibility for the jury instruction—more so than simply stating “no objection.” “Instead, by taking issue with the reasonable doubt instruction that he specifically requested, Appellant is presently asserting an inconsistent position and would derive an unfair advantage if not estopped.”

Concurring (Yeary, J.). Would find the error harmless instead of focusing on whether the error was invited. Comment. Would the error have existed but for defense counsel’s unclear explanation of how the charge should read? Yes. I’m not sure this is the type of sandbagging that fits with the list of cases cited by the Court where defendants caused the problem they are complaining about on appeal.

Ex parte Lozoya, No. WR-92,475-01 (Tex. Crim. App. Mar. 29, 2023)

Attorneys. Lindsey Adams (writ)

Issue & Answer 1. When a defendant accepts a plea agreement for an illegal sentence without knowing it is an illegal sentence, has the defendant accepted a benefit such that the defendant should be estopped from complaining about the illegality of a sentence on appeal? No.

Issue & Answer 2. When a trial court erroneously sentences a defendant to a probationary period longer than the law permits, does the trial court nonetheless retain jurisdiction to revoke that probation after the legally permissible period until the judgment has been set aside? No.

Facts. The defendant pled guilty to two counts of third degree felony “obtaining a controlled substance by fraud.” The State incarcerated him for four years on one count and placed him on probation for ten years on the other. In year six the trial court revoked the defendant’s probation and sentenced him to five years. In the present writ of habeas corpus, the defendant correctly asserts that the maximum period of probation for a third degree “obtaining a controlled substance by fraud” is 5 years and that the State’s motion was out of time. The State contends that the defendant should be estopped from challenging his sentence because he accepted the benefits under his plea agreement.

Analysis 1. Estoppel by contract occurs when the party accepts a benefit pursuant to an agreement. Estoppel by contract “turns on whether a party took a position inconsistent with essential facts recited in the contract to the prejudice of another.” The better way to describe this going forward is “estoppel by acceptance of benefits” which applies when a defendant accepts the benefits of a plea agreement. This doctrine of estoppel is limited. “It is essential that the person against whom the estoppel is claimed must have acted with knowledge of the facts and of his or her rights.” There is no voluntary acceptance

when the person is unaware of material facts. Here there can be no estoppel because the prosecutor, judge, and defense counsel all believed a ten year probationary period was permitted by the law. Put another way, there is no evidence here that the defendant was aware he was bargaining away his right not to be placed on supervision for the correct period of time.

Analysis 2. “The [State] argues that, so long as the trial court had jurisdiction to place a defendant on community supervision, it has jurisdiction to revoke the defendant’s community supervision—even after the lawful period of supervision ends—until the order is set aside or the trial court grants relief under Article 11.072. We are not persuaded. A trial court must have jurisdiction for each action it takes.”

Comment. I’ve learned that this is called the “Texas Two Step.” Johnson County loves this maneuver. It’s crappy. I also have learned you only get to be as crappy as you are smart.

4th District San Antonio

Rodriguez v. State, No. 04-21-00503-CR (Tex. App.— San Antonio, Mar. 8, 2023)

Attorneys. John Lamerson (appellate), Kathy Starling (trial)

Issue & Answer. When nobody in a vehicle fesses up to possessing the methamphetamine found in the tobacco tin, are remnants of tobacco in the defendant’s mouth sufficient to affirmatively link the defendant to the methamphetamine and convict him of possession? Yes.

Facts. The defendant was the passenger in a vehicle stopped by an officer. During the stop the driver consented to a search of the vehicle. The officer found methamphetamine in a tobacco tin located in the glovebox. It appeared to be fresh, and the tin appeared to be full. Both the defendant and the driver denied ownership. When the officer discovered remnants of tobacco in the defendant’s mouth the defendant told the officer that it was not from the tin found in the glove box.

Analysis. To prove that the defendant knowingly possessed contraband that was not found on his person, there must be affirmative links to the contraband. In cases involving vehicles with multiple occupants courts can look to any of the following factors:

(1) the contraband was in plain view; (2) the contraband was conveniently accessible to the accused; (3) the accused was the owner of the place where the contraband was found; (4) the accused was the driver of the automobile in which the contraband was found; (5) the contraband was found on the same side of the car seat as the accused was sitting; (6) the place where the contraband was found was enclosed;

(7) the strong odor of marijuana was present; (8) paraphernalia to use the contraband was in view of or found on the accused; (9) conduct by the accused indicated a consciousness of guilt;

(10) the accused had a special connection to the contraband; (11) occupants of the automobile gave conflicting statements about relevant matters; (12) the physical condition of the accused indicated recent consumption of the contraband found in the car; and (13) affirmative statements connect the accused to the contraband.

Here, the record supports affirmative links pursuant to factors (2) (5) (6), and (10). The defendant had access to the meth, the defendant was sitting on the side of the car where the officer found the meth, the officer discovered the meth in a closed container, and the tobacco in the defendant’s mouth established a connection. The officer found the methamphetamine in a chewing tobacco tin and only one of the two men had chewing tobacco in his mouth. The officer discovered no other chewing tobacco in the vehicle.

Comment. Weak.

Auld v. State, No. 04-22-00071-CR (Tex. App.—San Antonio, Mar. 15, 2023)

Attorneys. Patrick Ballantyne (appellate), Douglas Daniel (trial), Woodrow Jennings Halstead (trial)

Issue & Answer 1. If an officer subjectively believes a witness from whom he derives probable cause, must the officer report in a warrant affidavit the facts that may call into question the witnesses credibility? No.

Issue & Answer 2. The open fields doctrine provides that a person’s expectation of privacy on his property ends at the edge of his or her curtilage. Should the Fourth Court of Appeals abandon this doctrine because it is outmoded or because the Texas Constitution provides more protection than the United States Constitution? No. Facts. A jury convicted the defendant of murder. At trial the State relied heavily on evidence obtained pursuant to two separate search warrants. The first warrant was based upon information gathered from a witness present at the time of the murder. The defendant moved to suppress the evidence obtained from the first warrant and claimed the investigating officer omitted material facts affecting the witness’s credibility; namely, that: (1) [The victim and the witness] had used hallucinogenic mushrooms the night [the victim] died, (2) as a result of hallucinogenic drug use, [the victim and the witness] were a “giggling mess” and “off in our own little world,” (3) [the witness] described herself as a “survivor” who “can be pretty [f***ing] convincing if I have to be,” (4) the witness earned her living as a “call girl,” (5) the witness suffered brain damage as the result of a cocaine overdose at the age of eighteen, and (6) the witness was a recovering heroin addict.

The investigating officer testified that he did not find any of these facts important enough to provide to the warrant magistrate. He did not believe the facts impacted the witness’s credibility and she appeared to be rational and sincerely affected by having been witness to the events surrounding her friend’s murder.

The second warrant authorized the search of a burn pit on the property of the defendant’s property where he lived. Using the burn pit warrant, officers discovered a cell phone and purse belonging to the victim as well as bullet fragments from the location where the victim was shot. The trial court rejected the defendant’s Fourth Amendment challenge to the second warrant on standing grounds.

Analysis 1. A defendant can challenge the truthfulness or (dishonest omissions) in a Franks hearing. Franks v. Deleware, 438 U.S. 154 (1978). The defendant’s burden in a Franks hearing is a preponderance showing

that a material misstatement was made intentionally or knowingly or with reckless disregard for the truth. Here, the investigating officer omitted facts which could potentially lead a person to believe that the witness was not credible. However, the Franks hearing evidence established that the investigating officer sincerely believed the witness and had no concerns about credibility. This was sufficient testimony for the trial court to have acted within its discretion to find that the omissions did not arise from intentional, knowing, or reckless disregard for the truth.

Analysis 2. The relevant property is a 5,600 acre family ranch on which the defendant lived since he was two years old. He lives in a house on that property, keeps his belongings on the property, has access to the buildings on the property, and manages hunting operations on the property. The defendant also has authority grant and deny access to the property. He is a member of a family partnership which owns and maintains the property. Although a person has a reasonable expectation of privacy in the curtilage surrounding his home, the “open fields” doctrine exists as a limitation on this privacy—there exists no expectation of privacy in unoccupied or undeveloped areas outside of the curtilage. Here, the burn pit was outside of any curtilage of any structure on the ranch. The defendant advances two arguments for not applying the open fields doctrine to reject his Fourth Amendment claim:

(1) a claim that the US Supreme Court’s open fields doctrine is outmoded and should be rejected, and

(2) a claim that the Texas Constitution provides broader protection by making warrants required to search “any place.” The Fourth Court of Appeals has no authority to overrule Supreme Court precedent and concurs with sister courts that have held that the special protections of Article I, Section 9 of the Texas Constitution do not extend to open fields.

Comment. This is a 17 page opinion with just shy of two pages of analysis. Why shouldn’t an officer have an obligation to report to the magistrate facts that call into question the credibility of his informant simply because the officer subjectively believes the informant? Why shouldn’t the Texas Constitution provide privacy rights in open fields? “Because they don’t” is essentially the answer here.

7th District Amarillo

Bethel v. State, No. 07-21-00297-CR (Tex. App.— Amarillo, Mar. 8, 2023)

Attorneys. John Wright (appellate), Rusty Gunter (trial), David Wanner (trial)

Issue & Answer 1. One way of committing capital murder is by killing more than one person during different criminal transactions, but pursuant to the same

scheme. The law does not define the concept of a criminal transaction. Must the trial court give a definition for the jury? No.

Issue & Answer 2. The trial court’s accomplice witness instruction (explaining the necessity of witness corroboration) advised the jury: “David Bethel is an accomplice to the crime of murder, if it was committed, a lesser included offense of the crime charged in the indictment.” David Bethel did not testify at trial. Is this an improper comment on the weight of the evidence or prejudicially confusing? No.

Issue & Answer 3. Does the trial court have an obligation to caution a jury about the testimony of a particularly shady witness who has an immunity agreement from the prosecution in exchange for her testimony? No.

Issue & Answer 4. Accomplice witness testimony must be corroborated. A witness can be an accomplice witness as a matter of law, or as a matter of fact. When a witness is an accomplice as a matter of law, the trial court must explicitly instruct the jury that the court has already made the determination. When a witness unquestionably acts as an accomplice, but some evidence suggests she did so under duress, is it appropriate for the trial court to let the jury decide the question as a matter of fact? Yes.

Facts. The defendant had a girlfriend (Payton). He woke up one morning and learned that she had taken his money and she was cheating on him with another man (Shawn). The defendant lived with his cousin (David) and his cousin’s girlfriend (Jessica). Sometime after the defendant’s girlfriend left him, the Defendant and David hatched a plot and killed Payton and Shawn. The Defendant and David convinced Jessica to take part by luring Payton to where the Defendant would be lying in wait.

Analysis 1. Statutorily defined terms must be included in the court’s charge. Generally, the trial court should not include definitions that are not statutory. The exception is for “terms which have a known and established legal meaning, or which have acquired a peculiar and appropriate meaning in the law . . . .” “Same scheme” and “criminal transaction” are concepts which are understood according to common parlance. The trial court was correct to reject the defendant’s request to define.

Analysis 2. The instruction was qualified as “the crime of murder, if it was committed.” Such an instruction

is intended to help the defendant. The defendant did not object to the inclusion of the instruction and therefore reversal is called for only where there is egregious harm. There was no harm here, at all.

Analysis 3. The defendant described Jessica as a “memory impaired, state immunized Backpage prostitute . . . a prosecution admitted unindicted co conspirator and long time [David] tag along.” Even if all of this is true, the court cannot comment on the weight of the evidence or suggest a witness is honest or dishonest.

Analysis 4. A witness is an accomplice as a matter of law when (1) the witness has been charged with the same offense as the defendant or a lesser included offense, (2) the State charges the witness with the same or lesser included offense as the defendant but dismisses the charges in exchange for the witness’s testimony against the defendant, or (3) the evidence is uncontradicted or so one sided that a reasonable juror could only conclude the witness was an accomplice. If the evidence is conflicting, the trial court must let the jury make the determination as to whether the witness is in fact an accomplice before applying the rule requiring corroboration of accomplice testimony. Here, not only was Jessica potentially acting under duress (threats by another co conspirator), but there was also a suggestion that she believed she was only assisting in an act of intimidation or a fight. Jessica might have been an accomplice, but not an accomplice as a matter of law.

Comment. A lot of very fact specific issues were resolved with fairly black letter law.

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

• 1st District Houston

• 2nd District Fort Worth

• 3rd District Austin

• 5th District Dallas

• 6th District Texarkana

• 8th District El Paso

• 9th District Beaumont

• 10th District Waco

• 11th District Eastland

• 12th District Tyler

• 13th District Corpus Christi/Edinburg

• 14th District Houston

RUSTY DUNCAN

Forensics Scenes

Medical Examiner ..........................................................Je rey Barnard

Cell Phone & Computers ......................................................Eric Devlin

Crime Scene Blood Spatter & Gun Residue ..........Anita Zannin Vida

DNA .......................................................................................Lynn Garcia

The Business Set Economics, Practice, & Advertising ...................................Brent Mayr Confessions of a Burned Out Warrior ...................John Hunter Smith

The Federal Set

Federal Motion Practice .............................................Michael Heiskell

Federal Sentencing Guidelines & E ective Advocacy ....................................................Judy Madewell 5th Circuit Update .............................................Hon. Henry Bemporad

Sexual Assault .....................................................................Je Kearney

Post-Verdict Scenes

Mitigation & Investigation .................................Philip Wischkaemper

Collateral Consequences & Crimmigration ........................Cori Hash

Writs, Appeals, & Preserving the Record ..............Jani Maselli Wood

Enhancements, Punishments, & Sentencing ...............Cli ord Duke

Scholarships available! Visit tcdla.com or email jsteen@tcdla.com