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CoverArt: Rebuilding Justiceby Sylvia Escobedo
4:: Upcoming ClE Event Schedule
5:: AWord from our President
by Nicole DeBorde
6:: Winning Warriors
10:: HCClANews Round Up
MentorLuncheon& Readingofthe DeciaraionofIndependence
12:: In the Client's Shoes
ADefenseAttorney Learns HowTheirClientFeels
By Jacquelyn Carter
16:: InnovativeWays
To Preparefo SentencingbyJudgeandJury
by Cheri Schultz
18:: Strategy:
ARetreatis nota Rout
by Joseph W Varela
21 .. AfterPadilla v. Kentucky:
The Dutyto Inform NoncitizenCrimial Defendantsof
Potential ImmigrationConsequences
by MagaJi S.Candler & James E. Suerken
25:: EffectiveAssistance AfterPadilla
by JoAnne Musick
27 :: You Got Me Off, NowWhat?
District&CountyCourtExpunction Practice in Texas
by Dorian C.Cot/ar
39:: Investigative Corner:
Dollars& Sense
by Jim Willis
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a word from our president
ncote ::beBarrk
Justice Doesn't Take Sides
Sometimes, as a defense attorney, I find myself feeling
frustrated at the notion that some idea or thought, which
should be so universal and clear, is so hard to convey.
Sometimes, even when I feel like the idea or thought has
been shared in complete clarity, the message seems lost in
the chattering of noise created from indi vidual positions on
what justice is or who is on the "right" side ofjustice. The
cliche we often hear in voir dire about our life experiences
forming our biases is an often used in voir dire though
because it is, in fact, true.
The time and energy spent creating our own opinions about
what is right and what we should expect makes us who we
are. Some of us might be labeled radical or "true believers"
to such a degree that what we have to say is met with
resistance before we have even had the opportunity to
convey a complete message as we wade through our cases
and concerns with prosecutors, law makers and
government. Some expect resistance even in the face of the
most reasonable request because experience tells us that we
should expect it. Repeated confrontation even in the face of
what seems like the most obvious solution can cause us to
give up on what we believe is right or to assume that the
right result will never be reached. If you are a member of
HCCLA, you are already one step ahead because you chose
to take action instead of doing nothing.
Recently, in what seemed like another frustrating example
of an "us against them" scenario, HCCLA was able to
make a positive impact through action. When HCCLA
learned of Houston Police Department Chief McClellan's
circular forbidding police officers from communicating
with defense attorneys without first receiving permission
from the District Attorney's office, it seemed like justice
was again being asked to pick a side. Robb Fickman rallied
the membership and over 50 HCCLA members took their
valuable time to go to City Hall and address city
government and the Mayor about our concerns. Speakers
from HCCLA took their time to outline their concerns
before City Hall. HCCLA presented as a professional,
cohesive group with the energy, desire and ability to make
a difference in our community.
Another example of action creating a positive impact in our
community by HCCLA was the reading of our Declaration
of Independence on the courthouse steps to celebrate the
Fourth of July. This event is one we hope becomes a
tradition in the years to come. Remembering our freedoms,
that they are important to all of us even in the face of
difficulty is an excellent grounding point for lawyers who
go into the courthouse to fight about what our laws mean
and for the people they affect every day. Special thanks to
our readers and also to the judges who took time out of
their busy schedules to attend. Judges who attended
included Shawna Reagin, Kevin Fine and Ruben Guerrero.
The time we spend with each client and their families is
action. Sometimes, we are the only person in the entire
justice system who has even bothered to try to appreciate
their view of what did or did not happen in their case. That
action alone is often a relief to the citizen accused of a
crime. Sitting down and taking the time to explain what has
already taken place in an investigation, what an accused
can expect as their case proceeds is often seen by our
clients as one of the most valuable aspects of our job to act
on their behalf. What we see and do every day can easily
become second nature to us, and taking the time to explain
to our clients what may seem obvious to us is an action that
moves each case and each person we represent one step
closer to answering the question, "what is justice?"
Again, justice does not take sides. It is our job to ensure
that our client's lives and cases are treated with true justice.
As an HCCLA member, you can continue the search for
justice in our community by identifying big picture
concerns we can help you address as an organization. You
can also do it by continuing to patiently walk even the most
frustrating clients through every detail of their case.
Whether it's big picture involvement you have time to
provide, or just the most zealous representation you can
offer in each and every case on your docket, keep
demanding justice!
Tyler Flood kept up the good fight in County Court #I on
a 0 WI 1 st who ran into the back of a tow truck. Tyler was
able to use the EMTs who saw no signs of intoxication; a
great result because the client turned down DIVERT.
Who needs DNA to clear up an injustice? Casey Garrett
showed Judge Campbell that true innocence still exists
when, despite the lack of DNA evidence, she was able to
bring forth credible witnesses to say her client was not
responsible after have served 20 years in prison.
.................................... ....
Congratulations to Nathaniel Tarlow for a quick 2 word
verdict on an assault family violence case in County Court
IS, despite the State being allowed to present evidence not
provided before jury selection. So much for the ambush!
Mark Thiessen scored another not guilty in County Court
3 after his client drove into a Taqueria. It's not a crime to
just drive bad!
From federal court to appellate court, Eric Davis scores
big! First, a rare not guilty for his client in federal court
on a medical care fraud case in Judge Hughe's court. This
not guilty was quickly followed by a monsterous win in
the 151 Court of Appeals: Eric, a former lawyer of the year,
teamed up with our most recent lawyer of the year, Brian
Wice, to secure a reversal of a capital murder life without
parole conviction out of Galveston County. Their client,
a IS year old child was one of3 lS-year-olds serving
L WOP in Texas prisons. And did we mention, Eric and
Brian handled this pro bono?
................ .. ......................
Heading over to Fort Bend County, Steve ShelJist obtained
a not guilty from a jury when the judge instructed them
to do so! The officer conceded under cross that he had no
probable cause to make the arrest but rather arrested simply
because it was a total refusal.
Success takes many forms. Loretta Muldrow and
Jimmy Ortiz teamed up to achieve a 6 year verdict for
co-defendants convicted of engaging in organized crime
and theft of $S million in medicaid funds. The State asked
for 60 years ... take off the zero and you have success!
Warrior Rick Oliver was recruited by his Trinity
University football teammate and Travis County defense
attorney, Ryan Deck, to try an Aggravated Assault in
Austin. Their drug addict client shot a dealer in the back
after the dealer came to his house for $40 and threatened
his family . With a great self-defense charge, the jury took
about 2 hours and found reasonable doubt.
Another Trinity footballer, James Pons, won a two
word verdict on a DWl no test/ no accident in Harris
County. Word is the client wanted to plead guilty, but as
Mark Thiessen says, "'01 James is known for his crafty
arguments. "
Texas Lawyer, as part of its 2S
anniversary, has put
together its list of "The 2S Greatest Texas Lawyers of
the Past Quarter-Century." Only three lawyers who
do criminal defense work made the list -- and all are
Houston lawyers. Congratulations Dick DeGuerin, Stan
Schneider, and Rusty Hardin.
Joaquin Jimenez and Rick Oliver overcame the State's
withholding of Brady information by convincing the jury
to return a verdict of not gui lty in Harris County. Who
needs a harm analysis when the client is not guilty?
Steve Halpert and Sarah Wood teamed up urge a speedy
trial motion, or lack of speedy trial as the cases were, in
Judge Atkinson's court. Sarah graciously jumped in to help
brief the motion while she also helped Mark Bennett with
a jury trial. According to Steve, Sarah is the bomb! Sarah
and Steve credit Judge Atkinson with following the law.
Jimmy Phillips and Tom Stickler, along with mitigation
specialist Gina Vitale, took the possibility of death off
the table for their client involved in the kidnapping and
murder ofa woman who had just left work. Jimmy and
Tom pleaded their client after jury selection and then
spent weeks in the punishment trial, ultimately convincing
the jury that life without parole was appropriate. Our
own Kathryn Kase, who is no stranger to capital cases,
exclaims, "Magnificent work!"
Craig Washington, who tried the infamous capital
murder human trafficking case, wins again as the 5'h
Circuit vacated in part and remanded Tyrone Williams
to the District Court for resentencing. Preserving error is
the key, along with having Mr. Washington at the helm
throughout the trial!
Todd "the real deal" Dupont strikes again and garners
a not guilty from the jury in a two day assault trial. The
complaining witness "charged" the defendant and received
a black eye. Todd showed the jury self-defense and an
exaggerating complainant.
Gerald Bourque and Robert Morrow spared another
life as they convinced the prosecutor in Burleson County
to accept a plea for life in their capital murder trial for a
double homicide.
In the 228'11 District Court, the tireless Alvin Nunnery
won a motion for instructed verdict in a murder case. A
directed verdict on any case is a phenomenal result, but a
directed verdict on a murder case is simply outstanding.
It's reported that the State offered 25 years and the
defendant countered with 18! How's that for hindsight!!
........................ .. .............. .
It's not all that often that your help for one client resonates
to a better good. But, in Ann Johnson's case, society is
better for her efforts. Ann handled the appeal of a juvenile
charged with soliciting prostitution to an undercover cop.
The problem being that Ann' s client was under the age of
14; she cannot consent to sex. She took this appointed case
all the way to the Texas Supreme Court and a victory! The
Supreme Court agreed the child is a victim to be protected
rather than sexually exploited by adults (in this case, police
officers). As the Court stated, "Children are the victims,
not the perpetrators, of child prostitution." In a compelling
case, the Supreme Court has denied the State the ability
to prosecute children under 14 for prostitution. Hats off to
Ann for findingjustice!
Aftertwodays in battle, NathanielTarlowtakes the win
in CountyCriminal Court#2 in a tough DWIcase. Nate
credits his second chair,MarcosAdrogue,andall the
HCCLAmembersofferingassistancethrough the Trial
....................................... .
NormSilvermansecured the dismissalsof5 firstdegree
drugfelonies. Inawarwith thegovernment,Norm dug
in! Theresult: dismissalsforNorm'sclient, an indictment
for a policeofficer,anda transferfor a prosecutor. Very
aggressive! Weexpectno less from this warrior!
Federal courtis forguiltypleasright?Guessagain!
JuanGuerraheardNotGuiltytwo timesfrom ajury
in a federalkidnappingcase. In whatappeared to bean
impossiblecase, Juan'sclientwanted to pleadguiltybut
thejudgerejected the pleaagreement.Trulyan incredible
resultwith anall femalejury.JuancreditsSarahWood
and herwickedresearchskills!
ChristianCapitaineand SteveShellisttookon all ofthe
State'sevidence ina non-death capital in the 180,h Thejury
deliberated almost3full daysbefore hangingon identity
issuesand a mere presencedefense. Round two?Orwill
the Statecutits losses?
Anothertwo-wordverdictforTylerFlood;this time in
CountyCriminal Court#]2wherethejury is reportedas
"MadProps"to CarmenRoeforconvincingJudgeHerb
Ritchieto granta motionfornewtrial in the interestsof
JoaquinJimenezpullsoutall stopsandtakesanother two
wordverdict. Thistime in CourtCriminal Court#lionan
assaultcaseanda self-defensetheory.
CongratulationstoDanCogdellformaking the coverof
TexasLawyers,Texas'BestLawyersedition. Quitean
honorconsideringthe impressivechoicesacrossallareas
4 daysoftrial plus4 hours ofdeliberation equalsa two
word verdictfor SeanMcAllister in a manslaughtercase
with a self-defense claim. Seandida phenomenaljob for
his clientwhowasableto walkoutofthe courtwith his
wifeand family!
JeromeGodinichand Allen Isbell wereable to
plead their clientto LifeWithoutParoleafterworking
extremely hard to presentmitigating information.This
wasa huge victory, notonly becausetheStatewasgoing
to seekdeath, butthiswasa high profilecase.
first, second, and third time'sa charm! ToddDupont
scored a notguiltyona DWIfirst inCountyCriminal
Court#1. Notexactlya truefirst though! Itwasthe
second,errrrr,third rodeofor his client. Thefirstone
wasdismissed in 2004(a La Dupont). Whilewaitingfor
trial on thesecondcase,clientpicked up yetanother
OWlfirst. Earlierthisyear,Todd tried casenumber2
to anacquittal. You guessed it, Todd then tried the third
caseto anothernotguiltyverdict.That'stenacity!
Whilesomeofus were learninghowtocrossexamine
copsattheHCCLA/TCDLASeminarin May, Paul
Doylewasdoingjustthat in a PasadenaDWIcasein
JudgeHarmon'sCourt. AfterdissectingOfficerNumero
Uno, theStatereached for the nolleanddidn'twaitto
seethe rivercard. Waytohold 'em,Paul!
TrialHelp- TimeCrunches
Creative& ProfessionalLegalAnalysis
SarahV. Wood
The hits just keep coming for Brian Wice, HCCLA's
Lawyer of the Year. Brian investigated and presented a
writ of habeas corpus in Eastland County, and after fmding
some ineffective assistance and lack of strategy by trial
counsel, Brian presented so much more, only for the judge
to deny relief. The kicker: the judge ordered the clerk NOT
to forward his objections to the court's findings to the
CCA. Not one to back down, mandamus was the choice
of champions. The mandamus and potential grievance got
everyone's attention so that the matter could be resolved
amicably. Here's to having the guts not to back down and
continue the fight!
Judge Childers, in Fort Bend, granted Leira Gracia's
motion for directed verdict in a misdemeanor possession
of marijuana case after Leira previously won a motion
to suppress all adm issions and part of the ev idence in
the same case. Despite their lack of evidence, the
State proceeded to trial. . . and to a directed verdict!
Mark Thiessen heard "Not Gui Ity" in Court 13 in
a DWl2nd after a two day trial (and about 6
hours ofjury deliberation). Tough facts, but
Mark hammered away at three officers to show
the jury reasonable doubt!
Dangers of Mardi Gras: Tad Nelson made the
front page of the Galveston Daily News with a
not guilty in Galveston Co. Court #3 for a client
accused of assault by beads during mardi gras.
Rick Oliver received a trial day dismissal on a
DWI 0.12 BT in Harris County with little more than
the offense report and Google Maps. Rick was able
to convince the State that the traffic stop was, well,
questionable at best!
With a motion to suppress and a sworn affidavit from the
real perpetrator, Vivian King lost the motion to suppress
but won a not guilty in the 185
on a PCS case because the
court found the "witness" to be credible when he came into
court and took responsibility for the drugs recovered.
Receiving the TCDLA Hall of Fame Award, Mike
Ramsey is reported to have given the best advice ever,
"Forget about the judge and tell a great story to the jury!"
Congratulations to Mike Ramsey for his recognition!
Congratulations to Gary Trichter as he won his bid for
President-Elect of the Texas Criminal Defense Lawyers
Association! Gary is not only a great lawyer, but also a
fierce leader.
Danny Easterling crossed the street to get to some
juvenile justice and garnered a Not True for his juvenile
client accused of indecency with a child in the 313'" District
Correction: Jim Medley achieved his motion to suppress in
Court 8, Judge Karahan presiding.
Mentor Luncheon
by Sarah Wood
The object of these lunches - besides to dine on a free
Star Pizza buffet - is to facilitate a meeting of the minds.
When HCCLA members collaborate, that's when the
magic happens. One by one, lawyers told tales of their
cases. We heard about car wrecks and fights, guns and
drugs, naked cops and reasonable prosecutors.
Everyone put great thought into these dilemmas - brows
furrowed and ideas were shared; epiphonies struck. Rob
Tuthill , who always seems to have weird cases,
tlabbergasted everyone with a case where his client is
accused of tampering with evidence by surgically
transplanting the fingerprints on his hands, switching
them left to right and vice versa.
Inevitably, we all had to laugh and agree the State could
never make that case. If you practice criminal defense,
this type of interaction and feedback from experienced
attorneys is absolutely essential to a competent practice.
Luckily, we have brilliant and helpful members in
droves. Our hope is that each time we have such a
gathering, it will send ripples of success into the future of
our membership and into the lives that we defend.
by JoAnne Musick
In celebration of our independence and the 4th of
July, HCCLA publically read the Declaration of
Independence on the courthouse steps this year.
We look forward to a new tradition!
"We. th-e.5e. tr1Atks t(J J,e. tkA-tA-U Ine.n
A-re. e.q!1A-!, tkA-ttke.1j A-re. J,1j
witk ,e.rtA-in 1A nA-!ie.nA-J,!e. ri, kts, tkA-tA-1n(Jn, A-re. !ife., !iJ,e.rt1j tke. J'1ArS1Ait (Jf kA-J'J'
TkA-t t(J se.'1Are. ri,kts, ,(Jve.rnlne.nts A-re.
A-1n(Jn, Ine.n, tke.irj1ASt J'( 'jr(J1n tke. '(Jnse.nt
(Jf tke. "
in the
client's shoes
By Jacquelyn Carter
It was so surreal.
This could not be happening to her.
Several police cars had lit up all at once at least three, if not
more. A bright light had come on as well. Officers were behind
her vehicle, a rental as it were, giving instructions that she
was supposed to raise her hands. She knew without looking
that a gun was aimed in her direction, if not at her very head.
An officer came to her driver's side door and attempted, quite
rudely in her opinion as he had no reason, to open it. It was
locked. With her hands still raised, afraid she may be shot for
moving, she moved her eyes to meet his. He tapped on the
window and told her to unlock the door.
Keeping her right hand in the air and moving the left one
(closest to the door), she closed her hand so that only one finger,
her index finger, remained raised. With no sudden movements,
she slowly lowered her hand to hit the blltton that would unlock
the doors. Once pushed, she put her hand back in the air. The
officer opened the door.
He demanded her driver's license. She had been stopped at
a traffic light so there was no way this was a traffic stop; the
fact that he did not ask for her insurance confirmed this was
no traffic stop. Besides, who uses guns in a regular traffic stop
anyway? Nevertheless, her driver's license was in a wallet in
her purse. She was confused about how to retrieve it without
getting shot in the back by an antsy officer. Her purse was by
her left foot on the floor. She looked at the purse and back at the
officer, hands still in the air, shrugging to show her confusion.
He told her to get it, so she finally moved . .. slowly, still
scared, still confused.
What was happening? Was this really happening?
After handing her license to the officer, he told her to
get out of the vehicle. Once again, she followed his
instructions. She accompanied him to his squad car per
his request, which she obviously had no choice but
to follow. He then asks her, "Where are you coming
from?" She knew the answer; it was simple.
She had no real reason not to tell him, but innocent people
go to prison all the time because they cooperate thinking
they are innocent and the judicial system will work. No,
she refused to be part of that group. Besides, she knew
better. She had to take her own advice on this one. She
told the officer, "I don't want to answer your questions."
The officer seemed surprised, but came back quickly,
"Why not? If you don't have anything to hide, you can
tell me where you were." The officer was insinuating she
had something to hide, but she did not. She was a criminal
defense attorney. Should she tell him? Would it make a
difference? Probably not.
She responded to his inquiry, "1 want my lawyer."
Another surprised look, a narrowing of the eyes, so she
answered his unasked question, "Arrest me. If that is
what you are going to do, then arrest me. But understand,
I sti \I want my lawyer."
The officer put the handcuffs on her!
Was she being arrested?!
She was locked in the back of his squad car. She began
to look around.
Meanwhile, she had a passenger in the vehicle with her.
He was a friend, a black male (Let's call him "Black" to
protect the innocent and misidentified). By this point,
Black was at another squad car, being handcuffed and
placed inside. The officers stood behind the two cars and
talked with one another. She thought she heard something
about her asking for a lawyer. She couldn't be sure.
Did he click the handcuffs an extra notch because she
"Iawyered up"? The handcuffs are uncomfortable.
How do they expect you to sit in the seat when
your hands are forced behind you and the seats
are so small?
Three officers moved. They went to Black and she
heard them say, "Your partner is demanding a lawyer."
Partner? They then asked if he was willing to speak
with them. She couldn't make out everything, but she
knew Black did not get her memo ("You have the right
to remain silent, so shut the hell up!"). Black told them
everything - where they had been and where they were
going (had been to Wal-Mart to buy swimwear to go
swimming at his brother's apartment). He didn't know
how to shut up. She could only hear bits and pieces. She
heard Black say, "Hell yeah she is hot (meaning angry).
She's never been in trouble a day in her life." They
were asking Black why she would ask for a lawyer.
Black responded, "Because she is one." After seeing
the surprise register on their face, one even did a double
take, her friend added, "She's a lawyer herself."She
practices criminal defense." Why? Why would he tell
them that ? For sure she would go to jail based on that
information alone .
in the
client's shoes
They hate lawyers,especially criminal defense lawyers.
It's not as though she is an assistant district attorney
helpingthem to prosecuteallegedcriminals.
A light-skinned African-American man comes between
thevehiclesand looksat Black. Shehasseenhim before.
In fact, about five minutes ago when they had passed a
Cricketstorejustbefore. They were stopped at atraffic
light. She also remembered there was a Hispanic lady
outside the Cricket store with police officers and had
begun to point in their direction. The African-American
man shakes his head after seeing Blackand tells police,
"that'snot him."Does that mean wecango?
More time passes before the officer returns to his
squad car. He gets in and starts the car. Is she headed
downtown? What about herpurse? "My purse is in the
car." With no fanfare the officer dryly tells her to calm
down,the vehicleis beingtowed and they areonlygoing
backto thescene.
Scene? "Backto thescene?"
She was neverat "thescene"in thefirstplace.
Theofficerturnson his lights briefly to makeau-turn.
The officer questions her again, "Are you just coming
back from Denton (30 miles north past Dallas)? [s that
why you are in a rental?" What does he know about
Denton? Black had definitely talked too much. She
had been in a car wreck two weeks before as she was
returning to Houston from Denton, where she had had
a case. The only way the officer could know anything
about it, however, was that the passenger had said
something. She supposed the officers wanted to know
why she was drivingarental car. That was noneoftheir
business either. She never bothered answering. Instead
sheaskedhim forthetime,heresponded in militarytime,
but she repeated it in regular time. Then she asked him
his name. He told her his last name. Then sheasked,"Is
your first name John?" He was surprisedand hesitated
when he responded that it was; she could sense his
trepidation. The officer asked her ifshe was a criminal
defense Ia-.,vyer.
"Asamatteroffact, Iam,"shesaid.
Theyarrivedshortlythereafterat aCricketstore.
No one came out to look at either her or her friend -
no African-American man and no Hispanic lady. A
few minutes later, the police went to her friend, spoke
with him, and released him from the handcuffs, but he
remained insidethe vehicle.
Afterwards,thesame policeofficercameto her. Hesaid,
"Ma'am I'm going to explain to you what's going on.
This store was robbed and your friend was identified
as the person who did it. We had to detain him to make
sure it was not him by looking at the video surveillance
tape." She asks, still handcuffed, "Was there a woman
involved in the robbery?" in an attemptto makesenseof
herdetention.Theofficeranswers, "No,Ma' am, butyou
were in the car."
The officer asks her ifshe is ready for him to take the
cuffs off of her. Seriously? Need you even ask? She
stands up and turns around. After they are removed she
asked ifshewas arrested.He makes apointoftellingher
that she was never arrested. She then asks ifshe is still
"detained"to which he responds she is not. She informs
him thatshe would not be gettingback in the backofhis
car. He stated that was fine. Though she had to wait for
her vehicle to be towed to "the scene", she was at least
free to make a decision for herself.Frankly, she would
have preferredto havewalkedto hervehicle,anythingto
getaway from the chaos.
Slowly,she beganto cometo herself.
J amJacquelynR. Carpenter.
1 am a criminal defense attorney, who now realizes
firsthand how easy it is to be accused ofsomething you
did not do, especially being in the area where you are
unknowingly driving past a "scene" where something
reportedly just happened, particularly ifyou are with a
black male. I know so many black males, friends and
family. So how do Iprevent being stopped by police at
gunpointfor riding with ablackmale in the future?
It was so easy for this lady to randomly select a black male
from the general public and have him and me scrutinized and
interrogated, which is a scary thought in and of itself.
This experience was humiliating, insulting, demeaning,
hurtful, scary ... everything our clients' tell us it is. What's
worse, we were actually innocent, and, in many ways, it
didn't matter. We were never even at the Cricket store.
At the end of this episode, I realized that I attempted to
invoke my Fifth Amendment constitutional rights, but
that is not what the officer understood, apparently, since
he continued to ask questions. I thought later that it would
have been unequivocal if I had said, "I invoke my Fifth
Amendment rights." When that did not come out, in my
state of confusion and with so much chaos, I slipped quite
simply into plain English. It is not easy to be clearheaded in
the face of this type of authority, especially considering the
display of authority while a gun is aimed in your direction.
It is hard to understand the split-second decisions our clients
have to make faced with the same show of authority (i.e.,
guns aimed at them, being surrounded by officers, flashing
lights, handcuffed, "detained" or arrested). I had the benefit
of experience in the system, which still had its moments. I
pray that we all do better at putting ourselves in our clients'
shoes and attempting to understand. I do believe I will be
more cognizant from this point forward.
Jacquelyn Carpenter is a criminal defense attorney in
Houston. This story is reprinted here with her permission,
and it became national news when first published at

Innovative Ways
to Prepare for Sentencing
by the Judge or the Jury
by Cheri Schultz
After meeting with a new client and
thoroughly analyzing the facts of the case,
you determine that he or she is guilty -
flat-out guilty, with no identifiable defense. It
does not take long for you to determine that
the best outcome will come from a plea and
you are encouraged that the client is willing
to accept responsibility and plead guilty. The
real trouble begins in the courtroom where
you find that your definition of a fair sentence
is vastly different than that of the prosecutor's
definition. For example, because the client
has priors the State is recommending 40
years when you and the client think 10 years
would be more appropriate. Or, although
the client is eligible for probation, the State
is recommending "pen time" for someone
you see as a "probation-worthy" client. You
simply cannot come to an agreement.
What are your options? Take it to trial and
take your chances with a jury? Go to the
judge without an agreed recommendation?
Request a pre-sentence investigation (PSI)
and take your chances on how well your
client would be portrayed in a probation
department prepared report? While the PSI
should be fair, objective, and impartial, will
the writer, however, do anything to promote
your client and show him or her in the best
possible light? Generally, no.
Fortunately, you have options. You can
retain an experienced, independent writer
to prepare a pre-sentence report that will
be much more "client-friendly." Another
option that is gaining popularity in the courts
is to retain or request the court to approve an
independent writer to prepare a mitigation
report. The mitigation report is prepared in
addition to a probation department prepared
PSI and focuses not only on mitigating
factors, but also on all of the positives your
client has to show for him/herself. Too often
the prosecutor considers only the facts of
the case and turns a deaf ear to the positive
stories and/or the mitigating factors.
A mitigation specialist, however, will "dig
deeper" into the client's past, recent or
extended, to uncover those mitigating factors
that may have led to the offense, and highlight
the positives in the client's life that will put
him or her in the best possible light when
the judge determines sentencing. Mitigating
factors will include anything and everything
Mitigating factors will include anything and everything
that could be considered extenuating circumstances to
explain the client's behavior, thus providing the court
wIth the IOformation necessary to be more sympathetic.
report will also focus on the client's positives to
hlghhght the personal and public thinking thatwill allow
thecourtto focus onthisparticulardefendantinanewand
more light. The probation department prepares
a PSI provldlOg the court with an objective, fact-based
report. Contrast that with a mitigation report which
"humanizes" the client. Both reports are instrumental. A
successful mitigationreport will include acomprehensive
blo of the client enmeshed with a thorough summary
ofthe positives and mitigating factors; letters from the
client, hislher family, friends, and colleagues; letters of
recommendation from previous employers and superiors'
appropriateclient/familyphotos,documentationof school:
employment, military experience, etc., and anything else
deemed helpful and appropriate.
Because ofthe cost, an independent pre-sentence report
may seem to be an option only for retained cases.
Mitigation reports, however, are not only gaining
popularity for retained cases, but a number ofcourts
have recently approved a mitigation specialist for
court-appointedcases. Clearly,noteverycasethatpleads
toaPSIrequiresornecessitatesanadditional mitigation
finding itbeneficial to havethe informationprovidedby
suchareport. Notonlydoes it ensure thatthe clientwill
receive as fair a sentence as possible, it shows that the
judgehasgiventheclienteveryopportunityto providea
completepicture,allowingthejudgeto grantthe fairest
Anotherinnovative way tobetterpreparefor sentencing
IS to focus on the punishment phase of a jury trial.
Unfortunately, an often forgotten part of a trial is
the punishment phase. In your quest to offer the best
punishment hearing possible you might consider
retaining a former probation officer to testify as to
Community Supervision and Corrections Department
rules and regulations following a guilty verdict. For a
sentencing. Juries appreciate knowing that probationers
are monitoredfordruguseandotherwrongdoing.
Not only can an experienced former probation officer
testify as to general rules and regulations, if relevant,
that person can also describe specialized caseloads and
programs providedbythedepartmentdesignedto assist
the client in the successful completion ofcommunity
supervision.Ithasbeen my experience thatmembersof
all ofthe variousprogramsavailableto probationers.
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Ifthe jury is allowed to hear how the department is now
making every effort to help the person successfully
complete probation, rather than see it as a place where
that person is merely required to "check in" once a
Ol?nth, they will no doubt bemore inclined to give your
che.nt that Having someone testify to this type
of IOformatlOn empowers the jury with the knowledge
necessaryto recommendaprobatedsentence.
In short, all attorneys no doubt want to present the
judgeand/or the jurywith the best punishmentevidence
available. If the hearing is a plea to the judge, with
or without a recommendation, consider retaining, or
requesting appointment of, an independent pre-sentence
or mitigation reportwriter. Ifyou take a case to trial and
yourclientis eligiblefor probation,considerretainingan
expertwhocandiscuss detailed information thatcangive
your client the necessary "leg up" to get that probated
Cheri Schultz is a former court liaison probation officer
who prepares defense-based pre-sentence and mitigation
reports for state andfederal criminal cases. She may be
reached by telephone at 713-783-5833 and by email at
by Joseph W. Varela
, , The enemy advances, we retreat; the enemy camps, we harass;
the enen1Y tires, we attack; the enemy retreats, we pursue.' ,
Mao Zedong
The Western miltary tradition scorns retreat. Ever since
classical Greece, honor accrues to the man who stands and
fights, even unto death, while ignominy rewards those
who fall back. Retreat is seen at best as an admission of
failure; at worst it is cause for accusations of
incompetence, cowardice or treason. I maintain that this
bias is a critical limitation on tlexibility in all kinds of
contlict and contributes to defeat more often than it does
The popular image of a retreat, at least in the West, is
exemplified by the response of the Soviet Union to the
German invasion of June 1941. It was a true rout on a
scale unmatched in history. Surprised and utterly
unprepared, lashed by the panzers and the Luftwaffe, the
Red Army lost 40,000 men a day in a wild dash east.
Leadership at all levels was paralyzed. Within days, entire
armies ran out of food , fuel and ammunition and were
encircled and destroyed. Weaponless, leaderless soldiers
staggered down roads choked with tleeing civilians. It
was September before the Red Army stiffened enough to
stop the Germans at Leningrad. It would cost the Soviet
Union almost four more years of war and thirty million
lives to assure victory.
The common concept of retreat is flawed. The annals of
warfare are filled with examples of retreats that
contributed to victory.
General MacArthur, caught with his pants down in the
Philippines on December 8, 1941, could have given in to
panic. Instead, he led an orderly retreat, maneuvering
brilliantly to save the bulk of his army and intlict heavy
casualties on the crack Japanese units sent to pursue him.
Russia, reeling under Napoleon's invasion in 1812, fell
back into its endless expanses, and even abandoned
Moscow before launching the counterattack that
destroyed the Grand Armee. Mao's Long March is the
stuff of legend: Communist troops "fought backwards"
for thousands of miles and in the process wore out much
of the Nationalist army.
George Washington longed to command a disciplined
European-style army, and only lack of resources
compelled him to fight otherwise. But General Nathaniel
Greene, America's first and best guerrilla soldier, had no
such pretensions. Leading a motley force of Continental
regulars, local militia, and armed citizens, he fought while
withdrawing, dragging Lord Cornwallis through the
South to the latter's immense cost.
The tactics he used
would not have been out of place in Vietnam.
But I want to focus on a smaller example, closer to home:
The Texas Revolution.
In 1836 Texans
were in the midst of a revolution against
the dictatorial government of General Santa Anna.
of the Anglo Texan fighters were recent immigrants from
the southern United States.
They were few, but they were
woodsmen and sharpshooters and they were armed with
American ritles which could kill out past 200 yards. They
were loosely disciplined and fought as irregular light
Their Mexican opponents were Santa Anna's regular
troops, drilled in the art of Napoleonic warfare. Most of
the Mexican foot were armed with muskets with an
effective range of 70 yards and trained to fight as mass
infantry. The quality of these troops varied. Some were
convicts pressed into service. But Santa Anna's cavalry
were well trained professionals who could also fight as
dismounted dragoons. The regular forces were
supplemented by rancheros, born to the saddle. They
acted as guides and light skirmishing cavalry.
The American volunteers considered themselves to be
horsemen. They met their masters on the South Texas
plains. There they were out-ridden and out-fought by
Santa Anna's dragoons and his ranchero irregulars, as
Fannin and his army discovered at the cost of their lives
on the fields near Goliad. Nor did garrisons fare any
better. The strategy that caused the battle of San Antonio
de Bejar, fought to secure the Alamo as a Texan outpost,
revealed the inadequacy of Texan logistics and troop
strength when the Alamo was later retaken and Travis and
his garrison were killed.
Sam Houston watched from his stronghold in Gonzales.
It appears that he was the only Texan general with the gift
of strategic thinking. Nominally the top field commander
of all Texan armies, in reality his authority did not extend
much past his own garrison. He knew his Texans could
not compete with the Mexicans on the
plains, and that Texas lacked the numbers and logistical
wherewithal to secure forts . The loss of the Alamo
confinned his suspicions of the worthlessness of
He had a critical decision to make, and he made it:
He burned Gonzales and withdrew east.
As Mexican forces pursued, he prepared a stand at Burnham's
Crossing on the Colorado River. Faced with envelopment, he
burned the ferry and withdrew again, to Beason' s Crossing,
Therehelearnedof theannihilation
ofFanninatGoliad. Nowhis small armywasall thatwas left.
The military situation ofthe Texas Revolution was dire. He
withdrewagain, this timetoSanFelipe,ontheBrazos.10 All the
while he enduredthe tauntsofhis armyand theprotestsofthe
Texan government. Houston suspected that even ifhe won a
tactical victoryatSanFelipe, his tiny army mightbedamaged
beyond further usefulness. He stayed at San Felipe one night
twenty miles to the north." Therehe was able to refitandtrain
While at Groce's he received a letter from President Davis
Burnett,delivered inpersonbySecretaryofWarRusk:
Theenemyarelaughingyoutoscorn.You mustfightthem.You
mustretreatnofurther.Thecountryexpectsyou tofight.
But Houston again withdrew, this time towards
Lynchburg-andSantaAnna'sarmy.All thewhilehehadbeen
backing into terrain familiar to his sharpshooters, the forests
and river bottoms ofEastTexas. SantaAnna's army was now
struggling in alien territory. Long gone were the South Texas
plains, which Mexico's disciplined cavalry and mass infantry
were designed to dominate. Here they were less mobile and
of a longlogisticalrope.HoustonmadehisstandatSanJacinto
StAt".,,, v-f SAM-t- \-<.,.".,.rt.,.l-<-
At citj.,.f \-<.,.".,.rt.,.l-<-.
\-<" i.r n1iil-<-J uwt
i1M-A rv-i l-<- f;i l-<-J -/iv"NwvJ/.r
Si1M- JMh. t.,..
Many times the defense lawyer will be presented with a
setback. It could be in plea negotiations. It could be in oral
argument at the CourtofCriminalAppeals. It could be in the
middleofcross.Whatisto bedone?
One choice is to flee in panic, never a productive stratagem.
Another option is standing fast and going down in flames
fighting. This tactic seldom results in strategic victory; one
thinksofThermopylaeandthe 4000Greekswhostoodagainst
thehostsofXerxes.'"It canalsobringaboutdisaster;onemight
recall Hitler's orders never to retreat and the loss ofPaulus 's
SixthArmybeforeStalingrad.' s
The middle course might work best: Avoiding direct
engagement and retreating in good order to familiar ground.
Faced with overwhelming strength, that is what Houston did,
albeitagainstopposition from aboveandbelow. Fannin,Travis
andBowieearnedimmortality; butevenas theydied, Houston
was withdrawing and thereby winning the war. The defense
lawyer confronted with a setback might consider backing up
into morefamiliarterritoryandpreparingto fightanew.
I SelectedMilitary Writings (1966).
2Constantine Pleshakov, Stalin'sFolly: The Tragic First Ten Daysof
World War Two ontheEastern Front (2005);HarrisonSalisbury,
3RussellF. Weigley,TheAmerican Way ofWar (1973),chapter I.
4 Weigley,opcit.,chapter2.
'The best,almosttheonly,militaryhistoryis StephenL. Hardin,
TexianIliad: AMilitaryHistoryof the Te;ms Revolution(1994) .
6The historically-correctdemonymwas"Texians"or"Texicans."
ButIhavechosentouse the modern term.
7 Antoniode PaduaMaria SeverinoLOpez de SantaAnnayPerezde
Lebron, the self-styled"Napoleonofthe West."
8Theywerein fact illegalaliens.Theirpresencegalled the
governmentin MexicoCity.
9NearWeimar, abouthalfwaybetween BejaranddowntownHouston.
10 San Felipe is on Interstate 10about45 mileswestof downtown
Houston.There is apark with astatueofStephenF. Austin.
II NearHempstead. Houston'sretreatshouldnotbe confusedwith
the "RunawayScrape,"which was apanicked flightof civilians
toward the US border.
12 Quotedin Hardin,op. cit. Ruskwasauthorized to relieveHouston
ifhe deemed itnecessary.
13 Thereisevidence that Houston intendedto retreateven further,up
into the dense forests ofEastTexas,butcircumstancesforced afi ght
at SanJacinto.Houston'swithdrawalwas thestuffofbitter
controversyyearsafterTexas independence.See Hardin,op. cil.,
chapler 10.
14 Thermopylaeand the simultaneousseabattleofArtemisium(480
B.C.)haveliterallydefined the heroiclaststand,as does theAlamo.
ButbothPersiaand Mexicowereonlydelayed,and weredecisively
defeated later.See Paul Cartledge, Thermopylae: The Bailie That
Changedthe World(2006) .
15 Erich von Manstein, Lost Victories(1955),trans.AnthonyG.
Powell (1958).
....... ,

-= . '. ". " . \ fol-
PadWa v. Kentucky3 is a landmark Supreme Court case
clarifying the duties owed by a criminal defense lawyer
to her noncitizen client. The case involved a longtime
lawful permanent resident immigrant who pleaded guilty
to trafficking more than five pounds of marijuana in his
tractor-trailer after his defense attorney advised that " he
did not have to worry about immigration status since
he had been in the country so long."4 Mr. Padilla faced
deportation from the United Sates after submitting his
guilty plea. In order to prevent this consequence, Mr.
Padilla filed a motion for post-conviction relief and
alleged that he would not have pleaded guilty to the charge
had he been informed of the possible deportation. The
Supreme Court of Kentucky held that neither counsel's
incorrect advice nor the failure to advise Mr. Padilla of
the collateral consequences of conviction provided a basis
for post-conviction relief. The United States Supreme
Court disagreed with the Supreme Court of Kentucky and
stated that "constitutionally competent counsel would have
advised him that his conviction for drug distribution made
him subject to automatic deportation." Padilla at 2.
Indeed, the United States Supreme Court recognized
the gravity of deportation consequences on noncitizens
li ving in the United States: "Our longstanding Sixth
Amendment precedents, the seriousness of deportation
as a consequence of a criminal plea, and the concomitant
impact of deportation on families living lawfully in this
country demand no less" !d at 17. The Court interpreted
the Sixth Amendment as requiring affirmative advice on
the immigration consequences of a plea. This interpretation
is correct, as noncitizens can face extremely serious
immigration consequences after pleading to even seemingly
mmor crimes.
The nature of immigration law has changed substantially
over the years. The Court observed that "[w]hile once there
was only a narrow class of deportable offenses and judges
wielded broad discretionary authority to prevent deportation,
immigration reforms over time have expanded the class of
deportable offenses and limited the authority of judges to
alleviate the harsh consequences of deportation. The 'drastic
measure' of deportation or removal ... is now virtually
inevitable for a vast number of noncitizens convicted of
crimes." !d. at 2. With this in mind, the Court saw it as
imperative that the criminal defense lawyer inform the
noncitizen of possible immigration consequences to his plea.
The Court' s analysis of Mr. Padilla' s claim that defense
counsel abrogated his duty to inform Mr. Padilla of the
immigration consequences of his plea began with the
two-prong analysis found in Strickland v. Washington
Under Strickland, it must first be determined whether
counsel's representation "fell below an objective standard
of reasonableness." Strickland at 688. The second question
is whether "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. The Court determined
that only the first prong of the Strickland test would be
addressed in Padilla. Thus, the Court stated that it would
look to whether counsel had shown "reasonableness under
prevailing professional norms." Id. at 688. To do this ,
it would look to standards and guidelines issued by the
American Bar Association and the like. The Court concluded
that " [t]he weight of prevailing professional norms supports
the view that counsel must advise her client regarding the
risk of deportation." Padilla at 9. The analysis did not end
there, however.
In coming to this conclusion, the Court took into account
the relevant statute under which Mr. Padilla would be
subject to deportation after submitting his plea. The statute,
on its face, was "succinct, clear, and explicit in defining
the removal consequence for Mr. Padilla' s conviction. " Id.
at 11. It was clear to the Court that Mr. Padilla's defense
counsel could easily have looked to the statute to determine
whether he would be subject to deportation following his
plea for drug-trafficking, and therefore counsel ' s advice
was incorrect and deficient under the first prong of
Strickland. The Court acknowledged, however, that
Immigration Law is complex and considered a specialty
area among practicing attorneys. Situations in which a
person's deportability may be unclear, due to the language
of a statute, present a more limited duty. The Court reasoned
that "[w ]hen the law is not succinct and straightforward ..
. a criminal defense attorney need do no more than advise
a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences." Id. at
12. However, "when the deportation consequence is truly
clear, as it was in this case, the duty to give correct advice is
equally clear." Id.
Thus, the Court found that silence from defense counsel
was not enough. Limiting their decision to affirmative
misadvice, the Court reasoned, would lead to absurd results.
"First, it would give cOlU1sel an incentive to remain silent on
matters of great impOltance, even when answers are readily
available .... Second, it would deny a class of clients least
able to represent themselves the most rudimentary advice
on deportation even when it's readily available." Id. at 13.
According to the Court, failure to provide advice clearly
meets the first prong of the Strickland test. Taking into
account that deportation is a "severe" penalty and that it is
"nevertheless intimately related to the criminal process"
the Court found it "most difficult" to separate the penalty
of deportation from the conviction of the crime in the
immigration context. Id. at 8.
Thus, defense counsel's duty to inform of the immigration
consequences to a plea has been clarified to a certain
extent. But where does the criminal defense practitioner
go from here? Using American Bar Association (ABA)
guidelines, as well as National Legal Aid and Defender
Association (NLADA) Performance Guidelines for Criminal
Representation, what follows are recommended steps to
comply with the duties set forth in Padilla.
Fullyfurnishedand move-in ready
Freeparking in attachedcoveredparkinggarage
Suite' includesuseofphone,fax, internet,copier,
kitchenandconferenceroom. aten gotiable.
RobertRodriguez, (713)224-1818
Goldapp-Rodriguez, PC
3555Timmonslane,Suite1150, Houston,Texas77027
First - Determine Client's Immigration Status
Consistent with ABA standards for all criminal defense
counsel, proper representation of a client generally begins
with an understanding of the relevant factual information
about the client. Inquiring into your client's immigration
status may be an exercise in trust, as many times a noncitizen
client may be unwilling to divulge such information. It
is important to stress attorney-client privilege as well as
the importance of client cooperation for plea purposes.
Generally, this information is gathered as early as possible
in the attorney-client relationship. According to the NLADA
guidelines, the client's immigration status should be
determined at the initial interview.
The process of determining the client's immigration
status may take more investigation than simply asking the
noncitizen client, as many noncitizens do not understand
exactly what their own immigration statuses may be. Beyond
discovering that the client is a noncitizen, it is important to
determine exactly what status the client is in , and for how
long, as the different statuses or the length of time during
which a noncitizen has been in a particular status may result
in different immigration consequences from certain offenses
and may impact whether a noncitizen would have relieffrom
removal if indeed he or she were rendered deportable or
inadmissible to the United States.
A noncitizen client may be in one of several statuses,
such as lawful permanent resident, undocumented,
refugee or asylee, temporary visitor, temporary worker,
etc. Therefore, if there is a need to analyze documents a
client brings to the interview, it may become necessary to
partner with competent immigration counsel at this point.
Understanding your client's precise immigration status
will aid in investigating the various potential immigration
consequences during plea negotiations.
Second - Investigate Immigration Consequences
Immigration Law contains both grounds of deportability
for noncitizens as well as grounds of inadmissibility
These often appear to be misnomers, as the grounds of
inadmissibility may apply to noncitizens who are physically
present in the United States. It is critical to understand
that certain convictions may be grounds for deportability
and not grounds of inadmissibility and vice versa. When
investigating the immigration consequences of a plea,
keep in mind your client's status as well as the alternative
pleas. Below is a general overview of the consequences of
pleading to certain criminal conduct for noncitizens. Please
bear mind that this does not take the place of partnering
with and review by competent immigration counsel , which
is advisable in most cases.
Competent immigration counsel can also advise you and
your client whether there may be relief available in removal
(deportation) proceedings, as there may be situations where
the available pleas result in choosing the least of all evils,
as all pleas may render the client deportable, for example.
However, with proper analysis, one may ensure that the
individual would be able to fight removal , if there is no
way to avoid the consequence of deportability. Of course,
in such cases, too, the noncitizen client may wish to have
you negotiate to obtain a dismissal of the charges, or to
avoid making a plea at all (as in the case of a true pretrial
diversion), or to fight the charge(s) before the court, with or
without a j ury, to obtain an acquittal.
"Greencard Holders," also known as Legal Permanent
Residents (LPRs), and others admitted to the United
States in legal temporary status, are subject to grounds of
deportability (and potentially to grounds of inadmissibility if
they travel out of the United States and attempt to return after
certain crimes)6 Generally, any conviction
for an offense
considered an aggravated felony under the immigration
lawS will trigger a ground of deportability. It is imperative
to note here that seemingly minor offenses, not considered
a felony under the state penal statutes, can be construed
as an aggravated felony by immigration officials, and thus
present a basis for removal from the United States. Offenses
covered under the "Aggravated Felony" definition include:
Murder, Rape, Sexual Abuse of a Minor, Drug Trafficking,9
Firearm Trafficking, Crimes of Violence (where the term
of imprisonment is at least one year) ,10 Theft or Burglary
(where the term of imprisonment is at least one year), Fraud
or Tax Evasion (where the amount in question exceeds
$ 10,000), Prostitution, Commercial Bribery, Obstruction of
Justice, Perjury, Bail Jumping, Money Laundering (where
the amount of funds exceeds $10,000), Alien Smuggling,
Failure to Register as a Sex Offender, and an Attempt or
Conspiracy to commit any of these crimes. Note that the long
list in 8 USC 1101(a)(43) needs to be studied closely, as the
immigration definitions of each of these sections may not
be parallel to whatever state or federal crime with which a
noncitizen has been charged.
The reason for any analysis of the consequences of any
plea becomes apparent when one considers that a state
misdemeanor may be considered an aggravated felony
under the immigration laws, and thus a ground for
deportability. I I Furthermore, many forms of relief from
deportation or removal are not available to noncitizens who
are convicted of an aggravated felony under the immigration
Other grounds ofdeportability include: controlled substance
convictions, crimes invol ving moral turpirude, firearm
or destructive device convictions, and domestic violence
convictions. Again, each of these may result in deportability
andlor inadmissibility for a noncitizen, even if they are in
the United States in a legal status.
Grounds of inadmissibility generally apply to noncitizens
seeking lawful admission, but include legal permanent
residents who travel outside the United States after
commlttmg any of these offenses.
Grounds of
inadmissibility are slightly different than grounds of
deportability as both being convicted or admitting
committing acts which constitute the essential elements of
the proscribed crimes may trigger inadmissibility. Crimes
for which an admission may trigger inadmissibility include:
Controlled Substance Offenses, and Crimes Involving
Moral Turpitude.
) Other crimes that render a noncitizen
inadmissible include: Prostitution, and Convictions of
two (2) or more offenses of any type with an aggregate
prison sentence of five (5) years. Also there are sections of
inadmissibility for which the government need only have a
" reason to believe," that the individual is an individual who
may not be admitted to the United States, including those
thought to be drug traffickers, money launderers or security
risks (including terrorists or suspected terrorists) .
Another reason for the analysis of potential immigration
consequences is that many offenses render individuals
ineligible to apply for Naturalization
l S
either for a few
years or forever, because they are unable to prove the
requisite good moral character (an essential element,
generally) necessary to be prima facie eligible to apply
for Naturalization. For example, an aggravated felony
conviction any time after November 29, 1990 will
permanently bar a finding of good moral character and
consequently bar eligibility for Naturalization
I 6
Defining " Conviction"
The definition of "conviction" for immigration purposes is
not what the layperson or even a criminal defense counsel
would think. Under the immigration laws, a conviction
is a formal adjudication of guilt entered by a court or,
ifadjudication of guilt has been withheld, where: 1) ajudge
or jury has found the noncitizen guilty or the noncitizen has
entered a plea of guilty or nolo contendere or has admitted
sufficient facts to warrant a finding of guilt, AND 2) the
judge has ordered some form of punishment, penalty,
or restraint on the noncitizen's liberty to be imposed1
Guilty pleas that result in deferred adjudications and only
probation are nevertheless convictions. Only youthful
offender adjudications and true pretrial diversions without
guilty pleas are not considered convictions.
Third - Strategize/Negotiate with the Prosecution
This phase requires that defense counsel keep in mind the
factors that can trigger negative immigration consequences
while strategically working with the prosecution to achieve
a desirable result, if at all possible. Again, this is a stage
where competent immigration counsel may be able to assist
in such negotiations, either by preparing legal memoranda
explaining the immigration consequences that would not
be there for a U.S. citizen, and/or by assisting in the actual
negotiations. I S First, defense counsel should carefully
consider dispositions that may trigger deportability and/or
inadmissibility. Obviously, dismissal of any charges would
be most preferable. The next best result would be a true
pretrial diversion, because under the current definition of
"conviction" in the immigration laws, there would be no
plea made, and therefore there could be no conviction (supra
and at footnote 7). If at all possible, counsel should avoid
negative dispositions that trigger either depOItability or
inadmissibility, as these generally present the most obstacles
for a noncitizen to later overcome. If it is not possible to
do so, the next goal should be to avoid a disposition that
may be deemed later by immigration adjudicators to be
an "aggravated felony." Next, consider avoiding a plea
that could be construed as a "particularly serious crime"
or a "violent or dangerous" crime, as these can limit relief
from removal in many cases.
Finally, one should consider
whether the offense will make the noncitizen (particularly
longtime lawful permanent residents) ineligible for
naturalization in the future, whether for the statutory period
after any punishment is successfully completed, or whether
forever barred. If after careful analysis one detennines that
there is no way to avoid eventual removal proceedings, the
strategy should be to work with competent immigration
counsel to find a disposition that will result in possible relief
from removal (at least the ability to apply for such relief).
Fourth - Advise Client of Possibilities for Pleas as
well as Consequences
In order to meet the "reasonable professional assistance"
standard required under Strickland, defense counsel must
advise her client of possible immigration consequences to
his plea. As established above, the Padilla ruling has made
it clear that silence on potential immigration consequences
is not enough. After investigating the potential immigration
consequences, and strategizing for a desirable outcome,
defense counsel should advise her client of the options in his
case. Once the noncitizen understands the consequences of
his plea a final disposition may be reached. Throughout this
process, it may be advisable for criminal defense counsel to
partner with a competent immigration law specialist due to
the admitted complexities in the immigration laws.
I Magali S. Candler, a partner at Foster Quan, LLP, is Board
Certified in Immigration and Nationality Law by the Texas Board
of Legal Specialization, and has been practicing immigration law
for over 20 years. Magali can be reached at:
email : mcandler@fosterquan.comlphone: 713.335.3923
2 Special thanks to law clerk James E. Suerken, a third year law
student at UH Law Center, for his research and assistance on this
J Padilla v. Kentucky, 559 U.S. _ (20 J0).
4 Mr. Padi 1Ia had been a legal resident of the United States for over
40 years and was a Vietnam War veteran.
5 Strickland v. Washington, 466 U.S 668 (1984)
6 Grounds of deportability are found at 8 USC 1227, "General
Classes of Deportable Aliens." Grounds of inadmissibility are
generally found at 8 USC I 182, "General Classes of Aliens
Ineligible to Receive Visas and Ineligible for Admission."
7 Note that the definition of "conviction" under immigration
law includes a deferred adjudication, 8 USC lIOI(a)(48)(A).
(However, note that a deferred adjudication is not a "term of
imprisonment" for purposes of the definition of aggravated
felony where a "term of imprisonment" is required, discussed
further, below).
8 The definition of "aggravated felony" in the immigration law is
found at 8 USC 1 JOl(a)(43)(A) through (U).
9 Caveat as to what may be considered to be "drug
trafficking," and bear in mind that almost any controlled
substance offense may be a serious issue for a noncitizen,
whether it is an aggravated felony of drug trafficking or
IONote that the definition of "term of imprisonment" in the
immigration law includes the actual term imposed, whether
probated or not, 8 USC 110 I (a)( 48)(8)
II An example of this could be a Class A misdemeanor theft
where a one-year sentence is imposed and fully probated.
Under the definition under 8 USC(a)(43)(G), this would be
an aggravated felony.
12 The definition of those who are seeking admission to the
United States is found at 8 USC 110 I (a)( 13).
138 USC 1 1 82(a)(2)(A).
14 These are found at 8 USC 1 1 82(a)(2)(C), (1), and 8 USC
I 1 82(a)(3)(A) and (8), respectively.
Ij One applies for naturalization in order to become a U.S.
citizen, which normally required a statutory period of
good moral character (see, generally, 8 USC 1401 through
16 The definition of what is not good moral character
appears in 8 USC II0l(f).
11 See 8 USC 1 101 (a)(48(A).
18 The lead author bas had experience in assisting criminal
defense counsel in negotiating and obtaining a true pretrial
diversion which did not render the client deportable.
Otherwise a plea of guilty or nolo contendere on such a
charge would have rendered the client deportable, and not
only deportable, but an aggravated felon.
19 See 8 USC II 58(b )(2), listing those ineligible for asylum
relief, including those convicted of particularly serious
crimes which would constitute a danger to the United
States and 8 CFR 208.l3(c)(2)(A) and 1208. I 3(c)(2)(A),
regarding mandatory denial of asylum for convictions
of particularly serious crimes which would constitute a
danger to the United States. See 8 CFR 212.7(d) and
l2l2.7(d), "Criminal grounds of inadmissibility involving
violent or dangerous crimes," which may limit relief in the
form of a waiver of inadmissibility under 8 USC 1182(h).
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You Got MeOff ....NowWhat?
District and County Court Expunction Practice in Texas
In the Summer, 20 I 0 Defender, we presented an article about
Petitions for Non-Disclosure (PND). That article discussed how
many citizens have misconceptions about criminal history, arrest
records and how to seal or expunge those records. Many people
who contact your office might believe that they are entitled to
an expunction. However, more often than not, the only relief to
which they are entitled (if any) is a PND that can result in their
arrest and criminal record being "sealed". In those instances,
law enforcement and other agencies still have access to those
records. This article seeks to educate the reader about the law of
expunctions and provide a practice guide and some tips for the
practitioner not familiar with this process.
This article is written from a Harris County perspective. Although
the statutes and case law apply throughout the Lone Star State,
District Attorneys Offices adopt differing stances when deciding
whether or not to oppose a petition for expunction. Therefore,
while an expunction petitioner might not be statutorily entitled to
an expunction, the Harris County DA 's Office might not oppose a
by Dorian C. Cotlar
petition while the Galveston County DA's Office might oppose
on the same set of facts. As always, this article is not intended to
be a substitute for a thorough reading of the applicable Code of
Criminal Procedure chapters relating to expunctions or a periodic
review of the cases in this area. This article is also not going to
cover juvenile record sealing or Class C offenses originating in
Municipal or Justice courts.
The best way to begin our discussion of expunctions is to review
several scenarios. These are actual cases (with some details added
or omitted) that our office has recently handled. A brief answer
will follow. The article will go into more detail about how the law
applies to each scenario. Keep in mind that what the law allows
and what a District Attorney's Office will agree to are frequently
at odds with one another - often to the benefit of the petitioner
(your client).
Scenario One. Client rents a car in Harris County, Texas. He
drives it to Georgia and comes back to Texas with the car. He
parks it at his home in Montgomery County. Client has kept the
vehicle longer than contracted for. The credit card that he used to
secure the rental is maxed out. ABC Car Rental is, understandably,
concerned. ABC Car Rental has had several conversations with
the Client regarding the vehicle. Client has assured them that he
will pay the arrearage, now over $3000. ABC knows the Client's
address in Montgomery County. They send somebody there to
pick up the car without incident. The vehicle is parked in front of
Client's house and is in good repair. Despite getting the car back.
ABC contacts law enforcement and a Felony Theft charge is filed
against Client for the unpaid balance. It is filed as a non-arrest or
"to be" warrant. Unbeknownst to Client, his case is indicted by a
Harris County Grand Jury. Client is ultimately arrested. He makes
a bond and hires local counsel here in Houston. At his lawyer's
urging, Client gets the full restitution amount together. Lawyer
makes sure that it is paid through the Victim Witness Division.
With receipt in hand, Lawyer is able to convince the State (without
much difficulty) to dismiss this case.
Client, who has a Bachelor's Degree, later decides he wants to
go to law school. He has prepared for the LSA T and is trying to
get funding together. Client calls Lawyer to retain him for an
expunction. Is Client statutorily entitled to an expunction?
Answer. Not yet. Client's case was indicted. There is no evidence
to indicate that the felony indictment was dismissed because "the
presentment has been made because of mistake, false information,
or other similar reason indicating absence of probable cause.,,1 As
will be discussed, Client is not immediately statutorily entitled to
an expunction. He wiII have to wait several years for the statute of
limitations to run. The Harris County DA's Office was contacted
before Lawyer accepted a fee. Lawyer was told that the DA 's Office
would oppose the Petition for Expunction.
Continued: You Got Me Off... Now What?
Because Client was not statutorily entitled to an expunction and
because the DA's Office was going to oppose it, no petition was
Scenario Two. Client is 19 years old. He has "consensual"
intercourse with a 16 year old whom he had known for quite some
time. Unfortunately, they are just over three years apart. Some
time goes by. Complainant decides that she is angry because Client
has ignored her attempts to contact him. These attempts included
sending him naked pictures of herself. Almost a year after the
intercourse, Complainant tells her mother who immediately contacts
law enforcement. Law enforcement closes the case without further
action due to serious credibility problems with the Complainant. A
few months later, after mom pitches a fit, law enforcement reopens
the case and charges are accepted. Client, with no criminal history
whatsoever, sits in jail for several weeks while his family raised
money for a bond and an attorney. Lawyer is hired.
Lawyer and his staff prepare a Grand Jury packet. The Grand Jury
does the right thing and returns a "No Bill". Is Client statutorily
entitled to an expunction?
Answer. Not yet. Client is not immediately entitled to an
expunction. One of the requirements for an expunction of a felony
is that the information or indictment be "presented." A "No Bill"
was never presented. "A presentment occurs when nine members
of the grand jury concur in a 'true bill' and deliver the indictment
to the judge or c1erk."2 Client is not entitled to an expunction until
the statute of limitations has run. However, Lawyer conferred with
the DA's Office section that handles expunctions on behalf of the
State. Client was trying to enlist into the military, had never been in
trouble, graduated from high school and was, all things considered,
a pretty decent kid. DA's Office indicated that they would not
oppose the petition. Because there was no opposition, there was
not even the need for a hearing and all records associated with the
case were destroyed.
Scenario Three. Client is pulled over for speeding and weaving.
She is 18 and has no prior criminal history. While the officer is
writing a speeding ticket, he notices white powder on her nose and
all over her black pants. He also notices that she is nervous, evasive
in her answers and is beginning to cry. He asks Client to step out of
the car. When she does, officer sees a little baggy of cocaine and a
small straw on the seat. Lawyer is hired. Client's version of events
tracks the officers.
Client's case is indicted by a Harris County Grand Jury. Client
is lucky enough to be on her parents' insurance and is put into
much-needed treatment. Lawyer and his staff prepare a Pre-Trial
Diversion packet. The request for Pre-Trial Diversion is granted.
Two years later, after no problems, the case is formally dismissed.)
Is Client Statutorily entitled to an expunction?
Answer. Yes. Althrough a felony case which was indicted, Client
can avail herselfofa provision in the Code of Criminal Procedure
which gives a benefit to defendants who participate in a "pretrial
intervention program.,,4
Scenario Four. Client is arrested for a misdemeanor Possession
of Marihuana (POM). The stop was questionable. The judge in
the case granted the Defendant's Motion to Suppress. The case
was dismissed. This is not Defendant's first run in with the law.
Three years before this incident he was convicted of Possession of
a Controlled Substance (Cocaine) 1- 4 grams.
Is Client statutorily entitled to an expunction? What difference does
it make ifhe has a prior conviction for PCS?
Answer. Not yet. Client has two different issues facing him.
First, he will have to wait until the statute of limitations on the
misdemeanor POM has run.
Additionally, to be entitled to an
expunction, the person petitioning for an expunction must not have
been convicted of a felony for the five years prior to the arrest that
he is trying to get expunged.
Client will have to wait until tive
years have passed since his prior felony conviction.
Scenario Five. Lawyer is hired on an Aggravated Sexual Assault
of a Child Case. Client has no prior convictions of any kind. Case
is indicted and proceeds to trial. Client is found "Not Guilty" on all
three counts of a three-count indictment. There are no other cases
pending against Client and he is not being investigated for anything
else relating to those allegations. Is Client statutorily entitled to an
Answer. Absolutely. Further, because the case was heard in a
District Court, that same court can hear the petition within 30 days
of acquittal and Client will not have to pay any filing fees associated
with the expunction. One could argue that it almost constitutes
malpractice not to immediately file a petition for expunction upon
an acquittal in District Court. Failure to do so will result in one
having to file a petition in civil court, pay fees, etc. The procedure
is expedited on an acquittal and the diligent practitioner should take
advantage of it.
Scenario Six. Lawyer is hired on a defensible DWI - First
Offender. Client is acquitted in County Court. Is Client Statutorily
entitled to an expunction?
Answer. Absolutely. However, all petitions for expunctions must
now be filed in District Court. hat means that Lawyer will have to
file the petition in Civil District Court, pay the filing fees, etc.
Historical Context and Effect of an Expunction
The teon "expunction" is not defined in the Texas Code ofCriminal
The teon is derived from the Latin word expungere,
which means "to mark for deletion."s The teon is quite old, dating
back to 1602 in its root foml.
Merriam-Webster defines it in three
I. To strike out, obliterate, or mark for deletion;
2. To efface completely;
3. To eliminate (as a memory) from one's consciousness. 10
Black' s Law Dictionary has a similar definition."
The granting of an expunction petition results in exactly what the
detinitions suggest. That is, the records of the person's arrest and
all records associated with a criminal case (if one was filed) are
physically destroyed. Any reference to the records are also erased
from any computer database storing such information.
Expunctions are important because they allow a person who was
wrongfully arrested to remove all traces of that arrest from the
State's records. Expunctions are a civil procedure that can seem
daunting for the criminal practitioner who has never set foot in
the Civil Courthouse. Nonetheless, the granting of an expunction
can have positive implications for your client. Like a PND, if
an expunction petition is granted, your client may "legally lie."
She can deny that she was ever arrested, charged or had a record
expunged. [nterestingly, when questioned under oath in a criminal
proceeding, the person arrested (or any other person asked) may
state only that the matter in question has been expunged.'2
There are three primary areas that the criminal practitioner needs to
focus on when dealing with an expunction:
1. [s my client eligible?
2. How do I file an expunction and what do I do at the hearing?
3. What happens after the Order is granted?
A defendant's eligibility for an expunction can be easily divided
into two different types. The first (and easiest) is an acquittal or
pardon. The second, and most difficult to grasp, is for dismissals
or nolles and "No Bills."
The Code of Criminal Procedure allows for an expunction if the
person is acquitted by the trial court or the Texas Court ofCriminal
Where the petition is filed is dependent on whether the
case is a misdemeanor or felony. As discussed above, when the
petition is filed also will dictate where it is t1led. If it is within 30
days (on a felony), file it in the trial court. Ifit is after 30 days, file
it in Civil District Court.
The Code mentions an acquittal by the Texas Court of Criminal
Appeals. It makes no mention of the inteonediate appellate courts.
Because that could lead to absurd results, the appellate courts and
Texas Court of Criminal Appeals have read Article 55.01(b) as
also including the inteonediate courts. '4 If your client is acquitted
in the trial court, the granting of the petition is mandatory.'s
If your client is convicted in the trial court, but that conviction is
later reversed by the Court of Criminal Appeals (or, an inteonediate
appellate court), the granting of the petition is discretionary with the
Practice Tip: A corporation is not an individual. Therefore
a corporation cannot be "arrested". As being "arrested" is
a necessary component to being entitled to an expunction, a
corporation is not entitled to have criminal records against
them expunged.
Practice Tip: A pardon has the same effect as an acquittal. One
pardoned by the Governor is entitled to have the arrest and
criminal records expunged.
There are two exceptions to the mandatory granting of a petition
for expunction on acquittals. The tirst is "Not Guilty by Reason of
Insanity" (NGRI). Currently, a person found NGRI is not entitled to
an expunction. However, for those found NGRI before September
1,2005, they would be entitled to an expunction. This assumes that
they are no longer under the court's jurisdiction as part of a civil
commitment and that his case has been discharged.
The second exception to the acquittal expunction is if the person has
multiple charges or is still under investigation for the same criminal
episode. The Code reads, in relevant part, that a court may not order
the expunction" . . . if the offense for which the person was acquitted
arose out of a criminal episode ... and the person was convicted
of or remains subject to prosecution for at least one other offense
occurring during the criminal episode."'7
Here is a real life example from Collin County: While this situation
did not involve an acquittal, Ms. Aiken's situation helps to clarify
this section of the Code. In October of 1987, Ms. Madeline Aiken
was arrested for the murder of her husband. She was arrested by
the City of Allen Police Department. She confessed to killing her
husband. Her case was "No Billed" by a Collin County Grand
Jury. She was released from custody, not placed on any foml of
community supervision and had not been convicted of a felony for
five years prior to her arrest.
After her case was "No Billed", the lead detective learned that Ms.
Aiken had been paid the proceeds of a $100,000 life insurance
policy. The insurance company had investigated the death before
paying the policy. At the hearing on the expunction (which the
State opposed), the detective stated that he would refile the case if
any new infoonation from the investigation came to light.
Continued: You Got Me Off...Now What?
The trial court ordered the expunction of most of the records related
to Ms. Aiken's arrest. However, the court ruled that the City of
Allen Police Department and the Collin County District Attorney's
Office could maintain their information. Ms. Aiken appealed this
The Dallas Court affirmed the decision of the trial court.
In its
opinion, the court cited Article 55.01(c} which mandates that the
court not order the expunction of records if the person still remains
subject to prosecution.
Practice Tip: Prior to September 1, 1993, a person was not
entitled to an expunction for a case that resulted in an acquittal
or pardon. A person could only have an arrest record expunged
if there was no indictment or information filed after the arrest.
The law that came into effect in 1993 is, however, retroactive.
So if somebody calls you concerning a case that resulted in an
acquittal or pardon prior to September 1, 1993, go ahead and
get retained and file the petition.
Nolles and No-BiDs
These types of expunctions are covered in Art. 55.0 I (a}(2) of the
Code of Criminal Procedure. "No Bills" will be discussed first and
the procedure for no lies will follow.
No Bills
One of the most common myths about expunctions is that a "No
Bill" guarantees the (former) defendant a right to have that record
expunged immediately. There is no statutory basis for this belief.
Technically, on a case that is "No Billed", the applicant is not
entitled to the expunction until the statute of limitations has run.
That is because, as discussed, a "No Billed" case is not "presented"
as that term is defined by the Code of Criminal Procedure and
relevant case law.
However, in Harris and Fort Bend Counties
the general practice
is not to oppose a petition for expunction that is filed after a "No
Bill" is returned - provided that there are no other cases pending out
of the same episode, the applicant is not subject to prosecution for
another offense arising out of the same episode and the applicant has
not been convicted of a felony in the five years prior to the date of
arrest on the "No Billed" case.
This is the most complicated part of the statute and the one that
gives practitioners the most trouble. These are the cases that are
never tried in court (e.g., dismissed or "nolled''). This category of
cases are dismissed either after they are indicted or before they are
presented to a Grand Jury. These are covered under Art. 55.0\(a)(2).
There are three basic requirements for these expunctions:
I. The Statue of Limitations has run or the indictment was dismissed
for certain reasons;
2. The person filing the petition has been released and the charge
has not resulted in a final conviction, is no longer pending, and the
defendant was not under community supervision under Art. 42.12;
3. The person fi ling the petition has not been convicted of a felony
in the five years preceding the date of arrest.
Prong 1.
Most readers will be dealing with expunctions on cases where the
indictment or information was dismissed for "certain reasons." For
those cases where the Statute of Limitations has run, obtaining a
successful expunction is relatively easy assuming that prongs 2 and
3 from the above list are met.
For misdemeanors, if the statute of limitations has run after a case
was dismissed, go ahead and file the petition. It is unlikely that you
will receive any objection from the State - although it is always best
to run it by them first.
For felonies, if the statute of limitations has not run, the petitioner
will need to demonstrate that the indictment or information was
dismissed because "the presentment had been made because of
mistake, false information, or other similar reason indicating
absence of probable cause at the time of the dismissal to believe
the person committed the otfense.,,20
There are a multitude of situations that would entitle a petitioner
to an expunction under this prong. They are, inter alia, a recanting
complainant in some situations
, a witness lying to the Grand Jury,
the fabrication of evidence or the failure to present Brady material
to a Grand Jury. 22
Prong 2.
This section of the Statue is self evident. The person seeking
expunction must show that there was no final conviction or
court-ordered community supervision under Art. 42.12 ofthe Code
of Criminal Procedure. One receiving Deferred Adjudication is
not entitled to an expunction even though that person has not been
Our office frequently receives calls from practitioners wanting
assistance on preparing Pre-Trial Diversion packets. Inevitably,
people want to know why this alternative is so important. The
answer is simple - Article 55.01 specifically addresses Pre-Trial
Diversion (or Pre-Trial Intervention}.23 Neither of those are
"community supervision" under Art. 42.12. As such, a defendant
granted this extraordinary relief is eligible to have those records
expunged upon completion of the Pre-Trial Diversion. If the case
is a felony, the Defendant is immediately eligible for an expunction
(if not otherwise disqualified). If the case is a misdemeanor, the
Defendant is eligible two years from the date of arrest.
Prong 3.
The last requirement under this section of the Code of Criminal
Procedure is that the applicant must not have been convicted of a
felony for the five years prior to the arrest for the case that they
are now trying to get expunged. The statute is very clear about the
"prior" language. So, theoretically, if a Defendant is convicted
of a felony after the date of arrest for the offense that they are
attempting to get expunged, there is no statutory bar.
Where you file the petition for expunction depends solely on the
grounds for the expunction. To review: if the petition is the result
of an acquittal on a felony case, file the petition within 30 days in
the Criminal District Court. If you are hired after the 30 days or if
the petition is based on a misdemeanor (acquittal or dismissal) or
on a "No Bill" or felony dismissal, file the petition in Civil District
The Appendix contains a sample petition. When you draft your
petition, leave the Cause Number and court designation blank.
When you file the petition with the District Clerk, it will be
assigned a Cause Number and court. Do not put Cause Number of
the original criminal case on the petition. The clerks in the Civil
Courthouse will give you dirty looks and assume that you do not
know what you are doing.
Remember that you are filing a Civil lawsuit. Once it is filed you
will get an order setting a hearing date. Further, you will get an
answer from the Harris County DA 's Office (a general denial) as
well as an answer from the other entities that are included on your
petition. Those answers will generally say that those entities will
retain those records until ordered to expunge them by the Civil
District Court.
Do not be concerned about the denials, hearing dates, etc.
Hopefully by this point you have already spoken to the District
Attorney's Office about the petition. If they are unopposed, the
other parties will generally go along with the DA's Office.
Harris County DA's Office will do a lot of your work for you,
assuming that they are unopposed to your petition. You will not
have to serve the other entities. They wilI be mailed a copy of the
order and a representative from each agency will sign the order
and pass it along to the next agency.
While this may all sound very confusing, it is not. A properly
drafted petition for a client that is either entitled to the expunction
or has had her case "No Billed" is usually going to be granted. The
Civil District Court judge will sign the order once she knows that
none of the parties are opposed. This is almost always accomplished
without the need for a hearing.
The bottom line is to prepare, prepare, prepare. There is no reason
to file a petition for an expunction without first discussing it with
opposing counsel at the DA's Office.
If the DA's Office is going
to oppose the petition, figure out why and then decide if you think
you can win in court. If they are opposing it, there is probably a
legal reason to do so.
Identity Tbeft
In this age of identity theft, the unfortunate reality is that people are
arrested using other people's identifiers. Because of AFIS and other
databases, this is difficult, but it does happen on occasion. There is
a specific section of the Code of Criminal Procedure that deals with
this situation.
Petitions for expunctions on these types of cases can be filed either
in the county where the arrest occurred or in the county of residence
of the person whose identity has been fraudulently used. The State
is required to verify that the person arrested is not the person filing
the petition for expunction.27 Bear in mind that the State will also
insure that the person who filed the petition did not give his consent
to the person arrested to use his identity. For example, the State will
oppose a petition where a family member is using another family
member's identity (with permission) to simply "play havoc with the
police. ,,28
After Tbe Order Is Signed
After the order is signed, most of the work for the petitioner (and her
lawyer) is done. Article 55.02 of the Code of Criminal Procedure
lays out the responsibilities of the clerk of the court and all agencies
included on the order. The clerk will send a certified copy of the
signed order to each agency, person or entity included on the order.
The clerk wiIl also send a certified copy to the Texas Department of
Public Safety.
The Texas Department of Public Safety is the agency responsible
for sending the order to any Federal depository or agency where
there is reason to believe that there are any records or files related
to the petitioner. This is how an expunged record is removed from
NCIC/TCIC and the FBI Database, for example.
The agencies that are served with a copy of the order are instructed
to destroy all files arising from the arrest. The "destruction" can
be accomplished in one of several ways: the items can be sent to
the clerk of the court where the petition was filed, all identifying
information can be redacted, or the agency can just destroy the
entire file.
The agencies must also locate and destroy any reference
to the petitioner in all computer databases.
Objective, state-of-the-art evaillations & testimony
Competency & Sanity
DUl / SFST Teslimony
IQ and Personality Tesling
Confessions / Miranda
Eyewilness Faclors
Risk / Dangerousness
IMtrlJotn'....... Ihree peer-reviewed scientific publications
for Forensic Instruments,
oj Forensic Psychology
Continued: YouGotMeOff...NowWhat?
Practice Tip: Any records relating to the suspension of a 5 State v. Beam, 226S.W.3rd392(Tex. 2007). Beam settled,once
person'sdriver'slicense from aDWIarrestorALRareonly and forall, thesplitamongappellatecourtsin Texasregarding
subject to an expunction in the case of an acquittal. TEX. thewaitingperiod forexpunctionson misdemeanorcases. As a resultofBeam, DistrictAttorneys' Officeswill routinelyoppose
petitions forexpunction filed beforethetwo-yearlimitations
Practice Tip: Make sure thatyou get two certified copies of periodon misdemeanorshas run.
the orderofexpunction.Give one to yourclientand keep one
for yourself. Eventually all records relating to thearrestand 6 TEX.CODECRlM.PROC. art. 55.01(a)(2)(C).
togetanothercopy.You willwantto keep acopyin casethere 7 SeeTEX. CODECRIM. PROC. Art. 55.01
8 Merriam-WebsterOnlineDictionary.
Article 55.03 ofthe Texas Code ofCriminal Procedure addresses
the eftects ofthe petition beinggranted. After the order is signed, 10 Jd.
therelease,disseminationoruseoftherecordsorfilesis prohibited.
Yourclientcan denythatshe has everbeenarrestedand alsodeny 11 Black'sLawDictionary,Fifth Edition(1979).
thatsheeverhad arecord expunged.
12 TEX. CODECRlM.PROC.Art. 55.03(3).
It is aClassBMisdemeanortoviolateanexpunctionorder.30The
offenseis committedifapersonacquiresknowledgeofthearrest iJ TEX.CODECRIM.PROC.Art. 55.01(b).
while an officeroremployeeofan agency included in the order
and knowingly releases, disseminates oruses the records subject
to the expunction order. The offense can also be committed ifa
personknowingly fails toreturn orobliterateidentifyingportions
of a recordsubjecttoan expunctionorder.
Like PNDs, expunctions are neither a lucrative nor particularly
excitingareaofthe law. Buttheyarecrucial to theadministration
ofrecords ofsomebody who was wrongfully arrested. Further,
thereareseveralsituationswherealthoughnotstatutorily entitled,
a personfiling a petitionmightbe ableto gettherequested relief
withoutobjectionfrom theState.Forthesereasons,itis important
for thepractitionerto know the ins and outs ofChapter55 ofthe
TexasCodeof Criminal Procedure.
1TEX.CODECRIM. PROC. art. 55.01(a)(2)(A)(ii).
2 Ex Parte Adolph Todd Watts, 742 S.W. 2nd745 (Tex. App.-
Houston [IstDist.] 1987).
3In the actualcase, the clientscrewed up on Pre-Trial Diversion.
ShewasthenputonaregularDeferredAdjudication. Shemessed
that up tooand is now in the StateJail.
4 55.01(a)(2)(A)(ii).
14 There is averygoodbriefdiscussionofthis in Expunctionand
Non-Disclosure,AndreaWesterfeld and Katharine Decker,Texas
Districtand CountyAttorneys Association,2007.
15 TEX.CODECRlM. PROC. Art. 55.01(b)(I).
16 fd.
17 TEX. CODECRlM.PROC. Art. 55.01(c).
18 Ex Parte Madeline Aiken, 766S.W.2nd 580
(Tex.App.- Dallas 1989).
19 The authorhas haddiscussionswith the AssistantDA'sin both
Harrisand FortBendCountiesthatare tasked withdeciding
whetherornot theirofficeswill opposeapetitionforexpunction.
20 TEX.CODECRIM. PROC. Art. 55.0I(a)(2)(A)(ii).
~ See, e.g, State v. Thomas, 916S.W. 2nd540,546
(Tex. App.- Waco 1995,nopet.)
22 See Ex parte Stiles, 958 S. W. 2nd414,423
(Tex.App.- Waco,pet. Denied.);Harris County District
Attorney v. Small, 920S.W.2nd 740,745 (Tex.App.- Houston
[1st. Dist.] 1996,no pet.). As before, there is averygood brief
discussionofthis in Expunction and Non-Disclosure,Andrea
Westerfeldand KatharineDecker,TexasDistrictandCounty
AttorneysAssociation, 2007.
23 See TEX. CODECRIM. PROC. Art. 55.0I(a)(2)(A)(ii),citing
Sec. 76.001 TEX.GOV'T.CODE. Thissection ofthe
GovernmentCodedealswith Pre-Trial Intervention (Diversion)
andestablishes its legitimacyandtheabilityofcountiestocollect
fees forpeopleonaPre-Trial Intervention typesupervision.
24 Theexceptiontothiscan beon OWldismissalswhen DPS wants
to opposean expunction.
25 At thetimeofthewritingofthisarticle, the HarrisCounty
AssistantDistrictAttorneysthatmakethedecisionson petitions
for expunctionsare ScottDurfeeand Brian Rose. Eitherofthem
can bereached viaemailorat713-755-5816. Both ofthem, as
well as theirentirestaff,are veryhelpful in these matters.
26 TEX.CODECRIM. PROC. Art. 55.01(d).
27 TEX. CODECRIM. PROC. Art. 55.02 Sec. 2a(c).
28 Expunctionand Non-Disclosure,Andrea Westerfeldand
Katharine Decker,TexasDistrictandCountyAttorneys
Association, 2007, page27.
29 TEX.CODECRIM. PROC.Art. 55.02.
30 TEX.CODECRIM. PROC. Art. 55.04.
Dick DeGuerln' Dan Cogdell" Troy McKinney' CynthiaHenley'
Robert Flckman" Gerald Bourque Mark Bennett' Robert Morrow
Lana Gordon StanleySchneider" Robert Scardino JoAnne Musick'
KentSchaffer" Brian Wlce David Bires" RandySchaffer
J. GaryTrichter JoAnneMusick
Hundredsof FellowMembersofHCCLA
Can'tBeWrong--AskYourFellowMembers-- TheOverwhelmingChoice
WillBeJayW. BurnettForthe184thCriminalDistrictCourtInNovember
PolAdvbyJayW.BurnettforJudgeCampaign,JayW.Burnett,Treasurer, 1419Franklin,Houston,TX77002. InternallyGenerated.
Labordonated- IncompliancewiththevoluntarylimitsoftheJudicialFairnessAct.
CASE NO._____



COMESNOWJOHNNYQ. PUBLIC,Petitionerin theabovestyledandnumberedcause,andfiles his petitionforexpunctionofall
criminal recordsandfiles pursuanttoTEX. CODECRJM.PROC. ANN. art. 55.01,arisingoutofPetitioner'sarrest,and in support
hereof,Petitionerwill show theCourtasfollows.
1. OnoraboutFebruary 10, 1990,PetitionerwasarrestedbyofficersoftheHoustonPoliceDepartment. Asaresultofthearrest,
Petitionerwaschargedwith theoffenseofpossessionofacontrolledsubstancein causenumber 1234567in the230thCriminalDistrict
CourtofHarrisCOWlty,Texas. ThecasewasthereafterdismissedonMarch9, 1990afterthegrandjuryreturned"NoTrueBill"on the
indictment. PursuanttoTEX. CODECRlM.PROC. ANN. alt. 55.0I, the recordsareexpungable.
II.Petitionerhas reason to believethatthefollowingagencies,
(I)HarrisCountySheriff'sDepartment (3)Harris County (5)HarrisCounty
Attn:Expunctions DistrictAttorney'sOffice DistrictClerk'sOffice
60ILockwood 1201 Franklin,Suite600 20ICaroline, IstFloor
Houston,TX770II Houston, TX 77002 Houston,TX 77002
(2) TexasDepartmentofPublicSafety (4)HoustonPoliceDepartment (6)HanisCounty
CrimeRecordsServiceMSC 0234 1200 Travis, 10th Floor OfficeofCourtServices
P.O.Box4143 Houston,TX 77002-6000 1201 Franklin, 12th Floor
Austin,TX78765-4143 Houston,TX 77002
Ill.Pursuantto TEX.CODECRlM.PROC. ANN. art. 55.02,
thefollowing information is providedas to theassaultand theftofservicearrest:
I. Petitioner'sfull name: JohnnyQ. Public
3.Race: Caucasian
4.Dateof Birth:0111 / 1970
5. Driver'sLicenseNumber: TX- 1234567
6.SocialSecurityNumber: 123-45-6789
7. AddressatTimeofArrest: 1234GreensPkwy
8.OffenseCharged:PossessionofaControlled Substance
9. DateofOffense: Febmary to, 1990
10.DateofArrest: February 10, 1990
13. ArrestingAgency: HoustonPoliceDepartment OIR Number:_____
14.CaseNumber(s): 1234567
15.CourtofChargedOffense: 230thCriminalDistrictCourt
16. Disposition:NoTmeBillonMarch9,1990
17. Agencieswith Records:
(I) HarrisCountySheriffsDepartment
(3) HarrisCounty (5) HarrisCounty
Attn: Expunctions
DistrictAttorney'sOffice DistrictClerk'sOffice
120IFranklin,Suite600 20ICaroline, IstFloor
Houston,TX 770II
Houston,TX 77002 Houston,TX 77002
(2) Texas DepartmentofPublicSafety
(4)HoustonPoliceDepattment (6)H3ITis County
1200Travis,10thFloor OfficeofCourtServices
P.O. Box4143
Houston,TX77002-6000 1201 Franklin,12thFloor
Houston,TX 77002
IV. PursuanttoChapter55oftheTexasCodeofCriminal Procedure,
Petitionerisentitledtohaveall recordsand files concerningthearrestsexpunged forthefollowingreasons:
I. ThechargesagainstPetitionerarisingoutofthe transaction forwhich Petitionerwas arrested havenotresulted in afinalconviction
andareno longerpending. Specifically,thegrandjw)'retumeda"NoTrueBiII" ontheindictment
2. Petitionerwas notreleased on aconditional dischargew1derSection4.12oftheTexasControlledSubstancesAct. TEX. HEALTH
3. Petitionerhas notbeenconvicted ofafelony in the five yearsproceedingthedateofthearrest.
WHEREFORE, PREMISES CONSIDERED, Petitionerprays thisCourt:
I. Tosetthis matterforahearing.
2. Togive reasonablenoticeofthe hearingtoeachofficial,agencyorotherpublicentity named in Paragraph Hofthis petitionpursuant
toTEX. CODECRiM. PROC. ANN. aIi. 55.Q2 2(VernonSupp. 1996).
3. Afterthe hearingon thismalter,toordereachofficial,agencyorotherpublicentitythatthereisreason to believepossesses records
concerningthis an"estto:
a. Retum all recordsand files concerningthearrestto theCourt,orifremoval is impracticable,obliterateall references to
Petitionerand notifytheCourtofitsaction.
b. Requesteachaforementioned lawenforcementagencywhichsupplied informationaboutPetitioner'saITesttoanycentralized
federal depositol)" suchas the National CrimeIdentificationCenterand theIdentification DivisionoftheFederal Bureauof
Investigation toretumall such recordstotheCourt,orifremoval is impracticable,toobliterateall referencesto petitionerand
c. Deletefrom itspublicrecordsall indexreferencesto theabovementionedarrestsofPetitioner.
4.To directtheClerkofthe Courttosendacertifiedcopyoftheorderbycertified mail ,returnreceiptrequested,toeachofficial,
agency,orotherentitynamed in ParagraphII ofthe petitionand tosend to each centralfederal depositOl)'anexplanationoftheeffect
oftheorderaswell asarequestfortheretum ordestructionofthe recordsheld by the centralfederal depository.
5. To return to Petitionerall records,files and notifications ofthe dispositionofrecordsand files retwnedto theCourtpursuantto its
DorianC. Cotlar
808Travis,Suite 110I I Houston,Texas77002
Phone713-236-0717 I Fax713-229-8031

Before me, the undersignedauthority,thisdaypersonallyappearedJOHNNYQ. PUBLIC
apersonwell known to me, whoafterbeingdulysworndiddeposeandstateas follows:
My name isJOHNNYQ. PUBLICramovertheageofeighteenand capableofmakingthisaffidavit,
and havepersonal knowledgeofall facts recited herein.
ram thepetitionerin theattachedOriginalPetitio
rhave reviewedthe PetitionandverifY thatall aU
I. Petitioner's filii
2 name'J, h
.Sex: AA I P,.h,.

3. Race'c
l'l 4
--------- --'1
5 D' Irth:
6 S . Umber'Tv
7 A umber
. ddressatTime .
ofAlrest: /325G.
Signedandsworn to beforeme this_da 8 Pk,,-
.OffenseCha HOuston
9 D
. ateofOffense. F Ion ofaCOntrOl/Cd
10. DateofA . 10, 1990 Substance
lrest Feb
II.NameofC 10 1990
12 M . . arnsCo
. Llnlclpaltty H
14 gAgency:1-1
usn .
. OLUtofCharoedOm umber;
16 Dis .. b ense' 230
POSitIOn: No T . Crimin ID
' a ISlrictCoUrt
nCles with R arch9 1990
(I) HanisC
AttnE ountySheriffsD
60J . xpunctions epartment
(3)1-1 .
Houston Tv CJrns COunty
, I A. nOlJ
1201 F
(2) Texas D
. epartrn
Houston T '
CnrneRecords ofPublicSafety , X 77002
Sc0234 el-Vlce
(4)Houston POl'
P.O, Box4143 12 Ice De
AUStin, TX787
Houston ;;,JOth FlOor
. "ICe
(5) H '
ct Clerk'som
201 I' I
H 0 lIJe, 1st FI
OUStOIl TX 7 (
, 7002
(6) HalTis Co
1201 F OUltServir
ranklin 12
HOuston TX' th Fi
, 77002
CASE NO. 1234567


IT IS ORDERED that the hearing on the Petition for Expunction of Records is hereby set for
a.m.lp.m. on the _ day of ,2009, in the courtroom of the above named court, in Houston,
Hanis County, Texas.
IT IS FURTHER ORDERED that pursuant to TEX. CODE CRIM. PROC. ANN. art. 55.02 ' 2, the
clerk of this court shall notify each official or agency as well as listed below of the above hearing by
sending a copy of this order along with Petitioner's Original Petition by certified mail, return receipt
requested and provide the defendant and/or his attorney a copy of said order.
(1) Harris County Sheriffs Department (3) Harris County (5) Hanis County
Attn: Expunctions District Attorney's Office District Clerk's Office
601 Lockwood 120 I Franklin, Suite 600 201 Caroline, 1 st Floor
Houston, TX 77011 Houston, TX 77002 Houston, TX 77002
(2) Texas Department of Public Safety (4) Houston Police Department (6) Harris County
Crime Records Service MSC 0234 1200 Travis, 10th Floor Office of Court Services
P.O. Box 4143 Houston, TX 77002-6000 1201 Franklin, 12th Floor
Austin, TX 78765-4143 Houston, TX 77002
SIGNED AND ENTERED this ___ day of ______ , 2009.
Judge Presiding
*This edition ofinvestigator's corner was adapted to discuss a
current topic that has many investigators complete attention:
indigent defense and investigation,
The Harris County Criminal Courts have adopted new
policies governingthe appointment ofinvestigators and
the payment ofinvestigators. As you read this, the new
appointment policies will have been implemented. In
HarrisCounty,thecurrentmake upofinvestigatorswho
perform indigentdefense work is quite unique. Many of
the investigatorshavepriorlawenforcementexperience,
yet others comefrom the probation and pretrial sectors.
Most are members ofCriminal Defense Investigators of
Texas, an association ofinvestigators located in Harris
County. The majority of the association's members
acceptappointedcasesandspecializein indigentdefense
investigations. Collectively, these investigators have
Workingin manycounties,Ioftenhearattorneysclaiming
that Harris County has the best investigators in the state.
However, with new policies in place, the battle begins to
keepqualifiedinvestigators in HarrisCountywhoareable
to continue handling indigent defense cases. You ask the
lookelsewherefor work?
HarrisCountyhaschangedtherateof payfor investigators
to $40.00 per hour with a $600.00 cap for felony cases.
This is down from $50.00 per hour and a $750.00 cap.
In other words, as operating expenses for investigators
continue to climb, the indigent defense pay continues to
fall. This will cause our system to malfunction on many
Investigators are required to be licensed by the State of
Texas.Theyareregulated by the privatesecuritybureauof
the Departmentof PublicSafety.Investigatorsarerequired
to carry insurance and complete continuing education
courses each year. As with any regulatory scheme, this
equates to fees and more fees each yearjust to maintain
a license in good standing so that the investigator may
continueto work.
Justice is supposed to be fair and equal. As criminal
defense attorneys and investigators, we are constantly
being challenged. The defense ofindigent client's is a
critical aspect in the criminal justice system. It takes a
else's freedom in your hands and actually care enough
to do your best. I haveexperienced this first hand. Itoo
work on appointed cases with some dynamite attorneys .
I will state that the attorneys do evaluate the cases
before appointing me to work on them. And, in justthe
last few months, I have worked on some very serious
cases resulting in dismissals and acquittals. Thesystem
can work, but the need for qualified and competent
investigatorsremainsthe focus .
The Criminal Defense Investigators of Texas worked
withtheDistrictCourt judgestoearnan invitationtotheir
annual seminarto present. BrianBenken and I presented
on the role investigators play in the criminal defense
processand the expensethataccompaniesthe profession.
I have been keeping a close eye on the ever changing
climate between thejudges and the appointed attorneys
and investigators. Here is a sampling ofsomeconcerns
from the court 's perspective:
Itis the lawyer'sresponsibility to gather
information from theclientand then provide
investigatorwith specificassignments relatedto the
case. Jail interviewswith clientshouldnot be standard
operatingprocedurefor the investigatorwhenthe
lawyercan providethe information to the investigator
and focus the specificrequestorassignment in away
thatwill bestservethecase.
9 Courtswill notpay for investigatorstimeto bac,k
iiItJI and forth toconferenceswith attorneys. In thiS vane, It
is suggested thatattorneys and investigatorsuse
telephoneandemail to correspondwheneverpossible.
') Courtswill nolongerpay investigators for mileageto
, and from theclerk'sofficeto obtain records. Perhaps
the newon-linesystem in Harris Countywill help
LICourts wi II no longer pay for investigators to read
State's file or offense report. Rather, the Courts assert
it is the lawyer's job to provide this information and
challenge the investigator with specific tasks.
t!) Courts will no longer pay for investigators to prepare
t and serve subpoenas, absent a showing of special need.
Lawyers are being asked to prepare subpoenas and
utilize the court process server when possible.
As you can see, the challenges continue to mount. But,
you should also keep in mind that the Constitution
requires courts and counties to fund indigent defense.
Where appropriate, itemized bills that are "outside"
the above guidelines should still be submitted where
necessary, along with perhaps an explanation as to why it
was necessary. Bear in mind, this must be done ex parte
and under seal as the defendant has an absolute right not
to share his defense with the prosecutor. Also remember
that it is the defendant's right to investigate and present
a defense - that right is often exercised through the
discretion of the defense lawyer, not the court. The court
simply approves the voucher for payment.
The bottom line is we must continue to work together
in a positive way to demonstrate the investigator's
important role in the criminal defense process. Without
true investigation, wrongful convictions will continue.
Without true investigation, it is difficult for attorneys
to properly defend their clients. Budgetary constraints
aside, what price do we put on justice? Which innocent
defendant gets sl ighted because we can no longer afford
quality investigators? Hopefully, the answer is none!
I encourage each of you to find an investigator that you can
work well with. Once that relationship is formed, you will
find that your time is better utilized. Working together, you
and your investigator will develop a rhythm that allows
you each to work more effectively through the routine
tasks. Just as the prosecutors use their investigators, you
too should have the ability to use your investigator during
case work up and trial prep. More importantly, you must
avoid making yourself a witness in your own case.
All too often, attorneys fail to utilize an investigator to
interview a key witness. When that key witness decides he
doesn't like your client anymore, and therefore changes
his story, you cannot be left as the only witness available
to impeach the witness. This is precisely why investigators
are essential during the interview of witnesses.
I welcome any requests that you may have in the
area of investigations. Please feel free to email me at or caJi me at 713-223-4051. Thank
you for the opportunity to continue the Investigator's
Corner. My next article will address new investigative
methods in the digital society.
Jim Willis is a private investigator with Benken &
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