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2018 VOLUME 2
2018
VOLUME 2

YOUR

CLIENT

YOUR CLIENT Learn more starting on page 25

Learn more starting on page 25

CLE EVENTS

WINNING WARRIORS SEMINAR

OCT 19

DONALD DAVIS SEMINAR

NOV 8

WINNING WARRIORS SEMINAR OCT 19 DONALD DAVIS SEMINAR NOV 8 ANY QUESTIONS? Visit the calendar at

ANY QUESTIONS?

Visit the calendar at www.hccla.org

NOV 8 ANY QUESTIONS? Visit the calendar at www.hccla.org WHAT’S INSIDE 2018, VOLUME 2 4 12
NOV 8 ANY QUESTIONS? Visit the calendar at www.hccla.org WHAT’S INSIDE 2018, VOLUME 2 4 12
NOV 8 ANY QUESTIONS? Visit the calendar at www.hccla.org WHAT’S INSIDE 2018, VOLUME 2 4 12
NOV 8 ANY QUESTIONS? Visit the calendar at www.hccla.org WHAT’S INSIDE 2018, VOLUME 2 4 12
NOV 8 ANY QUESTIONS? Visit the calendar at www.hccla.org WHAT’S INSIDE 2018, VOLUME 2 4 12

WHAT’S INSIDE 2018, VOLUME 2

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CLE EVENTS 2
CLE EVENTS
2
VOLUME 2 4 12 16 17 21 25 28 32 CLE EVENTS 2 OFFICERS, BOARD OF

OFFICERS, BOARD OF DIRECTORS PAST PRESIDENTS

A WORD FROM YOUR PRESIDENT 5 BY DOUG MURPHY
A WORD FROM YOUR PRESIDENT
5
BY DOUG MURPHY
8 WINNING WARRIORS
8
WINNING WARRIORS
FROM YOUR PRESIDENT 5 BY DOUG MURPHY 8 WINNING WARRIORS CELEBRATING THE ALL-STARS OF THE D

CELEBRATING THE ALL-STARS OF THE

DEFENSE BAR: 48TH ANNUAL BANQUET BY CHRISTINA APPELT

E B A R : 48TH ANNUAL BANQUET BY CHRISTINA APPELT HCCLA NEWS ROUND UP WELCOME

HCCLA NEWS ROUND UP

WELCOME NEW MEMBERS SPECIAL ELECTION ISSUE DETAILS

ROUND UP WELCOME NEW MEMBERS SPECIAL ELECTION ISSUE DETAILS ADDICTION IS AN ILLNESS NOT A CRIME

ADDICTION IS AN ILLNESS

NOT A CRIME BY CHRIS MCKINNEY

ADDICTION IS AN ILLNESS NOT A CRIME BY CHRIS M C KINNEY THE RISKS OF A

THE RISKS OF A COLORADO CANNABIS VACATION

BY D. CHRIS HESSE

THE RISKS OF A COLORADO CANNABIS VACATION BY D. CHRIS HESSE WHY BAD THINGS KEEP HAPPENING

WHY BAD THINGS KEEP HAPPENING TO YOUR CLIENT WITH PTSD

AND HOW TO STOP IT BY PATRICK F. MCCANN

CLIENT WITH PTSD AND HOW TO STOP IT BY PATRICK F. M C CANN SAM HOUSTON

SAM HOUSTON

AND THE SEPARATION OF POWERS BY JOSEPH W. VARELA

HOUSTON AND THE SEPARATION OF POWERS BY JOSEPH W. VARELA THE EXTRAORDINARY MEASURES TAKEN TO COVER

THE EXTRAORDINARY MEASURES

TAKEN TO COVER UP A LIE BY STEPHEN LE BROUQ

THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

4

C. ANTHONY FRILOUX

STUART KINARD

the defender

PUBLISHER

HCCLA

EDITOR

LORI BOTELLO

GEORGE LUQUETTE

MARVIN O. TEAGUE

DICK DEGUERIN

W.B. HOUSE, JR.

past presidents

DAVID R. BIRES

ADS & DISTRIBUTION

ROBERT PELTON

CHRISTINA APPELT

WOODY DENSEN

1971-2018

WILL GRAY

EDWARD A. MALLETT

DESIGN & LAYOUT

BROCHURE BUILDERS BRANDI DELOACH WWW.BROCHUREBUILDERS.COM

CAROLYN GARCIA

JACK B. ZIMMERMANN

CLYDE WILLIAMS

ROBERT PELTON

CANDELARIO ELIZONDO

ALLEN C. ISBELL

DAVID MITCHAM

JIM E. LAVINE

RICK BRASS

2018-2019

Hccla officers & board

E. LAVINE RICK BRASS 2018-2019 Hccla officers & board PRESIDENT DOUG MURPHY EXECUTIVE DIRECTOR CHRISTINA APPELT

PRESIDENT

DOUG MURPHY

EXECUTIVE DIRECTOR CHRISTINA APPELT

PRESIDENT ELECT NEAL DAVIS

BOARD OF DIRECTORS CORDT AKERS

VICE-PRESIDENT MARK R. THIESSEN

JIMMY ARDOIN STACI BIGGAR LORI BOTELLO

SECRETARY

KATE FERRELL JUSTIN C. HARRIS

DAVID RYAN

GEMAYEL HAYNES

TREASURER STEVEN H. HALPERT

JORDAN LEWIS W. TROY MCKINNEY RAND MINTZER

PAST PRESIDENT TUCKER GRAVES

PAUL M. MORGAN TODD OVERSTREET DAMON PARRISH II JED SILVERMAN J. JULIO VELA JOE VINAS SARAH V. WOOD

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

CYNTHIA HENLEY

STANLEY G. SCHNEIDER

WENDELL A. ODOM, JR.

ROBERT J. FICKMAN

PATRICK F. MCCANN

MARK BENNETT

JOANNE MUSICK

NICOLE DEBORDE

EARL D. MUSICK

CHRISTOPHER L. TRITICO

T.B. TODD DUPONT, II

CARMEN M. ROE

JOANNE MUSICK

TYLER FLOOD

T.B. TODD DUPONT, II CARMEN M. ROE JOANNE MUSICK TYLER FLOOD a word from your president

a word from your president Doug Murphy

MUSICK TYLER FLOOD a word from your president Doug Murphy Dear Members of HCCLA- It is

Dear Members of HCCLA-

It is with great honor that I carry the baton for the next year passed on by many great lawyers before me that led HCCLA to become the largest local and most robust criminal defense bar in the nation. The legacy of HCCLA has really been created by the legacies of Percy Foreman and Richard “Racehorse” Haynes and their many proteges. The legal mentoring and experiences Percy and Race provided all their many proteges really took root and spread to all lawyers in Harris County and throughout Texas. Many of us are the lawyers we are today due to Percy and Race’s generational reach. Before going to law school, I remember reading Texas Lawyer.

All the great Texas civil and criminal defense trial lawyers— the really colorful and truly interesting lawyers— were all from Houston.

HCCLA has an abundance of great lawyers. And many great teachers. For 18 ½ years, I had the great benefit of a great mentor, friend and law partner in Gary Trichter.

I know I would not be the lawyer I am today without this opportunity. It is incumbent on all of us to ensure that all lawyers receive similar opportunities to learn what has been passed down to us. There are great lawyers, and lawyers who are working to be great. I recall as a young law student attending an HCCLA cross examination seminar featuring Terry MacCarthy. On the stage was also Racehorse Haynes. I was completely awestruck by their presence, and the substance of their presentations. If the Rolling Stones had been playing next door for free, you could have not lured me away. That experience made a lasting impression on me and helped instill and create good cross-examination techniques and habits that I still employ today. Another memorable and impressionable experience was the camaraderie of the HCCLA bar. I remember meeting a friendly lawyer named Danny Easterling who was interested in helping soon-to-be lawyers. Danny’s encouragement made me feel welcomed to a band of lawyers before even graduating law school.

These lasting impressions that HCCLA made on me need to be passed onto to the next generation of lawyers that are full of passion and desire to be the next generation of criminal defense lawyers to carry the baton for HCCLA. My goal as your HCCLA president is to work as hard as I can to fulfill 3 goals on top of carrying out the mission of HCCLA.

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THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

CONTINUED : A WORD FROM YOUR PRESIDENT

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PROVIDE MORE SUBSTANTIVE TRIAL SKILLS CONTINUING LEGAL EDUCATION

First, we need to provide more substantive trial skills continuing legal education. HCCLA has many living legal legends that can share their wisdom and experience. Tyler Flood stepped up to the plate as CLE Curriculum Chairman. Seven days after taking office, Tyler created a great lineup of speakers for the Winning Warriors: Earning Your Stripes seminar. It was a great success and also provided HCCLA a financial boost to continue carrying out the mission.

GROW AND INVOLVE OUR MEMBERSHIP

Second, we need to grow the membership of HCCLA. Not just increase the size of our membership (although I did audaciously pledge to acquire 100 members in the first 100 days of taking office), but a huge focus is engaging the robust resources of experienced lawyers to mentor and teach younger lawyers. Doing so will provide Sarah Wood and Damon Parrish II, the passionate leaders of the HCCLA “Second Chair Program”, with more experienced lawyers to expand and improve the reach of this important program.

We also created a federal component to HCCLA as some of our greatest lawyers who practice almost exclusively federal court are also involved in HCCLA. Jimmy Ardoin agreed to take the reins as chairman of this newly created federal committee to bring more federal lawyers into the fold. Other good news is that as of June 28th we acquired exactly 100 members since taking office on May 10th, making good on my pledge. Will still have a long way to go to get our membership numbers back to where they belong. Thanks to all the hard-working board members contributing their time and efforts in making this possible.

PROMOTE CIVILITY AND PROFESSIONALISM IN HCCLA

Third, I want to promote civility and professionalism in HCCLA and in our practices. Our diversity is our greatest strength, but hostility is our greatest weakness. Make no mistake, fervent debate is healthy. Being civil in the face of adversity is not a sign of weakness, it is a sign of strength. It also doesn’t mean we as an organization will sit idly by and let transgressions go unchecked, it just means that we will engage in a professional way that allows us to be part of the solution, and not part of the problem in a scorched earth style attacks. There will never be any censorship or restriction on the HCCLA list-serve. Free speech allows a free marketplace for the best ideas to rise to the top. A true democracy that we all believe in provides the true freedom for free speech and creative thinking. The best ideas survive by meritocracy. Sometimes the manner in which some folks respond turns off other people. You have the right to choose whomever you want to be.

To quote a Florida lawyer and mentor of mine, Flem Whited: “Be yourself, unless you is losing, and/or you is an asshole.” And nobody likes an Asshole. We all believe in our cause, we have significant differences of opinions on how to go about achieving our goals. In a time of disunion, we need to unify and work together.

UPDATE ON CJC

There will continue to be challenges logistically with our courthouses. We all need to work together to be part of the solution, not the problem to make things safer for all involved. Thanks to former HCCLA President Chris Tritico for leading the charge behind voicing solutions to the Harris County Commissioners Court on needed changes for the CJC. Progress has begun with the jail dockets moving back to top 4 floors of the CJC. This is much safer for everyone. We will continue to work with the judges and all other stakeholders

in providing our input for improving the CJC. It’s certainly a long laundry list.

ANNUAL HCCLA BANQUET

Our annual banquet was a great success due to all the attendees and the hard-working efforts of our esteemed executive director Christina Appelt. Christina secured a new and beautiful venue in downtown that will allow our continued growth as the banquet continues to grow and evolve. Thank you, Christina, for everything you do for us, and congratulations to all the deserving award recipients. It was a special night for us all!

HARRIS COUNTY PUBLIC DEFENDER’S OFFICE

On June 12, 2018, the Harris County Commissioners placed on their agenda to determine the continued employment or reclassification of Harris County Public Defender, Alex Bunin. We learned of this in Houston Chronicle on the Friday before the Tuesday commissioner’s meeting. HCCLA rallied and fought for an independent public defender’s office. We packed commissioner’s court and it was standing room only with many people standing in the hallway.

Commissioners Jack Cagle and Steve Raddack took issue with Alex providing public information to the litigants in the bail bond lawsuit and also providing information regarding juveniles to the Texas Criminal Justice Coalition investigating racial discrimination in juvenile courts. The commissioners are clearly retaliating against Alex not just over the bail bond lawsuit, but also due to Judge Phillips’ well-publicized and embarrassing recusal on a juvenile case. Shortly after Judge Phillips’ recusal, a Public Information Act request was made by former Harris County DA investigator Kenny Rogers (apparently at the behest of Commissioner Cagle) to the PD’s office for Alex Bunin’s emails. Interesting timing for

a public defender whose work performance and integrity has never been questioned in his 8 years as the Harris County Public Defender.

I would like to thank Pat McCann and Nicole DeBorde for their assistance, Mac Secrest as member of PDO advisory board, David Gerger on behalf of NACDL, and David Moore on behalf of TCDLA for appearing and speaking in support of Alex Bunin and the Public Defender’s Office. Mac’s sage wisdom saved the day by persuading the commissioner’s court to pass a motion requiring the PDO advisory board to conduct an investigation as to whether the information disclosed by Alex Bunin violated any law. David Moore had the best quote of the day in his rebuttal to Commissioner Cagle’s question of whether he was old school in revealing the names of his clients. David said, with his thoughtful east Texas drawl, I’d like to think I’m old school, but if I was, I’d be drinking from segregated waters. It was a poignant moment that encapsulated the issue of why Alex released the information to a study on racial discrimination in the juvenile courts.

This will be an ongoing and continuing issue, and we will keep everyone posted. We will continue to need everyone’s involvement in maintaining an independent public defender’s office.

DECLARATION OF INDEPENDENCE READINGS

Thanks to Robb Fickman for creating what has become a tradition of reading the Declaration of Independence just before July 4th. This tradition has spread not just throughout every county in Texas, but throughout the nation by criminal defense lawyers. It’s a patriotic way of reminding everyone about what it truly means to be American, and why we enjoy the constitutional protections. We must always be vigilant in protecting these freedoms.

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THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

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/ 2018, VOLUME 2 THE DEFENDER / 2018, VOLUME 2 8 Julio Vela ended the year
/ 2018, VOLUME 2 THE DEFENDER / 2018, VOLUME 2 8 Julio Vela ended the year

Julio Vela ended the year with a bang, securing a NG in CCCL11 on a .14 DWI, poking holes in the cop’s

Brad Walters in CCCL4 really needed to win for D to keep job, so initially agreed to PTI. Paid for interview,

credibility during his cross. JV then learned W is expecting their daughter, so there won’t be any poking and

approved, but DAs have no contract 3 months and 2 resets later. Brad finds unshared Brady notice in State file,

banging for a while.

so

takes a .08 DWI to trial and hears the sweetest 2 words

Alex Azzo secured an acquittal in DC230 on an Attempted Sexual Assault. Word is State didn’t fully argue case

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Adam Brown got a murder mistrial in DC122. Somehow,

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in closing and Alex, confident in his work, waived close.

a

newspaper article about the case went back to the jury

TC submitted case to jury and did not permit State to

along with the ME’s report. Adam and Abigail Anastasio

argue again. Gutsy.

then hung a jury in DC56 for capital murder of a child.

Patrick McCann, HCCLA Mentor of the Year, saw a satisfying end of his years long fight to end TX death penalty cases involving intellectually disabled Ds when HCDAO agreed to a term of years for D after SCOTUS overruled Briseno.

Justin Harris got a big NG in CCCL2 on AFV. D accused of biting CW (that’s love in 21st Century), but Justin caught CW in a string of lies and RD bite marks were self-inflicted. Justin followed up with 2 word verdict in CCCL1. D charged with possessing device with intent to falsify drug test. After arrest on parole violation, HC jailer finds a plastic bottle with warm yellow liquid tied to penis with dental floss. Ouch. D says bladder issues and uses discreetly. Justin did not tell State it’s better to be pissed off than pissed on.

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Sean Darvishi got NG on a workplace assault in CCCL5 where CW said repeatedly CW felt no pain. Sean and Brian Ayson earned a NG in CCCL8 on a .07 breath test DWI. Tech said it RD that D was over .08 at time of driving. Sean followed up with Justin Harris (that guy, again?) for DV on .09 breath DWI, with another tech saying there was RD. Sean went solo for NG on .06 breath DWI in FBCCL2. Why are we having to trying these cases again?

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Brian Ayson also got tech to admit RD on .12 breath DWI in CCCL10, and also got NG. Brian then scored NG in FBCCL4 on .12 DWI where D was found stuck on railroad tracks.

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Priscilla Bush and Alex Houthuijzen got a MNT granted, flipping a guilty plea in DC230. D’s plea was involuntary due to alleged misconduct by bailiff.

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Lindsay Lopez and Adam Capetillo got DV in FBCCL1

amend

information because they had CW named wrong. Lindsay credits David Ryan for the idea to cross CW if CW had

ever been known by that name, and CW had not. That was enough for TC to decide enough.

PCS case out of Bosque County saw Brandon Ball and Chaunte’ Sterling work a mistrial. Miranda violations, mandatory probation, and DAO unwilling to budge on pretrial offer made the decision to try case easy.

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NG Verdict Maggie Hindman on DWI3rd in DC56.

D arrested in the parking lot at 10:00 AM. D worked late at

bar night before. Blood test showed THC and prescription drugs. Defendant looked good on video and jury felt LEOs did a poor job.

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D charged with AFV and bribery of state judge. Carl

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Moore investigated and proved to HCDAO that CW framed D. Cases dismissed, and CW charged. Learn the

lesson – investigate your cases! This happens more than ADAs will admit!

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Military appeals are some of the hardest to win, but Jack and Terri Zimmermann got a reversed and rendered for

D, an AF LTC charged with rape. CW claims it happened

in 1997, didn’t outcry until 2015. No PC found, but command pursued anyway.

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Victoria Erfesoglou teamed up with Justin Harris (yeah,

that guy, again!) to hear 2 sweetest words in the courthouse

on a blood DWI in FBCCL2, despite some questionable rulings by TC.

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David Adler pleads D in SDTX on 51 kilos of cocaine,

ADA wanted max time for .24 blood DWI in Washington

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spread over 5 trips out of state. No 5k, only safety valve.

County. D has CDL and has a clean record. Phil Baker

Due

and

to some super-secret great lawyering, D got 12 months

a day.

teed it up and got NG.

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When is a win not NG? When you beat the offer! Team Bob

DV for HCCLA President Doug Murphy in FBCCL5

on DWI. The Dougie followed up with NG in CCCL1 on >.15 DWI.

Immediate Past HCCLA President Tucker Graves got a hung jury on ASAC in DC184.

HCCLA President Elect Neal A. Davis hung a jury on Indecency in DC176.

Ralph and Lisa Gonzalez heard NG on Agg Robbery and Agg Kidnapping in FBC. D and ADAs both wept as verdicts were read – but for very different reasons.

Angela Weltin heard 2 word verdict on her first CDL trial murder in DC185.

Kasey Doggett won MTS in no test DWI in FBCCL4. Kase dismissed!

Michael Abner heard NG on resisting arrest in GCCL1.

D

refused to talk.

Ron Morgan won MTS based on no PC in FBC on a DWI.

Skip Cornelius heard 2 word verdict on capital murder.

Cordt Akers earned an in trial dismissal on DWI in CCCL5.

Carmen Roe and Nathan Mays hung jury in DC185, agg assault on a public servant. D accused of attempting to run an officer over in his jeep. Physical evidence showed cop took a knee, waited, and unloaded a full clip into the side of D’s vehicle while D was leaving flea market. Pre-trial offer was 15 years TDC. On re-trial, jury came back with misd deadly conduct. The Carmen-ator then teamed with

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when

Robb Fickman to win CCA appeal from DC248 on MTS witnessed by Mark Bennett. Oh, and then Carmen was elected a SBOT rep because, what else do you do?

and Doug Loper got a jury to deliver a 23 year sentence on the lesser offense of murder in DC434. The trial started as a non-death capital.

Donale Evans got a mid-trial dismissal (really, mid- cross examination of LEO) on .10 breath DWI. PTI

turned down, and Donale pointed out mistake after mistake after mistake.

Armen Merjanian and Cory Roth heard the big NG on POM in’ Colorado County. 63 year old D with no criminal history and the State refused all reasonable offers to dismiss. Cory followed up with NG on AFV in CCCL15, with LEO testifying LEO saw D hitting CW. TC refused to accept BIPP and dismiss.

Kate Ferrell beat .19 blood DWI involving a major accident and D in hospital for weeks. DWI Task Force peeled down D’s bandages to administer HGN.

Sorcha Landau shot the moon on HCDAO in COA, flipping an adult certification of a juvenile on Moon

grounds (see what I did there?). D had received a capital life sentence, and now will be re-sentenced as a juvenile. Kyle Sampson was drafted after the murder case was set for trial in DC351. Kyle drafted Mike Driver on the day of trial to assist, and the K&M Connection heard the sweetest 2 words in the Juvenile (In)Justice Center… err, courthouse.

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Tonya Rolland and Bao-Long Hoang earned NG for a .17 DWI/accident in CCCL5. TC was unhappy with Tonya’s cross as it was “not fair” to HCDAO.

Narcs just cannot help but cheat to win. However, D had surveillance cameras, so Brett Podolsky and Matt Sharp just let them spin their tale, locked them in, and then played the video. MTS granted in DC182 on DCS1.

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THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

CONTINUED : WINNING WARRIORS

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/ 2018, VOLUME 2 CONTINUED : WINNING WARRIORS 10 Austen H. Hobbs won in COA14, affirming

Austen H. Hobbs won in COA14, affirming GCCL3 MTS on DWI. The issue was failing to maintain a single lane. Austen then teamed up with Justin Harris (because apparently everyone does) for a DV on DWI in HCTX and NG on DWI in FBC. Emily Detoto and Paul Morgan got a mistrial in DC185 on murder. Voir Dire was moved up,

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Troy McKinney got a big win COA9 from a Jefferson County case on warrantless blood draw DWI. 2 day MTS, assisted by Gary Trichter, Chris Denuna and Wes Rucker. Wes and Chris spent scores of hours collecting over 50 warrants issued after-hours and on weekends over a four year period. LEOs never considered this because it was as a “mandatory blood draw.’ Ultimately, the COA held State’s failure to prove actual unavailability

of judge was fatal.

Lynnette Briggs and Rachel Dragony earned 2 word

verdict on AADW in DC10. GCDAO was so sure of a

win most of the office turned up for the verdict. Plot twist!

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Eric

Again, tech admitted RD. Again, why are these cases going to trial?

Jay Cohen won MTS on .24 breath DWI, and then NG

at trial in CCCL8.

Intox Manslaughter in DC248 was no match for Mark and Taly Theissen. Theme Theissen earned NG and TS on DWI.

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Joe Varela pulled a rabbit out of a hat in DC176. D was 5-99 with bad history on AADW public servant with bad facts. D on 10-year DADJ, and Joe was handling MAJ. TC initially found technicals true. Joe worked up the case, presented witnesses and argument, and TC kept

D on DADJ. Investigate the cases, you must – Sun Tzu

(maybe it was Yoda).

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got

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.09

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in

CCCL2.

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no one told Sparty and The Bearded One, and they were forced to pick jury on fly. Then trial was delayed by a winter storm.

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FBCDAO thought they had a whale - .18 blood DWI4,

bad video. Anthony Segura and Adam Capetillo (again) heard NG on DWI4 in DC240, when LEO admitted no PC for stop.

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Lori Gooch and Te’iva Bell got their groove back and secured NG in CCCL5.

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Wade Smith got an in trial dismissal of DWI2 in FBCCL4.

Despite a really awful report, video went missing. During trial, FBCDAO comes up with a new video. Wade asked TC to dismiss for MMA violation. While TC considered its ruling, State decided to dismiss. So, no matter what COA10 says about MMA, keep urging TCs to punish State for failing to comply with MMA. Wade then hiked up to MCCL1 for a .18 blood DWI. During Franks hearing, Wade gets LEO to admit another LEO wrote affidavit and LEO has no personal knowledge. MTS and DV granted.

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Lori Botello was having none of 4 year TDC offer in DC176 for a 1st offense AFV-choking. With a jury on the way, D took TS on misd AFV.

• • • • • • •

David Ryan and Matt Tyson hit a DV on crim mischief in FBCCL5. D got into an argument at nail salon, allegedly throwing a glass which broke a nail gun. However, testimony seemed to indicate salon is in Harris County, and definitely nail gun broke when CW pushed D into a table as D tried to leave.

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Andreea Ionescu got a 15 minute NG in CCCL8 on AFV. CW says D punched CW 6 times in stomach. Andrea

caught CW fibbing (because family law center is a palace of perjury) and inconsistent prior statements in medical records and reporting.

Hugh Brasher went up to Smith County and heard NG on BOH.

Pre-trial offer was 5 years TDC for D on charge of trying to take a firearm from a peace officer. Eddie Cortes took his chances with jury, and walked out 15 minutes later with NG.

Joe LaBella and Rob Stephens defended a decorated, war injured vet on a no test DWI in MCCL4 and came away with NG. Sadly, Joe lost his battle with pancreatic cancer shortly after.

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david ryan

Winning Warriors is written by HCCLA Secretary, David Ryan (2015-present). David has been practicing for 25 years, Mentor of the Year 2013- 2015 (ret.), Member of the Year 2016, HCCLA Board Member 2013-2015, co-chair of TCDLA Rural Practice, and TCDLA Board Member (2013-present). The victories are yours. David provides the snark.

Did you or anyone you know have success? Submit the names of the lawyers and
Did you or anyone
you know have
success?
Submit the names of the lawyers and a brief description to:
hcclawinningwarriorscolumn@yahoo.com
We do not check social media for your wins.
.

11

THE DEFENDER / SPRING 2018

12 Celebrating the All-Stars The HCCLA 48th Annual Banquet was held on May 10th at
12
Celebrating
the
All-Stars
The HCCLA 48th Annual Banquet was held on May
10th at the Houston Ballroom at Bayou Place. Tucker
Graves and Doug Murphy did an exceptional job
hosting the event. Edward Mallett inducted 2018-2019
Officers and Board of Directors. Over 300 lawyers, friends,
family members, judges and candidates attended an
enchanting evening to celebrate this year’s outstanding
lawyer achievements.
of
the
Defense Bar:
Congratulations to the award winners!
Annual
48th Banquet
HCCLA
By
Christina Director
Appelt,
Executive
TORCH OF LIBERTY
PRESIDENT’S AWARD
Plaintiff Lawyers
Robert Fickman
in O’Donnell v. Harris County
(Susman Godfrey LLP, Civil Rights Corps, Texas Fair
Defense Project)
For years HCCLA has been outspoken on the issue
of bail reform. We have long known it would take a
federal lawsuit to effect any real change but did not
have the resources or funds to bring one to suit. At long
last, Neal Manne of Susman Godfrey, LLP took it head-
on in 2016 when he filed a pro bono lawsuit against
Harris County with the aid of two organizations, Civil
Rights Corps and Texas Fair Defense Project. Together,
they have fought a $6 million (and counting) defense of
the indefensible - Harris County’s unconstitutional and
decades-long practice of punishing poor people who
could not afford to make bond. These citizens accused
faced a harsh choice of pleading guilty for a quick
release - straddling them with lifelong convictions - or
languishing in jail until trial while losing their freedom,
family and jobs. The lawsuit has shined a national
spotlight on Harris County’s criminalization of the
indigent accused, resulting in a federal injunction and
5th Circuit rulings in favor of bail reform. Neal Manne
humbly accepted the award on behalf of his firm;
Elizabeth Rossi accepted on behalf of the Civil Rights
Corps in New York; and Susanne Pringle accepted
as Director of the Texas Fair Defense Project. HCCLA
applauds them for carrying this Torch of Liberty!
Tucker Graves presented the President’s Award
to Robb Fickman for his many years of service and
dedication to the bail issue that is finally coming
to fruition. For over a decade, Robb has been an
outspoken voice on the need for bail reform in Harris
County. As President in 2006, Robb wrote his first
scathing piece in The Defender against the unjust bail
practices. He has continued to speak out against the
unfair systematic denial of PR bonds and the infamous
“Plea Mill”. In 2013, he sent a letter to all county court
judges urging them to change their policies and
published it on his website. Frequently quoted in the
press, Robb has been a prolific writer on this subject
for years in countless Defender articles, blogs, listserve
posts, and had dozens of editorials published in the
Houston Chronicle. Many of his articles have appeared
in law journals across the nation, and referenced in
the NACDL amicus brief for the bail lawsuit. He has
condemned the county’s systematic abuse of poor
people on Reasonable Doubt TV and in other public
appearances. Robb’s unwavering zeal for justice on
this matter has brought about long overdue reforms
in Harris County.
THE DEFENDER / SPRING 2018

13

reforms in Harris County. THE DEFENDER / SPRING 2018 13 LAWYER OF THE YEAR Scott Pawgan

LAWYER OF THE YEAR

Scott Pawgan

David Ryan presented Scott Pawgan with this

distinguished award. Board Certified in Criminal Law (TBLS), Scott tends to toil mostly out of sight in the hinterlands. He is always willing to offer his take on parole issues, technology issues, and sex offender cases. Scott had a big win in the CCA on sex offender cases this year when the legislature granted relief to any sex offender with a case pending. Scott’s client was on appeal. Montgomery County prosecutors argued to the Court of Appeals that the legislation violated the Governor’s powers of pardon and parole, and the court affirmed. Scott took it up to the CCA who voted 7-2 to free his client. Scott also got one of those rare cases where he got to cross-examine a presiding judge, a complaining witness in an Assault on Public Servant case. Scott methodically, but respectfully, picked apart the judge’s testimony, used the cops to demonstrate the judge’s lack of candor and truthfulness, and scored a Not Guilty. Congratulations Scott!

and scored a Not Guilty. Congratulations Scott! SHARON LEVINE UNSUNG HERO Damon Parrish II Racehorse Haynes

SHARON LEVINE UNSUNG HERO

Damon Parrish II

Racehorse Haynes once said that the real heroes are the unsung lawyers who work hard in the trenches everyday, with little to no recognition. Damon Parrish II is one of those lawyers who truly embodies the spirit andcourageofSharonLevine,thisaward’snamesake. Damon fights hard for his clients at the Public Defender’s Office. He does not seek attention. He quietly serves on the county’s eFile Committee as a strong voice for the defense, helping to improve the system and provide training for defense lawyers. He also co-chairs HCCLA’s Second Chair Program, pairing newer lawyers with mentors. Damon selflessly gives his time to help anyone in need, whether it’s jumping in a canoe to rescue flood victims or bringing jumper cables to a stranded member. After Hurricane Harvey, Damon volunteered in shelters, distributed supplies, assisted people with FEMA applications, helped move the PD offices, went into damaged homes of colleagues, tore out sheetrock, hauled trash to curbsides, and made any other home repairs needed. Damon Parrish is a true unsung hero in every sense.

hauled trash to curbsides, and made any other home repairs needed. Damon Parrish is a true
hauled trash to curbsides, and made any other home repairs needed. Damon Parrish is a true

THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

CONTINUED : HCCLA BANQUET

14

MENTOR OF THE YEAR MEMBER OF THE YEAR
MENTOR OF THE YEAR
MEMBER OF THE YEAR
: HCCLA BANQUET 14 MENTOR OF THE YEAR MEMBER OF THE YEAR Patrick McCann Pat McCann
: HCCLA BANQUET 14 MENTOR OF THE YEAR MEMBER OF THE YEAR Patrick McCann Pat McCann

Patrick McCann

Pat McCann was nominated for his longtime work with the Gideon’s Promise/FACT program and the Precinct 4 evidence destruction matters. Pat consistently devotes his time to mentoring younger lawyers in Harris and surrounding counties, while also working tirelessly to save his client’s lives from Texas’ death row. Pat gave a heartfelt toast at the banquet to honor his own mentor, Jonathan Munier. He asked the crowd to do him the honor of charging their glasses, and raising them with him: “To Jon, and all of our mentors. We can never pay them back, but we can try to pay it forward. Wherever they are, we hope they are proud.”

pay them back, but we can try to pay it forward. Wherever they are, we hope

What a memorable evening!

HCCLA Membership

No doubt Tucker Graves had a doozy of a year as HCCLA President. And so did the members--Hurricane Harvey, ice storms, court closures and relocations, jail dockets, bond dockets, and mandatory eFiling. While his own home was damaged by Harvey, Tucker remained calm and focused at the helm. He saw firsthand how many members were affected by the courthouse chaos or personally struck by tragedy, and still helped others. Impressed by how resilient HCCLA members were, how they came together to weather the storms, Tucker chose to honor the entire criminal defense bar instead of selecting just one member for this award.

the storms, Tucker chose to honor the entire criminal defense bar instead of selecting just one

Special thanks to everyone for coming out to celebrate these amazing lawyers--and to Steven Halpert (Treasurer), Bob Rosenberg (photography), Michael Godfrey (audio/visual), Shannon Moore (registration), and Craig Howard and his staff at The Houston Ballroom for going above and beyond to make the program such a success!

RICHARD ‘RACEHORSE’ HAYNES LIFETIME ACHIEVEMENT

Each of these honorees has had a remarkable and distinguished career in criminal defense.

a remarkable and distinguished career in criminal defense. Sam D. Adamo Licensed in 1968, Sam Adamo

Sam D. Adamo

Licensed in 1968, Sam Adamo served his first 5 years at the Harris County District Attorney’s Office trying all criminal cases from DWI’s to Capital Murders. He started up the White Collar Special Crimes Division and remained at the top of this division until he left in 1976 to start his own criminal defense practice. Focusing entirely on criminal law, Sam Sr. was one of the early attorneys to become Board Certified in Criminal Law (TBLS). He has obtained dismissals and acquittals in every type of criminal case, with 50 years of legal experience. He has represented individuals, corporations, and even the Police Union over the course of his career. He served as HCCLA Vice President in 2012-13. His children, Sam Adamo Jr. and Tammy Massa, who followed in their father’s footsteps as attorneys, proudly presented him with this award.

Adamo Jr. and Tammy Massa, who followed in their father’s footsteps as attorneys, proudly presented him
as attorneys, proudly presented him with this award. Connie B. Williams Connie Williams is one of
as attorneys, proudly presented him with this award. Connie B. Williams Connie Williams is one of
Connie B. Williams Connie Williams is one of the pillars of criminal defense in Harris

Connie B. Williams

Connie Williams is one of the pillars of criminal defense in Harris County. He is known as a gentleman and formidable advocate in the courtroom. Connie began his legal career in 1974 after graduating from the University of Houston. After a short stay at the Harris County District Attorney’s Office, Connie began his career as a criminal defense lawyer. Over the span of his career, Connie has represented approximately 50 persons accused of Capital Murder, and all but 6 avoided death row during a time when Harris County led the nation in capital murder sentences. He was named one of the Top Lawyers in Houston in 1994. Connie is a decorated Vietnam War veteran with numerous medals for Valor in Combat, including the Silver and Bronze Stars. But Connie will tell you his proudest achievement in life is having a wonderful, supportive family. Tyrone Moncriffe eloquently presented this award to his longtime friend and colleague.

presented this award to his longtime friend and colleague. R.P. ‘Skip’ Cornelius Skip Cornelius started in
presented this award to his longtime friend and colleague. R.P. ‘Skip’ Cornelius Skip Cornelius started in

R.P. ‘Skip’ Cornelius

Skip Cornelius started in 1972 at the Harris County District Attorney’s Office where he first-chaired more than 160 felony jury trials. He served as the Chief Prosecutor of the 185th and 184th, then went on to work as an AUSA for the Southern District of Texas in the Public Corruption, Bank Fraud and Embezzlement Sections. In 1982, he began his practice in criminal defense. He has been lead counsel in more than 200 criminal jury trials of all kinds, ranging from DWI to Capital Murder, in both state and federal courts in Texas and other states. Skip was named HCCLA Lawyer of the Year in 2009 for several high-profile cases resulting in amazing verdicts. He continues to have success at trial, recently winning an acquittal for Capital Murder. Alvin Nunnery gave a beautiful speech honoring his friend and colleague at the banquet.

an acquittal for Capital Murder. Alvin Nunnery gave a beautiful speech honoring his friend and colleague
acquittal for Capital Murder. Alvin Nunnery gave a beautiful speech honoring his friend and colleague at

15

THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / SPRING 2018

16

Addiction is an Illness Not a Crime BY CHRIS McKINNEY A recent and infrequent trip
Addiction is
an Illness
Not a Crime
BY CHRIS McKINNEY
A recent and infrequent trip to the gym had me reading
the New York Times on a stationary bicycle when I came
Eldred relapsed during her treatment and began
using fentanyl. 7
across a headline article entitled: “Jail for Drug Relapse:
A Case Asks if That’s Fair.” 1 The article discussed

She later provided a urine sample to screen for drugs at the request of her probation officer. 8 Eldred tested positive for fentanyl and Suboxone. 9

8 Eldred tested positive for fentanyl and Suboxone. 9 WELCOME NEW HCCLA MEMBERS new members Matt
8 Eldred tested positive for fentanyl and Suboxone. 9 WELCOME NEW HCCLA MEMBERS new members Matt
8 Eldred tested positive for fentanyl and Suboxone. 9 WELCOME NEW HCCLA MEMBERS new members Matt

WELCOME NEW HCCLA MEMBERS

new members

WELCOME NEW HCCLA MEMBERS new members Matt Alford Chris McKinney Marisela Arredondo Dana Nazarova Dylan

Matt Alford

Chris McKinney

Marisela Arredondo

Dana Nazarova

Dylan Blackwell

Thai-Anh Nguyen

Tyler Brock

Tyson Phillips

John Clayton Caldwell

James Gregory Rubin

Michele Barber Chimene

Anthony Ray Smith

Christine Cockrell

William M. Stradley

Zachary B. Fertitta

Richard Torres

Ryan Gertz

Raymundo J. Vazquez

Derek Hollingsworth

Angela Weltin

Carson Joachim

Adam J. Wolfe

Kaia Lubanko Kessler

new paralegal members

Adam J. Wolfe Kaia Lubanko Kessler new paralegal members Claudia Hipps Scheiner Law Group Isabela Juarez

Claudia Hipps Scheiner Law Group

Isabela Juarez Law Office of Steve O. Gonzalez

Jordan Gilbert Law Office of Steve O. Gonzalez

Laura Lopez Law Office of Steve O. Gonzalez

new student members

Lopez Law Office of Steve O. Gonzalez new student members Daniel S. Chavez John A. Leo

Daniel S. Chavez

John A. Leo

Mayra Faz

Phillip Lewis

Freddie Lee Gabriel

Sydney Paige Pippin

LaKai Henderson

Jacob Schiffer

JoLissa Krystal Jones

Sintia Solis

harris county election information LAST DAY TO REGISTER TO VOTE REQUEST FOR ABSENTEE BALLOT DEADLINE

harris county election information

LAST DAY TO REGISTER TO VOTE

REQUEST FOR ABSENTEE BALLOT DEADLINE

OCT 22 - NOV 2

GENERAL ELECTION

ABSENTEE BALLOT DEADLINE

POST RECEIVED BY NOV 7, 5:00 PM

FOR ABSENTEE BALLOT DEADLINE OCT 22 - NOV 2 GENERAL ELECTION ABSENTEE BALLOT DEADLINE POST RECEIVED
treatment for opiate addiction and how relapse is an OCT 9 expected part of clinical
treatment for opiate addiction and how relapse is an
OCT 9
expected part of clinical recovery treatment. Despite
the expectancy of relapse in clinical recovery, relapse
in the criminal justice system is usually treated with
OCT 26
EARLY VOTING
NOV 6
the imposition of a jail or prison sentence. Treatment
and recovery professionals say the problem with jail is
“the penalty’s effect on an offender’s recovery.” This
article was incredibly thought provoking and provides a
complete paradigm shift to the archaic manner in which
punishments in these situations truly hinder recovery.
This also provides lawyers with a valid legal and science
based legal argument in certain cases to assist our clients
who truly desire and want treatment versus jail.
In
2016, Julie Eldred pled guilty to larceny over $250
in
a Stow, Massachusetts court. 2 She was placed on
the Massachusetts equivalent of deferred adjudication
for one year, with conditions that she remain drug free
and submit to random drug testing as required. 3 Two
days after being placed on community supervision,
Eldred completed an intake appointment at an intensive
outpatient program (IOP) at a local hospital. 4 There
she met with a doctor who prescribed her Suboxone, a
medication to treat her opiate addiction. 5 Five days later,
Eldred began IOP. 6

Eldred’s probation officer moved to have Eldred detained pending a probation violation hearing. 10 She was remanded to jail without bail and released ten days later to a residential treatment program. 11

At a subsequent hearing, Eldred’s judge found her in violation of the terms of her probation, continued Eldred’s probation, and denied her attorney’s request to change the conditions of the probation. 12

But is jailing an addict for relapse fair and does requiring a sick person to be drug free set them up for failure? That’s the question that Supreme Judicial Court of Massachusetts seeks to answer in Commonwealth v. Julie Eldred, No. SJC-12279.

Eldred and her attorneys argue that her community supervision to “remain drug free” violates her substantive constitutional right under Robinson v. California, 370 U.S. 660 (1962), not to be punished for a status offense, namely, for being an individual with a chronic medical condition, i.e., active opioid disorder, not in remission, and that Eldred’s failure to comply with that condition was not “willful.”

opioid disorder, not in remission, and that Eldred’s failure to comply with that condition was not
opioid disorder, not in remission, and that Eldred’s failure to comply with that condition was not
opioid disorder, not in remission, and that Eldred’s failure to comply with that condition was not
opioid disorder, not in remission, and that Eldred’s failure to comply with that condition was not
opioid disorder, not in remission, and that Eldred’s failure to comply with that condition was not
opioid disorder, not in remission, and that Eldred’s failure to comply with that condition was not
opioid disorder, not in remission, and that Eldred’s failure to comply with that condition was not

17

THE DEFENDER / SPRING 2018

CONTINUED : ADDICTION IS AN ILLNESS - NOT A CRIME

18 Understanding as addiction an Illness This three-stage cycle “worsens over time and involves dramatic
18
Understanding
as addiction an Illness
This three-stage cycle “worsens over time and involves
dramatic changes in the brain reward, stress, and
executive function systems.” 18 Indeed, the combination
of the symptoms of all three stages often provides an
overwhelming driver for substance seeking that can be
unrelenting. 19
In Robinson, the United States Supreme Court held that
a law imprisoning persons afflicted with the “illness” of
narcotic addiction inflicted cruel and unusual punishment
in violation of the Eight and Fourteenth Amendments. 13
Susceptibility to Your Addiction Clients
Addiction is a primary, chronic disease
of brain reward, motivation, memory and
related circuitry. 14
Not all people use substances, and even among those who
Addiction affects neurotransmission and interactions
within reward structures of the brain, such that
motivational hierarchies are altered and addictive
behaviors… supplant healthy, self-care related
behaviors. 15 Addiction also affects the brain such that
memory of previous exposures to rewards … leads to a
biological and behavioral response to external cues, in
turn triggering craving and/or engagement in addictive
behaviors. 16
use them, not all are equally likely to become addicted. 20
Like other chronic health conditions, substance use
disorders are influenced by complex interplay between
a person’s genes and environment. 21
Genetic factors are thought to account for 40 to 70
percent of individual differences in risk for addiction. 22
THE DEFENDER / SPRING 2018

Addiction in three stages occurs

1
1

Binge/Intoxication, the stage at which an individual consumes an intoxicating substance and experiences its rewarding or pleasurable effects;

Similarly, substance use disorders are significantly more prevalent in individuals who suffer from mental another illness. 23 The reasons why substance use disorders and mental disorders often occur together are not clear, and establishing the relationships between these conditions is difficult. 24 Three possible explanations exist, however.

First, having a mental disorder may increase a person’s vulnerability to substance use disorders because certain substances may, at least temporarily, be able to reduce mental disorder symptoms and this are particularly negatively reinforcing in these individuals. Second, substance use disorders may increase vulnerability for mental disorders. 25 Third, it is also possible that both substance use disorders and mental disorders are caused by shared, overlapping factors, such as particular genes, overlapping neurobiological deficits, and exposure to traumatic or stressful life experiences. 26

Finally, the age of onset of substance use may also be

a risk factor as individuals who begin using substances

during adolescence often experience more chronic and intensive use compared with those who begin use at an older age. In other words, the earlier the exposure, the greater the risk. 27

2
2

Withdrawal/Negative Affect, the stage at which an individual experiences a negative emotional state in the absence of the substance; and

Preoccupation/Anticipation, the stage at which one seeks substances again after a period of abstinence. 1 7 17

Rather Promoting than Patience Punishment

The fact that a client afflicted with substance use disorder tests positive while on probation shouldn’t be

surprising. Indeed, recovery from substance use disorder characteristically involves periods of recurrence and remission. 28 Studies have increasingly shown that relapses are a commonly occurring part of recovery from substance use disorder and should be considered

a “dynamic, ongoing process rather than a discrete or terminal event.” 29

In fact, a client with a substance use disorder is expected to relapse. 30 Only a minority of patients who successfully complete opioid detoxification or long- term treatment of any kind, can abstain in a prolonged fashion from opioid use. 31 The risk of relapse can remain for many years. 32

We have indeed progressed from the Seventeenth Century, when the violently insane went to the whipping post and into prison dungeons, until they had regained their reason, or, as sometimes happened, were burned at the stake or hanged. 33 But still, punitive measures for those who relapse exist. Probationers, like Eldred, who suffer from substance use disorder are frequently threatened with or simply relegated to jail, which tends

to worsen their preexisting conditions. 34 But does jail adequately address their addictions or should we be advocating for a new set of “standard conditions” when

it comes to clients with substance use disorders? If the

goal is to treat them for their sickness, why undermine the rehabilitative purpose of punishment? 35

As Justice Douglas made clear in Robinson, “we would forget the teachings of the Eighth Amendment if we allowed sickness to be made a crime and permitted sick people to be punished for being sick. This age of Enlightenment cannot tolerate such barbarous action.” 36

1

www.nytimes.com/2018/06/04/health/

drug-addict-relapse-opioids.html

2

RA 1, 5, Commonwealth v. Julie Eldred, No. SJC-12279.

3

Id. at 2-3, 10.

4

Id. at 16, 18, 54.

5

Id. at 26, 75, 78.

6

Id. at 75, 79.

7

Id. at 11, 75, 80.

8

Id. at 16, 18-19.

9

Id. at 11, 75, 80.

10

Id. at 12; Tr. 2.

11

RA at 3, 13, 76, Commonwealth v. Julie Eldred, No. SJC-12279.

12

Id. at RA 3, 13; Tr. 1, 3-15.

13

Robinson, 370 U.S. at 666-667.

14

Brief of Amicus, Massachusetts Medical Society citing American Society of Addiction Medicine, Definition of Addiction (“Definition of Addiction”).

15

Id.

16

Id.

17

Brief of Amicus, Massachusetts Medical Society citing Massachusetts Medical Society at 23; Koob and Le Moal, Drug abuse: Hedonic homeostatic dysregulation, 278 Science 52-58 (1997); Volkow et al., Neurobiological Advances from the Brain Disease Model of Addiction, 374 N. Eng. J. Med. 363-71 (2016).

18

Brief of Amicus, Massachusetts Medical Society citing Surgeon General’s Report on Alcohol, Drugs and Health entitled Facing Addiction in America, Chapter 2 at 18 (2016).

19

Id.

19

THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018

CONTINUED : ADDICTION IS AN ILLNESS - NOT A CRIME

20

20

Brief of Amicus, Massachusetts Medical Society citing Surgeon General’s Report on Alcohol, Drugs and Health entitled Facing Addiction in America, Chapter 2 at 21 (2016).

21

Id. at 22.

22

Prescott CA, Kendler KS. Genetic and environmental contributions to alcohol abuse and dependence in a

population-based sample of male twins. American Journal

of

Psychiatry. 1999;156:34–40; Schuckit MA, Edenberg

HJ, Kalmijn J, Flury L, Smith TL, Reich T, Foroud T.

A

genome-wide search for genes that relate to a low level of

response to alcohol. Alcoholism: Clinical and Experimental

Research. 2001;25(3):323–329.

23

Brief of Amicus, Massachusetts Medical Society citing American Academy of Addiction Psychiatry, Summer Newsletter Vol. 31, No. 3 (2015) Travel Awardee Column: Addition Training for the General Psychiatrist, Elie Aoun, “Aoun”).

24

Brief of Amicus, Massachusetts Medical Society citing Surgeon General’s Report on Alcohol, Drugs and Health entitled Facing Addiction in America, Chapter 2 at 23 (2016).

25

Jacobsen LK, Southwick SM, Kosten TR, Substance use disorders

in

patients with posttraumatic stress disorder: A review of the

literature, American Journal of Psychiatry, 2001;158(8):

1184–1190; Leeies M, Pagura J, Sareen J, Bolton JM, The use of alcohol and drugs to self-medicate symptoms of posttraumatic stress disorder, Depression and Anxiety, 2010; 27(8):731–736; Kumari V, Postma P. Nicotine use in schizophrenia: The self medication hypotheses, Neuroscience and Biobehavioral Reviews, 2005;29(6):1021–1034.

26

Brief of Amicus, Massachusetts Medical Society citing Surgeon General’s Report on Alcohol, Drugs and Health entitled Facing Addiction in America, Chapter 2 at 23 (2016).

27

Hanson KL, Medina KL, Padula CB, Tapert SF, Brown SA, Impact of adolescent alcohol and drug use on neuropsychological functioning in young adulthood: 10-year outcomes, Journal of Child and Adolescent Substance Abuse,

2011;20(2):135–154.

28

Brief of Amicus, Massachusetts Medical Society citing Commonwealth v. Julie Eldred, No. SJC-12279

29

Brief of Amicus, Massachusetts Medical Society citing Hendershot et al., Relapse prevention for addictive behaviors, 6 Subst. Abuse Treat. Prev. Policy 2 (2011).

30 Brief of Amicus, Massachusetts Medical Society citing Koston et al., The Neurobiology of Opioid Dependence: Implications for Treatment, 1 Sci. Pract. Perspect. 13, 19-20 (2002).

31 Brief of Amicus, Massachusetts Medical Society citing Davison et al., Outpatient Treatment Engagement and Abstinence Rates Following Inpatient Opioid Detoxification, 25 J. Addict. Dis. 27, 33 (2008).

32 Brief of Amicus, Massachusetts Medical Society citing Hser, et. al., A 33-year follow-up of narcotics addicts, 58 Archives of General Psychiatry, 503-508 (2001); Valliant, The natural history of alcoholism revisited. Cambridge, MA: Harvard University Press (1995).

33 Simpson v. State, 668 S.W.2d 915, 922 (Tex. App.—Houston [1st Dist.] 1984) (Levy, A.J. dissenting) (citing Deutsch, “The Mentally Ill in America” (1937), p. 13; “Action for Mental Health” (1961), p. 26.

34 Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America 116 (2011).

35 Brief of Amicus, Massachusetts Medical Society citing Volkow et al., Drug Use Disorders: impact of a public health rather than a criminal justice approach, 16 World Psychiatry 213-214 (2017).

36 Robinson, 370 U.S. at 678.

chris mckinney

A criminal defense lawyer in Houston, Texas. He spent the ������and a half years of his legal career at the Harris County District Attorney’s ����working in their Vehicular Crimes Division. He is a 2012 graduate of South Texas College of Law and a 2009 graduate from Texas A&M University, earning a bachelor’s degree in political science. When he’s not in the courtroom, he’s spending time with his wife, Sarah, and his daughter, Charlotte. And when he actually gets a moment to himself, he’s smoking briskets and brewing beer.

moment to himself, he’s smoking briskets and brewing beer. the risks of a colorado cannabis vacation
moment to himself, he’s smoking briskets and brewing beer. the risks of a colorado cannabis vacation

the risks of a colorado cannabis vacation

by D. Chris Hesse

Colorado is now widely considered the center of what is being called “cannabis tourism.” When Colorado made legal the recreational use of marijuana in 2014, tourists have been going there to get their legal high and take in the sights. The legal sale of marijuana in Colorado in the year 2015 has topped $ 1 billion, making the industry a close second to the sale of craft beer. $135 million in taxes and fees were generated for the State. Please see http://reason.com/blog/2016/02/16/

legal-marijuana-sales-totaled-1-billion.

Many Texans are driving back home with their purchases of Colorado cannabis and do not realize the amount of risk they are taking when it comes to Texas state law.

A vast majority of these Texans are driving back from Colorado through Dalhart and Amarillo. The amount of drug busts in these two areas have greatly increased since “cannabis tourism” took off in Colorado starting in 2014. The busts don’t always involve large quantities that are intended for resale, but most of the time involves a quantity intended for personal use. It is important to know the varying penalty levels for the type of cannabis that is being possessed before anyone decides to place themselves at risk of being arrested and prosecuted.

21

THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

CONTINUED : THE RISKS OF A COLORADO CANNABIS VACATION

22

The Types of Cannabis and the Penalty Levels

There are three levels of misdemeanors and four levels of felonies in Texas (Please see Texas Penal Code Sec. 12.11, 12.22, 12.23, 12.35, 12.34, 12.33, & 12.32):

1
1

Class “C” crimes are fine-only offenses.

2
2

Class“B”crimesarecrimeswherebytheaccusedcouldfaceupto 180 days in jail or 6 months to 2 years of probation.

3
3

Class “A” crimes are crimes whereby the accused could face up to one year in jail or 6 months to 2 years of probation.

4
4

State Jail Felonies (SJF) are crimes whereby the accused could face anywhere from 180 days to 2 years in a State Jail Facility or anywhere from 2 to 5 years of probation.

5
5

3rd Degree Felonies are crimes whereby the accused could face anywhere from 2 to 10 years in a penitentiary or from 2 to 10 years of probation.

6
6

2nd Degree Felonies are crimes whereby the accused could face anywhere from 2 to 20 years in the penitentiary or from 2 to 10 years of probation.

7
7

1st Degree Felonies are crimes whereby the accused could face anywhere from 5 to 99 years or life in the penitentiary or from 2 to 10 years of probation.

Cannabis possession in Texas can range anywhere from a Class “B” misdemeanor up to a 1st Degree Felony.

There is no such thing as Class “C” cannabis possession, although an officer could give a Class “C” Citation for Possession of Drug Paraphernalia.

Please see Texas Health and Safety Code Sec. 481.125. Class “B” accusations and higher are offenses whereby the person can be placed into full custodial arrest and booked into jail. These people will have to bond out pending the court case.

This article will not focus on delivering marijuana or delivery of a controlled substance. Delivery falls within a different range than possession and involves different weights. Please see Texas Health and Safety Code Sec. 481.120 & 481.113. It is rare to be accused of delivery of marijuana or delivery of a controlled substance, and the vast majority of the cannabis charges I have seen involve possession, not delivery. To put it simply, “delivering” is shown if it is obvious that the cannabis is going to be resold (such as pre-packaged in small amounts to suggest intent to re-sell) or the person is literally caught in the act of hand delivering to another individual.

Also, please note that possessing marijuana or a controlled substance in a drug free zone creates its own set of special problems. Drug free zones are zones

of protection that are drawn around public and private colleges and universities, schools, youth centers, playgrounds (1,000 feet) and public swimming pools and video arcades (300 feet). Please see Texas Health and Safety Code Sec. 481.134. Generally speaking, the crime is bumped up to the next level crime. For instance a Class “B” possession amount will be charged as a Class “A” because the 2 ounces or less of marijuana was found in a drug free zone. I most commonly see drug free zone enhancements charged within 1,000 feet of playgrounds and schools (school property, to be exact) and almost never on a freeway stop, although it is still very possible to be driving within 1,000 feet of a school while on the freeway. For instance, Saint Andrew’s Episcopal School is located on Georgia and the school property butts right up against the westbound feeder road. The distance from this school property to the eastbound lanes of I-40 is a mere 175 feet, well within the 1,000 foot range.

Drug free zones can also bump up the minimum range of punishment when it comes to the felony accusation. Drug free zones can also affect parole eligibility. For purposes of this article, we will focus on an accusation of possessing cannabis without a delivery or drug free zone allegation.

Leafy Marijuana

Possession of leafy marijuana subjects a person to arrest for Possession of Marijuana. Please see Texas Health and Safety Code Sec. 481.121.

The penalty level depends on the weight of the leafy marijuana. It does not matter whether the leafy marijuana is hydroponically grown (higher THC content marijuana, or your garden variety “Mexican Skank-Weed”. All leafy marijuana is weighed the same.

1
1

Class “B”: 2 ounces or less.

2
2

Class “A”: 4 ounces or less but more than 2 ounces.

3
3

SJF: 5 pounds or less but more than 4 ounces.

4
4

3rd Degree: 50 pounds or less but more than 5 pounds.

5
5

2nd Degree: 2,000 pounds or less but more than 50 pounds.

6
6

1st Degree: more than 2,000 pounds. Id.

Possession of Marijuana falls within the following range of punishment depending on the weight possessed.

range of punishment depending on the weight possessed. It is important to note that a person

It is important to note that a person can be charged with Class “B” possession of leafy marijuana under 2 ounces as long as the leaf that person has is “usable.”

The general idea is that a “usable amount” is the amount of marijuana a person needs to consume for the sole purpose of “getting high.” This can amount to just one puff

There have been convictions involving unimaginably small amounts of marijuana. For example, in Parson v. State, 193 S.W.3d (Tex. App.—Texarkana 2006), the Court of Appeals upheld a case where a person was arrested and convicted of possessing a usable amount of marijuana and the amount was 1.41 grams.

Hash Oils, Edibles, and Waxes:

THC is the active chemical and principal hallucinogen in marijuana. Hash oil, which is made by exposing marijuana to a solvent, is a potent and concentrated carrier of THC. Hash oil, due to its concentration and lack of plant matter, is in the same penalty group as ecstasy and amphetamines.

Hash oil can be smoked in a vaporizer. Vaporizers are the modern day equivalent of the cigarette. Vaporizers can be as small as a pen and work to extract the water molecules from the marijuana leaf and turn those water molecules into a vapor. Vaporizers also turn the liquid hash oil into a vapor to be inhaled.

Marijuana users are quickly transitioning from burning the marijuana leaf, to vaporizing the leaf or vaporizing the hash oil. It is important to note that vaporizing the leaf extracts more THC than burning the leaf. Additionally, vaporizing is safer than burning the leaf because the user is not inhaling carcinogens.

Vaporizing hash oil delivers an incredible amount of THC to the user compared to vaporizing the leaf or burning the leaf.

Edibles made with hash oil are also popular among THC users because they minimize the need to burn marijuana and inhale harsh or unpleasant smoke or even use a vaporizer. Common edibles include brownies, cookies, and candies made with hash oil.

Wax is the most powerful form of marijuana on the market. People who use marijuana wax use a small amount, or a dab, to work. Another name for marijuana wax is BHO, which is short for butane honey oil. Making wax is a dangerous process. Wax can be smoked in a bong or vaporizer. It is 80% pure THC. It is also the most expensive form of marijuana on the market.

People charged with possessing hash oil, edibles, or waxes are charged with Possession of a Controlled Substance in Penalty Group 2 (PCS PG 2. See Texas Health and Safety Code Sec. 481.116.) PCS PG2 falls within the following range of punishment depending on the weight possessed:

1
1

SJF: Less than 1 gram

2
2

3rd Degree: 1 gram or more but less than 4 grams

3
3

2nd Degree: 4 grams or more but less than 400 grams

4
4

1st Degree: more than 400 grams. Id. (By way of comparison, 1 pound is approximately 454 grams

The average weight of just one marijuana cookie is 30 grams. One pound of cookies is really not that heavy and does not amount to much. I’ve had many clients charged with PCS PG2 and facing a 2nd Degree Felony because of just one cookie or a small edible.

23

THE DEFENDER / 2018, VOLUME 2

CONTINUED : THE RISKS OF A COLORADO CANNABIS VACATION

24

2 CONTINUED : THE RISKS OF A COLORADO CANNABIS VACATION 24 Possessing a single 30 gram

Possessing a single 30 gram marijuana cookie subjects the person possessing the single cookie to a hefty 2nd Degree Felony accusation. As ridiculous as it sounds, one 30 gram cookie is equivalent, punishment range wise, to possessing anywhere from 50 to 2,000 pounds of leafy weed.

Some might say that the legislature went too far when setting up the punishment ranges for marijuana edibles, oils, and waxes. It almost encourages marijuana users to possess leafy weed rather than the edibles, oils, and waxes.

The Bail-Bondsman & The Attorney:

With the higher accusations come the higher bail bond amounts and higher attorney fees.

Bonds across the State of Texas generally fall within the following ranges depending on the penalty range:

1
1

Class “B”: $500-$1,500

2
2

Class “A”: $1,000 to $3,000

3
3

SJF: $3,500 to $8,000

4
4

3rd Degree: $10,000 to $20,000

5
5

2nd Degree: $15,000 to $40,000

6
6

1st Degree: $40,000 and above

In most instances a person accused of possession will seek the services of a bail bondsman who would charge 10% of the total bond as the bondsman’s fee. So for example if the person is charged with possessing a 30 gram marijuana cookie in the 2nd Degree Felony range, and the bond was set at $20,000, the person would need to come up with $2,000 to bond out. The bail bondsman then acts as a surety and vouches for that person that that person will show up to court.

In addition to the higher bond amounts come the higher attorney fees. It is industry standard for attorneys to charge a certain amount of money depending mostly on the punishment range level of the crime. Complexity of the crime and estimated amount of work the attorney may have to do also is a factor in the pricing. But basically, representation on a SJF accusation starts out in Texas at the bottom range of $3,500 for a pre-trial fee and $3,500 for a trial fee. The fees only go up from there when the punishment range goes up. Attorneys put their law license on the line every time they represent someone, and when the stakes are higher, the fee is higher.

someone, and when the stakes are higher, the fee is higher. The Lesson No matter what

The Lesson

No matter what your feelings on whether marijuana should be made legal in Texas or not, be aware of the extreme penalty ranges for some of the cannabis products and the corresponding bail bondsman and attorney fees.

25 by Patrick F. McCann Post-Traumatic Stress Disorder is a condition that occurs in people
25
by Patrick F. McCann
Post-Traumatic Stress
Disorder is a condition
that occurs in people
who have experienced
a frightening or violent
event, i.e., trauma.
The condition’s symptoms
include nightmares, avoidance
of the situations or people that
remind the individual of the
incident or series of incidents,
flashbacks to the incident,
trouble sleeping, and feelings
of being on edge. Symptoms
usually continue for over a
month and can normally be
traced to a specific indecent
or series of incidents.
Some people are familiar
with this condition through
their readings or experience
with veterans who have faced
combat or hostile fire, or
incidents like the USS Cole
bombing. PTSD can manifest
within a few months of the
incident or sometimes even
months or years later.
However, veterans are not
the only ones who experience
trauma. Many of us have
had veterans as clients, and I
frankly started learning about
this disorder because of my
attempts to assist veterans
in criminal court, but if you
think about it, many of our
clients have been exposed
to trauma.
People who were physically
abused as children, people
who were assaulted in prison,
women or men who were
sexually assaulted, young
people who were part of
gangs and the violence in their
neighborhoods, people who
have lost family to suicide, or
been in a deadly fire, or were
injured in a tragic car accident,
all can experience PTSD.
Now, before you get skeptical,
think about the questions on
the following page as they
relate to our clients, and see
if it is likely our clients could
answer “Yes” to any of these
questions,
regardless
of why.
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

CONTINUED : WHY BAD THINGS KEEP HAPPENING TO YOUR CLIENT

26

DO YOU HAVE NIGHTMARES? DO YOU FEEL ANXIOUS? [CANNOT SIT STILL, WORRIES, LESS THAN CALM]
DO YOU HAVE NIGHTMARES? DO YOU FEEL ANXIOUS? [CANNOT SIT STILL, WORRIES, LESS THAN CALM]

DO YOU HAVE NIGHTMARES?DO YOU FEEL ANXIOUS? [CANNOT SIT STILL, WORRIES, LESS THAN CALM] DO CERTAIN SOUNDS OR

DO YOU FEEL ANXIOUS?DO YOU HAVE NIGHTMARES? [CANNOT SIT STILL, WORRIES, LESS THAN CALM] DO CERTAIN SOUNDS OR SMELLS

[CANNOT SIT STILL, WORRIES, LESS THAN CALM]

DO CERTAIN SOUNDS OR SMELLS MAKE YOU FEEL ANXIOUS?FEEL ANXIOUS? [CANNOT SIT STILL, WORRIES, LESS THAN CALM] ARE YOU UNCOMFORTABLE IN CROWDS? ARE YOU

ARE YOU UNCOMFORTABLE IN CROWDS?CALM] DO CERTAIN SOUNDS OR SMELLS MAKE YOU FEEL ANXIOUS? ARE YOU FRIGHTENED BY SUDDEN LOUD

ARE YOU FRIGHTENED BY SUDDEN LOUD NOISES?MAKE YOU FEEL ANXIOUS? ARE YOU UNCOMFORTABLE IN CROWDS? ARE YOU UNCOMFORTABLE IF YOU CANNOT SEE

ARE YOU UNCOMFORTABLE IF YOU CANNOT SEE THE ENTIRE ROOM?IN CROWDS? ARE YOU FRIGHTENED BY SUDDEN LOUD NOISES? DO YOU EVER FEEL UNEASY OR THREATENED?

DO YOU EVER FEEL UNEASY OR THREATENED?ARE YOU UNCOMFORTABLE IF YOU CANNOT SEE THE ENTIRE ROOM? [OR, DO YOU HAVE SUDDEN ANGRY

[OR, DO YOU HAVE SUDDEN ANGRY OUTBURSTS FOR NO APPARENT REASON?]

DO YOU HAVE TROUBLE SLEEPING?DO YOU HAVE SUDDEN ANGRY OUTBURSTS FOR NO APPARENT REASON?] DO YOU AVOID NOISY AREAS? DO

DO YOU AVOID NOISY AREAS?FOR NO APPARENT REASON?] DO YOU HAVE TROUBLE SLEEPING? DO YOU HAVE NEGATIVE VIEWS OF YOURSELF

DO YOU HAVE NEGATIVE VIEWS OF YOURSELF OR FEELINGS OF GUILT OR BLAME?DO YOU HAVE TROUBLE SLEEPING? DO YOU AVOID NOISY AREAS? These questions are not all encompassing,

These questions are not all encompassing, nor are they a sure fire way to detect PTSD. If you take the risk factors, for instance, abusive childhood, or anyone who has been involved in a CPS case, or prior military service in a hazardous area or direct combat, or prior prison time, or prior losses of loved ones in a violent

way, for example – and then observe the client – is the client hyper-vigilant, keep his/her back to the wall, head on

a swivel, or does the client complain of

sleeplessness, irritability, bad dreams,

take anti-anxiety medications, does the client appear to look for threats or complain about how some guard reminds client of abusive dad, “that bastard”, etc.

– then this connection between the risk

factors and your actual observation of such behavior is worth following up for

several reasons.

First, the circumstances that produce the PTSD are often quite mitigating to juries,

judges, and prosecutors. It will not always help, but if people begin to see your client as the kid who was abused and placed in

a foster home instead of the armored car

robber, then this can only help. Second, the PTSD itself is often the root of the actions that got your client in court in the first place. Whether it is being caught with controlled substances that they use to anesthetize, or the drinking that led to the DWI, or a flashback that caused an over-aggressive reaction that led to

an assault charge, a diagnosis of PTSD could mean you have both an explanation for the illegal act and a way forward, i.e. treatment. This can only help your client. Last, it can provide, in some instances, a defense, particularly if you can put the fact-finder back in the incident that caused the PTSD and see how it was perceived by the client. In limited instances, PTSD may even provide a defense against intent, if you can prove a flashback occurred or that the circumstances were misperceived.

So, we know to at least look for the presence of this disorder in our all too-often traumatized clients. Next, since we are lawyers, we need to prove this, so we can use it. If our client is a veteran, often that simply means obtaining the veteran’s medical records, if they already have such a diagnosis. If a vet does not have the diagnosis yet, then see if a VA examination and diagnosis can be arranged. First, though, you may need to obtain the records that support the diagnosis, such as combat awards (a Purple Heart, a Combat Action ribbon, commendations with a combat “V” for valor, awards for heroism, such as a Bronze Star, or a unit citation)

or the discharge papers, called a “DD-214”, which will list the job, deployments, and action history of the service member. We can also look to the unit history maintained in the archives of the separate services, which will list combat or hazardous actions by the veteran’s unit. These can be obtained by a VA release form downloaded off the web or available at the VA.

For our civilian clients, the records process is more tricky. Prison and jail discipline or medical records are often a surprising gold mine, even if it looks as if your guy was written up for the fight. Attacks on your client are often documented in either medical or disciplinary records. An average reader of such records may frown on this, but how many of your friends would respond with calm equanimity to an attempted sexual assault or shanking? For older cases of sexual or physical abuse to a client during their childhood, a subpoena typically to the Children’s Protective Service agency in the county where the child grew up will unearth such history as will a release for any medical or counseling records. Juvenile records are often also a good source for this information.

You may also want affidavits from family members (this works for the vets above as well]) as to the client’s waking up at night screaming, increased drinking, increased drug use, or sudden bursts of temper since returning from prison, the service, the fire, or since leaving foster care.

Which

brings

up

a

point

-

PEOPLE DO NOT LIKE TALKING ABOUT TRAUMATIC EVENTS BECAUSE THEY WERE TRAUMATIC.

You need to get at least some trust, some facts, or some family help you to prove up this disorder because no one likes sharing difficult times from their past with strangers. Would you? Keep this in mind and treat the issue with some dignity. Do not expect immediate help from the client as to the horrible things endured in the past. This conversation does not happen in a holdover cell meeting; it happens over time and investigative effort and once trust is established between attorney and client.

Look for the PTSD that many of our clients have, find the proof, and use it to lessen their consequence.

and client. Look for the PTSD that many of our clients have, find the proof, and
client. Look for the PTSD that many of our clients have, find the proof, and use

27

THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

28

SAM HOUSTON AND THE

Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. 1

I.

Whereas Thomas Hobbes held that all authority exercised by government must be vested in one man, 2 or assembly of men, Montesquieu argued for a division of power:

In every government there are three sorts of power

By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies; establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals

This, roughly, is the distribution of the authority of the legislative, executive, and judicial branches with which we are familiar. Montesquieu considers what could occur if these powers were vested in the same entity:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the

legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. 3

James Madison and Alexander Hamilton, among many others, conceived a constitution that would give each branch of government the means by which to maintain independence: a sort of Newtonian machine by which the ambitions of the participants could be harnessed to counteract ambition. 4

The U.S. Constitution does not explicitly contain the phrase “separation of powers” nor is there an implied statement of its intent to accomplish it, 5 but the Constitution’s first three Articles set out separately the composition and powers of the legislature, the president, and the courts. There is clear language at the beginning of each of the three Articles that all powers appropriated to each branch of government shall be vested only in that branch.

by Joseph W. Varela

SEPARATION OF POWERS

II.

It was 1832, and Sam Houston had a problem. He was freshly back in Washington, and upon picking up a newspaper, 6 he saw that Ohio Congressman William Stansberry had made a speech on the floor of the House of Representatives. In that speech, Stansberry accused Houston of being one of a cabal of Jackson Administration cronies who were favored in the award of certain contracts. Houston‘s political career was at a temporary ebb, and he could not afford to see his reputation lowered by this affront. Houston avenged the accusation in a manner not uncommon in early nineteenth-century American politics:

he armed himself with a heavy hickory walking stick and went in search of Stansberry. 7

It wasn’t long before Houston caught up with Stansberry one evening on Pennsylvania Avenue. Houston began striking Stansberry with the stick. The latter shot at Houston with a pistol, but the weapon misfired. After further blows, Stansberry escaped.

Days later a resolution was introduced in the House of Representatives, calling for Houston’s arrest and trial. Congressman (and future president) James Polk argued that the House lacked authority for such an action, but the resolution passed by a wide margin, and Houston was arrested. He was freed on his own recognizance and bound over for trial in the constructive custody of the House’s Sergeant at Arms.

The “trial” was a sensation. Houston’s lawyer was none other than Francis Scott Key, composer of the national anthem. That advocate appeared to be suffering from the effects of an excess of drink, and Houston, a trial lawyer himself, stepped in and conducted his own defense.

lawyer himself, stepped in and conducted his own defense. Sam Houston, Hermann Park, City of Houston.

Sam Houston, Hermann Park, City of Houston. (Photo by Author)

Houston began his defense by attacking the authority of Congress to try him. Speaking of his trial, he declaimed:

If such a discretion is in your hand, the power

over

a man who had not, in any way, interrupted

your deliberations. If you can arrest him, you may not only fine him, and imprison him, but you may inflict upon him torture and

Gentlemen have admitted that the power they claimed is not found in the Constitution. Then where is it?

of punishment must extend to life itself

29

THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

CONTINUED : SAM HOUSTON AND THE SEPARATION OF POWERS

30

2 CONTINUED : SAM HOUSTON AND THE SEPARATION OF POWERS 30 And, warning of the consequences

And, warning of the consequences should the procedure become popular:

it has been deemed not sufficient to rely

upon the Constitution

members have been appealed to

the House to act under the influence of partiality and to sacrifice its duty, the law, and the Constitution to merely personal consideration it is not my rights alone, but the rights of

millions that are involved here

personal feelings of

to induce

When one member cited the actions of France’s revolutionary National Assembly 8 as precedent, Houston was ready with an answer:

What legislative bodies could have been more

corrupt than they?

usurped the power they exercised—and terror struck the hearts of men who had no home, no country: for where there is no security to the citizen there is neither home nor

they themselves had

Houston was found guilty. The punishment: to be reprimanded by the Speaker of the House. The sentence was duly carried out. 9

III.

While the separation of powers doctrine generally frowns upon any one branch of government encroaching upon the powers of any of the other two, of particular interest to us is Sam Houston’s situation. The problem arises when the legislative branch attempts to exercise a power traditionally held to belong only to the judiciary: the power of punishment.

A bill of attainder is a legislative finding of guilt and imposition of punishment. Congress is expressly forbidden from making a bill of attainder 10 and so are the states; 11 all fifty state constitutions forbid bills of attainder. 12

The U.S. Supreme Court considered bills of attainder in cases arising after the Civil War. 13 Those cases concerned loyalty oaths as a condition of professional licensing, not legislatively imposed punishments. The first modern treatment of bills of attainder occurred in U.S. vs. Lovett, 14 which arose during World War II. Congress passed an appropriations bill, which contained a section that purported to deny salaries to thirty-nine named federal employees for alleged “subversive activity.”

The bill forbade that the named individuals receive any compensation for government employment, except for service as jurors or soldiers. A special subcommittee of the House Appropriations Committee convened a hearing, at which the subjects of the bill were permitted to testify but were not allowed counsel. The special subcommittee noted that there was no legal definition of “subversive activity,” so it furnished its own definition for the occasion. Lovett and others were found “guilty.” After acrimonious debate, both houses passed the appropriations bill, including the section cutting off the salaries. President Roosevelt signed it to avoid problems funding the war, but he entered a statement in the record that he believed the provision denying compensation for government employment to the particular thirty-nine individuals to be unconstitutional.

The U.S. Supreme Court agreed. Writing for the majority, Justice Hugo Black held that Lovett’s situation constituted a bill of attainder because it identified specific persons and inflicted a punishment without the safeguards of a judicial trial. In doing so, the Supreme Court established this formula as the test for bills of attainder.

established this formula as the test for bills of attainder. No Texas law has been invalidated

No Texas law has been invalidated as an unconstitutional bill of attainder under either the U.S. or Texas Constitutions.

A recent case, In re Commitment of Miller, 15 was a challenge

to the Texas sex offender civil commitment scheme. 16 The

Supreme Court, in Kansas v. Hendricks, 17 had previously held that civil commitment is not punishment, but instead

was intended to effect protection of the public and, possibly, treatment of those committed. The Miller court, therefore, found that since there was no punishment, such

a scheme did not function as a bill of attainder.

The rarity of litigation concerning bills of attainder argues that the Constitution has successfully discouraged their use. 18

---------------------------------------------------------------------

1 Temporary Restraining Order, State of Washington et al. vs. Donald J. Trump et al.; Case No. C17-0141JLR, United States District Court for the Western District of Washington, February 3, 2017.

2 Leviathan, Chapter XVIII (1651).

3 The Spirit of the Laws, Vol. 1, Book XI (1748). Trans. Thomas Nugent (London: J. Nourse, 1777). Charles- Louis de Secondat, Baron de Montesquieu was the great French lawyer, political philosopher and historian who influenced the French Revolution and modern constitutional thought. Separation of powers is only the greatest of his many achievements. Nowhere is his influence stronger than in the U.S. Constitution.

4 Federalist No. 51 (1788). See generally, Donald S. Lutz, The Origins of American Constitutionalism, (Louisiana State University Press, 1988).

5 Cf. Virginia Constitution of 1776.

6 National Intelligencer, April 3, 1832.

7

The story is told by Houston’s biographer, M. K. Wisehart, in Sam Houston, American Giant (Van Rees Press, 1962).

8

See, generally, Simon Schama, Citizens: A Chronicle of the French Revolution (Random House, 1989).

9

Later Houston was found guilty in a proper court of assault and fined $500.

10

U.S. Const. art. I, § 9.

 

11

U.S. Const. art. I, § 10.

12

E.g., Texas Const. art. I, § 16.

 

13

Ex Parte Garland, 71 U.S. 333 (1866); Cummings v. Missouri, 71 U.S. 277 (1867).

14

328 U.S. 303 (1946).

 

15

262

S.W.3d

877

(Tex.

App.-Beaumont

2008,

pet. ref’d.).

 

16

Tex. Health & Safety Code §841.003.

 

17

521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501, 65 U.S.L.W. 4564 (1997).

18

But see Matthew Steilen, “Bills of Attainder,” 53 Hous. L. Rev. 767 (2016), arguing that the real problem is executive non-judicial punishments, e.g. asset forfeiture, and that the Bill of Attainder Clause encompasses them as well. Steilen’s article also provides a good history.

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THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2

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war STORIES

THE EXTRAORDINARY MEASURES TAKEN TO COVER UP A LIE

The prosecutors in the City of Carrollton Municipal Court have a reputation for being unfair, and the Court is notorious for its draconian policies. While some matters are discretionary, others are not. The Michael Morton Act, codified under Article 39.14 of the Texas Code of Criminal Procedure, is mandatory, and Carrollton prosecutors have intentionally violated the law. When they got stuck in a corner, instead of admitting error, they lied in a blatant attempt to cover-up what they did wrong.

On March 1, 2018, I submitted a request under Article 39.14 for my client’s discovery files as he believes he was racially profiled and did not know why he was detained by the

police. My client was not charged with nor given warnings for any moving violations, and he wanted to know the reason for the traffic stop.

On March 2, 2018, Mary Scanlon, the main prosecutor in Carrollton, responded that she would not provide electronic duplicates of the videos in question, but that I could set-up a

time to view the videos on days when she was available. I explained that my schedule was too busy, and I simply wanted the electronic duplicates that Michael Morton requires. Scanlon replied that it was “unfortunate” that

I had a busy schedule, but she would not be providing same. I informed

Scanlon that I would provide a blank DVD or flash drive and asked where

I should drop off the media device.

BY stephen le broCq

On March 5, 2018, Scanlon responded that it would be “unreasonable” to think that she would allow a device from an “unknown source” to be put into one of the City’s computers. As ridiculous of an assertion that this was, I replied that

I would supply a brand-new flash drive or disc in unopened packaging. Scanlon did not respond, so I sent another email on March 6, 2018 as a final attempt to get the electronic duplicates of the officer’s in-car dash and body worn cameras. Scanlon continued to resist and stated that it was her office’s “policy” and there were “no exceptions.” Scanlon encouraged me to file a motion with the Court, so I did.

That same day I filed a motion to compel discovery, requesting the videos and requesting the Court order the City Attorney’s Office to change their policy so it would be in compliance with the Michael Morton Act. On March 15, 2018, the motion was heard in a separate courtroom outside of the normal docket. It was on the record. Susan Keller represented the State of Texas at the hearing, and Scanlon was not present. For the first time, Keller represented to the Court that their office had no capability of downloading the videos. I found this argument to be strange for multiple reasons. First, Scanlon never mentioned this in any of her e-mails. You would think that if I offered to provide a flash drive or DVD and that it was technologically impossible to copy media, that Scanlon would have replied as such. Next, I am aware of the software and technology used by Carrollton: WatchGuard.

The company advertises how simple it is to download the videos and the multiple methods by which a download could occur:

DVD, USB Drive and even cloud-sharing.

I knew that Keller’s representations to the Court were patently false.

Nevertheless, as routinely done, the Court sided with the Government and denied my motion completely. Later that day after the hearing, I filed a Request for Findings of Fact and Conclusions of Law. On March 19, 2018, the Court faxed me its findings and conclusions. The Court placed its emphasis on the fact that I did not try to work with the City to find a time to view the video, even when I was not asking to view it— I was asking to electronically duplicate it.

The Michael Morton Act allows many different options for discovery, which are conjunctive, and viewing discovery is one of the options allowed. My client wanted

to see his video in my office, as is his right. The Court also apparently created new definitions of the plain-term “electronic duplicate”, finding that it “could mean” making a “video of the video.” In my motion,

I cited dictionary terms, which the Court

disregarded. Duplicating something is a replica. The videos have Metadata—stored information regarding when the videos were downloaded, created, edited, etc… Furthermore, I did not want to hold my phone to a computer screen or projector and capture a video of a video. I held off doing anything for a couple of months while I was working on other cases.

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THE DEFENDER / 2018, VOLUME 2

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On April 23, 2018, I filed a Motion for Leave for Petition to File a Writ of Mandamus, Writ of Prohibition, and for Emergency Relief in the Texas Court of Criminal Appeals (“CCA”). On May 2, 2018, the CCA ordered Judge Meredith Lyon to respond to the motion I filed. On May 15, 2018, Scanlon e-mailed me that “[t]he prosecutor [sic] office now has the ability to download [the videos] and burn them to flash drives.”

Later that day, I filed a request under the Public Information Act for documents that would show the purported “upgrade” of the computer system that I know was false. On May 17, 2018, Carrollton responded by sending me an invoice for $7,056.00, estimating that it would take 320 hours of labor to find the basic documents I asked for. I was curious as to why it would take so long to find something that was supposedly done within the past month or so. I filed a complaint with the Attorney General’s Office on May 17, 2018, and it is still pending.

Carrollton hired a private law firm to represent their interests. I discussed proposed on many occasions, dismissing to dismiss the mandamus petition as moot, if they would represent that the “new policy” would stay in effect. They would not agree, and I filed a motion to disqualify their counsel as a conflict because the Judge and City Attorney hired the same lawyer. The City Attorney’s Office has 5 attorneys, plus the City was never ordered to respond to the Mandamus, so it’s unclear why the City hired this law firm, especially if the City “fixed” the only

issue that made the Mandamus ripe. I have filed a motion to dismiss Mandamus as moot, and Carrollton’s lawyers are asking for sanctions, stating that my motion to disqualify them was baseless. I then filed a civil suit to prevent the law firm from being paid since it violates the Gift Clause.

Dallas Morning News wrote an article about this case, and several people have reached out to me regarding it. Additionally, when I tried to contact Carrollton about the issues within the Court, the private law firm sent me a cease and desist letter, stating that I violated ethical rules—essentially threatening me and suppressing free speech. As a result of that letter and the prosecutors’ actions, I have also filed a federal lawsuit in the Northern District of Texas. All defendants in the State and Federal cases have been duly served with process. Stay tuned for the outcome of this conflict and hope that justice will prevail.

stephen le brocq

The managing partner of Le Brocq Law Firm PLLC, Mr. Le Brocq, attended middle school and high school in the Carrollton Farmers Branch Independent School District. After graduating high school, Mr. Le Brocq attended law school in Michigan and started his legal career in Chicago. After obtaining experience in public defender ����and state prosecutor ���� Mr. Le Brocq worked at a large plaintiff’s ���in Chicago handling mostly medical malpractice and wrongful death cases. He then opened a general practice ���in Chicago, which he later expanded to Dallas. Desiring to stay focused on the Carrollton community and to give back, Mr. Le Brocq opened an additional location to his �� across the street from the Carrollton Municipal Court. His ���handles hundreds of ����ticket cases, but the majority of his practice focuses on criminal defense, personal injury, and family law. He currently practices in State and Federal court all across Texas and in Chicago Land.

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DEFENDER

2018 / VOLUME 2

THE DEFENDER PO Box 924523 Houston TX 77292-4523

DEFENDER 2018 / VOLUME 2 THE DEFENDER PO Box 924523 Houston TX 77292-4523
DEFENDER 2018 / VOLUME 2 THE DEFENDER PO Box 924523 Houston TX 77292-4523