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2018

VOLUME 2

YOUR CLIENT

Learn more starting on page 25
WHAT’S INSIDE 2018, VOLUME 2
CLE EVENTS
WINNING WARRIORS SEMINAR
OCT 19

DONALD DAVIS SEMINAR
NOV 8
CLE EVENTS
2
ANY QUESTIONS?
Visit the calendar at www.hccla.org 4 OFFICERS, BOARD OF DIRECTORS
PAST PRESIDENTS

A WORD FROM YOUR PRESIDENT
BY DOUG MURPHY 5
8 WINNING WARRIORS

CELEBRATING THE ALL-STARS OF THE
DEFENSE BAR: 48TH ANNUAL BANQUET
BY CHRISTINA APPELT 12
16 HCCLA NEWS ROUND UP
WELCOME NEW MEMBERS
SPECIAL ELECTION ISSUE DETAILS

ADDICTION IS AN ILLNESS...
NOT A CRIME
BY CHRIS MCKINNEY 17
21
THE RISKS OF A COLORADO
CANNABIS VACATION
BY D. CHRIS HESSE

WHY BAD THINGS KEEP HAPPENING
TO YOUR CLIENT WITH PTSD...
AND HOW TO STOP IT
BY PATRICK F. MCCANN
25
28
SAM HOUSTON
AND THE SEPARATION OF POWERS
BY JOSEPH W. VARELA

32
THE EXTRAORDINARY MEASURES
TAKEN TO COVER UP A LIE
BY STEPHEN LE BROUQ
4 C. ANTHONY FRILOUX 5
STUART KINARD
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
the defender GEORGE LUQUETTE
MARVIN O. TEAGUE
PUBLISHER
DICK DEGUERIN
HCCLA
W.B. HOUSE, JR.
EDITOR

past presidents
LORI BOTELLO DAVID R. BIRES
ADS & DISTRIBUTION WOODY DENSEN
ROBERT PELTON
CHRISTINA APPELT
1971-2018 WILL GRAY

DESIGN & LAYOUT
EDWARD A. MALLETT
CAROLYN GARCIA a word from your president
Doug Murphy
BROCHURE BUILDERS
B
 RANDI DELOACH JACK B. ZIMMERMANN
WWW.BROCHUREBUILDERS.COM
CLYDE WILLIAMS
ROBERT PELTON
CANDELARIO ELIZONDO
ALLEN C. ISBELL
DAVID MITCHAM Dear Members of HCCLA- I know I would not be the lawyer I am today
without this opportunity. It is incumbent on all
JIM E. LAVINE It is with great honor that I carry the baton for the of us to ensure that all lawyers receive similar
RICK BRASS next year passed on by many great lawyers before opportunities to learn what has been passed down
to us. There are great lawyers, and lawyers who
2018-2019 MARY E. CONN me that led HCCLA to become the largest local
are working to be great. I recall as a young law
Hccla officers & board KENT A. SCHAFFER
DAN COGDELL
and most robust criminal defense bar in the nation.
The legacy of HCCLA has really been created student attending an HCCLA cross examination
seminar featuring Terry MacCarthy. On the stage
JIM SKELTON
by the legacies of Percy Foreman and Richard
“Racehorse” Haynes and their many proteges. was also Racehorse Haynes. I was completely
GEORGE J. PARNHAM awestruck by their presence, and the substance
PRESIDENT EXECUTIVE DIRECTOR The legal mentoring and experiences Percy and
DOUG MURPHY CHRISTINA APPELT GARLAND D. MCINNIS of their presentations. If the Rolling Stones had
Race provided all their many proteges really took
ROBERT A. MOEN been playing next door for free, you could have
root and spread to all lawyers in Harris County
PRESIDENT ELECT BOARD OF DIRECTORS LLOYD OLIVER and throughout Texas. Many of us are the lawyers not lured me away. That experience made a lasting
NEAL DAVIS CORDT AKERS DANNY EASTERLING we are today due to Percy and Race’s generational impression on me and helped instill and create
JIMMY ARDOIN WAYNE HILL reach. Before going to law school, I remember good cross-examination techniques and habits
VICE-PRESIDENT STACI BIGGAR that I still employ today. Another memorable and
RICHARD FRANKOFF reading Texas Lawyer.
MARK R. THIESSEN LORI BOTELLO impressionable experience was the camaraderie
W. TROY MCKINNEY
KATE FERRELL of the HCCLA bar. I remember meeting a
CYNTHIA HENLEY All the great Texas civil and
SECRETARY JUSTIN C. HARRIS friendly lawyer named Danny Easterling who was
STANLEY G. SCHNEIDER interested in helping soon-to-be lawyers. Danny’s
DAVID RYAN GEMAYEL HAYNES
JORDAN LEWIS
WENDELL A. ODOM, JR. criminal defense trial lawyers— encouragement made me feel welcomed to a band
ROBERT J. FICKMAN
TREASURER W. TROY MCKINNEY the really colorful and truly of lawyers before even graduating law school.
STEVEN H. HALPERT RAND MINTZER PATRICK F. MCCANN
These lasting impressions that HCCLA made
PAUL M. MORGAN MARK BENNETT interesting lawyers— on me need to be passed onto to the next
PAST PRESIDENT TODD OVERSTREET JOANNE MUSICK
TUCKER GRAVES DAMON PARRISH II
were all from Houston. generation of lawyers that are full of passion and
NICOLE DEBORDE desire to be the next generation of criminal
JED SILVERMAN EARL D. MUSICK defense lawyers to carry the baton for HCCLA.
J. JULIO VELA
HCCLA has an abundance of great lawyers.
CHRISTOPHER L. TRITICO And many great teachers. For 18 ½ years, I had My goal as your HCCLA president is to work as
JOE VINAS hard as I can to fulfill 3 goals on top of carrying
T.B. TODD DUPONT, II the great benefit of a great mentor, friend and law
SARAH V. WOOD out the mission of HCCLA.
CARMEN M. ROE partner in Gary Trichter.
JOANNE MUSICK
TYLER FLOOD
6 7
PROVIDE MORE SUBSTANTIVE PROMOTE CIVILITY AND
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
in providing our input for improving the CJC. a public defender whose work performance and
TRIAL SKILLS CONTINUING PROFESSIONALISM IN HCCLA It’s certainly a long laundry list. integrity has never been questioned in his 8 years
LEGAL EDUCATION as the Harris County Public Defender.
Third, I want to promote civility and
First, we need to provide more substantive trial professionalism in HCCLA and in our practices. ANNUAL HCCLA BANQUET I would like to thank Pat McCann and Nicole
DeBorde for their assistance, Mac Secrest as
skills continuing legal education. HCCLA has Our diversity is our greatest strength, but hostility member of PDO advisory board, David Gerger on
many living legal legends that can share their is our greatest weakness. Make no mistake, Our annual banquet was a great success due to
behalf of NACDL, and David Moore on behalf of
wisdom and experience. Tyler Flood stepped up to fervent debate is healthy. Being civil in the face of all the attendees and the hard-working efforts of
TCDLA for appearing and speaking in support of
our esteemed executive director Christina Appelt.
the plate as CLE Curriculum Chairman. Seven days adversity is not a sign of weakness, it is a sign of Alex Bunin and the Public Defender’s Office.
after taking office, Tyler created a great lineup of strength. It also doesn’t mean we as an organization Christina secured a new and beautiful venue in
Mac’s sage wisdom saved the day by persuading
speakers for the Winning Warriors: Earning Your will sit idly by and let transgressions go unchecked, downtown that will allow our continued growth
the commissioner’s court to pass a motion requiring
Stripes seminar. It was a great success and also it just means that we will engage in a professional as the banquet continues to grow and evolve.
the PDO advisory board to conduct an investigation
provided HCCLA a financial boost to continue way that allows us to be part of the solution, and Thank you, Christina, for everything you do for
as to whether the information disclosed by Alex
carrying out the mission. not part of the problem in a scorched earth style us, and congratulations to all the deserving award
Bunin violated any law. David Moore had the best
attacks. There will never be any censorship or recipients. It was a special night for us all!
quote of the day in his rebuttal to Commissioner
restriction on the HCCLA list-serve. Free speech Cagle’s question of whether he was old school in
GROW AND INVOLVE allows a free marketplace for the best ideas to rise revealing the names of his clients. David said, with
OUR MEMBERSHIP to the top. A true democracy that we all believe HARRIS COUNTY PUBLIC his thoughtful east Texas drawl, I’d like to think
in provides the true freedom for free speech and DEFENDER’S OFFICE I’m old school, but if I was, I’d be drinking from
Second, we need to grow the membership creative thinking. The best ideas survive segregated waters. It was a poignant moment that
of HCCLA. Not just increase the size of our by meritocracy. Sometimes the manner in On June 12, 2018, the Harris County
encapsulated the issue of why Alex released the
membership (although I did audaciously pledge to which some folks respond turns off other people. Commissioners placed on their agenda to
information to a study on racial discrimination in
acquire 100 members in the first 100 days of taking You have the right to choose whomever you determine the continued employment or
the juvenile courts.
office), but a huge focus is engaging the robust want to be. reclassification of Harris County Public Defender,
resources of experienced lawyers to mentor and Alex Bunin. We learned of this in Houston This will be an ongoing and continuing issue, and
To quote a Florida lawyer and mentor of mine, Chronicle on the Friday before the Tuesday we will keep everyone posted. We will continue
teach younger lawyers. Doing so will provide Sarah
Flem Whited: “Be yourself, unless you is losing, commissioner’s meeting. HCCLA rallied and to need everyone’s involvement in maintaining an
Wood and Damon Parrish II, the passionate leaders
of the HCCLA “Second Chair Program”, with more
and/or you is an asshole.” And nobody likes an fought for an independent public defender’s independent public defender’s office.
Asshole. We all believe in our cause, we have office. We packed commissioner’s court and it
experienced lawyers to expand and improve the
significant differences of opinions on how to go was standing room only with many people
reach of this important program.
DECLARATION OF
CONTINUED : A WORD FROM YOUR PRESIDENT

about achieving our goals. In a time of disunion, standing in the hallway.
We also created a federal component to HCCLA we need to unify and work together. INDEPENDENCE READINGS
as some of our greatest lawyers who practice Commissioners Jack Cagle and Steve Raddack
almost exclusively federal court are also involved took issue with Alex providing public
Thanks to Robb Fickman for creating what has
in HCCLA. Jimmy Ardoin agreed to take the UPDATE ON CJC information to the litigants in the bail bond
become a tradition of reading the Declaration of
reins as chairman of this newly created federal lawsuit and also providing information regarding
Independence just before July 4th. This tradition
committee to bring more federal lawyers into the There will continue to be challenges logistically juveniles to the Texas Criminal Justice Coalition
has spread not just throughout every county in
fold. Other good news is that as of June 28th we with our courthouses. We all need to work together investigating racial discrimination in juvenile
Texas, but throughout the nation by criminal
acquired exactly 100 members since taking office to be part of the solution, not the problem to make courts. The commissioners are clearly retaliating
defense lawyers. It’s a patriotic way of reminding
on May 10th, making good on my pledge. Will things safer for all involved. Thanks to former against Alex not just over the bail bond lawsuit,
everyone about what it truly means to be American,
still have a long way to go to get our membership HCCLA President Chris Tritico for leading the but also due to Judge Phillips’ well-publicized and
and why we enjoy the constitutional protections.
numbers back to where they belong. Thanks to all charge behind voicing solutions to the Harris embarrassing recusal on a juvenile case. Shortly
We must always be vigilant in protecting these
the hard-working board members contributing County Commissioners Court on needed changes after Judge Phillips’ recusal, a Public Information
freedoms.
their time and efforts in making this possible. for the CJC. Progress has begun with the jail Act request was made by former Harris County
dockets moving back to top 4 floors of the CJC. DA investigator Kenny Rogers (apparently at the
This is much safer for everyone. We will continue behest of Commissioner Cagle) to the PD’s office
to work with the judges and all other stakeholders for Alex Bunin’s emails. Interesting timing for
8 9
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
Julio Vela ended the year with a bang, securing a NG Brad Walters in CCCL4 really needed to win for D to David Adler pleads D in SDTX on 51 kilos of cocaine, ADA wanted max time for .24 blood DWI in Washington
in CCCL11 on a .14 DWI, poking holes in the cop’s keep job, so initially agreed to PTI. Paid for interview, spread over 5 trips out of state. No 5k, only safety valve. County. D has CDL and has a clean record. Phil Baker
credibility during his cross. JV then learned W is approved, but DAs have no contract 3 months and Due to some super-secret great lawyering, D got 12 months teed it up and got NG.
expecting their daughter, so there won’t be any poking and 2 resets later. Brad finds unshared Brady notice in State file, and a day. ••••••••••••••••••••••••••••••••••••••••
banging for a while. so takes a .08 DWI to trial and hears the sweetest 2 words •••••••••••••••••••••••••••••••••••••••• When is a win not NG? When you beat the offer! Team Bob
•••••••••••••••••••••••••••••••••••••••• in the family law center… I mean courthouse. DV for HCCLA President Doug Murphy in FBCCL5 and Doug Loper got a jury to deliver a 23 year sentence
Alex Azzo secured an acquittal in DC230 on an Attempted •••••••••••••••••••••••••••••••••••••••• on DWI. The Dougie followed up with NG in CCCL1 on the lesser offense of murder in DC434. The trial started
Sexual Assault. Word is State didn’t fully argue case Adam Brown got a murder mistrial in DC122. Somehow, on >.15 DWI. as a non-death capital.
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 Immediate Past HCCLA President Tucker Graves got a Donale Evans got a mid-trial dismissal (really, mid-
argue again. Gutsy. then hung a jury in DC56 for capital murder of a child. hung jury on ASAC in DC184. cross examination of LEO) on .10 breath DWI. PTI
•••••••••••••••••••••••••••••••••••••••• •••••••••••••••••••••••••••••••••••••••• •••••••••••••••••••••••••••••••••••••••• turned down, and Donale pointed out mistake after mistake
Patrick McCann, HCCLA Mentor of the Year, saw Lindsay Lopez and Adam Capetillo got DV in FBCCL1 HCCLA President Elect Neal A. Davis hung a jury on after mistake.
a satisfying end of his years long fight to end TX death on AFV. After jury sworn, State sought to amend Indecency in DC176. ••••••••••••••••••••••••••••••••••••••••
penalty cases involving intellectually disabled Ds information because they had CW named wrong. Lindsay •••••••••••••••••••••••••••••••••••••••• Armen Merjanian and Cory Roth heard the big NG on
when HCDAO agreed to a term of years for D after credits David Ryan for the idea to cross CW if CW had Ralph and Lisa Gonzalez heard NG on Agg Robbery POM in’ Colorado County. 63 year old D with no criminal
SCOTUS overruled Briseno. ever been known by that name, and CW had not. That was and Agg Kidnapping in FBC. D and ADAs both wept as history and the State refused all reasonable offers to
•••••••••••••••••••••••••••••••••••••••• enough for TC to decide enough. verdicts were read – but for very different reasons. dismiss. Cory followed up with NG on AFV in CCCL15,
Justin Harris got a big NG in CCCL2 on AFV. D •••••••••••••••••••••••••••••••••••••••• •••••••••••••••••••••••••••••••••••••••• with LEO testifying LEO saw D hitting CW. TC refused to
accused of biting CW (that’s love in 21st Century), but PCS case out of Bosque County saw Brandon Ball and Angela Weltin heard 2 word verdict on her first CDL trial accept BIPP and dismiss.
Justin caught CW in a string of lies and RD bite marks Chaunte’ Sterling work a mistrial. Miranda violations, murder in DC185. ••••••••••••••••••••••••••••••••••••••••
were self-inflicted. Justin followed up with 2 word verdict mandatory probation, and DAO unwilling to budge on •••••••••••••••••••••••••••••••••••••••• Kate Ferrell beat .19 blood DWI involving a major
in CCCL1. D charged with possessing device with intent pretrial offer made the decision to try case easy. Kasey Doggett won MTS in no test DWI in FBCCL4. accident and D in hospital for weeks. DWI Task Force
to falsify drug test. After arrest on parole violation, •••••••••••••••••••••••••••••••••••••••• Kase dismissed! peeled down D’s bandages to administer HGN.
HC jailer finds a plastic bottle with warm yellow liquid NG Verdict Maggie Hindman on DWI3rd in DC56. •••••••••••••••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••••••••••
tied to penis with dental floss. Ouch. D says bladder issues D arrested in the parking lot at 10:00 AM. D worked late at Michael Abner heard NG on resisting arrest in GCCL1. Sorcha Landau shot the moon on HCDAO in COA,
and uses discreetly. Justin did not tell State it’s better to be bar night before. Blood test showed THC and prescription LEOs went to D’s house, and charged D when D flipping an adult certification of a juvenile on Moon
pissed off than pissed on. drugs. Defendant looked good on video and jury felt LEOs refused to talk. grounds (see what I did there?). D had received a capital
•••••••••••••••••••••••••••••••••••••••• did a poor job. •••••••••••••••••••••••••••••••••••••••• life sentence, and now will be re-sentenced as a juvenile.
Sean Darvishi got NG on a workplace assault in •••••••••••••••••••••••••••••••••••••••• Ron Morgan won MTS based on no PC in FBC on a DWI. ••••••••••••••••••••••••••••••••••••••••
CCCL5 where CW said repeatedly CW felt no pain. D charged with AFV and bribery of state judge. Carl •••••••••••••••••••••••••••••••••••••••• Kyle Sampson was drafted after the murder case was
Sean and Brian Ayson earned a NG in CCCL8 on a .07 Moore investigated and proved to HCDAO that CW Skip Cornelius heard 2 word verdict on capital murder. set for trial in DC351. Kyle drafted Mike Driver on
breath test DWI. Tech said it RD that D was over .08 framed D. Cases dismissed, and CW charged. Learn the •••••••••••••••••••••••••••••••••••••••• the day of trial to assist, and the K&M Connection heard
at time of driving. Sean followed up with Justin Harris lesson – investigate your cases! This happens more than Cordt Akers earned an in trial dismissal on DWI the sweetest 2 words in the Juvenile (In)Justice Center…
(that guy, again?) for DV on .09 breath DWI, with another ADAs will admit! in CCCL5. err, courthouse.
tech saying there was RD. Sean went solo for NG on .06 •••••••••••••••••••••••••••••••••••••••• •••••••••••••••••••••••••••••••••••••••• ••••••••••••••••••••••••••••••••••••••••
breath DWI in FBCCL2. Why are we having to trying Military appeals are some of the hardest to win, but Jack Carmen Roe and Nathan Mays hung jury in DC185, agg Tonya Rolland and Bao-Long Hoang earned NG for a .17
these cases again? and Terri Zimmermann got a reversed and rendered for assault on a public servant. D accused of attempting to run DWI/accident in CCCL5. TC was unhappy with Tonya’s
•••••••••••••••••••••••••••••••••••••••• D, an AF LTC charged with rape. CW claims it happened an officer over in his jeep. Physical evidence showed cop cross as it was “not fair” to HCDAO.
Brian Ayson also got tech to admit RD on .12 breath in 1997, didn’t outcry until 2015. No PC found, but took a knee, waited, and unloaded a full clip into the side ••••••••••••••••••••••••••••••••••••••••
DWI in CCCL10, and also got NG. Brian then scored command pursued anyway. of D’s vehicle while D was leaving flea market. Pre-trial Narcs just cannot help but cheat to win. However, D had
NG in FBCCL4 on .12 DWI where D was found stuck •••••••••••••••••••••••••••••••••••••••• offer was 15 years TDC. On re-trial, jury came back with surveillance cameras, so Brett Podolsky and Matt Sharp
on railroad tracks. Victoria Erfesoglou teamed up with Justin Harris (yeah, misd deadly conduct. The Carmen-ator then teamed with just let them spin their tale, locked them in, and then played
•••••••••••••••••••••••••••••••••••••••• that guy, again!) to hear 2 sweetest words in the courthouse Robb Fickman to win CCA appeal from DC248 on MTS the video. MTS granted in DC182 on DCS1.
Priscilla Bush and Alex Houthuijzen got a MNT granted, on a blood DWI in FBCCL2, despite some questionable witnessed by Mark Bennett. Oh, and then Carmen was
flipping a guilty plea in DC230. D’s plea was involuntary rulings by TC. elected a SBOT rep because, what else do you do?
due to alleged misconduct by bailiff.
10 11
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
Austen H. Hobbs won in COA14, Andreea Ionescu got a 15 minute NG in CCCL8 on AFV.
affirming GCCL3 MTS on DWI. The CW says D punched CW 6 times in stomach. Andrea

david ryan
issue was failing to maintain a single lane. caught CW fibbing (because family law center is a palace
Austen then teamed up with Justin Harris of perjury) and inconsistent prior statements in medical
(because apparently everyone does) for records and reporting.
a DV on DWI in HCTX and NG on ••••••••••••••••••••••••••••••••••••••••
DWI in FBC. Hugh Brasher went up to Smith County and heard
•••••••••••••••••••••••••••• NG on BOH. Winning Warriors is written by HCCLA Secretary,
Emily Detoto and Paul Morgan got a •••••••••••••••••••••••••••••••••••••••• David Ryan (2015-present). David has been
mistrial in DC185 on murder. Voir Dire was moved up, Pre-trial offer was 5 years TDC for D on charge of trying practicing for 25 years, Mentor of the Year 2013-
no one told Sparty and The Bearded One, and they were to take a firearm from a peace officer. Eddie Cortes 2015 (ret.), Member of the Year 2016, HCCLA
Troy McKinney got a big win COA9 from a Jefferson
forced to pick jury on fly. Then trial was delayed by a took his chances with jury, and walked out 15 minutes Board Member 2013-2015, co-chair of TCDLA
County case on warrantless blood draw DWI. 2 day MTS,
winter storm. later with NG. Rural Practice, and TCDLA Board Member
assisted by Gary Trichter, Chris Denuna and Wes ••••••••••••••••••••••••••••••••••••••••
•••••••••••••••••••••••••••••••••••••••• (2013-present). The victories are yours. David
Rucker. Wes and Chris spent scores of hours collecting Joe LaBella and Rob Stephens defended a decorated,
FBCDAO thought they had a whale - .18 blood DWI4, provides the snark.
over 50 warrants issued after-hours and on weekends
bad video. Anthony Segura and Adam Capetillo (again) war injured vet on a no test DWI in MCCL4 and came
over a four year period. LEOs never considered this away with NG. Sadly, Joe lost his battle with pancreatic
heard NG on DWI4 in DC240, when LEO admitted
because it was as a “mandatory blood draw.’ Ultimately, cancer shortly after.
no PC for stop.
the COA held State’s failure to prove actual unavailability
••••••••••••••••••••••••••••••••••••••••
of judge was fatal.
Lori Gooch and Te’iva Bell got their groove back and
••••••••••••••••••••••••••••••••••••••••
secured NG in CCCL5.
Lynnette Briggs and Rachel Dragony earned 2 word

Did you or anyone
••••••••••••••••••••••••••••••••••••••••
verdict on AADW in DC10. GCDAO was so sure of a
Wade Smith got an in trial dismissal of DWI2 in FBCCL4.
win most of the office turned up for the verdict. Plot twist!
Despite a really awful report, video went missing. During
••••••••••••••••••••••••••••••••••••••••

you know have
trial, FBCDAO comes up with a new video. Wade asked
Eric Benavides got NG on .09 DWI in CCCL2.
TC to dismiss for MMA violation. While TC considered
Again, tech admitted RD. Again, why are these cases
its ruling, State decided to dismiss. So, no matter what
going to trial?

success?
COA10 says about MMA, keep urging TCs to punish State
••••••••••••••••••••••••••••••••••••••••
for failing to comply with MMA. Wade then hiked up to
Jay Cohen won MTS on .24 breath DWI, and then NG
MCCL1 for a .18 blood DWI. During Franks hearing,
at trial in CCCL8.
Wade gets LEO to admit another LEO wrote affidavit and
••••••••••••••••••••••••••••••••••••••••
CONTINUED : WINNING WARRIORS

LEO has no personal knowledge. MTS and DV granted.
Intox Manslaughter in DC248 was no match for Mark
••••••••••••••••••••••••••••••••••••••••
and Taly Theissen. Theme Theissen earned NG and
Lori Botello was having none of 4 year TDC offer in
TS on DWI.
DC176 for a 1st offense AFV-choking. With a jury on the
••••••••••••••••••••••••••••••••••••••••
way, D took TS on misd AFV.
Joe Varela pulled a rabbit out of a hat in DC176. D was
••••••••••••••••••••••••••••••••••••••••
5-99 with bad history on AADW public servant with bad
David Ryan and Matt Tyson hit a DV on crim mischief in
facts. D on 10-year DADJ, and Joe was handling MAJ.
FBCCL5. D got into an argument at nail salon, allegedly
TC initially found technicals true. Joe worked up the
throwing a glass which broke a nail gun. However,
case, presented witnesses and argument, and TC kept
testimony seemed to indicate salon is in Harris County,
D on DADJ. Investigate the cases, you must – Sun Tzu
and definitely nail gun broke when CW pushed D into a Submit the names of the lawyers and a brief description to:
(maybe it was Yoda).
table as D tried to leave.
hcclawinningwarriorscolumn@yahoo.com
We do not check social media for your wins.
.
12 13

the
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
The HCCLA 48th Annual Banquet was held on May
at i n g
Celebr tars of
10th at the Houston Ballroom at Bayou Place. Tucker

All-S nse Bar:
Graves and Doug Murphy did an exceptional job
e hosting the event. Edward Mallett inducted 2018-2019
the Def u a l Officers and Board of Directors. Over 300 lawyers, friends,

t h A n n
48 anquet
family members, judges and candidates attended an
enchanting evening to celebrate this year’s outstanding

HCCLA B
lawyer achievements.
lt,
ristina
Appe
By Ch ve Directo
Execu
ti
r
Congratulations to the award winners!

LAWYER OF THE YEAR SHARON LEVINE UNSUNG HERO

Scott Pawgan
David Ryan presented Scott Pawgan with this
Damon Parrish II
Racehorse Haynes once said that the real heroes are
distinguished award. Board Certified in Criminal the unsung lawyers who work hard in the trenches
Law (TBLS), Scott tends to toil mostly out of sight in everyday, with little to no recognition. Damon Parrish
the hinterlands. He is always willing to offer his II is one of those lawyers who truly embodies the spirit
take on parole issues, technology issues, and sex and courage of Sharon Levine, this award’s namesake.
offender cases. Scott had a big win in the CCA on Damon fights hard for his clients at the Public
sex offender cases this year when the legislature Defender’s Office. He does not seek attention. He
granted relief to any sex offender with a case quietly serves on the county’s eFile Committee as a
pending. Scott’s client was on appeal. Montgomery strong voice for the defense, helping to improve the
County prosecutors argued to the Court of Appeals system and provide training for defense lawyers. He
that the legislation violated the Governor’s powers also co-chairs HCCLA’s Second Chair Program, pairing
of pardon and parole, and the court affirmed. Scott newer lawyers with mentors. Damon selflessly gives
TORCH OF LIBERTY PRESIDENT’S AWARD took it up to the CCA who voted 7-2 to free his client. his time to help anyone in need, whether it’s jumping

Plaintiff Lawyers
Scott also got one of those rare cases where he got in a canoe to rescue flood victims or bringing jumper

in O’Donnell v. Harris County
Robert Fickman to cross-examine a presiding judge, a complaining
witness in an Assault on Public Servant case. Scott
methodically, but respectfully, picked apart the
cables to a stranded member. After Hurricane
Harvey, Damon volunteered in shelters, distributed
supplies, assisted people with FEMA applications,
Tucker Graves presented the President’s Award judge’s testimony, used the cops to demonstrate helped move the PD offices, went into damaged
(Susman Godfrey LLP, Civil Rights Corps, Texas Fair
to Robb Fickman for his many years of service and the judge’s lack of candor and truthfulness, and homes of colleagues, tore out sheetrock, hauled
Defense Project)
dedication to the bail issue that is finally coming scored a Not Guilty. Congratulations Scott! trash to curbsides, and made any other home
For years HCCLA has been outspoken on the issue repairs needed. Damon Parrish is a true unsung hero
to fruition. For over a decade, Robb has been an
of bail reform. We have long known it would take a in every sense.
outspoken voice on the need for bail reform in Harris
federal lawsuit to effect any real change but did not
County. As President in 2006, Robb wrote his first
have the resources or funds to bring one to suit. At long
scathing piece in The Defender against the unjust bail
last, Neal Manne of Susman Godfrey, LLP took it head-
practices. He has continued to speak out against the
on in 2016 when he filed a pro bono lawsuit against
unfair systematic denial of PR bonds and the infamous
Harris County with the aid of two organizations, Civil
“Plea Mill”. In 2013, he sent a letter to all county court
Rights Corps and Texas Fair Defense Project. Together,
judges urging them to change their policies and
they have fought a $6 million (and counting) defense of
published it on his website. Frequently quoted in the
the indefensible - Harris County’s unconstitutional and
press, Robb has been a prolific writer on this subject
decades-long practice of punishing poor people who
for years in countless Defender articles, blogs, listserve
could not afford to make bond. These citizens accused
posts, and had dozens of editorials published in the
faced a harsh choice of pleading guilty for a quick
Houston Chronicle. Many of his articles have appeared
release - straddling them with lifelong convictions - or
in law journals across the nation, and referenced in
languishing in jail until trial while losing their freedom,
the NACDL amicus brief for the bail lawsuit. He has
family and jobs. The lawsuit has shined a national
condemned the county’s systematic abuse of poor
spotlight on Harris County’s criminalization of the
people on Reasonable Doubt TV and in other public
indigent accused, resulting in a federal injunction and
appearances. Robb’s unwavering zeal for justice on
5th Circuit rulings in favor of bail reform. Neal Manne
this matter has brought about long overdue reforms
humbly accepted the award on behalf of his firm;
in Harris County.
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!
14 15
RICHARD ‘RACEHORSE’ HAYNES LIFETIME ACHIEVEMENT
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
Each of these honorees has had a remarkable and distinguished career in criminal defense.

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.
MENTOR OF THE YEAR MEMBER OF THE YEAR

Patrick McCann HCCLA Membership
Pat McCann was nominated for his longtime work with No doubt Tucker Graves had a doozy of a year as

Connie B. Williams
the Gideon’s Promise/FACT program and the Precinct HCCLA President. And so did the members--Hurricane
4 evidence destruction matters. Pat consistently Harvey, ice storms, court closures and relocations, jail
devotes his time to mentoring younger lawyers in dockets, bond dockets, and mandatory eFiling. While Connie Williams is one of the pillars of criminal defense in Harris
Harris and surrounding counties, while also working his own home was damaged by Harvey, Tucker County. He is known as a gentleman and formidable advocate
tirelessly to save his client’s lives from Texas’ death row. remained calm and focused at the helm. He saw in the courtroom. Connie began his legal career in 1974 after
Pat gave a heartfelt toast at the banquet to honor his firsthand how many members were affected by the graduating from the University of Houston. After a short stay at the
Harris County District Attorney’s Office, Connie began his career as
own mentor, Jonathan Munier. He asked the crowd to courthouse chaos or personally struck by tragedy, and
a criminal defense lawyer. Over the span of his career, Connie has
do him the honor of charging their glasses, and raising still helped others. Impressed by how resilient HCCLA represented approximately 50 persons accused of Capital Murder,
them with him: “To Jon, and all of our mentors. We can members were, how they came together to weather and all but 6 avoided death row during a time when Harris County
never pay them back, but we can try to pay it forward. the storms, Tucker chose to honor the entire criminal led the nation in capital murder sentences. He was named one of
Wherever they are, we hope they are proud.” defense bar instead of selecting just one member for the Top Lawyers in Houston in 1994. Connie is a decorated Vietnam
War veteran with numerous medals for Valor in Combat, including
this award.
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.
CONTINUED : HCCLA BANQUET

R.P. ‘Skip’ Cornelius
Skip Cornelius started in 1972 at the Harris County District
Attorney’s Office where he first-chaired more than 160

What a
felony jury trials. He served as the Chief Prosecutor of the
185th and 184th, then went on to work as an AUSA for the
Special thanks to everyone for coming out to Southern District of Texas in the Public Corruption, Bank Fraud

memorable
celebrate these amazing lawyers--and to Steven and Embezzlement Sections. In 1982, he began his practice
Halpert (Treasurer), Bob Rosenberg (photography), in criminal defense. He has been lead counsel in more than
200 criminal jury trials of all kinds, ranging from DWI to Capital
Michael Godfrey (audio/visual), Shannon Moore Murder, in both state and federal courts in Texas and other

evening!
(registration), and Craig Howard and his staff at states. Skip was named HCCLA Lawyer of the Year in 2009
The Houston Ballroom for going above and beyond for several high-profile cases resulting in amazing verdicts.
He continues to have success at trial, recently winning an
to make the program such a success! acquittal for Capital Murder. Alvin Nunnery gave a beautiful
speech honoring his friend and colleague at the banquet.
16 17
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / SPRING 2018
WELCOME Addiction is
NEW HCCLA an Illness...
MEMBERS
new members
Matt Alford
Marisela Arredondo
Dylan Blackwell
Tyler Brock
John Clayton Caldwell
Chris McKinney
Dana Nazarova
Thai-Anh Nguyen
Tyson Phillips
James Gregory Rubin
Michele Barber Chimene Anthony Ray Smith
harris county
election information
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
across a headline article entitled: “Jail for Drug Relapse:
Eldred relapsed during her treatment and began
using fentanyl.7
Christine Cockrell William M. Stradley
A Case Asks if That’s Fair.”1 The article discussed She later provided a urine sample to screen for drugs
Zachary B. Fertitta Richard Torres LAST DAY TO REGISTER TO VOTE treatment for opiate addiction and how relapse is an at the request of her probation officer.8 Eldred tested
Ryan Gertz
Derek Hollingsworth
Raymundo J. Vazquez
Angela Weltin
OCT 9 expected part of clinical recovery treatment. Despite positive for fentanyl and Suboxone.9
the expectancy of relapse in clinical recovery, relapse Eldred’s probation officer moved to have Eldred
Carson Joachim Adam J. Wolfe REQUEST FOR ABSENTEE BALLOT DEADLINE in the criminal justice system is usually treated with detained pending a probation violation hearing.10 She
Kaia Lubanko Kessler
OCT 26 the imposition of a jail or prison sentence. Treatment
and recovery professionals say the problem with jail is
was remanded to jail without bail and released ten days
later to a residential treatment program.11
“the penalty’s effect on an offender’s recovery.” This
new paralegal members EARLY VOTING article was incredibly thought provoking and provides a At a subsequent hearing, Eldred’s judge found her

Claudia Hipps
OCT 22 - NOV 2 complete paradigm shift to the archaic manner in which in violation of the terms of her probation, continued
Eldred’s probation, and denied her attorney’s request to
punishments in these situations truly hinder recovery.
Scheiner Law Group change the conditions of the probation.12
GENERAL ELECTION This also provides lawyers with a valid legal and science
NOV 6
Isabela Juarez
Law Office of Steve O. Gonzalez
based legal argument in certain cases to assist our clients But is jailing an addict for relapse fair and does
who truly desire and want treatment versus jail. requiring a sick person to be drug free set them up for
Jordan Gilbert
Law Office of Steve O. Gonzalez failure? That’s the question that Supreme Judicial Court
ABSENTEE BALLOT DEADLINE In 2016, Julie Eldred pled guilty to larceny over $250
POST RECEIVED BY
Laura Lopez in a Stow, Massachusetts court.2 She was placed on of Massachusetts seeks to answer in Commonwealth v.
Law Office of Steve O. Gonzalez Julie Eldred, No. SJC-12279.
the Massachusetts equivalent of deferred adjudication
NOV 7, 5:00 PM for one year, with conditions that she remain drug free Eldred and her attorneys argue that her community
new student members and submit to random drug testing as required.3 Two
days after being placed on community supervision,
supervision to “remain drug free” violates her substantive
constitutional right under Robinson v. California, 370
Daniel S. Chavez John A. Leo
Eldred completed an intake appointment at an intensive U.S. 660 (1962), not to be punished for a status offense,
outpatient program (IOP) at a local hospital.4 There namely, for being an individual with a chronic medical
Mayra Faz Phillip Lewis
she met with a doctor who prescribed her Suboxone, a condition, i.e., active opioid disorder, not in remission,
Freddie Lee Gabriel Sydney Paige Pippin medication to treat her opiate addiction.5 Five days later, and that Eldred’s failure to comply with that condition
LaKai Henderson Jacob Schiffer Eldred began IOP.6 was not “willful.”
JoLissa Krystal Jones Sintia Solis
18 19
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
Understanding This three-stage cycle “worsens over time and involves
Promoting Patience
addiction Rather than Punishment
dramatic changes in the brain reward, stress, and
executive function systems.”18 Indeed, the combination 1 www.nytimes.com/2018/06/04/health/
of the symptoms of all three stages often provides an drug-addict-relapse-opioids.html

as an Illness overwhelming driver for substance seeking that can be
unrelenting.19 The fact that a client afflicted with substance use
disorder tests positive while on probation shouldn’t be
2 RA 1, 5, Commonwealth v. Julie Eldred, No. SJC-12279.

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 Your Clients surprising. Indeed, recovery from substance use disorder
characteristically involves periods of recurrence and
3 Id. at 2-3, 10.

Susceptibility
remission.28 Studies have increasingly shown that 4 Id. at 16, 18, 54.
in violation of the Eight and Fourteenth Amendments.13 relapses are a commonly occurring part of recovery

to Addiction
from substance use disorder and should be considered 5 Id. at 26, 75, 78.
Addiction is a primary, chronic disease a “dynamic, ongoing process rather than a discrete or
terminal event.”29 6 Id. at 75, 79.
of brain reward, motivation, memory and
related circuitry.14 Not all people use substances, and even among those who In fact, a client with a substance use 7 Id. at 11, 75, 80.
Addiction affects neurotransmission and interactions
use them, not all are equally likely to become addicted.20
Like other chronic health conditions, substance use
disorder is expected to relapse.30 Only
a minority of patients who successfully 8 Id. at 16, 18-19.
within reward structures of the brain, such that disorders are influenced by complex interplay between
motivational hierarchies are altered and addictive
behaviors… supplant healthy, self-care related
a person’s genes and environment.21 complete opioid detoxification or long- 9 Id. at 11, 75, 80.
behaviors.15 Addiction also affects the brain such that Genetic factors are thought to account for 40 to 70 term treatment of any kind, can abstain
memory of previous exposures to rewards … leads to a percent of individual differences in risk for addiction.22 in a prolonged fashion from opioid use.31 10 Id. at 12; Tr. 2.
biological and behavioral response to external cues, in
Similarly, substance use disorders are significantly more The risk of relapse can remain for many 11 RA at 3, 13, 76, Commonwealth v. Julie Eldred, No. SJC-12279.
turn triggering craving and/or engagement in addictive
prevalent in individuals who suffer from mental another years.32
behaviors.16
illness.23 The reasons why substance use disorders and 12 Id. at RA 3, 13; Tr. 1, 3-15.
mental disorders often occur together are not clear, and We have indeed progressed from the Seventeenth
CONTINUED : ADDICTION IS AN ILLNESS - NOT A CRIME

Addiction occurs establishing the relationships between these conditions
is difficult.24 Three possible explanations exist, however.
Century, when the violently insane went to the whipping
post and into prison dungeons, until they had regained 13 Robinson, 370 U.S. at 666-667.

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

1 Binge/Intoxication, the stage at which
an individual consumes an intoxicating
mental disorder symptoms and this are particularly
negatively reinforcing in these individuals. Second,
substance use disorders may increase vulnerability for
threatened with or simply relegated to jail, which tends
to worsen their preexisting conditions.34 But does jail
15 Id.
substance and experiences its rewarding adequately address their addictions or should we be
mental disorders.25 Third, it is also possible that both 16 Id.
or pleasurable effects; substance use disorders and mental disorders are caused
advocating for a new set of “standard conditions” when
it comes to clients with substance use disorders? If the
by shared, overlapping factors, such as particular genes, 17 Brief of Amicus, Massachusetts Medical Society citing
goal is to treat them for their sickness, why undermine
2 Withdrawal/Negative Affect, the stage
at which an individual experiences a
overlapping neurobiological deficits, and exposure to
traumatic or stressful life experiences.26
the rehabilitative purpose of punishment?35

As Justice Douglas made clear in
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
negative emotional state in the absence of Finally, the age of onset of substance use may also be the Brain Disease Model of Addiction, 374 N. Eng. J. Med.
the substance; and a risk factor as individuals who begin using substances Robinson, “we would forget the teachings 363-71 (2016).
during adolescence often experience more chronic and of the Eighth Amendment if we allowed
3 Preoccupation/Anticipation, the stage at
which one seeks substances again after a
intensive use compared with those who begin use at an
older age. In other words, the earlier the exposure, the
greater the risk.27
sickness to be made a crime and permitted
sick people to be punished for being sick.
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).
period of abstinence.17 This age of Enlightenment cannot tolerate 19 Id.
such barbarous action.”36
20 21
THE DEFENDER / SPRING 2018

THE DEFENDER / SPRING 2018
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).
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). the
21 Id. at 22.

22 Prescott CA, Kendler KS. Genetic and environmental
31 Brief of Amicus, Massachusetts Medical Society citing
Davison et al., Outpatient Treatment Engagement and
Abstinence Rates Following Inpatient Opioid Detoxification, risks of a
colorado
contributions to alcohol abuse and dependence in a 25 J. Addict. Dis. 27, 33 (2008).
population-based sample of male twins. American Journal
of Psychiatry. 1999;156:34–40; Schuckit MA, Edenberg 32 Brief of Amicus, Massachusetts Medical Society citing Hser,
HJ, Kalmijn J, Flury L, Smith TL, Reich T, Foroud T. et. al., A 33-year follow-up of narcotics addicts, 58 Archives of

cannabis
A genome-wide search for genes that relate to a low level of General Psychiatry, 503-508 (2001); Valliant, The natural history
response to alcohol. Alcoholism: Clinical and Experimental of alcoholism revisited. Cambridge, MA: Harvard University
Research. 2001;25(3):323–329. Press (1995).

vacation
23 Brief of Amicus, Massachusetts Medical Society citing American 33 Simpson v. State, 668 S.W.2d 915, 922 (Tex. App.—Houston
Academy of Addiction Psychiatry, Summer Newsletter Vol. 31, [1st Dist.] 1984) (Levy, A.J. dissenting) (citing Deutsch,
No. 3 (2015) Travel Awardee Column: Addition Training “The Mentally Ill in America” (1937), p. 13; “Action for
for the General Psychiatrist, Elie Aoun, “Aoun”). Mental Health” (1961), p. 26.

24 Brief of Amicus, Massachusetts Medical Society citing Surgeon 34 Drucker, A Plague of Prisons: The Epidemiology of Mass by D. Chris Hesse
General’s Report on Alcohol, Drugs and Health entitled Incarceration in America 116 (2011).
Facing Addiction in America, Chapter 2 at 23 (2016).
Colorado is now widely considered the center of
35 Brief of Amicus, Massachusetts Medical Society citing what is being called “cannabis tourism.” When
25 Jacobsen LK, Southwick SM, Kosten TR, Substance use disorders Volkow et al., Drug Use Disorders: impact of a public health
Colorado made legal the recreational use of
in patients with posttraumatic stress disorder: A review of the rather than a criminal justice approach, 16 World Psychiatry
literature, American Journal of Psychiatry, 2001;158(8): 213-214 (2017).
marijuana in 2014, tourists have been going there
1184–1190; Leeies M, Pagura J, Sareen J, Bolton JM, to get their legal high and take in the sights. The
CONTINUED : ADDICTION IS AN ILLNESS - NOT A CRIME

The use of alcohol and drugs to self-medicate symptoms of 36 Robinson, 370 U.S. at 678.
legal sale of marijuana in Colorado in the year
posttraumatic stress disorder, Depression and Anxiety, 2010; 2015 has topped $ 1 billion, making the industry a
27(8):731–736; Kumari V, Postma P. Nicotine use in close second to the sale of craft beer. $135 million
schizophrenia: The self medication hypotheses, Neuroscience in taxes and fees were generated for the State.
and Biobehavioral Reviews, 2005;29(6):1021–1034. Please see http://reason.com/blog/2016/02/16/
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).
chris mckinney
A criminal defense lawyer in Houston, Texas.
legal-marijuana-sales-totaled-1-billion.
Many Texans are driving back home with
their purchases of Colorado cannabis and
He spent the ��� ��and a half years of his legal do not realize the amount of risk they are
27 Hanson KL, Medina KL, Padula CB, Tapert SF, Brown SA,
career at the Harris County District Attorney’s taking when it comes to Texas state law.
Impact of adolescent alcohol and drug use on
neuropsychological functioning in young adulthood: 10-year ����working in their Vehicular Crimes
Division. He is a 2012 graduate of South Texas A vast majority of these Texans are driving back
outcomes, Journal of Child and Adolescent Substance Abuse,
from Colorado through Dalhart and Amarillo.
2011;20(2):135–154. College of Law and a 2009 graduate from
The amount of drug busts in these two areas have
Texas A&M University, earning a bachelor’s
28 Brief of Amicus, Massachusetts Medical Society citing greatly increased since “cannabis tourism” took
degree in political science. When he’s not in off in Colorado starting in 2014. The busts don’t
Commonwealth v. Julie Eldred, No. SJC-12279
the courtroom, he’s spending time with his always involve large quantities that are intended
wife, Sarah, and his daughter, Charlotte. And for resale, but most of the time involves a quantity
29 Brief of Amicus, Massachusetts Medical Society citing
Hendershot et al., Relapse prevention for addictive behaviors, when he actually gets a moment to himself, intended for personal use. It is important to know
6 Subst. Abuse Treat. Prev. Policy 2 (2011). he’s smoking briskets and brewing beer. 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.
22 23
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
The Types of Cannabis and the Penalty Levels of protection that are drawn around public and private It is important to note that a person Vaporizing hash oil delivers an
colleges and universities, schools, youth centers, can be charged with Class “B” incredible amount of THC to the
There are three levels of misdemeanors and four levels playgrounds (1,000 feet) and public swimming pools possession of leafy marijuana under user compared to vaporizing the leaf
of felonies in Texas (Please see Texas Penal Code Sec. and video arcades (300 feet). Please see Texas Health 2 ounces as long as the leaf that or burning the leaf.
12.11, 12.22, 12.23, 12.35, 12.34, 12.33, & 12.32): and Safety Code Sec. 481.134. Generally speaking, the person has is “usable.”
crime is bumped up to the next level crime. For instance Edibles made with hash oil are
1 Class “C” crimes are fine-only offenses. The general idea is that a also popular among THC users
a Class “B” possession amount will be charged as a Class
2 Class “B” crimes are crimes whereby the accused could face up to “A” because the 2 ounces or less of marijuana was found “usable amount” is the amount because they minimize the need to
180 days in jail or 6 months to 2 years of probation. burn marijuana and inhale harsh

in a drug free zone. I most commonly see drug free zone of marijuana a person needs to
enhancements charged within 1,000 feet of playgrounds or unpleasant smoke or even use a
3 Class “A” crimes are crimes whereby the accused could face consume for the sole purpose vaporizer. Common edibles include
and schools (school property, to be exact) and almost of “getting high.” This can
up to one year in jail or 6 months to 2 years of probation. brownies, cookies, and candies made
never on a freeway stop, although it is still very possible
amount to just one puff... with hash oil.
4 State Jail Felonies (SJF) are crimes whereby the accused to be driving within 1,000 feet of a school while on the
could face anywhere from 180 days to 2 years in a State Jail freeway. For instance, Saint Andrew’s Episcopal School There have been convictions Wax is the most powerful form of
Facility or anywhere from 2 to 5 years of probation. is located on Georgia and the school property butts right involving unimaginably small marijuana on the market. People
up against the westbound feeder road. The distance from amounts of marijuana. For example, who use marijuana wax use a small
5 3rd Degree Felonies are crimes whereby the accused could this school property to the eastbound lanes of I-40 is a in Parson v. State, 193 S.W.3d amount, or a dab, to work. Another
face anywhere from 2 to 10 years in a penitentiary or from 2 mere 175 feet, well within the 1,000 foot range. (Tex. App.—Texarkana 2006), the name for marijuana wax is BHO,
to 10 years of probation. Court of Appeals upheld a case which is short for butane honey oil.
Drug free zones can also bump up the minimum range
6 2nd Degree Felonies are crimes whereby the accused could of punishment when it comes to the felony accusation. where a person was arrested and Making wax is a dangerous process.
face anywhere from 2 to 20 years in the penitentiary or from Drug free zones can also affect parole eligibility. convicted of possessing a usable Wax can be smoked in a bong or
2 to 10 years of probation. For purposes of this article, we will focus on an accusation amount of marijuana and the amount vaporizer. It is 80% pure THC. It
of possessing cannabis without a delivery or drug free was 1.41 grams. is also the most expensive form of
7 1st Degree Felonies are crimes whereby the accused could face zone allegation. marijuana on the market.
anywhere from 5 to 99 years or life in the penitentiary or
from 2 to 10 years of probation. People charged with possessing hash
Hash Oils, Edibles, and Waxes: oil, edibles, or waxes are charged
CONTINUED : THE RISKS OF A COLORADO CANNABIS VACATION

Cannabis possession in Texas can range anywhere from a Leafy Marijuana with Possession of a Controlled
THC is the active chemical and
Class “B” misdemeanor up to a 1st Degree Felony. Substance in Penalty Group 2 (PCS
Possession of leafy marijuana subjects a person to arrest principal hallucinogen in marijuana.
There is no such thing as Class “C” cannabis Hash oil, which is made by exposing PG 2. See Texas Health and Safety
for Possession of Marijuana. Please see Texas Health and Code Sec. 481.116.) PCS PG2
possession, although an officer could give Safety Code Sec. 481.121. marijuana to a solvent, is a potent
and concentrated carrier of THC. falls within the following range
a Class “C” Citation for Possession of Drug of punishment depending on the
The penalty level depends on the weight of the Hash oil, due to its concentration
Paraphernalia. and lack of plant matter, is in the weight possessed:
leafy marijuana. It does not matter whether the
same penalty group as ecstasy and
Please see Texas Health and Safety Code Sec. 481.125. leafy marijuana is hydroponically grown (higher 1 SJF: Less than 1 gram
Class “B” accusations and higher are offenses whereby THC content marijuana, or your garden variety
amphetamines.

the person can be placed into full custodial arrest and
“Mexican Skank-Weed”. All leafy marijuana is Hash oil can be smoked in a 2 3rd Degree: 1 gram or more
booked into jail. These people will have to bond out vaporizer. Vaporizers are the modern but less than 4 grams
pending the court case. weighed the same.
day equivalent of the cigarette.
3 2nd Degree: 4 grams or more
This article will not focus on delivering marijuana or 1 Class “B”: 2 ounces or less. Vaporizers can be as small as a
but less than 400 grams
delivery of a controlled substance. Delivery falls within pen and work to extract the water
a different range than possession and involves different 2 Class “A”: 4 ounces or less but more than 2 ounces. molecules from the marijuana leaf
4 1st Degree: more than 400 grams. Id.
and turn those water molecules into a
weights. Please see Texas Health and Safety Code Sec.
3 SJF: 5 pounds or less but more than 4 ounces. (By way of comparison, 1 pound is
481.120 & 481.113. It is rare to be accused of delivery of vapor. Vaporizers also turn the liquid
approximately 454 grams
marijuana or delivery of a controlled substance, and the hash oil into a vapor to be inhaled.
4 3rd Degree: 50 pounds or less but more than 5 pounds.
vast majority of the cannabis charges I have seen involve Marijuana users are quickly The average weight of just one
possession, not delivery. To put it simply, “delivering” 5 2nd Degree: 2,000 pounds or less but more than 50 pounds. transitioning from burning the marijuana cookie is 30 grams. One
is shown if it is obvious that the cannabis is going to be marijuana leaf, to vaporizing the pound of cookies is really not that
resold (such as pre-packaged in small amounts to suggest 6 1st Degree: more than 2,000 pounds. Id. leaf or vaporizing the hash oil. It is heavy and does not amount to much.
intent to re-sell) or the person is literally caught in the act important to note that vaporizing the I’ve had many clients charged with
of hand delivering to another individual. Possession of Marijuana falls within the following range PCS PG2 and facing a 2nd Degree
of punishment depending on the weight possessed. leaf extracts more THC than burning
the leaf. Additionally, vaporizing is Felony because of just one cookie or
Also, please note that possessing marijuana or a
safer than burning the leaf because a small edible.
controlled substance in a drug free zone creates its
own set of special problems. Drug free zones are zones the user is not inhaling carcinogens.
24 25
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
by Patrick F. McCann
Post-Traumatic Stress Some people are familiar People who were physically
Disorder is a condition with this condition through abused as children, people
that occurs in people their readings or experience who were assaulted in prison,
who have experienced with veterans who have faced women or men who were
a frightening or violent combat or hostile fire, or sexually assaulted, young
event, i.e., trauma. incidents like the USS Cole people who were part of
bombing. PTSD can manifest gangs and the violence in their
The condition’s symptoms within a few months of the neighborhoods, people who
include nightmares, avoidance incident or sometimes even have lost family to suicide, or
Possessing a single 30 gram marijuana cookie In most instances a person accused of possession will months or years later. been in a deadly fire, or were
of the situations or people that
subjects the person possessing the single seek the services of a bail bondsman who would charge injured in a tragic car accident,
10% of the total bond as the bondsman’s fee. So for remind the individual of the
cookie to a hefty 2nd Degree Felony accusation. However, veterans are not all can experience PTSD.
example if the person is charged with possessing a 30 incident or series of incidents,
the only ones who experience
As ridiculous as it sounds, one 30 gram cookie gram marijuana cookie in the 2nd Degree Felony range, flashbacks to the incident,
trauma. Many of us have Now, before you get skeptical,
is equivalent, punishment range wise, to trouble sleeping, and feelings
CONTINUED : THE RISKS OF A COLORADO CANNABIS VACATION

and the bond was set at $20,000, the person would need had veterans as clients, and I think about the questions on
possessing anywhere from 50 to 2,000 pounds to come up with $2,000 to bond out. The bail bondsman of being on edge. Symptoms
frankly started learning about the following page as they
of leafy weed. then acts as a surety and vouches for that person that that usually continue for over a
month and can normally be this disorder because of my relate to our clients, and see
person will show up to court. attempts to assist veterans if it is likely our clients could
Some might say that the legislature went too far when traced to a specific indecent
setting up the punishment ranges for marijuana edibles, In addition to the higher bond amounts come the higher or series of incidents. in criminal court, but if you answer “Yes” to any of these
oils, and waxes. It almost encourages marijuana users attorney fees. It is industry standard for attorneys to think about it, many of our questions,
to possess leafy weed rather than the edibles, oils, charge a certain amount of money depending mostly on clients have been exposed regardless
and waxes. the punishment range level of the crime. Complexity of to trauma. of why.
the crime and estimated amount of work the attorney may
have to do also is a factor in the pricing. But basically,
The Bail-Bondsman & The Attorney: representation on a SJF accusation starts out in Texas at
the bottom range of $3,500 for a pre-trial fee and $3,500
With the higher accusations come the higher bail bond for a trial fee. The fees only go up from there when the
amounts and higher attorney fees. punishment range goes up. Attorneys put their law license
on the line every time they represent someone, and when
Bonds across the State of Texas generally fall within the
the stakes are higher, the fee is higher.
following ranges depending on the penalty range:

1 Class “B”: $500-$1,500
The Lesson
2 Class “A”: $1,000 to $3,000
No matter what your
3 SJF: $3,500 to $8,000 feelings on whether
marijuana should be
4 3rd Degree: $10,000 to $20,000 made legal in Texas or
not, be aware of the extreme
5 2nd Degree: $15,000 to $40,000 penalty ranges for some of
the cannabis products and
6 1st Degree: $40,000 and above the corresponding bail
bondsman and attorney fees.
26 27
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
These questions are not all encompassing, an assault charge, a diagnosis of or the discharge papers, called a You may also want affidavits
nor are they a sure fire way to detect PTSD could mean you have both “DD-214”, which will list the job, from family members (this works
PTSD. If you take the risk factors, for an explanation for the illegal act deployments, and action history of for the vets above as well]) as to
instance, abusive childhood, or anyone and a way forward, i.e. treatment. the service member. We can also the client’s waking up at night
who has been involved in a CPS case, or This can only help your client. look to the unit history maintained screaming, increased drinking,
DO YOU HAVE NIGHTMARES? prior military service in a hazardous area Last, it can provide, in some in the archives of the separate increased drug use, or sudden
or direct combat, or prior prison time, instances, a defense, particularly if services, which will list combat or bursts of temper since returning
DO YOU FEEL ANXIOUS? or prior losses of loved ones in a violent you can put the fact-finder back in hazardous actions by the veteran’s from prison, the service, the fire,
way, for example – and then observe the incident that caused the PTSD unit. These can be obtained by a or since leaving foster care.
[CANNOT SIT STILL, WORRIES, LESS THAN CALM]
the client – is the client hyper-vigilant, and see how it was perceived by VA release form downloaded off
keep his/her back to the wall, head on the client. In limited instances, the web or available at the VA. Which brings up a point -
DO CERTAIN SOUNDS OR SMELLS a swivel, or does the client complain of PTSD may even provide a defense PEOPLE DO NOT LIKE TALKING
MAKE YOU FEEL ANXIOUS? sleeplessness, irritability, bad dreams, against intent, if you can prove For our civilian clients, the records ABOUT TRAUMATIC EVENTS
take anti-anxiety medications, does a flashback occurred or that the process is more tricky. Prison BECAUSE THEY WERE TRAUMATIC.
the client appear to look for threats or circumstances were misperceived. and jail discipline or medical You need to get at least some
ARE YOU UNCOMFORTABLE IN CROWDS? complain about how some guard reminds records are often a surprising gold trust, some facts, or some family
client of abusive dad, “that bastard”, etc. So, we know to at least look for mine, even if it looks as if your help you to prove up this disorder
ARE YOU FRIGHTENED BY SUDDEN – then this connection between the risk the presence of this disorder in our guy was written up for the fight. because no one likes sharing
LOUD NOISES? factors and your actual observation of all too-often traumatized clients. Attacks on your client are often difficult times from their past
such behavior is worth following up for Next, since we are lawyers, we documented in either medical or with strangers. Would you? Keep
several reasons. need to prove this, so we can use disciplinary records. An average this in mind and treat the issue
ARE YOU UNCOMFORTABLE IF YOU CANNOT it. If our client is a veteran, often reader of such records may with some dignity. Do not expect
SEE THE ENTIRE ROOM? First, the circumstances that produce the that simply means obtaining the frown on this, but how many of immediate help from the client as
PTSD are often quite mitigating to juries, veteran’s medical records, if they your friends would respond with to the horrible things endured in
DO YOU EVER FEEL UNEASY OR THREATENED? judges, and prosecutors. It will not always already have such a diagnosis. If calm equanimity to an attempted the past. This conversation does
[OR, DO YOU HAVE SUDDEN ANGRY OUTBURSTS help, but if people begin to see your client a vet does not have the diagnosis sexual assault or shanking? For not happen in a holdover cell
CONTINUED : WHY BAD THINGS KEEP HAPPENING TO YOUR CLIENT...

as the kid who was abused and placed in yet, then see if a VA examination older cases of sexual or physical meeting; it happens over time and
FOR NO APPARENT REASON?] a foster home instead of the armored car and diagnosis can be arranged. abuse to a client during their investigative effort and once trust
robber, then this can only help. Second, First, though, you may need to childhood, a subpoena typically to is established between attorney
DO YOU HAVE TROUBLE SLEEPING? the PTSD itself is often the root of the obtain the records that support the Children’s Protective Service and client.
actions that got your client in court in the diagnosis, such as combat agency in the county where the
DO YOU AVOID NOISY AREAS? the first place. Whether it is being caught awards (a Purple Heart, a Combat child grew up will unearth such Look for the PTSD that many of
with controlled substances that they use Action ribbon, commendations history as will a release for any our clients have, find the proof, and
to anesthetize, or the drinking that led with a combat “V” for valor, medical or counseling records. use it to lessen their consequence.
DO YOU HAVE NEGATIVE VIEWS OF YOURSELF to the DWI, or a flashback that caused awards for heroism, such as a Juvenile records are often also a
OR FEELINGS OF GUILT OR BLAME? an over-aggressive reaction that led to Bronze Star, or a unit citation) good source for this information.
28 29
by Joseph W. Varela
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
SAM HOUSTON AND THE SEPARATION OF POWERS

Fundamental to the work of this court is a This, roughly, is the distribution of the authority of the II.
vigilant recognition that it is but one of three legislative, executive, and judicial branches with which
we are familiar. Montesquieu considers what could occur It was 1832, and Sam Houston had a problem. He was
equal branches of our federal government. The
if these powers were vested in the same entity: freshly back in Washington, and upon picking up a
work of the court is not to create policy or judge newspaper,6 he saw that Ohio Congressman William
the wisdom of any particular policy promoted Stansberry had made a speech on the floor of the House
When the legislative and executive powers
by the other two branches. That is the work of of Representatives. In that speech, Stansberry accused
are united in the same person, or in the same
the legislative and executive branches and of the Houston of being one of a cabal of Jackson Administration
body of magistrates, there can be no liberty; cronies who were favored in the award of certain contracts.
citizens of this country who ultimately exercise
because apprehensions may arise, lest the same Houston‘s political career was at a temporary ebb, and
democratic control over those branches. The
monarch or senate should enact tyrannical he could not afford to see his reputation lowered by this
work of the Judiciary, and this court, is limited affront. Houston avenged the accusation in a manner not
laws, to execute them in a tyrannical manner.
to ensuring that the actions taken by the other uncommon in early nineteenth-century American politics:
two branches comport with our country’s laws, he armed himself with a heavy hickory walking stick and
Again, there is no liberty, if the power of
and more importantly, our Constitution.1 went in search of Stansberry.7
judging be not separated from the legislative
and executive powers. Were it joined with the It wasn’t long before Houston caught up with Stansberry
I. legislative, the life and liberty of the subject one evening on Pennsylvania Avenue. Houston began
would be exposed to arbitrary control, for the striking Stansberry with the stick. The latter shot at
Whereas Thomas Hobbes held that all authority exercised
judge would then be the legislator. Were it Houston with a pistol, but the weapon misfired. After
by government must be vested in one man,2 or assembly of further blows, Stansberry escaped.
men, Montesquieu argued for a division of power: joined to the executive power, the judge might
behave with all the violence of an oppressor.3 Days later a resolution was introduced in the House of
In every government there are three sorts of Representatives, calling for Houston’s arrest and trial. Sam Houston, Hermann Park, City of Houston. (Photo by Author)
power . . . James Madison and Alexander Hamilton, among many Congressman (and future president) James Polk argued
others, conceived a constitution that would give each that the House lacked authority for such an action, but Houston began his defense by attacking the authority of
branch of government the means by which to maintain the resolution passed by a wide margin, and Houston was Congress to try him. Speaking of his trial, he declaimed:
By virtue of the first, the prince or magistrate independence: a sort of Newtonian machine by which arrested. He was freed on his own recognizance and bound
enacts temporary or perpetual laws, and the ambitions of the participants could be harnessed to over for trial in the constructive custody of the House’s If such a discretion is in your hand, the power
amends or abrogates those that have been counteract ambition.4 Sergeant at Arms. of punishment must extend to life itself . . . over
already enacted. By the second, he makes a man who had not, in any way, interrupted
peace or war, sends or receives embassies; The U.S. Constitution does not explicitly contain the phrase The “trial” was a sensation. Houston’s lawyer was none your deliberations. If you can arrest him, you
establishes the public security, and provides “separation of powers” nor is there an implied statement of other than Francis Scott Key, composer of the national may not only fine him, and imprison him, but
its intent to accomplish it,5 but the Constitution’s first three anthem. That advocate appeared to be suffering from the you may inflict upon him torture and death. . . .
against invasions. By the third, he punishes Articles set out separately the composition and powers of effects of an excess of drink, and Houston, a trial lawyer
criminals, or determines the disputes that arise the legislature, the president, and the courts. There is clear himself, stepped in and conducted his own defense. Gentlemen have admitted that the power they
between individuals . . . . language at the beginning of each of the three Articles that claimed is not found in the Constitution. Then
all powers appropriated to each branch of government where is it?
shall be vested only in that branch.
30 31
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
And, warning of the consequences should the procedure A bill of attainder is a legislative finding of guilt and No Texas law has been invalidated as an unconstitutional 7 The story is told by Houston’s biographer, M. K.
become popular: imposition of punishment. Congress is expressly forbidden bill of attainder under either the U.S. or Texas Constitutions. Wisehart, in Sam Houston, American Giant (Van Rees
from making a bill of attainder10 and so are the states;11 all A recent case, In re Commitment of Miller,15 was a challenge Press, 1962).
. . . it has been deemed not sufficient to rely fifty state constitutions forbid bills of attainder.12 to the Texas sex offender civil commitment scheme.16 The
upon the Constitution . . . personal feelings of Supreme Court, in Kansas v. Hendricks,17 had previously 8 See, generally, Simon Schama, Citizens: A Chronicle
members have been appealed to . . . to induce The U.S. Supreme Court considered bills of attainder in held that civil commitment is not punishment, but instead of the French Revolution (Random House, 1989).
the House to act under the influence of partiality cases arising after the Civil War.13 Those cases concerned was intended to effect protection of the public and,
and to sacrifice its duty, the law, and the
loyalty oaths as a condition of professional licensing, possibly, treatment of those committed. The Miller court, 9 Later Houston was found guilty in a proper court of
not legislatively imposed punishments. The first modern therefore, found that since there was no punishment, such assault and fined $500.
Constitution to merely personal consideration treatment of bills of attainder occurred in U.S. vs. Lovett,14 a scheme did not function as a bill of attainder.
. . . . it is not my rights alone, but the rights of which arose during World War II. Congress passed 10 U.S. Const. art. I, § 9.
millions that are involved here . . . . an appropriations bill, which contained a section that The rarity of litigation concerning bills of attainder
CONTINUED : SAM HOUSTON AND THE SEPARATION OF POWERS

purported to deny salaries to thirty-nine named federal argues that the Constitution has successfully discouraged
11 U.S. Const. art. I, § 10.
employees for alleged “subversive activity.” their use.18
When one member cited the actions of France’s
revolutionary National Assembly8 as precedent, Houston The bill forbade that the named individuals receive any --------------------------------------------------------------------- 12 E.g., Texas Const. art. I, § 16.
was ready with an answer: compensation for government employment, except for
service as jurors or soldiers. A special subcommittee of the 1 Temporary Restraining Order, State of Washington et 13 Ex Parte Garland, 71 U.S. 333 (1866); Cummings v.
What legislative bodies could have been more House Appropriations Committee convened a hearing, at al. vs. Donald J. Trump et al.; Case No. C17-0141JLR, Missouri, 71 U.S. 277 (1867).
corrupt than they? . . . they themselves had which the subjects of the bill were permitted to testify but United States District Court for the Western District of
usurped the power they exercised—and terror were not allowed counsel. The special subcommittee noted Washington, February 3, 2017. 14 328 U.S. 303 (1946).
struck the hearts of men who had no home, no that there was no legal definition of “subversive activity,”
country: for where there is no security to the so it furnished its own definition for the occasion. Lovett 2 Leviathan, Chapter XVIII (1651). 15 262 S.W.3d 877 (Tex. App.-Beaumont 2008,
and others were found “guilty.” After acrimonious debate, pet. ref’d.).
citizen there is neither home nor country. . . . both houses passed the appropriations bill, including the 3 The Spirit of the Laws, Vol. 1, Book XI (1748). Trans.
section cutting off the salaries. President Roosevelt signed Thomas Nugent (London: J. Nourse, 1777). Charles- 16 Tex. Health & Safety Code §841.003.
it to avoid problems funding the war, but he entered Louis de Secondat, Baron de Montesquieu was the
Houston was found guilty. The punishment: to be a statement in the record that he believed the provision great French lawyer, political philosopher and historian 17 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501, 65
reprimanded by the Speaker of the House. The sentence denying compensation for government employment to the who influenced the French Revolution and modern U.S.L.W. 4564 (1997).
was duly carried out.9 particular thirty-nine individuals to be unconstitutional. constitutional thought. Separation of powers is only
the greatest of his many achievements. Nowhere is his 18 But see Matthew Steilen, “Bills of Attainder,” 53 Hous.
The U.S. Supreme Court agreed. Writing for the majority, influence stronger than in the U.S. Constitution. L. Rev. 767 (2016), arguing that the real problem is
III. Justice Hugo Black held that Lovett’s situation constituted executive non-judicial punishments, e.g. asset forfeiture,
While the separation of powers doctrine generally frowns a bill of attainder because it identified specific persons and
4 Federalist No. 51 (1788). See generally, Donald S. Lutz, and that the Bill of Attainder Clause encompasses them
upon any one branch of government encroaching upon inflicted a punishment without the safeguards of a judicial as well. Steilen’s article also provides a good history.
The Origins of American Constitutionalism, (Louisiana
the powers of any of the other two, of particular interest trial. In doing so, the Supreme Court established this
State University Press, 1988).
to us is Sam Houston’s situation. The problem arises formula as the test for bills of attainder.
when the legislative branch attempts to exercise a power
traditionally held to belong only to the judiciary: the power 5 Cf. Virginia Constitution of 1776.
of punishment.
6 National Intelligencer, April 3, 1832.
32 33
THE DEFENDER / 2018, VOLUME 2

THE DEFENDER / 2018, VOLUME 2
war STORIES
On March 5, 2018, Scanlon responded The company advertises how simple it is
that it would be “unreasonable” to think to download the videos and the multiple
that she would allow a device from an methods by which a download could occur:
“unknown source” to be put into one DVD, USB Drive and even cloud-sharing.
of the City’s computers. As ridiculous of I knew that Keller’s representations to the
an assertion that this was, I replied that Court were patently false.
I would supply a brand-new flash drive or

THE EXTRAORDINARY
disc in unopened packaging. Scanlon did Nevertheless, as routinely done, the Court
not respond, so I sent another email on sided with the Government and denied my
March 6, 2018 as a final attempt to get the motion completely. Later that day after the
hearing, I filed a Request for Findings of

MEASURES TAKEN TO
electronic duplicates of the officer’s in-car
dash and body worn cameras. Scanlon Fact and Conclusions of Law. On March 19,
continued to resist and stated that it was 2018, the Court faxed me its findings and
her office’s “policy” and there were “no conclusions. The Court placed its emphasis

COVER UP A LIE
exceptions.” Scanlon encouraged me to on the fact that I did not try to work with
file a motion with the Court, so I did. the City to find a time to view the video,
even when I was not asking to view it—
That same day I filed a motion to compel I was asking to electronically duplicate it.
discovery, requesting the videos and
The prosecutors in the City of police. My client was not charged
requesting the Court order the City The Michael Morton Act allows many
Carrollton Municipal Court have a with nor given warnings for any
Attorney’s Office to change their policy so different options for discovery, which are
reputation for being unfair, and the moving violations, and he wanted to
it would be in compliance with the Michael conjunctive, and viewing discovery is one
Court is notorious for its draconian know the reason for the traffic stop.
Morton Act. On March 15, 2018, the motion of the options allowed. My client wanted
policies. While some matters are
was heard in a separate courtroom outside to see his video in my office, as is his right.
discretionary, others are not. The On March 2, 2018, Mary Scanlon,
of the normal docket. It was on the record. The Court also apparently created new
Michael Morton Act, codified under the main prosecutor in Carrollton,
Susan Keller represented the State of Texas definitions of the plain-term “electronic
Article 39.14 of the Texas Code of responded that she would not provide
at the hearing, and Scanlon was not present. duplicate”, finding that it “could mean”
Criminal Procedure, is mandatory, electronic duplicates of the videos in
For the first time, Keller represented to the making a “video of the video.” In my motion,
and Carrollton prosecutors have question, but that I could set-up a
Court that their office had no capability I cited dictionary terms, which the Court
intentionally violated the law. time to view the videos on days when
of downloading the videos. I found this disregarded. Duplicating something is a
When they got stuck in a corner, she was available. I explained that my
argument to be strange for multiple replica. The videos have Metadata—stored
instead of admitting error, they lied schedule was too busy, and I simply
reasons. First, Scanlon never mentioned information regarding when the videos
in a blatant attempt to cover-up what wanted the electronic duplicates that
this in any of her e-mails. You would think were downloaded, created, edited, etc…
they did wrong. Michael Morton requires. Scanlon
that if I offered to provide a flash drive Furthermore, I did not want to hold my
replied that it was “unfortunate” that
or DVD and that it was technologically phone to a computer screen or projector
On March 1, 2018, I submitted a I had a busy schedule, but she would
impossible to copy media, that Scanlon and capture a video of a video. I held off
request under Article 39.14 for my not be providing same. I informed
would have replied as such. Next, I am doing anything for a couple of months
client’s discovery files as he believes Scanlon that I would provide a blank
aware of the software and technology while I was working on other cases.
he was racially profiled and did not DVD or flash drive and asked where
used by Carrollton: WatchGuard.
know why he was detained by the I should drop off the media device.

BY stephen le broCq
34
THE DEFENDER / 2018, VOLUME 2

On April 23, 2018, I filed a Motion for Leave issue that made the Mandamus ripe. I have
for Petition to File a Writ of Mandamus, Writ filed a motion to dismiss Mandamus as
of Prohibition, and for Emergency Relief moot, and Carrollton’s lawyers are asking
in the Texas Court of Criminal Appeals for sanctions, stating that my motion to
(“CCA”). On May 2, 2018, the CCA ordered disqualify them was baseless. I then filed a
Judge Meredith Lyon to respond to the civil suit to prevent the law firm from being
motion I filed. On May 15, 2018, Scanlon paid since it violates the Gift Clause.
e-mailed me that “[t]he prosecutor [sic]
office now has the ability to download [the Dallas Morning News wrote an article about
videos] and burn them to flash drives.” this case, and several people have reached
out to me regarding it. Additionally, when
Later that day, I filed a request under the I tried to contact Carrollton about the
Public Information Act for documents that issues within the Court, the private law firm
would show the purported “upgrade” of sent me a cease and desist letter, stating
the computer system that I know was false. that I violated ethical rules—essentially
On May 17, 2018, Carrollton responded threatening me and suppressing free
by sending me an invoice for $7,056.00, speech. As a result of that letter and the
estimating that it would take 320 hours prosecutors’ actions, I have also filed a
of labor to find the basic documents I federal lawsuit in the Northern District
asked for. I was curious as to why it would of Texas. All defendants in the State and
take so long to find something that was Federal cases have been duly served with
supposedly done within the past month process. Stay tuned for the outcome of this
or so. I filed a complaint with the Attorney conflict and hope that justice will prevail.
General’s Office on May 17, 2018, and it is
still pending.

stephen le brocq
Carrollton hired a private law firm to
represent their interests. I discussed
proposed on many occasions, dismissing
to dismiss the mandamus petition as The managing partner of Le Brocq Law Firm
moot, if they would represent that the PLLC, Mr. Le Brocq, attended middle school and
high school in the Carrollton Farmers Branch
“new policy” would stay in effect. They
Independent School District. After graduating
would not agree, and I filed a motion
high school, Mr. Le Brocq attended law school
to disqualify their counsel as a conflict in Michigan and started his legal career in
because the Judge and City Attorney hired Chicago. After obtaining experience in public
the same lawyer. The City Attorney’s Office defender ����and state prosecutor ����
has 5 attorneys, plus the City was never Mr. Le Brocq worked at a large plaintiff’s ��in
ordered to respond to the Mandamus, Chicago handling mostly medical malpractice
so it’s unclear why the City hired this law and wrongful death cases. He then opened a
firm, especially if the City “fixed” the only 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 SPECIAL ELECTION
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D E F E N D E R
2018 / VOLUME 2

THE DEFENDER
PO Box 924523
Houston TX 77292-4523