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FUIJDT the course directors reserve my space / materials contact information Don Vernay • A required deposit of $25 reserves your space and materials. The $25 q new member q update my information • Rob Cowie deposit can be donated to TCDLA to offset expenses for hosting this name ______• John Niland seminar. If you do not wish to donate your deposit, you can request a refund at the seminar. Cancellations must be received in writing two • Philip Wischkaemper bar number ______weeks prior to the seminar for your deposit to be returned. the overview pre-registration, order by 9.8.06 street address ______The 4th Annual Forensics Seminar will offer six tracks including q book/cd $25 ______homicide I, homicide II, sexual assault, drug and labs, technology and q cd $25 assorted topics. In this unique format, presenters are actual experts in •registration with book is not available after 9.8.06 city ______state ______zip ______their fields, not lawyers. These experts give attendees an idea of what on-site registration (limited number of cds available) an individual in his/her discipline can do for a lawyer giving practical e-mail ______q cd $50* tips for use in a courtroom. For a detailed description of each track, *includes $25 tuition and $25 voluntary payment to support TCDLA phone ______fax ______please visit our website at www.tcdla.com. q if you do not wish to make the voluntary payment, please remit $25 the agenda only and mark this box join tcdla tCDla Membership fees (renew or join as a new member) 7:30 am •registration after 9.8.06 is available on-site onlY q new member (*see below)...... $75 Registration q renew membership...... $150 8:30 am meeting / lodging location Opening Remarks Doubletree Campbell Centre located at 8250 N Central Expressway * tCDla new Membership To sign up as a new member you will need a nominating endorsement in Dallas, Texas. Room rate is $95 single/double occupancy, 8:45 am from a current TCDLA member. Plenary complementary self parking, mention TCDLA room block. Call 214.691.8700 for reservations. “As a current member of TCDLA, I believe this applicant to be a person 10:00 am of professional competency, integrity, and good moral character. The hotel deadline is august 30, 2006, upon availability. Break applicant is licensed to practice law in Texas and is engaged in the 10:15 am defense of criminal cases, unless a student or affiliate applicant.” Late Morning Session mail or fax it TCDLA endorser’s name (please print) ______11:30 am mail registration to 1707 Nueces Street, Austin, Texas 78701 TCDLA endorser’s signature ______Lunch on your own fax registration with credit card information to 12:45 pm 512.469.0512 deposit / payment (Cash is not aCCePteD) Mid-Afternoon Session payment for payment type 2:00 pm q seminar registration q check payable to TCDLA Mid-Afternoon Session questions? email [email protected] or call 512.478.2514 q membership fee q credit card (visa, mastercard, amex or discover) 3:15 pm Break ______credit card number expiration date 3:30 pm Late-Afternoon Session ______name on card 4:45 pm Adjourn ______signature

tax notice: $36 of your annual dues ($19 if a student member) is for a one year subscription to the VOICE for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The www.tcdla.com non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033. P092006 . September 2006 P092006 VOICE for the Defense expiration date D) ______te P e (visa, mastercard, amex or discover) (visa, mastercard, zip CC a ______not ______Volume 35 No 7 Volume is payment type check payable to TCDLA card credit fax ash ______q q ...... $75 (C ______(renew or join as a new member) (please print) update my information state ees f q (*see below) ______payment ______/ ew Membership n The purpose of TCDLA is to
FUIJDT ______Membership $36 of your annual dues ($19 if a student member) is for a one year subscription to the la  features

payment for new member ______la new member membership...... $150 renew seminar registration membership fee protect and ensure otice: CD n t 14 bigfoot lives CD ax t Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary with IRC sec. 6033. and initial membership dues is $39 in accordance non-deductible portion of regular business expense. The contact information q name bar number address street ______city e-mail phone join tcdla t q q endorsement * nominating a need will you member new a as up sign To TCDLA member. a current from person a be to applicant this believe I TCDLA, of member current a The “As character. moral good and integrity, competency, professional of the in engaged is and Texas in law practice to licensed is applicant defense of criminal cases, unless a student or affiliate applica nt.” TCDLA endorser’s name TCDLA endorser’s signature deposit q q ______number card credit ______name on card ______signature by rule of law

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by tom rickoff those individual rights 18 how hearty is hardy? our expectation guaranteed by the of privacy in medical records 
Texas and Federal Constitutions by jason d. cassel Y in criminal cases; 24 motion of the month





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to resist the constant efforts columns 6 president’s message which are now being made 8 executive director’s perspective 

to curtail such rights;  10 editor’s comment

available on-site 12 federal corner not available after 9.8.06 materials 
is is / to encourage cooperation between lawyers departments $25 $25 $50* ugust 30, 2006, upon availability. (limited number of cds available) 5 membership benefits a engaged in the furtherance order by 9.8.06 order lodging location 7 staff directory of such objectives /

www.tcdla.com 9 schedule of events through educational programs 26 significant decisions report only and mark this box this mark and only if you do not wish to make the voluntary payment, please remit $25 $25 remit please payment, voluntary the make to wish not do you if book/cd cd cd and other assistance; otel deadline is reserve my space $25 The materials. and space your reserves $25 of deposit required A this hosting for expenses to offset to TCDLA be donated can deposit a request can you deposit, your donate to wish not do you If seminar. two writing in received be must Cancellations seminar. the at refund returned. be to deposit your for seminar the to prior weeks pre-registration, q q •registration with book on-site registration q TCDLA support to payment voluntary $25 and tuition $25 *includes q •registration after 9.8.06 meeting Expressway Central N 8250 at located Centre Campbell Doubletree in Dallas, Texas. Room complementaryrate is self $95parking, single/double mention214.691.8700 for reservations. TCDLA occupancy,room block. Call h mail or fax it to mail registration 78701 Austin, Texas 1707 Nueces Street, information card with credit fax registration to 512.469.0512 questions? email [email protected] or call 512.478.2514 and through such cooperation, education, and assistance to promote justice and the common good. EBMMBT
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Voice for the Defense (ISSN 0364‑2232) is published monthly, except for January/February and July/ CONTRIBUTORS: Send all feature articles to Rebecca Davis, 211 South Rusk Street, Weatherford, Texas August, which are bi-monthly, by the Texas Criminal Defense Lawyers Association Inc., 1707 Nueces 76086, 817.341.4500. Please send all other materials for publication to Emmett Harris, 114 E. North Street, Street, Austin, Texas 78701. Printed in the USA. Basic subscription rate: $40 per year when received as Uvalde, Texas 78801, 830.278.4551 or to Voice for the Defense, 1707 Nueces Street, Austin, Texas 78701, 4th annual forensics seminar a benefit of TCDLA membership. Non‑member subscriptions: $75 annually. Periodicals postage paid 512.478.2514, Fax 512.469.9107. E‑mail materials can be sent to [email protected]. at Austin, Texas. Statements and opinions published in the Voice for the Defense are those of the author and do not neces‑ POSTMASTER: Send address changes to Voice for the Defense, 1707 Nueces Street, Austin, Texas 78701. sarily represent the position of TCDLA. No material may be reprinted without prior approval and proper Voice for the Defense is published to educate, train and support attorneys in the practice of criminal credit to the magazine. ©2006- Texas Criminal Defense Lawyers Association. defense law. overview Don Vernay Rob Cowie John Niland Philip Wischkaemper the course directors • • • • the The and 4th technology Annuallabs, and drug Forensics assault, sexual II, Seminarhomicide homicideI, will offer in experts sixactual are presenters format, tracks unique this In topics. includingassorted what of idea an attendees give experts These lawyers. not fields, their practical giving lawyer a for do can discipline his/her in individual an of each track, tips for use For in description a a detailed courtroom. www.tcdla.com. at website our visit please the agenda 7:30 am Registration 8:30 am Opening Remarks 8:45 am Plenary 10:00 am Break 10:15 am Late Morning Session 11:30 am Lunch on your own 12:45 pm Mid-Afternoon Session 2:00 pm Mid-Afternoon Session 3:15 pm Break 3:30 pm Late-Afternoon Session 4:45 pm Adjourn DIRECTORS PAST PRESIDENTS Susan E. Anderson, Dallas OFFICERS Randy Wilson Kerri K. Anderson-Donica, Corsicana Abilene (2005‑2006) PRESIDENT Robert J. Barrera, San Antonio Daniel Hurley Robert “Bobby” Lerma Lubbock (2004‑2005) Samuel E. Bassett, Austin PRESIDENT‑ELECT FIRST VICE PRESIDENT Brownsville Cynthia Eva Hujar Orr Jason Butscher, Sherman Craig Jett H. F. “Rick” Hagen San Antonio (2003‑2004) John F. Carroll, San Antonio Dallas Denton Mark G. Daniel Lydia Clay-Jackson, Conroe TREASURER Fort Worth (2002‑2003) SECOND VICE PRESIDENT Dan Cogdell, Houston William Harris SECRETARY Betty Blackwell Stanley Schneider Ft. Worth Keith S. Hampton Austin (2001‑2002) Paul A. Conner, Fort Worth Houston Austin Robert Hinton John A. Convery, San Antonio Dallas (2000‑2001) Kenda Culpepper, Rockwall IMMEDIATE PAST PRESIDENT Michael P. Heiskell Juan Ramon Flores, Laredo Randy Wilson Fort Worth (1999‑2000) Michael P. Gibson, Dallas Abilene Kent Alan Schaffer Steven R. Green, Athens Houston (1998‑1999) E.G. “Gerry” Morris Michael C. Gross, San Antonio committees Austin (1997‑1998) John R. Heath, Jr., Nacogdoches David L. Botsford H. Thomas Hirsch, Odessa Austin (1996‑1997) Lynn Ingalsbe, Abilene Bill Wischkaemper Martin L. LeNoir, Dallas Amicus Curiae Death Penalty Lubbock (1995‑1996) Greg Westfall Philip Wischkaemper Liaison to Texas Public Defenders Sam H. Lock, San Antonio Ronald L. Goranson 817.877.1700 806.763.9900 Lawyers Assistance Clara Hernandez Dallas (1994‑1995) Constance A. Luedicke, Corpus Christi Program 915.546.8185 David R. Bires Reagan Wynn Kevin Fine James Makin, Beaumont Houston (1993‑1994) 817.336.5600 DWI 713.951.9994 Jim W. Marcus, Houston Gerald H. Goldstein Gary Trichter Strike Force W. Troy McKinney, Houston 713.524.1010 Stan Schneider San Antonio (1992‑1993) Bobby D. Mims, Tyler Appellate Legislative 713.951.9994 Richard Alan Anderson Larry M. Moore, Fort Worth Cynthia Hampton Keith Hampton Dallas (1991‑1992) 512.478.2514 Troy McKinney 512.476.8484 Tim Evans Doug Murphy, Houston 713.951.9994 White Collar Crime Forth Worth (1990‑1991) John P. Niland, Austin Mark Daniel John Convery Judge J.A. “Jim” Bobo Robert Kelly Pace, Tyler Budget 817.332.3822 210.738.99060 Odessa (1989‑1990) Bill Harris Tom Pappas, Dallas Hall of Fame Edward A. Mallett 817.332.5575 Gerry Morris William E. Price, Lampasas Houston (1988‑1989) 512.476.1494 Membership Charles D. Butts William H. Ray, Fort Worth Sheldon Weisfeld San Antonio (1987‑1988) Christian C. Samuelson, Houston By Law 956.546.2727 Bill Harris Innocence Knox Jones* George Scharmen, San Antonio 817.332.5575 Jeff Blackburn McAllen (1986‑1987) Grant M. Scheiner, Houston 806.371.8333 Nominating Louis Dugas, Jr.* Mark S. Snodgrass, Lubbock Corrections Craig Jett Orange (1985‑1986) Gary Cohen Frederick M. Stangl, Lubbock 214.871.7676 Clifton L. “Scrappy” Holmes 512.476.6201 Longview (1984‑1985) Sheldon Weisfeld, Brownsville Thomas Gilbert Sharpe, Jr. Russell Wilson, II, Dallas David O’Neil Brownsville (1983‑1984) 936.594.2123 Warren Alan Wolf, San Antonio Clifford W. Brown* William Reagan Wynn, Fort Worth Lubbock (1982‑1983) John S. Young, Sweetwater Charles M. McDonald Waco (1981‑1982) tcdla strike force Judge Robert D. Jones Associate Directors Austin (1980‑1981) Stephen U. Baer, Dallas Vincent Walker Perini District 7 District 10 Jaime E. Carrillo, Kingsville District 1 District 4 District 13 Dallas (1979‑1980) North Texas Northeast Texas Bexar County West Texas Southeast Texas George F. Luquette* Jason D. Cassel, Longview Jim Darnell H.R. “Rick” Hagen Barney Sawyer Cynthia Orr James Makin Clay S. Conrad, Houston Mary Stillinger Randy Wilson Scrappy Holmes John Convery Houston(1978‑1979) Bobby Mims George Scharmen Emmett Colvin* Harold J. Danford, Kerrville Mike R. Gibson Don Wilson District 14 David E. Moore Gerry Goldstein Harris County Fairfield, VA (1977‑1978) Guillermo J. Gonzalez, Austin District 2 District 5 Mac Secrest Weldon Holcomb District 8 District 11 James D. Granberry, Corpus Christi Permian Basin Tarrant County Danny Easterling Tyler (1976‑1977) Tom Morgan Mark Daniel Central Texas Hill Country Grant Scheiner Theodore A. Hargrove, III, San Angelo Woody Leverett Lance Evans Kerri Donica-Anderson Emmett Harris Stan Schneider C. David Evans* Reynaldo M. Merino, McAllen Tip Hargrove Jeff Kearney F.R. “Buck” Files Katherine Scardino San Antonio (1975‑1976) District 12 Patrick S. Metze, Lubbock Tom Davidson Larry Moore Jim Lavine George E. Gilkerson Greg Westfall District 9 Valley JoAnne Musick Lubbock (1974‑1975) David E. Moore, Longview District 3 Travis County Bobby Lerma Nicole Deborde Phil Burleson* Panhandle District 6 Betty Blackwell Sheldon Weisfeld Shawn W. Paschall, Fort Worth Dallas (1973‑1974) Bill Wischkaemper Dallas County David Botsford Doug Tinker Bluford B. Sanders, Jr., El Paso Warren Clark Ron Goranson Sam Bassett Joe Connors C. Anthony Friloux, Jr.* William A. Vitz, McKinney Chuck Lanehart Bob Hinton Dexter Gilford Houston (1972‑1973) Jarrod L. Walker, Conroe Richard Anderson David Frank Hon. Frank Maloney Martin LeNoir Austin (1971‑1972) James P. Whalen, Dallas Barry Sorrells * deceased

EDITOR EDITOR FEATURE ARTICLES EDITOR DIRECTOR OF MEDIA DESIGN & LAYOUT PRINTING Emmett Harris Significant Decisions Report Rebecca Davis Marisol Valdez Marisol Valdez Art Jam Productions, Inc. UValde, Texas Cynthia Hampton Weatherford, Texas TCDLA Home Office TCDLA Home Office 512.389.1747 830.278.4551 TCDLA Home Office 817.341.4500 512.478.2514 x23 512.478.2514 x23 512.389.1753 [email protected] 512.478.2514 [email protected] [email protected] [email protected] [email protected] [email protected] Sprint PCS is offering a 15 percent discount to TCDLA members State Motions Disk. New members are entitled to one free on its wireless services. Existing Sprint customers can receive the copy of our state motions disk. discount without interruption and new customers can receive additional discounts on equipment. Voice for the Defense. You will receive the only state-wide magazine published exclusively for criminal defense attor- Viteconline is offering TCDLA members pricing advantages on ev- neys. erything you need to run your office, such as office supplies, equip- ment, and furniture. If you need it, they can get it to you at a low Capital Litigation Update. You can receive the only state-wide cost and overnight. magazine published exclusively for capital litigators.

Enterprise Rent-A-Car’s Corporate Program is offering a 10 per- Strike Force. Whenever zealous advocacy results in threats of cent discount on published rates, free pick-up at home or office, contempt against you, the best criminal defense attorneys in and 24 hour road side assistance. The corporate account number the state will come to your defense. for TCDLA members is 65TCDLA. Contact the home office directly or visit www.enterprise.com. To book ONLINE, enter your location, Directory. You will receive an annual membership directory date, time and corporate account #65TCDLA. You will then organized by county, city and last name. be asked for your discount ID which is the first three letters of TCDLA (TCD). Members Only Website. As a member you have access to the members-only section of the TCDLA website. The members- LegalEdge Case Management Software is offering a group rate to only section contains hundreds of motions, a list of expert TCDLA members based upon the number of people purchasing. The witnesses, testimony of expert witnesses, and trial tactics. company will also personalize the system to include the names, addresses, telephone numbers, and other biographical information Scholarships to TCDLA Seminars. Only TCDLA members can of every Judge, Court and investigating agency in the State of Texas receive scholarships to TCDLA seminars. for the database. Assistance with Legal Questions. You can e-mail a question to Lois Law is offering a 10 percent discount to our members. the TCDLA home office and we will help you get your question answered through the assistance of more than 2400 criminal La Quinta is offering a 10 percent discount to all TCDLA members. defense attorneys.

Subscription Services Inc. is offering up to a 50 percent discount off the cover price of nearly every magazine printed for our members. Visit tcdla.com, members only section, to sign up or contact the office at 512.478.2514. E-mail Alerts on Recent Developments in Criminal Law. The TCDLA network specialist will e-mail you about the latest news affecting you, your practice and your clients. To be added to either the general or capital listservs, contact [email protected].

September 2006 VOICE FOR THE DEFENSE  year of transition

We were saddened to learn of the death of one of our own, Stuart Kinard of Austin. Most of you knew of Stuart over the many years of criminal defense practice and his role in being a pioneer in this organization. I am not supposed to be writing this article now in 2006 as he was to be the president this year but for his unfortunate resignation. I was moved up the of‑ ficer chain in that twist of fate and am now your president for this year. Stuart will be greatly missed by many and there are plans underway for his memorial through TCDLA.

In recent months, it is becoming apparent that we are in a year of transition in TCDLA. We are awakening to find that we are no longer a “mom and pop” organization and are quickly becoming a modern well-run business. The officers and board see first hand the many meet‑ ings and issues that come up on a daily basis that need to be addressed in our goal of serving the criminal defense bar.

At our recent Rusty Duncan seminar in San Antonio, we made the transition from a hotel Robert Lerma meeting room to the convention center. If you were there, the feel of greatness was in the air. We had all the room we needed and the facilities were excellent. We had indeed outgrown PRESIDENT’S the previous hotel settings that we were used to. MESSAGE We are fine tuning our business practices in the accounting area with our new Financial Officer, Tiffany Martin. The accounting department is busy keeping our financial house in order and all the staff at the home office are in tune with our new growth. Our long-range planning committee met at South Padre Island and is looking into the demographics of our members in order to formulate our future policies and developing ways to better serve our members. We are upgrading our communications capabilities and hope to provide better service to the membership, and the listserv is working well.

In short, I expect a very exciting and very busy year with our vision towards the future of TCDLA. Please provide your interests to the board as we always need input.

Bobby Lerma G

 VOICE FOR THE DEFENSE September 2006 TCDLA staff directory 512.478.2514

email phone extensions

executive director Joseph Martinez [email protected]...... 26

assistant executive director & general counsel Cynthia Hampton [email protected]...... 30

financial officer Tiffany Martin [email protected]...... 27

director of media - print & web Voice and website information Marisol Valdez [email protected]...... 23

we need your program coordinator seminar information Melissa Schank WORD! [email protected]...... 24 database manager Would you like to see your name in print? membership information Miriam Herrera We are looking for potential articles for the [email protected]...... 32 Voice for the Defense. services clerk If you would like to submit an article, please send it to publication information Cynthia Hampton at [email protected] or Susan Fuller [email protected] ...... 22 Marisol Valdez at [email protected]. Prior to publication, articles are reviewed and approved accountant Sarah Trammell by Emmett Harris, editor and [email protected]...... 25 Rebecca Davis, feature articles editor. seminar planning assistant Denise Garza Questions? Call 512.478.2514 ext. 23 [email protected]...... 29

administrative assistant Diana Vandiver Punishment Manual [email protected]...... 21 or 0 capital assistance attorney Philip Wischkaemper [email protected]...... 806.763.9900 August 2006

www.tcdla.com www.tcdla.com

September 2006 VOICE FOR THE DEFENSE  looking for new board members ...

This year’s President’s Trip was to Monterrey Mexico. Participants toured Horse Falls, the Caves of Garcia, and Palenque Park. A great time was had by all.

Thanks to course directors Robert Lerma, Brownsville and Grant Scheiner, Houston, for Boot Camp South Padre Island; and to Bobby and Maria Lerma for hosting a cook out in their home. Aside from the outstanding CLE, lawyers and their families were treated to the first TCDLA beach bar-b-que. Bill Trantham, lawyer from Denton, drove his rig 580 miles from Denton to South Padre Island to cook for about 90 people on the beach. He has agreed to help out next year.

Special thanks to Danny Easterling and Grant Scheiner, course directors for the 3rd Annual DWI Top Gun seminar in Houston. Thanks to their efforts we had 150 participants.

Thanks to Judge Herb Evans, course director for the CDLP Evidence Primer seminar held in Austin. We had more than 100 participants.

Joseph A. Martinez Special thanks to Stephanie Stevens, president of the San Antonio Criminal Defense Law‑ yers Association, for giving TCDLA the opportunity to co-sponsor the Domestic Violence seminar. There were more than 150 participants. Executive Thanks to Jason Butcher, course director for the DWI and Golf seminar held at Tanglewood Director’s Resort Hotel on Lake Texhoma. This seminar was co-sponsored with the Grayson County Criminal Defense Lawyers Association. Perspective The TCDLA Nominations Committee is looking for new TCDLA board members. Please see page 24-25 in this month’s Voice for more additional information.

Interested in starting a local defense bar? TCDLA can help provide support to get started. Want to rejuvenate your local defense bar? TCDLA can help provide support to get restarted. Please call Joseph Martinez at the home office for more information.

We are looking for members who want to speak at the CDLP seminars. Please call Rick Hagen 940.566.1001 or Joseph Martinez for more information.

We are seeking articles for Voice for the Defense. Please call Emmet Harris, Cynthia Hampton or Marisol Valdez for more information. G Good verdicts to all!

 VOICE FOR THE DEFENSE September 2006 September 20-21, 2006 January 4-5, 2007 CDLP: 4th Annual Forensics CDLP: 27th Prarie Dog Seminar Dallas co-sponsored with Lubbock CDLA & CDLP

October 13, 2006 January 19, 2007 CDLP: Operation Texas Freedom CDLP: Operation Texas Freedom Amarillo Waco

October 20, 2006 February 1-2, 2007 CDLP: Operation Texas Freedom TCDLA: Federal Law - The Border South Padre Island Brownsville

October 26, 2006 February 8-9, 2007 Phone Seminar CDLP: Capital, Mental Health and Habeas Seminar Dallas Topic TBD

November 2-3, 2006 February 15, 2007 TCDLA: Stuart Kinard Memorial Advanced DWI Seminar Phone Seminar Cross-Examination of the Arresting Officer and Expert: Topic TBD Lecture and Demonstration co-sponsored with CDLP February 16-18, 2007 San Antonio President’s Trip Lake Tahoe, Nevada

November 3-4, 2006 March 8-9, 2007 TCDLA: El Paso Criminal Law Seminar TCDLA: TBD co-sponsored with El Paso Criminal Law Group Houston Ruidoso, New Mexico

March 25-31, 2007 November 9, 2006 CDLP: Annual Texas Criminal Trial College CDLP: Nuts and Bolts Huntsville co-sponsored with San Antonio Criminal Defense Lawyers Association San Antonio April 19-21, 2007 TCDLA: Mastering Scientific Evidence November 16-17, 2006 co-sponsored with National College for DUI Defense CDLP: Capital Litigation Seminar Dallas South Padre Island May 1-2, 2007 December 1, 2006 CDLP: Voir Dire CDLP: Operation Texas Freedom El Paso Abilene

December 7-8, 2006 May 4, 2007 TCDLA: Juvenile Law CDLP: Indigent Defense Dallas Galveston

December 9, 2006 May 10, 2007 TCDLA, CDLP, TCDLEI Board Meetings CDLP: Indigent Defense Galveston Houston

Note: Schedule and dates subject to change. Visit our website at www.tcdla.com for the most up to date information.

September 2006 VOICE FOR THE DEFENSE  “whom shall i send, and who will go for us?” (Isaiah 6:8)

Jem Finch was devastated by the conviction of Tom Robinson. His father had lost a case which Jem thought surely was won. The all white, all male jury had taken the word of the Ewells over the obvious innocence of Tom. One of the neighbors, Miss Maudie, said to Jem: “I simply want to tell you that there are some men in this world who were born to do our unpleasant jobs for us. Your father’s one of them. … We’re the safest folks in the world[.] … We’re so rarely called upon to be Christians, but when we are, we’ve got men like Atticus to go for us.” (To Kill a Mockingbird, Harper Lee)

We have been called upon to “go for” the accused. Just as surely as Isaiah’s God asked him the question in the title, we are faced with the question of who will stand and speak for the person charged with crime. Those of us who have answered that we will, and have taken on that responsibility as criminal defense lawyers must surely realize that in a very real sense it is a calling. We do our society’s unpleasant jobs. We fight to make it safe. How we respond to this calling defines us, not merely as lawyers, but as human beings. I don’t know if we were all born to do it, but I do know that many of the men and women I have been privileged Emmett Harris to meet through TCDLA must have been.

So why did Miss Maudie describe our job as “unpleasant”? Why did she suggest that we are EDITOR’s responsible for people’s “safety”? It is unpleasant because too many people do not presume innocence. It is unpleasant because too many people do not place the burden of proof on COMMENT the prosecution. It is unpleasant because too many people do not respect the defendant’s right to silence. It is unpleasant because too many people do not care if we do anything about it. It is critical to the safety of our society because too many people do not grasp how inclined they are to sacrifice their own constitutional rights and what their lives would be without them.

Atticus had said: “Scout, simply by the nature of the work, every lawyer gets at least one case in his lifetime that affects him personally. This one’s mine I guess.” Let me tell you about one of mine. About 16 years ago I defended, unsuccessfully, a man who was convicted of rape based on the DNA testimony of a man named Fred Zain. I remember that, notwithstanding my cross-examination, the jury loved him. I thought he was an arrogant blow-hard. What I did not know was that he was either the world’s leading incompetent forensic scientist or a perjurer. Four years later when Zain was found out, I was able to get Gilbert Alejandro returned from prison and eventually vindicated. There was, of course, no way to give him back the years he had spent locked up for a crime he did not commit. This case affected me

10 VOICE FOR THE DEFENSE September 2006 personally in two ways. First, I felt personally to blame despite the fact that Zain had fooled many juries before mine. Second, I met a brilliant lady named Cynthia Orr, because she was handling another Zain case at the same time that I was dealing with mine. Through her friendship and encouragement I got involved in TCDLA. But for her I might still be relatively ignorant of our fantastic organization. Through TCDLA I have met, and am now privileged to call my friends, a number of modern day Atticus Finches. Just being in their presence is a reminder of the scope and critical importance of our calling. They teach me why we must do our society’s unpleasant jobs and keep it safe. They also teach me how.

So I invite each of you to become more active in TCDLA. Talk to the officers and directors in your area and discuss how you can become more involved. I look forward to serving you as editor of the Voice. I hope that I can contribute to it positively. I may make future referenced to Mr. Finch. I believe that there is much for us to learn from him.

Now, listen as Jem’s little sister, “Scout”, watches her father’s lonely walk out of the courtroom: “I looked around. They were standing. All around us and in the balcony on the opposite wall, the Negroes were getting to their feet. Reverend Sykes’ voice was as distant as Judge Taylor’s: ‘Miss Jean Louise, stand up. Your father’s passin’.”

G As you respond to the call to speak for the accused, may each of you be so blessed as to have such said of you some day.

September 2006 VOICE FOR THE DEFENSE 11 some judges just don’t understand booker

In our post-Booker era, United States district judges are struggling to impose non-Guide‑ lines sentences that will survive an appeal by the government. Some are not succeeding.

On July 21, 2006, the United States Court of Appeals for the 11th Circuit vacated and remanded for re-sentencing a case from the United States District Court for the Middle District of Florida that should be of interest to defense attorneys across the country who represent defendants in federal crack cocaine cases. United States v. Williams, ___ F.3d ___, 2006 WL 2039993 (11th Cir. 2006).

After he had been snared in a government sting operation, Aaron Eric Williams was indicted for three counts of possessing crack cocaine with the intent to distribute it. The government filed a motion to rely on his prior federal drug convictions to seek an enhanced punishment. After a jury found Williams guilty of all three counts in the indictment, Judge Gregory A. Presnell adopted the findings of the PSI which calculated the defendant’s base offense level at 28 pursuant to U.S.S.G. §2D1.1(c)(6). Williams’ multiple prior convictions qualified him as a career offender under U.S.S.G. §4B1.1(a). This enhanced his offense level to 37; therefore, his advisory Guidelines range was 360 months — life imprisonment.

Williams was sentenced to 204 months confinement on each count with the sentences F.R. “Buck” Files, Jr. to run concurrently. Judge Presnell followed the requirements of Booker by articulating his reasons for imposing the sentence. He did this both at the sentencing hearing and in a “Memorandum Sentencing Opinion.” United States v. Williams, 372 Fed.Supp. 1335 (M.D. Fla. FEDERAL 2005). In explaining why he had imposed the 204-month sentence, Judge Presnell referred to the sentencing factors set out in 18 U.S.C. §3553. The government objected to the sentence Corner and gave notice of appeal. (Note: The §3553(a) sentencing factors include the nature and circumstances of the offense and the history and characteristics of the defendant; the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense; the need to deter crime, protect the public, and provide the defendant with educational or vocational training, or medical care; the kinds of sentences available; the Sentencing Guidelines range; pertinent policy statements of the Sentencing Commission; the need to avoid unwarranted sentencing disparities; and the need to provide restitution to victims.)

A panel of the Circuit (Judges Blacks, Pryor and Cox) graded Judge Presnell’s paper and gave it a failing grade; i.e., they vacated the judgment and remanded Williams’ case for re- sentencing. Early in the opinion, Judge Black sets out Judge Presnell’s comments about the Guidelines’ treatment of crack and powder cocaine:

At the sentencing hearing, the district court expressed ‘concern about the dis‑ crepancy between powder and crack cocaine’-referring to Congress’ policy of

12 VOICE FOR THE DEFENSE September 2006 punishing crack cocaine offenders more severely than proved of the severity of Congress’s disparate treatment powder cocaine offenders-and viewed the cocaine of crack cocaine offenders relative to powder cocaine sentencing disparity as bearing on ‘the nature and offenders. At sentencing, the district court expressed circumstances of the offense.’ See Id. §553(a)(1). The its belief that the disparity “smacks of discrimination” district court suggested the harsher penalties for crack and that the difference between crack cocaine and offenses ‘smacks of discrimination against blacks, powder cocaine “has never justified the substantial African-Americans.’ It said crack cocaine and powder disparity in sentences.” Even though the district court cocaine are ‘the same drug’ with the same effects and did not completely reject Congress’s policy of impos‑ that the different form of the drug ‘has never justified ing harsher penalties on crack offenders, it took into the substantial disparity in sentences.’ The court also account its personal disagreement with Congress’s condemned the DEA’s conduct in investigating Wil‑ judgment as to how much harsher the penalties for liams, characterizing the sting operation as ‘basically crack offenders should be. To the extent the district set up by the Government to snare Mr. Williams.’ The court did so, it considered an impermissible factor in district court stated, without elaboration, that this fashioning Williams’ sentence. was also relevant to ‘the nature and circumstances of * * * the offense.’ Congress’s decision to punish crack cocaine offenders * * * more severely than powder cocaine offenders is plainly In its subsequent ‘Memorandum Sentencing Opin‑ a policy decision. It reflects Congress’s judgment that ion,’ the district court again addressed the cocaine crack cocaine poses a greater harm to society than sentencing disparity. The district court stated it was powder cocaine. We have repeatedly held Congress’s ‘mindful of the substantial criticism’ the disparity had disparate treatment of crack cocaine offenders is sup‑ garnered and that evidence suggested the disparity ported by a rational basis. had a ‘discriminatory impact on African Americans of whom Williams is one.’ Williams, 372 F.Supp.2d at At the end of his opinion, Judge Black concluded: 1339 n. 8. The district court’s disdain for the disparity factored into its choice of sentence in another way as In short, the district court erred in mitigating Williams’ well. Echoing its earlier statement that the DEA had sentence based on its personal disagreement with snared Williams, the district court concluded a Guide‑ Congress’s policy decision to employ a 100-to-1, crack- lines sentence would not ‘promote respect for the law,’ to-powder drug quantity ratio in punishing crack see id. §3553(a)(2)(A), because the DEA arranged a cocaine offenders more severely than powder cocaine sting purchase of crack cocaine instead of powder offenders. In so doing, the district court impermissibly cocaine to obtain a longer prison sentence. Williams, usurped Congress’s authority to set sentencing policy 372 F.Supp.2d at 1339. Without referring to any facts and failed to properly consider §3553(a)(6)’s directive in the record, the district court found that a powder to avoid unwarranted sentence disparities between cocaine sale would have been consistent with Williams’ similarly situated defendants. prior drug sales. Id. To highlight the injustice it per‑ * * * ceived in the Government’s decision to purchase crack On remand, the district court must resentence Wil‑ cocaine from Williams, the district court compared liams based on the individual facts and circumstances Williams’ Guidelines range with the range applicable of Williams’ case bearing on the §3553(a) factors. We to defendants who, though not career offenders, have express no opinion as to what sentence the district a criminal history category of VI and are convicted of court should impose after properly applying the selling the same quantity of powder cocaine. Id. §3553(a) factors. * * * Finally, the district court explained that although This case comes as no surprise to anyone who reads the opin‑ “Williams is a low-level drug dealer ... convicted of ions of the United States Court of Appeals for the 5th Circuit. selling relatively small amounts of crack cocaine,” the The Booker myth held that United States district judges were ‘substantial term’ of 204 months’ incarceration was “real judges” again; i.e., that they could consider the offense warranted by “the circumstances (crack versus powder and the offender and then impose an appropriate sentence cocaine) and Williams’ long history of selling illegal — just like they used to do before the implementation of the drugs.” Id. The Appellant subsequently appealed Wil‑ Guidelines. liams’ sentence as unreasonable. Not so. A judge who imposes a non-Guideline sentence after After discussing the tension between the United States Sen‑ Booker has to be most careful in the choice of words used to jus‑ tencing Commission and Congress in regard to the punishments tify the sentence. The judge who does not resist the temptation for powder and crack cocaine, Judge Black continued: to be philosophically eloquent in his explanation is certainly at risk of having the case sent back for re-sentencing. [We] turn to the district court’s treatment of the cocaine sentencing disparity. The district court disap‑ As is common, judges of the Circuit have been given an continued on page 21

September 2006 VOICE FOR THE DEFENSE 13 14 VOICE FOR THE DEFENSE September 2006 His name is William Alexander Anderson Wallace, better known as Bigfoot. Anyone who wants to understand Texas and George W. Bush and why we are in Iraq should get to know Bigfoot Wallace.

As Lyndon Johnson once observed, “the frontier in America is neither dead nor dormant; it lives as a source of our national vigor.” Wallace is the Texas frontier personified.

A couple of years before his death in 1899, Bigfoot rode on a Battle of Flowers float under a banner proclaiming “Our Texas Hero, Bigfoot Wallace.” The question is, why was Bigfoot a hero? He was not a statesman or an elected official. He did not work for a better society, although he was honest about why he came to Texas. As biographer A. J. Sowell put it, he wanted “to spend the balance of his days killing Mexicans.”

Once he got here, in 1842, he refined his life’s mission: “To me, a Mexican was just the same as an Indian, and the only good Indians were dead ones.”

Apart from warring and hunting, and tracking down runaway slaves, trying to make it into Mexico, Bigfoot had few interests. He was too impatient and unskilled to farm, too independent for marriage and family, too bored with business to amass by Tom Rickhoff property. In old age, Bigfoot was a charity case and died in the vicinity of the small Frio County community that bears his Copyright 2005 San Antonio Express-News name — Bigfoot. Reprinted with permission. Bigfoot was born in Virginia in 1817. Like many other fron‑ tiersmen, Bigfoot brought to Texas a legacy of violence and a penchant for war inherited from his 17th century Scottish forebears, tribal people who lived on the fringes of the British isles and had little use for peace and the rule of law. Bigfoot and ot Long ago, while my son Franz and I were his brothers were descended through their father from Sir Wil‑ hunting on the Walsh Ranch purchased liam Wallace, leader of the Scottish Army against King Edward by Toyota, I was commiserating with him (Mel Gibson’s “Braveheart”) and through their grandmother about his being called to service in Iraq. from Robert Bruce. All the Wallaces who immigrated to this As we ambled across the ranch-land, not country, except Bigfoot’s grandfather, fought and died in the far from downtown San Antonio, and as I American Revolution, including Bigfoot’s seven-foot-tall uncle Nrecalled the long and venerable history of that ranch, it suddenly William, who was annihilated by Simcoe’s “Queen’s Rangers” came to me that this land has a connection to contemporary in a rearguard action at Guilford Courthouse (Mel Gibson’s events, and not just the Toyota deal. “The Patriot”).

The land itself is the site of the first Spanish mission holdings, Bigfoot’s Scottish clan instinct was fierce. A century after Guil‑ the Battle of Medina and the final camp for virtually every ford Courthouse, his brother Sam and three other Wallaces armed force entering or leaving San Antonio, including Santa were executed with the rest of the Georgia Battalion after sur‑ Anna’s Army. It was also the favorite hunting ground a century rendering with a promise of release when Santa Anna’s troops and a half ago for a relatively obscure historical figure who best caught Col. Fannin outside Goliad. Hence Bigfoot’s vengeful exemplifies the connection between the past and present. trip to Texas.

September 2006 VOICE FOR THE DEFENSE 15 Bigfoot — who acquired his moniker after arriving in Texas At Laredo, those with better sense headed home, but the more — warmed up for the mayhem he hoped to wreak while pass‑ reckless crossed the river and fought 2,000 Mexican soldiers at ing through New Orleans, where he threw one man into a Mier; killing 800 while losing only 16. Despite their superior fireplace and knifed another who was advancing on him with firepower, Bigfoot and his fellow Texans found themselves a cane. Bigfoot’s 6-foot 2-inch frame, backed by 240 pounds of trapped and outnumbered in the little town. Recalling the fate lean muscle, allowed him to confidently indulge his attack-first of his brothers and cousins at Goliad, Bigfoot opposed surrender imperative (now called a pre-emptive strike). but was overruled. He and 160 of his fellow adventurers were chained and marched through Mexican towns in disgrace. Once, after killing an Indian he met on a trail at night in a one-on-one knife fight, Bigfoot bragged, “I don’t believe there After an escape and recapture, Santa Anna ordered them all shot. was a white man west of the Colorado River that could stand The officer in command refused, so the orders were changed up against me in a regular catamount bear hug, hand-to hand to shoot every tenth man — the Roman decimate. Each would fight.” (A post-Iraq George W. Bush couldn’t have said it better.) draw a bean from a pitcher containing black and white beans. Later, when armed as a Texas Ranger with the new Walker/Colt Those drawing black beans would be shot. The wily Bigfoot, pistol, his rifle, “Sweet Lips” and a fighting knife, Bigfoot was one realizing the black beans were larger, put his fingers on two and of the most technologically advanced, fearless and experienced selected a smaller white bean. fighters in the world. Bigfoot escaped death but remained in a Mexico City prison, Shortly after Bigfoot settled near La Grange, some improvident where he was known as “mucho grande loco Americano.” Once, warriors raiding for livestock provided the new Texan with his a group of Mexican ladies and a padre came to visit the prison first Indian encounter. Eager young Bigfoot rode down the Colo‑ as if it were a zoo. One of the ladies got too close to the sleep‑ rado River Valley near Bastrop ahead of local “Indian fighters.” ing bigfoot, who gave a Comanche yell, grabbed her ankle, and Burdened by their meal ticket, the Indians were easy to catch. dragged her about while the guards and padre rode his back. Each rider selected one warrior and stayed 50 yards beyond ef‑ fective arrow range. Bigfoot killed his quarry with one shot. Later Santa Anna’s invalid wife pleaded with her husband to release the American. On Aug. 5, 1844, Santa Anna’s wife died, For most young men, such forays would have been frightening, and Bigfoot was released after a plea from the governor of but Bigfoot was unfazed. He went back to Virginia for a brief Virginia, whose plantation adjoined the Wallaces’. Because the visit with his family, but noted that “I never got entirely to right prison doctor had freed him from his shackles and fed him well, again til I returned to Texas and got into an Indian scrimmage, Bigfoot decided that not all Mexicans were bad. and lifted the hair off one of them.... That night, for the first time, my appetite came to me, and I ate a side of ribs, and a Returning to Texas, Bigfoot settled on the Medina River, south roasted marrowgut.” of Castroville, where he promptly failed at farming. When the Mexican War broke out in 1846, John Coffee (Jack) Hays re‑ If an Indian was unarmed, Bigfoot treated him – well – more cruited Bigfoot as a second lieutenant in the Texas Rangers and kindly. Once, in Castroville, he wanted to celebrate his capture took him into Mexico to settle “old scores.” Bigfoot was stand‑ of an Indian, so he took the man from saloon to saloon showing ing next to his captain when the man was killed at the Bishop’s him off. By then Bigfoot himself was gloriously drunk, and the Palace wall in Monterrey. Later, Bigfoot had to be restrained local German authorities demanded custody of his captive. “If from attacking the Mexican officer carrying the surrender flag; you want you an Indian,” Bigfoot responded, “you go out and Bigfoot recognized him as the same soldier who had carried the catch you one; this one is mine.” lethal pitcher of beans four years earlier.

In the fall of 1842, Bigfoot resolved “to take pay out of the After the war, Bigfoot went home to Texas, where he often be‑ Mexicans.” He joined the so-called Mier Expedition to retali‑ moaned the civilizing influences at work in the state and the loss ate for Mexican Gen. Adrian Wool’s capture of San Antonio. of the frontier. For a time he drove the mail hack from Austin to Bigfoot described his cohorts as “a motley, mixed-up crowd El Paso, nearly 500 miles of Indian territory. On one occasion, ... broken-down politicians ... renegades and refugees from after losing his mules to Indians, he walked the rest of the way justice ... who left their country for their country’s good ... and to El Paso. Stopping at the first house he came to, he ate 27 eggs adventurers of every sort, ready for any ... prospect of excite‑ before continuing into town for a full meal. ment or plunder.”

16 VOICE FOR THE DEFENSE September 2006 He still enjoyed the occasional skirmish. When his horses were With the coming of the Toyota plant, the Medina River bottoms stolen by the Lipans, with whom he thought he had a treaty, as Bigfoot knew them will be gone, replaced by a mile-long fac‑ Bigfoot gathered a posse, chased the Indians down and killed 46 tory site. Bigfoot himself, however, still lives, at least according by ambushing their encampment. Afterward, he gave a Christian to native Texas author (and ardent Bush basher) Michael Lind. burial to one young girl whose family had lived near him on the In his new book “Made in Texas,” Lind argues that Bigfoot and Medina. The child’s entire family also was killed that day. his ilk live on in the person of George W. Bush and his fellow Texas Conservatives. In 1850, five companies of Texas Rangers were called to duty with Bigfoot as one of the commanders to halt Indian depreda‑ Lind argues that Bush, growing up in a West Texas that was tions from Goliad to the Rio Grande. Historian Walter Prescott homogeneous in race, ethnicity and religion, breathed in the Webb in “The Texas Rangers” tells about their “bad conduct” militaristic, volatile, Spartan ethic that Bigfoot and cohorts had on the border. American merchants had been smuggling goods brought to Texas in the preceding century. that were detained by Mexican soldiers. The merchants paid the Rangers $2,000 to retrieve the goods. “Not only did they bring Unlike their German counterparts in the Hill country, they dis‑ the new merchandise back,” Webb writes, “but they added to it dained hard work, cooperative enterprises and communitarian the pants, shirts and guns of the Mexican soldiers.” values. And now their spiritual descendants rule the state, and increasingly the nation. So Bigfoot was still adventuring, but more and more of his time was spent ranging over the ranchland where Franz and I were Lind adapts what every Texas historian from Webb to Ted hunting, land that Toyota executives spotted from a helicopter Fehrenbach (“Lone Star”) already knows – that is, today’s and selected for their new plant. In the year 1845 alone, Bigfoot Texas emerged from a clash of cultures that included the Celtic killed 145 panthers in the Medina bottoms. tribes, Hispanics, Germans, Anglos and the first Americans. The weakest were killed off or marginalized, while the most The land may be the oldest ranch in North America continu‑ aggressive prevailed. ously worked by the same family. The Spaniards first visited the area in 1691, when Domingo de Teran was appointed governor While Lind finds this development worrisome, most Texans of the province. As his expedition crossed the Medina, he de‑ know it is Osama, Saddam and Kim Jong Il – like some of scribed the environs as “a fine country with broad plains, the Bigfoot’s old foes – who have reason to be concerned. When most beautiful in New Spain.” In 1780, Don Juan Ignacio Perez Texans hear “48 hours to get out of Bagdad,” or “wanted dead de Casanova, a Canary Islander and the last Spanish governor of or alive,” they know where it’s coming from. Texas, was likely ranching on the extensive holdings of Mission San Jose y San Miguel de Aguayo. In 1808, the king of Spain Addendum: Since the foregoing article was originally published granted Lt. Col. Perez about 20,000 acres on the south bank of in the San Antonio Express-News in 2003, Judge Rickhoff has the Medina. His descendants down to the current owner, John been advised that Toyota is gifting back seven hundred acres Edward Small through quiet tenacity and deep love, have pre‑ of the picturesque and historic Medina River bottom land as a served this Garden of Eden for more than 200 years. park. He is also thrilled to have his son back from Iraq.

On a Sunday morning recently, Congressman Lamar Smith and Tom Rickhoff is a Vietnam veteran, an amateur historian and judge of Probate I, accompanied by our sons, spent six blissful and harrowing Court No. 2, where Bigfoot Wallace’s picture is displayed. He also owns a farm hours canoeing the Medina through the heart of the ranch. on the original Perez ranch and helped edit “Mission San Jose, Queen of the Missions” (1967), by Father Marion Habig. Passing beneath a canopy of some of the tallest trees in Texas, with fallen pecan, cypress and oak damming up a portion of the river and gathering debris, the area looks less inhabited than at any time in recent history. At an old river crossing, faded rock carvings reveal the date 87’ 1887 perhaps, maybe even 1787. Although feral hogs have replaced the bear, buffalo and panther that Bigfoot knew – and shot – primordial floral and fauna remain resplendent. Javelinas, wild turkeys, whitetail deer and more than 150 species of songbirds inhabit the ranch area.

September 2006 VOICE FOR THE DEFENSE 17 How Hearty Is Hardy? Our Expectation of Privacy In Medical Records

by Jason D. Cassel

n Monday following spring break, you get a call from Little Enos. He was riding his motorcycle with Big Enos Owhen they had a wreck. The super troop‑ ers came out to work the accident. Little Enos is the only person hurt. Bumps and bruises, a little road rash, but he is going to be fine. Super trooper smells alcohol but waits for EMS before attempting his battery of field sobriety tests.

18 VOICE FOR THE DEFENSE September 2006 EMS arrives and makes a quick evaluation of Little Enos before The Court of Criminal Appeals then went on to rely on the advising the super trooper that Little Enos might have a concus‑ theory that non-governmental actors had already frustrated sion. No field sobriety tests are requested. Once at the hospital, the defendant’s privacy interests by intruding into the body Little Enos gets the once-over, including a blood test for toxicol‑ and then testing the fluids.12 Specifically, the Court stated that ogy. The blood test results indicate 124.4 milligrams of alcohol privacy concerns were implicated at three points: First, when per deciliter according to the serum test.1 Little Enos is worried the blood was seized by piercing the flesh; second the testing because super trooper read him some warning about his driver’s of the blood; and third obtaining the results.13 Thus, medical license and then asked for a blood test. The super trooper took personnel had already frustrated any privacy interest at the first Little Enos’ license when he refused. Little Enos was not arrested two stages; therefore, the Court need only look at the privacy at the time. The super trooper told him they were going to get a interest of the third stage, the seizure of the medical records.14 grand jury subpoena and find out what the hospital blood test In holding there is no reasonable expectation of privacy at that shows and have a warrant issued for his arrest if the result is too stage, the Court analogized a subpoena for a blood test result to high. What next? Now there are obviously a number of issues the chemical test at issue in the United States Supreme Court’s here that would need to be addressed from the admissibility of holding in United States v. Jacobsen.15 the refusal when Little Enos was not arrested to the scientific reliability of the hospital blood test, but this article is meant to In Jacobsen, a private shipping company notified federal agents discuss if a DWI defendant has standing to contest the seizure after opening a package and discovering a white powder.16 Upon of his medical records under current case law. examining the package, the agents reopened it and tested the substance.17 The Supreme Court held federal agents did not It has been about eight years since the Court of Criminal Appeals violate any reasonable expectation of privacy because the pri‑ handed down its opinion Hardy v. State, 2 holding that a DWI vate company had already frustrated the privacy interest, and defendant does not have standing to contest the seizure of his no legitimate expectation of privacy exists in contraband, i.e. or her medical records that contain a blood test taken for medi‑ cocaine.18 cal purposes. In the interim, two very important things have happened: the implementation of HIPAA, 3 and the Supreme Employing this logic, the Court of Criminal Appeals held the Court’s opinion in Ferguson v. City of Charleston. 4 Has either one narrow investigatory method effected by the use of a subpoena of these “changed” our reasonable expectations of privacy? was akin to the test in Jacobsen.19 The Court went to state that, “given the authorities discussed, whatever interests society may In Hardy, the Court of Criminal Appeals acknowledged that have in safeguarding the privacy of medical records, they are not drawing blood infringes upon one’s expectation of privacy sufficiently strong to require protection of blood-alcohol test that society recognizes as reasonable.5 The Court elaborated results [.]” taken by a hospital for medical purposes.20 that, where the government instigated the drawing of blood, the subsequent analysis was also “an invasion of a societally Hardy effectively prevented relief, no matter how egregious the recognized expectation of privacy.”6 The government did not methods used by police to obtain the records may have been. instigate the drawing of blood from Hardy or Little Enos. Thus, This is where the Supreme Court’s holding in Ferguson v. City the court’s focus will be on the “acquisition” of the written report of Charleston21 comes into play by recognizing, post Hardy, that of the blood test results.7 “[t]he reasonable expectation of privacy enjoyed by the typi‑ cal patient undergoing diagnostic tests in a hospital is that the In its opinion, the Hardy Court looked to United States v. results of those tests will not be shared with non-medical per‑ Miller 8 in evaluating whether there is a reasonable expectation sonnel without her consent.”22 It cannot be said more concisely: of privacy in records held by a third party. In Miller, the seizure A hospital patient has an expectation of privacy in his records at issue dealt with bank deposit records. The Supreme Court and any seizure is, therefore, subject to Fourth Amendment held there was no reasonable expectation of privacy because a scrutiny. Why, then, have Texas courts not squarely addressed depositor voluntarily exposes his information to the bank and this holding? assumes the risk.9 The Court of Criminal Appeals pointed out that while a person can choose to use a bank, she cannot rea‑ First, Ferguson dealt with a program at a state-operated hos‑ sonably be expected to forego medical treatment.10 The Court pital where the urine tests of pregnant women were screened then went on to discuss the split that exists in Texas’ courts on for drugs.23 If a positive test was found, the result was shared this expectation of privacy. Eventually, the opinion sided with with police and the women were then subject to prosecution.24 cases where there was no physician-patient privilege, where The Supreme Court held the testing of the urine was undoubt‑ implied consent law existed, and where a clear policy choice edly a search and that the state-operated hospital was subject indicated society’s strong interest in curtailing drunk driving.11 to Fourth Amendment scrutiny.25 Thus, the Supreme Court Thus, the stage was set. held the program violated the Fourth Amendment because the searches were warrantless and nonconsensual.26 It seems

September 2006 VOICE FOR THE DEFENSE 19 under Hardy that such searches would be acceptable because The next issue concerning HIPAA violations is the prevalence the complained of privacy violation is not reasonable. Oddly of “sham” grand jury subpoenas duces tecum often employed enough, Ferguson seemingly takes for granted that we all have a to obtain these records. These “sham” subpoenas typically are reasonable expectation of privacy in our medical records. This issued on the signature of an assistant district attorney and is supported by the fact that so little is devoted to discussing direct the recipient to appear before the grand jury, or, in lieu that part of the issue. of an appearance, permit the recipient to send the records to the police officer named in the subpoena. The records are never In the aftermath of Ferguson, two Texas courts have distin‑ presented to a grand jury and no return is made to the district guished both Ferguson and its respective cases from the holding clerk. Article 20.10 of Texas Code of Criminal Procedure permits in Hardy. 27 Plenty of lip service is given by these opinions: The the attorney for the State or the grand jury foreman to issue a hospital was state run, there was a program designed to catch summons or attachment to secure a witness’ testimony at fixed such behavior, yet the threshold issue addressed in Hardy can‑ time or place. Under this provision, there is nothing indicating not be so easily explained away with such terms. The critical that a “subpoena duces tecum” may be issued. Instead, the only issue here is the reasonableness of the expectation of privacy authority for issuance of a grand jury subpoena duces tecum in the medical records seized by the government. If there is no is found in Article 24.02 of the Texas Code of Criminal Proce‑ reasonable expectation of privacy, then none of the discussions dure. 32 Under Chapter 24, the attorney for the State must file and analysis in Ferguson regarding urine test records matter. In an application with the district clerk and the application is to other words, if there is no reasonable expectation of privacy, be filed in the papers of that case. 33 This has never happened then there is nothing to complain about, à la Hardy. While the on a misdemeanor case I have worked, and, undoubtedly, will tactics employed in Ferguson may be more closely analogized to not happen in Little Enos’ case. the government’s actual seizure of the blood or urine discussed in Hardy, the opinions cannot escape—and therefore do not It is, therefore, arguable that the “grand jury subpoena” was is‑ address — Ferguson is conclusion that there is a reasonable sued without judicial approval as required under Article 24 of expectation of privacy that the records will not be turned over the Texas Code of Criminal Procedure. Thus, the “grand jury to police. 28 If there is reasonable expectation of privacy in urine subpoena” not only failed to comply with state law, but also samples taken as part of a program to prevent “crack babies,” 29 failed to pass muster for HIPAA purposes. 34 Accordingly, the how can the expectation of privacy be less reasonable as applied “grand jury subpoena” violated both state and federal law (i.e., to misdemeanor DWI defendants? HIPAA) and, therefore, suppression of the blood test evidence obtained was warranted under Article 38.23. The enactment of HIPAA provides yet another argument for standing. 30 With the passage of HIPPA, the federal govern‑ Additionally, Article 20.02 of the Texas Code of Criminal Pro‑ ment established national standards for privacy in medical care cedure provides that “proceedings before the grand jury shall with the specific purpose of limiting the dissemination of an be secret.” A violation of that secrecy — absent the procedures individual’s medical information. Full compliance with HIPPA enumerated in Chapter 20 — can result in contempt of court was mandated by April 14, 2003. Actors who violate HIPAA are payable in a fine up to 500 dollars and/or 30 days in jail.35 As subject to civil or criminal punishments. HIPAA necessarily cre‑ previously discussed, the “subpoena” typically directs the recipi‑ ated a “reasonable expectation of privacy” for citizens in their ent to turn the records over to a police officer rather than the health care information and treatment. Relevant to criminal grand jury which violates the secrecy of grand jury proceedings cases is the fact that compliance requires disclosure of medical and yields yet another possible ground for suppression. records to law enforcement only be done upon service of a court order, subpoena or summons issued by a judicial officer, or a Of course, these arguments are premised on the idea that there is grand jury subpoena. 31 standing to contest the methods employed by law enforcement. Given how little state case law addresses Ferguson and HIPAA, it In practice, hospital personnel — in blatant non-compliance should be interesting to see the right facts and arguments come of HIPPA — still freely tell police what they want to know in together before our Courts of Appeal. Then we’ll see if Hardy is, emergency rooms across the state. Similar to Little Enos’ case, still in fact, hearty. I submit that it is not, especially when a close just reading the offense reports that come across our desks reading is given to these opinions and their underpinnings, or demonstrates there have been conversations between hospital maybe I should I say, “I hope not.” staff and law enforcement. Police generally think they are en‑ titled to know these things and ER staff are generally happy to endnotes oblige telling them what they want to know, but without the 1 In my experience, a DPS criminalist is taught that — once converted “subpoenas” for the physical records. Thus, such misconduct to milliliters under Chapter 49 of the Texas Penal Code — a serum and HIPAA violations are often difficult to ferret out unless, as blood test taken at a hospital will be about 15 percent lower. By way of example, once converted, the 124.4 described here would be .105 pointed out, the officer thinks such an exchange is proper and grams of alcohol per 100 milliliters of whole blood. notes such a conversation in his report.

20 VOICE FOR THE DEFENSE September 2006 continued from page 13 2 963 S.W.2d 516 (Tex.Crim.App. 1997). outline on how to arrive at a post-Booker sentence that will pass 3 45 C.F.R. §64.102 et seq (2002). muster. In United States v. Smith, 440 F.3d 704 (5th Cir. 2005), 4 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). a panel of the Circuit [Circuit Judges Benavides, Reavley and 5 Hardy at 523; citing Skinner v. Railway Labor Exec. Assn., 489 U.S. 602, Garza] found a sentence imposed by Judge Lance M. Africk to 616, 109 S.Ct. 1402, 1412-13, 103 L.Ed.2d 639 (1989). 6 Id. be reasonable. Judge Benavides writes, in part, about the three 7 Id. at 524. different types of sentences which district courts may impose: 8 425 U.S.435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). 9 Hardy at 525, Miller at 442-3, 96 S.Ct. at 1623-1624. Our post-Booker case law has recognized three differ‑ 10 Hardy at 525. ent types of sentences under the advisory Guidelines 11 Id. at 526. regime. First, a ‘sentencing court may exercise its 12 Id. discretion to impose a sentence within a properly 13 Id. calculated Guidelines range. In such a situation, we 14 Id. will ‘infer that the judge has considered all the factors 15 466 U.S. 109, 104 S.Ct. 1652 80 L.Ed. 85 (1984). 16 Id. at 111, 104 S.Ct. at 1655. for a fair sentence ..., and it will be rare for a reviewing 17 Id. court to say such a sentence is ‘unreasonable.”’ 18 Id. at 119-121, 104 S.Ct. at 1659-1661. It is worth noting that, if such a * * * fact situation had occurred in the state of Texas, such a search by non- Second, a sentencing court may impose a sentence governmental actors — if illegal—may have required the suppression that includes an upward or downward departure as of that evidence under Article 38.23 of the Texas Code of Criminal allowed by the Guidelines. Because the court’s author‑ Procedure. See State v. Johnson, 939 S.W.2d 586, 587 (Tex.Crim.App. ity to depart derives from the Guidelines themselves, a 1996). sentence supported by a departure is also a ‘Guideline 19 Hardy at 526. 20 Id. at 527. sentence.’ 21 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001). * * * 22 Id. at 78, 121 S.Ct. at 1288, citing Brief for the American Medical As‑ In assessing the extent of a departure, we continue to sociation et al. as Amici Curiae 11; Brief for American Public Health look to our pre-Booker case law for guidance. Association et al. as Amici Curiae 11; Brief for American Public Health * * * Association as Amicus Curiae 6, 17-19. After Booker, a court may impose a non-Guideline 23 Ferguson at 70, 121 S.Ct. at 1284. sentence-a sentence either higher or lower than the 24 Id. relevant Guideline sentence. Before imposing a non- 25 Id. at 77, 121 S.Ct. at 1287. 26 Id. at 86, 121 S.Ct. at 1293. Guideline sentence, however, the court must consider 27 See Spebar v. State, 121 S.W.3d 61 (Tex. App. — San Antonio 2003); the Sentencing Guidelines. In light of this duty, ‘a Ramos v. State, 124 S.W.3d 326 (Tex. App.—Ft. Worth 2003), compare district court is still required to calculate the guideline Hailey v. State, 50 S.W.3d 636, 640 (Tex. App.–Waco 2001), rev’d on range and consider it advisory.’ other grounds, 87 S.W.3d 118 (Tex.Crim.App. 2002). * * * 28 Ferguson at 78, 121 S.Ct. at 1288. Additionally, the district court must more thoroughly 29 Ferguson at 70, 121 S.Ct. at 1284, fn1. articulate its reasons when it imposes a non-Guide‑ 30 Two appellate cases have addressed HIPAA violations. In both cases, the line sentence than when it imposes a sentence under alleged violations occurred prior to the compliance deadline of April 13, 2003. Thus, the courts left open the question about whether or not authority of the Sentencing Guidelines. Mares, 402 a violation of HIPAA could result in suppression of the evidence under F.3d at 519. These reasons should be fact-specific and Article 38.23. See Tapp v. State, 108 S.W.3d 459 (Tex. App.– Houston consistent with the sentencing factors enumerated in [14th Dist.] 2003); Harmon v. State, No. 01-02-00035-CR, 2003 Tex. section 3553(a). App. WL 21665488 (Tex.App.– Houston [1st Dist.] July 17, 2003). * * * 31 45 C.F.R §164.512(f). The purpose of the district court’s statement of reasons 32 Ex Parte Marek, 653 S.W.2d 35 (Tex.Crim.App. 1983). is to enable the reviewing court to determine whether, 33 TEX. CODE CRIM. PROC. art. 24.03. as a matter of substance, the sentencing factors in sec‑ 34 See 45 C.F.R. 164.512(f). tion 3553(a) support the sentence. 35 TEX. CODE CRIM. PROC. art. 20.02(b) * * * A non-Guideline sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not Jason D. Cassel is board certified in criminal account for a factor that should have received signifi‑ law and based out of Longview. Approximately cant weight, (2) gives significant weight to an irrelevant 85 percent of his cases are intoxication re- or improper factor, or (3) represents a clear error of lated offenses. He is an associate director for TCDLA and an occasional lecturer on DWI. judgment in balancing the sentencing factors. The judges of our Circuit who strictly adhere to Judge Bena‑ vides’ “This Is How You Do It” outline can count on having their cases affirmed on appeal – at least as to the sentencing issues. Those who do not can look forward to having a second chance to get it right.

September 2006 VOICE FOR THE DEFENSE 21 NO. ______

STATE OF TEXAS § IN THE ____ JUDICIAL § VS. § DISTRICT COURT OF § ______§ _____ COUNTY, TEXAS

MOTION TO PRECLUDE OBJECTION TO USE OF THE PHRASES “NEAR CERTAINTY,” “NEAR CERTITUDE,” AND “MORAL CERTAINTY”

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, ______, by and through undersigned counsel and makes and files this his Motion to Preclude Objection to Use of the Phrases “Near Certainty,” “Near Certitude,” and “Moral Certainty,” and in support of said Motion, Defendant shows the Court as follows:

I. The federal due process clause has long held that no one may be convicted in this country except upon proof beyond a reasonable doubt. The necessity of this protection is that:

[I]t operates to give concrete substance to the presumption of innocence, to ensure against unjust convictions, and to reduce the risk of factual error in a criminal proceeding. At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself.

Jackson v. Virginia, 443 U.S. 307, 315 (1979)(citation omitted). Accordingly, defense counsel seeks to accomplish this constitutional mission of impressing upon the factfinder the need to reach a subjective state of near certitude by examining the panel on the burden of proof in a criminal case. See also Victor v. Nebraska, 511 U.S. 1 (1994)(use of phrase “moral certainty” not violative of due process).

Specifically, counsel seeks to use during voir dire language from the equation of “proof beyond a reasonable doubt,” “with moral certainty,” “state of near certitude,” and “near certainty.”

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests this Honorable Court to permit counsel to voir dire on the burden of proof with these phrases and preclude interruption and objection by the prosecution.

Respectfully submitted,

______Name Attorney for Defendant

CERTIFICATE OF SERVICE

I, ______, hereby certify, by affixing my signature above, that a true and correct copy of the foregoing Motion, was personally delivered to the prosecutor of the ______County District Attorney’s Office on this day, ______, 2006.

22 VOICE FOR THE DEFENSE September 2006 NO. ______

STATE OF TEXAS § IN THE ____ JUDICIAL § VS. § DISTRICT COURT OF § ______§ ______, TEXAS

ORDER

On this day, , 2006, came on to be heard the foregoing Motion to Voir Dire on Burden of Proof, and said Mo‑ tion is hereby

GRANTED/DENIED.

______JUDGE PRESIDING

September 2006 VOICE FOR THE DEFENSE 23 Do you want to make a difference? Volunteer to serve on the TCDLA board

Any member of TCDLA in good standing who desires to make application to serve on the TCDLA board of directors should fill out the application on the opposing page and forward it to the TCDLA home office at 1707 Nueces Street, Austin, Texas 78701, or fax it to 512.469.9107 on or before November 29, 2006.

The Nominations Committee listed below will consider applications nominating new board members on December 9, 2006 at our quarterly board meeting in Dallas. Please help us continue to try to slow the “freight train” running roughshod over the rights of our citizens. We need dedicated members who will not only work hard for TCDLA, but will infuse new blood and ideas into the association.

nominations committee

district 1 district 8 Vacant Kerri Anderson-Donica : Corsicana

district 2 district 9 Tip Hargrove : San Angelo Sam Basset : Austin

district 3 district 10 Mark Snodgrass : Lubbock Robert Barrera : San Antonio

district 4 district 11 Tony Vitz : McKinney Harold Danford : Kerrville

district 5 district 12 Larry Moore : Fort Worth Jamie Carrillo : Kingsville

district 6 district 13 Russell Wilson : Dallas Lydia Clay-Jackson : Conroe

district 7 district 14 Kelley Pace : Tyler Grant Scheiner : Houston

24 VOICE FOR THE DEFENSE September 2006 APPLICATIONapplication FORfor membershipMEMBERSHIP TO to BOARD board OF of DIRECTORS directors Date: ______Name: ______Date of birth:______Business address:______City: ______State: ______Zip:______Business phone: ______Office fax:______Business e-mail: ______College Attended: ______To: ______From:______Degree: ______Law School Attended: ______To: ______From:______Degree: ______What percentage of your practice is devoted to Criminal Law? ______State Bar membership number: ______Date admitted to the State Bar of Texas: ______Name of firm, partnership and/or professional association: ______Describe your legal career and experience as criminal defense practitioner (Please attach additional sheets, if necessary) : ______

During the five years immediately preceding the date of this application, list your criminal law activities to the extent and the capacity indicated:

ACTIVITY NUMBER AS LEAD COUNSEL NUMBER AS CO-COUNSEL State Felony Jury Trials State Misdemeanor Jury Trials Federal Jury Trials State Appeals Federal Appeals State and Federal Non-Jury Trials State and Federal Pleas of Guilty State and Federal Post Conviction Remedies Juvenile Proceedings Dismissals Grand Jury No-Bills Case Decided on Pre-Trial Motions Where Evidence was Presented Probation and Parole Revocations

DISCLOSUREdisclosure OF CONDUCTof conduct (circle one) Yes No (1) Have you been subject to any disciplinary sanctions by the State Bar of Texas, by a district court in Texas, or by an entity in another state which has authority over attorney discipline? Disciplinary sanctions include disbarment, resignation, suspension, reprimand (public or private), order of rehabilitation, or referral to the professional enhancement program?

Yes No (2) Have you received notification from a district grievance committee from the State Bar of Texas or similar entity in another state that a finding of just cause as defined by Section 1.06(P) of the Texas Rules of Disciplinary Procedure has been made against you?

Yes No (3) Has a criminal indictment or information been filed against you for a felony or misdemeanor involving moral turpitude or other serious crimes as defined in the attorney standards?

Yes No (4) Have you been convicted, received probation/community supervision (whether deferred or not), or fined for a felony or misdemeanor involving moral turpitude or other serious crime as defined in the attorney standards?

Yes No (5) Have you been sued for legal malpractice or other private civil actions alleging attorney misconduct, or have similar actions been concluded by settlement, dismissal, or judgment for or against you?

Yes No (6) Has a finding of inadequate representation been made against you regarding representation in a criminal case? If any answers are circled “yes”, please provide a full written explanation and supporting documentation.

TCDLAtcdla PARTICIP participationATION Please state when you first became a member of the TCDLA and describe your participation in TCDLA since that time. ______List any articles, writings, outlines or publications that you have authored in connection with substantive or procedural criminal law matters. ______List any speaking engagements you have undertaken relating to or addressing substantive or procedural criminal law topics. ______Describe briefly the reasons that you wish to become a member of the Board of Directors of the Texas Criminal Defense Lawyers Association. ______

Will you accept the obligation as a Director of the Texas Criminal Defense Lawyers Association to regularly attend board meetings (held quarterly), submit articles to the Voice, participate in legislative efforts, be available for assistance in the Strike Force, maintain the highest level of ethical standards, maintain the highest level of competence and support by attendance and participation at TCDLA and Criminal Defense Lawyers Project programs and endeavors? Yes _____ No ______.

September 2006 VOICE FOR THE DEFENSE 25 September 2006

SUPREME COURT

Cert. to 11th Circuit – Reversed & Remanded. §1983 challenge to drug used in lethal injections not barred by exhausted habeas claims. Hill v. McDonough, __U.S.__, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006); Opinion: Kennedy (9-0).

In 1983, Clarence Hill was convicted of first-degree murder and various other crimes in Florida, and sentenced to death. The Florida Supreme Court vacated the death sentence but then later affirmed it. In Hill’s first grant of habeas corpus relief, the state Supreme Court upheld the lethal injection sentence. Hill’s second application for habeas corpus relief was denied by the 11th Circuit. On December 15, 2005, Hill filed suit against Florida’s lethal injection method. The trial court rejected his plea as barred because he had exhausted his habeas corpus relief, and the state Supreme Court affirmed. The federal district court found Cynthia Hampton similarly and the 11th Circuit affirmed.

Held: An inmate can claim under 42 U.S.C. §1983 that the drug administered in lethal injections violates his Eighth Amendment right against cruel and unusual punishment when that inmate has exhausted his habeas corpus petitions. The Supreme granted cer‑ tiorari and a temporary stay of execution. The claim does not challenge the use of lethal injection but the method used in Florida. Hill’s challenge was not barred by habeas corpus but would be allowed under 42 U.S.C. §1983. The case is reversed and remanded to the Court of Appeals.

Cert. to 6th Cir. – Reversed & Remanded. Claims were not procedurally defaulted where petitioner met the actual innocence stan‑ dard. House v. Bell, __U.S.__, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); Opinion: Kennedy; Roberts concurred in part and dissented in part; Alito did not participate.

House was convicted of murder and sentenced to death by a Tennessee jury. The state Supreme Court deemed the evidence strong, although circumstantial, and affirmed the conviction. The U.S. District Court denied habeas relief, holding that House’s claims were procedurally defaulted. The 6th Circuit agreed and affirmed the District Court’s ruling. Tim Crooks Held: After new evidence emerges, habeas petitioners must assert it is more likely than not that petitioner would not be found guilty beyond a reasonable doubt by a reasonable juror. The Supreme Court reversed the judgment of the Court of Appeals, holding that House met the actual-innocence exception, and, therefore, allowed his federal habeas action

26 VOICE FOR THE DEFENSE September 2006 to continue. The Court found it was more likely than not that Held: The Fourth Amendment does not forbid the sus- no reasonable juror could have found guilt beyond a reasonable picionless search of parolees. The Court found the searches doubt. First, motive was lessened since new, reliable evidence essential to properly integrate the parolee, contest relapse, and revealed that DNA evidence (semen) found on the victim’s protect possible victims. In addition, parolees have less privacy clothing and used to convict the petitioner actually belonged to expectations than probationers. the victim’s husband. Second, forensic disorder discredited the blood evidence. Third, copious evidence pointed to the victim’s Cert. to West Virginia Supreme Court of Appeals – Reversed husband. Finally, other strong evidence against petitioner’s guilt Withholding exculpatory evidence obtained after conviction was presented at the habeas hearing. is a Brady violation. Youngblood v. West Virginia, __U.S.__, 126 S.Ct. 2188, 165 Cert to Michigan Court of Appeals – Affirmed. L.Ed.2d 269 (2006); Opinion: Per Curiam; Dissents: Scalia & Violation of knock-and-announce rule in warranted search Kennedy. does not require suppression of evidence. Hudson v. Michigan, __U.S.__, 126 S.Ct. 1836, 164 L.Ed. 2d During Youngblood’s trial for sexual assault, indecent ex‑ 566 (2006); Opinion: Souter (5-4); Dissent: Breyer, w/Stevens, posure, and wielding a firearm, eye-witness testimony of the Souter & Ginsburg. victim, Katara, and two other females, Kimberly and Wendy, weighed heavily in favor of the prosecution’s case. Youngblood In executing a warrant to search for drugs and firearms, claimed the sexual contact with Katara was consensual. He was police arrived at Hudson’s home and announced their presence. convicted of sexual assault and sentenced to 25-60 years. After They waited three to five seconds before entering the unlocked trial, Youngblood’s attorney found some potentially exculpating front door. Inside the home, they discovered and seized a firearm evidence in the form of a note written by Kimberly and Wendy and drugs. At trial, Hudson successfully moved to suppress and corroborating the defense of consensual conduct. Evidence ex‑ exclude the inculpatory evidence because, as Michigan conced‑ isted that the note was shown to the police officer investigating ed, the method of entry into the home violated the knock-and- the attack. However, the police officer refused to take the note announce rule. The Michigan Court of Appeals reversed on the and told the owner to destroy it. The trial overruled his mo‑ state’s interlocutory appeal, and the Michigan Supreme Court tion for new trial, and the Supreme Court of Appeals of West denied leave to appeal. Hudson was subsequently convicted of Virginia affirmed. drug possession. He unsuccessfully renewed his Fourth Amend‑ ment claim on appeal to the Michigan Court of Appeals. Once Held: When the prosecution suppresses evidence that is again, the Michigan Supreme Court declined review. material to guilt, it violates due process as stated in Brady v. Maryland, 373 U.S. 83 (1963). The Court then reversed and Held: Violation of the knock-and-announce rule does remanded the case to the Court of Appeals for findings regard‑ not necessitate exclusion of evidence and, specifically, does ing the Brady violation. not require suppression of evidence in this instance. The Court noted that an impermissible manner of entry does not Cert. to Washington Supreme Court – Affirmed. necessarily trigger the exclusionary rule, and cautioned that the Statements made during 911 call are non-testimonial and not exclusionary rule should only be applied where its deterrence of subject to Sixth Amendment. improper police conduct outweighs its substantial social costs. Davis v. Washington, __U.S.__, 126 S.Ct. 2266, 165 L.Ed.2d 224 The Court held that violation of Hudson’s interests protected (2006); Opinion: Scalia; Concur/Dissent: Thomas. by the knock-and-announce rule has nothing to do with the seizure of evidence; hence, application of the exclusionary rule Davis was convicted of a felony violation of a domestic no- is inappropriate. contact order. McCottry, the assaulted victim, did not testify at trial but the court admitted the 911 recording, in which the Cert. to California Court of Appeals – Affirmed. operator ascertained that McCottry had been assaulted by her No suspicion needed to search parolees. former boyfriend. Davis objected to the use of the 911 record‑ Samson v. California, __U.S.__, 126 S.Ct. 2193, 165 L.Ed.2d 250 ing under the Sixth Amendment’s Confrontation Clause. The (2006); Opinion: Thomas (6-3); Dissent: Stevens. Washington Court of Appeals affirmed the conviction and admission of the 911 recording as did the Washington Supreme Officers found methamphetamine on parolee Samson. He Court, which concluded that the part of the 911 conversation subsequently challenged a California statute, which requires in which McCottry identified Davis as her assailant was not prisoners eligible for state parole to consent in writing to a testimonial. search or seizure based only on status as a parolee. The trial court convicted Samson of possession after denying his mo‑ Held: An interrogation during a 911 call did not produce tion to suppress the evidence. The California Court of Appeals testimonial statements and thus the declarant was not a affirmed the decision, holding the search reasonable because it witness subject to the Confrontation Clause under the 6th wasn’t random, inconsistent, or harassing. amendment. The circumstances of McCottry’s interrogation factually indicate that its main purpose was to help the police

September 2006 VOICE FOR THE DEFENSE 27 provide emergency assistance. Thus, McCottry was not acting as jury instruction stating the prosecution must disprove a a witness or testifying. First, a 911 call is customarily designed duress defense beyond a reasonable doubt is consistent with to describe current circumstances demanding police assistance. the both the Due Process Clause and modern common law. Second, the statements elicited were essential to enable the police Dixon’s crimes required her to have acted knowingly or willfully, to decide the present emergency rather than to learn what had elements which the District Court found present. Although happened in the past. duress can excuse conduct, it normally does not refute elements of the offense. In affirming the conviction, the Court noted Cert. to 9th Circuit – Reversed. that here Dixon’s admittance of the crime met the requisite Petitioner must exhaust all state administrative remedies before burden of proof. pursuing federal habeas petition. Woodford v. Ngo, __U.S.__, 126 S.Ct. 2378, 165 L.Ed.2d 368 Cert. to Supreme Courts of Oregon and Virginia – Affirmed. (2006); Opinion: Alito (6-3); Concurrence: Breyer Dissent: Violation of Vienna Convention was no reason to suppress Stevens, joined by Ginsburg and Souter. statements given to police. Sanchez-Llamas v. Oregon; Bustillo v. Johnson, __U.S.__, 126 Respondent Ngo, while serving a life sentence for murder S.Ct. 2669, 165 L.Ed.2d 557 (2006); Opinion: Roberts. (Su‑ in California, was disciplined in 2000 for inappropriate activity premes consolidated and heard these two cases together.) and restricted from participating in certain activities. About half a year after imposition of these restrictions, Ngo filed a griev‑ Sanchez-Llamas: Police arrested Mexican national Sanchez- ance challenging the restrictive conditions. State administrative Llamas in Oregon following a shoot-out with police. The police procedures require a grievance to be filed within 15 working failed to inform Sanchez-Llamas of his Article 36 Vienna Con‑ days of inception of the challenged actions, and so the grievance vention right to have his home country consulate informed of petition was rejected as untimely. Upon State motion, District his arrest and detention in a foreign country. He made several Court, dismissed, but the 9th Circuit reversed the rejection of self-incriminating statements during the ensuing police investi‑ the habeas petition, stating there were no longer any adminis‑ gation, then moved to have those statements suppressed during trative remedies available to Ngo. his subsequent trial for attempted murder and other charges. The trial court denied his motion, and he was convicted. The Held: Under the Prison Litigation Reform Act (PLRA), 42 Oregon Court of Appeals and Supreme Court affirmed the U.S.C. Sec. 1997e, a prisoner may not file a federal habeas peti- conviction, holding the Vienna Convention does not give an tion against the state unless he has pursued all available state individual rights that can be enforced in a court proceeding. administrative remedies within the appropriate deadlines. The PLRA requires all state administrative remedies to be pur‑ Bustillo: Honduran national Mario Bustillo was convicted sued timely and properly before the filing of a petition for a writ of murder and sentenced to prison in Virginia. He did not raise of habeas corpus. Here, as Ngo failed to file a timely grievance, the issue of consular notification on appeal but did include it he did not properly exhaust his administrative remedies, because in his petition for writ of habeas corpus. The Circuit Court of “properly” includes pursuing the appropriate administrative Virginia held the consular notification issue was barred on the remedies within the necessary deadlines. Therefore, Ngo did writ because Bustillo did not raise it on appeal. The Virginia not meet the necessary precondition for filing a federal habeas Supreme Court held that there was no reversible error. petition, and the District Court properly granted the State’s motion to dismiss. Held: A state’s failure to inform a foreign national’s consul- ate of his arrest and detention as required by the Vienna Con- Cert to. 5th Circuit – Affirmed. vention does not mandate detainee statements be suppressed No need for gov’t to disprove duress defense beyond a reason‑ as evidence in a court of law. The Court declined to rule on able doubt. whether the Vienna Convention creates enforceable individual Dixon v. United States, __U.S.__, 126 S.Ct. 2437, 165 L.Ed.2d rights to consular notification but assumed for the sake of this 299 (2006); Opinion: Steven (7-2); Concurrences: Kennedy & opinion that it does. However, the Court ruled that, even if a Alito joined by Scalia; Dissent: Souter joined by Breyer. foreign detainee’s Vienna Convention rights are violated, the suppression as evidence of the detainee’s statements is not an While under indictment, Dixon was charged with acquiring appropriate remedy. Further, with regard to Bustillo, the Court a firearm and uttering related false statements about its acquisi‑ held that a state court may apply its procedural default rules tion. At trial, she admitted guilt but claimed duress as a defense. to Vienna Convention cases as it does to any other issues. The The District Court denied her requested jury instruction that Court affirmed the rulings of both the Oregon and Virginia the gov’t had to disprove her duress defense beyond a reason‑ Supreme Courts. able doubt. The District Court instead instructed the jury that petitioner had to establish her defense by a preponderance of Cert. to 3rd Circuit – Reversed (civil case). the evidence. She was convicted and 5th Circuit affirmed. Prison’s restriction on inmates’ access to periodicals did not violate First Amendment. Held: The district court’s refusal to provide a requested Beard v. Banks, __U.S.__, 126 S.Ct. 2572, 165 L.Ed.2d 697

28 VOICE FOR THE DEFENSE September 2006 (2006); Opinion: Breyer (6-2); concurrence by Thomas; dissents and is tried by an impartial forum and remanded the case to by Stevens and Ginsburg; Alito took no part in the decision of the Washington Court for further proceedings. the case. Cert. to Kansas Supreme Court – Reversed. Banks was incarcerated in the Pennsylvania Department of Statute requiring imposition of death when mitigating/aggra‑ Correction’s Long Term Segregation Unit (LTSU), which has a vating factors are equal is constitutional. policy requiring inmates to earn the privilege of access to most Kansas v. Marsh, __U.S.__, 126 S.Ct. 2516, 165 L.Ed.2d 429 non-religious periodicals by conforming to standards of good (2006); Opinion: Thomas (5-4); concurrence: Scalia; dis‑ conduct. Banks filed a §1983 suit claiming LTSU’s periodi‑ sent: Stevens; dissent: Souter joined by Stevens, Ginsburg and cal access policy violated the First Amendment. The District Breyer. Court certified the suit as a class-action that included similarly restricted inmates at LTSU. District Court then granted Beard’s Marsh was convicted of capital murder and sentenced to motion for summary judgment. The 3rd Circuit reversed that death. He argued in the Kansas Supreme Court that the state’s ruling and determined that withholding periodicals violated death penalty statute creates an unconstitutional presumption First Amendment rights and had no rational relation to ensur‑ in favor of death when aggravating and mitigating circum‑ ing good behavior. stances are in equipoise. The statute directs jurors to impose the death penalty when the State has proven beyond a reasonable Held: Prisons can, without violating the First Amendment, doubt that mitigating factors do not outweigh aggravating fac‑ put reasonable restrictions on the constitutional rights of tors. The Kansas Supreme Court reversed, holding the statute inmates. The Supreme Court found that the prison’s officials facially unconstitutional, concluding that the statute’s weighing created the policy from professional experience and the policy equation violates the Eighth and Fourteenth Amendments of does reasonably relate to penal goals. The Court concluded that the United States Constitution, and remanded for new trial on the periodical access policy was fully reasonable since access to some related charges. periodicals could motivate good prisoner behavior. Held: A state death penalty statute is constitutional if it Cert. to Washington Supreme Court – Reversed. directs jurors to impose the death penalty when the State Blakely error is not structural, and is therefore subject to harm has proven beyond a reasonable doubt that mitigating fac- analysis. tors do not outweigh aggravating factors. All state capital Washington v. Recuenco, __U.S.__, 126 S.Ct. 2546, 165 L.Ed.2d sentencing systems must rationally narrow the class of death- 466 (2006); Opinion: Thomas (7-2); concurrence: Kennedy; eligible defendants and allow individualized sentencing, which dissent: Stevens; dissent: Ginsburg joined by Stevens. requires consideration of mitigating evidence. However, states are allowed discretion in constitutionally imposing the death A Washington trial court convicted Recuenco of second penalty, and no specific methodology for weighing evidence degree assault by a jury, which found he had assaulted his wife is proscribed. The Kansas death penalty statute meets these “with a deadly weapon.” Based on its own factual determina‑ constitutional requirements. The statute does not impose an tions, the trial court applied a three-year firearm enhancement impermissible burden on the defendant when mitigating and to Recuenco’s sentence, violating the rule of Blakely v. Wash- aggravating factors are in equipoise because the State bears the ington, 542 U.S. 296. The Washington Supreme Court vacated burden of demonstrating that mitigating evidence does not the sentence, holding that Blakely violations are never harmless outweigh aggravating evidence. and in Recuenco’s case, that the trial court concluded Recuenco satisfied the condition for the firearm enhancement, in violation Cert. to 8th Circuit – Affirmed/Remanded. of his right to a jury trial. Denial of choice of counsel is structural error not subject to harm analysis. Held: A trial court’s failure to submit a sentencing factor United States v. Gonzalez-Lopez, __U.S.__, 126 S.Ct. 2557, 165 to the jury, as required by Blakely v. Washington, is not a L.Ed.2d 409 (2006); Opinion: Scalia (5-4); dissent: Alito, joined structural error, and a harmless error analysis is applicable by Roberts, Kennedy and Thomas. when reviewing the resulting verdict. The Supreme Court first affirmed its authority to review the case, rejecting Recuenco’s Gonzalez-Lopez was accused of conspiracy to distribute argument that it lacked the power to review cases decided on marijuana in Missouri. His family initially retained John Fahle as independent state law grounds. The Court reasoned that even if counsel, but after the initial hearing, Gonzalez-Lopez requested the Blakely violation was found not to be harmless in this case, that Joseph Low, a California lawyer, represent him. The District such a finding would not justify the blanket conclusion that all Court later denied Low’s pro hac vice admission because he had Blakely violations can never be harmless error. The Court then allegedly communicated with Gonzalez-Lopez without Fahle’s held that a failure to submit a proper instruction to the jury permission, in violation of Missouri rules of professional con‑ cannot be considered a structural error meriting automatic duct. The District Court found Gonzalez-Lopez guilty of the reversal. The Court noted the strong presumption of harmless drug charge and granted Fahle’s motion for sanctions against error analysis in criminal law so long as defendant has counsel Low. The 8th Circuit reversed, holding the denial of Low’s pro

September 2006 VOICE FOR THE DEFENSE 29 hac vice motion was erroneous and therefore violated Gonzalez- Detainee Treatment Act of 2005, the Court had jurisdiction; 2) Lopez’s Sixth Amendment right to paid counsel of his choosing. The tribunal that the Bush administration established to try The appellate court also ruled that harmless error review was Hamdan violates both the Geneva Convention and the Uniform not applicable. Code of Military Justice; 3) Presidential powers do not permit establishment of such tribunals, and Congress’ Authorization Held: Erroneous denial of a defendant’s choice of counsel for Use of Military Force resolution does not expand presidential violates the Sixth Amendment and is grounds for reversal powers so as to permit such establishment. of conviction, without resort to harmless error review. The Supreme Court affirmed the decision and remanded the case, Cert. to Arizona Court of Appeals – Affirmed. holding that erroneous deprivation of choice of counsel consti‑ Arizona’s insanity test does not violate due process. tuted a “structural defect” in the trial because the consequences Clark v. Arizona, __U.S.__, 126 S.Ct. 2709, 165 L.Ed.2d 842 are “unquantifiable and indeterminate.” The Court stated that (2006); Opinion: Souter (6-3 ); concurrence in part: Breyer; a defendant did not have to show that using his counsel of dissent: Kennedy joined by Stevens and Ginsburg. choice would have resulted in different proceedings because it was impossible to know what choices the rejected attorney An Arizona trial court convicted Eric Clark of first-degree would have made. murder for shooting a police officer. At his bench trial, Clark did not contest the shooting, but instead raised the defense of Cert to D.C. Circuit – Reversed & Remanded. insanity and relied on evidence of an uncontested mental ill‑ Guantanamo War Crimes Tribunals Violates Geneva Conven‑ ness to deny the crime’s requisite level of mens rea. The trial tion & Code of Military Justice. court ruled that Clark could not dispute mens rea by presenting Hamdan v. Rumsfeld, __U.S.__, 126 S. Ct. 2749, 165 L. Ed. evidence bearing on insanity. Clark moved to vacate the judg‑ 2d 723 (2006); Opinion: Stevens, joined by Kennedy, Souter, ment on the grounds that Arizona’s insanity test, which looks Ginsburg, and Breyer; concurrence: Breyer, joined by Kennedy, to whether a defendant is capable of distinguishing right from Souter, and Ginsburg; concurrence: Kennedy, joined by Souter, wrong, violates due process. Clark further argued the trial court Ginsburg, and Breyer in part; dissent: Scalia, joined by Thomas erred by restricting the relevance of evidence of mental illness and Alito; dissent: Thomas, joined by Scalia and Alito in part; to its bearing on the insanity defense and denying its admis‑ dissent: Alito, joined by Scalia and Thomas in part; Roberts sion to dispute mens rea. The Court of Appeals of Arizona took no part in the decision. affirmed Clark’s conviction and the Arizona Supreme Court denied further review. The U.S. military, during the Afghanistan invasion, captured Yemeni citizen Hamdan and detained him at its naval base in Held: Arizona’s variation of the insanity test does not vio- Guantanamo Bay, Cuba. The Bush administration announced late due process, and it is also not a due process violation for that it would try Hamdan for conspiracy to commit terrorism Arizona to limit consideration of evidence of mental illness before a military tribunal. Hamdan filed a petition for writ of to its bearing on an insanity defense. The Supremes affirmed, habeas corpus, asserting that a military tribunal trial would ruling that Arizona’s insanity defense is consistent with due pro‑ violate his due process rights. The District Court granted relief, cess. Although the Court acknowledged that Arizona’s revised reasoning that the President’s powers in this area extended only insanity test eliminates the first part of the two-part traditional to war crimes and held that Hamdan must be afforded all Ge‑ common law M’Naghten rule, the Court held that because the neva Convention protections until and unless he was judged not traditional rule does not consist of fundamental principles, a prisoner of war. The District Court also held that regardless States have the capacity to vary the defense elements. Arizona’s of Hamdan’s status, tribunal trials violated the Geneva Conven‑ revised test does not offend due process because it does not make tion and the Uniform Code of Military Justice. The D.C. Circuit cognitive incapacity entirely irrelevant. The Court also affirmed reversed, holding the military commission proper because: 1) Arizona’s reliance on state precedent to restrict the relevance of Congress had approved such tribunals to try enemy combat‑ evidence of mental illness, holding that it does not offend due ants; 2) The Geneva Convention is a treaty between nations and process to channel such evidence to the bearing on the insanity therefore does not grant individuals rights that can be protected defense rather than defendant’s mens rea. in a court of law; and 3) The Geneva Convention does not ap‑ ply to Hamdan’s case, because the War on Terror is between the United States and al-Qaeda, not between two nations. Further, FIFTH CIRCUIT the appellate court held it was constitutional for the president to try Hamdan, because Congress had authorized it. Denial of habeas relief reversed. Morgan v. Dretke, 433 F.3d 455 (5th Cir. 2005). Held: Bush did not have the power to establish special war crimes tribunals to try the detainees at Guantanamo Bay and District court erred in denying habeas relief to state prisoner those tribunals violated both the Geneva Convention and the challenging a prison disciplinary proceeding finding him guilty Uniform Code of Military Justice. The Supreme Court reversed of assaulting an officer with a non-serious injury and resulting and remanded, holding that 1) Despite Congress’ passage of the in the loss of good time credits; even under the deferential “some

30 VOICE FOR THE DEFENSE September 2006 evidence” standard, the evidence was insufficient to support the that his Sixth Amendment rights had been violated under adverse disciplinary action because the charged conduct did United States v. Booker, 543 U.S. 220 (2005), where his objec‑ not describe a cognizable “Code 3.3 offense” under the pre- tions adequately apprised the district court that he was raising 2005 version of the State’s Disciplinary Rules and Procedures a Sixth Amendment challenge to fact-finding by the district for Offenders; the hearing officer’s and federal district court’s court as to the end-date of the conspiracy at issue (which, in “interpretation” of Code 3.3 to include assault resulting in no turn, determined the version of the Guidelines applicable to injury has no basis in the applicable version of the Disciplinary sentencing); on the merits, the district court did run afoul of Rules; accordingly, 5th Circuit reversed the denial of habeas Booker when, for purposes of the then-mandatory Guidelines, relief and remanded for either a constitutionally adequate it made a finding as to the end-date of the conspiracy, resulting disciplinary hearing, if permitted by state law, or vacatur of in the use of the 2002 Guidelines Manual, where reliance on the the disciplinary conviction and reinstatement of the good time jury’s findings would have permitted only the use of the 2000 credits that were taken away. Guidelines Manual (which produced a lower Guidelines range); because the government could not prove that the Booker error Resisting arrest not “relevant conduct” for illegal reentry was harmless beyond a reasonable doubt, the error required sentencing. that defendant’s sentence be vacated and the case remanded for United States v. Vargas-Garcia, 434 F.3d 345 (5th Cir. 2005). resentencing. (Judge Jolly filed an opinion dissenting in part, in which he disagreed that there was Booker error in this case.) Where defendant, who illegally reentered the United States at some unspecified time before he was arrested for resisting Appeal waiver did not bar guidelines application com- arrest on September 12, 2004, was subsequently “found” in the plaint; United States by immigration officials and charged with being United States v. Harris, 434 F.3d 767 (5th Cir. 2005). unlawfully found in the United States after deportation, in violation of 8 U.S.C. §1326, the resisting arrest charge was not (1) The appeal waiver provisions of defendant’s plea agree‑ “relevant conduct” with respect to the §1326 offense; therefore, ment did not bar defendant’s claim that the district court ap‑ district court did not err in separately counting, for Guideline plied the incorrect Guidelines provisions to his case; a criminal criminal history purposes. defendant’s waiver of the right to appeal relinquishes significant rights and therefore will be narrowly construed; the right of OK for gov’t to keep $189,000 of drug dealer’s forfeited appeal should not be considered as having been waived or money. abandoned except where it is clearly established that this is the United States v. Robinson, 434 F.3d 357 (5th Cir. 2005). case; the sentence “Defendant reserves the right to appeal a sentence in excess of the Guidelines” does not unambiguously District court did not err in denying federal drug defendant’s waive a complaint that the wrong Guidelines were applied, and Rule 41(g) motion for return of approximately $189,000 of cash any ambiguity must be construed in favor of the defendant’s seized during traffic stop of defendant and administratively for‑ right to appeal; accordingly, 5th Circuit rejected government’s feited by the FBI; although characterizing it as a “close question,” argument that defendant had waived an appellate challenge to the Fifth Circuit held that the nearly eight-month total delay the district court’s application of the Guidelines in his case. from the seizure to the first written notice was not unjustifi‑ ably lengthy and comported with due process; furthermore, (2) District court did not err in applying an enhancement under the circumstances, the government’s efforts at written under USSG §3A1.4 on the ground that defendant’s offense — a notice were reasonably calculated to provide the defendant violation of 18 U.S.C. §844(i) involving the bombing of a mu‑ with notice, and hence did not result in a due process viola‑ nicipal building with a Molotov cocktail, causing an explosion tion; moreover, the government complied with the statutory and severely damaging fire — was a “federal crime of terrorism”; requirements for notice by publication by publishing its notices district court did not clearly err in finding that his offense was of seizure and intent to forfeit in the New York Times, which is calculated to influence or affect the government’s conduct by a newspaper of general circulation in the Southern District of intimidation or coercion, or to retaliate against government Texas; finally, the government was not obligated to wait until conduct, where evidence supported a finding that defendant defendant was indicted for drug offenses and then in custody was motivated to start the fire by an intent to retaliate against, with an attorney representing him, before it began forfeiture or to intimidate, the officers who had arrested him and were proceedings; the government did not ignore known information pursuing charges against his father; along the way, the 5th Cir‑ about defendant’s whereabouts and did not act unreasonably cuit rejected the contention that this enhancement required the under all the circumstances in relying on the mail as a means offense conduct at issue to have transcended national boundar‑ to apprise defendant of the forfeiture. ies; although this is a requirement of the statutory definition of a “federal crime of terrorism” contained in 18 U.S.C. §2332(b), Sixth Amendment challenge preserved Booker claim. the Guidelines do not predicate an enhancement under USSG United States v. Freeman, 434 F.3d 369 (5th Cir. 2005) §3A1.4 on a violation of §2332(b).

Defendant sufficiently preserved for appellate review a claim

September 2006 VOICE FOR THE DEFENSE 31 Case reversed where evidence of venue was insufficient. to the effect that he believed people who sexually assault children United States v. Clenney, 434 F.3d 780 (5th Cir. 2005). should be sentenced to death. COA ruled Appellant waived this complaint because he failed to raise it in the trial court, and In international parental kidnapping case under 18 U.S.C. affirmed the conviction. Brumit v. State, No. 07-03-0462-CR §1204, evidence was insufficient to establish venue in the charg‑ (Tex. App.–Amarillo 2004). PDR was granted to determine ing district (the Northern District of Texas); the removal of the whether Appellant’s due process and due course of law rights child from the United States to Belize – which is the actus reus were violated by the trial court’s comments. of this statute – took place from the Southern District of Texas, where the defendant father resided, and there was no connec‑ Held: The record does not reflect partiality of the trial court tion to the Northern District save for the fact that the Northern or that a predetermined sentence was imposed. Furthermore, District was where the mother, who had custodial rights, resided the judge’s comments are clearly distinguishable from those (along with the child when he was with her). cases where appellate courts have found either partiality of the trial judge or that the trial judge imposed a predetermined 2001 false citizenship conviction was not “relevant conduct” sentence. Appellant argues that under the plurality opinion in for purposes of 2004 illegal reentry. Blue v. State, 41 S.W.3d 129 (Tex.Crim.App. 2000), CCA should United States v. Alvarado-Santilano, 434 F.3d 794 (5th Cir. reach the merits of his complaints and, similarly, COA erred in 2005). failing to do so. However, CCA says it doesn’t need to decide whether COA erred when it held the error was not preserved. In sentencing defendant for being found unlawfully present The trial court heard extensive evidence of repeated sexual in the United States in June of 2004 after deportation, district abuse of two children, listened to testimony about the effects court did not plainly err in assigning criminal history points of the abuse on the victims and their families, and according for a 2001 conviction for making a false claim of citizenship to his comments, the trial court was particularly impacted by in connection with a 2001 illegal reentry, following which de‑ the victim’s thoughts of suicide. The trial court was aware also fendant was deported from the United States in December of that this was Appellant’s seventh conviction for child sexual 2002; the 2001 offense and the 2004 offense were not a single assault. It was only after hearing all this evidence that the trial continuing offense where they were separated by an intervening court made his statement. And, there is explicit evidence from “finding” by immigration officials, resulting in the defendant’s the hearing on the plea that the trial court considered the full removal from the United States; therefore, the 2001 false citi‑ range of punishment in assessing the sentence. Trial court did zenship conviction was not “relevant conduct” with respect to not err, thus COA’s judgment is affirmed. the 2004 offense; along the way, the 5th Circuit repudiated as dicta overly broad language in United States v. Corro-Balbuena, Appellant’s PDR from Taylor County – Affirmed. 187 F.3d 483 (5th Cir. 1999), which could be read as suggesting Procedural default resulted from silent record. a contrary result. Word v. State, __S.W.3d__ (Tex.Crim.App. No. 0834-05, 6/14/06); Opinion: Hervey; Concurring & dissenting opinion: Sufficiency argument raised in supplemental briefs was Johnson; Womack concurred; Price did not participate. waived. United States v. Pompa, 434 F.3d 800 (5th Cir. 2005). Appellant was convicted by a jury of Class A assault family violence and sentenced to 1 year jail plus a $4000 fine, with no Defendants waived appellate challenge to the sufficiency of recommendation to suspend either the fine or sentence. During the evidence to support their convictions where they did not deliberations the jury sent out a note asking how much time raise a sufficiency argument in their opening briefs, but rather Appellant would be required to serve, and whether the fine only in supplemental briefs. and sentence would be served consecutively or concurrently if Appellant could not pay the fine. The trial court responded in COURT OF CRIMINAL APPEALS writing to these questions without notifying Appellant, thus violating TCCP art. 36.27, which requires the defendant be noti‑ PDR Opinions fied when the jury sends out a request for instruction, therefore depriving Appellant of his opportunity to respond and make Appellant’s PDR from Lubbock County – Affirmed. objections. COA affirmed, holding that because the record was Trial court’s comments prior to sentencing did not indicate silent as to this complaint, Appellant procedurally defaulted partiality. this claim because there was nothing in the record to show he Brumit v. State, __S.W.3d__ (Tex.Crim.App. No. 043-05, raised any objection. Word v. State, __S.W3d__ (Tex.App. No. 6/14/06); Opinion: Holcomb (9-0); Womack concurs. 11-03-00403-CR – Eastland, delivered April 28, 2005). PDR was granted to determine whether this ruling was correct. Appellant repeatedly sexually assaulted his 12-year-old daughter and her friend. He pled open to the trial court, which Held: COA did not err in affirming the conviction. Appel‑ assessed a life sentence. Appellant complained on appeal of cer‑ lant claims that, when the record is silent, this Court should tain comments the judge made immediately before sentencing abandon Green v. State’s, 912 S.W.2d 189 (Tex.Crim.App.

32 VOICE FOR THE DEFENSE September 2006 1995), presumption of a trial court’s compliance with Article time the application is filed. CCA adheres to that ruling and 36.27 requirements and adopt the opposite presumption of a holds the trial court in this case did not lose jurisdiction to trial court’s noncompliance with Article 36.27 requirements. hear Appellant’s pre-conviction application once that court CCA rejects this argument. Green is consistent with rules of adjudicated him guilty. procedural default and rules of appellate procedure that usually apply in cases like this. It is usually the appealing party’s burden Held: COA erred when it held Appellant’s plea was invol- to present a record showing properly preserved, reversible er‑ untary. The proper standard of review is abuse of discretion. ror. Even with the repeal of former Rule 50(d), this is entirely The record contains evidence that Appellant had accepted the consistent with the decision in Rowell v. State, 66 S.W.3d 279 State’s offer of a plea bargain and had pled guilty, not because (Tex.Crim.App. 2001), which did not presume error from a the trial court had punished him by revoking his bond and silent record. Consistent with former Rule 50(d), the partial putting him in jail to await trial, but because he had reason‑ record presented by the defendant in Rowell showed properly ably concluded that it was in his best interest to accept the plea preserved, reversible error. Nothing in Article 36.27 expressly bargain and take deferred adjudication community supervision indicates a legislative intent that appellate courts should dis‑ and a modest fine. Given the record evidence, the trial court regard usual rules of procedural default and rules of appellate could have reasonably concluded that Appellant had entered procedure and presume that a defendant had no opportunity his guilty plea voluntarily, i.e., that Appellant’s guilty plea had to object to a trial court’s answers to jury questions when the not been induced by threats, misrepresentations, or improper record is silent. COA did not err, thus its judgment is affirmed. promises, and COA erred in holding otherwise. Trial court did Appellant also raised complaints against the family violence not abuse its discretion. COA’s judgment is reversed, and case finding, but CCA says they are not ripe for review, and does is remanded so that court may address Appellant’s remaining not address them. point of error.

State’s PDR from Ellis County – Reversed. Appellant’s PDR from Bexar County – Affirmed. Abuse of discretion is correct appellate standard for pretrial Appellant forfeited his confrontation rights when he killed the habeas. victim to silence her. Kniatt v. State __S.W.3d__ (Tex.Crim.App. No. 0323-05, Gonzalez v. State, __S.W.3d__ (Tex.Crim.App. No. 0247-05, 6/20/06); Opinion: Holcomb; Concurring opinion: Keller; Mey‑ 5/20/06); Opinion: Cochran; Concurring opinion: Johnson. ers did not participate; Womack concurred in result. Appellant shot his neighbors Maria and Baldomero Herrera In 2001 the 18-year-old Appellant was charged with posses‑ and stole their truck and other property. Maria made statements sion of methamphetamine and worked out a plea agreement. identifying Appellant as her assailant to three police officers However, during a pretrial hearing he reneged, saying he wanted before she died. During his trial for capital murder, the state a trial and a new attorney. The trial court revoked his bond and introduced these statements, over hearsay objections. The trial put him in jail. A few days later, Appellant pled guilty under a court ruled the statements were admissible as excited utter‑ plea agreement similar to the one he had earlier rejected, and ances. COA agreed, deciding that it need not resolve whether was placed on deferred. In 2003, after a hearing, Appellant’s they were also testimonial because Appellant had forfeited probation was revoked and he was adjudicated guilty. He filed his right to confrontation under the doctrine of forfeiture by this art. 11.08 pretrial habeas action (along with an unsuccessful wrongdoing. Gonzalez v. State, 155 S.W.3d 603 (Tex. App.– San motion to recuse the judge) claiming his plea was involuntary Antonio 2004). PDR was granted to determine whether this because the trial court acted unlawfully in revoking his bond, ruling was correct. and that action along with statements by the prosecutor and his attorney coerced his guilty plea and rendered it involuntary. Held: Appellant forfeited, by his own misconduct of fatally After a hearing, during which the prosecutor and Appellant’s shooting Maria Herrera during a robbery or the burglary of lawyer testified, his writ was rejected. COA reversed, holding her home, his right to confront her in court about hearsay the plea was involuntary. Kniatt v. State, 157 S.W.3d 83 (Tex. statements made before she died. CCA traces the forfeiture App.– Waco 2005). State’s PDR was granted to determine by wrong-doing doctrine, which goes back to English common whether the trial court had jurisdiction to hear the 11.08 writ, law. Texas has also adopted the doctrine, which is based on the and whether COA used an incorrect standard of review when premise that a defendant cannot complain about confronta‑ it reversed the trial court’s ruling. tion rights if he has prevented the witness from testifying. The majority of post-Crawford cases have applied the forfeiture by Held: The trial court had jurisdiction to hear the pretrial wrongdoing doctrine when the trial court makes a preliminary writ application. At the time Appellant filed his application finding under Rule 104(a) that the defendant’s act of miscon‑ for writ of habeas corpus, it was a pre-conviction application, duct caused the witness’ unavailability, although some have also and, pursuant to Article 11.08, the trial court had jurisdic‑ required that the defendant acted with the intent to prevent tion to hear it. In Ex parte Johnson, 12 S.W.3d 472 (Tex.Crim. the witness’ testimony. The State argues COA correctly applied App. 2000), CCA held the jurisdiction of a court to consider the forfeiture doctrine because forfeiture by wrongdoing, as an an application for writ of habeas corpus is determined at the equitable doctrine, does not require the state to establish the

September 2006 VOICE FOR THE DEFENSE 33 defendant’s motive. Appellant, on the other hand, asserts the claims that attack a trial court’s jurisdiction to act. With re‑ doctrine cannot apply unless the State shows the defendant spect to a trial court’s determination to adjudicate guilt, TCCP engaged in the wrongdoing for the purpose of preventing the Article 42.12, §5(b) provides: “No appeal may be taken from witness from testifying at a future trial. CCA says it need not this determination.” The Legislature has authorized appeal of decide this question because an examination of the entire record only two types of orders: (1) an order granting deferred adju‑ clearly supports the inference that Appellant shot the Herreras dication, and (2) an order imposing punishment pursuant to to silence them. A logical inference is that Appellant killed the an adjudication of guilt. CCA points to precedent holding an Herreras because he wanted to steal their truck and their money, order modifying the terms or conditions of deferred adjudica‑ and didn’t want any witnesses to his crime, especially witnesses tion is not in itself appealable, and concludes the extension in who knew him, and knew where to find him. Further: this case was not separately appealable. After a brief analysis, CCA concludes a jurisdictional attack on the trial court’s de‑ We agree with those post-Crawford cases and the termination is still an attack on that determination, and it may Crawford amicus brief that the doctrine of forfeiture not be advanced on appeal. Judgment is therefore reversed, and by wrongdoing may apply even though the act with the trial court’s judgment is affirmed. which the accused is charged is the same as the one by which he allegedly rendered the witness unavailable. State’s PDR from Bexar County – Reversed. The trial court in this case did not make a preliminary Trial court did not err in admitting evidence of an extraneous ruling on whether appellant killed Maria, at least in offense. part, to prevent her from testifying against him be‑ Garcia v. State, __S.W.3d__ (Tex.Crim.App. No. 1633-04, cause this case was tried before Crawford was decided. 6/28/06); Opinion: Meyers. Nonetheless, an evidentiary ruling, such as the one admitting Maria’s out-of-court statements, will be During Appellant’s trial for killing his estranged wife, Lesa, upheld on appeal if it is correct on any theory of law with whom he had a violent relationship, the state was allowed to that finds support in the record. introduce, over confrontation and hearsay objections, evidence of a “car-dumping” incident in which Appellant had forced Lesa The record provides ample support for the admission of from his vehicle and left her on the side of Loop 1604 without Maria’s out-of-court statements, despite Appellant’s Confronta‑ her purse or cell phone. Appellant was convicted and sentenced tion Clause objection, because he forfeited his right to confront to 99 years. COA held the car dumping incident had no purpose Maria by his own wrongful act. The evidence strongly suggests other than to show Appellant acted violently in the past and that procurement of Maria’s absence was motivated, at least in acted in conformity with this violent character on the night of part, by Appellant’s desire to permanently silence her and pre‑ the murder. COA held that the trial court abused its discretion vent her from identifying him. CCA expresses no opinion on in admitting the evidence and, after concluding the error was COA’s broader holding that procurement of a witness’ absence harmful, reversed the judgment of the trial court. Garcia v. State, need not be motivated by a desire to silence the declarant for 150 S.W.3d 598 (Tex.App. – San Antonio 2004). State’s PDR was the forfeiture by wrongdoing doctrine to apply. COA’s judg‑ granted to review this determination. ment is affirmed. Held: COA erred in holding the car dumping incident was State’s PDR from Nueces County – Reversed. introduced solely for character conformity purposes and in No appeal permitted from determination to adjudicate, even if failing to consider that the evidence had probative value to defendant is unrepresented by counsel. explain the nature of the relationship between Appellant and Davis v. State, __S.W.3d__ (Tex.Crim.App. No. 0078-05, Lesa at the time of the offense. An appellate court is not free 6/28/06); Opinion: Keller. to reverse a lower court’s decision simply because it disagrees with that decision. While COA may have disagreed with the Appellant was placed on deferred for two years for indecency. trial court’s determination that the car dumping evidence After having his community supervision extended twice, he was was admissible, COA should not have reversed the conviction adjudicated guilty on his plea of true and assessed a 10-year sen‑ unless the decision of the trial court was outside the zone of tence. He appealed, arguing the first extension was void because reasonable disagreement. Because the car dumping incident he was unrepresented by counsel at the time. COA held the trial was admissible under Rule 404(b) for the purpose of explain‑ court denied Appellant counsel by failing to admonish him ing the circumstances surrounding the parties’ divorce, which regarding the dangers and disadvantages of self-representation was relevant to the nature of their relationship at the time of and by failing to determine whether he was indigent. Davis v. the offense, the trial court’s decision to admit the evidence State, 150 S.W.3d 196 (Tex.App. – Corpus Christi 2004). State’s under Article 38.36(a) was not outside the zone of reasonable PDR was granted to determine whether COA had any jurisdic‑ disagreement. COA misapplied the appellate harm standard tion to even address the merits of the appeal. of review by reversing the decision of the trial court simply because it disagreed with that decision. Judgment is therefore Held: There is no exception to the prohibition on appeal reversed, and the case is remanded to COA for consideration from a trial court’s determination to adjudicate guilt for of Appellant’s remaining points of error.

34 VOICE FOR THE DEFENSE September 2006 ***Important case*** 297, which gives the trial court 20 days after the request for State’s PDR from Bexar County – Reversed findings of fact is made, and mandates it send copies of its Losing party is entitled to findings of fact when trial court findings to the parties. grants pretrial motion. State v. Cullen, __S.W.3d__ (Tex.Crim.App. No. 984-05, Appellant’s PDR from San Jacinto County – Affirmed. 6/28/05); Opinion: Meyers (9-0). Trial court must instruct jury when defendant stipulates to prior DWI convictions. Appellant was charged with DWI and filed a motion to Martin v. State, __S.W.3d__ (Tex.Crim.App. No. 1940-05, suppress. After a hearing the trial court granted the motion, 6/28/06); Opinion: Cochran; Dissent: Meyers. but refused the state’s request for findings of fact. On appeal the state argued it was precluded from appealing the pretrial Prior to Appellant’s felony DWI trial, he stipulated to the order because there was nothing in the record to support the two prior DWI’s required to raise the offense to a felony. He trial court’s ruling. COA, while acknowledging the limitations unsuccessfully requested an instruction charging jurors about on appellate review when there are no findings or conclusions, the necessity of finding him guilty of two prior DWI convictions declined to impose a rule requiring trial courts to file findings of before they could find him guilty of a felony DWI offense. The fact and conclusions of law after granting a defendant’s motion trial court denied the request, and COA affirmed, holding he to suppress evidence, reasoning such a determination should was not entitled to the instruction. Martin v. State, 179 S.W.3d be left to the legislature or CCA. State v. Cullen, 167 S.W.3d 685 (Tex. App.– Beaumont 2005). PDR was granted to resolve 428 (Tex. App.—San Antonio 2005). State’s PDR was granted a conflict in the courts of appeals concerning whether the jury to determine the correctness of this ruling. charge should include instructions directing jurors to find the jurisdictional element of two prior DWI convictions satisfied Held: Because an appellate court’s review of a trial court’s based on a defendant’s formal written stipulation. ruling is restricted by an inadequate record of the basis for the trial court’s ruling, CCA finds it necessary to require a Held: The jury should be instructed about the existence trial court to express its findings of fact and conclusions of and effect of a defendant’s stipulation to the two jurisdic- law when requested by the losing party. After a brief analysis, tional prior DWI convictions. Appellant argues that, despite CCA determines the trial court erred by refusing the request his stipulation to the two prior jurisdictional DWIs, the jury for findings. The trial court’s refusal to act prevented COA is still required to be properly charged on the applicable law from meaningful review of the decision to grant the motion and properly have the law applied in an application paragraph to suppress. Without findings of fact and conclusions of law, regarding the two prior DWI convictions in order to properly COA was left in the undesirable position of having to make convict Appellant of the felony DWI offense. After a brief analy‑ assumptions about the reasons for the trial court’s decision. sis, during which it summarizes the law regarding stipulations TRAP 44.4 authorizes COAs to remand the case to the trial in DWI cases CCA agrees. The law that applies to any felony court so the appellate court is not forced to infer facts from an DWI offense includes the jurisdictional element of two prior unexplained ruling. DWI convictions. Although a defendant’s stipulation takes this jurisdictional element out of contention and obviates the need While Rule 44.4 remedies the problem in this case, the for any evidentiary proof of that element, the jury must still be efficient administration of justice will be served by a instructed on all law concerning a felony DWI offense. The jury requirement that trial judges respond to a request for should then be instructed, by whatever means and with whatever findings of fact and conclusions of law. Effective from words are deemed most appropriate to the parties and the trial the date of this opinion, the requirement is: upon the court, about the existence and legal effect of the defendant’s request of the losing party on a motion to suppress stipulation. Because that did not occur in the present case, it was evidence, the trial court shall state its essential find‑ error. However, as Appellant did not object to the charge, he had ings. By ‘essential findings,’ we mean that the trial to show its absence was egregiously harmful under Almanza, court must make findings of fact and conclusions of and this is not shown. Judgment is therefore affirmed. law adequate to provide an appellate court with a basis upon which to review the trial court’s application of Opinion on Denial of Rehearing the law to the facts. State Prosecuting Attorney’s PDR from Lamar County – Re- Judgment is therefore vacated, and case is remanded to COA hearing Denied. so that it may order the trial court to make the appropriate Dixon v. State, __S.W.3d__ (Tex.Crim.App. No. 0077-06, reh’d findings. denied 6/14/06); Opinion: Per Curiam Womack concurs; Keller dissents. Editor’s Note: This “bright-line” rule applies to the Appel‑ lant’s request for findings as well as the state’s, and should not SPA’s PDR was granted to answer the following question: be limited to motions to suppress, but to all pretrial motions. “In order to render lawful a motor vehicle stop for a traffic of‑ Trial courts are to be guided by Texas Rule of Civil Procedure fense, must the stop be effected within a reasonable time and

September 2006 VOICE FOR THE DEFENSE 35 a reasonable distance after the alleged violation.” On original unsettled at the time and is unsettled to this day. Id. (unnecessary submission, CCA answered the question “Yes” and affirmed the to decide merits of the substantive claim underlying defendant’s appellate court’s reversal. SPA now complains the CCA’s opinion ineffective assistance of counsel claim, because defendant still did not address the COA’s alternative holding. could not establish counsel’s ineffectiveness even if the substan‑ Held: Rehearing denied because SPA did not seek review of tive claim was resolved in defendant’s favor). This is dispositive that alternative ruling. When a COA issues alternative rulings of applicant’s ineffective assistance of counsel claim. See also Ex on the same issue, its decision will be affirmed if fewer than all parte Chandler, 182 S.W.3d 350, 357-59 (Tex.Crim.App. 2005) alternative rulings are appealed. Sims v. State, 792 S.W.2d 81, (attorney is not liable for an error in judgment on an unsettled 82 (Tex.Crim.App. 1990)(improvidently granted; Appellant did proposition of law). Relief is therefore denied. not challenge COA’s alternative holding.) See also, 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice Habeas Corpus Application from Harris County – Relief and Procedure § 44.30 (2d ed. 2001)(unless all alternative Granted. grounds are challenged, a ruling from the CCA does not affect Ex parte Rodriguez, __S.W.3d__ (Tex.Crim.App. No. 75281, the outcome and is therefore advisory.) The State Prosecuting 6/28/06); Opinion: Johnson (9-0). Attorney’s motion for rehearing is denied. Applicant was serving 20 years for murder when he was Writ Opinions released to mandatory supervision in 1993. He was revoked and returned to the joint in 1995. He was also prosecuted in Habeas Corpus Application from Harris County – Relief federal court, but acquitted and released from federal custody Denied. in December of 1995, and went home to Mexico. He was again Ex parte Bahena, __S.W.3d__ (Tex.Crim.App. Nos. 75,116/17, returned to the joint in 2002. This writ was filed and set to 6/28/06); Opinion: Hervey. determine whether Applicant is entitled to credit spend in a Mexico jail while awaiting extradition to the U.S. Applicant was prosecuted in the same criminal proceed‑ ing for two counts of sexually assaulting the same victim, and Held: Relief Granted. Applicant is entitled to receive jail- assessed stacked sentences. He complains in this writ that his time credit for the time between his arrest in Mexico and his trial and appellate attorneys were ineffective for failing to object return to the custody of TDCJ authorities. CCA rejects the to the stacked sentences because the offenses were committed state’s contention that Applicant was not entitled to the time before Sept. 1, 1997, the date the statute permitting sentences for because no detainer was lodged against him in Mexico. In Han- offenses arising out of the same criminal episode to be stacked nington v. State, 832 S.W.2d 355, 356 (Tex.Crim.App. 1992), CCA instead of cumulated. CCA filed and set to determine whether explained “[t]he existence of a detainer is merely one means of counsel were ineffective. establishing incarceration on a particular cause[, and n]o formal detainer is required if it is established by some other means that Held: Relief denied because counsel were not ineffective. the prisoner was detained in that cause[.]” See also Ex parte The general rule is that multiple sentences for multiple convic‑ Kuban, 763 S.W.2d 426, 427 (Tex.Crim.App. 1989), in which tions arising out of the same criminal episode and prosecuted in the applicant was held in California pursuant to a Texas fugitive a single criminal action shall run concurrently. Tex. Penal Code, warrant. Here, although the trial court initially recommended §3.03(a). Effective Sept. 1, 1997, the legislature amended §3.03 relief be denied because of a lack of a detainer, it later made a to authorize stacked sentences for convictions for aggravated supplemental finding that: “Pending extradition to the United sexual assault. The statute does not apply retroactively. The States, Applicant was held from March 12, 2001[,] until June indictment alleges Applicant committed one offense in 1996, 4, 2002, (approximately 14 months), by Mexican Authorities and the other in 1998. The complainant testified that Applicant solely as a result of the fugitive arrest warrant.” Consequently, sexually assaulted her from the time she was nine until the day the trial court recommended that relief be granted. Under Ku- before her 14th birthday, which would have been sometime ban, Applicant is entitled to receive jail-time credit for the time between September 21, 1993, and up to at least September 20, between his arrest in Mexico and his return to the custody of 1998. Evidence thus exists that Applicant committed the of‑ TDCJ authorities. Relief is granted. TDCJ shall award 450 days fenses before and after Sept. 1, 1997. CCA discusses some lower of time credit to Applicant for the time he served from the date appellate court decisions and concludes that because the issue of his arrest in Mexico until he returned to TDCJ, March 12, presented in this writ is unsettled to this day, it is unnecessary 2001, through June 4, 2002. Copies of this decision are ordered to decide whether Applicant’s attorneys were ineffective. Vaughn sent to TDCJ, Institutional and Paroles Divisions. v. State, 931 S.W.2d 564, 567 (Tex.Crim.App. 1996) (ineffective assistance of counsel claim cannot be based on alleged errors Death Penalty Writ Opinion of counsel “when the caselaw evaluating counsel’s actions and decisions in that instance was nonexistent or not definitive”). It Application from Hidalgo County – Relief Denied. is necessary to decide only that it would not have been unreason‑ Ex Parte Martinez, __S.W.3d__ (Tex.Crim.App. No. 75086, able for Applicant’s trial and appellate counsel to have believed 6/28/06); Opinion: Holcomb; Concurrence: Hervey. that his sentences could have been stacked based on law that was

36 VOICE FOR THE DEFENSE September 2006 Applicant was convicted of capital murder and sentenced to However, counsel testified that when he attempted to contact death for killing 68-year-old Esperanza Palomo and her 5-year- and interview Applicant’s relatives, they were not cooperative. old blind granddaughter Amanda, while committing burglary Applicant’s mother only agreed to testify at the last minute, at of the home where she was babysitting Amanda. Shortly after the urging of co-counsel. Based on this evidence, CCA finds the murders, Applicant repeatedly told friends and family it was not unreasonable for counsel not to discover or put on members he had killed two people. He was apprehended when this evidence as mitigation. Further, the evidence for death he returned to the home to retrieve his knife. In his written was extensive; the aggravating factors were severe. Although confession, Applicant said he had intended to rob Esperanza, the mitigation evidence was strong if believed, as the jury was whom allegedly he had been dating, and sexually assaulted privy to some of the severe abuse Applicant suffered during his her when she tried to hit him with a baseball bat. He stabbed childhood, CCA says there is not a reasonable probability that Amanda because she would not stop crying. His conviction was the unadmitted alleged mitigating evidence would have tipped affirmed on direct appeal.Martinez v. State, No. AP-72,704 (Tex. the scale in Applicant’s favor. Counsel were not ineffective. Thus, Crim.App. 1999) (not designated for publication). In this writ relief is denied. he asserts his attorneys were ineffective during punishment for various reasons, including failing to investigate/ discover and PDRs Granted June 14, 2006 present evidence of his history of physical and mental abuse as a child and failing to raise the defense of temporary insanity due No. 0226-06, Stevens, Cory A., State Prosecuting Attorney’s to ingestion of drugs, primarily Rohypnol. Counsel submitted PDR from Brazoria County; Involuntary Manslaughter affidavits in 2003, and CCA remanded the case for a hearing, after which the trial court recommended that relief be denied. Is an appellate court required to defer to a trial court’s erroneous CCA filed and set the writ on the issue of whether counsel’s legal ruling where that ruling does not involve any explicit or representation was ineffective. implicit factual findings or credibility determinations?

Held: Relief Denied. Counsel did not render ineffective as- No. 1311-05 Clayton, Leviyas Jamail, State’s PDR from Harris sistance. CCA based its determination on the affidavits of coun‑ County: Murder sel and the evidence from both the trial and writ hearing. 1. The 13th Court of Appeals erred in failing to consider all of A. Counsel were not ineffective for failing to further devel- the evidence upon its legal sufficiency review. op a mitigating intoxication defense, for failing to request that an expert be appointed, or for failing to request an instruction 2. The 13th Court of Appeals erred in holding the evidence was based on temporary insanity. Counsel testified that he had legally insufficient to prove Appellant killed the complainant. hired an expert, who stated that Applicant was not insane at the time of commission of the offense, and there was no evidence 0026-06 Shanklin, Jared Lloyd, Appellant’s PDR from Harris of sexual or other abuse. However, another expert hired for the County; Murder writ proceeding, opined a defense based on drug intoxication due to ingestion of Rohypnol would have been viable. While A divided panel of the 1st Court of Appeals erred in holding evidence of voluntary intoxication may serve to mitigate the that defense counsel’s failure to request a jury instruction on severity of an offense where the effect of the intoxication is the lesser-included offense of manslaughter was not objectively to render the defendant temporarily insane, Tex. Penal Code deficient conduct when the evidence warranted this instruction §8.04(b), the evidence here showed Applicant was not insane and where defense counsel admitted that his failure to seek such and knew exactly what he was doing. Moreover, Applicant stated an instruction was not the result of any trial strategy. in his confession that he was not intoxicated during commission of the offense. Thus, CCA rejects this contention. No PDRs were granted on 6/21/06

B. Trial counsel were not deficient under the first prong of Strickland because the decision not to further pursue the investigation into Applicant’s background was itself reason- able; even if they had been deficient, there was no prejudice resulting from the omission. CCA details the evidence, which included testimony from Applicant’s mother at the punishment phase of trial regarding his abandonment by her at the age of five and his abuse by her step-father. Applicant’s brother also testi‑ fied about the abuse he and Applicant suffered. Evidence from the writ proceeding indicated the abuse was much worse than it appeared during the trial. Many friends and relatives stated that Applicant had been beaten and abused by his mother and others, who were never contacted by counsel or called to testify. our members our members Joseph Abraham, Jr. Douglas W. Atkinson Tracey L. Bearden Gerald E. Bourque Anne More Burnham Victoria L. Carter William Colgin Ernest Acevedo, III Bradford L. Atkinson Jim Sharon Bearden William R. Bowden, Jr. James Burnham Virginia A. Carter Jeffrey N. Collins Joseph Acevedo James A. Attaway, Jr. James L. Bearden Brent D. Bowen Danny D. Burns Creta Lynn Carter, II Kerry H. Collins John E. Ackerman Michele Audet John Carl Beatty Randy Bowers Robert M. Burns J. Don Carter Richard C. Collins William Randall Ackerman Derst K. Austin Ted Beaty Frankie G. Boyd Robert D. Burns, III John R. Carter Trey Collins Geraldo G. Acosta John E. Avery John P. Beauchamp Lawrence G. Boyd Brian C. Burns William F. Carter Kevin L. Collins Mary Connealy Acosta Alex G. Azzo James C. Becerra William M. Boyd Jared Burroughs Kelly W. Case Warren L. Collins, Jr. Altaf Adam Ann Bacchus Deborah A. Beesley Kevin W. Boyd David Burrows James A. Casey Robert G. Coltzer Derek A. Adame Shirley Baccus-Lobel Douglas W. Beeson Dustin H. Boyd Charles R. Burton John F. Cashman Laura Martinez Colunga Sam Adamo Marjorie Bachman William D. Beggs Matthew M. Boyle James Bush Laura L. Cass Harold L. Comer Phil L. Adams Kathleen Bachus William H. Behler, Jr. Philip Bozzo, Jr. J. Steven Bush Jason D. Cassel Kristi L. Compton Diana Adams Jack Bacon Ralph Behrens Marilyn E. Bradley Ralph C. Buss Ruben V. Castaneda Merinda K. Condra Langston Scott Adams Stephen U. Baer Matthew K. Belcher Audra Rose Bradshaw Rebecca P. Bustamante Chris Castanon J. Guy Conine Tommy M. Adams Joe Weldon Bailey, II Micah S. Belden Leonard T. Bradt John S. Butler Orlando Castanon Paul A. Conner J. Paxton Adams Joseph William Bailey Richard T. Bell Brennon Brady Jason Butscher Susana I. Castillo Sally Connet Lateph Adeniji P. Howard Bailey, Jr. Phil Bellamy Thomas W. Brady Charles D. Butts J.C. Castillo Joseph A. Connors, III Jay Adkins Jonathan M. Bailey Tom Bellows Steven Brand Michael D. Byck Cedric Castleberry Clay S. Conrad David Adler Beth Bailey Amanda L. Belshaw Michael L. Brandes Scala D. Byers Ray A. Castro Louis Conradt, Jr. Mike Aduddell Rus L. Bailey Hector A. Beltran Lydia Brandt Alberto Byington, Jr. T. Bradley Cates John A. Convery William A. Agnew, Jr. Don Bailey Henry J. Bemporad Dwight Allen Brannon Gerald L. Byington Armando Cavada David E. Cook Wilfred Aguilar Cecil W. Bain Lisa Benge Richard H. Branson Cameron Byrd David H. Cavazos, IV Ray L. Cook, Jr. Artie Aguilar, Jr. Joel Patrick Baker Jennifer A. Bennett Paul Brauchle Jay Caballero Jaime Cavazos David M. Cook Luis Aguilar Norma Gonzales Baker Alan Bennett Mark W. Breding Marlo P. Cadeddu Allen Cazier John H. Cook Hugo A. Aguilar Phil Baker Mark W. Bennett Art Brender Brent John Cahill Allan A. Cease Janet Cook Juan P. Aguilera Brian L. Baker R. Daryll Bennett John T. Brender Teresa A. Cain Paul Cedillo, Jr. John M. Cooper

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Valdez Dean Watts Joe Marr Wilson our members Long distance clients are now within my reach.

With FindLaw® on my side, I have: David Breston • Added distance to my drives David A. Breston Law Firm Houston, TX • Significantly more traffic to my Web site • Increased my client base (and shot selection) • Expanded the geographical reach of my practice

“Since January 2006, my FindLaw Web site has been averaging over 2,000 hits per month. Once I started using FindLaw for my Internet efforts, I noticed a tremendous spike in the number of hits to my Web site, and a significant drop in the number of strokes on the golf course. With FindLaw’s help, I have expanded my practice from the Houston metropolitan area to all of Texas.”

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TCDLA P UBLICATIONS Quantity Shipping/ Member Price Non-Member B OOKS / T A B S / C H E A T S HEETS / CD S / F ORMS Ordering Handling Price Appellate Manual, 2004 – book only $10.00 $50.00 $100.00 ALR/Occupational License Manual, 2005 – book only $7.00 $20.00 $70.00 Cheat Sheets please check cheat sheet(s) ordering 1) Texas Rules of Evidence...... 1) 2) Making & Meeting Objections...... 2) 3) Common Drug Offenses...... 3) 4) Lesser Included Offenses ...... 4) $1.00 $10.00 per sheet $15.00 5) Comparison of Accused’s Federal & State Constitutional Rights ...... 5) each each 6) Expunctions ...... 6) full set 7) DWI – Suspension Periods Chart ...... 7) $5.00 full set $90.00 8) DWI – Statutes Everyone Should Know ...... 8) 9) Appellate Timetables...... 9) 10) Adult Driver’s License Suspension Periods & Statutes ...... 10) 11) Minor Driver’s License Suspension Periods & Statutes ...... 11) Losch’s Texas Capital Defender Manual 8th Edition, 2006 $10.00 $85.00 $135.00 Federal Motion Forms – CD $5.00 $25.00 $75.00 NEW! Search and Seizure Manual, 2006 – book $10.00 $75.00 $125.00 NEW! Search and Seizure Manual, 2006 – CD $5.00 $30.00 $80.00 State Motion Forms – CD $5.00 $25.00 $75.00 NEW! Study Outline for Board Specialization Exam, 2006 – book $10.00 $75.00 $125.00 NEW! Study Outline for Board Specialization Exam, 2006 – CD $5.00 $30.00 $80.00 Texas Code Books Set $15.00 $45.00 N/A (TX Code of Criminal Procedures & TX Penal Code – book only) Texas Code of Criminal Procedure, 2005 – book only $10.00 $35.00 $85.00 Texas Penal Code, 2005 – book only $10.00 $25.00 $75.00 NEW! Texas Punishment Manual, 2006 – book $10.00 $85.00 $135.00 NEW! Texas Punishment Manual, 2006 – CD $5.00 $30.00 $100.00 NEW! Texas Traffic Laws 2006 – book $10.00 $75.00 $125.00 NEW! Texas Traffic Laws 2006 – CD $5.00 $30.00 $80.00 Texas Writs, 2006 – book only $10.00 $50.00 $100.00 Trial Notebook, 2006 – book only $7.00 $25.00 $75.00 Trial Tabs $5.00 or $10.00 $5.00 3 for $10.00

TCDLEI P UBLICATIONS – TAX EXEMPT Criminal Evidence Trial Manual for Texas Lawyers, 2004 – book only $10.00 $75.00 $200.00 Criminal Trial Strategy by Charles W. Tessmer, 2003 – book only $5.00 $30.00 $80.00

CDLP P UBLICATIONS Quantity Shipping/ Member & MANUALS/ CDs Ordering Handling Non-Member Price Basics of Immigration Law, 2004 – book only $7.00 $35.00 * Complete payment information on reverse * Please be sure to verify your membership status. If you are not a current member you will be invoiced for the price difference.

TCDLA Publication Order Form 1707 Nueces Street , Austin, Texas 78701 Updated 8/2/2006 512.478.2514 p y 512.469.9107 f y www.tcdla.com VOICE Texas Criminal Defense Lawyers Association

Publication Order Form (prices good through September 2006)

Tax exempt entities must send a copy of their tax exempt form with order. Publication Order Totals (separate checks for TCDLA and CDLP orders) TCDLA CDLP

TCDLA PUBLICATION TOTAL: $ CDLP PUBLICATION TOTAL: $ Shipping & Handling: $ Shipping & Handling: $

TCDLA SUBTOTAL: $ CDLP SUBTOTAL: $ Sales Tax (8.25%): $ Sales Tax (8.25%): $

TCDLA TOTAL: $ CDLP TOTAL DUE: $

TCDLEI – TAX EXEMPT Please check the appropriate box:

TCDLEI SUBTOTAL (tax exempt): $ ‰ Overnight Delivery Requested (call for price quote) Shipping & Handling: $

TCDLEI SUBTOTAL: $ ‰ Standard Delivery Requested (2-3 weeks for shipping)

TCDLA/TCDLEI TOTAL DUE: $ ‰ In-House – TCDLA Office (no S&H charge)

Payment Information (separate checks are REQUIRED for TCDLA and CDLP materials) MasterCard Visa Discover American Express Check

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*TCDLA will contact you regarding your order if necessary. *Allow 2 - 3 weeks for processing and shipping

Send Publication Orders to: TCDLA Publications, 1707 Nueces St., Austin, Texas 78701 or FAX to 512.469.9107

FOR INTERNAL USE ONLY payment received on: amount received: $ shipped by: check/CC approval #: shipped on: deposited:

TCDLA Publication Order Form 1707 Nueces Street , Austin, Texas 78701 Updated 8/2/2006 512.478.2514 p y 512.469.9107 f y www.tcdla.com VOICE STUART KINARD MEMORIAL ADVANCED DWI SEMINAR TBO
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FUIJDT the course directors the overview contact information l J. Gary Trichter l Troy McKinney The defense of a DWI jury trial is not for light weights. Here, unlike q new member q update my information other prosecutions, the criminal defense lawyer is often faced with professional government witnesses and the aura of science. This name ______the agenda seminar is designed to focus on and meet the challenges of cross- examination of the seasoned arresting officer and the breath test bar number ______thursday, november 2 expert and to destroy the government’s alleged science. Each 7:30 am Registration lecture/demonstration speaker will first share with the audience his/ street address ______her particular thoughts and techniques for cross-examination, and 8:15 am Opening Remarks ______then will show the audience techniques in a live cross-examination 8:30 am DUI Defense: The 12-Step Program format. Questions? Email [email protected], call 512.478.2514, or city ______state ______zip ______•Phillip Price visit www.tcdla.com. 9:30 am Voir Dire e-mail ______•Robert Hirschhorn reserve my space | materials To receive a full refund, cancellations must be received in writing two phone ______fax ______10:30 am Break weeks prior to the seminar. Cancellations made within two weeks of the 10:45 am Voir Dire Continued seminar will be assessed a 50 percent cancellation fee, and materials •Robert Hirschhorn will be shipped after the seminar. join tcdla TCDLA Membership Fees (renew or join as a new member) 11:45 am Lunch on your own pre-registration (order by 10.20.06) q new member (*see below)...... $75 members non-members 1:00 pm Accident Reconstruction q renew membership...... $150 •Steve Rickard q book/cd $350 $525 q cd only $300 $475 * TCDLA New Membership 3:00 pm Break To sign up as a new member you will need a nominating endorsement on-site registration (limited number of cds available) 3:15 pm Panel: Technical Supervisor Cross-Examination from a current TCDLA member. members non-members •George Scharmen, Mike McCollum, “As a current member of TCDLA, I believe this applicant to be a person J. Gary Trichter, Al McDougall q cd only $350 $525 of professional competency, integrity, and good moral character. The 5:30 pm Adjourn •registration with book will not be available after 10.20.06 applicant is licensed to practice law in Texas and is engaged in the •registration after 10.20.06 is available on-site onlY defense of criminal cases, unless a student or affiliate applicant.” friday, november 3 8:15 am Opening Remarks not attending (order book by 9.1.06) TCDLA endorser’s name (please print) ______members non-members 8:30 am Ethics TCDLA endorser’s signature ______q book $100 $275 •Les Hulnick q cd $50 $225 9:30 am Evidence A-Z deposit | payment (CASH IS NOT ACCEPTED) •Troy McKinney meeting | lodging location payment for payment type 10:30 am Break Menger Hotel located at 204 Alamo Plaza in San Antonio, Texas. q seminar registration q check payable to TCDLA

10:45 am Administrative License Revocations Room rate is $105 single/double occupancy, mention TCDLA room q membership fee q credit card (visa, mastercard, amex or discover) •Doug Murphy block. Hotel valet parking $19 daily rate, various city lots near hotel $5 – $14 daily rate. Contact hotel at 210.223.4361 or 800.345.9285 for ______11:45 am Lunch on your own credit card number expiration date reservations or additional information. 1:00 pm Cross of Arresting Officer Demonstration/Lecture hotel deadline is october 5, 2006, upon availability. •David Burrows ______name on card 3:00 pm Break send it 3:15 pm Cross of Arresting Officer Demonstration/Lecture mail registration to ______signature •Lewis Dickson 1707 Nueces Street, Austin, Texas 78701 Tax Notice: $36 of your annual dues ($19 if a student member) is for a one year subscription to the VOICE for the Defense. 5:15 pm Adjourn fax registration with credit card information to 512.469.0512 Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033. A110206 Membership Application

Join TCDLA To join TCDLA you must be a member in good standing of the State Bar of Texas engaged in the defense of criminal cases (except law students or affiliate applicants). An applicant must be endorsed by a TCDLA member. Today! Members of the judiciary (except honorary members) and those regularly employed in a prosecutorial office are not eligible. When you join TCDLA, you become a part of a long history of providing outstanding services and assistance to criminal Your membership will go into effect upon approval of application and defense lawyers across the great state of Texas. receipt of annual membership dues. Please allow 6 to 8 weeks for confirmation and certificate. Join today and take advantage of numerous member benefits. Endorse a colleague or friend — encourage others to become q Mr. q Ms. q Mrs. a member of TCDLA. TCDLA First Name Last Name Middle Initial

Law Firm Member Benefits Mailing Address l Voice for the Defense Magazine A subscription to the ONLY state-wide magazine written specifically for City State Zip oin defense lawyers, published 10 times a year. Telephone Fax l Membership Directory A listing of all TCDLA members. Updated and reprinted annually. E-mail County

l TCDLA Discounts Bar Card Number Receive significant discounts on CLE seminars and TCDLA publications.

l Vendor Discounts Date of Birth Receive discounts on various goods and services provided by numerous vendors. Name of other local criminal bar association or section Nominating Endorsement (must be completed) l Strike Force Strike Force assistance which comes to the aid of lawyers in need. As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity and good moral character. l Listserv Access Access to TCDLA listserv where you can exchange legal information and Signature of Endorser (must be current member) resources with other TCDLA members.

l Website - Members Only Section Printed Name of Endorser (must be current member) Access to the “members only” section of the website which includes information on experts, summaries of cases from the state and federal Membership Category (please check one) courts and more. q First Time Member — $75 per year l experts q Renewing Membership — $150 per year TCDLA J Extensive list of experts for all types of criminal cases. q Voluntary Sustaining Member — $300 per year q Sustaining Member — $200 per year l resources Expansive library of research papers from renowned criminal defense q Affiliate Member (Experts or Legal Assistant) — $50 per year lawyers. q Public Defender — $50 per year q Investigator — $50 per year l Legislature q Law Student — $20 per year

oin Opportunities to be involved in the legislative effort. Payment Method (please check one) Resources for Texas Capital Litigators q Check enclosed (payable to TCDLA) q Visa q Mastercard q American Express q Discover l Capital Litigation Update Published 10 times a year with a “Motion of the Month” enclosed. Credit Card Number Expiration Date

l Capital Resource Listserv Access to a listserv consisting of Texas-only lawyers, investigators and Name on Card Signature mitigation specialists who practice in the capital arena.

l Motions Bank and Claims Mail completed form and payment to Texas Criminal Defense Lawyers Association (TCDLA) Access to a capital-specific motions bank and habeas corpus claims for 1707 Nueces Street • Austin, Texas 78701 state and federal practice. Fax to (if paying by credit card): 512.469.9107

l experts Database For office use only: Bar Card Date______Month_____Year______Access to a database of experts in a wide area of expertise. TAX NOTICE $36 of your annual dues ($19 if a Student Member) is for a one-year subscription l CLE Opportunites to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contribution Comprehensive substantive continuing legal education. but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec 6033. l Locating Assistance Assistance locating capital qualified investigators and mitigation

TCDLA J specialists.

www tcdla com oin . . J