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2019

VOLUME 1
STAY
UP TO DATE
WITH HCCLA EVENTS
FROM THE EDITOR
The Defender will tell stories and have ar!cles that will help
us as lawyers do the job we have been hired to do. The
training in law school generally does not train students to
ANY QUESTIONS?
Visit the calendar at www.hccla.org do criminal defense work. HCCLA is established for that
purpose. There are many seminars each year offered by
HCCLA. There is also a weekly appellate update class every
Wednesday that was created by Jim Skelton. A#er Jim le#,
Joe Varela and I took over to keep the class going. Neither
of us can ever fill Jim’s boots or pink tennis shoes, but we try
our best. Lawyer Varela does cases, and I arrange speakers
on current and new topics at the courthouse.

If you have ideas or need help on a legal issue, we also have


the Ethics Hotline that Jim and I created in 2011. HCCLA
also has a Strike Force to help lawyers who find themselves
in a jam with a court.

Chris!na Appelt, Execu!ve Director, has been a life support


for HCCLA since 2002. Chris!na always keeps us up to date
with the confusion in the court house. She is a blessing to
HCCLA. Chris!na can be reached at chris!na@hccla.org. I
can be reached at rpeltonlawyer1@aol.com. We welcome
your input and invite you to write an ar!cle to appear in a
quarterly issue of The Defender.

For those of you who keep score on who wins cases at the
courthouse, Jeff Ross keeps track and lists those victories on
his website, Show Me The Jus!ce.

HCCLA looks forward to having a posi!ve rela!onship with


the new judges. We are happy that many have been HCCLA
members and can relate to the problems facing criminal
defense prac!!oners.

Robert Pelton is a Criminal Defense Lawyer with


offices in Houston and Abilene, Texas. Mr. Pelton
has been named “Top Lawyer for the People” and
one of Marvin Zindler’s “Marvin’s Angels” by
H-Texas Magazine (2007). He was the personal
lawyer for Marvin Zindler for 31 years. He was
also rated by Super Lawyers (2014-18). Mr.
Pelton is a Past President of HCCLA (1985-86),
Founder and Chairman of HCCLA and TCDLA
Ethics Commi"ees (since 2011), a recipient of the Jim
Bowmer Award for Professionalism from the Texas Bar
College (2012); HCCLA Richard “Racehorse” Haynes Life#me Achievement
Award (2016); TCDLA President’s Awards (2011-18); and a United States
Congress Proclama#on from Congressman Ted Poe for his Zeal and Tenacious
Defense of his Clients (2016). In the 1980s, Robert Pelton and Allen Isbell
created Docket Call, which later became The Defender Magazine.
WHAT’S INSIDE 2019, VOLUME 1

FROM THE EDITOR


R
2
4 O
OFFICERS, BOARD OF DIRECTORS
PAST PRESIDENTS
PA

A WORD FROM YOUR PRESIDENT


NT
BY DOUG MURPHY
HY 5
7
COURTHOUSE CHAOS
C
H
HCCLA CAN HELP
BY CHRISTINA APPELT
B

ER
CONGRATS DAVID ADLER
FED FOCUS
US 9
HCCLA NEWS ROUND UP
H
10 W
WELCOME NEW MEMBERS
JOIN US 10TH ANNUAL DECLARATION READING
J
SAVE
S THE DATE 48TH ANNUAL HCCLA BANQUET

HOLIDAY PARTY
Y
PHOTOS BY BOB ROSENBERGG
& RUSSELL M. WEBB
B
12
16 JUST DO THE RIGHT THING
JU
BY ROBB FICKMAN

THE HISTORY OF PAROLE


E
BY ROBYN HARLIN
& SHARON BASS
N
S
18
BEST DEFENSES: PART I
B
20 B JOSEPH A. CONNORS III
BY
& MICHAEL A MCENRUE

PROTECTING THE EVIDENCEE


IN SEXUAL ASSAULT CASES
S
BY RACHEL D. FISCHER, RN
N 26
N
NEWS FROM THE DISTRICT
29 CLERK'S OFFICE
C
BY JUDITH SNIVELY
B

PRAIRIE DOG LAWYER OF TEXAS


AS
BY CHUCK LANEHART
RT 31
34 2019 JUDICIAL SUGGESTIONS
20
BY ROBB FICKMAN
4 C. ANTHONY FRILOUX
C
STUART KINARD
S
THE DEFENDER / 2019, VOLUME 1

the defender GEORGE LUQUETTE


G
MARVIN O. TEAGUE
M
PUBLISHER
DICK DEGUERIN
D
HCCLA
W.B. HOUSE, JR.
W
EDITOR

past presidents
ROBERT PELTON DAVID R. BIRES
D
ADS & DISTRIBUTION WOODY DENSEN
W
ROBERT PELTON
CHRISTINA APPELT
1971-2018 WILL GRAY
W
EDWARD A. MALLETT
E
DESIGN & LAYOUT
BROCHURE BUILDERS
CAROLYN GARCIA
C
BRANDI DELOACH JJACK B. ZIMMERMANN
WWW.BROCHUREBUILDERS.COM
CLYDE WILLIAMS
C
ROBERT PELTON
R
CANDELARIO ELIZONDO
C
ALLEN C. ISBELL
A
DAVID MITCHAM
D
JJIM E. LAVINE
RICK BRASS
R
2018-2019 MARY E. CONN
M

Hccla officers & board KENT A. SCHAFFER


K
DAN COGDELL
D
JJIM SKELTON
GEORGE J. PARNHAM
G
PRESIDENT BOARD OF DIRECTORS
DOUG MURPHY CORDT AKERS GARLAND D. MCINNIS
G
JIMMY ARDOIN ROBERT A. MOEN
R
PRESIDENT ELECT STACI BIGGAR LLOYD OLIVER
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NEAL DAVIS LORI BOTELLO DANNY EASTERLING
D
KATE FERRELL WAYNE HILL
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VICE-PRESIDENT JUSTIN C. HARRIS RICHARD FRANKOFF
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MARK R. THIESSEN GEMAYEL HAYNES W. TROY MCKINNEY
W
JORDAN LEWIS
CYNTHIA HENLEY
C
SECRETARY W. TROY MCKINNEY
STANLEY G. SCHNEIDER
S
DAVID RYAN RAND MINTZER
WENDELL A. ODOM, JR.
W
PAUL M. MORGAN
TREASURER TODD OVERSTREET ROBERT J. FICKMAN
R
STEVEN H. HALPERT DAMON PARRISH II PATRICK F. MCCANN
P
JED SILVERMAN MARK BENNETT
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PAST PRESIDENT J. JULIO VELA JJOANNE MUSICK
TUCKER GRAVES JOE VINAS NICOLE DEBORDE
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SARAH V. WOOD EARL D. MUSICK
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CHRISTOPHER L. TRITICO
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T.B. TODD DUPONT, II
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CARMEN M. ROE
C
JJOANNE MUSICK
TYLER FLOOD
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2019, VOLUME 1 / THE DEFENDER


a word from your president
Doug Murphy
The dawn of a new era is upon us. The election of 28To expedite the relay of information of these massive
new criminal court judges to our 38 criminal courts changes to the criminal defense bar, HCCLA created
has brought new changes to longstanding ways of an “Ambassador” program assigning one HCCLA
doing things. These changes remind me of Thomas member to each criminal court to report back any
Paine’s pamphlet, Common Sense, advocating observations and information received. HCCLA is
independence from Great Britain that sparked the not requesting judges or prosecutors to participate
American Revolution by writing, “A long habit of in our program. The “Ambassador” program is
not thinking a thing wrong, gives it a superficial simple: An Ambassador will report observations
appearance of being right, and raises at first a and information received, if any, from the assigned
formidable outcry in defense of custom. But the court back to the HCCLA board and members so that
tumult soon subsides. Time makes more converts criminal defense practitioners are prepared to render
than reason.” I have witnessed more changes in the effective assistance of counsel relative to changes
month of January than I witnessed over the past occurring in the Harris County Criminal Courts.
20 years. Ambassadors can also relay pertinent information
from HCCLA to the Court and DA’s office if the
As criminal defense lawyers, we must remain
need arises, whether the judges and DA’s office are
vigilant in our obligation to protect fundamental
receptive or not. Nothing more, nothing less.
constitutional principles and ensure due process in
every court while judges gain their footing and we The HCCLA Ambassador role is no different than
sort through the new norm. It is important that we a chief prosecutor being assigned to court by a
assist in solving issues or problems with civility, District Attorney’s office, or a MADD liaison being
kindness and patience. American Patriot Thomas assigned to a particular court to observe court
Paine also noted that, “Those who expect to reap proceedings in an open public forum.
the blessings of freedom, must, like men, undergo
By accepting the appointment, a person appointed
the fatigues of supporting it.” All men and women
as an HCCLA Ambassador role agrees, and is
of HCCLA must lend their support.
6
COURT JUDGE NAME HCCLA AMBASSADOR
THE DEFENDER / 2019, VOLUME 1

required, to abide by these mandatory guidelines:


» An HCCLA Ambassador is not permitted to 1 ALEX SALGADO VIK VIJ
have any ex parte communication with a court 2 RONNISHA BOWMAN TIFFANY HILL
about any particular case. 3 ERICA HUGHES KIMBERLY MCTORRY
» An HCCLA Ambassador is not permitted to 4 SHANNON BALDWIN STEPHANIE MORALES
post on social media, any website, or any 5 DAVID FLEISCHER TROY MCKINNEY
written material that they are an HCCLA
6 KELLEY ANDREWS STACI BIGGER
Ambassador assigned to a court. Doing so
7 ANDREW WRIGHT MARCOS ADROGUÉ
wrongfully implies that you are in a special
position to influence the judge. Doing so 8 FRANKLIN BYNUM SARAH WOOD
will also result in immediate revocation of 9 TORIA FINCH KIMBERLY MCTORRY
HCCLA Ambassador appointment. 10 LEE WILSON GUS SAPER
» An HCCLA Ambassador is not permitted to 11 SEDRICK WALKER DANNY WERLINGER
tell prospective clients, current clients or 12 GENESIS DRAPER KIMBERLY MCTORRY
the public that they are an HCCLA
13 RAUL RODRIGUEZ KATE FERRELL
Ambassador assigned to a court. Doing so
14 DAVID SINGER TROY MCKINNEY
wrongfully implies that you are in a special
position to influence the judge. Doing so will 15 TONYA JONES DAMON PARRISH
also result in immediate revocation of 16 DARRELL JORDAN ALAN MACIAS
HCCLA Ambassador appointment. 174 HAZEL JONES NICOLE DEBORDE
Failure of an HCCLA Ambassador to comply 176 NIKITA HARMON KIMBERLY MCTORRY
with these guidelines will result in immediate 177 ROBERT JOHNSON MARK THIESSEN
revocation of the appointment. This HCCLA
178 KELLI JOHNSON ROBERT LOPER
Ambassador program is an opportunity for the
criminal defense bar to be on equal footing with 179 RANDY ROLL MARK BENNETT
the district attorney’s office when it comes to 180 DASEAN JONES PAUL MORGAN
receiving information on changes occurring in 182 DANNY LACAYO TUCKER GRAVES
each of the 38 Harris County Criminal Courts. 183 CHUCK SILVERMAN JON STEPHENSON
CONTINUED : A WORD FROM YOUR PRESIDENT

We asked for people to volunteer, and we received 184 ABIGAIL ANASTASIO JED SILVERMAN
an overwhelming response. Due to the large 185 JASON LUONG CHRIS MCKINNEY
response, we were not able to accommodate
208 GREG GLASS ROBERT PELTON
everyone’s request in making the Ambassador
appointments. If you were not selected, please 209 BRIAN WARREN BRENT MAYR
do not be discouraged as there are plenty of other 228 FRANK AGUILAR JAMES STAFFORD
opportunities within HCCLA to be involved. 230 CHRIS MORTON JORDAN LEWIS

HCCLA is pleased to announce the following 232 JOSH HILL JOE VINAS
lawyers appointed as Ambassadors to the courts. 248 HILLARY UNGER CYNTHIA HENLEY
262 LORI CHAMBERS GRAY STACI BIGGAR
263 AMY MARTIN ROBERT LOPER
337 HERB RITCHIE CARL PRUETT
338 RAMONA FRANKLIN DORIAN COTLAR
339 MARIA T. JACKSON MARY CONN
351 GEORGE POWELL DAVID RYAN
Courthouse Chaos
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2019, VOLUME 1 / THE DEFENDER


HCCLA CAN HELP
By Christina Appelt, HCCLA Executive Director

The State of Texas v. Your Client. Your victories are sweet, The county needed a Courthouse Chaos hotline—but
and your losses cut deep. The criminal justice system can there was none. I thought, how can I help? Moral support
be a lonely, daunting place for the solo defense lawyer. is nice, but that doesn’t get you to court on time. I began
You don’t have the same resources your DA counterparts scouring the internet and making calls to gather all court-
have—an entire police department, numerous agencies, related information and consolidate it into one place—
crime labs and forensic experts. HCCLA.org/courts—including current Bond/Jail
Docket Schedules. I updated this webpage 35 times in the
The good news is—you are not alone. HCCLA provides first 3 days, dozens of times each week thereafter. This
ample support, resources, and a place to share ideas, page is still routinely updated as a courtesy to both our
knowledge and experiences. Members assist, encourage, and members and the general public.
pick each other up. Members also generously share advice,
trial assistance, strategies, motions, court updates, even I mention all this because HCCLA offers many hidden
rodeo tickets. So when Robert Pelton asked me to write membership benefits. We evolve to fit your needs, however
an article, my first thought was how can I help? I don’t fast those may change.
practice law. I can’t offer a trial tip or ease your burdens in
any meaningful way. Still, this thought invades my dreams A few more resources you may not be using:
at night. You have such a tough job. Surely I can do more
than decorate pinecones for your holiday parties. CJC updates, news, blogs, press releases, and more
HCCLA.org
When Harvey hit, I stayed inside waiting for the water
to recede and normalcy to return, wondering how can I Upcoming seminars and events
help? I saw the rain and courthouse updates pouring in HCCLA.org/calendar
all directions. Courts closed. Jail visits cancelled. ALR
hearings postponed. Pretrial Services moved. Membership directory with searchable member profiles
HCCLA.org/member-directory
Docket times and locations changed by the minute.
Coordinators did the best they could. Some judges gave Private Members-Only library contains a treasure trove
updates on social media, or informed their favorite of useful materials: documents, motions, transcripts,
lawyers, who then (hopefully) shared the news on the organization charts, and other helpful resources
listserv. Over the next few weeks, new court information HCCLA.org/members-only
continued to trickle in, but scattered in so many places it
became harder and harder to find. No justice system in Have an ethical dilemma? obligation to report? conflict of
a county of this size can effectively rely upon unofficial interest? Call the HCCLA Ethics Hotline (713) 518-1738
reports and rumors as legitimate sources of information.
Have a problem with a judge?
Ask for Strike Force assistance on the listserv. A team of
veteran lawyers can help.
8
THE DEFENDER / 2019, VOLUME 1

We strive to provide our members with all the tools you need to Chris!na Appelt has
navigate the murky waters of Harris County, so you can focus served as HCCLA
on zealously defending your clients. I encourage you to visit our Execu!ve Director
since 2002. Prior
website, subscribe to the listserv, follow us on Facebook and Twitter, to that, she worked
or call the Ethics Hotline. You can also email me any questions or in accoun!ng and
send updates to christina@hccla.org. poli!cal consul!ng.
Chris!na graduated
Get what you need, when you need it. Defense lawyers have with Academic Dis!nc!on
a hard enough job. Don’t go it alone. Curb the chaos. In good from University of St. Thomas
in Houston, Texas with a B.A. in Poli!cal Science:
times or bad, HCCLA can help. Public Administra!on. Her hobbies include
managing the listserv, upda!ng the website,
ATTENTION JUDGES a"ending board mee!ngs, proofreading The
Defender, or planning seminars, banquets and
We ask that you immediately notify HCCLA directly other events—though she prefers to lounge in
of any official policy or schedule changes and/or facility the sun with a good book. Born in New Orleans,
closings. While it may be tempting to post on Facebook Louisiana, she also enjoys Cajun cuisine and good
and hope the word spreads, recent events have taught us music. Laissez les bons temps rouler!
that is not the most efficient practice.

PLEASE SEND COURT UPDATES


TO ADMIN@HCCLA.ORG
This will help ensure that accurate information is
disseminated to the lawyers who practice before you
in a fair and timely manner. We thank you for your
cooperation and understanding.
CONTINUED : COURTHOUSE CHAOS
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2019, VOLUME 1 / THE DEFENDER


In November 2018, the local
federal judiciary honored David David Adler understands to his
Adler with the first Judge core the need for adequate representation
for all defendants, regardless of what they are
Thomas M. Reavley accused of doing, what they’ve done in the past,
Award for Outstanding or where they come from.
Public Service. For the ̶ CHIEF U.S. DISTRICT JUDGE LEE H. ROSENTHAL
past decade, David has
served as Representative of David has “skill and intelligence saturated with courage”
the Criminal Justice Act ̶ U.S. DISTRICT JUDGE LYNN N. HUGHES
Panel – a group of hundreds He is “a gentleman and a scholar”
of lawyers in and around ̶ U.S. DISTRICT JUDGE VANESSA D. GILMORE
Houston who represent indigent
federal defendants. He’s not going to let a slip-up go by.
̶ QUINCEY OLLISON, ASSISTANT U.S. ATTORNEY
David Adler is a former CIA He is always there to take defense attorneys’ calls to help with cases
officer, longtime HCCLA they are working on
member, past board member ̶ NICOLE DEBORDE, CJA PANEL SELECTION COMMITTEE
and recipient of HCCLA’s
Lawyer of the Year award I’ve never seen David back away from taking even the person accused of the
(2004). David has represented most heinous crime on the face of the earth. He’s unintimidated.
clients in nearly 800 federal ̶ ROBERT FICKMAN, FORMER CJA PANEL REPRESENTATIVE
cases – ranging from Medicare
••••••••••••••••••
Fraud to more serious offenses
by members of ISIS, the Source: Banks, Gabrielle. “Houston lawyer and ex-CIA officer champions indigent defense in
Taliban, Aryan Brotherhood federal court.” Houston Chronicle, Dec. 26, 2018.
and MS-13.
10
THE DEFENDER / 2019, VOLUME 1

WELCOME
NEW
HCCLA JOIN US
MEMBERS for the

10 TH

ANNUAL
new members
Taniya Al-Amin Uche Mgbaraho
Ana Paula Funes-Baker Kenneth Vern Mitchell

Declaration of
Jeffrey Hohl George Napier
Paul Hubbell Letitia Quinones
Syed Imam Asha Reddi

Independence
Jay Karahan Keyla Martinez Robertson
Cameron Keener Bash Sharma
James Magown C. Stephen Stewart
Larry P. McDougal Peter M. Viles

Reading
Kimberly McTorry Natalie Ware
Marc A. Metze Afshin Zand

new paralegal members July 3, 2019 @ 12pm


On the Courthouse Steps
Criminal Justice Center
Crystal Rose Barela
Thiessen Law Firm 1201 Franklin Street
Crystal Reyna Houston 77002
Biggar Law Firm

new student members


Randy Yates
11

2019, VOLUME 1 / THE DEFENDER


save RICHARD "RACEHORSE" HAYNES
LIFETIME ACHIEVEMENT
Mike DeGeurin

the
Te r r y G a i s e r
Randy Schaffer

LAWYER OF THE YEAR


Gerald Bourque

TORCH OF LIBERTY
Robb Fickman

date
SHARON LEVINE UNSUNG HERO
Steven Rocket Rosen

MENTOR OF THE YEAR


Danny Easterling

MEMBER OF THE YEAR


Patrick McCann
12
THE DEFENDER / 2019, VOLUME 1

Holiday Party
PHOTOS BY BOB ROSENBERG & RUSSELL M. WEBB
2019, VOLUME 1 / THE DEFENDER
13
14
THE DEFENDER / 2019, VOLUME 1

Special anks to our sponsors!


SPONSORS
Cordt Akers Danny Easterling Muniz-Monroy Law Firm
Alli and Katie - The Devlish Duo Antonio Espejo Smart Start
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Sean Darvishi The Imam Law Firm, PLLC Zimmermann, Lavine &
Paul Doyle & Associates Andrea & Rand Mintzer Zimmermann, PC
T.B. Todd Dupont II Schneider & McKinney, PC
CONTINUED : HCCLA BANQUET
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2019, VOLUME 1 / THE DEFENDER


P L AT I N U M HOSTS
Lewis, Moore & Quinones Adrogué Law Firm McLemore, Reddell, Ardoin & Story, PLLC
Terry Bryant, Accident & Injury Law The Montalvo Law Firm, PLLC
GOLD Law Office of Eddie Cortes Judge-Elect Raul Rodriguez, CCL#13
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Robb Fickman
Thiessen Law Firm
Law Offices of Bo Hopmann Scheiner Law Group, PC
SILVER Internet Lava James Stafford
Joe Garcia & Joseph Ruiz Andreea Ionescu J. Julio Vela, Esq.
Doug Murphy Judge Maria Jackson VideoLava.com
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Scott Ramsey Mayr Schiffer, PLLC
Tritico Rainey, PLLC
& Carmen Roe Law Firm, PLLC
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THE DEFENDER / 2019, VOLUME 1

JUST D O BY ROBB FICKMAN

THE RIGHT
THING
Upon receiving HCCLA’s Lifetime Achievement stained with criminal records because a handful of
Award in 2006, the late Honorable Andrew Jefferson judges were too closed-minded to change.
spoke about what it meant to be a good judge.
Ultimately, the Harris County criminal courts were
He said it was not that hard. sued in federal court. With the exception of Judge
Darrell Jordan, the county criminal court judges
Judge Jefferson said, refused to acknowledge the wrongfulness of their
“Just Do the Right Thing.” systematic denial of PR bonds. They spent millions of
tax dollars paying high-priced civil lawyers to defend
The criminal justice system is conservative by nature their despicable system.
and resistant to change. For decades, the “good ole
boys” in charge of the Harris County criminal justice Predictably, U.S. District Court Judge Lee Rosenthal
system have taken pride in maintaining a system stuck “did the right thing” and found the Harris County
in the past. While there have been some innovations, Criminal Court’s bail practices violated due process
like Veterans Court, these innovations remain the and equal protection under the law.
exception and not the rule.
Now, at long last, there is a light at the end of the tunnel.
Harris County has always been a hard ass “Law and The county criminal court judges who perpetuated the
Order” county. For years we have lead the nation in the systematic denial of PR bonds are gone. We have 15
imposition of the death penalty. We have earned the new county criminal court judges and they support
shameful title “Death Penalty Capital of the World.” long overdue bail reform.

One might wonder, are the good citizens of Harris Under the leadership of Judge Darrell Jordan, the
County more evil than the rest of humanity? Or, is 15 new judges have abandoned their predecessors’
the Harris County criminal justice system maybe less federal appeal. Our new county criminal court judges
humane than most of the rest of the civilized world? are united in their commitment to fairly granting
PR Bonds. They will help eliminate the “Plea Mill”
Unfortunately, in years past, some judges elected to perpetuated by their mostly unrepentant predecessors.
ignore Judge Jefferson’s admonition when it came to (Notably, Judge Mike Fields sided with Judge Darrell
granting Personal Recognizance (PR) bonds. Jordan toward the end).

For years our county criminal court judges Our new county criminal court judges should
systematically denied PR bonds. They openly and be praised for embracing the just utilization of
unapologetically perpetuated a vile “Plea Mill” PR bonds.
system. Presumptively innocent indigent defendants,
denied PR bonds and stuck in jail, were effectively For years The Harris County Criminal District Courts
cornered into pleading guilty. No doubt many annually granted PR bonds on only 1% of all cases.
factually innocent indigent defendants plead guilty to The District Courts had to know that they too would
obtain their liberty. Poor people had their lives forever be sued in federal court.
The granting of PR bonds on 17
misdemeanors has not been without

2019, VOLUME 1 / THE DEFENDER


its problems. Onerous conditions are
being placed on PR bonds.

Onerous bond conditions are clearly


not consistent with Judge Rosenthal’s
orders. One forced to comply with
onerous bond conditions will be
more likely to plead. Onerous bond
conditions, if allowed to stand, will
Now,that is exactly
what has happened.
create a new “Plea Mill”. We cannot
trade one plea mill for another.
If it was wrong for the county
courts to systematically deny PR
PR bonds must be granted without
bonds,it is wrong for the district courts onerous conditions.
to do the same. There is a predictability
to the outcome of this lawsuit, and it does not
favor the district courts.

No reasonable person would advocate PR bonds across


the board on all felonies. The nature of the charge is
certainly a relevant and important factor. With that in
mind, it seems wrong to systematically deny PR bonds to
those accused of non-violent State Jail felonies.

First offenders charged with possession of less than


a gram seem to be suitable candidates for PR bond
consideration. Why should presumptively innocent
people be made to wait in custody for lab results? Why
should they sit in jail when their most likely punishment
will be deferred adjudication?

Let us hope that the Harris County district court


judges learn from our new county criminal court judges.
Those accused of felonies, like those accused
of misdemeanors, should be granted PR bonds
Robert Fickman has prac!ced criminal
when appropriate. defense in State and Federal Court for
35 years. He is AV-rated by Mar!ndale-
A protracted legal fight will serve no purpose. A fair Hubbell, a Past President of HCCLA, past
and practical settlement will serve the district courts, Board Member of TCDLA, and a long!me
the accused, the taxpayers, and most importantly, the vocal cri!c of the criminal jus!ce system.
He received the HCCLA President’s Award
best ends of justice. Let’s hope the Harris District Court
in 2018 for his many years figh!ng to
Judges heed the sage advice of the late Judge Andrew eliminate Harris County’s “Plea Mill” and
Jefferson and “Just Do the Right Thing”. systema!c denial of PR Bonds.
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THE DEFENDER / 2019, VOLUME 1

Parole is the discretionary subject to the approval of In 1930, the prior restriction
release of an inmate, by the Governor, for the parole was removed and only inmates
a Board of Pardons and of inmates. who had previously served
Paroles decision, to serve the time in prison were not eligible
remainder of a sentence in the Under this legislation, inmates for parole.
community under supervision. were eligible for parole after
having served the minimum
In 1905, the Texas Legislature amount of time fixed by statue In 1936, the Constitution
enacted the first parole law. for their crime. This law was amended to create a
This law gave authority provided for a parole agent constitutional three-member
to the Board of Prison or supervisor to keep the state Board of Pardons and
Commissioners and the informed about the conduct Paroles. This amendment
Board of Pardons Advisors, of those on parole; however, gave the Board authority to
with the approval of the no system existed for the recommend parole and
Governor, to make rules supervision. clemency to the Governor, and
and regulations under which the Governor was given the
certain inmates could be In 1929, the Legislature sole power to revoke paroles
paroled. Under this law, first created the Board of Pardons and conditional pardons. This
time inmates who had served and Paroles and gave them Act is said to be the birthplace
two years or one-fourth of the authority to recommend of parole in Texas.
their sentence were eligible inmates for parole to the
for parole for certain offenses. Governor as well as to advise Prior to 1937, there were no
on clemency matters. Parole parole officers. A supervisor
In 1911, legislation was passed still only applied to those who of parolees kept records of
that gave authority to the Board had never been convicted of a the parolees, and if they
of Prison Commissions alone crime that was punishable by violated a condition of parole
to make rules and regulations, a sentence to the penitentiary. the violation was reported
19

2019, VOLUME 1 / THE DEFENDER


to the Governor who could issue a warrant Robyn Harlin has been prac!cing law since
for arrest. If parole was revoked, the inmate 1997. Born and raised in West Texas
and spending her career in the greater
was required to serve the balance of his Houston area, she exemplifies
maximum sentence calculated from the date the deeply held values of a true
of the violation. Texan. She works with passion,
hard work and integrity to make
sure that her clients receive the best
Time spent on parole counted as time served outcome possible. Robyn has extensive
on the sentence until parole was revoked. A experience dealing with families in crisis
violator who committed a new offense while and takes a common sense approach to resolving their issues.
While a"ending South Texas College of Law, Robyn interned for
on parole was required to serve the balance A"orney Robert Pelton and has con!nued that close associa!on
of the original sentence before beginning to for the last 19 years. With experience ranging from uncontested
serve the new sentence. divorces to capital murder mi!ga!on, Robyn has spent her en!re
career helping real people resolve real problems.
In 1937, the Governor formed voluntary
Sharon Bass is a Paralegal working for
parole boards to supervise parolees. Prior to Robert Pelton, in Houston, Texas. She
this time, no actual supervision of parolees received her Paralegal Cer!fica!on
was possible since only one supervisor of from Career Ins!tute in 1982 and
also has a Psychology degree from
parolees was provided by law. Voluntary the University of Houston. Sharon
parole supervisors were appointed in 242 of is very ac!ve in advoca!ng for
254 counties in Texas. The volunteer assisted Criminal Jus!ce Reform and has
the parolee in finding a job and required the par!cipated in Parole Forums at the
Texas Department of Criminal Jus!ce,
parolee to submit a report. Darrington, Ellis and Coffield Units. In her spare !me, she loves
being Nana to her four precious grandchildren.
The 50th Legislature in 1947 established
the general framework for how probation
(community supervision) and parole operate
today. Prior to 1947, those released from
prison on parole were actually granted
executive clemency, called conditional or
executive pardons.

The 50th Legislature did not grant any


additional funds for parole operations so the
supervision of those released on parole, or
conditional pardon, was done entirely by the
volunteer parole board.

Many changes have taken place since the


50th Legislature leading eventually to
the establishment of the current Board of
Pardons and Paroles. There are seven Board
Members and fourteen Commissioners in
seven regional offices that vote on the release
or denial of eligible inmates release to parole.

Sources: Texas Department of Criminal Justice,


Parole Division; Wikipedia
20
YOU HAVE BEEN SUED.
THE DEFENDER / 2019, VOLUME 1

You may employ an attorney. If you or your


attorney do not file a written answer with the
District Clerk who issued this citation by 10:00am
on the Monday next following the expiration
of 20 days after you were served this citation
and petition, a default judgment may be taken
against you.

Are there prompt and economical remedies


after service of citation in these scenarios?

ONE
In a collection case for incurred expenses,
defendants counterclaim against your law firm,
alleging your pleadings and courtroom arguments
constituted acts of slander, libel and intentional

BEST
infliction of emotional distress. You can move
for summary judgment, claiming that by your ex-
clients’ counterclaim they have pled themselves
out of court by triggering an insurmountable
bar to their own claims for recovery, since your
conduct was absolutely privileged and within the
judicial communication privilege.1

DEFENSES TWO
Your former client, who is still on community
supervision or probation, is now suing you for
malpractice, breach of contract and fiduciary

P A R T 1 duties, alleging you deprived ex-client of due


process by failing to provide the assistance of
counsel guaranteed by the U.S. Const. Amends.
BY JOSEPH A. CONNORS III & MICHAEL A. McENRUE VI and XIV, since you did not make a reasonably
adequate investigation of the applicable facts
and law in that ex-client’s underlying criminal
prosecution, before you allowed that ex-client to
unknowingly, involuntarily and unintelligently
plead guilty to a crime of which he/she was
absolutely innocent and had factually relevant
legal defenses to criminal liability; but you failed
to advise ex-client regarding those defenses due
to your deficient performance and ex-client would
not have pled guilty but for your deficiencies.
21
THREE
3] C O U N T E R C L A I M S & R E Q U E S T E D
A F F I R M AT I V E J U D I C I A L A C T I O N

2019, VOLUME 1 / THE DEFENDER


You just left your chosen malpractice attorney’s office, a. Acting as a counter-claimant, Defendant now
who agreed to be your defense counsel if you deposit complains of Plaintiff
a $12,000 IOLTA retainer and contract to pay for all and his attorney of record, ,
reasonable expenses and legal services at the hourly and for causes of action shows by this counter
rate of $600 and to return that trust account’s balance to claim that:
$12,000, every time it reaches $5,000. (1) Plaintiff’s suit is groundless in fact and law
and was brought in bad faith or for the purpose of
harassment. Due to that suit, Defendant was
STEP 1 »»»»» compelled to engage the services of the McAllen
Consider timely filing your answer like Mr. Connors did. attorney subscribed below and Houston attorney
Michael McEnrue (who is undersigned’s legal
partner only on this case) and to pay all reasonable
The above Defendant fees and necessary expenses incurred in defense
files this Original Answer to Plaintiff’s Fifth of Plaintiff’s claims, and in the event of an appeal
to a Court of Appeals, and in further event of a
Amended Original Petition, which was filed on petition for review at the Texas Supreme Court,
April 1, 2020, and for such answer shows: and in further event of a petition for writ of
certiorari at the U.S. Supreme Court.
(2) Defendant seeks sanctions against Plaintiff and
1] G E N E R A L D E N I A L
his record counsel.
Pursuant to Tex. Civ. P. Rule 92, the above DEFENDANT
(3) Defendant seeks a court order that Plaintiff and
invokes his rights to jury trial and generally denies each
his record counsel are each jointly and severally
and every, all and singular, the allegations contained in
liable to this Defendant and his attorneys of record
Plaintiff’s fifth amended original petition, and demands
for and must pay them at least these below
Plaintiff be required to prove to a jury his allegations by
reasonable amounts for each of this case’s below
a preponderance of evidence.
types of necessary legal services, given
Defendant’s counsels’ combined 80+ years of law
2] A F F I R M AT I V E D E F E N S E S experience and their involvement in numerous
a. Each of Plaintiff’s causes of action has no basis in appeals in the Courts of the State of Texas and
law or fact. the United States of America:
b. Plaintiff’s claims involve “professional personal ‣ $7,500 to research facts and law and prepare the
services” exempted from liability under the Texas above document.
Deceptive Trade Practices Act (DTPA). ‣ $15,000 to research and litigate a Rule 91a
dismissal motion.
c. Each of this convicted Plaintiff’s claims are barred
as a matter of law, since this Defendant is immune ‣ $30,000 to conduct pretrial discovery in this case.
from liability under the Peeler doctrine.2 ‣ $25,000 to prepare and/or litigate motion(s) for
d. The question of what actions this Plaintiff did leading Summary judgment.
up to being convicted of offenses charged in the ‣ $25,000 to prepare this case for trial.
indictment at the criminal district court level, ‣ $40,000 to try this case at trial other than by
is an issue for the court to decide, not the jury. summary judgment.
On July 1, 2014, County’s 430th District Court ‣ $85,000 at court of appeals to appeal judgment
made the judicial determination that Plaintiff’s acts for Plaintiff.
did constitute crimes under the Penal and Health and ‣ $85,000 at court of appeals to defend judgment for
Safety Codes; and thus, Plaintiff’s claims are barred this Defendant.
by the doctrine of res judicata. ‣ $50,000 to petition for review at the Texas
e. Plaintiff’s claims are time barred by applicable Supreme Court.
statutes of limitations.3 ‣ $50,000 to respond to a petition for review at Texas
Supreme Court.
f. Plaintiff’s petition alleges too few facts to demonstrate
a viable, legally cognizable right to relief or additional ‣ $85,000 to file a merits brief at the Texas Supreme Court.
facts that, if true, bar recovery.4 ‣ $55,000 to file a petition for writ of certiorari at
U.S. Supreme Court.
‣ $90,000 to file a merits brief at the U.S. Supreme Court.
22
THE DEFENDER / 2019, VOLUME 1

4] J U RY T R I A L
Defendant requests a jury trial under Tex. Civ. P. BACKGROUND FACTS
Rule 216. As the Court may judicially notice from Image No. in its
own file, Tex. R. Evid. 201, Plaintiff added this Defendant
Wherefore, Premises Considered, this DEFENDANT to this lawsuit less than sixty days ago by service of
seeks judgment of the court as follows: citation and a copy of Plaintiff’s fifth amended original
(1) Plaintiff take nothing. petition. Accordingly, this Defendant has timely filed this
motion to dismiss under Tex. R. Civ. P. 91a.3(a).
(2) Defendant recover judgment on the above
counterclaim against Plaintiff and his counsel
for all responsible and necessary damages, Plaintiff’s fifth amended petition reveals that he pled
expenses and attorneys’ fees due to this guilty in County’s
Defendant’s attorneys. 430th District Court to felony offenses of possession of
(3) Defendant recover all costs and expenses marihuana (POM) and theft on July 14, 2014, received
incurred herein and for such other and further two probated sentences of ten years’ confinement
relief to which this Defendant may be entitled. conditioned upon service of a 180-day jail term. Plaintiff
was released from custody on January 10, 2015, and
then began serving the remainder of his ten-year term of
CERTIFICATE OF SERVICE community supervision probation. (Pltff. Fifth Amend.
Undersigned certifies that on May 14, 2020, I served a Pet’n ¶ 4.1) Nowhere in his pleading, does Plaintiff claim
copy of this document by U.S. postal service first class that a court has invalidated either of his convictions;
mail to and by email to: rather he admits that each conviction still stands. (Pltff.
Respectfully submitted by Defendant Fifth Amend. Pet’n ¶ 4.33)
& JURY DEMANDED by,
If one reads Plaintiff’s current live pleading liberally, he has
STEP 2 »»»»» alleged a list of claims against this Defendant all growing
out of the latter’s employment by the other defendants
Consider pushing trial court for timely hearing and timely
to draft an application for a writ of habeas corpus under
signed dispositive order, after timely filing your motion like
Tex. Code Crim. P. Art. 11.072 to challenge Plaintiff’s
Mr. McEnrue’s below.
2014 theft and POM convictions. On the strength of this
Defendant’s association with the other attorneys sued,
Plaintiff has accused this Defendant of legal malpractice,
CONTINUED : BEST DEFENSES

DEFENDANT’S MOTION FOR DISMISSAL negligence, civil conspiracy, fraudulent representation,


UNDER TEX. R. CIV. P. 91a negligent misrepresentation, and violation of the DTPA
On the strength of Peeler v. Hughes and Luce, 909 S.W.2d as well as breach of contract and fiduciary duty with a
494 (Tex. 1995) and Wooley v. Schaffer, 447 S.W.3d 71 request for fee forfeiture. (Pltff. Fifth Amend. Pet’n. ¶
(Tex. App.—Houston [14th Dist.] 2014, pet. den’d), this 12.1 - 12.15) Beginning with Peeler v. Hughes and Luce,
Defendant respectfully asks this Court to dismiss all 909 S.W.2d 494 (Tex. 1995), however, Texas appellate
causes of action alleged against him in Plaintiff’s Fifth courts have consistently ruled that a felon cannot sue his
Amended Original Petition, for lack of a basis in either attorney for damages based on the latter’s representation
law or fact within the meaning of Tex. R. Civ. P. 91a. In in the criminal law process while the conviction remains
support, Defendant respectfully shows the Court below. valid. See generally Wooley v. Schaffer, 447 S.W.3d 71
(Tex. App.—Houston [l4th Dist.] 20l4, pet. den’d).
23

2019, VOLUME 1 / THE DEFENDER


ARGUMENT The Texas Supreme Court applied the Peeler bar to
causes of action based on legal malpractice, breach of
In relevant part Tex. R. Civ. P. 9la.l provides: contract, breach of warranty and DTPA violations. Id.
at 496. Lower appellate courts have applied it further.
In Stallworth v. Ayers, 510 S.W.3d 187, 191-94 (Tex.
. . . a party may move to dismiss a cause of action on App.—Houston [lst Dist.] 2016, no pet.), the First
the grounds that it has no basis in law or fact. A cause of Court of Appeals ruled the Peeler holding prevented
action has no basis in law if the allegations, taken as true, the convicted person from litigating claims alleging
together with inferences reasonably drawn from them, do negligence, gross negligence, breach of contract, breach
not entitle the claimant to the relief sought. A cause of of fiduciary duty and DTPA violations by the defense
action has no basis in fact if no reasonable person could attorney. Wooley v. Schaffer, 447 S.W.3d 71, 78 (Tex.
believe the facts pleaded. App.—Houston [14th Dist] 2014, pet. den’d) applied the
Peeler doctrine to claims of legal malpractice, breach of
LACK OF LEGAL BASIS contract, and DTPA5 and civil rights violations asserted
Since Rule 9la was enacted, the First Court of Appeals against counsel retained to seek post-conviction relief
has recognized that a cause of action has no basis in law through a writ of habeas corpus under Tex. Code Crim. P.
in at least two situations: (1) the petition alleges too few Art. 11.07. In its opinion, the Wooley court reviewed how
facts to demonstrate a viable, legally cognizable right to broadly that court has construed the doctrine:
relief; and (2) the petition alleges additional facts that
bar recovery if true. Guillory v. Seaton, LLC, 470 S.W.3d We have applied the Peeler doctrine to claims for
237, 240 (Tex. App.—Houston [lst Dist.] 2015, pet. breaches of contract and fiduciary duty and a
den’d). Because Plaintiff has pled that all defendants’ request for fee forfeiture. See id. (citing Johnson v.
performance and omissions are related to existing felony Odom, 949 S.W.2d 392, 393-94 (Tex. App.—
convictions, Plaintiff’s petition falls within the second Houston [14th Dist. ] 1997, pet. denied). We have
group of claims classified by the First Court of Appeals. also applied the doctrine to all claims connected
to the conviction. Id. (citing McLendon v. Detoto,
In this case, Plaintiff’s allegations, taken as true and No. 14-06-00658-CV, 2007 Tex. App. LEXIS 5173,
construed liberally, trigger a clear legal bar to recovery 2007 WL 1892312, at *1-2 (Tex. App.—Houston
created by the doctrine of Peeler v. Hughes and Luce, [14th Dist] July 3, 2007, pet. denied) (mem.op.).
909 S.W.2d 494 (Tex. 1995). Peeler ruled that the Moreover, we have applied the doctrine to a claim
conduct of a plaintiff convicted of a criminal offense and against an attorney retained to draft a post-
challenging the performance of her defense attorney was conviction petition for writ of habeas corpus that
the sole cause in fact of her damages. Analytically, it was was not filed. Id. (citing Meullion v. Gladden, No.
the sole proximate or producing cause of her damages as 14-10-01143-CV, 2011 Tex. App. LEXIS 9334,
well because there only existed a single cause in fact. The 2011 WL 5926676, at *3-4 (Tex. App.—Houston
litigant, the court said, “may negate the sole proximate [14th Dist. ] Nov. 29, 2011, no pet.) (memo. op.)).
cause bar to their claim for legal malpractice in connection Wooley, 447 S.W.3d at 78.
with that conviction only if they have been exonerated
through direct appeal, through post-conviction relief, or
otherwise.” Peeler, 909 S.W.2d at 497-98.
24
THE DEFENDER / 2019, VOLUME 1

CONCLUSION
In light of the breadth of the Peeler doctrine as interpreted
by the First and Fourteenth Courts of Appeal, it is apparent
that the causes of action alleged in Plaintiff’s current
live pleading in this case have no basis in law while his Because Plaintiff cannot show either a legal or a factual
convictions stand. basis for any of the causes of action pled in his fifth
amended original petition against this Defendant, this
Defendant respectfully asks this Court to grant his motion
L A C A K O F FA C T U A L B A S I S under Tex. R. Civ. P. 91a and dismiss all of Plaintiff’s
As mentioned above, Peeler v. Hughes and Luce, 909 claims against him.
S.W.2d 494, 497-98 (Tex. 1995), held that a convicted
plaintiff’s conduct was not only the sole proximate
cause of the damages flowing from her indictment and
conviction but also the sole cause in fact of her damages
as a matter of law. Of necessity, that specific ruling PRAYER
prevents a convicted individual from alleging any set Wherefore, premises considered, this Defendant
of facts to show a causal link between the performance respectfully asks this Court to:
and omissions of her defense attorney and the damages
flowing from her conviction while the latter still stands. In
a. set this motion for timely hearing according to the
the context of this case, the Peeler doctrine compels the
requirements of Tex.R. Civ. P. 9la.3(b);
conclusion that each cause of action alleged by Plaintiff
lacks any factual support for a causal nexus between the b. timely order dismissed each cause of action Plaintiff
actions of this Defendant and damages experienced by has pled against this Defendant;
Plaintiff with his criminal record intact. In other words, c. conduct a post-dismissal hearing to consider evidence
the Texas Supreme Court has ruled as a matter of law that on attorney’s fees and costs pursuant to Tex. R. Civ.
a reasonable person may not conclude that any damages P. 91a.7;
suffered by Plaintiff as a convicted felon flow from the d. award this Defendant the attorneys’ fees and costs
conduct of this Defendant. Id. at 498. incurred in defending himself against these baseless
causes of action.

Respectfully submitted by Defendant


by,
CONTINUED : BEST DEFENSES
25

2019, VOLUME 1 / THE DEFENDER


1 4
See Esquivel v. Espinosa,_____ S.W.3d , 2018 Tex. App. See Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex.
LEXIS 10777 (Tex. App.— Corpus Christi - Edinburg App.—Houston [1st Dist.] 2016, no pet.); Reaves v. City
Dec. 27, 2018, ____) (affirmed trial court’s granting of Corpus Christi, 518 S.W.3d 594, 608 (Tex. App.—
summary judgment, given law firm’s former clients’ claims Corpus Christi 2017, no pet.).
of torts and breach of contract against the law firm were
exclusively based upon communications within a judicial 5
Since the 1995 amendments to the DTPA where its
proceeding, which were subject to privilege); Martinez § l7.49(c) excepted claims based on the rendering of
v. Hellmich Law Grp., P.C, 681 Fed. Appx. 323 (5th Cir. professional services from the act’s coverage, there may
2017) (Texas law barred attorney’s defamation and other be no further need for courts to apply the Peeler doctrine
tort claims against a law firm for firm’s communications to DTPA claims.
were absolutely privileged, being made in relation
to a proposed arbitration that the firm contemplated
filing against the attorney on behalf of the firm’s
existing clients).

2
See Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. Joseph A. Connors III was licensed in
1973 and became Board Cer!fied
1995) (held that convicted criminal, who without first
in Criminal Law in 1979 by the
establishing that she had been exonerated by direct Texas Board of Legal Specializa!on
appeal, post-conviction relief, or otherwise, was not (TBLS). He prac!ces solo criminal
allowed to sue her attorney for malpractice, breach of and appellate defense in McAllen,
contract, or breach of warranty); Wooley v. Schaffer, 447 Texas, Hidalgo County. Mr. Connors
S.W.3d 71 (Tex. App.—Houston [14th Dist.] 2014, pet. once won a murder acqui"al on direct
appeal when the mother of the alleged
denied) (imprisoned claimant’s causes of action for legal vic!m tes!fied during the prosecutor’s
malpractice, breach of contract and violations of the DTPA direct examina!on that her son was, in fact, s!ll alive.
and constitutional rights were barred as a matter of law The State produced no evidence that the murder “vic!m” was
and fact under the Peeler doctrine, so the trial court did not actually deceased. Sandoval v. State, No. 13-91-379-CR, 1993
err in granting the Tex. Civ. P. Rule 91a motion to dismiss, Tex. App. LEXIS 300, at *5 (op. on second mo!on for rehearing).
See also Sandoval v. State, 846 S.W.2d 9 (Tex. App. 1992, pet.
for when a criminal defendant has not been exonerated,
ref’d).
the sole cause of his indictment and conviction was his
own conduct).
Michael A. McEnrue, a Houston Civil Trial and Appellate lawyer,
was a contributor to this ar!cle
3
DTPA and legal malpractice/negligent tort claims have
a two year limitation; civil conspiracy, federal civil rights
claims and claims of aiding and abetting, and knowing
participation in a scheme have a two year limitation; and
disgorgement/fee forfeiture and breach of contract claims
have a four year limitation.
26
THE DEFENDER / 2019, VOLUME 1

Protecting the Evidence


in Sexual Assault Cases
by Rachel D. Fischer BSN, RN, CFN, SANE-A, SANE-P
Forensic Nurse Examiner; Legal Nurse Consultant
27

2019, VOLUME 1 / THE DEFENDER


In today’s criminal justice The proper help for victims of According to the Rape, Abuse
system there are people in jail sexual assault in Houston is & Incest National Network
who should potentially not be limited. The current system is (RAINN), 1 in 6 women and 1
in jail, and there are people who made up of only a few hospital- in 33 men in the U.S. have been
are not in jail who potentially based programs. Even those victims of rape or attempted
should be. There are two sides that do offer the service do rape and only 310 out of 1,000
to every sexual assault case, and not always have 24/7 forensic sexual assaults are reported to
both the victim and the defendant nursing coverage. A forensic the police. There are countless
need to rely on the evidence to nurse is a registered nurse who reasons victims don’t report
obtain justice. The evidence will is specially trained in how sexual assault or seek medical
speak for itself, if the evidence to care for the physical and care and evidence collection.
is collected properly. emotional needs of victims of all The reasons are unique to each
types of violence, who provides victim. Common dynamics
There is a significant problem unbiased patient care which aids include: fear of not being
with sexual assault in Houston, in promoting justice for both believed, being blamed for
Texas, and it is compounded victims and defendants. someone else’s behavior, fear
by a lack of competent sexual of retaliation and the stigma
assault nurses to do exams. The role of the forensic nurse is around sexual assault. There is a
The solution to that is not to win a case but to perform cultural skepticism surrounding
comprehensive forensic medical unbiased and comprehensive sexual assault reports.
care and evidence collection. medical forensic exams.
When the Houston Police We can all agree that
Department released crime A SANE is a Sexual Assault investigations in the criminal
statistics for 2017, a 12.6 percent Nurse Examiner, which is a nurse justice system should be
increase in sexual assaults was that has specialized training in grounded in facts and evidence;
reported. When discussing the the management of victims of however, sexual assault reports,
phenomena of sexual assault, sexual assault. In Houston, there unlike other crimes, tend to
many people reference the have been several accounts of start with an assumption that it
need for a “rape kit.” This is victims seeking help at various is a false report. This is true in
the common terminology for healthcare facilities and being healthcare with billing codes and
a medical exam that collects sent elsewhere only to find that charting systems. The patient’s
forensic evidence that can assist the next facility also lacks this medical record will usually
with identifying an assailant service. The solution to this read as “alleged sexual assault.”
through DNA findings. dilemma is going to be discussed Whereas someone who arrives
later in the article, but first we with a headache or chest pain
For victims, getting a rape will discuss the significance of will read as simply “chest pain.”
kit is not an easy process. A the issue. There is no “alleged headache”
victim can’t just go to any or “alleged chest pain.” The term
urgent care or hospital and It’s difficult for victims to report “alleged” fosters skepticism and
request this service. Aside from sexual assault and seek help, and disbelief and initiates a barrier
the confusion and dilemma there is a huge gap in Houston between sexual assault victims
surrounding the insurance and between the medical and legal and medical professionals.
payment expectation, there is management of patients who
a severe lack of emergency have been affected by physical
personnel trained to accurately and/or sexual violence.
perform this specialized exam.
28
THE DEFENDER / 2019, VOLUME 1

A federal law passed in 1986 A study by the Office for response that assists in closing
known as EMTALA, (the Victims of Crime Bulletin found the gap in the medical and legal
Emergency Medical Treatment that when a properly trained management of patients who
and Labor Act), which requires forensic nurse completes a rape have been affected by physical
that anyone who walks into an kit, the quality and consistency and/or sexual violence.
emergency room be treated, of the evidence collected
regardless of the ability to improves significantly. HCFNE will provide care for
pay. While freestanding ERs The study also found that both victims and suspects of
in Texas are not mandated to evidence collected by trained crime to ensure that forensic
follow EMTALA, a section of examiners are more likely to evidence is properly collected,
the Texas Administrative Code include proper collection and and appropriate medical
uses similar language. If an labeling of evidence, a complete care is provided.
ER doesn’t have anyone who crime lab form, and the correct
can perform a sexual assault number of swabs and other
exam, they’re supposed to evidence. The increased quality
help the victim get to a hospital of evidence translates into a
that does. proper outcome at the criminal
justice level.
Texas Senate Bill 1191
mandates that all Texas ER’s The solution to providing
have staff trained in basic comprehensive forensic
forensic evidence collection. evidence collection and forensic
Even that mandate enforces nursing experts is a community
only basic knowledge. This based collaborative solution. Rachel D. Fischer, BSN, RN, CFN, SANE-A,
SANE-P (Forensic Nurse Examiner; Legal
often leaves victims walking Harris County Forensic Nurse Nurse Consultant). Rachel specializes in
away without proper care Examiners (HCFNE), is set human trafficking research and rescue,
and the risk of the evidence to launch in February of 2019 and finding missing children. She came
being mishandled. and will be a community based to Houston from Detroit to build a
forensic nursing program to aid in proper
mobile forensic program that medical care and be"er outcomes of
The nurse who provides care has certified forensic nurses survivors of violence. She has tes#fied
to sexual assault victims available 24/7. as an expert witness and does legal
at these facilities may only nurse consul#ng. She gives lectures on
strangula#on and has been helping with
have received the minimum HCFNE’s mission is to provide a strangula#on task force in Houston as
CONTINUED : PROTECTING THE EVIDENCE

requirement of 2 hours of basic comprehensive medical forensic well as a domes#c abuse response team
training, yet they are expected exams with superior evidence (DART) to promote comprehensive care
of strangula#on vic#ms. Rachel travels
to perform the same quality of collection throughout Houston locally and interna#onally for public
forensic exam that a certified and surrounding counties by speaking, trainings and interven#ons for
SANE would perform. coordinating a victim-centered human trafficking.
29

2019, VOLUME 1 / THE DEFENDER


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t o r e t a in r c o m p et t e m p o r ary emp
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30
THE DEFENDER / 2019, VOLUME 1

The office is also comprised of departments


in IT, Accounting, Administration, Jury
Management, Human Resources, Court
Registry, Evidence Retention, Passports, and
Imaging. The locations include:
201 Caroline,
1115 Congress,
1200 Congress,
1301 Franklin,
5900 Canal
and as of February 2, 2019, 701 San Jacinto.

Weekly average case filings include:


875 Criminal Felony,
1200 Criminal Misdemeanor,
875 Civil, Judith Snively, Marilyn Burgess, Wes McCoy
835 Family,
125 Juvenile,
and 325 IVD. Judith A. Snively has more than thirty years of experience in
state and county courts. She offers a unique perspective on the
functions of the Harris County District Clerk’s Office due to
So, in a few short weeks I have learned just her professional interactions with clerks, judges and other legal
how far this office reaches. If we can assist practitioners, as well as the citizens of Harris County.
you in any way please contact me. Also, if you
have concerns or comments on how we can Chief Deputy of Courts
better serve you, we are open to suggestions. Office of Harris County District Clerk
Hope to see you around the courts. Please judith.snively@hcdistrictclerk.com
remember to say good morning to the clerks (832) 927-5777
that assist you everyday.
-------------------

Wes McCoy brings over 40 years’ experience working as a


Deputy District Clerk. He has served at almost every level of
CONTINUED : NEWS FROM THE DISTRICT CLERK'S OFFICE

management within the District Clerk’s Office, including as a


Court Clerk. McCoy previously served as Chief Deputy for four
District Clerks in Harris and Galveston Counties.

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

Marilyn Burgess was elected as the Harris County District Clerk


in 2018. She is a Certified Public Accountant with an extensive
background in business and public life. She worked for the Texas
Parents Teachers Association (PTA) in Dallas, where she worked
with lawmakers to pass legislation for the health, education,
and welfare of the children of Texas including the Children’s
Health Insurance Program, Graduated Driver’s Licensing, and
other laws. She later served as President of the North Houston-
Greenspoint Chamber of Commerce where she helped win a
tax designation favorable to area businesses and gained an
intimate knowledge of the needs and concerns of small and
large businesses. Prior to the election, she served as Chief
Financial Officer at The Fastener Connection, a family-owned
company in north Harris County.
31

PRAIRIE DOG 2019, VOLUME 1 / THE DEFENDER

LAW YER OF TEXAS


BY CHUCK LANEHART
Chuck Lanehart discusses Temple Houston, criminal defense
lawyer and son of Sam Houston. His article was featured in the
Lubbock Avalanche-Journal in January 2019.
32
THE DEFENDER / 2019, VOLUME 1

He was said to be the best shot in the West. He developed a reputation as a fierce advocate
“Old Betsy,” his white-handled Colt revolver, and a magnificent orator. During sessions of court,
was always strapped to his waist. He wore people came from throughout the area to witness
beautifully tailored buckskin attire from Mexico the courtroom drama, camping out for several
and a hand-woven sombrero with an exceedingly days. It was worth the loss of time from farming or
wide brim, a silver eagle displayed against its ranching to watch “Old Sam’s boy” perform.
high crown.
He was elected state senator in 1884, the youngest
Like his father, he stood more than 6 feet tall. His in Texas history at age 24. In 1888, a crowd of
auburn hair was shoulder-length, and his eyes 50,000 heard Temple’s speech dedicating the new
were steely gray. His knowledge of the Bible and Texas Capitol building at Austin.
classical literature was encyclopedic. When he
spoke, everyone listened. By the 1890′s, Temple was a criminal defense
attorney. Accounts of his courtroom performances
The man was not an outlaw or a gunslinger, nor are legendary. In 1899, he defended Minnie
a preacher. No one dared call him a dandy. He Stacey, a “soiled dove” of the Oklahoma Territory.
was Temple Lea Houston, the most celebrated His impromptu “Plea for a Fallen Woman” in
and colorful of the Prairie Dog lawyers, pioneer summation is regarded as a legal classic:


advocates who chased justice on the Texas and
Oklahoma plains in the late 19th century. You heard with what cold cruelty the
prosecution referred to the sins of this
Born in the Texas Governor’s Mansion in 1860, woman, as if her condition were of her
Temple was the youngest son of Sam Houston, own preference. The evidence has painted
iconic soldier and first President of the Republic of you a picture of her life and surroundings.
Texas. He left home at age 13 to join a cattle drive Do you think that they were embraced of her
and later worked on a riverboat on the Mississippi own choosing? Do you think that she willingly
River. After a stint as a U.S. Senate page, he embraced a life so revolting and horrible?
CONTINUED : PRAIRIE DOG LAWYER OF TEXAS

graduated with honors from Baylor University, Ah, no! Gentlemen, . . . Our sex wrecked her
majoring in law and philosophy. At age 21, he once pure life. . . and only in the friendly
became the youngest licensed lawyer in Texas. shelter of the grave can her betrayed and
broken heart ever find the Redeemer’s


Two years later, Temple was appointed the first promised rest.


district attorney for the Texas Panhandle, based in
Mobeetie, Wheeler County. His district covered If the prosecutors of the woman whom you
14,000 square miles, about the size of Switzerland, are trying had brought her before the Savior,
but with few residents and only two other towns, they would have accepted His challenge and
Tascosa and Clarendon. He prosecuted murder, each one gathered a rock and stoned
assault, stock theft and prostitution cases. Gambling her, in the twinkling of an eye.
was also illegal, but Temple said, “It would have No, Gentlemen, do as your Master did twice
been impossible to enforce Texas’ gaming statutes under the same circumstances that surround
without arresting the entire populace.”

you. Tell her to go in peace.
33

2019, VOLUME 1 / THE DEFENDER


The all-male jury quickly acquitted Minnie Stacey. Chuck Lanehart is a shareholder in the
Lubbock firm of Chappell, Lanehart &
Stangl, PC, where he has prac!ced
Temple defended a man accused law since 1977. He is a charter
member and former president of the
of murder. During final argument, Lubbock Criminal Defense Lawyers
he dramatically demonstrated the Associa!on. Chuck served as director
terror his client felt to be of the State Bar of Texas, District
16, and as president of the Lubbock
threatened by an experienced gunman: Area Bar Associa!on (LABA). He has chaired


the LABA's Courthouse Security Commi"ee since its forma!on in
2012. He was the founding editor of LABA’s official publica!on,
What would any of you worthy The Lubbock Law Notes, in 1987. Texas Monthly magazine has
gentlemen have done in the face of named him a “Super Lawyer” in the field of criminal law.

such a character? Do you have any idea


how you would have fared against the
lightning draw of a gun-artist—unless you
had drawn first? This malefactor was so adept
with a six-shooter that he could place a gun in
the hands of an inexperienced man, then draw


and fire his own weapon before his victim
could pull the trigger. Like this!

He suddenly whipped out Old Betsy from beneath


his frock coat, pointed the revolver directly at the
jury, and emptied it rapidly. The jury and everyone
in the courtroom scattered. When court resumed,
Temple assured the court he had fired blanks.
The jury quickly returned a verdict of guilty.

Temple moved for a new trial, arguing the jurors


had violated their duty to remain sequestered.
The judge was obliged to follow the law and
granted a new trial. Months later, Temple’s client
was acquitted by a different jury. He shot two men
dead in separate Oklahoma bar fights, but Temple
beat both murder cases.

In 1905, Temple died of natural causes at age 45.

© 2019 Lubbock Avalanche-Journal.


Reprinted with author's permission.
34
2019 J u d i cial
THE DEFENDER / 2019, VOLUME 1

Suggesti o ns
After 35 years in State and
Federal court, Robb Fickman
has a few suggestions on how
our State and County Criminal
Courts can further improve our
criminal justice system.
STOP HAVING FREQUENT
UNNECESSARY SETTINGS

STOP REQUIRING THE ACCUSED


TO COME TO ALL SETTINGS

DO NOT LET YOUR STAFF ABUSE


THE ACCUSED OR THEIR LAWYERS

BE PATIENT IF COUNSEL DOES NOT


KNOW ALL OF YOUR PET PEEVES

DISTRICT COURTS SHOULD GRANT


PR BONDS ON STATE JAIL FELONIES

DO AWAY WITH ONEROUS


BOND CONDITIONS

DO NOT ENGAGE IN EX PARTE


COMMUNICATIONS WITH PROSECUTORS

REMEMBER WE ARE ALL HUMANS

DO NOT PUNISH THE MANY FOR


THE FAULTS OF A FEW

DO NOT GIVE THE PROSECUTOR


A HOME COURT ADVANTAGE
(DO NOT BE THE JUDICIAL BRANCH
OF THE DISTRICT ATTORNEY'S OFFICE)

DO NOT APPOINT LAWYERS WHO WILL NOT


ZEALOUSLY DEFEND THEIR CLIENTS

DO NOT APPOINT ANY LAWYER


TO TOO MANY CASES

REA D MORE ON PAGE 1 6


D E F E N D E R
2019 / VOLUME 1

THE DEFENDER
PO Box 924523
Houston TX 77292-4523