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al} 8) 55: OR eRe UPA LE Less is More Simplicity & Reasonable Doubt Cee Pee aly ir ae M UA ae ae ee eg Birraporetti’s, 500 Louisiana Street, Houston, Texas 77002 . Free Appetizers/Cash Bar @ 5:00 pm :: CLE starts at 5:30 pm :: Last Wednesday of each month SY eter Saad CRs ee Se CoE cue Jury Assembly Room, 1201 Congress Street :: Houston TX 77002 Tate) DPC PES eee uh ume) RT CC eee aE a SOE eC A Cah Creer FOR THE LATEST NEWS & MORE mother lawy ‘What can you do to belp? CLE EVENTS AWORD FROM OUR PRESIDENT BY TYLER FLOOD. HCCLA NEWS ROUND UP WELCOME NEW MEMBERS / 11 DECLARATION READING / 11 ‘SOCIAL MEDIA SUCCESS / 12 NON-DISCLOSURE: RELIEVING THE PRESSURE BY WADE SMITH WAR WITHOUT END BY JOE VARELA LESS IS MORE BY JOSEPH RUIZ WHATS INSIDE SUMMER 2016 OFFICERS, BOARD OF DIRECTORS. PAST PRESIDENTS WINNING WARRIORS. HCCLA BANQUET PHOTOS PRACTICE POINTERS RETHINKING ADMITTING IAC BY PAT MCCANNN, PREPARING FOR PUNISHMENT BY PAT MCCANNN, THE DEFENDER Cr ee ler aecneS ee ADS & DISTRIBUTION areas Crete DS ETC eens ered 2016-2017 PAST PRESIDENTS — 1971-2016 HCCLA OFFICERS & BOARD ———————— PRESIDENT TYLER FLOOD PRESIDENT ELECT TUCKER GRAVES VICE-PRESIDENT USA SHAPIRO STRAUSS ‘SECRETARY DAVID RYAN ‘TREASURER ‘STEVEN H, HALPERT PAST PRESIDENT JOANNE MUSICK © rower EXECUTIVE DIRECTOR (CHRISTINA APPELT BOARD OF DIRECTORS DAVID ADLER MARK BENNETT STACI BIGGAR JLCARPENTER PHILIP GOMMELS CASIE GOTRO JUSTIN C. HARRIS. GEMAYEL HAYNES PAUL KENNEDY THUYLE JASON LUONG DAMON PARRISH I JED SILVERMAN MARK THIESSEN JULIO J VELA (CLYDE WILLIAMS ‘SARAH WOOD C. ANTHONY FRILOUX STUART KINARD GEORGE LUQUETTE MARVIN 0. TEAGUE DICK DEGUERIN WB. HOUSE, JR. DAVID A. BIRES WOODY DENSEN WILL GRAY EDWARD A. MALLETT CAROLYN GARCIA JACK 3, ZIMMERMANN CLYDE WILLIAMS ROBERT PELTON CANDELARIO ELIZONDO ALLEN C, ISBELL DAVID MITCHAM JIM E, LAVINE RICK BRASS MARY E, CONN KENT A, SCHAFFER. DAN COGDELL JIM SKELTON GEORGE J. PARNHAM GARLAND D. MCINNIS ROBERT A, MOEN LLOYD OLIVER, DANNY EASTERLING WAYNE HILL RICHARD FRANKOFF \W. TROY MCKINNEY CYNTHIAHENLEY STANLEY G. SCHNEIDER WENDELL A. ODOM, JA, ROBERT J. FICKMAN PATRICK F. MCCANN MARK BENNETT JOANNE MUSICK NICOLE DEBORDE EARL_D. MUSICK CHRISTOPHER L. TRITICO ‘TB. TODD DUPONT, I (CARMEN M. ROE JOANNE MUSICK I'VE GOT YOUR BACK! {WONT BACK DOWN, ‘YOU CAN STAND ME UP AT THE GATES OF HELL BUT! WON'T BACK DOWN, ‘AND LL KEEP THIS WORLD FROM DRAGGIN” ME DOWN. THERE AIN'T NO EASY WAY OUT =LKNOW WHAT'S RIGHT -=1GOTJUST ONE LIFE INA WORLD THAT KEEPS ON PUSHIN’ ME AROUND _=VLLSTAND MY GROUND Driving through Iceland over the Summer, this ‘Tom Petty song was one of the few English songs on the radio, What a great anthem itis for us Criminal Defense Lawyers. This last year, I, along with other HCCLA members, who had my back, stood up and fought several injustices here in Harris County ‘and we Won! It wasn't easy, it wasn't fun during the process but the end result made all the hard work and stress very worth it! Nobody needs to be reminded of what an important and difficult job itis that we have chosen, It’s not easy, But there is only one way to do it the right way. By standing up to the injustices we see and by never backing down, Ever. Ifyou do your job that way, if you stand up and fight all the time, as we are called to do, you will feel very alone. You will feel seared. You will feel frustrated and pushed around. You will fel like this job and life is, in fact, dragging you down. I've seen this job affect my friends and colleagues in very negative ways. It wears on ‘you mentally and physically. It affects our friendships and it affects our families. I got it. This job, though, when done the right way can also be the most rewarding job there is ‘We all are drawn to criminal law for similar reasons. We are a different breed, We like to ‘get ourselves into difficult situations for the challenge of finding @ way out, We like helping people, Lam here to announce that you are not alone. ve got your back now, Any battle, any injustice, any problem you are having, I'm here for you. We all support each other. Several of ‘you stood with me in my battles and now it's ‘my tum to stand with you. I will stand and fight with any of you, any time, in any court, in any jurisdiction in the State. HCCLA has built a reputation of being an activist organization, We have involved ourselves in causes in Houston and across Texas. It's what we do. The next time you are feeling pushed around and dragged down, just know that I’m here for you, ‘we are all here for you. Stand your ground and never back down. We've got your back, ‘Over the Summer I learned lots of fascinating, things about the Vikings and the settlement of Iceland, They have many sayings on many subjects, most of which are fighting, something they know a little bit about. Ponder this Viking. slogan about fighting and not backing down: FATE WHISPERS TO THE WARRIOR: “YOU CANNOT WITHSTAND THE STORM” AND THE WARRIOR WHISPERS BACK: “LAM THE STORM!” ‘ween @) CCE natn GAarriors On The membership got into spring and halfway through summer with more winning ways... Steve Lieberman and Gary Tabakman scored a reversal and new trial in COAL on an out of DC174, The court agreed the jury must be unanimous on the manner and ‘means, and not pick and choose like a DWI. tart picking up the wins? Student members Chris Godine and Shane Sanders heard NG in CCCL14 on an Interference with Public Duties TCDLA ¢ yer of the Year Brian Wice won a reversal and new tial on a lesser included from COA1 on a DWI out of CCCLS, Andrew Wright and Lloyd Van Oostenrijk won an in trial MTS on POM in FBCCL4, D was jaywalking giving them PC, said cops. Jaywalking requires a traffic control devic and there is not one, said Andrew. The court agreed, Learn the lesson — read those statutes and inv Stan Schneider got a new trial granted in a death penalty « fl habeas in SDTX. Stan thanks Randy Sehaffer for his outstanding work on the state habes HCDAO thou worth 50 years pre-trial. HCPDO’s Scott Pope and Bukki Oyewuwo convinced a DC228 jury it ‘was criminally negligent homicide worthy of 2 years probation. Not all wins are NG, and punishment evidence mat Joseph Ruiz walked D, facing mandatory deportation, on AFV in CCCL4. Cycle sister Marjorie Muniz-Monroy pedaled up a 10 minute NG in CCCL10 for Thefl. It was trial over $3 worth o} recycled tires. The jury agreed it was not a dirty deed done dirt cheap, JL Carpenter hung the jury on CSA in DC182 despite the court excluding CW's history of false allegations. When told by the visiting judge about the excluded evidence, the jury reported it would have been a quick NG. an Darvishi is on a roll, Sean wrote his own self-defense instruction in an AFV in CCCLI6 instead of using the incorrect jury charge bank instruction. Sean, thanks Mark Bennett for responding to his plea for help. ‘on the listserv. The jury followed the correct law with an, acquittal. Sean followed up with a DWI hung jury and, dismissal in CCL, and a DWI dismissal in MCCL Jeremy DuCote was granted an in trial MTS in FBCCL1 ‘on DWI. Jeremy thanks Armen Merjanian, Ross Torres, and Anthony Segura for promptly responding with case law. Jeremy followed it up with 3 years deferred on ICAC in DC268 in a contested sentencing hearing. ‘The CCA ruled unanimously that Joseph R. Willie II is right - the State cannot appeal the granting of shock probation after a mandate issued from COA13. Joseph thanks Todd DuPont for his support. D is now finally home with his family. Cordt Akers got the NG in C The State's offer was 16 years pre-trial on two Intox ‘Manslaughters. Jordan Lewis and Daniel Lazarine took it to trial in DC183 and got 2 years TDC and five ars probation, ars pre-trial on murder. Emily Detoto and Paul Morgan got 20 years from the jury in DC179. Paul talked about D being a Vietnam Vet with PTSD in opening, State successfully excluded the ‘evidence, and then bashed Emily and Paul in closing for not offering any such evidence. Jonathan Zendeh Del and Hunter Simmons heard @ 20 minute NG in GCCL2 on PCS. The ADA knew D had a prescription from a previous trial but insisted on a tial anyway. If you think pre-trial investigation is worthless until there is an indictment, you might want to talk to Danny Easterling. Danny investigated a capital murder and presented his findings in DC179, The State dismissed ‘without presenting the case to the grand jury jeste Blackburn and Steve Jackson got probation for mentally ill D charged with online solicitation of a minor in MoCo, despite a quick finding of guilt, The State only offered time, and lots of it Jobn Stephenson and Brad Loper heard the 2 sweetest, n the courthouse 4 times following a media ss case in CCCL2. The incident took place at Joel Osteen’s Lakewood Church, CW is a vindictive mother who thought no one would question her story of AFV in CCCL9. Joaquin Jiminez. had lots of questions and the jury came back with NG in, 25 minutes. ‘Tyler Flood continues to roll, The HCCLA President heard the 2 word verdiet in FBCCL2 on a DWI, even though D dropped about 50 F bombs on the trooper. Tyler next teamed up with Katie Ferrell to get another DWI NG in CCCL1S. Then Tyler hung the jury 10-2 to acquit ina DWI 4th in DC177, Ken Goode got a reversal from COA14 on egregious harm ina jury charge for CSA. Take the time to read these jury charges. The county charge bank is often wrong and there are opportunities to preserve error. Cynthia Henley and Wade Smith teamed up to get a NG on AFV in CCCL3. No vegetables were harmed in their closing argument. D tumed down a PTI and wanted a jury to decide the case. ‘The jury did not. Gary Miller scored an in trial dismissal afler crossing, and trashing, the State's witnesses, David Ryan got the jury in the box, but the State dropped the harassment case in BCCLI. ‘com 7) foros CGinning GHarriors David Ryan got the jury in the box, but the State dropped the harassment case in BCCLI Not all victories are NG. Kay Stone got 5 years probation on ICAC in DC21. The jury blasted the State afterward, feeling a message was sent about police entrapment, Jeremy DuCote and Lee Cox suppressed D's statement in a capital murder in DC268. A mistrial, a hung jury, and 42 month odyssey finally ended in dismissal for David Subler and D on ASAC in Galveston, The State and County tried to impose an injunction on over 50 people in the Southlawn area, Monique Sparks, ‘Gemayel Haynes, Jen Gaut, Drew Willey, and Brennen Dunn put in untold hours pro bono, and HCCLA filed an amicus to finally obtain a dismissal, Jed Silverman and Trinidad Zamora got a 20 minute NG in CCCL2 on AFV, where D disciplined his CW daughter. The defense was as old as time spare the rod, spoil the child, SCOTUS granted certiorari filed by Pat MeCann on the issue of mental retardation out of DC18S in a death capital, where the trial court recommended relief, and the CCA trashed the findings and recommendation, Jordan Lewis came ready fora dispositive MTS on PCS and DWI in Montgomery County. The State dismissed rather than have a hearing, Steve Shellist won an ugly, week long AFV in CCCL6, after Randall Kallinen was conflicted out by the ethically questionable conduct of CW’s attorney, Everything came in, but the jury gave immigrant D his life back. Amber Spurlock and Tad Nelson got a 20 minute NG in DC212 on theft. D was accused of taking money from a cheerleader booster club, They followed up with DWI NG in 5 and 20 minutes in Galveston @® wesc It took the jury 15 minutes to find David Breston’s client Not Guilty of AFV in CCCLI James Fletcher and Alli Cannon got NG on DWI in CCCLA, It was Allis first voir dire, It took a year, but Jerry Patchen got the 2 word verdict on BWI in CCCLI3. Sam Adamo, Jr. made the Texas Top 10 blogs on the State Bar website for his blog on electronic monitors. Rick Oliver is on a roll. Rick got the 2 word verdict on DWI in CCCLT. Rick then won a MTS on PCS in CCCLIS without calling a witness. Never forget to do your legal research - briefing your MTS often leads to {good results! CW's statements did not match up to the photographs, and Sam Gardner walked out of CCCL2 with a NG in CCCL2 on AFV, \son Luong and Justin Harris teamed up on DWI in CCCLS for a The State saw no reason to preserve evidence in a habitual FPW. Paul Morgan saw it otherwise and convinced DC228 to quash the indictment. Julio Vela used a necessity defense and walked D on AFV in CCCL11. It really is time to stop calling him JV Julio is a starter on any varsity team, Mike Abner heard Not Guilty in a Brazoria County PCS case, constitutional Rights still matter. Tristan LeGrande convinced DC230 to suppress the stop of D, a habitual charged with FPW and Evading. Tristan thanks Phil Gommels and Ricardo Loredo for their assistance. AADW and MAI pending did not stop Sam Adamo from getting both dismissed with the jury in the hall in DC263, Sas TE TTT TUE Se ee a CT Maneatis a eae ad Pee Cet nr Uke} Jason Luong and Steve Aslett teamed up to win an AFV, where CW has a history of acting out and threatened D with selfies of the alleged injuries. Unfortunately for CW, D kept the selfies and Jason was able to show the pictures had been doctored by CW. Work your investigations. Jeremy Axel got a NG on felony theft by digging up records even the Texas Rangers did not gather to show CW’s timeline made no sense. ‘The State thought a drive by murder with a D known, as Hitman was worth 40 years. An inquisitive jury was potentially hung, then handed Mario Madrid the 2 word verdict in DC180. Leigh Love got a dismissal with the jury in the hall on AFY in DC268 Lloyd van Oostenrijk got a Not Guilty in Matagorda County, Seems D sent a text threatening to kill CW, but Lloyd convinced the jury heated arguments over technology are not harassment, The State thought capital murder was worth LWOP. Brad Loper and Bob Loper disagreed, After a weeklong, trial, the jury in DC183 decided it was a state jail felony theft. Bob followed it up with 10 years on capital murder the jury determined was a felony murder in capital impact court. JoAnne Musick and John Denholm got the NG in DCL79 on APO. D and W are both convicted felons, but the jury found them more credible than the cop. In her 2nd first chair trial, Amalia Beckner got the sweetest 2 words in the courthouse on AFV in CCCL4, Anthony Segura got the cop to admit doubts about D’ intoxication on DWI, and the jury agreed, in FBCCLS. A.unanimous CCA granted D habeas relief on IAC. Josh Shaffer and Brian Wice had compelling facts and trial counsel owned his mistake Lonnie Knowles got the 2 word verdict on DWI in cccLs, Some wins are immensely satisfying, just ask Crai Hughes. Craig won a reversal of D’s 35 year senten in the Sth Circuit, and the feds dismissed the case rather than face retrial Jed Silverman beat the certification of D for SAC in Jefferson County. The outcry was years delayed and D is now an adult. Jed was able to show the court D had to be charged with ASAC in order to certify D for conduct, when D was 14. Jed thanks Carolyn Atkinson for guiding hhim through juvenile certifications, Lear the lesson - do not be afraid to ask for help! D was a habitual charged with evading. Jeannie Dickey hhung the jury and D took time served. Jeannie followed up with another habitual evading. The jury hung for most of deliberations and finally came up with NG, Lori Gooch got a DV on criminal trespass, In her first felony trial, Tiffany Hil evading in DC338, Ricardo Gonzalez got the NG on SAC in project court. Armen Merjinian and Wade Smith paired to get a NG on theft in CCCLI4. The State sprung new evidence on ‘Armen the morning of tial and a continuance was denied. Itultimately did not matter. hhung the jury on 5 times the jury said Not Guilty on Intox Manslaughter (x4) and Intox Assault in DC182, as Mark Thiessen gave an immigrant and his family a chance at a life in America. Mark thanks every friendly face who popped in during trial. A horrible accident is not extended to a tragic, wrongful conviction, Mark followed up with NG in CCCL8 on a.18 DWI. Vivian King got an in trial dismissal on AFV in CCL. CW's teeth were knocked out racacamen, () SEPTEMBER 8-9, 2016 AM FING i SHERATON | Coe erocnsonsoonion A i BY THE GALLERIAJHEATHER BARBIERI (coi Ley FREEWAY ae [MA BENNETT < DALLAS, TEXAS | TOTA ETHICS: 1.0 é HYPNOSIS AND MAGIC. IN JURY SELECTION JURY SELECTION PITFALLS . IMPROV IN . JURY SELECTION * THE COLORADO METHOD. al MAT x ‘ Aust TCDLA i: 6808 Hist Meanow Di 5 a ww Ps: 542.409.9107 Fox Texas Tama 3 Daa Dae aera WSS a Pee Ina day where our judiciary thinks they are part of the home team, prosecution and law enforcement, we are the ones who stand to remind them governments can be overthrown. Governments are instituted ‘among men and derive their powers from the consent of the governed. It is not government who decides right or wrong. Itis the people, And whenever government becomes destructive, itis the right of the people to alter or abolish it. We are fortunate to have started this great tradition which has now spread across Texas and is gaining national and even international momentum. Many thanks to Robert Fickman for leading the statewide effort and securing readings in each and every of Texas’ 254 counties TOP SUCCESS BLOG POSTS TEXAS BAR Today § TEXAS BAR Beefs Siminaldetense tawyors ton ot ase FEASIBLE Dour Sarowine ECLA AND TCDLAIN “THE NEWS ACROSS: “THE STATE BAR Rie areas ae eA ee Le J TCDLA HAUL OF FAME Lawtes EDMALETT : | TCDLA LAWYER OF THE YEAR BRIAN WCE [SMAADAMO, IE AVES 8 pe oF THE FUTURE : SN HS LANYER NRTA 4 = REASONAPLE DOUBT POST oa DID YOU KNOW Laszk ‘WHECH WAS P3CKED UP PY ; a (CAN IMPACT YOUR “_ coo DESERSEICNSEY “Nocay —GINRLES 2NALA BXOLAINS EXAS BAR y a Debt to Society? HOCLA Bariquict Family owned and operated since 1971 Bilingual staff with over 100 years of experience 2 #74346 *% We advocate a paid in full attorney is a defendant's best defense “+ Non-Arrest Bonds - we accompany your client to the jail or from the courtroom 609 Houston Avenue 713.227.3400 Houston, Texas 77007 Z Interlock An Automobile Ignition Interlock Provider ax John Burns David Girard 609 Houston Avenue 713.223.4424 Houston, Texas 77007 People accept plea bargains for a plethora of reasons, but a common one is that it provides that person with some control and certainty over the outcome. Trials can be unpredictable, and there are no guarantees when you hand a case over to six or twelve strangers. It is this uncertainty and the fear that it invokes which prosecutors use to their advantage to leverage pleas. However, when risk is diminished and fear is reduced, the prosecutor loses their Ieverage. Probably the most common cases to be tried, at least in Harris County, are DWIs. Why? Because most times, our clients have little, if anything, to lose by going to trial Prosecutors have little leverage at their disposal with BY WADE SMITH RELIEVING THE PRESSURE HOW THE NEW NONDISCLOSURE STATUTE, CHANGES OUR ADVICE TO CLIENTS i regard to these cases. Pretrial interventions are limited to the mildest of circumstances, and deferred adjudications aren't even an option, For most clients, the decision is either plea to a probation, or time served with a fine, both ‘of which guarantees a conviction, or go to trial where there is at least a chance of winning and walking away free and clear, But if we lose, clients are usually not much worse off than they would have been accepting the plea. Sure, sometimes people get “taxed” with a few days of jail time as a condition or something of that nature, but that is a small risk, and for many clients charged with DWI it’s, worth it to make the State earn the conviction and prove the case to a jury. ‘coco CONTINUED RELIEVING THE PRESSURE ‘The new nondisclosure statute now gives a similar effect for ‘other types of misdemeanor cases, The motivation for someone 10 accept a deferred adjudication offer typically involves two primary reasons: 1) avoiding jail, and 2) avoiding a conviction fon their record. The main draw to a deferred is that it ean result in the case being dismissed and nondisclosed later, whieh allows the client to deny ever having been arrested on employment and hhowsing applications, among other things. Prosecutors know this, so they pit the uncertainty of trial and the fear of what a criminal conviction will do to your client's future against the certainty of being able to eventually have the charges dismissed and get a nondisclosure in order to put the pressure on your client to plea instead of exercising thei right {oa trial, So your client is put between a rock and # hard place, especially itheir ease istry one that should be tried. Just think how many times in the past a client has accepted a deferred despite having a great tial cage. This was because a deferred adjudication was the only avenue by which a person could eventually get 8 nondisclosure; atleast it used tobe, aerey This dilemma is now gone for some ceases, Now, our clients can reject a dolerted offer and go to tral; make the State work and prove their case; mount a defense and fight back instead of surrendering. We can do this with certain cases now, because even if you lose and are convicted at trial, the conviction for can be nondisclosed under the new statute! Take note: I stated multiple times, some” or “certain” cases, That is because this strategy will not be applicable to every case. Even though the new statute has been broadened, it has a lot of restrictions and exclusions. And thanks to out legislators, che statute is written in a manner that can only be described fas cumbersome, and maybe even that is a polite and mild description. Nonetheless, we are lawyers. Is our job to read, dissect, and know the law. As Troy McKinney. famous says, “it's amazing what you Team when you read the law. So it's extremely important that we read, dissect, and know this statute so that we can properly and accurately advise our clients. And it will take an analysis of each individual case to determine its eligibility under the new statue, at least until we hhave dealt with it enough that it becomes second nature to us. @ wesc CLIENTS CAN STATE WORK AND Toil eZ Nola iene) NT AND FIGHT BACK. A atl Piano ‘The nondisclosure statute can be found in the Government Code, (Chapter 411.071 through 411.0775, and its worth ito read i ints entirety, a it will not only change our advice to clients pretal, but itil also change what you tll potential clients who call seeking a nondisclosure of an ald ease, However, the two particular sections ‘that apply tothe discussion ofthis artiele are 411.073 and 411.0735, ‘which are new and permit nondisclosures after a conviction in ‘which there was probation (411.073), and also after convictions in ‘which there was a jail sentence (411.0735). The new nondisclosure statute has already boen the topic of recent CLEs hosted by IICCLA, and “cheat sheet” materials were provided. The intent ofthis article isnot to rehash those CLEs, but rather to give a practical application ofthe effects that it has on us as lawyers and our clients. However, forthe sake of context, understandin and thoroughness a brief breakdown of the aforementioned sections of the nondisclosure statute follows: Cele a LL) ea Nl] TRIAL; MAKE THE [As a threshold, these sections only apply to cases in which all of the foffense was committed on or after September I, 2015. So unfortunately there is no’ retroactivity, and the arbitrariness of that exclusion brings about a tirade for another day. However, this should be applicable for most of your new cases coming in, though there are probably a few ceases here and there that were late getting filed, or are just still pending. Secondly, these two sections are only applicable to misdemeanor cases ~ no felonies (felonies ean sil be nondisclosed, but there must still be a deferred adjudication, and i covered in one ofthe other sections. of the statute) Starting with convictions of misdemeanors resulting in probation, the following offenses are excluded and cannot be nondisclosed: 106.041 Ale. and Bev. Code (Driving a watercraft under the influence by a minor) 49.04 Pen. Code (DWD, 49.05 Pen. Code (FWD), 49.06 Pen. Code (BWI) 49.065 Pen. Code (Assembling an amusement ride while intoxicated) 71 Pea. Code (Anything under organized crime) Additionally, ial time isa condition of the probation itis excluded under this section, but it is not a complete bar to nondisclosure. It simply gets kicked to the next subseetion dealing with confinement, Most offenses resulting in probation will be immediately eligible after completion of the probation, however have a two-year waiting period: Kidnapping, unlawful restraint, smuggling of pers Sexual offenses Assaultive offenses Offenses against the family Disorderly Conduct and related offenses Public Indecency Weapons For convictions resulting in confinement, the same offenses listed above are excluded (106.041 Ale, and Bev. Code, and 49.04 - 49,065 and 71 ofthe Penal Code). However, nothing is immediately eligible; there is @ two-year waiting period from the date of completion ofthe sentence, A prime example of how this would apply is a client who we have all most likely had before: one with no criminal history charged with theft of non-retail property (ie. employ thefts of personal propery, etc). This client would not be eligible for the frst chance program or pretrial diversion in Harris County. The prosecutor would likely offer a defered, knowing thatthe ability to get a nondisclosure atthe end will entice the client t plead to keep a theft conviction off their record, However, we have to advise this client that he ean sill get a nondisclosure even if he loses at trial, which allows this client to elect to go to tal knowing that he has a safety net, thereby relieving the pressure to plead, This is a great change; just think how ‘many clients have plead to a deferred despite having a great rial case because they were afraid of a possible conviction at wal The decision whether or not to go to tral isan extremely important, and many times life-altering decision that we have to help our clients make. We have to give them all of the information so that hey can make the best and most informed decision, Fortunately, for some, this new statute will make that decision a lite bit easier by providing a safety net and relieving the pressure. As is often said, “Good things happen when you set cases for tial." Hopefully, with this new statute, more cases will be set fr trial and more good ‘things will happen EZ th Re tiy Owned & Operated ORDERED TODAY INSTALLED TODAY Ce a ras ES OT Cled Nadu kay Alcohol Saris Call Shannon or Shaun ACT ULL Ca) 713.228.3969 le Ra Lal eae by Pat McCann It is hard to admit a mistake, The most difficult ‘words on the planet can often be these three - "I screwed up". We want to be perfect, though that is given only to higher powers than ourselves. We ‘want to serve our clients well, though sometimes ‘we fall short, Let me emphasize this point - we all fall short. The best lawyers in the land have made mistakes, and if you do not believe it is true, just ask them. Yet unlike our friends and colleagues on the bench, when we on the defense side make a mistake, there are calls for us to be removed from appointment lists or taken off the capital case ‘When our judges screw up, they are simply reversed, and no one cares, When our colleagues on the prosecution make mistakes, again, the case is reversed, though mo one ever appears 10 get fired. When a higher court reverses a lower court, of appeals, which happens far more often than they care to admit, no judge is removed for re-education camp. ‘Why, then, is there so much perceived shame and misery if one of us makes mistakes? I have certainly made more than my share of them, some enshrined in published law, Yet at the end of the day, if by admitting the mistake we can correct a wrong done to our client, isn't that what is important? I am not being naive here. I know people value their professional reputation, Yet I have watched some of the finest lawyers I know give affidavits that simply admitted a mistake on their part that harmed a client, and move on. The sky did not fall, the heavens did not rain thunder, and most importantly, the client was helped What could be more ethical and noble? We live ina time when voices on many sides seek to put blame elsewhere. Our churches, governments, and banks all say "Mistakes were made" instead of "I made a mistake, and Tam sorry. The simple power of truth is incredibly persuasive, It combines the power of both an apology and a sincere attempt to right the wrong, We see too little of that these days in all of our public servants, and in precious few of our private heroes. We worry about bar complaints and civil lawsuits, yet no one at the bar is ever going to viciously pursue the honest lawyer who helped protect their client from their own failures. What Jury will hold us accountable at a civil trial for an admitted mistake that was honestly made, and got, our client a new trial? (The law actually protects us from these situaitons in any case, but I speak here of a better way to view these matters, not our own legal hides. That is actually the highest form of effective ethical advocacy. No one could ask more from a human lawyer To that point, we are all far too human not to acknowledge our misdeeds. To the ones that result, from avarice, there is no good answer. To the ones. that result from too many cases, too many deadlines, too few hous in the library or online researching, too few attempts to speak to a witness, well, those are easily and readily corrected. If in fact we never acknowledge a mistake, how then do we learn? I am calling here for nothing less than a re-examination of the right to effective counsel from our side, and our side alone. We do not need, the bench's permission or the agreement of our state friends; we simply need to unashamedly tell the truth when we are confronted with something that was below the par for performance and that harmed our client, That is the test, We should look at these circumstances as an opportunity to learn, to grow, and to be an example to our fellow attorneys and to our families. That is the best way to view these matters, not as a moment to go running to the State for protection from our own folly, but as a final chance to help our elient, so long as the mistake is truthfully re-counted and actually was not a choice made with full Knowledge of the risks. We are paid, often woefully underpaid, to save our clients from their ‘own folly - shouldn't they be safe from ours? Tam calling for a bar re-examination of complaints of ineffective assistance, one that encourages honest reflection and self-reporting. | am speaking of a change in culture, such that some day in the future, if [ looked back and catch an error, I can go to the weekly "Bar mistakes conference, express my view that I messed up, and. have a group of peers cithcr tell me why I did not, oor agree that I did, and then can report this via a writ affidavit or other way to my client, take additional training if needed, and move on, knowing I helped my client and learned from this. After all, our goal is to encourage a better bar and Justice for our clients. Killing the advocate does no one any good; it removes a trainable lawyer from the pool of good advocates and removes any incentive for honesty. I is time we changed this view of ineffective assistance, and spread that view to our colleagues across the Texas landscape. squly Inydjey Jo uunjoo Buyuun © bb AS LONG AS WE ARE FIGHTING, WE ARE WINNING. ROBB FICKMAN N AR Mr. Fickman’s expression is attractive to many in the defense bar, What is implied is that the fight is itself the victory, and that defeat is not possible so long as the struggle is carried on. I believe Fickman’s idea lends itself to several distinctly different interpretations in the context of the practice of criminal defense advocacy. ‘That being the case, itis susceptible to serious analysis. But before considering possibilities, it might benefit us to consider the nature of prolonged struggle What is a prolonged conflict? The Vietmam War and the recent Iraq war come to mind, It is true that they seemed to drag on forever, by the standards of the ‘World Wars or the US Civil War. These latter conilicts ‘were high intensity “conventional” wars powered by industrial combatants. They were short in duration (if extraordinarily sanguinary) and ended in unambiguous victory and defeat, To a nation accustomed to considering its wats in these terms, it would seem that Vietnam and Iraq were prolonged struggles, even unnecessarily so, But this is an illusion. Measured against history, all these ‘wars were instantaneous, What about the truly epochal conflicts? In 711 Spain was invaded by Muslims. In a decade or so most of the peninsula was occupied. In response, the Spanish fought 4 Reconquista for eight hundred years. The battle ebbed ‘and flowed but never abated. Only in 1492 were the last ‘of the Muslims seen off. Reconquista SPANISH RECONQUEST, 722-1492 Yet history records an even longer war. Around 100 B.C. China invaded Vietnam, Vietnam was occupied but was never defeated and around A.D. 900, expelled the Chinese. Both of these wars were primarily what would be called “guerrilla” conflicts fought against superior occupying forces. There was low-intensity struggle punctuated by sharper battle; there was diplomatic maneuvering and even temporary mutual accommodation. But the Spanish and the Vietnamese fought, and as long as they fought, they were sovereign nations-in-being, Given this background, what could Fickman mean? Several possibilities arise, First, the idea of winning as long as the fight goes on might be applied to a particular case or client, The hypothesis might be that for as long as the defense lawyer is still litigating, has not waved the white flag in the form of a guilty plea, and there has not been a final conviction, he is still in the fight and is stil winning, or at least has not yet lost.' Simply put, prolongation via prolonged struggle is an intermediate goal to be achieved. It would seem that measurable rewards would acerue to those clients whose lawyers are willing and able to prolong litigation for the sake of delay. Itis true that prolongation of a defense can dilute the strength of the govemment’s case: witnesses die, move away, lose interest. The prosecutor, likely cenervated by the prospect of a longer fight, may be more inclined towards concluding a peace on favorable terms. But the same can be just as true for the defense, Sun Tzu, normally quick to contrast attack and defense, make no such distinction when he warns that When doing battle, seek a quick victory. A long battle will blunt weapons and diminish ferocity.2 Critical defense witnesses can be lost, Their memories can fade. The law can change during the pendency of a long case, to the client's detriment.’ And time can ‘wear on our clients as well. Iti all too easy for us to forget that a criminal accusation is a time of troubles for the one accused. CONTINUED ” WAR WITHOULEND If a defendant is unable to make bail, a lengthy pretrial incarceration can result in financial ruin, disintegration, of personal relationships, and the general demoralization that can flow from loss of liberty. Even if the client is on bail, having to come to court repeatedly, and obey pretrial release conditions, can interfere with work or school, So while it is true that as long as a criminal case is, pending, the client has not been convicted, it is by no ‘means certain that delay in the disposition of a case invariably benefits the client. ‘Or maybe Fickman means that there is a struggle larger than any particular case or client. What immediately ‘comes to mind are the lawyers that use criminal litigation to achieve some transcending goal: anti-death-penalty lawyers will use discrete capital trials and post-conviction litigations to achieve the larger goal of eradicating the death penalty, or at least constricting its application. Criminal lawyers who represent clients engaged in ongoing extra-legal business enterprises (e.g. “day spas”) may set cases for trial to challenge police practices or prosecutors” policies. For these lawyers, clients come and go; the loss of any one case is only a casualty in a longer war, Victory is defined as the achievement of some previously identified notional political or social change. This is not necessarily prohibited conduct. The rules of ethics seem to allow for advocacy of interests in addition to those of the individual client: ‘A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice, Lawyers, as ‘guardians of the law, play a vital role in the preservation of society... Yertainly causes such as civil rights benefited from strategic management of individual criminal trials, The risk here is that clients could be relegated to the role of pawns in a larger game. Cases might be tried that should not be tried, because a trial —won or lost ~ might, gain another step towards ultimate victory @ wens Conversely, a client might be encouraged to plead guilty because his trial might result in “bad law” inimical to the accomplishment of the larger goal. Pawns, after all, exist to be expended as necessary, Then there are the personal crusades: The lawyer as Don Quijote. The real battle is his personal struggle. The war lasts for the entirety of his professional lifetime, As long as he is fighting, he can hold his head up. In this world-view, the practice of law is @ jihad against the courthouse; the lawyer is an outnumbered, outgunned soldier on a lonely battlefield and his clients” cases are ammunition to be expended to keep the existential struggle alive. This view is romantic, chivalric, Manichean. We all have seen the type: the defense lawyer who has been anointed to expose and kill corruption, hypocrisy and inequality in the criminal justice system.’ I do not doubt, that history has been made by such personalities, but in ‘our profession, overweening self-absorption tends to suck all available mental resources into the lawyer's personal struggle and might leave little imagination, objectivity and cenergy left over to help individual clients And yet, notwithstanding all this, it’s hard to escape the feeling that Fickman has something important to say Looking at the inverse, itis true that if we quit fighting, we have no chance of winning. Maybe it’s enough that wwe understand that, 1 TIL leave for another day whether Fickman’s statement expresses a tautology: if fighting is winning, then “as long as we are fighting, we are winning.” 2 Are of War, Chapter 2 (6. S00 B.C) (Trans. Huynh) “ Mao Zedong, “On Protracted War,” Seiected Works of Mao Foreign Press (1967), 3 See Fahrni y. State, 473 S.W.34 486 (Tex App-Texarkane 2015, pot re). Tee-Tang. Language 4 Preamble tothe Texas Disciplinary Rules of Professional Conduct. His twin--opposite i the prosecutor, usually (but not exclusively) young, who thinks he's going to “cleanup the town” We have all been there - one prepares for the guilt phase of a trial and gets an unexpectedly quick guilty finding. Now the judge wants to proceed directly into punishment. As the lawyer, you have the primary responsibility for preparing to present a competent case for fair sentencing. Under Milburn v. State, 15 SW 3d 267 = Tex: Court of Appeals [14th] Houston, (2000), counsel may be held ineffective for failing to investigate and prepare for punishment. As the case says - It is punishment where the advocate makes his or her money and earns their pay. So, let me be clear, 1 ‘am not advocating that one waits until one gets the guilty verdict to prepare punishment. In a perfect world, you would have prepared and investigated punishment first, not last, or even at the last minute, The moment one gets hired on a case or appointed, one should work backwards, from preparing s simple notice of appeal, writing the jury charges one expects in punishment, and beginning to investigate the client's background. This is not because you wish to hug them and nurture them; it is because failing to prepare for the fact that 95% of your cases will arrive at a plea, a punishment hearing before a judge, a punishment decision by a jury, or a re-sentencing by a court is a miserable abdication of your responsibilities, Think of how your spouse would react if you failed to pay for homeowner's Houston, land of biblical weather, floods, storms, tornados, wind and hail, Now figure how much they ‘would be thrilled that your sunny view of life prevented you from taking care of the disasters on the back end, to fail to prepare for punishment and sentencing is not something of which to be proud; it is a sign of incompetence for which one should go into a dark corner and beat oneself senseless. That said, it will happen at times. If one needs a guide as to what to do when one is caught flatfooted at punishment, without even a mother's tears to move a jury or a judge, well, read below. By the way, this guide is given from experience, not theory. [Note: get mom a bus pass or cab fare prior to the jury deliberating so she can get there quickly!) coco @) the quick and dirty guide to preparing for punishment BREATHE. "All things are possible once you slow your mind and stop the panic’. ‘Gunnery Sorgeant Rick Bowing, USMC Punt. Ifyou are going before the judge, exercise your statutory right to a PSI being prepared. This will help you get your ducks in a row and give you time while cheating by copying the probation department's work. SLLLLLOOCOOWWWW. Ask for a short continuance because your witnesses are not available, The fact that this is due to your own idiocy is not something that Is Important right then. RIDE THE BICYCLE AND JAB. The State still gets to go first, so scramble with every family ‘member there or whom you can reach via text or call to get people down to the courthouse to testify, and cross thelr witnesses to your advantage if possible. Ask for MMA info on their punishment witnesses, something they often forget about providing. JUSTIN CASE, If you cannot punt or push this off because it is In front of a jury and the judge denies your continuance, plead “not true” to the enhancement. [Do not ever stipulate to these, by the way. What does that gain you or your client? You might knock one out, and you at least give him a shot fon appeal or MNT if they do not hhave sufficient proof]. This means that they have to get actual proof and do their job on the State side, Oh, well @ wens REQUEST. Ask for a TRE 702-705 hearing ‘outside the presence of the Jury for the inevitable fingerprint guy for any priors and attack thelr lack of training or objective standards under Kelly v. State, 824 SW 2d 568 - (Tex. Crim. App. - 1992) or Nenno ¥. State, 970 SW 2d 549, (Tex Ceim. App. 1998). You can et those two on Fastcase or on Google scholar if you have your smarty pants phone handy. You know you all do, so use them for something besides selfies for a change. KEEP TRYING TO PUNT. Renew your continuance. Call the family for witnesses or get your process server to go serve any past employers or family or friends your guy can think about. Also, if your guy or gal Is eligible, call the Court's CLO or someone more friendly from the probation department, qualify them and have them talk about probation, the limitations on jobs and residences that the probationers. experience, the requirements for drug testing, fees, expenses, ete. ‘STAND UP. Object to any and all priors they attempt to Introduce and any bad acts. Ask for hearings outside the presence of the jury on each and every one of them under CCP Article 37.07. Object on every constitutional basis for state and federal constitutions [right to due course of law, due process, confrontation, fair trial, ete.) not Just your 404b lack of notice. GO MENTAL. If you have not asked for an ‘ex parte psych eval. for your ‘guy, land shame on you for not doing so by now, as the odds highly favor him or her having either @ mental illness or head injury/developmental disorder] consider doing so now. An affidavit from a family member or you handwritten with a fasttyped wireless. printed or handwritten motion will provide sufficient facts. Or find one of the simple re-prepared forms available for ‘competency and sanity present in most Harris County courts and uuse/modity them. If your client or his family has suddenly revealed Information that previously they had not, especially because you had not asked, that is not unusual. Most people are embarrassed ‘and do not want to reveal that to strangers, which is what you are if they are meeting you at punishment!. The reality of the ‘conviction can spur admissions that they kept hidden. So fight on the Issue of mental health if you ‘ean, and ask for the continuance 0 that you do not get to be the ‘example of a writ on IAC. Make It the judge's problem. ASK. ‘Ask for jury charges on the sufficiency of the proof of the ‘enhancements, on voluntary intoxication [it actually IS available at punishment, just read It} or anything else you think should be a factor, including cultural issues, immigration consequences, other collateral consequences such as loss of diving license, ete. If you cannot dazzle them with is the time to simply ask for whatever you believe is needed. So, to review: BREATHE. PUNT. SSSSLLLOOOWWW. Keep scrambling to get in your own witnesses to explain how your guy/gal | Works and is responsible 2 Had favorite teachers and once showed promise in something 3 Needs drug treatment vice prison 4 Is the sole source of support for his abandoned mom and little sister 5 Had mental illness or was slow in school, how they struggled with that and how they need help for that. Last, if your guy is not going to threaten anyone from witness stand, and can actually follow your directions, consider putting him or her on. You are already convicted, and if your client is slow, it will show if you are careful. If your client has some mental health problems, embrace them, do not shy away from them. Make her or him human to the jury; have them express remorse if this was not @ cease where the evidence indicates proof problems. Last reminders: This stuff should have been done ‘months ago, when you first set the case for trial Never assume your client is in their right mind; the odds are exactly the other way. Prove yourself ‘wrong, if you think so, and have them evaluated. If you do not have funds, ask for them, whether from the client or the court. Make this the judge's problem, rot yours. Do you know if your client has an alcohol, problem or a drug dependency or a mental illness or an immigration issue? Never answer "I do not think so” - know! Good luck! BURNS INSURANCE SOLUTIONS family owned and operated ORDER TODAY. INSURED TODAY. Liz and John Burns look forward helping you with your insurance needs, Liz has been a lensed agent for over 20 ‘years, providing her clients with superior service and products NO LLING SR22 CERTI $R22 CERTIFICATES SENT TO YOU, YOUR ATTORNEY, & THE STATE OF TEXAS 713 - 224 - SR22 INFO@BURNSSR22.COM Less is More Simplicity & Reasonable Doubt Dead I recently had the pleasure of listening to one of HCCLA’s great trial lawyers, Tyrone Moneriffe, speak about the importance of storytelling when presenting our clients” cases, He suggests emulating some of the literary greats in order to get jurors to connect with our clients on a basic human, «emotional level. ‘One of the powerful examples he shared was the story of how Emest Hemingway ‘won a wager against his writer friends who didn’tbelieve he could tell an entire story in six words or less, He won the bet when he crafted this poignant, tragic tale: For sale: baby shoes, never worn.” Hemingway, using brevity, simplicity, and creativity, was able to tell a powerful story that cut to the core of human experience using a mere six words, Other examples of extreme brevity being used to powerful «effect abound throughout history. What we all know as the Gettysburg Address given by Abraham Lincoln was actually @ follow up to the “main” speaker at the Gettysburg battlefield, Edward Everett, who spoke for over two hours, Who is Edward Everett? No ‘one remembers his soaring, selfindulgent ‘oratory, Lincoln's remarks, on the other hand, coming in at 271 words, 10 sentences, and lasting litle more than 2 minutes, ‘became iconic, Another historic speech that wwe reference constantly is MLK’s “I Have 1 Dream” that was 1667 words and only lasted 16 minutes. Less-is-more minimalism applies not only to writing, aesthetics, and speeches, but to jury trials Powerful Brevity: The "No Questions” Cross-Examination ‘What I'm going to share about a lessis-more strategy I employed in my last couple of trials is certainly not something I would suggest doing often, if rarely. In these trials, fone an assault involving a family member and the other @ breath test DWI, when it ‘was my tum to cross-examine the state's expert witnesses, I believed they had not hnurt us on direct and that there was ample record evidence for me to make a compelling argument in closing. In both tials, following the experts direct examination, I confidently stood up and said, “We have no questions for this witness, your honor.” All the while, 1 was panicking inside, wondering if my clients would have ineffective assistance of ‘counsel claims in the event of guilty verdicts. Fortunately, that discussion is moot, because both clients were acquitted, ‘The first case involved an alleged assault ‘ofa family member. My client was charged with hitting his wife during an argument about child rearing responsibilities and money issues. His wife was attempting to discipline their son, using physical force, which prompted my client to get involved in a three-way tussle. Our defense was based on defense of another person, and ‘our star witness was none other than the complainant, The prosecution did not even bother to call the “vietim” to the stand, but instead tried to build a case based on the 911 call, photos, officer testimony, and an ‘expert on the cycle of violence and battered ‘women’s syndrome CONTINUED Less is More Simplicity & Reasonable Doubt ‘The expert spoke in generalities and never ‘opined as to whether the complainant in this cease was suffering from battered women’s syndrome, but the implication was certainly there. According to her direct testimony, she hhad only met with the complainant for ten minutes when she had come in to get case worked, Knowing that I would be calling the ‘complainant and that the jury would get to spend a lot more than ten minutes getting to mow her, I opted to not cross-examine their cexpert. I was the one letting the jury get to Aanow her and her family, not the state. I was the one getting them closer to the truth, 1 believe this minimalist approach worked for several reasons. First, it highlighted for the jury how little weight I believed her testimony should camry. After all, if she hhad damaged my case, wouldn't I want to tty to eviscerate her on cross-examination? Second, I believe the jury was able to put a lot of their focus on the testimony of the complainant, By de-cluttering the information presented to the jury, I believe the complainant's testimony was that much ‘mote memorable. Again, I would not suggest this approach for most trials, Heading into trial, fully anticipated cross-examining this expert, but more offen than not, how you envision the trial going and what actually happens are two different things. If you already have the evidence in the record that you need to make the closing argument you ‘want to make, why even give their expert the ‘opportunity to hurt you? The expert can’t try to voluntecr information, distort evidence, or act as an advocate forthe state if you silence them prematurely. ‘Trust in your ability to make the argument and in the jury's ability to follow the law. we ere My very next trial was a DWI with a breath testof.104 taken an hour and ahalfafter the client's stop and last drink of alcohol. This was tried in a court where the judge does 4 great job explaining to the jury that the state must prove a BAC of .08 or higher at the time of driving, and even suggested that the state would present expert testimony about retrograde extrapolation. At one point in voir dire, the state also mentioned they ‘would give the jury expert testimony on that concept. Once the state got the breath test record admitted in evidence, they passed the witness without discussing retrograde extrapolation, much less attempting to calculate the client's BAC at the time of driving. My response - “We have no questions, your honor.” As lawyers we spend countless hours in CLEs, reading treatises and transcripts, and watching trials to prepare for cross-examination, especially cross-examination of expert witnesses, Effective cross-examination when it called for is one of the most powerful weapons in our arsenal, But just as we have the right to cross-examine, we also have the right to waive it if we believe it to be in our client's best interests under the circumstances. Most of us love the sound of ‘our voices, but sometimes we need to know when to shut up. If Emest Hemingway can write a six-word novel, we too can tell our clients’ stories using fewer words, Remove the white noise from the trial, the unnecessary, unproductive questions, and let simplicity and brevity shine a bright light on the truth ~ the state failed to prove its case beyond a reasonable doubt client is NOT GUILTY. Dy co! 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