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Not Guilty V. Cerberus: Winning Intoxication Manslaughter Trials P FOR THE DEFENSE Volume 47 No. 2 | March 2018 Mark Thiessen | Not Guilty v. Cerberus: Winning Intoxication Manslaughter Trials p. 23 Clint Broden | The Business Duty Rule for Business & Public Records p. 29 Sign up online at www.tcdla.com March 22–23, 2018 Royal Sonesta Hotel 300 Bourbon Street New Orleans, LA TroyMcKinney GaryTrichter MimiCoffey DougMurphy Editor Sarah Roland Denton, Texas 940-323-9305 [email protected] Assistant Editor Stephen Gustitis Bryan, Texas 979-823-9111 [email protected] Contents Significant Decisions Report Editor Michael Mowla 972-795-2401 Features [email protected] Design, Layout, Editing Craig Hattersley Not Guilty v. Cerberus: Winning TCDLA Home Office Intoxicated Manslaughter Trials 512-646-2733 23 [email protected] Mark Thiessen TCDLA Officers: President The “Business Duty” Rule for David Moore | Longview Business and Public Records President‑Elect 29 Mark Snodgrass | Lubbock Clint Broden First Vice President Kerri Anderson-Donica | Corsicana Second Vice President Grant Scheiner | Houston Columns Treasurer Michael Gross | San Antonio 6 President’s Message Secretary Heather Barbieri | Plano 10 Interim Executive Director’s Executive Director Perspective Joseph A. Martinez 512-646-2726 Ethics and the Law [email protected] 12 DIRECTORS Federal Corner 15 Chris Abel, Flower Mound Scott H. Pawgan, Conroe Susan E. Anderson, Dallas Oscar Peña, Laredo Shout Outs 19 Jorge Aristotelidis, San Antonio Carmen Roe, Houston Marjorie Bachman, Austin Jeremy Rosenthal, McKinney Roberto Balli, Laredo David Ryan, Houston Robert J. Barrera, San Antonio Frank Sellers, Fort Worth Departments Curtis Barton, Houston Jessica Skinner, San Angelo CLE Seminars and Meetings Rick Berry, Marshall John Hunter Smith, Sherman 5 Kristin Brown, Dallas Monique Sparks, Houston Significant Decisions Report Anne Burnham, San Antonio Courtney Stamper, Waxahachie 33 Jim Darnell Sr., El Paso Mark Thiessen, Houston Danny Easterling, Houston Gregory Allen Waldron, Longview Donald H. Flanary, San Antonio Casie Gotro, Houston Associate Directors Rusty Gunter, Lubbock Frank Brown, San Angelo Keith S. Hampton, Austin Jason Cassel, Longview Melissa L. Hannah, Lufkin Brian Eppes, Fort Worth Steve A. Keathley, Corsicana Ricardo Flores, Austin Susan Kelly, Waco Ruth Gomez Serra, Brownsville Laurie L. Key, Lubbock Heather Hall, El Paso Adam L. Kobs, San Antonio John Hunter, San Antonio Thuy Le, Houston Kelly Pace, Tyler Bradley K. Lollar, Dallas George Roland, Denton Louis Elias Lopez Jr., El Paso Jed Silverman, Houston Hiram McBeth, Dallas Stephanie Stevens, San Antonio Nathan L. Miller, Houston Seth Sutton, Waco Cover art by Caroline Lahaise Audrey Moorehead, Dallas Paul Tu, Houston (https://vyrilien.deviantart.com/gallery/) Michelle Ochoa, Beeville Michelle Simpson Tuegel, Waco Anthony C. Odiorne, Burnet Michael Ware, Fort Worth Volume 47 No. 2 • March 2018 Patrick O’Fiel, Kerrville Thomas Wynne, Dallas Voice for the Defense (ISSN 0364‑2232) is published monthly, except for January/February and July/August, which POSTMASTER: Send address changes to Voice for the Defense, 6808 Hill Meadow Drive, Austin, Texas 78736. are bi‑monthly, by the Texas Criminal Defense Lawyers Association Inc., 6808 Hill Meadow Drive, Austin, Voice for the Defense is published to educate, train, and support attorneys in the practice of criminal defense law. Texas 78736. Printed in the USA. Basic subscription rate is $40 per year when received as a TCDLA member CONTRIBUTORS: Send all feature articles in electronic format to Voice for the Defense, 6808 Hill Meadow Drive, benefit. Non‑member subscription is $75 per year. Periodicals postage paid in Austin, Texas. Dues to TCDLA Austin, Texas 78736, 512‑478‑2514, fax 512‑469‑9107, c/o [email protected]. are not deductible as a charitable contribution. As an ordinary business expense the non‑deductible portion of Statements and opinions published in the Voice for the Defense are those of the author and do not necessarily rep‑ membership dues is 25% in accordance with IRC sec. 6033. re sent the position of TCDLA. No material may be reprinted without prior approval and proper credit to the mag a zine. © 2017 Texas Criminal Defense Lawyers Association. (assistance to aid lawyers threatened with or incarcerated for contempt of court) Call (512)478-2514 or email Nicole, [email protected], or Reagan, [email protected]. Co-Chairs Rusty Gunter George Milner III District 9 Sheldon Weisfeld Nicole DeBorde Chuck Lanehart Richard Anderson Betty Blackwell Reagan Wynn Rick Wardroup David Botsford District 13 Bill Wischkaemper District 7 David Frank James Makin District 1 Craig Henry Keith Hampton Larry McDougal Jim Darnell District 4 Scrappy Holmes Scott Pawgan Mike R. Gibson Heather Barbieri Tim James District 10 District 14 Mary Stillinger Darlina Crowder David E. Moore Don Flanary Danny Easterling Barney Sawyer Gerry Goldstein Robert Fickman District 2 District 5 Michael Gross Grant Scheiner Tip Hargrove Greg Westfall District 8 Angela Moore Michelle Esparza Stan Schneider District 3 District 6 Steve Keathley District 12 Jeff Blackburn Kristin Brown Michelle Latray Joe Connors INSTANT ON-LINE SR-22 (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 From: ACCURATE CONCEPT INSURANCE Dallas: 972-386-4386 Toll Free: 800-967-4386 Advertisement (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 From: ACCURATE CONCEPT INSURANCE Dallas: 972-386-4386 Toll Free: 800-967-4386 4 TCDLA CLE & Meetings 4 Register online at www.tcdla.com or call (512)478-2514 Note: Schedule and dates subject to change. Visit our website at www.tcdla.com for the most up-to-date information. March 2018 April 27 July 12–13 March 9 CDLP | Writing | co-sponsored with the CDLP | Unleashing Your Inner Beast: CDLP | 7th Annual Craig Washington Harris County Public Defenders Office Defending Those Accused & Senator Rodney Ellis Criminal Law | Houston, TX South Padre Island, TX co-sponsored with Thurgood Marshall School of Law and Earl Carl Institute May 2018 July 14 Houston, TX May 4 TCDLA/TCDLEI/CDLP | Orientation TCDLA | 11th Annual DWI Defense South Padre Island, TX March 22–23 Project TCDLA | 25th Annual Mastering Grapevine, TX August 2018 Scientific Evidence | co-sponsored August 2–3 with the National College for DUI June 2018 CDLP | Innocence Work Defense June 20 Austin, TX New Orleans, TX CDLP | Public Defender Training San Antonio, TX August 17 March 25–30 TCDLA | 16th Annual Top Gun DWI CDLP | 42nd Annual Tim Evans Texas June 20 Houston, TX Criminal Trial College CDLP | Capital/Mental Huntsville, TX San Antonio, TX August 24 *Accepting applications CDLP | Against All Odds | co- June 21–23 sponsored with San Antonio Criminal April 2018 TCDLA | 31st Annual Rusty Duncan Defense Lawyers Association April 6 Advanced Criminal Law Course Houston, TX CDLP | Unleashing Your Inner Beast: San Antonio, TX Defending Those Accused September 2018 Salado, TX June 23 September 7 TCDLA | Annual Board Meeting** CDLP | Come and Take It April 6–7 San Antonio, TX Kerrville, TX CDLP | 54th Annual A. A. Semaan Criminal Law Institute | co-sponsored July 2018 September 13–14 with San Antonio Bar Association July 11 TCDLA | Voir Dire/Drugs San Antonio, TX CDLP | Trainer of Trainers Austin, TX South Padre Island, TX April 13 Seminars spon sored by CDLP are funded CDLP | Women Defenders July 11–15 by the Court of Criminal Appeals of Texas. TCDLA | Members Retreat Seminars are open to criminal defense Fredericksburg, TX attorneys; other pro fessionals who support South Padre Island, TX the defense of criminal cases may attend April 20 at cost. Law enforcement personnel and CDLP | Unleashing Your Inner Beast: prosecutors are not eligible to attend. Defending Those Accused Texas Criminal Defense Lawyers TCDLA seminars are open only to criminal Galveston, TX Educational Institute offers defense attor neys, mitigation specialists, scholarships to seminars for defense investigators, or other pro fessionals April 25 who support the defense of criminal cases. attorneys in need. Law enforcement personnel and prosecutors CDLP | Welfare Forensics are not eligible to attend unless noted “*open Houston, TX to all.” **Open to all members David E. Moore Remembering the Lawyers at the Alamo can still remember my first trip as a child to the Alamo.
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