VOICE FOR THE DEFENSE Volume 45 No. 8 | October 2016 Sarah Roland | Defending Child Injury Cases p. 23 Janet Burnett | Ethical Problems with Giving Free Legal Advice p. 30 Lanny Begley | The Leming Opinion Is No Silver Bullet p. 34 Bobby Barrera , M ichael Gross & Adam Kobs Course Directors November 3–4, 2016 Menger Hotel San Antonio, Texas SACDLA and SABA members get TCDLA rate Texas Criminal Defense Lawyers Association Register online at www.tcdla.com Editor Sarah Roland Denton, Texas 940-323-9305 Bobby Barrera , M ichael Gross [email protected] Significant Decisions Report Editor Kathleen Nacozy 512-507-0115 Contents & Adam Kobs [email protected] Design, Layout, Editing Craig Hattersley Course Directors TCDLA Home Office Features 512-646-2733 [email protected] Defending Child Injury Cases TCDLA Officers: President 23 Sarah Roland John Convery | San Antonio President‑Elect Ethical Problems with Giving Free David Moore | Longview 30 Legal Advice First Vice President Mark Snodgrass | Lubbock Janet Burnett Second Vice President Kerri Anderson-Donica | Corsicana The Leming Opinion Is Not the Silver Bullet Prosecutors Claim Treasurer 34 Grant Scheiner | Houston Lanny Begley Secretary Michael Gross | San Antonio 4th Amendment Musings: Search & Executive Director Seizure: So, What’s Going On? Joseph A. Martinez 37 512-646-2726 Kelly Pace [email protected] DIRECTORS Susan E. Anderson, Dallas Ray Rodriguez, Laredo Marjorie Bachman, Austin Jeremy Rosenthal, McKinney Columns Roberto Balli, Laredo David Ryan, Houston Heather J. Barbieri, Plano Frank Sellers, Dallas 6 President’s Message Robert J. Barrera, San Antonio John Hunter Smith, Sherman Executive Director’s Perspective Curtis Barton, Houston Monique Sparks, Houston 8 Rick Berry, Marshall Courtney Stamper, Waxahachie Editor’s Comment 10 Fred C. Brigman, San Angelo Edward A. Stapleton, Brownsville Clint Broden, Dallas Mark Thiessen, Houston Off the Back 12 Jim Darnell Sr., El Paso Oscar Vega, McAllen Donald H. Flanary, San Antonio Jani Maselli Wood, Houston 14 Federal Corner Stephen Gordon, Haltom City Said & Done Keith S. Hampton, Austin Associate Directors 20 Melissa L. Hannah, Lufkin Chris Abel, Flower Mound Michael Head, Athens Jorge Aristotelidis, San Antonio Jo Ann Jacinto, El Paso Kristin Brown, Dallas Departments Steve A. Keathley, Corsicana Anne Burnham, San Antonio Susan Kelly, Waco Casie Gotro, Houston TCDLA Member Benefits 4 Laurie L. Key, Lubbock Rusty Gunter, Lubbock Adam L. Kobs, San Antonio Thuy Le, Houston 5 CLE Seminars and Events Bradley K. Lollar, Dallas Nathan L. Miller, Houston Significant Decisions Report Louis Elias Lopez Jr., El Paso JoAnne Musick, Houston 40 Hiram McBeth, Dallas Michelle Ochoa, Beeville George R. Milner lll, Dallas Patrick O’Fiel, Kerrville Angela J. Moore, San Antonio Scott H. Pawgan, Conroe Audrey Moorehead, Dallas Carmen Roe, Houston Anthony C. Odiorne, Burnet Jessica Skinner, San Angelo Stephanie K. Patten, Fort Worth Gregory Allen Waldron, Longview SACDLA and SABA members get TCDLA rate Oscar O. Peña Laredo Russell Wilson, Dallas Bennie Ray, Austin Volume 45 No. 8 • October 2016 Texas Criminal Defense Lawyers Association Voice for the Defense (ISSN 0364‑2232) is published monthly, except for January/February and July/August, which POSTMASTER: Send address changes to Voice for the Defense, 6808 Hill Meadow Drive, Austin, Texas 78736. are bi‑monthly, by the Texas Criminal Defense Lawyers Association Inc., 6808 Hill Meadow Drive, Austin, Voice for the Defense is published to educate, train, and support attorneys in the practice of criminal defense law. Texas 78736. Printed in the USA. Basic subscription rate is $40 per year when received as a TCDLA member CONTRIBUTORS: Send all feature articles in electronic format to Voice for the Defense, 6808 Hill Meadow Drive, benefit. Non‑member subscription is $75 per year. Periodicals postage paid in Austin, Texas. Dues to TCDLA Austin, Texas 78736, 512‑478‑2514, fax 512‑469‑9107, c/o [email protected]. Register online at www.tcdla.com are not deductible as a charitable contribution. As an ordinary business expense the non‑deductible portion of Statements and opinions published in the Voice for the Defense are those of the author and do not necessarily rep‑ membership dues is 25% in accordance with IRC sec. 6033. re sent the position of TCDLA. No material may be reprinted without prior approval and proper credit to the mag a zine. © 2016 Texas Criminal Defense Lawyers Association. (assistance to aid lawyers threatened with or incarcerated for contempt of court) Co-Chairs District 4 Tim James Gerry Goldstein Donald Wilson Nicole DeBorde Heather Barbieri David E. Moore Michael Gross Reagan Wynn Darlina Crowder Barney Sawyer District 14 District 11 Danny Easterling District 1 District 5 District 8 Harold Danford Robert Fickman Jim Darnell Scott Brown Michelle Esparza JoAnne Musick Mike R. Gibson Mark Daniel Steve Keathley District 12 Grant Scheiner Mary Stillinger Greg Westfall Michelle Latray Richard Anderson Stan Schneider Joe Connors George Secrest District 2 District 6 District 9 Sheldon Weisfeld Tip Hargrove Clint Broden Betty Blackwell Committee Members George Milner III David Botsford District 13 Andrea Keilen District 3 Angela Moore David Frank Travis Kitchens Rick Wardroup Jeff Blackburn Keith Hampton James Makin Rusty Gunter District 7 Larry McDougal Chuck Lanehart Craig Henry District 10 Scott Pawgan Bill Wischkaemper Scrappy Holmes Don Flanary The Neurobehavioral Clinic Dr. M. K. Hamza, PhD, LP, PA Phone: 409.727.5785 Fax: 409.729.0465 2300 Hwy 365, Ste. 200, Nederland, TX 77627 [email protected] Consulting Forensic Neuropsychology Services: Comprehensive & Brief Psychological & Neuropsychological Evaluations Competency to Stand Trial Insanity Defense Mental Capacity & Guardianship Neurocognitive Impairment, Memory & Dementia Trial Consulting Expert Witness Indecency with a child Child Abuse Personal Injury-Traumatic Brain Injury Child Custody Counseling & Psychotherapy Advertisement 4 CLE and Events 4 Register online at www.tcdla.com October 2016 December 2016 January 27 October 12 December 1–2 TCDLA | 4th Annual Lone Star DWI CDLP | Innocence for Students | co- TCDLA | Defending Those Accused of Austin, TX sponsored with IPOT Sexual Offenses Scholarships available Houston, TX San Antonio, TX Scholarships available February 2017 October 13–14 February 9–10 CDLP | 14th Annual Forensics December 3 CDLP | 6th Annual Craig Washing ton Houston, TX TCDLA Board and CDLP and Executive & Senator Rodney Ellis Criminal Law | Committee Meetings co-sponsored with Thurgood Marshall October 22–23 San Antonio, TX School of Law and Earl Carl Institute EPCLG | 24th Annual Criminal Law in Houston, TX Ruidoso December 16 Ruidoso, NM CDLP | 9th Annual Hal Jackson February 9 Memorial Jolly Roger Seminar CDLP | Public Defender/Indigent October 28 | co-sponsored with Denton Defense CDLP | Beating the Drum for Justice County Criminal Defense Lawyers Dallas, TX Laredo, TX Association Lewisville, TX February 9 November 2016 CDLP | Veterans November 3–4 January 2017 Dallas, TX TCDLA | 12th Annual Stuart Kinard January 5–6 Memorial Advanced DWI Seminar CDLP | Junk Science February 9 San Antonio, TX Austin, TX CDLP | Capital Dallas, TX November 16 January 12 CDLP | Beating the Drum for Justice CDLP | Nuts ’n’ Bolts | co-sponsored February 10 McAllen, TX with Lubbock Criminal Defense CDLP | Mental Health Lawyers Association Dallas, TX November 17–18 Lubbock, TX CDLP | Capital Litigation/Mental March 2017 Health January 13–14 March 9 –10 South Padre Island, TX CDLP | 36th Annual Prairie Dog TCDLA | Federal Law Lawyers Advanced Criminal Law El Paso, TX November 18 Seminar | co-sponsored with LCDLA CDLP | Beating the Drum for Justice Lubbock, TX Seminars spon sored by CDLP are funded Galveston, TX by the Court of Criminal Appeals of Texas. Seminars are open to criminal defense January 20 attorneys; other pro fessionals who support November 18 CDLP | Beating the Drum for Justice the defense of criminal cases may attend CDLP | Nuts ’n’ Bolts | co-sponsored Sugarland, TX at cost. Law enforcement personnel and with San Antonio Criminal Defense prosecutors are not eligible to attend. Lawyers Association January 20 TCDLA seminars are open only to criminal San Antonio, TX CDLP | Beating the Drum for Justice defense attor neys, mitigation specialists, McKinney, TX defense investigators, or other pro fessionals who support the defense of criminal cases. Law enforcement personnel and prosecutors are not eligible to attend unless noted “*open to all.” **Open to all members Note: Schedule and dates subject to change. Visit our website at www.tcdla.com for the most up-to-date information. John A. Convery Numero Quatro: DNA Mixture Issue Update NA mixture issues have been at the forefront during the first half of 2016. An update Dis in order, but first some background. While some in the forensic community have raised this issue for years, it got widespread attention in May 2015, when the FBI notified labs across the country of discrepancies discovered in the interpretation of DNA mixture cases—those in which multiple contributors may be present. Acting quickly thereafter, the Texas Forensic Science Commission (TFSC) assembled a panel of experts to review lab procedures to determine if they were meeting scientifically accepted standards, and notified the entire criminal justice community that results in DNA mixture cases might be inaccurate. TFSC reviewed standard operating procedures from labs across